'.^'VVV-M
 
 T 
 H4-I0ZC 
 
 (..% 
 
 THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW
 
 y 

 
 CASES 
 
 ON 
 
 THE LAW OF TORTS 
 
 SELECTED FROM DECISIONS OF 
 
 ENGLISH AND AMERICAN COURTS 
 
 BY 
 
 CHARLES M. HEPBURN 
 
 PROFESSOR OF LAW IN INDIANA UNI^IERSITY 
 
 AMERICAN CASEBOOK SERIES 
 WILLIAM R. VANCE 
 
 GENERAL EDITOR 
 
 ST. PAUL 
 
 WEST PUBLISHING COMPANY 
 
 1915
 
 I 
 \ 
 
 Copyright, 1915 'i^ 
 
 BY I 
 
 WEST PUBLISHING COMrANT "^ 
 
 V 
 
 (Hepb. Torts) 
 
 T 
 1915
 
 THE AMERICAN CASEBOOK SERIES 
 
 p^ 
 
 The first of the American Casebook Series, ^Mikell's Cases on Crim- 
 inal Law, issued in December, 1908, contained in its preface an able 
 argument by j\Ir. James Brown Scott, the General Editor of the Se- 
 ries, in favor of the case method of law teaching. This preface has 
 appeared in each of the volumes published in the series up to the 
 present time. But the teachers of law have moved onward, and the 
 argument that was necessary in 1908 has now become needless. That 
 such is the case becomes strikingly manifest to one examining three im- 
 portant documents that fittingly mark the progress of legal education 
 in America. In 1893 the United States Bureau of Education pub- 
 lished a report on Legal Education prepared by the American Bar As- 
 sociation's Committee on Legal Education, and manifestly the work 
 of that Committee's accomplished chairman, William G. Hammond, 
 in which the three methods of teaching law then in vogue — that is, by 
 lectures, by text-book, and by selected cases — were described and com- 
 mented upon, but without indication of preference. The next report 
 of the Bureau of Education dealing with legal education, published 
 in 1914, contains these unequivocal statements. 
 
 "To-day the case method forms the principal, if not the exclusive, 
 method of teaching in nearly all of the stronger law schools of the 
 country. Lectures on special subjects are of course still delivered in 
 all law schools, and this doubtless always will be the case. But for 
 staple instruction in the important branches of common law the case 
 has proved itself as the best available material for use practically ev- 
 erywhere. * * * The case method is to-day the principal method 
 of instruction in the great majority of the schools of this country." 
 
 But the most striking evidence of the present stage of development 
 of legal instruction in American Law Schools is to be found in the 
 special report, made by Professor Redlich to the Carnegie Foundation 
 for the Advancement of Teaching, on "The Case Method in American 
 Law Schools." Professor Redlich, of the Faculty of Law in the Uni- 
 versity of Vienna, was brought to this country to make a special study 
 of methods of legal instruction in the United States from the stand- 
 point of one free from those prejudices necessarily engendered in 
 American teachers through their relation to the struggle for supremacy 
 so long, and at one time so vehemently, waged among the rival sys- 
 tems. From this masterly report, so replete with brilliant analysis 
 
 (iii) 
 
 72999G
 
 IV PREFACE 
 
 and discriminating comment, the following brief extracts are taken. 
 Speaking of the text-book method Professor Redlich says : 
 
 "The principles are laid down in the text-book and in the profes- 
 sor's lectures, ready made and neatly rounded, the predigested essence 
 of many judicial decisions. The pupil has simply to accept them and 
 to inscribe them so far as possible in his memor}'. In this way the 
 scientific element of instruction is apparently excluded from the very 
 first. Even though the representatives of this instruction certainly do 
 regard law as a science — that is to say, as a system of thought, a group- 
 ing of concepts to be satisfactorily explained by historical research and 
 logical deduction — they are not willing to teach this science, but only 
 its results. The inevitable danger which appears to accompany this 
 method of teaching is that of developing a mechanical, superficial in- 
 struction in abstract maxims, instead of a genuine intellectual probing 
 of the subject-matter of the law, fulfilling the requirements of a 
 science." 
 
 Turning to the case method Professor Redlich comments as follows : 
 *Tt emphasizes the scientific character of legal thought ; it goes now 
 a step further, however, and demands that law, just because it is a 
 science, must also be taught scientifically. From this point of view it 
 very properly rejects the elementary school type of existing legal edu- 
 cation as inadequate to develop the specific legal mode of thinking, as 
 inadequate to make the basis, the logical foundation, of the separate 
 legal principles really intelligible to the students. Consecjuently, as the 
 method was developed, it laid the main emphasis upon precisely that 
 aspect of the training which the older text-book school entirely neg- 
 lected — the training of the student in intellectual independence, in in- 
 dividual thinking, in digging out the principles through penetrating 
 analysis of the material found within separate cases ; material which 
 contains, all mixed in with one another, both the facts, as life creates 
 them, which generate the law, and at the same time rules of the law 
 itself, component parts of the general system. In the fact that, as has 
 been said before, it has actually accomplished this purpose, lies the 
 great success of the case method. For it really teaches the pupil to 
 think in the way that any practical lawyer — whether dealing with writ- 
 ten or with unwritten law — ought to and has to think. It prepares the 
 student in precisely the way which, in a country of case law, leads to 
 full powers of legal understanding and legal acumen ; that is to say, 
 by making the law pupil familiar with the law through incessant prac- 
 tice in the analysis of law cases, where the concepts, principles, and 
 rules of Anglo-American law are recorded, not as dry abstractions, but 
 as cardinal realities in the inexhaustibly rich, ceaselessly fluctuating, 
 social and economic life of man. Thus in the modern American law 
 school professional practice is preceded by a genuine course of study, 
 the methods of which are perfectly adapted to the nature of the com- 
 mon law."
 
 PREFACE V 
 
 The general purpose and scope of this series were clearly stated in 
 the original announcement: 
 
 "The General Editor takes pleasure in announcing a series of schol- 
 arly casebooks, prepared with special reference to the needs and limi- 
 tations of the classroom, on the fundamental subjects of legal educa- 
 tion, which, through a judicious rearrangement of emphasis, shall pro- 
 vide adequate training combined with a thorough knowledge of the 
 general principles of the subject. The collection will develop the law 
 historically and scientifically; English cases will give the origin and 
 development of the law in England ; American cases will trace its ex- 
 pansion and modification in America ; notes and annotations will sug- 
 gest phases omitted in the printed case. Cumulative references will be 
 avoided, for the footnote may not hope to rival the digest. The law 
 will thus be presented as an organic growth, and the necessary con- 
 nection between the past and the present will be obvious. 
 
 "The importance and difficulty of the subject as well as the time that 
 can properly be devoted to it will be carefully considered so that each 
 book may be completed within the time allotted to the particular sub- 
 ject. * * * If it be granted that all, or nearly all, the studies re- 
 quired for admission to the bar should be studied in course by every 
 student — and the soundness of this contention can hardly be seriously 
 doubted — it follows necessarily that the preparation and publication of 
 collections of cases exactly adapted to the purpose would be a genuine 
 and by no means unimportant service to the cause of legal education. 
 And this result can best be obtained by the preparation of a systematic 
 series of casebooks constructed upon a uniform plan under the super- 
 vision of an editor in chief. * * * 
 
 "The following subjects are deemed essential in that a knowledge ot 
 them (with the exception of International Law and General Juris- 
 prudence) is universally required for admission to the bar: 
 
 Administrative Law. Evidence. 
 
 Agency. Insurance. 
 
 Bills and Notes. International Law. 
 
 Carriers. Jurisprudence. 
 
 Contracts. Mortgages. 
 
 Corporations. Partnership. 
 
 Constitutional Law. Personal Property. 
 
 Criminal Law. -d i -n <. i ^^^ ^^^''• 
 
 „ . . , T-. 1 Real Property. ^ 2d 
 
 Cnmmal Procedure, [ 3d •• 
 
 Common-Law Pleading. Public Corporations. 
 
 Conflict of Laws. Quasi Contracts. 
 
 Code Pleading. Sales. 
 
 Damages. Suretyship. 
 
 Domestic Relations. Torts. 
 
 Equity. Trusts. 
 
 Equity Pleading. Wills and Administration.
 
 VI PREFACE 
 
 "International Law is included in the list of essentials from its in- 
 trinsic importance in our system of law. As its principles are simple 
 in comparison with municipal law, as their application is less technical, 
 and as the cases are generally interesting, it is thought that the hook 
 may be larger than otherwise would be the case. 
 
 "As an introduction to the series a book of Selections on General 
 Jurisprudence of about 500 pages is deemed essential to completeness. 
 
 "The preparation of the casebooks has been intrusted to experienced 
 and well-known teachers of the various subjects included, so that the 
 experience of the classroom and the needs of the students will furnish 
 a sound basis of selection." 
 
 Since this announcement of the Series v/as first made there have 
 been published, or put in press, books on the following subjects: 
 
 Administrative Lazv. By Ernst Freund, Professor of Law, Univer- 
 sity of Chicago. 
 
 Agency. By Edwin C. Goddard, Professor of Law, University of 
 Michigan. 
 
 Bills and Notes. By Howard L. Smith, Professor of Law, Univer- 
 sity of Wisconsin, and William U. Moore, Professor of Law, 
 University of Chicago. 
 
 Carriers. By Frederick Green, Professor of Law, University of Ill- 
 inois. 
 
 Conflict of Lazvs. By Ernest G. Lorenzen, Professor of Law, Uni- 
 versity of Minnesota. 
 
 Constitutional Law. By James Parker Hall, Dean of the University 
 of Chicago, Law School. 
 
 Corporations. By Harry S. Richards, Dean of the University of Wis- 
 consin Law School. 
 
 Criminal Lazv. By William E. Mikell, Dean of the University of 
 Pennsylvania Law School. 
 
 Criminal Procedure. By W'illiam E. Alikell, Dean of the University 
 of Pennsylvania Law School. 
 
 Damages. By Floyd R. Mechem, Professor of Law, Chicago Univer- 
 sity, and Barry Gilbert, Professor of Law, University of Cali- 
 fornia. 
 
 Equity. By George H. Boke, Professor of Law, University of Cali- 
 fornia. 
 
 Insurance. By W. R. Vance, Dean of the University of Minnesota 
 Law School. 
 
 Partnership. By Eugene A. Gilmore, Professor of Law, University of 
 Wisconsin. 
 
 Persons (including Marriage and Divorce). By Albert M. Kales, Pro- 
 fessor of Law, Northwestern University, and Chester G. Vernier, 
 Professor of Law, University of Illinois.
 
 PIIEFACE Vll 
 
 Pleading {Common Lazv). By Clarke B. Whittier, Professor of Law, 
 
 Stanford University. 
 Sales. By Frederic C. Woodward, Dean of Stanford University Law 
 
 School. 
 Suretyship. By Crawford D. Hening, Professor of I<aw, University 
 
 of Pennsylvania. 
 Torts. By Charles M. Hepburn, Professor of Law, University of 
 
 Indiana. 
 Trusts. By Thaddeus D. Kenneson, Professor of Law, University of 
 
 New York. 
 JVills and Administration. By George P. Costigan, Jr., Professor of 
 
 Law, Northwestern University. 
 
 It is earnestly hoped and believed that the books thus far published 
 in this series, with the sincere purpose of furthering scientific training 
 in the law, have not been without their iniluence in bringing about a 
 fuller understanding and a wider use of the case method. 
 
 The following well-known teachers of law are at present actively 
 engaged in the preparation of casebooks on the subjects indicated be- 
 low; 
 
 Frank Irvine, Dean, Cornell University Law School. Subject, Evi- 
 dence. 
 
 Charles Thaddeus Terry, Professor of Law, Columbia University. 
 Subject, Contracts. 
 
 James Brown Scott, Professor of International Law, Johns Hopkins 
 University. Subject, International Lazv. 
 
 Edward S. Thurston, Professor of Law, University of ^Minn^sota. 
 Subject, Quasi Contracts. 
 
 Henry Wade Rogers, Dean, Yale Law School. Subject, Public Cor- 
 porations. 
 
 Albert M. Kales, Professor of Law, Northwestern University. Sub- 
 ject, Property. 
 
 Harry A. Bigelow, Professor of Law, University of Chicago. Subject, 
 Property. 
 
 Ralph W. Aigler, Professor of Law, University of Michigan. Subject, 
 Property. 
 
 * .WitiviAM R, Vance, 
 
 General Editor. 
 Minneapolis, September, 1915.
 
 AUTHOR'S PREFATORY NOTE 
 
 In selecting and classifying the materials for this book, I have had 
 in mind especially the first year law students. If "the classification 
 of actionable wrongs," as Sir Frederick Pollock remarks, "is per- 
 plexing, not because it is difficult to find a scheme of division, but 
 because it is easier to find many than to adhere to any one of them," 
 the problem is hardly less difficult when it has to do with the presen- 
 tation of the principles of Torts, through a collection of cases ex- 
 tending from the Year Books to the present day. But when the 
 needs of a class of first year law students are considered there are 
 two or three guiding principles which tend to settle the scheme of 
 division. 
 
 It appears to be clear that the beginning student in Torts, however 
 it may be in other subjects, should have some assistance, at the 
 very outset, in marking the place which is occupied by Torts in the 
 general field of the law. Perhaps this assistance might be given 
 him through a collection of cases, but for the immediate purpose of 
 this volume it seems best to use a number of reading selections. This 
 I have attempted in an Introductory, dealing with the meaning of the 
 word "tort" as an historical term of law, with the diff^erence between 
 torts and moral wrongs, and between torts and other forms of legal 
 wrong, and with the effect which the common law action for damages 
 has had on our theory of torts. I have added a short note on the 
 classification of torts. 
 
 It appears to be reasonably clear also that the beginning student 
 needs, in his study of the individual torts, a simple and broad classifi- 
 cation based on historical lines. In his inductive study of the cases, 
 he will profit by following in the main the historical development of 
 our law of torts. This has led me to pass by several classifications of 
 torts which are evidently of interest and stimulating value for ad- 
 vanced students, and to take the broadest lines of division and, for a 
 starting point, the causes in trespass. 
 
 The cases on the inclivifhial torts have been arranged, therefore, 
 in two main divisions. In the first I have placed the trespasses, and 
 in a subdivision after them the other torts which rest on an act of 
 absolute liability. 
 
 In the second main division I have placed those torts, chiefly of 
 modern development, in which the plaintiff cannot show any act 
 
 (ix)
 
 X author's prefatory note 
 
 of absolute liability committed by the defendant, but, in order to 
 make out a valid prima facie cause, must show "negligence" or 
 "malice." 
 
 From this two-fold scheme of division, one departure has been 
 made. For the sake of convenience in teaching, the consideration of 
 the causal relation in torts has been treated as a distinct division of 
 the subject, and is placed between the first and the second of the 
 divisions just indicated. Ciiari,ES M. Hetuukn. 
 
 Indiana University School of Law, 
 August, 1915.
 
 TABLE OF CONTENTS 
 
 INTRODUCTORY 
 
 ^ Page 
 
 "Torts" and "Wrongs" 1 
 
 II 
 
 ToKTS AND Moral Wrongs 4 
 
 III 
 
 Torts and Other Legal Wrongs 7 
 
 IV 
 
 Torts and the Common Law Action for Damages 15 
 
 V 
 
 Classification of Torts 21 
 
 PART I 
 Torts Through Acts of Absoluti; Liability 
 
 chapter i 
 
 Section Trespasses 
 
 1. Trespasses in General 2."! 
 
 I. Historical 2:> 
 
 II. Jurisdictional Features of a Cause in Trespass 2G 
 
 III. Characteristics of a Cause in Tresspass 2S 
 
 2. Elements of a Prima Facie Cause in Tresspass 47 
 
 I. In Trespass to the Person 47 
 
 (A) In Assault 47 
 
 (B) In Battery 55 
 
 (C) In False Imprisonment SO 
 
 (a) In General SO 
 
 (b) In Arrest 100 
 
 (c) Imprisonment — Distinguished from Malicious Pros- 
 
 ecution lOo 
 
 II. In Trespass to I'roperty 105 
 
 (A) In Trespass to Real Property 105 
 
 (P>) In Trespass to Personal Property 114 
 
 3. Just ific.'it ion or Excuse of a Prima Facie Trespass 122 
 
 I. Showing the Justification 122 
 
 II. The Different Forms of Justification or Excuse 1.".2 
 
 (A) Consent 132 
 
 (a) Leave and License 132 
 
 Hepb. Torts (xi)
 
 XU TABLE OF CONTENTS 
 
 Section Page 
 3. Justification or Excuse of a Prima Facie Trespass (Continued) 
 
 (B) Accident ; jNIistiike ; Necessity 155 
 
 (a) Accident 155 
 
 (b) Mistalve 16S 
 
 (c) Necessity 175 
 
 (C) Defense of tlie Person 190 
 
 (D) Defense of Property 196 
 
 (a) Defense of Pei'sonal Property ; Recaption 196 
 
 (b) Defense of Real Property; Forcible Re-entry 207 
 
 (E) Lawful Arrest 231 
 
 (a) Under Judicial Process 231 
 
 (b) Arrest Without Warrant 242 
 
 (F) Discipline 266 
 
 (G) Safety of Plaintiff 275 
 
 i. Trespass Ab Initio 2S0 
 
 CHAPTER II 
 
 Absolute Torts otheb Tuan Trespasses 
 
 Before the Statute of Westminster the Second 294 
 
 I. Historical 294 
 
 II. Detinue — Replevin 295 
 
 (A) Nature of the Cause in General 295 
 
 (B) Limits of Detinue and Replevin 305 
 
 After the Statute of Westminster the Second 316 
 
 I. Historical 316 
 
 II. Nuisance 31S 
 
 (A) Nature of the Tort 318 
 
 (a) The Different Kinds of Nuisance 318 
 
 Ob) Nuisance Distinguished from Other Torts 334 
 
 (B) Elements of a Prima Facie Cause in Nuisance 344 
 
 (a) The Facts to be Pleaded, in an Action for Damages 344 
 
 (b) Nature of the Plaintilf 's Interest 348 
 
 (c) The Defendant's Act 354 
 
 (d) Kinds and Degrees of the Annoyance < 373 
 
 (e) Whether Actual Damage is Essential i 385 
 
 (C) The Remedies in Nuisance 396 
 
 (D) Excusable Nuisances 4(x; 
 
 III. Trover and Conversion 437 
 
 (A) Nature of the Tort 437 
 
 (a) Trover and Conversion Distinguislicd from Other 
 
 Torts 437 
 
 (b) Subject-Matter of Trover and Conversion 445 
 
 (c) Effect of a Judgment for Plaintiff 451 
 
 (B) Elements of the Prima Facie Cause in Trover and Con- 
 
 version 455 
 
 (a) The Plaintiff's Right in Conversion 456 
 
 (b) The Defendant's Act 465 
 
 (aa) As Part of the Plaintiffs Case 465 
 
 G>b) Conversion Through Demand and Refusal.. 409 
 
 (cc) Conversion Without Demand and Refusal... 475 
 
 (1) In General 475 
 
 (2) Different Fonns of Such Conversion. . 478
 
 TABLE OF CONTENTS XJll 
 
 Section Page 
 2. After the Statute of Westminster the Second (Continued) 
 
 (C) The Defense in Trover and Conversion 494 
 
 (a) In General - 494 
 
 (b) The Defense ^Mien the Conversion was Through a 
 
 Demand and Refusal 5<X) 
 
 (c) The Defense When the Conversion was Through a 
 
 Destruction or an AsiX)rtation 511 
 
 (d) The Defense When the Conversion was Through 
 
 User 519 
 
 IV. Seduction and Loss of Service 583 
 
 V. Defamation 555 
 
 (A) Origin of the Tort, and the Kinds of Defamation 555 
 
 (a) Its Recognition in the Courts of Law 555 
 
 (b) Slander 55S 
 
 (aa) Limitations Because of the Ecclesiastical 
 
 Jurisdiction 55S 
 
 (bb) Oral Defamation Now Within the Jurisdic- 
 tion of the Courts of Law 559 
 
 (1) Slander Per Se 559 
 
 (i) Words Imputing Crime 559 
 
 (ii) Words Imputing Disease 564 
 
 (iii) Words Disparaging in Trade, 
 
 Profession, or Office 566 
 
 (2) Slander Through Special Damage 574 
 
 (c) Libel 583 
 
 (B) Elements of the Prima Facie Cause in Defamation 595 
 
 (a) Nature of the Charge 595 
 
 (aa ) Defamatory 595 
 
 (bb) Of and Concerning the Plaintiff GOT 
 
 (b) Publication 619 
 
 (c) "Falsely and Maliciously" 634 
 
 (d) Actual Dauiage 638 
 
 (C) Construction and Application 642 
 
 (D) Defenses to a Prima Facie Cause in Defamation 649 
 
 (a) Justification : Truth of the Charge 649 
 
 (b) Privilege 658 
 
 (aa) Absolute Privileges 659 
 
 (bb) Conditional Privilege 678 
 
 (1) Repoi-ts in Public Interest 678 
 
 (2) Communication in Pursuance of a 
 
 Duty 693 
 
 (3) Communication in Protection of a Pri- 
 
 vate Interest 71i; 
 
 (c) Other Excuses for Defamatory Charges Confessed- 
 
 ly Untrue 718 
 
 (d) Fair Comment 728 
 
 (E) Defeating a Prima Facie Justification or Excuse in De- 
 
 famation : MaUce, Excess 738 
 
 (a) As a Reply to the Plea of Justification 738 
 
 (b) As a Reply to the Plea of Privilege 741 
 
 (c) As a Reply to the Plea of Fair Comment 759 
 
 VI. Other Acts at Peril 764 
 
 (A) Keeping His Fire 764 
 
 (B) lyiabillty for Animals 76t5 
 
 (C) Extra-Hazardous Use 776
 
 Xiv TABLE OF CONTENTS 
 
 PART II 
 
 Causal Relation 
 chapter i 
 
 Section Page 
 The Existence of a Causal Relation, and Its Affirmative Show- 
 ing AS Part of the I'laintiff's Prima Facie Case 800 
 
 CHAPTER II 
 The Tests of Legal Cause 
 
 1. The "Proximate Cause" 811 
 
 2. I'robability of Result as a Test of Legal Cause 814 
 
 3. luterxening Agency as a Test of Legal Cause 841 
 
 4. Co-operative Agencies and Legal Cause 883 
 
 PART III 
 Torts Through Acts of Conditional Liability 
 
 chapter i 
 
 Negligence 
 
 1. The Place of Negligence in the Field of Torts 901 
 
 I. Origin of Our Doctrine of Negligence 901 
 
 II. Negligence Distinguished from Other Forms of Tort 905 
 
 2. Elements of a Prima Facie Case in Negligence 916 
 
 I. The Defendant's Duty to Use Care 916 
 
 (A) In General 916 
 
 (B) Legal Degrees of Care 933 
 
 II. Defendant's Failure to Use Care 916 
 
 III. Plaintiff's Actual Damage 903 
 
 IV. Whether Freedom from Contributory Fault is Part of the 
 
 Piima Facie Case in Negligence 969 
 
 3. The Scope of the Duty to Use Care 982 
 
 1. In Relation to the Ownership or Possession of Property 982 
 
 (A) Duty of Care Towards a Trespasser 982 
 
 (a) In General 982 
 
 (b) Modification of the Rule 987 
 
 (B) Duty of Care Towards a Licensee 1014 
 
 (C) Duty of Care Towards an Invitee 1026 
 
 IL In Relation to Contractual Obligation: Whether a Duty of 
 
 Care Towards Third I'ersons 1043 
 
 III. In the Absence of Contractual and Property Obligation 1084 
 
 4. Excusable Negligence 1092 
 
 I. Accident as an Excuse 1092 
 
 II. Contributoi-y Negligence as an Excuse 1096 
 
 III. Assumption of Risk as an Excuse 1114 
 
 IV. Imputed Negligence as an Excuse 1144 
 
 5. The I^st Clear Chance 1151
 
 TABLE OF CONTENTS XV 
 
 CHAPTER II 
 
 Section Torts Through Malice ^^^ 
 
 1. Nature of "Malice" 11S2 
 
 2. Individual Torts Turuins; on Malice 1183 
 
 I. Malicious Prosecution 11S3 
 
 (A) Elements of the Prima Facie Case in Malicious Pros- 
 
 ecution 11S4 
 
 (B) Excusable Prosecr.tion 1196 
 
 II. IMalicious Abuse of Process 1200 
 
 III. iNIalicious Falsehood 1203 
 
 IV. Deceit 121.3 
 
 v. Malicious Use of Property or Influence for the Harai of 
 
 Another 1227 
 
 3. As to Justifying or Excusing the Use of Property or Influence for the 
 
 Intentional Harm of Another 125S 
 
 I. The Principle in General 12-58 
 
 II. In Trade or Business Competition 1310 
 
 III. In Labor Contests; Strikes, Lockouts, Boycotts 135.j 
 
 Hepb.Torts— b
 
 TABLE OF CASES 
 
 CASES CITED IN FOOTNOTES ARE INDICATED BY ITALICS. WHERE SMALL CAPITALS 
 ARE USED, THE CASE IS REf ERRED TO IN THE TEXT 
 
 A TABLE OF STATUTES AND A TABLE OF REGNAL YEARS ARE 
 GIVEN IN THE INDEX 
 
 Page 
 
 Adams v. Adams 2S5 
 
 Adams V. Broughtou 451 
 
 Adams v. Popham 350 
 
 Adams v. Rivers 2S4 
 
 Adams v. Vrsell 376 
 
 Aiken v. Columbus — 807 
 
 Allvens V. Wiscousiu 1260 
 
 Ail-ens v. Wisconsin 3 
 
 Alabama G. 8. R. Co. v. C.hanman 828 
 Alabama O. 8. R. Co. v. Crocker. . 999 
 
 Aldrich v. Wright 199 
 
 Alexander v. Jenkins 572, 574 
 
 Alexander v. New Castle 870 
 
 Alexander v. Soutliey 501 
 
 Allen V. Crofoot 282 
 
 Allen V. Fox 443 
 
 Allen V. Flood 1285 
 
 Allen v. Flood 1282, 1283, 1284, 
 
 1289, 1293, 1372, 1390, 1404 
 
 Allen V. Eillman 566 
 
 Allen V. Keily 224 
 
 Allen V. Wortham 624 
 
 Allgear v. Walsh 504 
 
 Alzua V. Johnson 661 
 
 American Fed. of Labor v. Buck's 
 
 Stove and Range Co 1362 
 
 American Union Tel. Co. v. Mid- 
 
 dleton 440 
 
 Anderson v. Arnold's Ex'r 74 
 
 Anderson v. Ft. Dodge, D. M. & S. 
 
 R. Co 1006 
 
 Anderson v. Gouldberg 304 
 
 Andrews v. Kiusel 872 
 
 Angle V. Chicago, St. P., M. & O. 
 
 R. Co 1302 
 
 Angle v. Chicago, St. P., M. & 
 
 O. R. Co 1334 
 
 Anonymous 190, 559, 764 
 
 Anonymous (1652) 635 
 
 Anonymous, Y. B. 12 Ed. II., 3S1 
 
 (1319) 190 
 
 Anonipnous, Y. B. 20 Edw. IV 
 
 (1-fsi) 30, 109 
 
 Anonvmous, Y. B. 19 Hen. VI 
 
 (1440) 196 
 
 Anonymous, Y. B. 21 Hen. VIII. . . 320 
 Anonymous, Y. B. 27 Hen. VIII. . 263 
 
 Anthony v. Haneys 
 
 Archbishop of Tuam v. Robeson. . 
 
 Armory v. Delamirie 
 
 Arne v. Johnson 
 
 Arnold v. Holbrook 
 
 Arnold v. Ingram 
 
 Arrowsmith v. Le jMesurier 
 
 Arthur v. Oakes 
 
 Ashby V. White 
 
 AsHBY V. White 
 
 Ashcroft V. Hanunond 
 
 Ashley v. Harrison 
 
 Atchison, T. & S. F. R. Co. v. 
 
 Bales . ., 
 
 Atkins v. Fletcher Co 
 
 Attersol v. Briant 
 
 Attorney General of Australia v. 
 
 Adelaide S. S. Co 
 
 Austin V. DowUng 
 
 Austin v. Great Western R. Co 
 
 Averill v. Chadwick 
 
 Ay re V. Craven 
 
 Ayre v. Craven. 
 
 Page 
 130 
 589 
 456 
 597 
 ISO 
 632 
 134 
 
 1359 
 963 
 904 
 743 
 
 1236 
 
 801 
 
 1390 
 
 465 
 
 1261 
 105 
 
 1025 
 459 
 570 
 570 
 
 Bacon v. Boston 436 
 
 Badkin v. Powell 123 
 
 Bailey V. Kclhi 341 
 
 Baily v. ilerrell 1214 
 
 Baker v. Byrne 984 
 
 Baker v. Pierce 644 
 
 Baker v. Snell 792 
 
 Baldwin v. Cole 500 
 
 Baldwin v. Cole 470 
 
 Ball V. Bridges 044 
 
 Baltimore v. Fairfield Imi*. Co. 379 
 
 Baltimore & O. R. Co. v. Cain 253 
 
 Baltzeger v. Carolina Midland R. 
 
 Co 333 
 
 Bamford v. Turnley 416 
 
 Barfoot v. Reynolds 192 
 
 Barhani v. Nethersall 647 
 
 Barholt v. Wright 143 
 
 Barker v. Herbert 3(>7 
 
 Barling v. West 236 
 
 Barnes v. Bruddel 577 
 
 Barrett v. Cleveland. C, C. & St. 
 
 L. R. Co 915, 929 
 
 Hepb.Toets 
 
 (xvii)
 
 XVlll 
 
 TABLE OF CASES 
 
 Page 
 
 Barrows v. Bell <»''^*'> 
 
 Basely v. Clarkson 1(>0 
 
 Bfiteu's Case ^^^7 
 
 Bates V. Batey & Co 10T5 
 
 Banm v. Clause C56, 057 
 
 Bavington v. Robinson 754 
 
 Baynes v. Brewstei- 252 
 
 Beacli V. Hancock 51 
 
 Beardsley v. Bridoiitaii 651 
 
 Beckwitli v. Philby 259 
 
 Bcddall V. Maitland 223 
 
 Bell V. Miller 71 
 
 Benedick v. Potts 95S 
 
 Benjamin v. Storr 332 
 
 Bennan v. Parsonnet 141 
 
 Bennett v. Allcott 124 
 
 Bennett v. Austro Americana S. 
 
 S. Co 97 
 
 Bennichsen v. Market St. R. Co.. .1162 
 
 Benson v. Bacon 54 
 
 Bernina, The 1144 
 
 Berry v. Donovan 1396 
 
 Binn Broom Corn Co. v. Atchi- 
 son, T. & S. F. R. Co S97 
 
 BiGELOw V. Maine Cent. R. Co.. .1081 
 
 Binford v. Johnston 8.59 
 
 Bingham v. Gay nor 743 
 
 Bird V. Astcock 511 
 
 Bird V. Jones 81 
 
 Bird V. Lynn 72 
 
 Bittermau v. Louisville & N. R. 
 
 Co 13.32 
 
 Bjork V. Tacoma 1009 
 
 Black V. New York, N. H. & H. 
 
 R. Co 1103 
 
 Blades v. Higgs 202 
 
 Blugg V. Sturt 695 
 
 Blake v. Lanyon 537 
 
 Blake v. Lanyon 1239 
 
 Blake v. Woolf 797 
 
 Bliss V. Bange 226 
 
 Bliss V. Hall 414 
 
 Blodgett V. Central Vermont R. 
 
 Co 1168 
 
 Blood Balm Co. v. Cooper 1083 
 
 Bloss V. Tobey 647 
 
 Blyth v. Birmingjiam Water- 
 works Co 818, 821 
 
 Blyth V. Topham 982 
 
 Boardman v. Sill 504 
 
 Board of Health v. North Amer- 
 ican Home 380 
 
 Bobb V. Bostcorth 205 
 
 Boggs V. Duncan-Schell Furniture 
 
 Co 1350 
 
 Dohan v. Port Jerms Oas Light 
 
 Co 410 
 
 Bohn Mfg. Co. v. Hollis 1.310 
 
 lUjhn Mfg. Co. v. lloUis 1316 
 
 r.oiiN Mkg. Co. v. Holms. .1320, 1.341 
 Bonner v, Welborn 431 
 
 Page 
 
 Booth V. Arnold 574 
 
 Booth v. Burgess 1393 
 
 Booth V. Hanlei) 247 
 
 Booth V. Rome, W. & O. T. R. Co. 38 
 
 Boston & M. R. Co. v. Small 288 
 
 Bottmnley v. Brougham 659 
 
 BouTWELL V. Marr 1.326. 1395 
 
 Bo WEN V. Hall 1266, 1279 
 
 BowEN V. Matheson 1372 
 
 Box V. Jubb 791 
 
 Boxsius V. Gol)let Frcrcs 630 
 
 Boydell v. Jones 597 
 
 Boy son v. Thorn 1332 
 
 Bradford v. Pickles 1300 
 
 Bradford v. Pickles 1259 
 
 Bradley v. Lake Shore & M. S. R. 
 
 Co 165 
 
 Bradshaio v. Frazier 932 
 
 Bradshaio v. Jones 146 
 
 Uradt V. New Nonpareil Co 621 
 
 Brady v. Warren 34 
 
 Branahan v. Hotel Co 435 
 
 Branstetter,v. Dorrough 720 
 
 Brendlin v. Beers 215 
 
 Bridge v. Grand Junction R. 
 
 Co 1154 
 
 Bridges v. Hawkesicorth 457 
 
 Bridgott v. Coyney 128 
 
 Bricsc V. Macchtle 147 
 
 Brill V. Flagler 201 
 
 Brinilson v. Chicago & N. W. R. 
 
 Co 1019 
 
 Brlnsmead v. Harrison 452 
 
 Brook V. Montague (Sir) 662 
 
 Brook V. Sir Henry Montague... 662 
 
 Brooker v. Coffin 560 
 
 Brooks V. Olmstead 118 
 
 B rough v. Dennyson 644 
 
 Broughton v. McGrcw 714, 749 
 
 Brown v. American Steel & Wire 
 
 Co 838 
 
 Brown v. Chapman 105 
 
 Brown v. Croome 742 
 
 Brown v. Giles 770 
 
 Brown v. Journal Neicspaper Co. 618 
 
 Brown v. Kendall 160 
 
 Brown, Hussey & Erith v. How- 
 ard 271 
 
 Hroivning v. Commomvealth 559 
 
 Bruch V. Carter 212 
 
 Bruen v. Roe 475 
 
 Brunsden v. Humphrey 968 
 
 Brunswick (Duke) v. narrncr..i>22, 722 
 
 Buckley v. Gross 457 
 
 Buckataff v. II icks 747 
 
 Bull V. Cotton 60 
 
 BuUard v. Harrison 180 
 
 Bullock V. Bahcock 15S 
 
 BuHDK'K V. Cheadle 920 
 
 Burnham v. Dowd 1436 
 
 Burrows v. Pixley 321
 
 TABLE OF CASES 
 
 XIX 
 
 Pnen 
 
 Buschlaum v. Heriot 672 
 
 Bltsii v. Brainard 219 
 
 Bushel V. Miller 512 
 
 Butler V. Frontier Tel. Co 112 
 
 BuTOLPn V. Blust 243 
 
 Butterfield v. Ashley 539 
 
 Butterfield v. Forrester 109G 
 
 Button V. Hudson River R. Co. . . 978 
 
 Bi/am V. Collins 704 
 
 Byne v. Moore 11S5 
 
 Byrne v. Beadle 952 
 
 Cadle v.' Mcintosh 714 
 
 Cadwell v. Farrell 135 
 
 Cameron v. Cockran 701 
 
 Camphell v. Race 179, 187 
 
 Campbell v. Seaman 374 
 
 Campbell v. Sherman 236 
 
 Campbell v. Spottiswoode 761 
 
 Carew y. Rutherford 
 
 1343, 1373, 1374, 1435 
 
 Carey v. Sheets 54 
 
 Carlisle Sc Cumberland Banking 
 
 Co. v. Bragg 926 
 
 Carney v. Boston Elevated R. Co. 961 
 
 Carr v. Clarke 543 
 
 Carr (Sir) v. Hood 728 
 
 Carson v. Wilson 129 
 
 Carter v. Andrews 648 
 
 Cary v. Holt 107 
 
 Castle V. Duri/ea 158 
 
 Cattle v. Stockton Waterworks 
 
 Co 1245 
 
 Cavalier v. Pope 923 
 
 Central Railroad d- Banking Co. v. 
 
 Lamplcy 442 
 
 Cernahau v. Chrisler 529 
 
 Chamberlain v. Boyd 581 
 
 Chambers v. Baldwin 1328 
 
 Chambers v. Leiser 714 
 
 Chandelor v. Lopus 1213 
 
 Chapleyn of Ch-eye's Inne 191 
 
 Chapman v. Nash 1187 
 
 Chapman v. Rotiiwell 1029 
 
 Charing Cross Electricity Supply 
 
 Co. v. Hydraulic Power Co 783 
 
 Chatfield v. Wilson 1331 
 
 Chatterton v. Secretary of State. . 673 
 
 Cheatham v. Shearon 358 
 
 Child V. Affleck 693 
 
 Chip man v. Palmer 408 
 
 Christianson v. Chicago, St. P., M. 
 
 & O. R. Co 829 
 
 Christie v. Griggs 1092 
 
 CnuRCiiiLL V. White 493 
 
 Cincinnati Daily Tribune Co. v. 
 
 Bruck 1194 
 
 Cincinnati, etc., R. Co. v. South 
 
 Fork Coal Co 952 
 
 Citi/ of Crawfordsville v. Van 
 
 Cleave 808 
 
 Pago 
 
 Clark V. Brown 651 
 
 Clark v. Me wsam 757 
 
 Clark V. Molyneux 701 
 
 Clark V. Wallace 861 
 
 Clay V. Wood 1151 
 
 Cleghorn v. Thompson 70 
 
 Cleveland v. Citizens' Gas Light 
 
 Co 375 
 
 Cleveland Leader Printing Co. v. 
 
 Nethcrsole 736 
 
 Clissold V. Cratchley 43, 45 
 
 Clover, Clayton & Co. v. 
 
 Hughes 834 
 
 Cluttcrbuck v. Chaffers 620 
 
 Cockcroft v. Smith 192 
 
 Codman v. Evans 335 
 
 Coffin V. Coffin 673 
 
 Cohen v. Neiv York Times Co.... 585 
 
 Colby V. Jackson 276 
 
 Cole v. Drew 287 
 
 Cole V. Fisher 158 
 
 Cole V. Turner 148 
 
 Coleman v. MacLennan 747 
 
 Collins V. Carnegie 727 
 
 Collins v. Renison 2iS 
 
 CoUis V. Malin 566 
 
 Commercial Bank v. Ten Eyck... 969 
 
 Commonwealth v. Hunt 1431 
 
 Commonwealth v. IS^ickcrson 84 
 
 Commonwealth v. Rubin 280 
 
 Corny n v. Kyneto 114 
 
 Conner v. Standard Pub. Co 739 
 
 Conrad v. Roberts 749 
 
 Constable v. National SS. Co.. . 899 
 
 Cook v. Gust 713 
 
 Cook V. Hastings 245 
 
 Cook V. Johnston 1115 
 
 Cook V. Mayor and Corporation of 
 
 Bath 333 
 
 Cook V. Ward 720 
 
 Cook V. Ward 585 
 
 Cooke V. Midland Great Western 
 
 Ry. of Ireland 1002 
 
 Coombs V. Lenox Realty Co 403 
 
 Corby v. Hill 1014 
 
 Corby v. Hill 1060 
 
 Corey v, Adams 883 
 
 Corey v. Havener 883 
 
 Cornelius v. Van Slyck 559 
 
 Costigau V. Pennyslvania R. Co. . . 113 
 
 Coulson V. White 401 
 
 Count Joannes v. Bennett 702 
 
 Count Joannes v. Burt 564 
 
 Coupledike v. Coupledike 305 
 
 Courtney v. Eneib 74 
 
 Cowen V. Kirby 1038 
 
 Cowley v. Pulsiier 685,691 
 
 Cox V. Burbidge 35 
 
 Cox V. Burbidge 781 
 
 Cox V. BuRinnoE 918 
 
 Crawford v. Middlcton 634
 
 XX 
 
 TABLE OF CASES 
 
 Page , 
 
 CreCELIUS V, BlERMAN 671 
 
 CromicelVs (Lord) Case 644 
 
 Crossctt V. Campbell 81 
 
 Crossier v. Ogleby 480 
 
 Crump V. Lambert 401 
 
 Cuddiiigton v. Wilkins 655 
 
 Curry v. Walter 678 
 
 CTumberlaud Glass Mfg. Co. v. De 
 
 Witt 1306 
 
 Cutler V. Dixon 659 
 
 Daingerfield v. Thompson 71 
 
 D\iltomonte v. New York Herald 
 
 Co 594 
 
 Dalton's Adm'b v. Louisville & 
 
 N. R. Co 992 
 
 Dana v. yalentine 390 
 
 Dand v. Sexton 27 
 
 Daniel v. Metropolitan R. Co. 809 
 Daniels v. New York, N. H. & U. 
 
 R. Co 837 
 
 Daugherty v. Reveal 490 
 
 Dauncey v. Holloway 575 
 
 Davis V. Collins 159 
 
 Davis V. Garrett 886 
 
 Davis V. Sawyer 381 
 
 Davis V. Smud 705 
 
 Davis' Adm'r v. Ohio Valley 
 
 Banking & Trust Co 990 
 
 Da\n.es v. Mann 1152 
 
 Dalies v. Solomon 579 
 
 Daickins v. Lord Rokchy 666 
 
 Dawkixs v. Lord Rokeby OftS 
 
 Daickins v. Rokehy (Lord) 666 
 
 Dawkixs v. Rokeby (Lord) 668 
 
 Day V. Buller 566 
 
 Day V. Edwards 906 
 
 Dean v. Hogg 211 
 
 Dean v. Peel 542 
 
 Deane v. Clayton 983 
 
 Delacroix v. Thevenot 624 
 
 Delany v. Jones 715 
 
 Delaware & Hudson Canal Co. v. 
 
 Torrey 406 
 
 Delz v. Winfree 1343 
 
 Dench v. Walker 478 
 
 Denny v. Chicago, etc., R. Co.... 935 
 Denny v. New York Cent. R. Co. 896 
 
 Depue V. Flatau , 1087 
 
 Depue V. Flat a a 932 
 
 Derecourt v. Corbishley 251 
 
 Derrick v. Kelly 42 
 
 Derry v. Peek 1214 
 
 Derry v. Peek 614 
 
 Dei-ry v. Peek (Sir) 1219 
 
 Derry v. Sir Henry William I'eek..l219 
 
 De S. v. De S 28 
 
 Devereux v. Barclay 526 
 
 Devlin v. Smith 1067 
 
 Dexter v. Cole 172 
 
 Page 
 De Young v. Frank A. Andreivs 
 
 Co 473 
 
 Dickerson V. Watson 157 
 
 Dickinson v. Boyle 885 
 
 Digby v. Financial News 735 
 
 Dimauro v. Linwood St. R. Ca . . 938 
 
 Dixon v. Bell 1073 
 
 Dixon v. New York, N. H. & H. R, 
 
 Co 1127 
 
 Dodivcll V. Buford 60 
 
 Doherty v. Brown 6.55 
 
 Dohr V. Wisconsin Cent. R. Co... 1108 
 
 Dole V. Lyon 720 
 
 Dolph V. Ferris 34 
 
 Domhoff V. Paul Stier, Inc 227 
 
 Donkey Case, The 1152 
 
 Donuell v. Canadian Pae. R. Co. 509 
 
 DoNOGHUE V. Hayes 737 
 
 Dooling V. Budget Pub. Co 599 
 
 Douglass v. Daisley 711 
 
 Dowd V. New York, etc., Rii 146 
 
 Dowd V. New York, O. & W. R. 
 
 Co 1135 
 
 DowNES V. Bennett 1393 
 
 Downing v. Elliott 393 
 
 Doyley v. Roberts 567 
 
 Drake v. Shorter 519 
 
 Drude v. Curti.s 465 
 
 Dubois V. Beaver 221 
 
 Dudley v. Northampton St. R. Co. 985 
 Duke of Brunswick v. llarmer 
 
 622, 722 
 
 Duncombe v. Daniell 746 
 
 Dunlap v. Hunting 474 
 
 Dunshee v. Standard Oil Co 1344 
 
 Dust Sprayer Mfg. Co. v. Western 
 
 Fruit Grower 600 
 
 DuviviEK V. French 608 
 
 Dug V. Alabama M' est cm R. Co. 325 
 Dyk V. De Young 61 
 
 Earl V. Lubbock 1072 
 
 Earl v. Lubbock 1076 
 
 Larl of Ripon v. Hobart 401 
 
 Eastern d South African Tel. Co. 
 
 V. Cape Town Tramways Cos. 385 
 Eastern & South African Tel. 
 Co. v. Cape Town Tramways 
 
 Cos 797 
 
 Eaton v. Allpn 559 
 
 I'^CKERT V. ijONG ISLAND R. R. . . . 1128 
 
 Economopoulos v. Polhtrd Co. 
 
 020, 626 
 
 JJdmondson v. Birch d Co 630 
 
 Edmonson v. Stevenson 694 
 
 Edwardes v. Wootton 638 
 
 Edwards v. Halindcr 336 
 
 Edwards v. Wool on 621 
 
 E. Ilulton I'lc Co. v. Jones 611 
 
 Eldred v. Oconto Co 477 
 
 Eliza Lines, The 30
 
 TABLE OF CASES 
 
 XXI 
 
 Page 
 
 Ellcr V. Kochler 427 
 
 Ellis V. Loft us Iron Co 109 
 
 Ellis v. Metropolitan St. R. 
 
 Co 1181 
 
 Emhrey v. Given 964 
 
 Emmens v. Pottle 032, 633 
 
 I'^iMENS V. Pottle 631 
 
 Engelhaet v. Ferrant 868 
 
 Englaud v. Cowley 506 
 
 Englisli V. Amidon 1137 
 
 Ertz V. Produce Exchange Co. of 
 
 Minneapolis 1315 
 
 Eten V. Luyster 815 
 
 E. T. & H. K. Ide v. Boston & M. 
 
 R. Co 850 
 
 Evans v. Harlow 600, 1211 
 
 Evans v. Lisle 3S6 
 
 Evans v. Waite 143 
 
 Evansville & S. I. Traction Co. 
 
 V. Spiegel 1172 
 
 Evansville £ T. H. R. Co. v. Welch 828 
 
 Everett v. Paschall 376 
 
 Exchange Tel. Co. v. Gregory 
 
 & Co 1338, 1339 
 
 Fahn v. Reichart 765 
 
 Fahr v. Hayes 750 
 
 Falloon v. Schilling 1297 
 
 Farmer v. Darling (Sir) 1185 
 
 Farmer v. Sir Robei-t Darling. .1185 
 Farmers of Ilainpstead-Water 
 
 Co., Case 334 
 
 Farr v. Bank 531 
 
 Farrant v. Barnes 1028 
 
 Farwell r. Boston, etc., R. Corp.. .1131 
 
 Fay V. Hartford St. R. Co 970 
 
 I'ay V. Prentice 386 
 
 Fay V. Prentice 969 
 
 Fen v. Dixe 599 
 
 Ferdon v. Dickens 629 
 
 I'ergns Lane v. Atlantic Works . . . 862 
 I'ilbuni V. People's Palace & 
 
 Aquarlnm Co 774 
 
 FiLBUEN V. People's Palace & 
 
 Aquariuji Co. 7&4 
 
 P'meux V. Hovenden 318 
 
 Fisher v. Bristow 1184 
 
 Fisher v. Prince 443 
 
 Fitchhurg R. Co. v. Nichols 981 
 
 Flanagan v. McLane 706 
 
 Fletcher v. Fletcher 276 
 
 Fletcher v. Rylands 22, 147 
 
 Fletcher v. Rylands 786, 788, 797 
 
 Flower v. Adam 814 
 
 Fogg v. Valiant 801 
 
 Fonrille v. McNeasc 620 
 
 Ford V. Lamb 581 
 
 Forde v. Skinner 73 
 
 Fores v. Wilson 121 
 
 Forsdick v. Collins 513 
 
 Ft. Worth d R. a. R. Co. v. Glenn 354 
 
 PagB 
 
 Foss V. Hildreth 657 
 
 Foss V. Hildreth 740 
 
 Foster v. Browning 644 
 
 Fotheringham v. Adams Express 
 
 Co 90 
 
 Fottler V. Moseley 893 
 
 Foulger v. Newcomb 568 
 
 Fowler v. Sanders 320 
 
 I'razieb v. Brown 1331 
 
 Frazier v. Pennypaclc Trap Rock 
 
 Co 336 
 
 I'rost V. Eastern R. R 999 
 
 Funston v. Pearson 585 
 
 Gagnon v. French Dick Springs 
 
 Hotel Co 1298 
 
 Galbraith v. Illinois Steel Co.... 1047 
 
 Gamhrill v. Schooley 629 
 
 Gargrave v. Smith 282 
 
 Gamier v. Squires 87 
 
 Garret v. Taylor 1266 
 
 Gates V. Blincoe 396 
 
 Gates V. Miles 160 
 
 Gautret v. Egerton 1016 
 
 Gee V. Metropolitan R, Co 1097 
 
 Geneva Wagon Co. v. Smith 525 
 
 Genner v. Sparkes 100 
 
 George V. Harvy 560 
 
 George Jojxas Glass Co. v. Glass 
 
 Bottle Blowers' Ass'n 1427 
 
 George N. Pierce Co. v. Wells 
 
 Fargo & Co 945 
 
 George v. Skwington 1077 
 
 Gerard (Sir) v. Dickenson 1204 
 
 Gibbons v. Pepper 30 
 
 Giblan v. National Amalgamated 
 Labourers' Union of Great lirit- 
 
 ain and Ireland 1398 
 
 Gibney v. State 857 
 
 Gibson v. Chaters 1190 
 
 Gilford V. Wiggins 236 
 
 Gilbert v. Slwwerman 427 
 
 Gilbert v. Stone 29, 178 
 
 Giles V. Walker 916 
 
 Giles V. Walker 356 
 
 Gilman v. Emery 214 
 
 Gilman v. Noyes 812 
 
 Gilmore v. Fuller 145 
 
 Glamorgan Coal Co. v. South 
 
 Wales Miners' Federation 1406 
 
 Golden Reward Mining Co. v. Bux- 
 ton Min. Co 114 
 
 GoMPERS V. Buck's Stove & 
 
 Range Co 1440 
 
 Gootlell V. Tower 102 
 
 Goodman v. Taylor 67 
 
 Gordon v. Harper 464 
 
 Gordon v. Spencer 722 
 
 Graham v. Peat 100 
 
 Grainger v. Hill 1201 
 
 1 Graves v. Blanchet 558
 
 xxn 
 
 TABLE OF CASES 
 
 Page 
 
 Graves v. Dudley 31;f 
 
 Graves v. Sevcrcns Ho 
 
 Greeley v. Spratt 228 
 
 Greenland v. Chaplin 814 
 
 Greenirai/ r. Fisher ol"*" 
 
 Green-Wheeler Shoe Co. v. Chica- 
 go, R. I. & P. R. Co S94 
 
 Greenwood v. Prick (531 
 
 Greenicood v. Pride 034 
 
 Gregory v. Hill 217 
 
 Gregory v. Piper ^1 
 
 Grenada Lumber Co. v. Mississip- 
 pi 1315 
 
 Griff en v. Manice 957 
 
 Grill V. Iron Screw Collier Co 934 
 
 Grimshaw v. Lake Shore R. Co.. . -1025 
 
 Gryiues v. Shack 447 
 
 GUETIILER V. Altman 1353 
 
 GuiLLE V. Swan 857 
 
 Gurley v. Armstead 516 
 
 Hadwell v. Righton 918 
 
 Hague V. Wheeler 1301 
 
 Haines v. Welling 720 
 
 Hall V. Fearnley 130, IGO 
 
 Hall V. Galloway 343, 347 
 
 Hamilton v. Long 552, 553, 554 
 
 Handcock v. Baker 257 
 
 Hankinson v. Bilby 646 
 
 Hannabalson v. Sessions 216 
 
 Hannabalson v. Sessions 112 
 
 Hannen v. Edes 272 
 
 Harding v. Wilkin 443 
 
 Hardy v. Murphy 247 
 
 H organ v. Purdy 727 
 
 Harker v. Birhcck 107 
 
 Harman v. Delany 607 
 
 Harndon v. Stultz 917 
 
 Harness v. Steele 99 
 
 Harrington v. Hall 197 
 
 Harris v. Butler 584 
 
 Harris v. James 367 
 
 Harris v. I'erry & Co 1022 
 
 Harrison v. Bush 694 
 
 Harrison v. Duke of Rutland 286 
 
 Harrison v. Thornhorotigh 645 
 
 Harrop v. Hirst 388 
 
 Hart V. Aldridge 535 
 
 Hart v. Alduiuge 540 
 
 Hart V. Basset 321 
 
 Hartford v. Jones. 495 
 
 Hartley v. Cummings 537 
 
 Hartley v. Moxham 117 
 
 Harvey v. Brydgcs 22:> 
 
 Harvey v. Epes 493 
 
 Haskins v. Royster 1329 
 
 Hatch V. Lane 748 
 
 Hatchard v. Mege i205 
 
 Haward v. Bankes 336 
 
 Hay V. Cohoes Co 36 
 
 Hayden v. Hasbrouck 714 
 
 Hayes v. Brooklyn Heights R. Co. 339 
 
 Page 
 Hayes v. Michigan Cent. R. Co.. . . 810 
 
 Haynes v. Clinton 735 
 
 Ilearne v. Stojcell 634 
 
 Heaven v. I'ender 1055 
 
 Heaven v. Pender 1074 
 
 Hebditch v. Macllwaine 696 
 
 Hebrew v. Pulis 89 
 
 Heim v. New York Slock Ex- 
 change 1315 
 
 HeIZEU v. KiNGSLAND & DOUGLASS 
 
 Mfg. Co 1070 
 
 Heller v. Hoivard 725 
 
 Hehvig v. Mitchell 562 
 
 Hennessy v. Connolly 242 
 
 Henn's Case 178 
 
 Henry v. Atchison, T. d S. F. R. 
 
 Co 900 
 
 Henry v. Mohcrly 753, 763 
 
 Henry v. Southern Pac. R. Co. . . 860 
 
 Hemcood v. Harrison 701 
 
 Hepburn v. Sewell 454 
 
 Heriot v. Stnart 6.39 
 
 Herrick v. Wixom 989 
 
 Herring v. Boyle 82 
 
 Hewett V.Chicago, B. & Q. R. Co. 899 
 
 Hickey v. McCabe 39 
 
 Hickman v. Maiscy 287 
 
 Higginson v. York 170 
 
 Hill V. Glenwood 936 
 
 Hiort V. Bott 484 
 
 HiORT V. Railway Co 532 
 
 HoAG V. Railroad Co 826 
 
 Hobart V. Hagget 171 
 
 Ilobbs V. London & Southwestern 
 
 R. Co 813 
 
 Hobson V. Thellusou 965 
 
 Hodgkins v. Price 229 
 
 Hodgson v. Scarlett 662 
 
 Hoffman v. Eppers 277 
 
 Hogle V. Franklin Mfa. Co 351 
 
 Hogle V. H. H. Franklin Mfg. Co. 367 
 
 Holbrook v. Morrison 1295 
 
 Hole v. Barlow 416, 417, 418 
 
 Holmes v. Bagge 210 
 
 Holmes v. Corthell 347 
 
 Holmes v. Drew 1042 
 
 Holmes V. Drew 1043 
 
 Holmes v. Mather 64 
 
 Holroyd v. Doneaster 240 
 
 Homer v. Thwing 521 
 
 Hopkins V. Bccdlc 649 
 
 Hopkins v. Oxley Stave Co 1439 
 
 Hopkins Chemical Co. v. Read 
 
 Drug d Chemical Co 600 
 
 Hopper V. Reeve 60 
 
 JJorlon V. ^\'ylic 144 
 
 Ilosmer v. Republic Iron & Steel 
 
 Co 351 
 
 Hubbard v. I'reston 358 
 
 Hudson V. Wabash Western R. Co. 979 
 
 Hug(;ktt v. Montgomery 910 
 
 Hughes v. Heiser 321
 
 TABLE OF CASES 
 
 XXlll 
 
 Page 
 
 Hughes V. McDonough 1234 
 
 Huglies V. Muug 300 
 
 Hughs V. Farrer 500 
 
 Hiilton & Co. V. Jones Oil 
 
 BiDickcl V. Voneiff 072 
 
 Hunicke v. Meramec Quarry Co. 1002 
 
 Huntington v. Sbultz 100 
 
 Hupfer V. National Distilling Co.. .1040 
 
 Hurley v. Eddiugfield 931 
 
 Huset V. J. I. Case Threshing 
 
 Mach. Co 1003 
 
 Huskie v. Griffin 1251 
 
 Hiiskie V. Griffin 1347 
 
 HUTCTtlNS V. HUTCHINS ....12(J8 
 
 Hutchins v. Page 740 
 
 Hutch ins v. Page 058 
 
 Huth V. Hiifh 024 
 
 Hyde v. Scyssor 121 
 
 Hyman v. Nye & Sons 1093 
 
 Ihhotson V. Peat 191 
 
 Ide V. Boston & M. R. Co 850 
 
 llott V. Wilkes 140 
 
 Ineledon v. Burgess 20 
 
 Indermaur v. Dames 1020 
 
 Indianapolis Traction Co. v. Pres- 
 
 sell i 948 
 
 Innes v. Wylie 02 
 
 Insurance Co. v. Tweed S30 
 
 Ireland v. Elliot 193 
 
 Irish V. Cloyes 470 
 
 Iron Molders Union v. Allis-Chal- 
 
 mers Co 1423 
 
 Isaack v. Clark 280, 470 
 
 Isham V. Dow's Estate 853 
 
 Jackson v. Smithson 793, 794 
 
 Jackson v. Stanfield 1317 
 
 Jackson v. Stanfielu 1341 
 
 Jackson v. Wisconsin Tel. Co 84(3 
 
 James v. Campbell 158 
 
 James v. Tindall 220 
 
 Janson v. Brown 198 
 
 Jarnigan v. Fleming 047, 720 
 
 Jarvis v. Hatheway 714 
 
 Jefferson viLLE, etc., R. Co. v. 
 
 Riley 833 
 
 Jenkens v. Fowler ,.1247 
 
 Jenoure v. Delmege 750 
 
 Jersey City Printing Co. v. Cas- 
 
 siDY 12.55, 1389 
 
 J. F. Parkinson Co. v. Trades 
 
 Council 1253 
 
 Joannes (Count) v. Bennett 702 
 
 Joannes (Count) v. Burt...( 504 
 
 Johnson v. Broivning 050 
 
 Johnson v. Patterson 218 
 
 Johnson v. Sir John Aylmer 007 
 
 Johnstone v. Sutton 1194 
 
 Jonas Glass Co. v. Glass Bottle 
 
 Blowers' Ass'n 1427 
 
 Page 
 
 Jones v. Boyce 845 
 
 Jones V. Davers 025 
 
 Jones V. Egerton 1010 
 
 Jones V. B. Hulton & Co Gil 
 
 Jones v. Stanly 1329 
 
 Jones V. Tresilian 101, 197 
 
 Jones V. Winsor 401 
 
 Judson V. Giant Powder Co 1122 
 
 Judy V. Citizen 227 
 
 Ka in v. Larkin 149 
 
 Karges Furniture Co. v. Amalga- 
 mated W. W. U. No. 131 1426 
 
 Kearney v. London, etc., R. Co.. . . 952 
 
 Keeble v. Hickeringill 1227 
 
 Keeble v. Hickeringill. . .1260, 1271 
 
 Keefe v. State 50 
 
 Keeley v. Great Northern R. Co. . . 673 
 
 Keep V. Quallman 194 
 
 Keleher v. Putnam 270 
 
 Kelly V. Partington 595 
 
 Kennedy v. Press Put). Co GOO, 002 
 
 Kei'riford's Case 148 
 
 Kerwood v. Ayi-es 499 
 
 Kestner v. Homeopathic M. d S. 
 
 Hospital 380 
 
 Ketch Frances v. Steamship High- 
 land Loch 1157 
 
 Kettle V. Bromsall 298 
 
 Keyworth v. Hill 479 
 
 Kiene v. Ruff 021 
 
 Kimball v. I'ost Pub. Co 684 
 
 KiMBER V. Press Ass'n 685 
 
 Kinaston v. Moor 448 
 
 Kine v. Jolly 395 
 
 King, The. v. Roberts 050 
 
 King V. Franklin 270 
 
 King v. Lake 589 
 
 King V. Morris & Essex R. R 3.32 
 
 King v. Patterson 711 
 
 King v. ^yaring 722 
 
 Kirby v. Foster 205 
 
 Kirk V. Gregory 185 
 
 Kirk V. West Virginia Colliery Co. 106 
 
 Kirland v. State 60 
 
 Klechauer v. Western Fuse & Ex- 
 plosives Co 358 
 
 Klumph V. Dunn 563, 564 
 
 Knapp V. Guyer 518 
 
 Knickerbocker Ioe Co. v. Gar- 
 diner & Co 1.307 
 
 Knight v. Blackford 500 
 
 Krebs v. Oliver 502 
 
 Labelle v. Central Vermont R. Co. 1179 
 
 I^acon V. Barnard 438 
 
 Laflin & Rand Powder Co. v. Tear- 
 
 ney 345 
 
 Lake v. Hatton 584 
 
 Lake Erie d W. R. Co. v. Maekcy 981 
 Lalaurie v. Southern Bank 909
 
 XXIV 
 
 TABLE OF CASES 
 
 Page 
 
 Lamberson v. Long 671 
 
 Lamlituu v. Cox 363 
 
 Lambtou v. Mellisb 363 
 
 Lambton v. Mrllis-h 408 
 
 Lane v. Atlantic Works 862 
 
 Lane V. Cox 922 
 
 Lane v. Crombie 969 
 
 Lane v. Dixon 107 
 
 Lunger v. Goode 917 
 
 Lansing v. SmUh 323 
 
 Larkin v. Long 1418 
 
 Larmore v. Crown Point Iron 
 
 Co 1033 
 
 Larson v. Cox 656 
 
 Larson v. Dan son 451 
 
 La Societe Anonyme de Remor- 
 
 quage a Helice v. Bennetts 1244 
 
 Lawson v. State 267 
 
 L. D. Willcutt & Sons Co. v. Brick- 
 layers' Benevolent «fc Protective 
 
 Union No. 3 1386 
 
 Leahan v. Cochran 361 
 
 T^eame v. Bray 155, 907 
 
 Leame v. Bray 63, 910 
 
 Leathern v. Craig 1280 
 
 Lee V. Troy Gaslight Co 979 
 
 Le Fanu v. Malcomson 612, 613 
 
 Leighs (Lord) Case 266 
 
 Lemmon v. Wchl) 339 
 
 Leonard v. Wilkins 197 
 
 Letts v. Kessler 1229 
 
 Lcvridge v. Hoskins 336 
 
 Lewis V. Hoover 48 
 
 Lewis V. Levy 679 
 
 Lewis v. Terry 1070 
 
 Leyman v. Latimer 656 
 
 TAefert v. Galveston L. d E. R. Co. 517 
 
 Lillie (Sir) v. Price 658 
 
 Lines, The Eliza 30 
 
 Little V. Chicago, etc., R. Co 849 
 
 Livermore v. Batchelder 199 
 
 Lock v. Ashton 103 
 
 Ijoeschman v. Maohin 524 
 
 Lombard v. Lennox 596 
 
 Long v. Railroad Co SS9 
 
 longmeid v. holliuay 1075 
 
 Longshore Printing Co. v. PIow- 
 
 ELL 1393 
 
 Longtin v. Per sell 43 
 
 Ix)ok V. Dean 275 
 
 Lopard v. Sjinons 501 
 
 Lord V. De Witt 385 
 
 Lord CromicelVs Case 644 
 
 Lord Derby, The 63 
 
 Lord Leighs Case 266 
 
 Lord Northaynpton's Case 720 
 
 Louisville, etc., R. Co. v. Jones 833 
 Louisville Home Tel. Co. v. Gas- 
 per 875 
 
 Low V. Grand Trunk Ry 1034 
 
 Luka V. Lowrie 278 
 
 Page 
 
 Lumby v. Alldat 572 
 
 Lnniley v. Gye 1237 
 
 Lumley v. Gye 534 
 
 Lumley v. Gye 1266, 1287, 1329 
 
 Lundin v. Post Pub. Co 690 
 
 Lutlopp V. Heckmann 132, 192 
 
 Lygo v. Newbold 1025 
 
 Lynch v. Knight 573 
 
 Lynch v. Nurdiu 993 
 
 Lynch v. Nurdin S6S, 1003 
 
 Lynch v. Union Inst, for Sav- 
 ings 404 
 
 McAndrews v. Coli.erd 911 
 
 Macaiilcy Bros. v. Tierney 1314 
 
 McAvoy V. Medina 457 
 
 McBride v. Ellis 585 
 
 ilcCahill V. New York Transp. Co. 832 
 
 McCarthy v. Heiselman 467 
 
 McChesney v. Wilson 2(i0, 220 
 
 McClnskey v. Wile 341 
 
 McDoiiald V. Kugent 565 
 
 McDougall V. Claridge 712 
 
 McDowall V. Great Western R. Co. 866 
 
 McGonigle v. Atchison 441 
 
 Mack V. Sharp 119S 
 
 Mackintosh v. Dun 707 
 
 Mackintosh v. Trotter 445 
 
 INlcLaughlin v. Cowley 665 
 
 McLoughlin v. American Circular 
 
 Loom Co 640 
 
 McNulty V. Ludicig tC- Co 341 
 
 McPhex-son v. Daniels 718 
 
 McVoy V. Oakes 987 
 
 Magar v. Hammond 1124 
 
 :\Iagee v. Scott 469 
 
 Mahan v. Brown 1331 
 
 Maleverer v. Spinke Ill 
 
 Malone v. Belcher 1202 
 
 Malone v. Laskey 349 
 
 Maloy V. St. Paul 1121 
 
 Miiuvell V. Thomson 545 
 
 Marble v. Worcester 813 
 
 March v. Bricklayers' and Plaster- 
 ers' Union No. 1 1433 
 
 Marentille v. Oliver 114 
 
 Marentille v. Oliver 60 
 
 Marine Bank v. Fiskc 504 
 
 Markley v. Whitman 137 
 
 Marlow v. Wcekcs 115 
 
 Marshal v. Steward 560 
 
 Marshalsea's Case 231 
 
 Marten v. \A'liite 1321 
 
 Martell v. White 1366, 1388, 
 
 1396, 1440 
 
 Marys' Case 533 
 
 Mason v. Keeling 770 
 
 Massce V. Williams 622 
 
 Matthow V. Crass 575 
 
 Ma'ithew V. Ollerton 142 
 
 Maxham v. Day 30M
 
 TABLE OF CASES 
 
 XXV 
 
 Page 
 
 May V. Burdett 772 
 
 May V. Burdett 781 
 
 May v. Burdett 793 
 
 May V. Nahant 801 
 
 Mayor v. Pickles 1247 
 
 Mayor, Aldermen & Citizens of 
 
 IManchester v. Williams 639 
 
 Mazetti v. Armour »fc Co .1077 
 
 Mead v. Thompson 483 
 
 Mellin v. White 1207 
 
 Mennie v. Blake 306 
 
 Mercer v. Sparks 635 
 
 Merchant Prince, The 167 
 
 Meredith v. Reed 935 
 
 Merle v. Sociological Research 
 
 Film Corporation 601 
 
 Middleton v. Bridelyngton 146 
 
 Mill) lime t\ Byrne 539 
 
 Miller v. Baker 116 
 
 Miller v. David 571 
 
 Mill-er v. Hyde 452 
 
 Miller v. Race 450 
 
 Mills V. Armstrong 1149 
 
 Mills V. Graham 300 
 
 Milman v. Dohvell 127 
 
 Milwaukee R. Co. v. Kellogg. . . 875 
 Milwaukee & St. P. R. Co. v. Kel- 
 logg 822 
 
 Milwaukee & St. P. R. Co. v. 
 
 Kellogg 837 
 
 Missouri, K. & T. R. Co. of Texas 
 
 V. Wood 1085 
 
 Mitchell V. Mitchell 51 
 
 :\iitchil V. Alestree 905 
 
 Mogul S. S. Co. V. McGregor 1261 
 
 Mogul S. S. Co. v. McGregor. . . 
 12o9, 1260, 1284, 1287, 1312, 
 1313, 1323, 1325, 1340, 1365, 
 
 1397, 1403, 1401, 1411 
 
 :\Iohr V. Williajns 78, 138 
 
 Monson v. Lewis 204 
 
 Montgomery Ward & Go. v. South 
 Dakota Retail Merchants' & 
 
 Uardiiarc Dealers' Ass'n 1315 
 
 Moo7-e V. Bank 705 
 
 Moore v. Bloomington 151 
 
 Moore v. Dame Browne 359 
 
 Moore v. Duke 283, 286, 293 
 
 Moore v. Francis 002 
 
 Moore V. Meagher 577 
 
 Moreton v. Hardern 909 
 
 Morgan v. Bliss 1215 
 
 Morris v. Laxgdale 569 
 
 Morris v. Miller 143 
 
 Morrison v. Eitchie d Co 636 
 
 Moses V. Dubois 84, 1.34 
 
 Mouse's Case 175 
 
 Muetze v. Tuteur 743 
 
 Mulfjrave v. Ogden 442 
 
 Mullen V. St John 953 
 
 Mullen V. St. John 957 
 
 Paso 
 
 Multerer v, Dallendorfer 487 
 
 Munsey v. Webb S42 
 
 Munster v. Lamb 663 
 
 Munster v. Lamb 661, 666 
 
 Murphy v. Great Northern Ry. Co. 865 
 
 Murray v. Iltzgerald 545 
 
 Murray v. South Carolina R. Co. ..1131 
 
 Murtha V. Lovewell 433 
 
 Myers v. Hodges 666 
 
 .Myers v. Malcolm 356 
 
 'National Copper Co. v. Minnesota 
 
 Min. Co 339 
 
 National Phonograph Co. v. Edi- 
 son-Bell Consol. Phonograph 
 
 Co 13.35 
 
 National Protective Ass'n v. 
 
 Gumming 1429, 1432 
 
 National Protective Ass'n of 
 Steam Fitters and Helpers v. 
 
 Gumming 1377 
 
 Nelson v. Crawford 52 
 
 New England Cement Gun Co. v. 
 
 McGivern 1439 
 
 Newkirk v. Sabler 182 
 
 Newsom v. Anderson 159 
 
 Neivton v. Grubbs 617 
 
 Neivton v. Harland 223 
 
 New World, The, v. King 935 
 
 Niagara Oil Co. v. Ogle 346 
 
 Niblet V. Smith 305 
 
 Nichol V. Martyu 541 
 
 Nichols V. Marsland 785 
 
 Nichols v. Marsland 795 
 
 Nichols & Shepard Co. v. Miimeso- 
 
 ta Threshing Mfg. Co 462, 498 
 
 Nicol V. Oregon-Washington R. & 
 
 Nav. Co 1164 
 
 Niven v. Miinn 649 
 
 Norman v. Bell 496 
 
 Northampton's (Lord) Case 720 
 
 Northern Indiana R. Co. v. Mich- 
 igan Cent. R. Co 349 
 
 Northrop v. Tibbies 608 
 
 Norton v. Chandler d Co 865 
 
 Norton v. Union R. Co 81 
 
 Norvell v. Thompson 28 
 
 Noyes v. Colby 768 
 
 Nyberg v. Handelaar 303 
 
 Oakley v. Farrington 567 
 
 O'Brien v. Loomis 912 
 
 O'Connor V. Connecticut, etc., Co... 970 
 
 Oddv V. Lord George Paulet 743 
 
 Oddy V. Paulet (Lord) 743 
 
 O'Donnell v. Nee 725 
 
 Ogden v. Turner 558 
 
 O'Hara v. Central R. Co. of Neio 
 
 Jersey 976 
 
 Ohio Oil Co. V. Indiana 1.300 
 
 Olivant v. Berino ,. . . . 443
 
 XXVI 
 
 TABLE OF CASES 
 
 Pass 
 
 Olive r. Van Patten 1342 
 
 Onnsbij v. Douglass 711 
 
 Orton V. Butler 448 
 
 Osborne v. Ivondon & N. W. R. Co. . 1110 
 
 Oshorne v. Van Dyke 1G4 
 
 O'Shaugnessy v. Baxter 231 
 
 Ott V. Murphy 735 
 
 Owen V. Ogilvie Pub. Co 627 
 
 Pacific Paclci}ig Co. v. Bradstreet 
 
 Co 710 
 
 Page v. D night 207, 229 
 
 Page V. Hollingsworth 33 
 
 I'almer v. Gordon 988 
 
 Palmer v. Ulniiw Cent. R. Co 247 
 
 Palmer v. Thorpe 5-"8 
 
 Parle V. O'Brien 970 
 
 Parkinson v. Council 1347,1432 
 
 Parkinson Co. v. Trades Coun- 
 cil 1253 
 
 Parsons v. Age Herald Pub. Co.. . 735 
 
 Pasley v. Freeman 7, 1215 
 
 Patrick v. Colerick 133 
 
 Patrick v. Greenway 109 
 
 Pattou V. Texas & P. R. Co 958 
 
 Paul V. Slason 115 
 
 Paxton V. Boyer 172 
 
 Payne v. Smith 1154 
 
 Peak V. Tatibman 714 
 
 Pearse v. Pearse 711 
 
 Pearson v. Lcmaitrc 712 
 
 Peck V. Tribune Co 591 
 
 feck V. Trihune Co 610 
 
 Peek V. Derry 1219 
 
 Pennsylvania R. Co. v. Kerr... 823 
 
 People v. Croswell 605 
 
 People V. McTvean 238 
 
 1*E0PLE V. Smith 1386 
 
 Peri-y v. Porter 738 
 
 Peters v. Jones 552 
 
 Peterson v. Haffncr 159 
 
 Petrel, The 1133 
 
 Pfeift'er v. Grossman 110 
 
 Phillips V. Janscn 620 
 
 Ph mips V. Jfm.es 299 
 
 Pickering v. Kudd HI 
 
 Pickett V. Walsh 1362 
 
 Pickett v. Walsh 1387, 139.5, 
 
 1438, 1440 
 
 Piehl V. Albany Rv 955 
 
 Piehl V. Albany It. Co 957 
 
 Piei'ce V. Stablemen's Union, Tx)- 
 
 cal No. 87G0 1427 
 
 Pierce Co. v. Wells Fargo <fe Co.. . 945 
 
 Pierson v. Glean 430 
 
 Pile V. Pedrick 413 
 
 Piper V. I'earson 233 
 
 Piscata(/7ia Nav. Co. v. New York, 
 
 etc., R. Co 322 
 
 Pittsburg, Ft. W. & C. R. Co. v. 
 
 Bingham 919 
 
 Page 
 
 Plant v. Woods 1368 
 
 Plant V. ^Yoods 1300 
 
 Plant v. Woods. .1249, 1256, 1365, 
 
 1366, 1387 
 
 Plonty V. Murphy 53 
 
 Ploof V. Putnam 187 
 
 I'lumer v. Harper 363 
 
 Plummer v. Dill 10.32 
 
 Plmnmer v. Dill 1043 
 
 Poggi v. Scott 527 
 
 Polkinliorn v. Wright 209 
 
 Pollard V. Lyon 579 
 
 Pollen V. Brewer 223 
 
 Polsue & Alfieri v. Rushmer 424 
 
 Pouting V. Noakes 982 
 
 Post Pub. Co. V. Hallam 731 
 
 Post Pub. Co. V. Peck 729 
 
 Pouchan v. Godeau 724 
 
 Powell Duffryn Steam-Coal Co. 
 
 V. Taff Vale R. Co 1355 
 
 Pratt V. Davis 141 
 
 Press Co. v. Stewart 649 
 
 Price V. Jenkings 625 
 
 Priestley v. Fowler 1129 
 
 Priestly v. Fowler 1133 
 
 Proctor V. Adams 181 
 
 Prnssak v. Hutton 358 
 
 Pullman v. Hill d Co 629 
 
 I'ursell V. Horn 55 
 
 Puterbaugh v. Gold Medal Mfg. 
 
 Co .' 629 
 
 I'ut »& Hardy v. Rawsterne 437 
 
 Quarts Hill Mining Co. v. Kyre. . .1195 
 
 Queen v. Carden 735 
 
 Queen v. Dudley 30, 177 
 
 Quinn v. Chicago, etc., R. Co 1171 
 
 Quinn v. Leathern 1285 
 
 Quinn v. LsATUEir 1337, 1390, 
 
 1401, 1402, 1403, 1411, 1412 
 
 Radley v. London & N. AV. R. Co. . .1158 
 
 liadway v. Duffy 441 
 
 Railroad Co. v. Kekr 855 
 
 Railroad Co. v. Stout 810 
 
 Ram V. Lamley 659 
 
 itamsby v. Beozley 482 
 
 Rapier v. London Tramways Co. . . 409 
 
 Ravenga v. Mackintosh 1198 
 
 Raycroft v. Tayntor 1j:47, 1346 
 
 Raymond Syndicate v. Guttentag 463 
 
 Read V. Coker 53 
 
 Read v. Edivards 35 
 
 Read v. Friendly Society of Oper- 
 ative Stonemasons of England, 
 
 Ireland and Wales 1291 
 
 Ifced V. (loldncck 199 
 
 Reeve v. Palmer 301 
 
 Reg. v. Druitt 1374 
 
 Reg. v. Rowlands 1-69, 1270 
 
 Regina v. Lesley 98
 
 TABLE OF CASES 
 
 XXV 11 
 
 Page 
 
 Heilly v. Curtiss 573 
 
 Reporters' Ass'n v. Sun Printing 
 
 d rub. Co 581 
 
 RespubUca v. De Longehamps . ... 62 
 Retail Lumber Dealers' Ass'n v. 
 
 Mississippi 1315 
 
 Rex V. Wheatlij 11 
 
 Kex V. Wright 679 
 
 Rex v. Wright 6S0, 681 
 
 Reynolds v. Clarice 336 
 
 Reynolds v. Ficrson 148 
 
 Rich V. Bastei-field 365 
 
 Richards v. Daugherty 3.j6, 408 
 
 Richards v. Pitts Agricultural 
 
 Works 475 
 
 Richardson v. Babcock & Wilcox 
 
 Co 924 
 
 Richardson v. Gunby 721 
 
 Richmond v. Fiske 77 
 
 Rickards v. Lothian 795, 877 
 
 Ricket V. Metropolitan R. Co .325 
 
 Ricketts v. Dorrel 306 
 
 RiDEOUT V. Knox 1296 
 
 Rider v. Clarkson 402 
 
 Ligby v. Hewitt 815 
 
 Ripon (Earl) v. Hobait 401 
 
 Rishivorth v. Moss 141 
 
 Robert Marys' Case 533 
 
 Roberts v. Camden 643 
 
 Roberts v. Gwyrfai District Coun- 
 cil 391 
 
 Roberts v. Harrison 354 
 
 Robinson v. Balmain New Ferry 
 
 Co 92 
 
 Robinson v. Musser 14G 
 
 Rockwood V. Feasar 495 
 
 Rodgers v. Missouri Pac. R. Co.. . . 900 
 
 Rogers y. Dutt 1265 
 
 Rogers v. Elliott 382 
 
 Rogers v. Gilinger 446 
 
 Rolater v. Strain 279 
 
 Rosewell v. Prior 362 
 
 Ross V. Butler 428 
 
 Ross V. Fedden 798 
 
 Royce, Allen & Co. v. Oakes 449 
 
 Rudd V. Cameron 722, 723 
 
 Rumney v. Worthley 623 
 
 Rushmer v. Polsue & Allleri 424 
 
 Rush worth v. Taylor 472 
 
 Russell's Case 583 
 
 Russen v. Lucas 101 
 
 Ruter V. Foy 148 
 
 Rutherford v. Paddock 65:3 
 
 Ryan v. Chown 514 
 
 Ryan \. New York Cent. R. Co. 823 
 
 Ryan v. Railroad Co 855 
 
 Ryan v. Toicar 1001 
 
 Rylands v. Fletcher 776 
 
 Rylands v. Fletcher 
 
 784, 786, 789, 792, 797 
 
 Page 
 Sadgrove v. Hole 626 
 
 Sager v. Blain 312 
 
 St. Helen's Smelting Co. v. Tiiiping 421 
 St. Louis d 8. F. R. Co. v. Elsing. .1112 
 St. Louis c€ S. F. Ry. v. Mathews. . 767 
 St. Louis & Temv. Packet Go. v. 
 
 Murray d Wathan 1114 
 
 Salisbury v. Herchenroder 884 
 
 Samples V. Carnahan 704 
 
 Samuel v. Payne 170 
 
 Savage v. Stover 749 
 
 Sawyer v. Davis 434 
 
 Scanlon v. Wedger 149 
 
 Scheffer v. Railroad Co 835 
 
 SCHEIBEL V. FAIRBAIN 1191 
 
 Schlemnier v. Buffalo, R. & P. R. 
 
 Co 1139 
 
 Schloendorff v. Society of New 
 
 York Ilospital 80 
 
 Schubert v. J. R. Clark Co 1068 
 
 Schultz V. Frankfort Marine Ins. 
 
 Co 90 
 
 Schwarz Bros. Co. v. Evening 
 
 News Pub. Co 735 
 
 Schirinn v. Perkins 207, 229, 230 
 
 Scidmore v. Smith 121 
 
 Scott V. London & St. Katherine 
 
 Docks Co 950 
 
 Scott v. Shepherd 56, 855 
 
 Scott v. Stansfield 660, 741 
 
 Scottish Co-op. Soc. V. Glasgow 
 
 Flcshers' Ass'n 1314 
 
 Seaman v. Netherclift 667 
 
 Sebrec v. Thompson 666 
 
 Seckerson v. Sinclair 767 
 
 Seigel V. Long 175 
 
 Sell v. Facy 576 
 
 Sesler t\ Montgomery 622 
 
 Severin v. Keppel 470 
 
 Seveky v. Nickerson 1033 
 
 Shea V. Milford 512 
 
 Sheckell v. Jackson 739 
 
 Sheckell v. Jackson 687 
 
 Sheehan v. Sturges 267 
 
 Shefflll V. Van Deuseu 620 
 
 She f tall V. Central of Georgia Ry. 743 
 
 Shepard v. Lamphier 625 
 
 Shepard v. Seattle . , 379 
 
 Shepheard v. Whitaker 606, 636 
 
 Sheppard v. Wakeman 1203 
 
 Sherman v. Western Transp. Co.. . 946 
 
 Shinglcmcycr v. Wright 135, 725 
 
 Shurilcff V. Stevens 748 
 
 Silsbury v. McCoon 306 
 
 Simmo)is V. Everson 408 
 
 Simmons v. Lillystonc 349 
 
 Simon v. Henry 911 
 
 Simon V. Henry 42 
 
 Simpson v. Press Pub. Co 564 
 
 Sims V. Sims 16
 
 XXVIU 
 
 TABLE OF CASES 
 
 Page 
 
 Singer Mffj. Co. v. Kin{f 504 
 
 Singer Se icing Mach. Co. v. Phipps 54 
 Sioux City & P. R. Co. v. Stout. . . 905 
 
 Sir G.' Gerard v. Dickenson 1204 
 
 Sir John Carr v. Hood 728 
 
 Sir John Scott Lillie v. Price 658 
 
 Six Carpenters' Case, The 2S0 
 
 Six Cakpenters' Case 2!>1 
 
 Skevill V. Avery 207 
 
 Sldnner v. Wilder 220 
 
 Skinner & Co. v. Shew & Co 1259 
 
 Slater v. Sivann 115 
 
 Smith V. Delaware River Amuse- 
 ment Co 976 
 
 Smith V. Giddy 339, 399 
 
 Smith V. Kahn 60 
 
 Smith y. London & Southwestern 
 
 R. Co 817 
 
 SinxH V. London & Southwest- 
 ern R. Co 852 
 
 Smith v. McLean 477 
 
 Smith V. Newsam 47 
 
 Smith V. Shakopee 1113 
 
 Smith V. Smith 112 
 
 Smith t'. Spooner 1205 
 
 Smith V. State 88 
 
 Smith V. Stone 29 
 
 Smith V. Streatfeild 756 
 
 Sitiith V. Wood 722 
 
 Smith V. Young 473, 500 
 
 Smith's Case 565 
 
 Smithwick v. Hall & Upson Co llOO 
 
 Sneesby v. Railway Co 854 
 
 Sohn V. Cnmhern 348 
 
 Soltau V. De Held. 326 
 
 Souierville v. Hawkins 716 
 
 SouTHCOTE V. Stanley 1029 
 
 Sotithold V. Daunston 644 
 
 South Wales Miners' Federation 
 
 V. Glamorgan Coal Co 1415 
 
 Sowles V. INloore 803 
 
 Speake v. Hughes 583 
 
 Spears v. McCoy 567 
 
 Specht V. Waterbury Co 978 
 
 Spoor V. Spooner 86 
 
 Squib Case, The 56, 8-55 
 
 Stafford v. Oreen 649 
 
 Stanley v. Osbaston 566 
 
 Stanley v. Potcell 155, 164 
 
 Statmard v. Wilco.x & Gibhs Sew- 
 ing Mach. Co 572, 642 
 
 State V. Crow 50 
 
 State V. Daniel 54 
 
 State V. Glidden 1.362 
 
 State V. Haskins 747 
 
 State V. Hunter 243 
 
 State V. IMoffett 398 
 
 State V. Monroe 61 
 
 State V. Morgan 49 
 
 State V. Oliver 267 
 
 State V. Rhodes 267 
 
 Page 
 
 State V. Vanderbilt 269 
 
 Statute of Malicious Appeals. .. .1183 
 
 Staub V. Tan Bcnthuysen 633 
 
 Steinmets v. Kelly 149 
 
 Steiskal v. Marshall Field & Co.. .1035 
 
 Steketee v. Kimm 626 
 
 Stephens v. Elwall 523 
 
 Stetson V. Faxon 323 
 
 Steudle v. Rentchler 67 
 
 Stevens v. Sampson 683 
 
 Stetcaii, v. Howe 563 
 
 Stokes v. Saltonstall 844 
 
 Stone V. Neto York 176 
 
 Stone V. Wakcman 348 
 
 Stonehouse v. Elliott 170 
 
 Stotleb v. Rochelle 378 
 
 Stout v. Sioux City & P. R. Co... 995 
 
 Stout V. Wren 142 
 
 Stnart v. Bell 701 
 
 Sturges V. Bridgman 388 
 
 Sullivan v. Dunham 08. 1.52, 165 
 
 Sullivan v. Old Ct>lony St. R. Co. 968 
 
 Sullivan v. Waterman 346 
 
 Sumner v. Beeler 235 
 
 Surocco V. Geary 176 
 
 Sutton V. Smith 725 
 
 Sweetly v. Old Colony R. R 1043 
 
 Tababt v. Tipper 729 
 
 Talcott v. National Exhibition Co. 91 
 
 Tarleton v. McGawley 1229 
 
 Tableton v. McGawley 1266 
 
 Tatlow V. Jaquctt 720 
 
 Taunton v. Costar 222 
 
 Taylor v. Bennett 385 
 
 Taylor v. Daniel 551 
 
 Taylor v. Hall 565 
 
 Taylor v. Hearst 636 
 
 Taylor v. Metropolitan St. R. Co.. .1180 
 
 Taylor v. Perkins 564 
 
 Temi3ertoi4 v. Russell 1274, 1367 
 
 Tempebton v. Russell 1282, 
 
 1284, 1287 
 
 Tenant v. Goldioi/n 781 
 
 Texas, etc., R. Co. v. Yolk 976 
 
 Thomas v. Bradbury, Agnew «& 
 
 Co 759 
 
 Thomas v. Bradbury, Agueiv d Co. 753 
 
 Thomas v. Ono'termaine 1118 
 
 Thomas v. Winchester 1052 
 
 Thompson v. Bernard 645 
 
 Thompson v. Dash wood 699 
 
 Thompson v. Gibson 413 
 
 Thorley v. Kerry (Lord) 586 
 
 Thorley v. Lord Kerry 586 
 
 Thorn-Cut ting Case 155 
 
 TiioKOGOOD v. Bryan 1145 
 
 Thorite r. Bnim/itt 408 
 
 Thrussell v. Handyside & Co 1134 
 
 Thurston v. Blauchard 483 
 
 Tickell V. Read. 195
 
 TABLE OF CASES 
 
 XXIX 
 
 Page 
 
 Tidry v. Kent Circuit Judge 521 
 
 Tidman v. Aht^lie 720 
 
 Tilly V. Mitchell d Lewis Co 323 
 
 Timothy v. Simpson 247 
 
 TiMOTHT V. Simpson 253 
 
 Tinkler v. Poole 480 
 
 Tobias V. Harland 600 
 
 Todd V. Hawkins 699 
 
 Tod-Heatley v. Benham 380 
 
 Tom V. Nichols-Fifield Shoe Mach. 
 
 Co 10S3 
 
 Tombs V. Painter 47 
 
 Toogood V. Spyring 744 
 
 Toicaliga Falls Poicer Co. v. Sims 354 
 
 Trebby v. Transcript Pub. Co 688 
 
 Trigss V. Sun Printing & Publish- 
 ing Ass'n 589, 735 
 
 Trimble v. Morrish 714 
 
 Teotman v. Dunn 668 
 
 Trumbull v. Gibbons 623 
 
 Tubervil v. Stamp 765 
 
 Tuberville v. Savage 49, 194 
 
 Tuff V. Warman 1155 
 
 Tullidge v. Wade 533 
 
 Tunney v. Midland R. Co 1134 
 
 Turner v. Meymott 221 
 
 Tuttle V. Atlantic City R. Co 844 
 
 Tuttle V. Buck 1246 
 
 Tuttle V. Buck 1348 
 
 Underwood v. Hewson 31, 158 
 
 Underwood v. Parks 651 
 
 Union Labor Hospital Ass'n v. 
 Vance Redwood Lumber Co. ...1316 
 
 Union Pac. R. Co. v. Cappier 932 
 
 United States v. Luce 408 
 
 United States v. Myers 49 
 
 United States v. Richardson 49 
 
 Upton V. Times-Democrat 636 
 
 Van Buskirk v. Bond 348 
 
 Vandalia R. Co. v. Clem 1107 
 
 Vandenburgh v. Truax 855 
 
 Vanderbilt v. Mathis 1191 
 
 Vaughan v. Taff Vale R. Co. . . 819 
 
 Vaughan v. Watt 502 
 
 Vkgelahn v. Guntneb 1290, 1392 
 
 ViCABS V. WiLCOCKS 1235 
 
 Victor Safe & Lock Co. v. Deright 600 
 
 Vile V. Pennsylvania R. Co 412 
 
 Villers v. Monsley 584 
 
 Vincent v. Stinehour 67 
 
 Vizetelly v. Mudie's Select Library 630 
 Vosburg V. Putney 76 
 
 Wadhurst v. Damme 197 
 
 Wahlheimer v. Hardenbergh 632 
 
 Waite V. Northeastern R. Co 1150 
 
 Wal^elin v. London & S. W. R. Co. 971 
 Wald v. Pittsburgh, C, C. & St. 
 L. R. Co. 888 
 
 Page 
 Walker v. Cronin . . i. a un i . . . . 1259 
 
 Walkeb V. Cbonin 1309, 1371 
 
 Walker v. Jones 301 
 
 Waller v. Loch 705 
 
 Walling v. Cormnercial Advertiser 720 
 
 Walsh V. Pulitzer Pub. Co 732 
 
 Walter v. Sample 1196 
 
 Walter v. Selfe 373 
 
 Walters v. W. H. Smith & Son 261 
 
 Walther v. Southern Pac. Co 941 
 
 Wandt V. Hearst's Chicago Ameri- 
 can 609 
 
 Ward V. Blunt 495 
 
 Ward V. D amp skibselsk abet Kjoe- 
 
 benhaven 1118 
 
 Waring v. Pennsylvania R, Co.. . . 520 
 
 Warren v. Webb 348 
 
 Warten v. Strane 315 
 
 Washington & G. R. Co. v. Glad- 
 
 mon 974 
 
 Wason V. Walter 679 
 
 Waterer v. Freeman 6, 1200 
 
 Watson V. Christie 126 
 
 Watson V. Jones 676 
 
 Watson V. Kentuckv & Indiana 
 
 Bridge & R. Co 874 
 
 Watson V. McEwan 676 
 
 Weaver v. Bush 208 
 
 Weaver v. Lloyd 652 
 
 Weaver v. Ward 156 
 
 Weaveb v. Wabd 908 
 
 Webb V. Beavan 561 
 
 Webb V. Portland Mfg. Co 9G4 
 
 Webbe v. Leek 120 
 
 Weeks v. McNulty 805 
 
 Weir v. Hoss 619 
 
 Wells V. Howell 108, 159 
 
 Wells V. Knight 153 
 
 Welsund v. Schueller 145 
 
 Wemuan v. Ash 621 
 
 Wcmihuk V. Morgan 622 
 
 Weshbourn and Mordant's Case. . 334 
 
 Wesson v. Washburn Iron Co 328 
 
 West V. Bristol Tramways Co. 
 
 411, 421 
 Western Union Tel. Co. v. Cash- 
 man . ., 620 
 
 West Munice Strawboard Co. v. 
 
 Slack 408 
 
 West Virginia Transp. Co. v. 
 
 Standard Oil Co 1340 
 
 Whalen v. Citizens' Gaslight Co.. . 977 
 
 Wheelock v. Wheelwright 488 
 
 Wheelock v. Wheelwriglit 490 
 
 White V. Carroll 672 
 
 White V. Melliu 1209 
 
 White V. Sander (two cases) 52 
 
 White V. Spettigue 497 
 
 White v. Steadman 1076, 1077 
 
 Whithead v. Keyes 101 
 
 Whiting v. Wh/iting 471
 
 XXX 
 
 TABLE OF CASES 
 
 Whituuin V. Atchison, T. & S. F. 
 
 R. Co 
 
 M'hittah-cr v. Bradley 
 
 WhUiaker v. Stangiick 
 
 ^Ulittt'more v. Baxter Laundry 
 
 Co 
 
 Whitten v. Bennett 
 
 WiGGiN V. Coffin 
 
 Williraham v. Snow 
 
 Wileox V. Moon 624, 
 
 Wildgoose v. Kellaway 
 
 Wiley V. Camphell 
 
 Wilkes V. Huu^'erford Market Co. 
 
 Wilkinson v. Verity 
 
 Willard v. Cambridge 
 
 Willard v. Kossi 
 
 Willcutt & Sons Co. v. Bricklay- 
 ers' Benevolent & Protective 
 
 Union No. .'5 1?'S6 
 
 Williams v. Gesse 441 
 
 Williams v. Great Western R. Co. 808 
 
 Williams v. Ilicks Printing Co 637 
 
 Williams v. Jones 241 
 
 Williams v. New York Herald Co. 725 
 Willi<iins V. New York Herald Co. 69.3 
 
 Williams v. Poraeroy Coal Co 337 
 
 Williams V. Poncll 86 
 
 Williamson v. Freer 741 
 
 Wilson V. Brett 933 
 
 Wilson V. Camphell 230 
 
 Page 
 
 94 
 639 
 112 
 
 410 
 030 
 
 1193 
 456 
 625 
 27 
 563 
 324 
 302 
 322 
 91 
 
 Page 
 
 Wilson V. McLanghlin 513 
 
 Wilson V. Northern Pac. Ry. Co.. . 831 
 
 Winckwortli v. Man 10.'5 
 
 Winferbottom v. Wriglit 1043 
 
 WiNTERBOTTOM V. Wright. .1067, 1073 
 
 Wintringham v. Lafoy 116 
 
 Wood V. Cummings 84 
 
 Uooff. V. Lane 134 
 
 Wood V. Pennsylvania R. Co 825 
 
 Wood V. Smith 447 
 
 Wooding v. Oxley 247 
 
 WooDLEY V. Metropolitan Dis- 
 trict R. Co 1134 
 
 Woodman v. Huhhard 490 
 
 Woolley V. Scovell 841 
 
 Wright V. Compton 70 
 
 Wright V. Frank A. Andrews Co. 473 
 
 Wright v. Lothrop 672 
 
 Wright V. Ramscot 198 
 
 Wright V. St. Clond 1119 
 
 Wright V. Wilson 80 
 
 W right v. Woodgate 752 
 
 Yarmouth v. France 1117 
 
 Yaska v. Swendrzyiiski 131, 192 
 
 Yates V. Lansing. 001 
 
 Youi V. Harbottle 527 
 
 Young v. Muhling 492 
 
 i'oung V. Rossi 91 
 
 Yousling V. Dare 020, 621
 
 CASES ON TORTS 
 
 INTRODUCTORY 
 
 1 
 
 "TORTS" AND "WRONGS" 
 
 "Rectum" is a proper and significant word for the right that any 
 hath/ and wrong or injury is in French aptly called "tort;" - because 
 injury and wrong is wrested or crooked, being contrary to that which 
 is right and straight. 
 
 Coke upon Littleton (1628) 158b. 
 
 "Tort" is nothing but the French equivalent of our English word 
 "wrong," and was freely used by Spenser as a poetical synonym for 
 it. In common speech everything is a wrong, or wrongful, which is 
 thought to do violence to any right. ]Manslaying, false witness, breach 
 of covenant, are wrongs in this case. But thus we should include all 
 breaches of all duties, and therefore should not even be on the road 
 to anv distinction that could serve as the base of a legal classification. 
 
 Sir Frederick Pollock, Torts (3d Ed.) 2. 
 
 1 "Since conduct which is straiglitforn-ard came to be spols;en of eulosristi- 
 cally as being 'rectum,' 'directum (whence 'droit"), 'recht,' and 'right,' conduct 
 of tlie opposite character naturally came to be expressed by the terms 'de- 
 lictum.' 'delit,' as deviating from the right path, and 'wrong' or 'tort,' as 
 twisted out of the straight line." Holland, Jurisprudence (1906) 318. 
 
 For the scope and use of the term "delict." "delictum." see Pollock on Torts 
 (8th Ed.) 16, 17; Terry's Leading Principles of Anglo-Am Law, 104; Blacks 
 Law JMctionary, 348, 349 ; and compare "Action Ex Delicto," 1 Words and 
 Phrases, 141. 
 
 2 " 'Tort,' from the Latin 'tortus.' a French word for injury or wrong, as 
 'de son tort demesne,' in his own wrong." Jacob's Law Dictionary (1811) vol. 
 6, p. 2.51. 
 
 Hepb.Toets — 1
 
 2 INTRODUCTORY 
 
 It is not surprising, in any case, that a complete theory of torts is 
 yet to seek, for the subject is altogether modern. The earliest text- 
 book I have been able to find is a meagre and unthinking digest of 
 "The Law of Actions on the Case for Torts and Wrongs," published 
 in 1720, remarkable chiefly for the depths of historical ignorance 
 which it occasionally reveals. The really scientific treatment of prin- 
 ciples begins only with the decisions of the last fifty years ; their de- 
 velopment belongs to that classical period of our jurisprudence which 
 in England came between the Common Law Procedure Act and the 
 Judicature Act. 
 
 Sir Frederick Pollock,^ Introduction to the first edition of his Torts. 
 
 Take the law of tort or civil liability for damages apart from con- 
 tract and the like. Is there any general theory of such liability, or 
 are the cases in which it exists simply to be enumerated, and to be ex- 
 plained each on its special ground, as is easy to believe from the fact 
 that the right of action for certain well-known classes of wrongs like 
 trespass or slander has its special history for each class ? I think that 
 there is a general theory to be discovered, although resting in tendency 
 rather than established and accepted. I think that the law regards the 
 infliction of temporal damage by a responsible person as actionable, 
 if under the circumstances known to him the danger of his act is mani- 
 fest according to common experience, or according to his own experi- 
 ence if it is more than common, except in cases where upon special 
 grounds of policy the law refuses to protect the plaintiff or grants a 
 privilege to the defendant. I think that commonly malice, intent, and 
 negligence mean only that the danger was manifest to a greater or 
 less degree, under the circumstances known to the actor, although in 
 some cases of privilege malice may mean an actual malevolent motive, 
 and such a motive may take away a permission knowingly to inflict 
 harm, which otherwise would be granted on this or that ground of 
 dominant public good. But when I stated my view to a very eminent 
 English judge the other day, he said: "You are discussing what the 
 law ought to be ; as the law is, you must show a right. A man is not 
 
 8 Tn his "open letter," addressed to Mr. Justice Holmes. introdndnE: the first 
 edition of Polloolv on Torts. The professed aim of this book, published iu 1SS7, 
 was "to show that there really is a Law of Torts, not merely a number of 
 rules of law about various kinds of torts — that this is a true living branch of 
 the Common Law, not a collection of heterogeneous instances." 
 
 "We read in the books of various forms of actions tor violations of non- 
 contract legal duties, and of classiiied civil wrongs of this .sort. We had, as 
 we still have. Assault and Battery, Slander and Libel, Deceit, Malicious Pros- 
 ecution, Trespass, and so on, all pertaining to minor divisions within the 
 subject of this volume. In 1859 was published the first treatise on the 'Law 
 of Torts.' It was by Francis Ililliard. It was, as all know, an American 
 book. The English Addison on Torts appeared in ISUO." Bishop, Mon-Lou- 
 tract Law (1S8U) 1, 2.
 
 *'torts" and "wrongs" 3 
 
 liable for negligence unless he is subject to a duty," If our difference 
 was more than a difference in words, or with regard to the proportion 
 between the exceptions and the rule, then, in his opinion, liability for 
 an act cannot be referred to the manifest tendency of the act to cause 
 temporal damage in general as a sufficient explanation, but must be 
 referred to the special nature of the damage, or must be derived from 
 some special circumstances outside of the tendency of the act, for 
 which no generalized explanation exists. I think that such a view is 
 wrong, but it is familiar, and I dare say, generally accepted in Eng- 
 land.* 
 
 Mr. Justice Holmes, "The Path of the Law," 10 Harv. Law Rev, 
 457, 471 (1897). 
 
 The English Law of Contract and (within its very modest limits) 
 the English Law of Quasi-Contract, are scientific. The English Law 
 of Torts is arbitrary, and (in the historical sense of the word) barbaric. 
 That is to say, it is possible to define, in simple language, wdiat is a 
 contract according to English Law, and to say that every arrangement 
 which satisfies that definition will be a legally enforceable contract. 
 Thus we may say, that whenever an adult and normal person enters 
 into an agreement, with only a lawful object in view, for the purpose 
 of affecting his legal relations, then, if that agreement is either mo- 
 tived by pecuniary consideration or is embodied in a deed, it will cre- 
 ate a contract legally binding on him. That is a definition which an 
 educated layman may fairly be expected to understand; and it really 
 tells him something. 
 
 No such definition of a tort can be offered. A tort, in English Law, 
 can only be defined in terms w^hich really tell us nothing. A tort is a 
 breach of a duty (other than a contractual or quasi-contractual duty) 
 which gives rise to an action for damages. That is, obviously, a mere- 
 ly procedural definition, of no value to the layman. The latter wants 
 to know the nature of those breaches of duty which give rise to ac- 
 tions for damages. And the only answer that can be given to him is : 
 "Read this and the preceding volume." To put it briefly, there is no 
 English Law of Tort ; there is merely an English Law of Torts, i. e., 
 a list of acts and omissions w^hich, in certain conditions, are action- 
 able. Any attempt to generalize further, however interesting from a 
 
 4 In 1904, Mr. Justice Holmes, delivering the opinion In Aikens v, Wiscon- 
 sin, 19-5 U. S, 19-1, 204, 25 Sup. Ct. 3, 5 (49 L. Ed. 159), remarked as follows: 
 ■'It lias been considered that prima facie the intentional iutliction of temporal 
 damage is a cause of action, which as a matter of substantive law, whatever 
 may be the form of pleading, requires a justili'/ation if the defendant is to 
 escape,'' 
 
 See the remarks of Bowen, L, J , in Skinner & Co, v. Shew & Co. (1893) 1 
 ch. 4J.3, 422; the remarks of Professor Ames in IS Harv, Law Rev, (1905) 411 
 ec seq. See, also, 26 Harv. Law Kev. (1913) 740-742. For an examination of 
 the principle involved, see infra, Part III, Chapter II, "Torts through Malice."
 
 INTRODUCTORY 
 
 speculative standpoint, would be profoundly unsafe as a practical 
 
 guide. 
 
 English Law stumbled on her definition of contract by an accident 
 of genius ; for six hundred years she has been seeking in vain for a 
 definition of tort. We may well be impatient ; and yet, when we think 
 of the dangers involved, on the one hand in narrowness, and, on the 
 other, in vagueness, we shall hesitate long before committing ourselves 
 to an irrevocable definition.^ 
 
 J. C. Miles, Digest Eng. Civil Law, Bk. II, pp. xiv, xv (1910). 
 
 II 
 
 TORTS AND MORAL WRONGS 
 
 Primitive law regards the word and the act of the individual ; it 
 searches not his heart. "The thought of a man shall not be tried," 
 said Chief Justice Brian, one of the best of the mediaeval lawyers, 
 "for the devil himself knoweth not the thought of man." 
 
 James Barr Ames, "Law and Morals" (1908) 22 Harvard Law Re- 
 view, 97.* 
 
 The law of torts abounds in moral phraseology. It has much to 
 say of wrongs, of malice, fraud, intent, and negligence. Hence it may 
 naturally be supposed that the risk of a man's conduct is thrown upon 
 him as the result of some moral short-coming. But while this notion 
 has been entertained, the extreme opposite will be found to have been 
 a far more popular opinion ; I mean the notion that a man is answer- 
 able for all the consequences of his acts, or, in other words, that he 
 acts at his peril always, and wholly irrespective of the state of his 
 consciousness upon the matter. 
 
 Oliver Wendell Holmes, Jr., The Common Law (1881) 79, 80. 
 
 5 "It is true that it is not yet possible to {rive an unexceptionable dottnition 
 of a tort. But we thinlv Mr. Miles goes) too far in saying 'there is no English 
 Law of Tort ; there is merely an English Law of Torts, i. e., a list of acts 
 and omissions which, in certain conditions, are actionable.' In our judgment 
 tJie Common Law is coming, if it has not already come, to hold that a man 
 who wilfidly or negligently causes temjioral damage ()f any kind is liable un- 
 less he can show justification or excuse. Tlie real dithculty is not to lind a 
 verbal definition of tort in general, but to define the substantial principles of 
 justification and excuse and the linnts of their application." Sir Frederick 
 Pollock, 2G Law Quart. Rev. 420 (iniO). 
 
 See, also, the article, by Sir Frederick Pollock, on Torts, in 27 Encyl. Brit. 
 (11th Ed. 1911) 64. 
 
 ♦Kepublisbed in Lectures on Legal History, 434 (1915).
 
 TORTS AND MORAL WRONGS 5 
 
 To-day we may say that the old law has been radically transformed. 
 The early law asked simply, "Did the defendant do the physical act 
 which damaged the plaintiff?" The law of to-day, except in certain 
 cases based upon public policy, asks the further question, "Was the 
 act blameworthy?" The ethical standard of reasonable conduct has 
 replaced the unmoral standard of acting at one's peril.''' 
 
 James Barr Ames, Law and Morals, 22 Harv. Law Rev. 99 (1908).'' 
 
 The theory of torts may be summed up very simply. At the two 
 extremes of the law are rules determined by policy without reference 
 of any kind to morality. Certain harms a man may inflict even 
 wickedly ; for certain others he must answer, although his conduct 
 has been prudent and beneficial to the community. 
 
 But in the main the law started from those intentional wrongs 
 which are the simplest and most pronounced cases, as well as the near- 
 est to the feeling of revenge which leads to self-redress. It thus 
 naturally adopted the vocabulary, and in some degree the tests, of 
 morals. But as the law has grown, even when its standards have con- 
 tinued to model themselves upon those of morality, they have neces- 
 sarily become external, because they have considered, not the actual 
 condition of the particular defendant, but whether his conduct would 
 have been wrong in the fair average member of the community, whom 
 he is expected to equal at his peril. 
 
 In general, this question will be determined by considering the 
 degree of danger attending the act or conduct under the known cir- 
 cumstances. If there is danger that harm to another will follow, the 
 act is generally wrong in the sense of the law. 
 
 But in some cases the defendant's conduct may not have been 
 morally wrong, and yet he may have chosen to inflict the harm, as 
 where he has acted in fear of his life. In such cases he will be liable, 
 
 e On this remark by Professor Ames, in 190S, Professor Roseoe Pound has 
 this comment in 1914: "But the ethical standard of which he wrote, which 
 came into the law in the period of infusion of morals, was an individualist 
 ethical standard. To-day there is a strong and growing tendency to revive 
 the idea of liability without fault, not only in the form of wide responsibility 
 for agencies employed, but in placing upon an enterprise the burden of re- 
 pairing injuries without fault of him who conducts it, which are incident to 
 the undertaking. There is a strong and growing tendency, where there is 
 no blame on either side, to ask, in view of the exigencies of social justice, who 
 can best bear the loss, and hence to shift the loss by creating liability where 
 there has been no fault. The whole matter of workmen's compensation and 
 employer's liability, as dealt with in modern legislation, illustrates thi.s." 
 Roseoe Pound, "The End of the Law," 27 Ilarv. Law Rev. 2315 (1914). For 
 the development of the doctrine of lialnlity without fault, see Part I, Torts 
 through Acts of Absolute Liability. For the development of the doctrine of 
 liability through blameworthiness, see Part III, Torts through Acts of 
 Conditional Liability. 
 
 7 Republished in Lectures on Legal History, 437 (1915).
 
 6 INTRODUCTORY 
 
 or not, according as the law makes moral blameworthiness, within the 
 limits explained above, the ground of liability, or deems it sufficient 
 if the defendant has had reasonable warning of danger before acting. 
 This distinction, however, is generally unimportant, and the known 
 tendency of the act under the known circumstances to do harm may 
 be accepted as the general test of conduct. 
 
 The tendency of a given act to cause harm under given circum- 
 stances must be determined by experience. And experience either at 
 first hand or through the voice of the jury is continually working out 
 concrete rules, which in form are still more external, and still more 
 remote from a reference to the moral condition of the defendant, than 
 even the test of the prudent man which makes the first stage of the 
 division between law and morals. It does this in the domain of 
 wrongs described as intentional, as systematically as in those styled 
 unintentional or negligent. 
 
 But while the law is thus continually adding to its specific rules, it 
 does not adopt the coarse and impolitic principle that a man acts al- 
 ways at his peril. On the contrary, its concrete rules, as well as the 
 general questions addressed to the jury, show that the defendant must 
 have had at least a fair chance of avoiding the infliction of harm 
 before he becomes answerable for such a consequence of his conduct. 
 And it is certainly arguable that even a fair chance to avoid bringing 
 harm to pass is not sufficient to throw upon a person the peril of his 
 conduct, unless, judged by average standards, he is also to blame for 
 what he does. 
 
 Oliver Wendell Holmes. Tr.. The Common Law (1881) 161. 
 
 There must be not only a thing done amiss, but also a damage either 
 already fallen upon the party, or else inevitable. And therefore 19 
 H.6 44 if a man forge a bond in my name, I can have no action upon 
 the case yet, but if I am sued, I may for the wrong and damage, 
 though I may avoid it by plea. 
 
 Hobart, C. J., in Waterer v. Freeman (1619) Hob. 266, 267.* 
 
 8 The case was this: Waterer brought an action of the case against Free- 
 man, and declared that the defoudaut had sued out at Westm. a fieri fac. 
 upon a judgment given against him for the defendant, for a trespass in Ox- 
 fordshire, in the King's Bench to the Sheriffs of Oxfordshire, who by virtue 
 thereof toolc goods of the plaintiff to the value of the damage, and so made 
 his return, and that the goods remained in his hands pro defectu emptoris, 
 and that the defendant well knowing this (to the intent to vex and double 
 charge him) afterwards did sue out another fieri fac. to the same sheriff, and 
 delivered it to him to be executed, who did thereupon levy the money of other 
 goods of the plaintiff and paid it over to the defendant whereby the now 
 plaintiff; was double charged ; whereupon the defendant pleaded not guilty, 
 and it was found against him. See Ilobart, 205. On this there was a judg- 
 ment for the plaintiff. Hobart, 2G0, 80 Kepriut, 352.
 
 TOKTS AND OTHER LEGAL WRONGS 7 
 
 It seems to me that the rule laid down by Croke, J., in Baily v. 
 Merrell (1615) 3 Bulst. 95, is a sound and solid principle, namely, that 
 fraud without damage, or damage without fraud, will not found an 
 action ; but where both concur, an action will lie. 
 
 Ashhurst, J., in Pasley v. Freeman (1789) 3 T. R. 51, 6L» 
 
 The law of torts exists for the purpose of preventing men from 
 hurting one another, whether in respect of their property, their per- 
 sons, their reputations, or anything else which is theirs. The funda- 
 mental principle of this branch of the law is "Alterum non Isedere" — 
 to hurt nobody by word or deed. An action of tort, therefore, is 
 usually a claim for pecuniary compensation in respect of damage 
 so suffered. 
 
 John W. Salmond, Law of Torts (1910) 7. 
 
 Ill 
 TORTS AND OTHER LEGAL WRONGS 
 
 The Law of Torts forms a portion of what is called private law, 
 or that which is concerned with questions between man and man, as 
 distinguished from public law, which is concerned with questions 
 (1) between individuals and the community, as in criminal law, con- 
 stitutional law, ecclesiastical law, and military law ; or (2) between 
 the community and another community, as in public international 
 law. 
 
 We may regard law, whether public or private, as consisting of 
 two portions, one of which, called substantive law, deals with rights, 
 and the other, called adjective law, with the methods by which sub- 
 stantive law is administered. For instance, the law of contracts, the 
 law of torts, the law of trusts, the law of succession, and the law of 
 landlord and tenant, are all parts of the substantive portion of Pri- 
 vate Law ; while the rules relating to the procedure by which the 
 rights under those several branches of law are secured, and redress 
 for wrong is given, are called Adjective Law. 
 
 The Law of Torts forms a part of the substantive portion of Pri- 
 vate Law. 
 
 9 The defendant had made a false affirmation with intent to defraud the 
 plaintiffs, who acted upon it to their damaw. The plaintiffs' actual damage 
 was established. There was no evidence that the defenilant had benetitcd by 
 his deceit or had colluded with those who had received a benefit. A judg- 
 ment tor the plaintiffs was sustained.
 
 8 INTRODUCTORY 
 
 The substantive portion of private law comprises- -(1) Rights in 
 rem, or riglits as against all the world, or indeterminate persons ; 
 (2) rights arising out of agreements or relations between two or 
 more determinate persons. 
 
 Rights in rem comprise rights of (i) person, (ii) reputation, (iii) 
 family or other domestic relations (as against the outside world), (iv) 
 rights to the due performance of public duties, (v) and rights in ob- 
 jects, privileges, and advantages. 
 
 Rights as between determinate persons arise (a) out of voluntary 
 gifts and promises ; out of assignments not voluntary ; out of grants ; 
 out of testamentary dispositions ; (b) out of a contract (as when A. 
 arranges with B. that B. shall do a certain piece of work for him 
 for so much money) ; (c) out of family relations (as between one mem- 
 ber of the family and another) ; (d) out of fiduciary relations ; out 
 of trusts. 
 
 A tort is usually said to be "A wrong independent, of contract," 
 i. e., the violation of a right independent of contract; and it will be 
 seen by this statement that the rights, of which a tort is a violation, 
 are, in fact, distinct from those arising out of contract. But they 
 are also, as will be seen, distinct from a vast array of other rights; 
 so that the usual definition is as defective as would be a definition 
 of the horse as "A class of animal independent of horned cattle." 
 
 Innes, Principles of Torts (1891) 3, 5, 6.- 
 
 By some writers a tort has been defined as the violation of a right 
 in rem, giving rise to an obligation to pay damages. There is a 
 tempting simplicity and neatness in this application of the distinction 
 between rights in rem and in personam, but it may be gravely doubted 
 whether it does in truth conform to the actual contents of the English 
 law of torts. Most torts undoubtedly are violations of rights in rem, 
 because most rights in personam are created by contract. But there 
 are rights in personam which are not contractual, and the violation 
 of which, if it gives rise to an action for damages, must be classed 
 as a tort. The refusal of an innkeeper to receive a guest is a tort, 
 yet it is merely the breach of a noncontractual right in personam. So 
 with any actionable refusal or neglect on the part of a public official 
 to perform his statutory duties on behalf of the plaintifif. 
 
 John W. Salmond, Jurisprudence (1910) 437, note. 
 
 All civilized systems agree in drawing a distinction between of- 
 fenses against the State or Community and offenses against the In- 
 dividual, and the two classes of injuries, thus kept apart, I may here, 
 v.ithout pretending that the terms have always been employed con- 
 sistently in jurisprudence, call Crimes and Wrongs, crimina and dclic-
 
 TORTS AND OTHER LEGAL WRONGS 9 
 
 ta. Xow the penal Law of ancient communities is not the law of 
 Crimes ; it is the law of Wrongs, or, to use the English technical word, 
 of Torts. The person injured proceeds against the wrong-doer by an 
 ordinary civil action, and recovers compensation in the shape of money 
 damages if he succeeds. If the Commentaries of Gaius be opened at 
 the place where the writer treats of the penal jurisprudence founded 
 on the Twelve Tables, it will be seen that at the head of the civil 
 Wrongs recognized by the Roman law stood Furtum or Theft. 
 Offenses which we are accustomed to regard exclusively as crimes 
 are exclusively treated as torts and not theft only, but assault and 
 violent robbery, are associated by the jurisconsult wath trespass, libel, 
 and slander. * * * jf^ therefore, the criterion of a delict, wrong, 
 or tort, be that the person who suffers it, and not the state, is con- 
 ceived to be wronged, it may be asserted that in the infancy of juris- 
 prudence, the citizen depends for protection against violence or 
 fraud, not on the Law of Crime but on the Law of Tort. 
 ]\Iaine, Ancient Law (1884) 357, 359. 
 
 Torts are distinguished in the modern law from criminal offences. 
 In the mediaeval period the procedure whereby redress was obtained 
 for many of the injuries now classified as torts bore plain traces 
 of a criminal or quasi-criminal character, the defendant against whom 
 judgment passed being liable not only to compensate the plaintiff, but 
 to pay a fine to the king. Public and private law were, in truth, but 
 imperfectly distinguished. In the modern law, however, it is settled 
 that a tort, as such, is not a criminal offence. There are various acts 
 which may give rise to a civil action of tort and to a criminal pros- 
 ecution, or to the one or the other at the injured party's option; but 
 the civil suit and the criminal prosecution belong to dift'erent juris- 
 dictions, and are guided by different rules of procedure. 
 
 Sir Frederick Pollock, Law of Torts (1904) pp. 4, 5.^° 
 
 10 See, also, Holland's Jurisprudence, 319, 320: "The distinction between 
 those wrongs which are generically called 'torts' and those which are called 
 'crimes' may at first sight appear to be a fine one. The same set of circum- 
 stances will, in fact, from one point of view constitute a tort, while from an- 
 other point of view thej* amount to a crime. In the case, for instance, of 
 assault, the right violated is that which every man has that his bodily safety 
 shall be respected, and for the wrong done to this right the sufferer is en- 
 titled to get damages. But this is not all. The act of violence is a menace 
 to the safety of society generally, and will therefore be punished by the ^5tate. 
 So a libel is said to violate not only the right of an individual not to be de- 
 famed, but also the right of the State that no incentive shall be given to a 
 breach of the peace. It is sometimes alleged by books of authoi'ity that the 
 dift'erence between a tort and a crime is a matter of procedure, the former 
 being redressed by the civil, while tiie latter is punished by the criminal 
 courts. But the di-stinction lies deeper, and is well expressed by Blackstone, 
 who says that 'torts are an infringement or privation of the private, or civil 
 rights belonging to individuals, considered as individuals; crimes are a, 
 breach of public rights and duties which afEect the whole community, con-
 
 10 INTRODUCTORY 
 
 In capital causes, in favorem vitae, the law will not punish in so 
 high a degree, except the malice of the will and the intention do ap- 
 pear; but in civil trespasses and injuries that are of an inferior 
 nature, the law doth rather consider the damage of the party wronged, 
 than the malice of him that was the wrong-doer. 
 
 And therefore the law makes a difference between killing a man 
 upon malice forethought, and upon a present heat: but if I give a 
 man slanderous words, whereby I damnify him in his name and cred- 
 it, it is not material whether I use them upon sudden choler and prov- 
 ocation or of set malice; but in an action upon the case I shall 
 render damages alike. 
 
 So if a man be killed by misadventure, as by an arrow at butts, 
 this hath a pardon of course: but if a man be hurt or maimed only, 
 an action of trespass lieth, though it be done against the party's 
 mind and will, and he shall be punished in the same as deeply as if 
 he had done it of malice. 
 
 So if a surgeon authorized to practice do, through negligence in 
 his cure, cause the party to die, the surgeon shall not be brought in 
 question of his life ; and yet if he do only hurt the wound, whereby 
 the cure is cast back and death ensues not, he is subject to an action 
 upon the case for his misfeasance. 
 
 So if baron and feme be, and they commit felony together, the 
 feme is neither principal nor accessory, in regard of her obedience to 
 the will of her husband: but if baron and feme join in committing 
 a trespass upon land or otherwise, the action may be brought against 
 them both. 
 
 So if an infant within years of discretion, or a madman, kill an- 
 other, he shall not be impeached thereof : but if he put out a man's 
 eye, or do him like corporal hurt, he shall be punished in trespass. 
 
 Sir Francis Bacon, Maxims of the Law (1596) Regula VII, 14 
 Bacon's Works (Spedding's Ed.) 219. 
 
 The distinction of public wrongs from private, of crimes and misde- 
 meanors from civil injuries, seems principally to consist in this: that 
 private wrongs, or civil injuries, are an infringement or privation of 
 the civil rights which belong to individuals, considered merely as in- 
 dividuals ; public wrongs, or crimes and misdemeanors, are a breach 
 and violation of the public rights and duties due to the whole com- 
 munity, considered as a community, in its social aggregate capacity. 
 
 sidered as a community.' The right wliirh is violated by a tort is always a 
 dii'terent ris^ht rrom that which is violated by a crime. The person of in- 
 herence in the former case is an individual, in the latter case the State. In 
 a French criminal trial there may accordim^ily appear not only the public 
 prosecutor, representing the State and demanding the punishment of the of- 
 fender, but also the injured individual, as '!':ntie civile,' asking for damages 
 for the I0.S.S Avhich lie has ixjrsoually sustained."
 
 TORTS AND OTHER LEGAL WRONGS 11 
 
 As, if I detain a field from another man, to which the law has given 
 him a right, this is a civil injury, and not a crime; for here only the 
 right of an individual is concerned, and it is immaterial to the public 
 which of us is in possession of the land : but treason, murder, and 
 robbery are properly ranked among crimes ; since, besides the injury 
 done to individuals, they strike at the very being of society, which 
 cannot possibly subsist where actions of this sort are suffered to es- 
 cape with impunity. 
 
 In all cases the crime includes an injury: every public offence is 
 also a private wrong, and somewhat more; it affects the individual, 
 and it likewise affects the community. ^^ Thus, treason in imagining 
 the king's death involves in it conspiracy against an individual, which 
 is also a civil injury; but, as this species of treason, in its conse- 
 quences, principally tends to the dissolution of government, and the 
 destruction thereby of the order and peace of society, this denominates 
 it a crime of the highest magnitude. Murder is an injury to the life 
 of an individual ; but the law of society considers principally the 
 loss which the state sustains by being deprived of a member, and the 
 pernicious example thereby set for others to do the like. Robbery 
 may be considered in the same view: it is an injury to private proper- 
 
 11 See rx)rd Mansfield's opinion in Rex v. Wheatly (1761) 2 Burr. 1126. This 
 was an indictment against a brewer for fraudulently delivering "sixteen gal- 
 lons and no more" of beer as and for eighteen gallons, the defendant "then 
 and there well knowing the same liquor so by him sold and delivered to want 
 two gallons of the due and just measure as aforesaid." The defendant being 
 convicted, moved in arrest of judgment. Lord Mansfield : "The question is, 
 whether the fact here alledged be an indictable crime or not. * * * The 
 offence that is indictable must be such a one as affects the public. As if a 
 man uses false weights and measures and sells by them to all or to many of 
 his customers, or uses them in the general course of his dealing : so, if a man 
 defrauds another, under false tokens. For these are deceptions that common 
 care and prudence are not sufficient to guard against. So, if there be a con- 
 spiracy to cheat: for ordinary care and caution is no guard against this. 
 Those cases are much more than mere private injuries: they are public 
 offences. But here, it is a mere private imposition or deception: no false 
 weights or measures are used ; no false tokens given ; no conspiracy ; only 
 an imposition upon the person he was dealing with, in delivering him a less 
 quantity instead of a greater which the other carelessly accepted. It is only 
 a non-performance of his contract: for which non-performance, he may 
 bring his action. The selling an unsound horse, as and for a sound one, is 
 not indictable: the buyer should be more upon his guard. The several cases 
 cited are alone sufficient to prove, that the offence here charged is not an in- 
 dictable olTence. But besides these, my brother Denison informs me" of another 
 case, that has not been mentioned at the Bar. It was Mich. Term, 6 Geo. 1, 
 B. R. Rex V. Wilders, a Brewer: he was indicted for a cheat, in sending in, 
 to Mr. Hicks, an ale-house keeper, so many vessels of ale marked as contain- 
 ing such a measure, and writing a letter to Mr. Hicks, assuring him that they 
 did contain that measure; when in fact they did not contain such meas- 
 ure, but so much less, etc. This indictment was quashed on argument, ui>on 
 a motion: which is a stronger case than the present. Therefore the law is 
 clearly established and settled; and I think on right grounds: but on what- 
 ever grounds it might have been originally established, yet it ought to be ad- 
 hered to, after it is established and settled. Therefore (though I may be 
 sorry for it in the present case, as circumstanced) the judgment must bo 
 <ir rested."
 
 12 INTRODUCTORY 
 
 ty ; but, were that all, a civil satisfaction in damages might atone for 
 it ; the public mischief is the thing for the prevention of which our 
 laws have made it a capital offence. In these gross and atrocious in- 
 juries the private wrong is swallowed up in the public: we seldom 
 hear any mention made of satisfaction to the individual, the satisfac- 
 tion to the community being so very great. And indeed, as the public 
 crime is not otherwise avenged than by forfeiture of life and proper- 
 ty, it is impossible afterwards to make any reparation for the private 
 wrong, which can only be had from the body or goods of the aggres- 
 sor. But there are crimes of an inferior nature, in which the public 
 punishment is not so severe but it affords room for a private compen- 
 sation also; and herein the distinction of crimes from civil injuries 
 is very apparent. For instance: in the case of battery, or beating 
 another, the aggressor may be indicted for this at the suit of the king, 
 for disturbing the public peace, and be punished criminally by fine and 
 imprisonment ; and the party beaten may also have his private remedy 
 by action of trespass for the injury which he in particular sustains, 
 and recover a civil satisfaction in damages. So also, in case of a 
 public nuisance, as digging a ditch across a highway : this is punish- 
 able by indictment as a common offence to the whole kingdom and 
 all his majesty's subjects; but if any individual sustains any special 
 damage thereby, as laming his horse, breaking his carriage, or the 
 like, the offender may be compelled to make ample satisfaction, as 
 well for the private injury as for the public wrong. 
 
 Upon the whole, we may observe that, in taking cognizance of all 
 wrongs or unlawful acts, the law has a double view, viz. : not only 
 to redress the party injured by either restoring to him his right, if 
 possible, or by giving him an equivalent, * * * j^^j^ ^jgQ ^q secure 
 to the public the benefit of society, by preventing or punishing every 
 breach and violation of those laws which the sovereign power has 
 thought proper to establish for the government and tranquillity of the 
 whole. 
 
 Sir \Mlliam Blackstone, Commentaries (1765) bk. 4, p. 5. 
 
 The distinction between civil and criminal wrongs depends on the 
 nature of the appropriate remedy provided by law. A civil wrong is 
 one which gives rise to civil proceedings — proceedings, that is to say, 
 which have as their purpose the enforcement of some right claimed 
 by the plaintiff as against the defendant : for example, an action 
 for the recovery of a debt, or the restitution of property, or for the 
 specific performance of a contract, or for an injunction against a 
 threatened injury, or for the recovery of damages for an injury com- 
 mitted. Criminal proceedings, on the other hand, are those which 
 have for their object the punishment of the defendant for some act 
 of which he is accused. He who proceeds civilly is a claimant, de-
 
 TORTS AND OTHER LEGAL WRONGS 13 
 
 manding the enforcement of some right vested in himself; he who 
 proceeds criminally is an accuser, demanding nothing for himself, but 
 merely the punishment of the defendant for a wrong committed by 
 him. 
 
 It is often the case that the same wrong is both civil and criminal — 
 capable of being made the subject of proceedings of both kinds. As- 
 sault, libel, theft, and malicious injury to property, for example, are 
 wrongs of this kind. Speaking generally, in all such cases the civil 
 and criminal remedies are not alternative but concurrent, each being 
 independent of the other. The wrongdoer may be punished crimi- 
 nally by imprisonment or otherwise, and also compelled in a civil 
 action to make compensation or restitution to the injured person.^^ 
 
 John W. Salmond, Law of Torts (1910) 1, 2. 
 
 The duty, whatever else it may be, is a duty towards our neighbor. 
 Breach of it will entitle some one to bring an action for redress. An 
 offence punishable by the State may not create any such private right. 
 If it does not, it is no civil wrong; and this is in fact the case with 
 some of the gravest public offences. /^Iso in cases of tort the duty 
 that has been violated is general. It is owed either to all our fellow- 
 subjects, or to some considerable class of them, and it is fixed by the 
 law and the law alone. Here lies the difference between civil wrongs, 
 properly so called, and breaches of contract. It is not right to break 
 
 12 Frequently the tort and the crime bear the same name, yet with a dif- 
 ference. Compare, for instance, the crimes of "assault," "battery," "cham- 
 perty,"' "conspiracy," "false imprisomnent,"' "libel," "nuisance," "trespass" 
 (see Mikell's Cas. Crim. Law, passim), with the torts of the same name, given 
 infra. 
 
 But compare the following cases, in wliich substantially the same act was 
 held to be a crime, but not a tort: Deaton v. State (1908) 53 Tex. Cr. R. 393. 
 110 S. W. 69. and Roliertson v. Edelstein (1899) 104 Wis. 440, 80 N. W. 725 
 (D. had uttered violent and abusive hut not defamatory language of P.). 
 
 Compare also the following, in which substantially the same act was held 
 a tort but not a crime: 
 
 ^^■hittington v. Gladwin (1826) 5 B. & C. 29 R. R. 211, and State v. McAr- 
 thur (1893) 5 Wa.sh. 558, 32 Pac. 367 (D. had orallv imputed insolvency to P.) 
 
 Beach \. Hancock (1853) 27 N. H. 223, 59 Am. Dec. 373, and Chapman v. 
 State a8.S4) 78 Ala. 403, Mikell's Cas. Crim. Law 296 (D. had pointed at P., 
 in a threatening manner and within .shooting distance, a gun which D. knew, 
 but P did not know to be unloaded). But see, also, State v. Shepard (1859) 
 10 Iowa. 126; Com. v. White (1813) 110 Mass. 409; State v. Smith (1841) 2 
 Humph. (Tenn.) 457 — where the act was deemed a crime. 
 
 Garrett v. State (1906) 49 Tex. Cr. R. 235, 91 S. W. 577, and Baseley v. 
 Clarkson (1681) 3 Lev. 37 (D. had inadvertently entered upon the prem- 
 ises of P.). 
 
 Malcom v. Spoor (1847) 12 Mete. (Mass.) 279. 46 Am. Dec. 675, and Milton 
 V. State (1S9S) 40 Fla. 251. 24 South. 60, Mikell's Uas. Crim. Law 186 (D., an 
 officer, after entering P.'s property by authority of the law. almsed th(» lib- 
 erty which the law gave him: held, a tort [trespass ab initio] but not a 
 crime).
 
 14 INTRODUCTORY 
 
 one's contract, though in cases of honest error due to the parties' 
 intentions not being clearly expressed or otherwise, or of innocent dis- 
 ability preventing performance, there may be legal liability without 
 any moral blame. But breach of contract, wilful or not, is the breach 
 of duties which the parties have fixed for themselves. Duties under 
 a contract may have to be interpreted or supplemented by artificial 
 rules of law, but they cannot be superseded while there is any contract 
 in being. The duties broken by the commission of civil wrongs are 
 fixed by law, and independent of the will of parties; and this is so 
 even where they arise out of circumstances in which the responsible 
 party's own act has placed him. Again, these general duties are dif- 
 ferent in other important respects from those which arise out of the 
 domestic relations, although they agree with them in not depending 
 on the will of the parties. For the mutual duties of husband and wife, 
 parents and children, and the like, are strictly personal, and moreover 
 only part of them can be or is dealt with at all by positive rules of 
 law. Down to modern times they were regarded in this country as 
 not belonging to the ordinary jurisdiction of temporal courts; marital 
 and parental authority were incidentally recognised but matrimony 
 and matrimonial causes were "spiritual" matters. 
 
 Sir Frederick Pollock, The Law of Torts (7th Ed.) 2. 
 
 No civil wrong is a tort, if it is exclusively the breach of a con- 
 tract. The law of contracts stands by itself, as a separate department 
 of our legal system, over against the law of torts ; and to a large 
 extent liability for breaches of contract and liability for torts are 
 governed by different principles. It may well happen, however, that 
 the same act is both a tort and a breach of contract, and this is so in 
 at least two classes of cases. 
 
 (a) The first and simplest of these is that in which a man under- 
 takes by contract the performance of a duty which lies on him already, 
 independently of any contract. Thus he who refuses to return a bor- 
 rowed chattel commits both a breach of contract and also the tort 
 known as conversion: a breach of contract, because he promised ex- 
 pressly or impliedly to return the chattel; but not merely a breach 
 of contract, and therefore also a tort, because he would have been 
 equally liable for detaining another man's property, even if he had 
 made no such contract at all. 
 
 (b) The second class of cases is one which involves considerable 
 difficulty, and the law on this point cannot yet be said to have been 
 thoroughly developed. In certain instances the breach of a contract 
 made with one person creates liability towards another person, who 
 is no party to the contract. It is a fundamental principle, indeed, that 
 no person can sue on an obligatio ex contractu, except a party to the
 
 TORTS AND THE COMMON LAW ACTION FOR DAMAGES 15 
 
 contract; nevertheless it sometimes happens that one person can sue 
 ex delicto for the breach of a contract which was not made with him, 
 but from the breach of which he has suffered unlawful damage. That 
 is to say a man may take upon himself, by a contract with A., a duty 
 which does not already or othenvise rest upon him, but which, 
 when it has once been undertaken, he cannot break without doing such 
 damage to B., a third person, as the law deems actionable. Thus, if 
 X. lends his horse to Y., who delivers it to Z., a livery stablekeeper, 
 to be looked after and fed, and the horse is injured or killed by in- 
 sufficient feeding, presumably Z. is liable for this, not only in con- 
 tract to Y., but also in tort to X., the owner of the horse. It is true 
 that, apart from his contract with Y., Z. was under no obligation to 
 feed the animal ; apart from the contract, this was a mere omission 
 to do an act which he was not bound to do. Yet having taken this 
 duty upon himself, he has thereby put himself in such a situation that 
 he cannot break the duty without inflicting on the owner of the horse 
 damage of a kind which the law deems wrongful. The oniission to 
 feed the horse, therefore, although a breach of contract, is not ex- 
 clusively such, and is therefore a tort, inasmuch as it can be sued on 
 by a person who is no party to the contract. 
 John W. Salmond, Jurisprudence (3d Ed.) 436. 
 
 IV 
 
 TORTS AND THE COMMON LAW ACTION FOR DAMAGES 
 
 No civil injury is to be classed as a tort unless the appropriate rem- 
 edy for it is an action for damages. Such an action is an essential 
 characteristic of every true tort. * * * No civil injury is to be 
 classed as a tort if it is merely a breach of trust or a breach of some 
 other merely equitable obligation. The reason of this exclusion is 
 historical only. The law of torts is in its origin a part of the com- 
 mon law, as distinguished from equity, and .it was unknown to the 
 Court of Chancery. Wrongs, therefore, such as breach of trust, which 
 fell exclusively within the jurisdiction of that court, stand outside the 
 category of tort, and are governed, just as the breach of contract is, 
 by a body of special rules differing in sundry respects from those 
 which have been developed by the common law of torts. And although 
 at the present day the difference between equitable and common-law 
 jurisdiction has disappeared, it is still requisite to preserve the mem- 
 ory of it in defining the limits of the law of torts. 
 
 John W. Salmond, Law of Torts (1910) 2, 5, 6.
 
 16 INTRODUCTORY 
 
 The body of the act provides that "a married woman may maintain 
 an action in her own name, and without joining her husband therein, 
 lor all torts committed against her, or her separate property, in the 
 same manner as she lawfully might if a feme sole." **--;: 'pj-^g 
 word "torts" in legal phraseology has a well-defined meaning. It 
 does not include all wrongful acts done by one person to the injury 
 of another, but only those for which individuals may demand legal 
 redress ; or, stated in another way, those which give rise to an action 
 for damages. Cooley on Torts, p. 2; Add. on Torts, p. 3. Substitut- 
 ing the definition of the word in place of the word itself, the statute 
 provides that a married woman may maintain an action in her own 
 name, and without joining her husband therein, for all wrongful acts 
 which give rise to an action for damages committed against her or her 
 separate property, in the same manner as she lawfully might if a 
 feme sole. In our judgment no legislative intent is to be perceived, 
 either in the title of this act or in its body, to confer upon a married 
 woman any right of action which did not exist previous to its enact- 
 ment. The defendants are entitled to judgment upon the demurrer. 
 
 Gummere, J., in Sims v. Sims (1909) 17 N. J. Law, 251, 72 Atl. 424.^^ 
 
 In addition to the remedy by action for damages in respect of torts 
 which have actually been committed, there is, in certain cases, an ancil- 
 lary remedy by way of injunction to prevent the commission of torts 
 which are threatened or anticipated, or in cases of continuing injuries 
 to restrain their continuance. 
 
 The principle upon which such injunction is granted is that the 
 injury, if suffered to be inflicted, v/ould be of such a character that 
 the plaintiff could not practically be compensated in damages. In 
 
 13 Delivering tlie opinion of the Supreme Court, 77 N. J. Law, 251, 72 Atl. 
 424. Tlie action was by a married woman for the alienation of her hus- 
 band's affections. The plaintiff liased her right to sue upon the statute (pioted 
 in the text. On error (79 N. J. Law, 577, 76 Atl. 106.3, 29 L. R. A. [N. S.] 842) 
 the judgment of the Supreme Court was reversed, the Court of Errors and 
 Appeals holding that the wife had at common law a legal right in such a 
 case but that a rule of common law procedure stood in the way of its enforce- 
 ment by her, and that th^ statute merely removed this obstacle. 
 
 Compare the ratio decidendi of this case aiid the following definitions or 
 descriptions of a tort, found in standard treatises of to-day: 
 
 (1) "A tort may be described as a wrong independent of contract, for which 
 the appropriate remedy is a common-law action." Clerk & Lindsell, Law of 
 Torts (1906) 1. 
 
 (2) "A tort may be said to be a breach of duty established by municipal 
 law for which a suit for damages can be maintained." Bigelow, Law of Torts 
 (1907) 64. 
 
 (3) "A tort is an act or omission which unlawfully violates a person's right, 
 created by the law, and for which the appropriate remedy is a common-law 
 action for damages by the injured person." Burdick, Law of Torts (lOOS) 11. 
 
 (4) "A tort is a bx'each of duty (other than a contractual or quasi con- 
 tractual duty) creating an obligation, and giving rise to au action for dam- 
 ages." J. C. Miles, Dig. Eng. Civ. Law (190S) § 722.
 
 TORTS AND THE COMMON LAW ACTION FOR DAMAGES 17 
 
 some cases the injunction takes a mandatory form, where the defend- 
 ant has created a permanent source of injury, such as the erection of 
 a building to the nuisance of the plaintiff's lights or to the obstruction 
 of his right of way, and orders him to restore the plaintiff' to his 
 right by removing the offending building or other source of damage. 
 Clerk and Lindsell, Law of Torts (1906) 783. 
 
 In Edward Fs day, at the end of the thirteenth century, three great 
 courts have come into existence, the King's Bench, the Common Bench 
 or Court of Common Pleas and the Exchequer. Each of these has 
 its own proper sphere, but as time goes on each of them attempts to 
 extend its sphere and before the middle ages are over a plaintiff has 
 often a choice between these three courts and each of them will deal 
 with his case in the same way and by the same rules. The law which 
 these courts administer is in part traditional law, in part statute law. 
 Already in Edward I's day the phrase "common law" is current. It 
 is a phrase that has been borrowed from the canonists — who used "jus 
 commune" to denote the general law of the Catholic Church ; it de- 
 scribes that part of the law that is unenacted, non-statutory, that is 
 common to the whole land and to all Englishmen. It is contrasted with 
 statute, with local custom, with royal prerogative. It is not as yet 
 contrasted with equity, for as yet there is no body of rules which 
 bears this name. 
 
 One of the three courts, namely, the Exchequer, is more than a 
 court of law. From our modern point of view it is not only a court 
 of law but a "government office," an administrative or executive 
 bureau ; our modern Treasury' is an offshoot from the old Exchequer. 
 What we should call the "civil service" of the country is transacted 
 by two great offices or "departments" ; there is the Exchequer which 
 is the fiscal department, there is the Chancery which is the secretarial 
 department, while above these there rises the king's permanent Council. 
 At the head of the Chancery stands the Chancellor, usually a bishop ; 
 he is we may say the king's secretary of state for all departments, he 
 keeps the king's great seal and all the already great mass of writing 
 that has to be done in the king's name has to be done under his super- 
 vision. 
 
 He is not as yet a judge, but already he by himself or his subor- 
 dinates has a great deal of work to do which brings him into a close 
 connexion with the administration of justice. One of the duties of 
 that great staff of clerks over which he presides is to draw up and 
 issue those writs whereby actions are begun in the courts of law — 
 such writs are sealed with the king's seal. A man who wishes to 
 begin an action must go to the Chancery and obtain a writ. Many 
 writs there are which have been formulated long ago; such writs 
 Hepb.Tobts — 2
 
 18 INTRODUCTORY 
 
 are writs of course (brevia de cursu), one obtains them by asking for 
 them of the clerks — called Cursitors — and paying the proper fees. But 
 the Chancery has a certain limited power of inventing new writs to 
 meet new cases as they arise. That power is consecrated by a famous 
 clause of the Second Statute of Westminster authorising writs "in 
 consimili casu." Thus the Chancellor may often have to consider 
 whether the case is one in which some new and some specially worded 
 writ should be framed. This however is not judicial business. The 
 Chancellor does not hear both sides of the story, he only hears the 
 plaintiff's application, and if he grants a writ the courts of law may 
 afterwards quash that writ as being contrary to the law of the land. 
 
 But by another route the Chancellor is brought into still closer con- 
 tact with the administration of justice. Though these great courts 
 of law have been established there is still a reserve of justice in the 
 king. Those who can not get relief elsewhere present their petitions 
 to the king and his council praying for some remedy. Already by 
 the end of the thirteenth century the number of such petitions pre- 
 sented in every year is very large, and the work of reading them and 
 considering them is very laborious. In practice a great share of this 
 labour falls on the Chancellor. He is the king's prime minister, he 
 is a member of the council, and the specially learned member of the 
 council. It is in dealing with these petitions that the Chancellor begins 
 to develop his judicial powers. * * * 
 
 We ought not to think of common law and equity as of two rival 
 systems. Equity was not a self-sufficient system, at every point it pre- 
 supposed the existence of conunon law. Common law was a self-suffi- 
 cient system. I mean this : that if the legislature had passed a short act 
 saying "Equity is hereby abolished," we might still have got on fairly 
 well; in some respects our law would have been barbarous, unjust, 
 absurd, but still the great elementary rights, the right to immunity 
 from violence, the right to one's good name, the rights of ownership 
 and of possession would have been decently protected and contract 
 would have been enforced. On the other hand had the legislature 
 said, "Common law is liereby abolished," this decree if obeyed would 
 have meant anarchy. At every point equity presupposed the existence 
 of common law. Take the case of the trust. It's of no use for Equity 
 to say that A is a trustee of Blackacre for B, unless there be some 
 court that can say that A is the owner of Blackacre. Equity without 
 common law would have been a castle in the air, an impossibility. 
 V For this reason I do not think that any one has expounded or ever 
 will expound equity as a single, consistent system, an articulate body 
 of hnv. It is a collection of appendixes between which there is no 
 very close connexion. If we suppose all our law put into systematic 
 order, we shall find that some chapters of it have been copiously gloss- 
 ed by equity, while others are quite free from equitable glosses. Since 
 the destruction of the Star Chamber we have had no criminal equity. 
 The Court of Chancery kept very clear of the province of crime, and
 
 TORTS AND THE COMMON LAW ACTION FOR DAMAGES 19 
 
 since the province of crime and the province of tort overlap, it kept 
 very clear of large portions of the province of tort. For example, 
 before 1875 it would grant no injunction to restrain the publication of 
 a libel, for normally the libel which is a tort is also a crime and it was 
 thought, and rightly thought, that such a matter should not be brought 
 before a court where a judge without any jury tried both fact and law. 
 Indeed if you will look at your books on tort you will find that on the 
 whole — if we except the province of fraud — equity has had little to 
 do with tort, though it has granted injunctions to restrain the com- 
 mission of nuisances and the like. The law of contract has been 
 more richly provided with equitable appendixes. The power of the 
 Chancery to compel specific performance, and its power to decree the 
 cancellation or rectification of agreements brought numerous cases 
 of contract before it, and then it had special doctrines about mort- 
 gages, and penalties, and stipulations concerning time. Pro}>erty law 
 was yet more richly glossed. One vast appendix was added to it under 
 the title of trusts. The bond which kept these various appendixes 
 together under the head of Equity was the jurisdictional and procedural 
 bond. All these matters were within the cognizance of courts of 
 equity, and they were not within the cognizance of the courts of com- 
 mon law. That bond is now broken by the Judicature Acts. Instead 
 of it we find but a mere historical bond — "these rules used to be 
 dealt with by the Court of Chancery" — and the strength of that bond 
 is being diminished year by year. The day will come when lawyers 
 will cease to inquire whether a given rule be a rule of equity or a 
 rule of common law: suffice it that it is a well-established rule ad- 
 ministered by the High Court of Justice. >f= * * 
 
 A very large part of the whole province of Tort is a proper field 
 for the injunction.^* I should say that the only torts which lie out- 
 side the field of injunctions are assault and battery, false imprison- 
 ment, and malicious prosecution. I do not think that an injunction 
 has been used or could be used to prevent these torts, which if they 
 be torts will also at least in most cases be crimes. Here there are 
 other remedies. If you go in fear of a man you can have him bound 
 over to keep the peace, while if you are wrongfully imprisoned the 
 writ of habeas corpus with its rapid procedure should serve your 
 turn. A civil court, again, must not prohibit a man from instituting 
 criminal proceedings. The Attorney-General's nolle prosequi should 
 be a sufficient preventive check on criminal proceedings of an obviously 
 vexatious kind. But with these exceptions it would be hard to find 
 a tort which might not in a given case be a proper subject for an in- 
 junction. Of libel I have already spoken, and something I have 
 said of trespass and of waste. It was the Chancery's power of is- 
 
 1* In the thirteenth edition of Story's Equity Jurisprudence, § 87.3 (ISSG), the 
 following are enumerated among tbe principal objects of an injiniorion: '"To 
 restrain waste, to restrain nuisances, to restrain trespasses, and to prevent 
 other irreparable mischiefs."
 
 20 INTRODUCTORY 
 
 suing injunctions against acts of waste that begot the doctrine of 
 equitable waste. Sometimes the Chancery would give an injunction 
 against waste for which a Court of Law would give no damages. 
 Nuisance is a fertile field, so is the infringement of copyright, of 
 patents, of trade marks. Indeed there are many rights which are 
 chielly, though not solely, protected by an injunction — the remedy by 
 action for damages being but a poor one. Damages and injunction are 
 not, you will understand, alternative remedies — in old times you 
 could get the one from the Courts of Common Law, the other from 
 the Court of Equity; now-a-days you may well get both from the 
 same court, the same division of the court in the same action, dam- 
 ages to compensate you for wrong suffered, and an injunction to pre- 
 vent a continuance of the wrong, it may be a mandatory injunction 
 to prevent the continued existence of a wrongful state of things. 
 But while the remedy by damages is a matter of strict right, the 
 remedy by injunction is not. This is best seen by referring to the 
 cases in which a plaintiff can recover nominal damages. He has not 
 really been hurt; he has not been made the poorer; but still his 
 rights have been infringed and the court pronounces a judgment in 
 his favour. But the court will not interfere by injunction where the 
 tort complained of, though a tort, is one which does no real damage, 
 and it will not interfere by injunction if damages will clearly be an 
 adequate remedy. Then again it may consider the plaintiff's conduct, 
 and in particular any delay of his in bringing the action. To an action 
 for damages delay is no defence unless the case has been brought 
 within one of the Statutes of Limitation. Either the plaintiff still is 
 entitled to the remedy or it has been taken from him by a statute, and 
 you can fix the precise moment of time at which the statute takes 
 effect — one moment he has a remedy, the next moment he has none. 
 It is not so with the injunction; the court may well hold for example 
 that my neighbour must pay me damages for having blocked out light 
 from my ancient windows, and yet, as I stood by and let him build, 
 it would be inequitable to compel him to pull down his wall. Es- 
 pecially when a mandatory injunction is to be sought, the plaintiff 
 must at once take action and prosecute his action diligently. The 
 court, it is said, in granting a mandatory injunction may look at the 
 balance of convenience. The defendant is by supposition in the wrong, 
 but on the whole and considering the conduct of both parties, shall 
 we not be inflicting on him more harm than he deserves if we. compel 
 him to pull down his wall ? 
 
 F. W. Maitland, Equity, 2, 19, 261 (1910).* 
 
 ♦The "province of Tort as a proper field for the injunction" is developed in 
 Chapter IV. pases 71).S-1136, "Injunction in Relation to Torts," in Professor 
 Boke's Cases on E(]uity.
 
 CLASSIFICATION OF TORTS 21 
 
 V 
 
 CLASSIFICATION OF TORTS 
 
 The older books treat the different specific torts under the heads of 
 the different forms of action. Our present doctrine is apparently 
 coming to a view of torts as an individual branch of the law, but it 
 has not yet settled upon a general principle of division applicable to all 
 specific torts. As a result, the current classifications of torts are many 
 and varied. But since the broad generalization by Mr. Justice Black- 
 burn, in Fletcher v. Rylands, L. R. 1 Ex. 265, when that famous case 
 was in the Exchequer-Chamber, nearly a half century ago, there has 
 been authority for a distribution of torts into two main categories. The 
 characteristic of the torts in the first category is that the duty which the 
 law casts upon the defendant is an absolute duty to do or to refrain 
 from doing a certain thing. Here the defendant's act is an act at 
 peril — an act of absolute liability. The plaintiff's prima facie cause 
 is complete with a showing of the defendant's act, except that in some 
 cases, although not regularly in the older torts in this class, actual 
 damage resulting from the act must be shown. 
 
 In the second class the defendant's liability does not turn on the 
 mere question whether he has done or omitted to do a certain thing. 
 The defendant may have acted, and harm may have come to the 
 plaintiff as the proximate result of this act, but his prima facie cause 
 is not complete unless something further appears in the defendant's 
 act. 
 
 The nature and extent of this additional element are not yet fully 
 determined. Perhaps, all its aspects cannot be exactly marked until 
 the doctrine of torts has ceased to grow. But in general, as the cases 
 now stand, the torts which turn upon an act of conditional liability 
 show two markedly different classes, first, torts in which the plaintiff', 
 in order to show a prima facie case, must allege and prove negligence 
 on the part of the defendant, and, secondly, torts in which, to show 
 his prima facie case, the plaintiff must allege and prove an act, in 
 some form, of intentional harm by the defendant. 
 
 The classification then which will be used in the following pages, 
 as a setting for the cases on the elements of the specific torts, will be 
 primarily two-fold: (1) Torts through Acts of Absolute Liability; 
 (2) Torts through Acts of Conditional Liability. The torts within the 
 first category fall into various groups which may be roughly classified 
 as Trespasses and Absolute Torts other than Trespasses. The sec- 
 ond category has the two main divisions already indicated. Torts
 
 22 INTRODUCTORY 
 
 through NegHgence, and Torts through Act of Intentional Harm.^' — 
 [Ed. 
 
 15 See Holland's Elements of Jurisprudence (10th Ed., 1906) 320, where 
 five different principles for the classitication of wrongs are sugj^esfed. anil 
 Halsbury's Laws of England (11)18) vol. 27, p. 472. Working classifications 
 will be found in Pollock on Torts (8th Ed.) 7; Clerk & Lindsell's Law of 
 Tort^ (3d Ed.) 7: Bigelow on Torts (8th Ed.) 35; Jaggard on Torts, 107. 
 «ee, also, Mr. Justice Holmes' early article on "The Theory of Torts" (1873) 
 7 Am. Law. Rev. 652. 663, afterwards developed in "The Common Law" (1881); 
 Piggotfs Law of Toi-ts (1885) 382; luues' I'rinciples of the Law of Torts 
 (ISiJl) xxxii, p. 146; Wigmore's General Analysis of Tort Relations (1895) 8 
 Ilarv. Law Rev. 377; Salraond's Jurisprudence (1910) 339. 
 
 In Fletcher v. Rylands the question was put in this form : "The plaintiff, 
 though free from all blame on his part, must bear the loss, unless he can es- 
 tablish that it was the consequence of some default for which the defendants 
 are responsible. The question of law therefore arises, what is the obligation 
 which the law easts on a person who, like the defendants, lawfully brings on 
 his land something which, though harmless whilst it remains there, will 
 naturally do mLschief if it escape out of his land. It is agreed on all hands 
 that he must take care to keep in that which he has brought on the land and 
 keeps there, in order that it may not escape and damage his neighbors, but 
 the question arises whether the duty which the law casts upon him, under 
 such circumstances, is an absolute duty to keep it in at his peril, or is, as 
 the majority of the Court of Exchequer have thought, merely a duty to take 
 all reasonable and prudent precautions, in order to keep it in, but no more. 
 If the first be the law, the person who has brought on his land and kept 
 there something dangerous, and failed to keep it in, is responsible for all the 
 natural consequences of its escape. If the second be the limit of his duty, 
 he would not be answerable except on proof of negligence, and consequently 
 would not be answerable for escape arising from any latent defect which 
 ordinary piiidence and skill could not detect." Per Blackburn, J., Fletcher v. 
 Rylands (1866) L. R. 1 Ex, 265, 279.
 
 PART I 
 
 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY 
 
 CHAPTER I 
 TRESPASSES 
 
 SECTION 1.— TRESPASSES IN GENERAL 
 I. Historical 
 
 With the punishable offence we contrast the "tort" which gives 
 rise to a civil action, though the tort may also be, and very often is, 
 a punishable offence. Torts again fall into two classes, and only 
 those which involve some violence — the violence may be exceedingly 
 small — are known as trespasses. 
 
 In the thirteenth century we see but the germs of this scheme. 
 "Trespass" ("transgressio'") is the most general term that there is ; 
 it will cover all or almost all wrongful acts and defaults. Every 
 felony, says Bracton, is a trespass, though every trespass is not a 
 felony. In a narrower sense therefore "trespass" is used as a contrast 
 to "felony." The word "misdemeanor" belongs as a term of art to 
 a much later age. * * * 
 
 The writs of trespass are closely connected with the appeals for 
 felony. The action of trespass is, we may say, an attenuated appeal. 
 The charge of "felonia" is omitted; no battle is offered; but the 
 basis of the action is a wrong done to the plaintiff in his body, his 
 goods or his land "by force and arms and against the king's peace." 
 In course of time these sonorous words will become little better than 
 a hollow sound; there will be a trespass with force and arms if a 
 man's body, goods or land have been unlawfully touched. From this 
 we may gather that the court had never taken very seriously the 
 "arms" of the writ or fixed a minimum for the "force" that would 
 beget an action. Still the action was aimed at serious breaches of the 
 king's peace, and, so far as we can see, the court in Henry III.'s 
 reign was seldom, if ever, troubled with "technical trespasses" or 
 claims for "nominal damages." * * * 
 
 (23)
 
 24 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 In the clays when the writ of trespass was taking a foremost place 
 in the scheme of actions, the king's court had its hands full if it was 
 to redress and punish the wrongs done by gentlemen who at the head 
 of armed bands of retainers ravaged the manors of their neighbors. 
 We must not therefore expect to find cases which indicate the limits 
 of trespass. We may guess that some self-defence was permissible, 
 while all self-help, unless it took the form of the timely ejectment 
 of a disseisor, was strictly prohibited. Also we may guess that this 
 somewhat terrible action could not have been used against those who 
 were not to be charged with any assault on a person, entry on land 
 or asportation of goods, but were giiilty of some misfeasance while 
 engaged in a lawful operation. In later days, slowly and with difficul- 
 ty, the court gave an action against the clumsy smith who lames the 
 horse that he is shoeing, against the stupid surgeon who poisons the 
 wound that he should cure. Such persons could not be charged with 
 breaking the king's peace by force and arms. 
 
 Pollock and Maitland, 2 Hist. Eng. Law. 511, 526, 527.^ 
 
 1 "All civil injuries are of two Iviuds, the one loithnut force or violence, as 
 slander or breach of contract; the other coupled n-ith force and violence, as 
 batteries or false imprisonment Which latter species savor something of 
 the criminal kind, being always attended with some violation of the peace ; 
 for \^hich in strictness of law a fine ought to be paid to the king, as well as 
 a private satisfaction to the party injured." 8 Kl. Com. (1765) 118, 119. 
 
 '•The recorded instances of tresi^nss in the royal courts prior to 1252 are 
 very few. In the 'Abbreviatio Tlacitorum' some twenty-five cases of appeals 
 of different kinds are mentioned, belonging to the period 1194-12.52. but not 
 a single case of trespass. In the year 37 Henry III. (1252-125::5) no fewer 
 than twenty-five cases of trespass are recorded, and from this time on the 
 action is frequent, while appeals are rarely brought. It is reasonable to sup- 
 pose that the writ of trespass w^as at first granted as a special favor, and 
 became, soon after the middle of the fourteenth century, a writ of course. 
 
 "The introduction of this action was a very simple matter. An original 
 writ issued out of Chancery directing the sheriff to attach the defendant to 
 appear in the King's Bench to answer the plaintiff. The jurisdiction of the 
 King's Court was based upon the commission of an act vi et armis and contra 
 pacem regis, for which the unsuccessful defendant had to pay a fine. These 
 words were therefore invariably inserted in the declaration. Indeed, the 
 count in trespass was identical with the corresponding appeal, except that it 
 omitted the offer of battle, concluded with an ad damnum clause, and sub- 
 .stituted the words "vi et armis" for the words of felony, — "feloniter," "felo- 
 uice," "in felonia," or "in robberia." The count in the appeal was doubtless 
 borrowed from the ancient count in the popular or communal courts, the 
 words of felony and "contra pacem regis" being added to bring the case 
 within the jurisdiction of the royal courts. 
 
 "The procedure of the Kingls Courts was much more expeditious than that 
 of the popular courts, tlie trial was by jury instead of by wager of law, and 
 judgment was .sjitisfied by levy of execution and sale of the defendant's prop- 
 erty, whereas in the popular courts distress and outlawry were the limits 
 of the plaintiff's rights. As an appeal might be brought for the theft of any 
 chattel worth 12d. or more, and as the owner now had an option to bring 
 trespass where an appeal would lie, there was danger that the royal courts 
 would be encumbered with a mass of petty litigation. To meet tliis threat- 
 ened evil the .Statute 6 Ed. I. e. 8, was passed, providing that no one should 
 hyve writs of trespass before justices unless he swore by his faith tliat the 
 goods taken awav were worth 4()s. at the least." 
 
 James liarr Ames, "The History of Trover," 11 ilarv. Law Kov. 277, 282; 
 3 Anglo-Amer. Legal Essays, 417, 422.
 
 Ch. 1) TRESPASSES 25 
 
 The writ of trespass was fast coming into use in the course of 
 Henry III.'s reign. During the twenty-two years between the middle 
 of the century and his death it became common. We think of an 
 action of trespass nowadays as a purely civil remedy, a means of 
 recovering damages if the plaintiff succeeds ; and that was no doubt 
 its main object and advantage even from the first. But it was also 
 a penal and semi-criminal proceeding, and preserved traces of this 
 character down to modern times. The trespass was complained of and 
 dealt with as a punishable breach of the king's peace, and the plain- 
 tiff was bound to allege force and arms and breach of the peace in 
 order to give the king's court jurisdiction; without those words it 
 was only a matter for the county court. In fact this action was, in 
 its original form, closely connected with the distinctly criminal pro- 
 cedure by way of "appeal" for felony. One might almost regard it, 
 using the analogy of modern French procedure, as the civil side of 
 such an appeal, which became separated by some ingenious experi- 
 m.ent or happv accident, and started on a new career of its own. 
 
 Sir Frederick Pollock. "The King's Peace," 13 H. L. R. 177, 185; 
 2 Legal Essays, 403, 412. 
 
 In their determination to win all litigation for the king's courts, the 
 royal justices, at the very end of this period, invented or adopted a 
 new writ, destined to be of enormous importance in all branches of 
 cur law. This was the Writ of Trespass, which makes its appearance 
 in the middle of the thirteenth century, just at the outbreak of the 
 Barons' War. Doubtless, in those troubled times, offences of violence 
 were unusually frequent; whilst the old methods of redress only 
 tended to aggravate the disorder. The notion of the "peace" or sus- 
 pension of hostilities was very familiar in theory ; whatever its rarity 
 in practice. And, of all "peaces" the peace of the king was the most 
 powerful and best protected. If the royal officials could once estab- 
 lish the rule, that any interference with possession, however slight, 
 was a breach of the king's peace, and subjected the offender to be 
 summoned before the king's justices, the ultimate triumph of the 
 royal courts was secure. With a little ingenious straining, almost 
 any oft'ence known in a simple state of society could be treated as a 
 breach of the peace. The notion of the sanctity of possession had, as has 
 been seen, been growing by means of the protection afforded to "seisin" 
 by the "petty (or 'possessory') assises" and the Writs of Entry. But 
 the notion of seisin was becoming technical. It was, for special rea- 
 sons, gradually being restricted to the possession of land (as distinct 
 from chattels), and of land by a freeholder, or a man who claimed 
 as such. Moreover, the notion of "diseisin" was held to imply a de- 
 liberate attempt to assert a right of possession. Something simpler 
 was wanted — some process which should make a mere casual raid or 
 blow punishable by sharp and speedy process in the royal courts.
 
 26 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 This is exactly what the Writ of Trespass did, as the following 
 
 form will show: 
 
 If A. gives pledges to prosecute his complaint, then piat B. by gage and 
 pledge tliat he (B.) be, before our Justices at Wiestniinster (on such a day) 
 prepared to show why with force and arms he assaulted the said A. at N. (or 
 broke the close of A. at N., or took and carried away the sheep of A.) and 
 otlier enormities to him did, to the grave damage of the said A., and against 
 our peace. * * * 
 
 It [the Writ of Trespass] aimed originally and, to some extent, aims 
 still, at punishment, rather than compensation — at fine and imprison- 
 ment, rather than "damages" in the modern sense. It was not long 
 before English Law took the one step needed to produce the modern 
 scheme of legal remedies. And when it did, it used the Writ of Tres- 
 pass as the starting point. 
 
 Edward Jenks, Short Hist. Eng. Law (1912) 52, 67?- 
 
 II. Jurisdictional Features oe a Cause in Trespass 
 INCLEDON V. BURGESS. 
 
 (Court of King's Bench, 16S8. 2 Salk. 636, 91 Reprint, 536.) 
 
 Trespass for breaking, entering, and depasturing, 36 Car. 2, con- 
 tinuando the depasturing till 4 Jac. 2, contra pacem domini Regis nunc, 
 which was K. James the Second. This was held naught, for then 
 there is no contra pacem to the trespass tempore Caroli Secundi, but 
 it is omitted, and contra pacem is substance. Vide Cro. Car. 325 ; 
 Cro. Jac. 426, 443, 537. 
 
 2 "The king's courts were approaching the field of tort through the held 
 of crime'* ; in the closing years of the seventeenth century, the unsuccessful 
 defendant in a civil action of trespass is nominally still a criminal. The 
 preamble of the statute of 5 & 6 W. & M. c. 12 (1694), iims thus: "Whereas 
 there are divers suits and actions of ti-espass, ejectment, assaiilt, and false 
 imprisonment, brought by party against party in the respective courts of law 
 at Westminster, and upon judgment entered against the defendant or de- 
 fendants in such suits or actions, the respective coui'ts aforesaid do (ex 
 officio) issue out process against such defendant and defendants, for a fine 
 to the crown, for a breach of the peace thereby committed, which is not as- 
 certained, but is usually compounded for a small sum of money by some offi- 
 cer in each of tlie said courts, but never estreated into the Exchequer ; which 
 ofiicers or some of them, do veiT often outlaw the defendants for the same, 
 to their very great damage." For this fine the statute substitutes a fee of 
 6s. and 8d., to be paid by the plaintiflf and taxed as costs against the defend- 
 ant— [£'(J.
 
 Ch. 1) TRESPASSES 27 
 
 WILDGOOSE V. KELLAWAY. 
 
 (Court of King's Bench, 1691. 2 Salk. 636, 91 Reprint, 537.) 
 
 Trespass for breaking his house and taking away his dishes ; the 
 defendant justified under a by-law, but that being ill, the plaintifif 
 demurred; but the defendant took exception to the declaration, be- 
 cause it wanted the words "vi et armis" ; and the court held it naught 
 on a general demurrer, being an omission of the substance; for it 
 alters the judgment from a capiatur to a misericordia. Item, it belongs 
 to the jurisdiction of the County Court, if it be a trespass without vi 
 et armis. 
 
 DAND V. SEXTON. 
 
 (Court of King's Bench, 1789. 3 Term R. 37, 100 Reprint, 442.) 
 
 This was an action of trespass vi et armis for beating the plaintifif's 
 dog, whereby the dog was hurt, and the plaintiff lost the use of him. 
 The defendant pleaded the general issue. On the trial the plaintiff 
 lecovered Is. damages; and Lord Kenyon, Ch. J., certified under 
 the 43 Eliz. c. 6,^ that the damages were under 40s. 
 
 Shepherd moved last term for a rule to shew cause why the certifi- 
 cate should not be set aside, on the ground that the statute only ap- 
 plied to those actions which could be brought in the County Court, 
 and that of course it did not extend to an action vi et armis. And a 
 case of Delamotte v. Dixon * was cited, in which Buller, J., under 
 an idea that the statute had been understood to be thus confined, re- 
 fused to grant a certificate. 
 
 Lord Kenyon, Ch. J. It seems to me that this case comes within 
 the statute, which extends to all personal actions, not being for any 
 title of lands, nor for any battery. And, on the maxim exceptio pro- 
 bat regulam, it includes all other actions vi et armis. It is true indeed 
 that an action vi et armis cannot be brought in a County Court; but 
 there are other Inferior Courts which by charter have a power of 
 trying actions vi et armis. But, as some of the Judges have enter- 
 tained doubts upon the question, take a rule to shew cause. 
 
 3 By this statute, passed in IGOl, it was provided that "If upon any action 
 personal to be brought in any of her Majesty's Courts at Westminster, not 
 being for any title or interest of lands, nor concerning the free hold or inher- 
 itance of any lauds nor for any battery, it shall appear to the judges for 
 the same court, and so signified or set down by the justices before whom the 
 same shall be tried, that the debt or damages to be recovered therein in the 
 same court, shall not amount to the sum of forty shillings or above," then 
 the judges should not award for costs to the plaintiff any greater sum than 
 "the debt or damages so recovered shall amount unto," 
 
 * Sittings after Mich., 27 Geo. Ill, B. K.
 
 28 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 Cause was to have been shewn this day, but the Court were extreme- 
 ly clear, on the authorities of Walker v. Robinson, 1 Wils. 93, White 
 V. Smith, 1 Wils. 94, and Bartlet v. Robins, 2 Wils. 258, that the stat- 
 ute extended to the present cases ; and they 
 
 Discharged the rule. 
 
 ^. 
 
 III. Characteristics oe a Cause in Trespass 
 I. DE S. and WIFE v. W. DE S. 
 
 (At the Assizes, Coram Thorpe, C. J., 1348 or loil). Y. B. Lib. Ass. 
 
 foi. yy, pi. 60.) 
 
 I, De S. & M. uxor ejus querunt de W. De S. de eo quod idem 
 W. anno, etc., vi et armis, etc., apud S., in ipsam M. insultum fecit, 
 et ipsam verberavit, etc. And W. pleaded not guilty. And it was 
 found by verdict of the inquest that the said W. came in the night 
 to the house of the said I., and would have bought some wine, but 
 the door of the tavern was closed ; and he pounded on the door with 
 a hatchet, which he had in his hand, and the female plaintiff put her 
 head out at a window and told him to stop ; and he saw her and 
 aimed at her with the hatchet, but did not hit her. Whereupon the 
 inquest said that it seemed to them that there was no trespass, since 
 there was no harm done. 
 
 Thorpe, C. J. There is harm done, and a trespass for which they 
 shall recover damages, since he made an assault upon the woman, as 
 it is found, although he did no other harm. Wherefore tax his dam- 
 ages, etc. And they taxed the damages at half a mark. Thorpe, C. 
 J., awarded that they should recover their damages, etc., and that 
 the other should be taken. Et sic nota, that for an assault one shall 
 recover damages.^ 
 
 NORVELL v. THOMPSON. 
 
 (Coiu-t of Appeals of South Carolina, 1834. 2 Hill, 470.) 
 
 The presiding judge made the following report: 
 
 Trespass quare elausuiu frej^it. The trespass was committed on the wood- 
 lands of the plaintiffs, and consisted in cutting a few saplings and bushes 
 along an old path, in order to open it sulhciently for the passage of wagons, 
 carts, etc. The defendant supposed the hind belonged to another per.son, to 
 whom lie applied for permission and obtained it, both being under a misap- 
 prehension as to the i)laintifts' line. None of the witnesses could venture to 
 as.se.ss the value of the timber cut, or estimate the damage. I instructed the- 
 jury if there were actually no damage done, or if it were so inconsiderable 
 that it could not be estimated, as the defendant set up no claim to the land, 
 and supposed he had ponnission of the real owner, they might find a verdict 
 for the defendant; and they did so. 
 
 6 This case is reprinted from Ames' Cases on Torts (3d Ed.) p. 1.
 
 Ch. 1) TRESPASSES 29 
 
 The plaintiffs gave notice of an appeal in this case, and that they 
 would -move the Court of Appeals for a new trial, on the following 
 grounds : 
 
 1. Because a trespass having been proven, the verdict could not 
 legally be for the defendant. 
 
 2. Because his honor was mistaken in law, in charging the jury 
 that where the trespass was very small they might find for defendant. 
 
 Harper, J. This is a very unimportant case, but in strictness of 
 law I suppose the plaintiffs are entitled to their motion. If a trespass 
 be proved, the plaintiffs are entitled to some damages, though they 
 may be merely nominal. Some damage was certainly proved, though 
 very trifling. In some cases, where the jury has been rightly instruct- 
 ed on the point of law, but in cases of very trifling trespass has thought 
 proper to find for the defendant, this Court, being satisfied that sub- 
 stantial justice was done, has refused to interfere. But this is the 
 privilege of the jury. The Court is bound to afford relief against 
 an erroneous instruction by the Court on a point of law. There is 
 something in the reasoning of the plaintiff's' counsel. No trespass 
 can be conceived more trifling than the mere passing over the unclosed 
 land of another, and it would be impossible to estimate the damage 
 resulting from a particular act of this sort. Yet, if no recovery could 
 be had in a case of this sort, the trespasser, by repetition of the act 
 and the lapse of time, might acquire the right of way, in spite of any- 
 thing that could be done to prevent it. 
 
 The motion is granted. 
 
 S^IITH v. STONE. 
 (Court of King's Bench, 1648. Style, 65, 82 Reprint, 533.) 
 Smith brought an action of trespasse against Stone pedibus ambul- 
 ando, the defendant pleads this speciall plea in justification, viz. that 
 he was carryed upon the land of the plaintiff by force, and violence 
 of others, and was not there voluntarily, which is the same trespasse, 
 for which the plaintiff brings his action. The plaintiff' demurs to this 
 plea : in this case Roll lustice said, that it is the trespasse of the 
 party that carryed the defendant upon the land, and not the trespasse 
 of the defendant: as he that drives my cattel into another mans 
 land is the trespassor against him, and not I who am the owner of the 
 cattell. 
 
 GILBERT V. STONE. 
 
 (Court of King's Reucli, 1648. Style, 72, 82 Reprint, 530.) 
 Gilbert brought an action of trespasse quare clausum fregit, and tak- 
 ing of a gelding, against Stone. The defendant pleads that he for fear 
 of his life, and wounding of twelve armed men, who threatened to 
 kill him if he did not the fact, went into the house of the plaintiff',
 
 30 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 and took the gelding. The plaintiff demurred to this plea; Roll 
 Justice, This is no plea to justify the defendant; for I may. not do 
 a trespasse to one for fear of threatenings of another, for by this 
 means the party injured shall have no satisfaction, for he cannot have 
 it of the party that threatened. Therefore let the plaintiff have his 
 judgment.^ 
 
 GIBBONS V. PEPPER. 
 
 (Court of King's Bench, 1694. 4 Mod. 405, 87 Reprint, 4G9.) 
 
 Assault and battery. The defendant pleaded, that he was riding on 
 a horse in the highway, and that on a sudden fright the horse started 
 and run upon the plaintiff, who continued in the way after he was 
 called to go out, which was the same assault. To this plea the plain- 
 tiff demurred. 
 
 It was moved in behalf of the defendant, that what he had pleaded 
 was a sufficient excuse ; for it was no neglect in him, and the mis- 
 chief done was inevitable. It is like the case of Weaver v. Ward, 
 
 6 In the case of The Eliza Lines (1905) 199 U. S. 119, 130, 26 Sup. Ct. 8, 50 
 L. Ed. 115, 4 Ann. Cas. 406, it was argued that for a crew to leave a ship 
 under stress of perils of the sea was not distinguishable in pi-inciple from 
 being torn bodily away from it by tlie tempest. "This," said Mr. Justice 
 Holmes, "is one of the oldest fallacies of the law. The difference between 
 the two is the difference between an act and no act. The distinction is well 
 settled in the parallel instance of duress by threats, as distinguished from 
 overmastering physical force applied to a man's body and imparting to it the 
 motion sought to be attributed to him. In the former case there is a choice 
 and therefore an act, no less when the motive commonly is recognized as vei*y 
 strong or even generally overpowering, than when it is one that would affect 
 the particular person only, and not the public at large. It has been held on 
 this ground that duress created by fear of immediate death did not excuse 
 a trespass. Gilbert v. Stone, Aleyn. 35, Style, 72; Scott v. Shepherd (1763) 
 2 W. Bl. S92, 896. See Miller v. Horton (1891) 152 Mass. 540, 547, 20 N. E. 
 100, 10 L. R. A. 116, 23 Am. St. Rep. 850. It has been held that a similar plea 
 in the case of shipwrecked men at sea did not prevent the killing of one of 
 them from being murder. Queen v. Dudley (1884) L. R. 14 Q. B. Div. 273. 
 See United States v. Holmes (1842) 1 Wall. Jr. 1, Fed. Cas. No. 15,383. It is 
 clear that a contract induced by such fear is voidable only, not void, and that 
 the ground of avoidance being like fraud, that tlie party has been subjected 
 to an improper motive for action, when that motive has been created by a 
 stranger, and is unknown to the party, the contract stands. Keilwey, 154a, 
 pi. 3; Fairbanks v. Snow (1887) 145 Mass. 153, 13 N. E. 590, 1 Am. St Rep. 
 446. So a conveyance induced by duress is operative until avoided, and can 
 not be set aside when the property has passed to a jmrchaser witliout notice. 
 Bainbrigge v. Browne (1881) L. R. 18 Ch. Div. 188, 197 ; 2 Wms. Vend. & P. 
 767; Clark v. Pease (1860) 41 N. H, 414. The distinction is as old as the 
 Itomau law. Tamen coactus volui. D. 4, 2. 21, § 5; 1 Windscheid, Pan 
 dokten, § 80." 
 
 See also an early application of the principle, in English law, in Y. B. 20 
 Edw. IV (1481) f. 11, pi. 10, an action of trespass because the defendants 
 cattle came upon the plaintiff's land, in an effort to escape from the dogs of 
 a third person. The prima facie trespass here was admitted and the ques- 
 tion before the court was whether the facts if pleaded would make a de- 
 fense — a question which a chief justice of Edward the Fourth's reign an- 
 swered in the negative.
 
 Ch. 1) TRESPASSES 31 
 
 Hobart, 134, where in trespass, assault, and battery, the defendant 
 pleaded, that he was a trained soldier, and that he and the plaintiff 
 were under one captain, and in mustering he discharged his gun, which 
 casualiter, et per infortunium, et contra voluntatem suam, did hurt 
 the plaintiff; and it was there held, that if the defendant had plead- 
 ed that he could not have avoided it, or that the plaintiff had run 
 across the gun when it was discharging, or had set forth the circum- 
 stances so that it might appear to the Court to be inevitable, that such 
 a plea had been a sufficient justification. 
 
 But it was answered, that case was not parallel with this, because 
 the fact was confessed there ; but the battery is not answered here. 
 He should have pleaded the general issue, for if the horse run away 
 against his will, he would have been found not guilty, because in such 
 a case, it cannot be said with any colour of reason to be a battery in 
 the rider/ 
 
 The plaintiff had judgment. 
 
 UNDERWOOD v. HEWSON. 
 
 (At Nisi Prius, in Middlesex, 1723. Coram Fortescue et Raymond, Justices. 
 
 1 Stra. 596; 93 Reprint, 722.) 
 
 The defendant was uncocking a gun and the plaintiff standing to 
 see it, it went off and wounded him : and at the trial it was held that 
 the plaintiff might maintain trespass. Strange pro defendente. 
 
 GREGORY V. PIPER. 
 
 (Court of King's Bench, 1829. 9 Bam. & C. 591, 109 Reprint, 220, 33 R. R. 
 
 268, 17 E. C. L. 266.) 
 
 Trespass for casting rubbish against the plaintiff's wall. Plea, not 
 guilty. At the trial it appeared that the plaintiff occupied a public- 
 house called the "Rising Sun," in Newmarket, with a stable-yard be- 
 longing to it, where he put up the horses of his guests. The way 
 to the stable was by the back gate from High Street, through a yard 
 called the Old King's Yard. A wall belonging to the plaintiff sepa- 
 rated his stable yard from the Old King's Yard. The defendant hav- 
 ing purchased the property surrounding the Old King's Yard, dis- 
 puted the plaintiff's right to pass along the same to his stable, and 
 employed one Stubbings, a labourer, to lay down a quantity of rub- 
 bish, consisting of bricks, mortar, stones, and dirt, near the plaintiff's 
 
 7 Ttiis case is reported also in 1 LkI. Raym. 38, and Salk. 637 ; 91 Reprint, 
 922 and 539. 
 
 Compare Holmes v. Mather (1875) L. R. 9 Ex. 201, and notes, given inrra.
 
 32 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 Stable- yard, in order to obstruct the way ; and Stubbings, on the 26th 
 of April, and several days following, laid down rubbish accordingly, 
 part of which rolled against the plaintiff's wall and gates. It lay about 
 two feet high against the plaintiff's wall for about five or six yards 
 in length. Stubbings being called as a witness on the part of the 
 plaintiff, stated that he was employed by the defendant to lay rubbish 
 in the yard; that the defendant had given him orders not to let any 
 rubbish touch the plaintiff's wall, that he executed those orders as 
 nearly as he could, and accordingly laid the rubbish at first at the 
 distance of a yard and a half from the wall ; and that the rubbish, 
 being of a loose kind, as it became dry naturally shingled down toward 
 and ran against the wall. He added that some of it would of course 
 run against the wall. It further appeared that on the 3rd of May, 
 when an application was made by the plaintiff to the defendant to 
 remove the rubbish, the latter said he was determined not to remove 
 it. Upon this evidence it was objected by the defendant that trespass 
 was not maintainable, inasmuch as the defendant had given express 
 orders to the servant not to let the rubbish touch the plaintiff's wall; 
 that, therefore, the touching of the wall was occasioned by the negli- 
 gence of the defendant's servant, and that case, not trespass, was 
 therefore maintainable. 
 
 The Lord Chief Baron directed the jury to find a verdict for the 
 plaintiff, but reserved liberty to the defendant to move to enter a non- 
 suit. A rule nisi was obtained for that purpose. 
 
 BayliJy, J. The only question is whether the trespass was the act 
 of the master. The master desired the servant to lay down the rub- 
 bish so as not to let it touch or lean against the wall of the plaintiff. 
 But if in execution of the order it was the necessary or natural con- 
 sequence of the act ordered to be done that the rubbish should go 
 against the wall, the master is answerable in trespass. The evidence 
 shews that it was the natural consequence. The rule must, therefore, 
 be discharged. 
 
 ParkK, J. I think that the defendant is liable in this form of ac- 
 tion. If a single stone had been put against the wall it would have 
 been sufficient. Independently of Stubbing's evidence there was suffi- 
 cient evidence to satisfy the jury that the rubbish was placed there 
 by the defendant, for he expressed his determination not to remove it. 
 It does not rest there. Stubbings said he was desired not to let the 
 rubbish touch the wall. But it appeared to be of a loose kind, and it 
 was probable that some of it naturally might run against the wall. 
 Stubbings said that some of it of course would go against the wall. 
 Now the defendant must be taken to have contemplated all the probable 
 consequences of the act which he had ordered to be done, and one 
 of these probable consequences was, that the rubbish would touch the 
 plaintiff's wall. If that was so, then the laying of the rubbish against 
 the wall was as much the defendant's act as if it had been done by
 
 Ch. 1) TRESPASSES 33 
 
 his express command. The defendant, therefore, was the person who 
 caused the act to be done, and for the necessary or natural consequence 
 of his own act he is responsible as a trespasser. 
 Rule discharged. 
 
 PAGE V. HOLLINGSWORTH. 
 
 (Supreme Court of Indiana, 1S55. 7 Ind. 317.) 
 
 Davison, J. Trespass. The complaint is that the defendant's cat- 
 tle broke and entered the plaintiffs' close and destroyed their corn. 
 Verdict for tlie defendant. New trial refused and judgment. 
 
 It appeared that in January, 1852, the defendant was the owner 
 of three hundred and eighteen head of cattle, from three to four years 
 old, and had rented from Page, one of the plaintiffs, a stock field 
 for pasture, which was inclosed by an indifferent fence ; that the cat- 
 tle were pastured in this field in the day time, and there watched by 
 Peter and Thomas Kennedy, who were employed by the defendant 
 to take care of them, but at night they were put into a stubble field 
 furnished by Page, which was inclosed by a good fence, such as care- 
 ful husbandmen generally keep ; that the corn field, in which the tres- 
 passes were committed, belonged jointly to the plaintiffs, and adjoined 
 the stubble field in which the cattle were kept in the night time ; that 
 the Kennedys went round this field every evening, saw that the fences 
 were up and that the rails which the cattle had knocked off the night 
 before were all put up again ; and that on a stormy night, a few days 
 after the cattle had been at Page's, they broke through the fence 
 from the stubble field into the plaintiffs' corn field and destroyed a 
 quantity of their corn. Upon the trial, there was evidence sufficient 
 to warrant the jury in finding that the cattle were not breachy; that 
 they were carefully attended by the defendant's employes; and that 
 on his part there was no want of care. 
 
 There is in the record a bill of exceptions, which shows that the 
 Court instructed the jury as follows: 
 
 1. If the defendant exercised all the attention and care over the cattle that 
 was necessary, in their situation, to keep that number of cattle from tres- 
 passing or breaking the inclosure, and was guilty of no wrongful act or omis- 
 sion of duty in the premises, and the damages were done unavoidably, by cir- 
 cumstances which the defendant could not control or avoid, the law is with 
 the defendant. 
 
 2. There must be some positive wrong on the part of the defendant In this 
 cause, before a verdict can be found against him. 
 
 If the trespass in this case had been committed against the person 
 or personal property of the plaintiffs, and not against their real estate, 
 the instructions would have been clearly right, because cattle, such as 
 those charged with having broken and entered the plaintiffs' close, 
 viz., cows, oxen, steers, and the like, are regarded mansuetse nat- 
 urae, not naturally inclined to commit mischief. And the owner, foi 
 Hepb.Tokts — ^3
 
 34 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 such trespass merely against the person or personal property, would 
 not be held liable, unless it could be shown that he previously had 
 notice of their viciousness, or that the injury was attributable to some 
 neglect on his part. 1 Chit. PI. 82, 83 ; Bac. Ab. tit. Trespass, 1 ; 
 \'rooman v. Lawyer, 13 Johns. (N. Y.) 339; Lyke v. Van Leuven, 
 4 Denio (N. Y.) 127. 
 
 But this rule does not apply to the case before us. Here a close 
 was broken and entered by such animals ; and though their owner 
 may not know when they are incHned to commit mischief, still it is 
 said "they have a natural and notorious propensity to rove," which 
 he is always presumed to know. Hence, he is bound, at his peril, to 
 confine them on his own land ; for if they escape and commit a tres- 
 pass on the land of another, unless through the defect of fences which 
 the latter ought to repair, the law deems the owner himself a tres- 
 passer, and holds him liable in trespass quare clausum fregit, though 
 he had no notice in fact of such propensity. 3 Bl. Comm. 211; Rust 
 V. Low, 6 Mass. 90; Thayer v. Arnold, 4 Mete. (Mass.) 589; Sher- 
 idan v. Bean, 8 id. 284, 41 Am. Dec. 507 ; Chit. PI. 83. This is the 
 common law rule on the subject, and we have heretofore decided 
 that, as a general rule, it prevails in Indiana. Williams v. New Al- 
 bany, etc., R. Co., 5 Ind. Ill ; Lafayette, etc., R. Co. v. Shriner, 6 Ind. 
 141. 
 
 If the principles above stated are sound, as we think they are, the 
 ruling of the Common Pleas can not be sustained. Against the plain- 
 tiffs, no delinquency was shown. The fence through which the cattle 
 broke and entered the corn field, was considered by the parties sui^- 
 cient and in good repair, and the authorities we have cited establish 
 the principle, that the owner of such cattle can not, in defence of a 
 suit like the present, set up the care and diligence which he may have 
 exercised in an unavailing effort to confine them on his own land. 
 Indeed the defendant in this case may have been entirely innocent; 
 yet his cattle having broken and entered the close, and therein de- 
 stroyed corn, the plaintiffs not being in fault, the law holds him 
 responsible for the trespass. The jury, in our opinion, were improp- 
 erly instructed. 
 
 The judgment is reversed with costs. ^ 
 
 8 Accord: Ellis v. Loftus Iron Co. (1S74) .L. R. 10 C. P. 10, the facts of 
 which are given infra; Brady v. Warren (1000) 2 I. R. (VoO (tamo deer kept 
 by D. stray upon the land of P.) ; Wells v. Howell (1822) 19 Johns. (N. Y.) 
 385, the facts of which appear infra; Dolph v. Ferris (1S44) 7 Watts & S. 
 (Pa.) 367, 42 Am. Dec. 246 (D.'s bull jumped a fence into P.'s inclosure and 
 gored his horse). 
 
 On the question whether accident or mistake will excuse the prima facie 
 trespass, see infra, "The Different Kinds of Justification or Excuse in Tres- 
 pass." 
 
 "There Is one case of absolute liability for accident which deserves special 
 notice by reason of its historical orij^in. Every man is absolutely resi)onsi- 
 ble for the trespasses of his cattle. If my horse or my ox escapes from my 
 land to that of another man, I am answerable for it without any proof of
 
 Ch. 1) TRESPASSES 35 
 
 COX V. BURBIDGE. 
 
 (Court of Common Pleas, 1SG3. 13 C. B. [N. S.] 430, 143 Reprint, 171, 134 
 
 R. R. 5S6.) 
 
 A horse belonging to the defendant was grazing on a newly made 
 road which led to some houses, and which had for some time been 
 used as a road, but not adopted by the parish. The plaintiff, a little 
 boy about five years of age, was playing in the road, when the horse, 
 which was on the foot-path, struck out and kicked him in the face, 
 injuring him very severely. There was no evidence to show how the 
 horse got to the spot, or that the defendant knew he was there, or that 
 the animal was at all vicious, or that the child had done anything to 
 irritate it. 
 
 Under these circumstances, it was submitted on the part of the 
 defendant that there was no case to go to the jury. The learned 
 Judge, however, did not like to withdraw the case; but he reserved 
 the question of liability; and the jury returned a verdict for the 
 plaintiff for £20. The defendant obtained a rule nisi to enter a non 
 suit. 
 
 negligence. Such a rule may probably be justified as based on a reasonable 
 presumption of law that all such trespasses are the outcome of negligent 
 keeping. Viewed historically, however, the rule is worth notice as one of the 
 last relics of the ancient principle that a man is answerable for all damage 
 done by his property. In the theory of ancient law I am liable for the tres- 
 passes of my cattle, not because of my negligent keeping of them, but be- 
 cause of my ownership of them. For the same reason in Roman law a mas- 
 ter was liable for the offences of his slaves. The case is really, in its his- 
 torical origin, one of vicarious liability." Salmoud, Jurisprudence (1910) 
 378. And see the question whether accident excuses a trespass, discussed 
 infra, "The Different Kinds of Justification or Excuse in Trespass." 
 
 For the limits of the doctrine, see the remarks of Willes, J., in Read v. 
 Edwards (1864) 17 C. B. (N. S.) 245, 260: "The question was much argued 
 v.hether the owner of a dog is answerable in trespass for every unauthor- 
 ized entry of the animal into the land of another, as in the case of an ox. 
 And reasons were offered, which we need not now estimate, for a distinc- 
 tion in this respect between oxen and dogs or cats, on account, first, of the 
 difficulty or impossibility of keeping the latter under restraint, secondly, the 
 slightness of the damage which their wandering ordinarily causes, thirdly, 
 the common usage of mankind to allow them a wider liberty, and lastly, their 
 not being considered in law so absolutely the chattels of the owner, as to be 
 the subject of larceny. 
 
 "It is not, however, necessary in the principal case to answer this ques- 
 tion ; because it was proved at the trial that the dog which did the damage 
 was of a peculiarly mischievous disposition, being accustomed to chase and 
 destroy game on its own account, that that vice was known to its owner, the 
 defendant, and that he notwithstanding allowed it to be at large in the neigh- 
 bourhood of the plaintiff's wood, in which there were game ; so that the en- 
 try of the dog into the wood, and the destruction of the game, was the nat- 
 ural and immediate result of the animal's peculiarly mischievous disposition, 
 which his owner knew of, and did not control." 
 
 See also the remarks of Palles, C. B., in Brady v. Warren, [1900] 2 I. R. 
 632. 659 Crabl)its from D.'s land trespass upon P.'s land). 
 
 For other distinctions and cases in the doctrine see 2 Cyc. 376, note 38; 
 and Key-No., "Animals," § 97.
 
 36 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 Williams, J. * * * If I am the owner of an animal in which 
 by law the right of property can exist, I am bound to take care that 
 it does not stray into the land of my neighbour; and I am liable for 
 any trespass it may commit, and for the ordinary consequences of that 
 trespass. Whether or not the escape of the animal is due to my neg- 
 ligence, is altogether immaterial. I am clearly liable for the trespass, 
 and for all the ordinary consequences of the trespass, subject to a 
 distinction which is taken very early in the books, that the animal is 
 such that the owner may have a property in it which is recognizable by 
 law. May v. Burdett, 9 O. B. 101. For instance, if a man's cattle, 
 or sheep, or poultry, stray into his neighbour's land or garden, and 
 do such damage as might ordinarily be expected to be done by things 
 of that sort, the owner is liable to his neighbour for the consequences. 
 
 The question, then, is, whether the injury which is the subject of 
 this action falls within that rule. Upon the result of the authorities, 
 I am of opinion that it does not. We must assume that the injury 
 to the plaintiff was caused by the horse having viciously kicked him, 
 as a horse of ordinary temper would not have done. Taking that to 
 be so, I am of opinion that the plaintiff cannot maintain the action 
 because he has not shown that the defendant knew that the horse 
 was subject to that infirmity of temper. That brings the case within 
 the ordinary rule by which it is established that the owner is not 
 liable unless it can be shown that he was aware of the irritable temper 
 and vice of the animal. There is no trace to be found in the books 
 of an owner being held liable beyond the consequences of ordinary 
 trespasses, in the absence of such evidence as I have above pointed 
 out: and I think we ought not to introduce a new ground of action." 
 
 HAY v. COHOES CO. 
 (Court of Appeals of New York, 1849. 2 N. Y. 159, 51 Am. Dec. 279.) 
 
 Hay sued the Cohoes Company, a New York corporation, in the 
 court of common pleas of Albany county. The declaration alleged 
 that the defendants, by their agents, wrongfully and unjustly blasted 
 and threw large quantities of earth, and stones upon the dwelling 
 house and premises of the plaintiff, and broke the windows, doors, 
 etc., to the plaintiff's damage. Plea, not guilty. On the trial the 
 plaintiff gave evidence tending to prove his declaration, and, among 
 other things, that the agents of the defendants, in excavating a canal 
 on land of which they claimed to be the owners, knocked down the 
 stoop of plaintiff's house and part of his chimney. The defendants 
 moved for a nonsuit, insisting that to make them liable the plaintiff 
 
 The statement of the case, which was framed in negligence, is abridged. 
 The concurring opinions of Erie, C. J., and Willes, J., are omitted.
 
 Ch. 1) TRESPASSES 37 
 
 must both aver and prove that there was negligence, unskillfulness, or 
 wantonness on the part of the defendants, and this the plaintiff fail- 
 ed to do. The common pleas nonsuited the plaintiff. On error, the 
 supreme court reversed the judgment, and granted a new trial, from 
 which decision the defendants appealed.^^ 
 
 Gardiner, J. The defendants insist that they had the right to ex- 
 cavate the canal upon their own land, and were not responsible for 
 injuries to third persons, unless they occurred through their negli- 
 gence and want of skill, or that of their agents and servants. 
 
 It is an elementary principle in reference to private rights, that 
 every individual is entitled to the undisturbed possession and lawful 
 enjoyment of his own property. The mode of enjoyment is necessari- 
 ly limited by the rights of others — otherwise it might be made de- 
 structive of their rights altogether. Hence the maxim sic utere tuo, 
 etc. The defendants had the right to dig the canal. The plaintiff 
 had the right to the undisturbed possession of his property. If these 
 two rights conflict, the former must yield to the latter, as the more im- 
 portant of the two, since, upon grounds of public policy, it is better 
 that one man should surrender a particular use of his land, than that 
 another should be deprived of the beneficial use of his property al- 
 together, which might be the consequence if the privilege of the 
 former should be wholly unrestricted. The case before us illustrates 
 this principle. For if the defendants in excavating their canal, in it- 
 self a lawful use of their land, could, in the manner mentioned by the 
 witnesses, demolish the stoop of the plaintiff* with impunity, they 
 might, for the same purpose, on the exercise of reasonable care, de- 
 molish his house, and thus deprive him of all use of his property. 
 
 The use of land by the proprietor is not therefore an absolute right, 
 but qualified and limited by the higher right of others to the lawful 
 possession of their property. To this possession the law prohibits all 
 direct injury, without regard to its extent or the motives of the ag- 
 gressor. A man may prosecute such business as he chooses upon his 
 premises, but he cannot erect a nuisance to the annoyance of the ad- 
 joining proprietor, even for the purpose of a lawful trade. Aldred's 
 Case, 9 Coke, 58. He may excavate a canal, but he cannot cast the 
 dirt or stones upon the land of his neighbor, either by human agency 
 or the force of gunpowder. If he cannot construct the work without 
 the adoption of such means, he must abandon that mode of using his 
 property, or be held responsible for all damages resulting therefrom. 
 
 i^The declaration was in case. Whether this form of action was proper 
 for the cause asserted was questioned by the Supreme Court ; and the action 
 was saved with difficulty. See the report of the case in Hay v. Cohoes Co. 
 (1848) 3 Barb. (N. Y.) 45--i9. For the principle of pleading involved, see 
 Whittier's Cases on Common Law Pleading. 
 
 The act of the New York Legislature incoi^porating the defendant company 
 authorized it to excavate canals on its own land. See Hay v. Cohoes Co. 
 (1848) 3 Barb. (N. Y.) 42, 46. 
 
 The statement of facts is slightly abridged. Part of the opinion i* omitted.
 
 38 TORTS THROUGH ACTS OP ABSOLUTE LIABILITY (Part 1 
 
 He will not be permitted to accomplish a legal object in an unlawful 
 manner. * * * 
 
 In this case, the plaintiff was in the lawful possession and use of 
 his own property. The land was his, and, as against the defendant, 
 by an absolute right from the center usque ad coelum. The defend- 
 ants could not directly infringe that right by any means or for any 
 purpose. They could not pollute the air upon the plaintiff's premises, 
 Morley v. Pragnell, Cro. Car. 510, nor abstract any portion of the 
 soil, Rol. Abr. 565, note; Thurston v. Hancock, 12 Mass. 221; nor 
 cast anything upon the land, Lambert v. Bessy, Sir T. Raymond, 421, 
 by any act of their agents, neglect, or otherwise. For this would 
 violate the right of domain. Subject to this qualification the defend- 
 ants were at liberty to use their land in a reasonable manner, accord- 
 ing to their pleasure. H the exercise of such a right upon their part, 
 operated to restrict the plaintiff in some particular mode of enjoying" 
 his property, they would not be liable. It would be damnum absque 
 injuria. 
 
 No one questions that the improvement contemplated by the de- 
 fendants upon their own premises was proper and lawful. The means 
 by which it was prosecuted were illegal notwithstanding. For they 
 disturbed the rightful possession of the plaintiff and caused a direct 
 and immediate injury to his property. For the damages thus re- 
 sulting, the defendants are liable. ***■}- 
 
 Judgment affirmed. 
 
 BOOTH V. ROME, W. & O. T. R. CO. 
 
 (Court of Appeals of New York, 1893. 140 N. Y. 267, 35 N. E. 592, 24 L. R. 
 
 A. 105, 37 Am. St. Rep. 552.) 
 
 In making a lawful excavation on its own land, in order to remove 
 rock, the defendant railway company loosened the rock by blasting. 
 In consequence of this blasting the plaintiff's house, on an adjoining 
 lot, was seriously damaged, the foundations being cracked, the beams 
 and joists pulled apart, the plaster loosened. No rocks or materials, 
 however, were thrown upon the plaintiff's lot or against his house. The 
 inference was that the damage to the plaintiff's house was caused by 
 
 t Accord: Henry Hall Sons' Co. v. Sundstrom Co. (1910) 138 App. Div. 548, 
 123 N. Y. Supp. 31)0: The complaint allosed that the defendant was blastiug 
 near the plaintiff's factory, and that this "Idasting was conducted in such a 
 manner by reason of the negUgence of the defendiint that large rocks, stones 
 and other material were thrown" upon and against the plaintill's factory. 
 The character of the cause was held to be trespass, notwithstanding the iso- 
 lated allegation of negligence. 
 
 Langhorne v. Turman (1911) 141 Ky. 809, 133 S. W. 1008, 34 L. R. A. (N. S.) 
 211: D., a railway company, was blasting upon its right of way, and thereby 
 caused *<oil and rocks to be thrown ujion I'.'s land. The instruction author- 
 ized a recovery without regard to whether the blasting in the right of way 
 was d-one negligently. 
 
 For other cases, see Dec. Dig,, Key No., "Explosives," § 12.
 
 Ch. 1) TRESPASSES 39 
 
 the jarring of the ground or the concussion of the atmosphere created 
 by the explosion, or by both causes combined. It was conceded that 
 the defendant exercised due care in the blasting, and that blasting was 
 necessary in order to remove the rock. 
 
 In an action to recover for the damage thus sustained the trial judge 
 instructed the jury that the defendant in using powerful explosives in 
 blasting the rock used them at its peril, and that if the plaintiff's 
 house was injured thereby the defendant was liable for the damages 
 occasioned, and "that it made no difference whether the work was done 
 carefully or negligently." Exception was taken by the defendant to 
 this instruction. The jury found that the damage to the house from 
 the blasting was $1,750, and this sum was included in the verdict.^' 
 A judgment for the plaintiff upon this verdict was affirmed by the 
 General Term of the Supreme Court. The defendant appealed. ^- 
 
 AndrEws, C. J. * * * The plaintiff", upon the findings of the 
 jury, sustained a serious injury. It is true that witnesses on the part 
 of the defendant gave evidence tending to show that the house was 
 imperfectly constructed, and that the foundation walls were giving 
 way before the excavation was commenced. But the verdict having 
 been affirmed by the General Term, there can be no controversy here 
 that the blasting caused damage to the house to the amount of the 
 verdict. But mere proof that the house was damaged by the blasting 
 
 11 This statement is substituted for a longer statement by tbe reporter. 
 The arguments of counsel and portions of the opinion are oniittcid. 
 
 12 "When an examination is made of the cases in which the exact point 
 raised in the case at bar has been at issue, viz., whether one, who, by blasting 
 with powerful explosives, produces severe concussions or vibrations in sur- 
 rounding earth and air, and so materially damages buildings belonging to 
 others, is liable Irrespective of negligence on his part, a sharp and irrecon- 
 cilable conflict of authority is disclosed. The point seems to have come up 
 flrst in the lower courts of New York, where it was decided in favor of the 
 plaintiff, following the reasoning of Hay v. Cohoes Co., supra, 1(1849) 2 N. 
 Y. 159, 51 Am. Dec. 279], and other cases. ]\Iorgan v. Bowes, 62 Hun, 628, 
 17 N. Y. Supp. 22 (Sup. Ct. 1891) ; Booth v. Rome, etc., R. Co., 63 Hun, 624, 
 17 N. Y. Supp. 336 (Sup. Ct. 1892). In the former of these two cases the Su- 
 preme Court says: 'The appellants claim reversal upon two grounds: * * * 
 Second, that an action for damages caused by blasting on one's own land 
 will only lie when an actual trespass upon the res is committed, as where 
 rock or soil is blown over into the adjoining lot or against the adjoining house. 
 * * * We think the second point taken by the appellants also is untenable. 
 The rules which have been laid down upon the subject of private nuisances, 
 causing damage to individuals, do not limit the right of action as thus contend- 
 ed for. It is true that in Hay v. Cohoes Co. (1849) 2 N. Y. 159 [51 Am. Dec. 
 279], fragments of the rock blasted by the defendants were actually thrown 
 against and injured the iidjoining building, which belonged to the plaintiff. 
 The observations of the learned court were made with reference to that fact: 
 but it was by no means intimated that such an action could not be maintained, 
 where the same damage was produced by violent and continuous concussions. 
 On the contrary, the disturbance of the plaintiff's rightful possession, and the 
 direct and immediate injury to his property, were the grounds upon which the 
 right of recovery was placed. There the plaintiff's stoop was demolished. It 
 was certainly unimportant whether such demolition resulted from the direct at- 
 tack of broken rock or from the concussion caused bj' the blast.' " I'er John- 
 s(jn, J., delivering the opinion in Ilickcy v. McCabe (1910) 30 R. I. 346, 75 
 Atl. 404, 27 L. R. A. (N. S.) 425, 19 Ann. Cas. 783.
 
 40 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 would not alone sustain the action. It must further appear that the 
 defendant in using explosives violated a duty owing by him to the 
 plaintiff in respect of her property, or failed to exercise due care. 
 Wrong and damage must concur to create a cause of action. 
 
 If the injury was occasioned by the omission to use due care, this 
 alone would sustain the action, even if the right of the defendant to 
 use explosives in removing the rock was conceded. If one by care- 
 lessness in making an excavation on his own land causes injury to an 
 adjoining building, even where the owner of the house has no easement 
 of support, he will be liable. Leader v. Moxon, 3 Wils. 460; Law- 
 rence V. Great Northern Railway Co., 16 Ad. & El. 643-653 ; Leake's 
 Law of Real Prop. 248. The law exacts from a person who under- 
 takes to do even a lawful act on his own premises, which may produce 
 injury to his neighbor, the exercise of a degree of care measured by 
 the danger, to prevent or mitigate the injury. The defendant could 
 not conduct the operation of blasting on its own premises, from which 
 injury might be apprehended to the property of his neighbor, without 
 the most cautious regard for his neighbor's rights. This would be 
 reasonable care only under the circumstances. If it was practicable 
 in a business sense for the defendant to have removed the rock with- 
 out blasting, although at a somewhat increased cost, the defendant 
 would, we think, in view of the situation, and especially after having 
 been informed of the injury that was being done, have been bound to 
 resort to some other method. * * * 'x^he plaintiff, however, on 
 this record, is precluded from claiming that the judgment may be 
 sustained because of negligence in the mode of blasting. It must be 
 assumed from concessions made on the trial and from the rule of 
 law laid down by the court, that blasting was the only mode of re- 
 moving the rock practically available, that it was conducted with due 
 care, and that it was necessary to enable the defendant to conform the 
 roadbed to the established grade. * * * 
 
 The rule announced by the trial judge, that the use, by an owner 
 of property, of explosives in excavating his land, is at his peril and 
 imposes liability for any injury caused thereby to adjacent property 
 irrespective of negligence, is far reaching. It would constitute, if 
 sustained, a serious restriction upon the use of property, and in many 
 cases greatly impair its value. The situation in the city of New York 
 furnishes an apt illustration. The rocky surface of the upper part of 
 Manhattan Island makes blasting necessary in the work of excavation, 
 and, imless permitted, the value of lots, especially for business uses, 
 would be seriously affected. May the man who has first built a store 
 or warehouse or dwelling on his lot and has blasted the rock for a 
 basement or cellar, prevent his neighbor from doing the same thing 
 when he comes to build on his lot adjoining, on the ground that by 
 so doing his own structure will be injured? Such a rule would enable 
 the first occupant to control the uses of the adjoining property, to 
 the serious injury of the owner, and prevent or tend to prevent the
 
 Ch. 1) TRESPASSES 41 
 
 improvement of property. The first occupant in building on his lot 
 exercised an undoubted legal right. But his prior occupation deprived 
 his neighbor of no legal right in his property. The first occupant ac- 
 quires no right to exclude an adjoining proprietor from the free use 
 of his land, nor to use his own land to the injury of his neighbor 
 subsequently coming there. Piatt v. Johnson, 15 Johns. 213, 8 Am. 
 Dec. 233; Thurston v. Hancock, 12 Mass. 220; Tipping v. St. Helen's 
 Smelting Co., L. R. (1 Ch. App.) 66; Campbell v. Seaman, 63 N. Y. 
 568, 20 Am. Rep. 567. The fact of proximity imposes an obligation 
 of care, so that one engaged in improving his own lot shall do no 
 unnecessary damage to his neighbor's dwelling, but it cannot, we 
 think, exclude the former from employing the necessary and usual 
 means to adapt his lot to any lawful use, although the means used 
 may endanger the house of his neighbor. 
 
 We have found no case directly in point upon the interesting and 
 important practical question involved in this appeal. It was held in 
 the leading case of Hay v. Cohoes Co., 2 N. Y. 159, 51 Am. Dec. 279, 
 that the right of property did not justify the owner of land in com- 
 mitting a trespass on the land of his neighbor by casting rocks there- 
 on in blasting for a canal on his own land for the use of his mill, 
 although he exercised all due care in executing the work. In that 
 case there was a physical invasion by the defendant of the land of the 
 plaintifif. This the court held could not be justified by any considera- 
 tion of convenience or necessity connected with the work in which 
 the defendant was engaged. In the conflict of rights the court con- 
 sidered that public policy required that the right of the defendant 
 to dig the canal on his own land must yield to the superior right of 
 the plaintiff to be protected against an invasion of his possession by 
 the act of the defendant. * * * 
 
 Many of the cases cited by the counsel are cases of the permanent 
 appropriation of property, for damages, or noxious uses causing dam- 
 age. The distinction between such cases and those where the injury 
 arises from acts done in the necessary adjustment of property for a 
 lawful use by means necessary, and not unusual, but involving damage 
 to adjacent property, has been adverted to. We recognize the difficulty 
 of formulating a general rule regulating the rights of adjacent land- 
 owners in the use of their property, and we realize how narrow the 
 margin is which separates this from some decided cases. In Marvin v. 
 Brewster Iron Co., 55 N. Y. 557, the opinion of the learned judge who 
 wrote in that case sustains the conclusion we have reached in this case. 
 But the point was not necessarily involved, since it was held that the 
 defendant there had acquired by grant the right to employ blasting in 
 removing the mineral, and that the plaintiff, a subsequent grantee 
 of the surface, could not complain of injury to his house therefrom, 
 in the absence of negligence on the part of the defendant in conduct- 
 ing the work. Judge Folger, in that case, said : "Whatever it is 
 necessary for him [defendant] to do for the profitable and beneficial
 
 42 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 enjoyment of his own possession, and whicli he may do with no ill 
 effect to the adjacent surface in its natural state, that he may do, 
 though it harm erections lately put there." If the learned judge in- 
 tended to lay down the rule that the owner of land may do anything 
 on his own land which would do no injury to the adjacent property if 
 it had remained in its natural state, the proposition is probably too 
 broad. One may do in a barren waste many things which he could 
 not lawfully do in or near an inhabited town. 
 
 But the defendant here was engaged in a lawful act. It was done 
 on its own land, to fit it for a lawful business. It was not an act 
 which, under all circumstances, would produce injury to his neighbor, 
 as is shown by the fact that other buildings near by were not injured. 
 The immediate act was confined to its own land ; but the blasts, by 
 setting the air in motion, or in some other unexplained way, caused 
 an injury to the plaintiff's house. The lot of the defendant could not 
 be used for its roadbed until it was excavated and graded. It was to 
 be devoted to a common use; that is, to a business use. The blasting 
 was necessary, was carefully done, and the injury was consequential. 
 There was no technical trespass. Under these circumstances, we think, 
 the plaintiff has no legal ground of complaint. The protection of prop- 
 erty is doubtless one of the great reasons for government. But it is 
 equal protection to all which the law seeks to secure. The rule gov- 
 erning the rights of adjacent landowners in the use of their property 
 seeks an adjustment of conflicting interests through a reconciliation 
 by compromise, each surrendering something of his absolute freedom 
 so that both may live. To exclude the defendant from blasting to 
 adapt its lot to the contemplated uses, at the instance of the plaintiff, 
 would not be a compromise between conflicting rights, but an extin- 
 guishment of the right of the one for the benefit of the other. This 
 sacrifice, we think, the law does not exact. Public policy is sustained 
 by the building up of towns and cities and the improvement of prop- 
 erty. Any unnecessary restraint on freedom of action of a property 
 owner hinders this. The law is interested, also, in the preservation 
 of property and property rights from injury. Will it, in this case, 
 protect the plaintiff's house by depriving the defendant of his right to 
 adapt his property to a lawful use, through means necessary, usual, 
 and generally harmless? We think not. 
 
 The judgment should be reversed, and a new trial ordered, with 
 costs to abide the event. All concur. 
 
 Judgment reversed. ^^ 
 
 J 3 Accord: Simon v. Henry (1898) 02 N. J. Law, 486, 41 Atl. 002: "The 
 temporary use of explosives in tlie blasting of rock, provided reasonable care 
 be exorci.^od, is lawful, and damage rosulliiig from concussion thereby pro- 
 duced is damnum absque injuria." And st>e Derrick v. Kelly (1!)1()) l.'UJ App. 
 Div. 4.'}3, 120 N. Y. iSupp. !)'.)0 (D. is blasting rock on his own property, with- 
 out negligence. The concussion of the blast breaks a water main under the 
 sidewalk. The water floods P.'s cellar) ; Bleak v. Runde (1912) 78 Misc. Rep.
 
 Ch. 1) TRESPASSES 43 
 
 CLISSOLD V. CRATCHLEY and RICHARDS. f'''^^ 
 
 (High Court of Justice, King's Bench Division. [1910] 1 K. B. 374.) 
 
 In an earlier action by the plaintiff, against Mrs. Cratchley, the 
 Court had ordered Clissold to pay costs amounting to 127 . 12s. 4d. 
 This order was equivalent to a judgment. ]\Irs. Cratchley's solicitor, 
 Richards, who had an office in London with a branch office in Glouces- 
 tershire, wrote from his London office to plaintiff's agents in London 
 demanding payment by 11 A. M. of December 16. At 3:45 P. M. 
 of that day, thinking that payment had not been made, Richards took 
 out a writ of fi. fa. in London. This writ was sent to the sheriff of 
 Gloucestershire, where Clissold resided, and an execution was there 
 levied upon personal property belonging to Clissold, on December 17. 
 About noon of December 16. Clissold had paid the full amount of 
 the costs to Richard's agent in Gloucestershire, and taken a receipt; 
 and this agent had at least implied authority to receive payment and 
 give a receipt. He did not, however, notify Richards of the pay- 
 ment until after the levy of the execution. Richards then telegraphed 
 
 .358, 138 N. Y. Supp. 413 fP.'s damage was caused by D.'s hammering on the 
 joists of his adjoining house. "In the absence of evidence that this hammer- 
 ing was excessive, there can be no recovery for this damage. The defendant 
 has a right to alter her house if she did so without negligence." Per Leh- 
 man, J.). 
 
 On the application of the principle of Booth v. Rome R. R'. Co., see, also, 
 French v. Vix (1S94) 143 N. Y. 90, 93, 37 N. E. 612; Holland House v. Baird 
 (1901) 169 N. Y. 136, 140, 62 N. E. 149 ; Page v. Dempsey (1906) 184 N. Y. 249, 
 251, 77 N. E. 11; Dec. Dig., Key No., "Explosives," § 12; "Adjoining Land- 
 owners," § 8 ; 19 Cyc. 7, S, note 32. 
 
 But in some cases the historic reason for the distinction taken, because of 
 the technical trespass, in Hay v. Cohoes Co. and Booth v. Railway Co. is 
 disregarded. Thus, it is remarlied, per Holloway, J., in Longtin v. Persell 
 (l[i04) 30 Mont. 306, 76 Pac. 699, 65 L. R. A. 655, 104 Am. St. Rep. 723, 2 Ann. 
 Cas. 198: "If the damages to plaintiffs property had been caused by frag- 
 ments of rock thro-mi upon his property or against his dwelling house by the 
 blasting which defendants were doing, the authorities are practically unani- 
 mous in holding that the defendants would be liable even though they exer- 
 cised reasonable care in their operations. Cooley on Torts, 332. We can see 
 no reason whatever for adopting that view, and at the same time holding 
 that they are not liable for damages occasioned by the vibrations of the 
 ground or the concussion of the air. The agency employed in either case 
 is the same, and tlie danger as imminent in one case as in the other." And 
 see Hickev v. McCabe (1910) 30 R. I. 346, 75 Atl. 404, 27 L. R. A. (N. S.) 425, 
 19 Ann. Cas. 783 ; Patrick v. Smith (1913) 75 Wash. 407, 134 Pac. 1076, 48 L. 
 li. A. (X. S.) 740; 10 Columbia Law Rev. 465, 27 Harvard Law Rev. 188. 
 The result is either to widen our inherited doctrine of trespass, imposing a 
 civil liability irrespective of the question of blameworthiness, or to bring the 
 concussion of the air, through the defendant's intentional act, into the his- 
 toric class of acts vi et armis. "Probably the reason for the distinction is 
 that the courts have felt them.selves fettered by precedent in the case of the 
 technical trespass, and yet have been unwilling to extend the doctrine of the 
 vibration cases." 27 Harvard Law Rev. 189. 
 
 For cases developing the doctrine, see Key No., Dec. Dig., "Adjoining Land- 
 owners," § 8; and see 19 Cyc. 8, note 32.
 
 44 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 the sheriff to withdraw from possession immediately, and this was ac- 
 cordingly done.^* 
 
 Darling, J. (after stating the facts). Upon these facts an action 
 is brought by the plaintiff against the two defendants, and it is con- 
 tended that they are liable inasmuch as the debt was paid before the 
 writ of fi. fa. was issued, and that therefore the writ was irregular 
 and void. Many authorities have been referred to which seem to 
 me to establish this, that an action on the case will not lie against a 
 person suing out a writ after the debt has been paid unless malice on 
 his part is proved. * * * ^° 
 
 It is contended, however, that the plaintiff is entitled to maintain an 
 action of trespass. That contention is based upon this, that Richards 
 indorsed upon the writ of fi. fa. a direction to the sheriff to levy the 
 amount specified therein as being due and payable, whereas in fact 
 it was not then due and payable, and that such direction to the sheriff' 
 to levy execution when no debt existed made Richards, who gave the 
 direction, and his client trespassers. I was at first rather captivated 
 by that argument, and thought that the plaintiff might perhaps main- 
 tain an action of trespass, but I have upon further reflection come to 
 the conclusion that, before he can do so, he must distinguish the pres- 
 ent case from Gibson v. Chaters.^*^ I do not think that he has suc- 
 ceeded in distinguishing that case. It was said that that case was dis- 
 tinguishable by reason of the fact that the affidavit of the defendant 
 upon which the writ was issued was made before the debt was paid. 
 That is true, but the affidavit was not the ground of the action. The 
 ground of the action was this, that the affidavit having been made 
 by the defendant while the debt was unpaid and a writ of capias 
 having been issued upon it, inasmuch as that writ could not be ex- 
 ecuted, afterwards when the debt had been paid an alias writ was 
 taken out by the defendant's attorney grounded upon the former af- 
 fidavit, and the plaintiff was arrested under this latter writ. It was 
 not the making of the affidavit, but the issue of the alias writ, which 
 caused the plaintiff to be arrested. In the present case Richards has 
 done nothing more than was done by the defendant's attorney in 
 that case. Richards by mistake, thinking that t.he debt of £27 . 12s. 
 4d. had not been paid, sued out a writ of fi. fa., indorsing upon the 
 writ a statement that the debt was due and payable in order to en- 
 title him to have the writ issued. So too the attorney in the case 
 of Gibson v. Chaters could not have taken out the alias writ unless 
 he had stated that the debt was unpaid. Therefore, unless Gibson 
 was entitled to maintain an action of trespass against Chaters, this 
 action will not lie against the present defendants. It was not sug- 
 
 14 The statement of facts has been abridged; the arguments of counsel are 
 omitted. 
 
 IB See infra, "Malicious Prosecution." 
 
 10 Gibson v. Chaters (ISOO) 2 Bos. & P. 120, 126 Reprint, 1196. See infra, 
 "Malicious Prosecution."
 
 Ch. 1) TRESPASSES 45 
 
 gested in Gibson v. Chaters that an action of trespass would lie if 
 the action on the case was not maintainable. Therefore I am of opin- 
 ion that that case is not distinguishable and that the plaintiff cannot 
 maintain this action for trespass. * * * i^ 
 
 CLISSOLD V. CRATCHLEY and RICHARDS. ^'">^^-^ 
 (Court of Appeal [1910]. 2 K. B. 244.) 
 
 The Divisional Court (Darling and Phillimore, JJ.) having held that 
 the defendants were not liable in trespass, the plaintiff appealed.^** 
 
 Vaughan Williams, L. J. I am of opinion that this appeal must 
 be allowed, although I do not think that the principles of law upon 
 which I base my judgment are in any way contravened by the judg- 
 ments delivered in the Divisional Court. When those judgments are 
 read, it is clear that both of them recognize the distinction between 
 an action on the case and an action of trespass ; they recognize that 
 in an action on the case for maliciously suing out process the allega- 
 tion of malice is one of fact which must be proved by the plaintiff, 
 and that, if it is not proved, the action cannot be supported. They 
 further recognize that, if an action for maliciously suing out process 
 is not an action on the case but an action of trespass, malice is in no 
 sense essential to its maintenance. I am not sure how it came to pass 
 that, recognizing these distinctions, the judges in the Divisional Court 
 decided the present case on the basis that this action could not succeed 
 without proof of malice. The plaint in the action shews that there 
 were alternative causes of action alleged : the action was in part for 
 maliciously issuing process, and alternatively for trespass : the coun- 
 ty court judge in terms recognized this fact in his judgment, which 
 was delivered as a judgment in an action of trespass. Arriving, as 
 I do, at the conclusion that this was an action of trespass, and that 
 it was totally unnecessary for the plaintiff to give evidence of malice, 
 it is necessary to see whether anything can be relied on as shewing 
 that a judgment in trespass was wrong. I can see nothing at all to 
 warrant such a conclusion. It is suggested that, when execution was 
 issued, the judgment against the plaintiff was still in force, notwith- 
 standing that the total amount of debt and costs ordered by it to be 
 paid by the plaintiff had in fact been paid, and a receipt had been 
 given for it by a person authorized to receive the money and give 
 the receipt. It is said that, notwithstanding that fact, there was a 
 still existing judgment which would support the writ of execution, 
 and which was still in force. But common sense, wholly apart from 
 
 17 Part of the opinion of Darling, J., and the concurring opinion of Philli- 
 more, J., are omitted. 
 
 18 The statement of facts, the arguments of counsel, and the concurring 
 opinion of Farwell, J., are omitted.
 
 46 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 authority, tells one that, when the total amount has been paid which 
 is ordered by a judgment to be paid, the judgment ought no longer to 
 be of any force or effect. But, as it has been argued that a writ of 
 execution is good so long as the judgment under which the moneys 
 have been paid has not in law been set aside, it is convenient to shew 
 the authority for the proposition that, when the total amount of a 
 judgment debt has been paid, the judgment ceases to be of any avail. 
 In Tebbutt v. Holt (1844) 1 Car. & K. 280, at p. 289, Parke, B., said, 
 "The law also is that, if the debt and costs are paid or satisfied, the 
 judgment is at an end." This judgment is at an end. And in Bullen 
 and Leake's Precedents (3d Ed.) at p. 353, I find this statement : "An 
 action will not lie for an arrest on final process upon a subsisting un- 
 satisfied judgment (Blanchenay v. Burt [1843] 4 O. B. 707; Huffer 
 V. Allen L. R. 2 Ex. 15, 36 L. J. Ex. 17); but if the party arrested 
 can get the judgment set aside for irregularity or on any other ground, 
 or can shew that the judgment was satisfied by payment or otherwise 
 before the arrest, he may then maintain an action : the arrest in such 
 case would. in general support an action of trespass." Under the cir- 
 cumstances it seems unnecessary to add anything. The cases on which 
 reliance has been placed on behalf of the defendants are all instances 
 of actions on the case for maliciously issuing process; not a single 
 authority has been cited to justify the proposition that a satisfied judg- 
 ment is nevertheless still an existing judgment for the purpose of is- 
 suing a writ of execution. If the judgment was not an existing judg- 
 ment, it is manifest that the writ of execution issued under it was 
 void ab initio, and that an entry has been made upon the plaintiff's 
 premises under a writ void ab initio. The defendants are consequent- 
 ly liable in an action of trespass. 
 
 FivETcHKR MouLTON, L. J. I am of the same opinion. The acts 
 complained of clearly constituted a trespass, and it was for the de- 
 fendants to justify their action. The sole defence relied on is that 
 there was an order for payment of costs which was equivalent to a 
 judgment, and that a writ of execution was sued out, under which 
 the defendants acted. The plaintiff replies that (as is now admitted 
 to be the case) prior to the suing out of the writ the order had been 
 obeyed. I am satisfied that in this state of things the order was dead 
 for all purposes, and that the suing out of a writ of execution un- 
 der an order which had already been obeyed was an act void ab initio 
 and could justify nothing. This is therefore, in my opinion, an un- 
 defended action of trespass. The judges in the Divisional Court did 
 not, I think, realize that at the date of the decision of Gibson v. Cha- 
 ters ^® the form of an action was of prime importance in the eyes of 
 the Court, nor did they realize how great would be considered the 
 difference between actions for maliciously holding to bail or actions 
 on the case in which malice is alleged, on the one hand, and action;? 
 
 19 1800, 2 Bos. & P. 129, 126 Reprint, 1196.
 
 Ch. 1) TRESPASSES 47 
 
 of trespass, on the other. No case, however, was cited either in the 
 Divisional Court or before us which in any way contravenes the prop- 
 osition that a writ of execution upon a satisfied judgment is null and 
 void. 
 
 Appeal allowed. 
 
 SECTION 2.— ELEMENTS OF A PRIMA FACIE CAUSE IN 
 
 TRESPASS 
 
 I. In Trespass to the; Person 
 (A) In Assault 
 
 SMITH V. NEWSAM. 
 
 (Court of King's Bench, 1674. 3 Keble, 283, 84 Reprint, 722.) 
 
 In trespass of assault and battery, on verdict of the assault, and not 
 guilty of the battery, being only of a woman's shaking a sword against 
 the plaintiff in a cutlers shop, being on the other side of the street. 
 
 Hale, Chief Justice, certified the assault well proved: and now 
 Saunders prayed no more costs than damages, which was a noble ; 
 and per curiam it was granted : and Hale, Chief Justice, said he cer- 
 tified industriously, thinking this not within the statute unless the bat- 
 tery had been found. -° 
 
 TOMBS v. PAINTER. 
 
 (Court of King's Bench, 1810. 13 East, 1, 104 Reprint, 265.) 
 
 Debt on bond, in the penalty of ilOO., conditioned not to assault, 
 molest, or injure the person of the plaintifif wilfully or designedly in 
 anywise howsoever. Plea, that the defendant had not done so. Rep- 
 lication, that the defendant on such a day, assaulted, molested, and 
 injured the person of the plaintiff wilfully and designedly, by then 
 and there with force and arms wilfully and designedly beating, bruis- 
 ing, wounding, and otherwise ill-treating him. Rejoinder, that the de- 
 
 20 The statute referred to is the act of 1670 (22-23 Car. II, c. 9), which pro- 
 vided that •'in all actions of ti'espass, assault and battery, and other personal 
 actions," if the jury found the damages to be under 40s., the plaintiff should 
 have no more costs than damages, unless the judge "shall find and certify 
 under his hand upon the back of the record that an assault and battery was 
 sufhciently i)roved by the plaintiff against the defeudant, or that the free- 
 hold or title of the land mentioned in the plaintiff's declaration was chiefly 
 in question." Tliat the question was a troublesome one, see Newsam v. 
 Smith (1674) 3 Keble, 292; Smith v. Nusam (1674) 3 Keble, 303.
 
 48 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 fendant did not assault, molest, or injure the person of the plaintiff, 
 wilfully and designedly, modo et forma ; and concluding to the country. 
 
 At the trial, the evidence was that these parties being in the same 
 public-house in different parts of the room, the defendant jumped up 
 from his seat, with his fist clenched, as if to strike the plaintiff', but 
 was pulled back to his seat by another person, and did not get within 
 reach of the plaintiff"; but he abused him and swore at him, and 
 drank the beer out of his cup. This, it w^as contended, did not sup- 
 port the issue of the plaintiff, which was that the defendant assaulted, 
 molested, and injured the plaintiff's person by beating, etc., "and oth- 
 erwise ill-treating"' him. But the learned Judge thought that the 
 evidence satisfied the latter w^ords, and the plaintiff took a verdict 
 with one shilling damages for the detention of the debt and one shil- 
 ling damages upon the breach assigned. And now. 
 
 Lens, Serjt., moved, by leave, to set aside the verdict and enter a 
 nonsuit; and, first, renewed the objection, that the evidence did not 
 sustain the issue, which was confined to an ill treatment of the plain- 
 tiff''s person. 
 
 Lord Elle;nborough, C. J. The clenching his fist at the plaintiff 
 was an assault, and an act of personal offence. * * * 
 
 Rule refused. 
 
 LEWIS v. HOOVER. 
 
 (Supreme Court of Indiana, 1834. 3 Blackf. 407.) 
 
 Trespass, assault and battery. Plea, not guilty. Verdict and judg- 
 ment for the defendant. The plaintiff asked the Court to charge 
 the jury that if they thought from the evidence that the defendant 
 struck at the plaintiff with a stick, in a violent and angry manner, 
 within striking distance of him, they ought to find for the plaintiff. 
 This charge the Court gave, but added, as an additional charge, that 
 if no damage was proved to have resulted from the said assault, they 
 ought to find for the defendant. To this additional and latter charge 
 the plaintiff excepted, and prosecuted a writ of error. 
 
 Stevens, J. The only question to be determined is, whether that 
 latter and additional charge of the Court was correct? An assault 
 is an attempt or offer with violence to do a corporal hurt to another, 
 as if one lift up his cane or fist at another in a threatening manner, 
 or strike at him with a stick, his fist, or any weapon, within striking 
 distance, but miss him. This is called an unlawful setting upon one's 
 person, and is an inchoate violence for which the party assaulted may 
 have redress by an action of trespass vi et armis, and shall recover 
 damages as a compensation, although no actual suft'cring or injury 
 is proved. The damages are not assessed for the mere corporal in- 
 jury or pecuniary loss, but for the malicious and insulting conduct 
 of the defendant. 3 Bl. Com. 120; 1 Bac. Abr. 242; 1 Saund. on
 
 Ch. 1) TRESPASSES 49 
 
 PI. & Ev. 103, 104. From this it appears that the above additional and 
 latter charge of the Circuit Court to the jury is incorrect, and should 
 not have been given. 
 
 Per Curiam. The judgment is reversed, and the verdict set aside, 
 with costs. Cause remanded, etc. 
 
 TUBERVILLE v. SAVAGE. 
 
 (Court of King's Bench, 1669. 1 Mod. 3, 86 Reprint, 684.) 
 
 Action of assault, battery, and wounding. The evidence to prove 
 provocation was, that the plaintiff put his hand upon his sword and 
 said, ''If it were not assize-time, I would not take such language from 
 you." The question was. If that were an assault? 
 
 The Court agreed that it was not ; for the declaration of the plain- 
 tiff was, that he would not assault him, the Judges being in town; 
 and the intention as well as the act makes an assault. Therefore if 
 one strike another upon the hand, or arm, or breast in discourse, it is 
 no assault, there being no intention to assault; but if one, intending 
 to assault, strike at another and miss him, this is an assault: so if 
 he hold up his hand against another in a threatening manner and say 
 nothing, it is an assault. 
 
 In the principal case the plaintiff had judgment.^^ 
 
 UNITED STATES v. MYERS. 
 
 (Circuit Court, District of Columbia, 1806. 1 Crauch, C. C. 310, 
 
 27 Fed. Cas. 43.) 
 
 Presentment, for an assault on Jane McGratb- The evidence was 
 that the defendant (Samuel Myers) doubled his fist and ran it towards 
 the witness, saying, "If you say so again, I will knock you down." 
 
 Mr. Key, for defendant, contended that it was not an assault. The 
 words explain the act, and show the intention not to be to commit a 
 battery. It was like the case of the man putting his hand on his 
 sword, and saying, "If it were not term time or assizes, I would kill 
 you," etc. ; and he moved the court to instruct the jury that it was 
 no assault. 
 
 The Court (nem. con.) refused to give the instruction. 
 
 Verdict, "Guilty." Fined five dollars.-^ 
 
 21 Compare Keep v. Quallman (1887) 68 Wis. 451, 32 N. W. 233, the facts of 
 which are given infra, "Defence of the Person." 
 
 22 Accord : United States v. Richardson (1837) 5 Cranch, C. C. 348, 27 Fed. 
 Cas. 798 (D. raised a club over the head of a woman, within striking distance, 
 and threatened to strike her if she opened her mouth) ; State v. Morgan 
 (1842) 3 Ired. (25 N. C.) 186, 38 Am. Dec. 714 (D., stepping within reach of P. 
 
 Hepb. Torts — 1
 
 50 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 and holding an ax up in a position to strike, said to P.: "Give up the gun, or 
 I'll split you down") ; Keefe v. State (1857) 19 Ark. 190 (K. drew a pistol, 
 cocked it, pointed it towards the breast of F., and said: "If you do not pay 
 me my money I will have your life"'). 
 
 On the reason for the rule, see the remarks of Gaston, J., in State v. Mor- 
 gan, ante: "There are several ancient cases in which it was held, that an 
 as.sault might be committed by threats of future violence; but it has long 
 been settled, that words alone can not constitute an assault. They may en- 
 danger the public peace, but do not break it. There is no assault, unless 
 there be some act, amounting to an attempt or offer to commit personal vio- 
 lence. The instances usually given of such attempts or offers to do wrong 
 to the person of another, are 'by the striking at him with or without a weap- 
 on, or presenting a gun at him within a distance which the gun will carry, 
 or pointing a pitchfork at him standing within the reach of it, or by holding 
 up one's fist at him in an angry, threatening manner.' 1 Hawk., c. 15. The 
 law regards these acts as breaches of the peace, because they directly invade 
 that personal security, which the law guarantees to every citizen. They do 
 not excite an apprehension that his person may be attacked on a future occa- 
 sion, and thus authorize a resort to cautionary remedies against it; but they 
 are the beginnings of an attack, excite terror of immediate personal harm 
 or disgrace, and justify a resort to actual violence to repel the impending 
 injury and insult. But even acts, which prima facie and unexplained are 
 undoubtedly assaults, like other acts which are not unequivocal in their char- 
 acter, may be shovpn to be in truth different from what they purport to be; 
 that they are not attempts or offers to do harm, but merely angry gestures 
 without any accompanying purpose of mischief. The attending circumstances 
 may plainlj' show this, and, among other circumstances, the declarations of 
 the party at the time, inasmuch as such declarations are ordinarily indica- 
 tive of the party's purpose, are very proper to be considered and weighed. 
 The ordinary illustration of the doctrine, that a seeming assault may be 
 explained away by the declarations of the supposed assailant, is the very 
 familiar case, where a man laid his hand on his sword and said to the per- 
 son, with whom he was quarreling : 'If it were not assize-time, I would not 
 take such language from you.' There is also an illustration of it in the case 
 of the State v. Crow (1841) 23 N. C. 875, where the defendant, when he 
 raised the whip, used the words: 'If you were not an old man, I would knock 
 you down.' In both it was held to be a fair subject of inquiry, whether, at the 
 time these acts were done, there was a present purpose of doing harm, and 
 that, if there was not, the acts did not amount to an assault. But these, and 
 all the cases within our recollection where this doctrine has been held, were 
 cases, in which there was a declared intent not to do harm at the time. The 
 present case is one of a very different character. The act was not only ap- 
 parently a most dangerous assault, but accompanied with a present purpose 
 to do great bodily harm ; and tlie only declaration, by which its character is 
 attempted to be changed, is, that the assailant was not determined to execute 
 his savage purpose unconditionally and without a moment's delay. He had 
 commenced the attack and raised the deadly weapon and was in the attitude 
 to strike, but suspended the blow, to afford the object of his vengeance an 
 opportunity to buy his safety, by compliance with the defendant's terms. To 
 hold that such an act, under such circumstances, was not an offer of vio- 
 lence — not an attempt to commit violence — would be, we think, to outrage 
 principle and manifest an utter want of that solicitude for the preservation 
 of peace which characterizes our law, and which should animate its admin- 
 istrators. To every purpose — both in fact and in law — the attack on the 
 prosecutor was begun; and in the pause, which intervened before its con- 
 summation, most hai)pily for botli i)arties an arrangement was made, which 
 prevented the probably fatal result. Tut this pause — though intentional, and 
 announced when the attack began — does not prevent that attack from being 
 an offer or attempt to strike. If a rullian were to level his rifle at a traveler, 
 and announce to him that he might have fifteen minutes to make his peace 
 with his God — and the unfortunate man should save his life by prayers, b.v 
 remonstrance, by money, or by any other means before the expiration of 
 that time, could it be pretended that there had been no attempt nor offer to 
 hurt him, because the intent was not to kill instantaneously, and therefore
 
 Ch. 1) TRESPASSES 51 
 
 BEACH V. HANCOCK. 
 
 (Supreme Court of Judicature of New Hampshire, 1853. 27 N. H. 223, 
 
 59 Am. Dee. 373.) 
 
 Trespass for an assault. At the trial it appeared that the plain- 
 tiff and the defendant were engaged in an angry altercation, when the 
 defendant stepped into his office and brought forth a gun, which he 
 pointed in an excited and threatening manner at the plaintiff, who 
 was standing three or four rods distant. The gun was not loaded, but 
 this fact was not known to the plaintiff. The evidence tended to 
 show that the defendant snapped the gun twice at the plaintiff. The 
 court ruled that pointing a gun, in an angry and threatening manner, 
 at a person three or four rods distant, who was ignorant whether the 
 gun was loaded or not, was an assault, though it should appear that 
 the gun was not loaded, and that it made no difference whether the 
 gun was snapped or not. The court further instructed the jury that, 
 in assessing the damages, it was their right and duty to consider the 
 effect which the finding of light or trivial damages would have to en- 
 courage disturbances and breaches of the peace. Defendant excepted 
 to both of these instructions. 
 
 Gilchrist, C. J. * * * One of the most important objects 
 to be attained by the enactment of laws and the institutions of civil- 
 ized society is, that each of us shall feel secure against unlawful as- 
 saults. Without such security, society loses most of its value. Peace 
 and order and domestic happiness, inexpressibly more precious than 
 mere forms of government, cannot be enjoyed without the sense of 
 perfect security. We have a right to live in society without being put 
 in fear of personal harm. But it must be a reasonable fear of which 
 we complain. And surely it is not unreasonable for a person to en- 
 tertain a fear of personal injury wlien a pistol is pointed at him in a 
 threatening manner, when, for aught he knows, it may be loaded, and 
 may occasion his immediate death. The business of the world could 
 not be carried on with comfort if such things could be done with 
 impunity. 
 
 We think the defendant guilty of an assault, and we perceive no 
 reason for taking any exception to the remarks of the court. Finding 
 trivial damages for breaches of the peace, damages incommensurate 
 
 did not accompany the act? Will it be doubted, if a bully should present his 
 pistol at a citizen and order him, under pain of death, not to wallv on the 
 same side of the street with him, wliether there was an otter of violence, be- 
 cause tlie purpose to liill was not absolute but conditional mei'oly? Whether 
 the act is done in part execution of a purpose of violence — whether that pur- 
 pose be al)solute or provisional — makes no ditference as respects the question, 
 whether the act be an assault. In both cases the assailant eipially violates 
 the public peace. In both he breaks down the barrier which the law has 
 erected for the security of the citisceu. In the former he sets up none in its 
 place. In the latter, he substitutes for It the protection of his grace and 
 favor."
 
 52 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 with the injury sustained, would certainly lead the ill disposed to 
 consider an assault as a thing that might be committed with impunity. 
 But at all events, it was proper for the jury to consider whether such 
 a result would or would not be produced: Flanders v. Colby, 28 N. 
 H. 34. 
 
 Judgment on the verdict.^^ 
 
 WHITE V. SANDER (two cases). 
 (Supreme Judicial Court of Massachusetts, 1897. 168 Mass. 296, 47 N. E. 90.) 
 
 These were two actions of tort, one by Benjamin White, and the 
 other by Emma White, his wife, against »Sander, to recover damages 
 for personal injuries from fright caused by the defendant throwing a 
 stone into a room where the wife was. The jury returned a verdict 
 for the husband for $179.30 and for the wife for $847.47, and the de- 
 fendant excepted. 
 
 Allen, J. There was no evidence that the defendant had any 
 intention to injure the female plaintiff, or that he was aware of her 
 condition of health. The house did not belong to her, but to her 
 father, with whom the defendant had an altercation. The defendant's 
 declared purpose was to injure the house, and he threw a large stone 
 against it, in her presence. She then ran into the front room, with 
 her little child, whereupon a large stone was willfully thrown by the 
 defendant, which passed through one of the blinds, all of the blinds 
 upon the front windows being closed. This greatly frightened her, 
 though she was not struck or touched. We do not understand by the 
 bill of exceptions that the defendant knew that she was in that room, 
 or that he had any purpose either to hit or to frighten her, or that it 
 was designed to present to us a case of an intentional injury to her 
 or to her property. These elements being absent, the defendant w^as 
 not responsible in damages for her fright or the consequent injury 
 to her health. Spade v. Railroad Co., 168 Mass. 285, 47 N. E. 88. 
 38 L. R. A. 512, 60 Am. St. Rep. 393. Under the order taking off the 
 default, the defendant was responsible for nominal damages. Ex- 
 ceptions sustained. 
 
 NELSON v. CRAWFORD. 
 
 (Supreme Court of Michigan, 1899. 122 Mich. 466, 81 N. W. 335, 
 
 80 Am. St. Rep. 577.) 
 
 Action for personal injuries by Sarah Nelson against Robert Craw- 
 ford. From a judgment for defendant, plaintiff brings error. 
 
 Plaintiff and her husband resided on a farm about 40 rods from the 
 residence of defendant. One evening defendant, dressed in woman's 
 
 2 3 The statement of the case is abridged. Only so much of the opinion is 
 given as relates to the one point.
 
 Ch. 1) TRESPASSES 53 
 
 clothes, navy blue bicycle skirt, light waist, sailor hat, with flowers 
 on it, and thin, black face veil, took a parasol, and went to her house. 
 He had been a frequent visitor there and was accustomed to play with 
 her children. Although for many years he had been adjudged in- 
 sane or incompetent, his mialady was of a harmless character, and it 
 had never been considered necessary to restrain him. There is no 
 testimony to show that he acted from malicious motives, or with any 
 intent to do injury to plaintiff or any one. He said to others, shortly 
 afterwards, "I did it to have a little fun; to see if they had any 
 nerve." As he approached the back of the house, plaintiff stepped to 
 the back door, and saw defendant standing three or four rods away. 
 She spoke to him, but he made no reply, * * * only "mumbled." 
 She testified that she was frightened and ran into the house, and into 
 her bedroom, where her husband was in bed ; that she called to her 
 husband to get up, telling that "there is something here ; I don't know 
 what it is;" that defendant followed her into the house, and to the 
 bedroom door; that her husband took up a stick of wood, raised it, 
 and told defendant to get out of the house; that defendant then gave 
 his name ; that she was made ill by fright ; and that on October 22d, 
 42 days after the fright, she had a miscarriage, which she attributes 
 to the fright. The only demonstration he made was by tapping the 
 end of his parasol on the ground or floor. This suit is brought to 
 recover damages resulting from the fright. The court directed a ver- 
 dict for the defendant. 
 
 Grant, C. J. We think the court properly held that no violence 
 was offered or threatened, and therefore there was no assault.^* 
 
 24 Only so much of the case is given as relates to the one point. 
 
 In the ouiitted portion of the opinion, the court considers the question wheth- 
 er fright unaccompanied by pliysical injury is recognized by the law as a basis 
 for damages. The answer was in the negative. 
 
 Compare the query of Chief Justice Jervis, in Read v. Coker (1853) 13 C. B. 
 850, 854 : "If a man comes into a room, and lays his cane on the table, and 
 says to another, 'If you don't go out I will knock you on the head' would not 
 that be an assault?" And consider the answer of Sergeant Byles : "Clearly 
 not : it is a mere threat unaccompanied by any gesture or action towards car- 
 rying it into effect." 
 
 In Read v. Coker, the plaintiff was in the defendant's workshop and refused 
 to leave when ordered by the d-^fendant; thereupon the defendant and his serv- 
 ants surrounded the plaintiff, and tucking up their sleeves and aprons threat- 
 ened to break his neck if he did not go out; "fearing that the men would strike 
 him if he did not do so, the plaintiff went out." 
 
 Compare, also, Plenty v. Murphy (1901) 82 Minn. 268, 84 N. W. 1005 (The 
 defendant, a man 78 years of age, was the owner of tenements near the house 
 in which the plaintiff, a woman of 38 years, resided with her husband and 
 children. A pailful of banana peelings and other refuse had been emptied in 
 the yard of one of these tenements. Defendant went to the plaintiff's house, un- 
 ceremoniously entered the kitchen, where she was at work alone, demanded that 
 her boy. aged 5 years, remove this refuse, and notified her that if he again 
 found the boy in that yard he would "thrash" him. The plaintiff informed him 
 tliat the boy would do as requested. Defendant remained in the house about iO 
 minutes, talking in an excited and angry manner, shook his fist at plaintiff
 
 54 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 MITCHELL V. MITCHELL. 
 
 (Supreme Court of Minnesota, IS'JO. 45 Minn. 50, 47 N. W. 80S.) 
 
 GiLFiLLAN, C. J. But the general allegation that they "assaulted 
 her" standing alone would be sufficient. Whether they assaulted her 
 is, SO far as pleading is concerned, a conclusion of fact, or statement 
 of an ultimate fact, although it may have to be arrived at by apply- 
 ing rules of law to minor or proved facts or details of fact, just as, 
 for the purposes of pleading, title to real or personal property is or- 
 dinarily a pleadable fact, although to establish it may require the ap- 
 plication of rules of law to the proved facts. The general allegation 
 of an assault may, of course, be qualified by a specification of the acts 
 which it is claimed constituted the assault. One of the particulars 
 specified is that defendants shook their fists in plaintiff's face, accom- 
 panied with a threat to strike her. It is to be understood from this 
 that they shook their fists at her face in close proximity to it ; with- 
 in reach of it. That would constitute an assault.^ ^ 
 
 when within stril>:ing distance, raised his hand as if he would strilie her, and 
 she testified tliat she was afraid he would strike). 
 
 And see State v. Daniel (1904) 136 N. C. 571, 48 S. E. 544, 103 Am. St. Rep 
 970 : P., a colored man in a southern State, on a Sunday morning went tc 
 feed his hogs. As P. was leaving the pig pen, D., a white man, who with an- 
 other was near b.v, called to P. bidding him come. P., instead of returning, 
 said that he was in a hurry to go home and dress for church. Thereupon D. 
 responded : "You come here." P. replied, "Yes, boss-man, of course if you 
 order me to come, I'll come," and taking off his hat went to D., who cursed liim 
 and said, "Why can't you come when I call you." The trial court instructed 
 the jury that if D. cursed P. and ordered him to come to him, and P. obeyed 
 through fear, then D. was guilty of an assault. The defendant excepted. 
 
 2 5 "It is not necessary to aver in a complaint to recover damages for an al- 
 leged assault and battery, that the beating was unlawful and wrongful." Carey 
 V. Sheets (1S77) 60 Ind. 17. 
 
 An assault is an unlawful attempt, coupled with a present ability, to connuit 
 a violent injury upon the person of another. When it is charged that the de- 
 fendant assaulted and beat the plaintiff, the legal implication is that the act 
 was unlawful, and the burden of justifying his conduct is cast upon the defend- 
 ant. Benson v. Bacon (1884) 99 Ind. 156; 3 Works Pr. 28. 
 
 Compare Singer Sewing Machine Co. v. Phipps (1911) 49 Ind. App. 116, 94 
 N. E. 793. where a complaint alleging that the defendant "did wrongfully and 
 unlawfully make an assault on this i)]aiutiff" was met with the objection on 
 the part of the defendant that it stated a mere conclusion. 
 
 It has been the practice from an early day to plead an assault and a battery 
 together, and to permit a recovery on whichever cause is proven. "For every 
 battery includes an assault; therefore, if the assault be ill laid, and the bat- 
 tery good, it is sufficient." Jacob's Law Dictionary (1809) "Assault," 1-35. 
 
 See the declaratiou in Trespass for Assault and Battery in Whittier's Cases 
 In Common Law PI. 25. Compare the Statement of Claim for an assault in 
 Cunningham & Mattinson's Precedents under the Judicature Acts (1884) 1.'54 : 
 "The iilaintiff has suffered damage from personal injuries to the plaintiff, 
 caused by the defendant assaulting him on the 1st of May, 1882, and boating 
 him about the head and shoulders." And see the form of Petition recom- 
 mended by the Ohio Code Commissioners in 1853 for Assault and Battery : 
 "Plaintiff says that on * * * at * * * the defendant assaulted and 
 beat the plaintiff by which he says he is damaged to the amount of * * * 
 dollars, for which he asks judgment."
 
 Ch. 1) TRESPASSES 55 
 
 (B) In Battery 
 PURSELL V. HORN et ux. 
 
 (Court of Queeu's Bench, IS^S. 8 Add. & E. 602, 112 Reprint, 96G.) 
 
 Trespass. The declaration stated that the defendant Elizabeth as- 
 saulted the plaintiff, "and then cast and threw divers large quantities 
 of boiling water on the plaintiff, and then also wetted, damaged, and 
 spoiled the clothes and wearing apparel, to wit, one great coat, which 
 the plaintiff then wore:" by means of which he was hurt, scalded, 
 etc., and forced to expend money in endeavoring to cure himself. 
 Plea of not guilty, with a verdict for the plaintiff for one farthing 
 above his costs and 40s. costs. 
 
 On argument whether the case was within the statute of 22 & 
 23 Car. II., c. 9, which deprived of costs "in all actions of trespass, 
 assault and battery, and other personal actions," where the damages 
 were found below 40s. and the judge does not certify "that an as- 
 sault and battery was sufficiently proved." 
 
 Waddington, for the defendant, obtained a rule nisi for amending 
 the postea by substituting one farthing costs for 40s. 
 
 Humfrey, for the plaintiff, argued that this was not a case within 
 the statute, because no battery was alleged. It is laid down in Com. 
 Dig. Battery (C), that, "If a man strike at another, and do not touch 
 him, it is no battery, but it will be an assault." So, "If he throws 
 stones, water, or other liquor upon him." (Lord Denman, C. J. Is 
 it no battery, if a man throws a stone at another and breaks his arm? 
 The notion must have been that battery could not be committed ex- 
 cept with something that the party held in his hand at the time ; but 
 that cannot be maintained.) 
 
 Waddington, contra, argued that "the words 'upon him,' in Com. 
 Dig. Battery (C), must have been used by mistake." 
 
 Lord Di^nman, C. J. I think that a battery does not neces- 
 sarily mean something done cominus. But it must imply personal vio- 
 lence. * * * 
 
 Littlddale;, J. The argument for the plaintiff on the first point 
 would go the length of saying that to shoot at a person and hit him 
 would be no battery. Patte;son and Williams, J J., concurred. 
 
 Rule absolute.^® 
 
 26 The statement of facts has been abridf,'C(l, and only so much of the case is 
 given as relates to the one point. 
 
 Compare Smith v, N^wsam (1674) 3 Keble, 283, given ante, page 47, "As- 
 sault." 
 
 •c-^
 
 56 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 SCOTT, an Infant, by His Next Friend, v. SHEPHERD, an Infant, 
 
 by His Guardian. 
 
 (Court of Common Pleas, 1773. 3 Wils. 403, 95 Reprint, 1124.) 
 
 Trespass and assault for throwing a lighted squib against the plain- 
 tiff and striking him therewith on the face and so burning one of his 
 eyes that he lost the sight of it. 
 
 The defendant by his guardian pleaded not guilty, whereupon issue 
 being joined, this cause came on to be tried at the last Summer As- 
 sizes for the county of Somerset, before Mr. Justice Nares ; when 
 it appeared by the plaintift''s evidence that in the evening of the 28th 
 day of October 1770, at Milborne Port in the said county, it being 
 the day the fair was held there, the defendant threw a lighted serpent, 
 being a large squib, consisting of gunpowder and other combustible 
 materials, from the street into the market-house, which is a covered 
 building supported by arches, and inclosed at one end, but open at 
 the other end and on both sides, when a large concourse of people 
 were then assembled; and that the said lighted serpent or squib, so 
 thrown by the defendant, fell upon the standing there of one William 
 Yates, who was then exposing to sale gingerbread, cakes, pies and 
 other pastry wares upon his said standing; that one James Willis 
 instantly, and to prevent injury to himself and to the said wares of 
 the said William Yates, took the said lighted serpent or squib from 
 off the said standing, and then threw it across the said market-house, 
 when it fell upon another standing there, of one James Ryall, on 
 which he was also exposing the same sort of wares to sale ; that 
 the said James Ryall instantly, and to save himself and his goods 
 from being injured, took up the said lighted serpent or squib from 
 off the sar.l standing, and then threw it to another part of the said 
 market-house, and in so throwing it struck the plaintiff then in the 
 said market-house in the face therewith, and the said lighted serpent 
 or squib so striking against the plaintiff's face, and the combustible 
 matter therein then bursting put out one of the plaintiff's eyes. 
 
 Upon this evidence the jury found a verdict for the plaintiff with 
 ilOO. damages, subject to the opinion of this Court; whether upon 
 these facts this action is maintainable against the defendant. 
 
 Nares, j_ * * * j ani of the opinion that this action of tres- 
 pass vi et armis doth well lie against the defendant. * * * jj- 
 is objected that the plaintiff's eye was not put out by the immediate 
 act of the defendant but by the immediate act of James Ryall, and 
 therefore this action will not lie against the defendant, but would 
 well have laid against Ryall. 
 
 I answer, that the act of throwing the squib into the market place 
 was of a mischievous nature, and bespeaks a bad intention, and 
 whether the plaintiff's eye was put out mediately or immediately 
 thereby, the defendant,, who first threw the squib, is answerable in
 
 Ch. 1) TRESPASSES 57 
 
 this action : but supposing the defendant had no bad or mischievous 
 intention when he threw the squib, yet as the injury done was not 
 inevitable, this action well lies against him; for the malus animus 
 of a defendant is not necessary to be alleged, proved or taken into 
 consideration in this action; "but in felony it shall be considered, 
 as where a man shoots [with a bow] arrows at butts and kills a man 
 it is not felony, and it should be construed that he had no intent to 
 kill him ; and so of a tyler upon a house who with a tyle kills a man 
 unknowingly, it is not felony : but where a man shoots at butts, and 
 wounds a man, although that it be against his will, he shall be said 
 to be a trespasser. 21 Hen. '7, 28 a." If the injury done be not in- 
 evitable, the person who doth it, or is the immediate cause thereof, 
 even by accident, misfortune, and against his will is answerable in 
 this action of trespass vi et armis ; so is Stran. 596, Underwood v. 
 Hewson, Hob. 134, Weaver v. \\'ard. Sir Thomas Jones, 205, Dicken- 
 son V. Watson, 6 Ed. 4, 7, 8. Sir Thomas Raym. 422. 4 Alod. 404, 
 5. If the act in the first instance be unlawful, trespass will lie; but 
 if the act is prima facie lawful, and the prejudice to another is not 
 immediate, but consequential, it must be an action upon the case, and 
 this is the distinction laid down by Lord Chief Justice Raymond in 
 Reynolds v. Clarke, 1 Stran. 635, 2 Ld. Raym. 1399, S. C. * * * 
 
 BlackstonE, J. I am of a different opinion. I take it here is 
 no verdict; the declaration and special case are stated for the opin- 
 ion of the Court, whether the facts in the case amount to an assault 
 and battery vi et armis by the defendant upon the plaintiff? 
 
 The declaration alleges that the defendant threw, cast and tossed a 
 lighted squib against the plaintiff, and struck him on the face there- 
 with, whereby he lost his eye; this is laid as an immediate injury 
 done by the defendant to the plaintiff, which is the gist of this action 
 of assault and battery; for if the injury received from the act of 
 the defendant was not immediate, but a consequence, trespass vi et 
 armis will not lie, but it must be an action on the case ; and my 
 Lord Raymond, in thd case of Reynolds v. Clarke, 2 Ld. Raym. 1402, 
 puts the dift'erence where he says, "The distinction in law is, where 
 the immediate act itself occasions a prejudice or is an injury to the 
 plaintiff's person, house, land, etc., and where the act itself is not 
 an injury, but a consequence from that act is prejudicial to the plain- 
 tiff's person, house, land, etc. In the first case trespass vi et armis will 
 lie; in the last it will not, but the plaintiff's proper remedy is by ac- 
 tion on the case." And this distinction runs through all the cases 
 which have been cited. 
 
 The lawfulness or unlawfulness of an act is not the criterion be- 
 tween these two actions, for a man may become an immediate tres- 
 passer vi et armis by doing a lawful act ; as if a man doing an act 
 lawful in itself, hurts another by accident, misfortune, and against 
 the will of the actor, yet he shall be answerable in trespass vi et 
 armis for immediate injury done; unless the injury was inevitable,
 
 58 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 27 Hen. '7, 28a. 1 Stran. 596, and many other cases in the books to 
 this purpose. Trespass on the case will lie for doing an unlawful 
 act, if the damage sustained thereby be not immediate but conse- 
 quential, 11 IMod. 108. The first act in the present case (I allow) 
 was unlawful; but the squib by the first act did not strike the plain- 
 tiff, the first act was complete when it lay on Yates' stall, afterwards 
 Willis a bystander threw it across the market-house, it fell on the 
 stall of another man who threw it to another part of the market- 
 house and struck the plaintiff' therewith and put out his eye. Willis 
 who took up the squib and threw it across the market-house is not 
 answerable in trespass vi et armis, for he did that act to prevent in- 
 jury to himself, and did no harm to any body. Willis and Yates gave 
 the squib two new directions, acting as free agents, not by the insti- 
 gation, command, request, or as servants of the defendant, but in 
 defence of their persons, so the injury which happened to the plain- 
 tiff was the consequence of, and not done immediately by the first 
 act of the defendant. 
 
 It is said the first act is not complete until the explosion of the 
 squib ; I admit the squib had no power to do mischief until the ex- 
 plosion ; but it doth not follow from thence that the first act was 
 not complete, at the instant the squib received a new direction from a 
 second act. Suppose several persons are playing at foot-ball, which 
 is tossed by many, and at last breaks windows ; trespass vi et armis 
 will only lie against the man who struck it against the windows. The 
 throwing the squib against Yates' stall was the only act the defendant 
 did. * * * 
 
 Gould, J, I diff'er with my Brother Blackstone;, but with the 
 utmost respect to his sentiments. I think that neither Willis nor 
 Ryall are liable to an action in this case ; if that be so, and this 
 action will not lie against the defendant Shepherd who did the first 
 act, which was unlawful, the plaintiff who has been greatly injured 
 will be without remedy. The damage done did instantly arise by and 
 from the act of the defendant : Willis and Ryall in defence of them- 
 selves and their goods, being in a state of fear, without power of 
 recollection, instantly tossed and threw the squib away from them- 
 selves, what they did was inevitable, as it seemeth to me. Suppose 
 a burning squib thrown into a coach passing along the street, and 
 one of the persons therein throws it out, and the like misfortune as 
 this happens; surely the person throwing the squib out of the coach 
 might justify or excuse himself by pleading; though this is not so 
 strong a case I think as the present. The defendant is the only wrong 
 doer; his act put Willis and Ryall under an inevitable necessity of 
 acting as they did, so neither of them is liable to an action : upon 
 the whole I am of opinion judgment must be for the plaintiff". 
 
 Lord Chief Justice De Grey. The distinction between actions 
 of trespass on the case, and trespass vi et armis should be most care- 
 fully and precisely observed, otherwise we shall introduce much con-
 
 Ch. 1) TRESPASSES 59 
 
 fusion and uncertainty ; this is that kind of injury where the distinc- 
 tion is very nice. It strikes me thus ; trespass vi et armis Hes against 
 the person from whom ain injury is received by force. So the ques- 
 tion is, whether this personal injury was received by the plaintiff by 
 force from the defendant? Or whether the injury was received from, 
 or resulting from a new force of another? 
 
 The real or true question (I think) is not whether the first act 
 of throwing the squib by the defendant was lawful or not; for I see, 
 that in doing a lawful act, trespass vi et armis will, in some cases, 
 lie against the actor ; and yet there are cases where trespass vi et 
 armis will not lie against a person for doing an unlawful act. * * * 
 
 The throwing the squib by the defendant was an unlawful act at 
 common law, the squib had a natural power and tendency to do mis- 
 chief indiscriminately; but what mischief, or where it would fall, 
 none could know ; the fault egreditur e persona of him who threw 
 the squib, it would naturally produce a defence to be made by every 
 person in danger of being hurt thereby, and no line can be drawn as 
 to the mischief likely to happen to any person in such danger ; the 
 two persons Willis and Ryall, did not act with or in combination with 
 the defendant, and their removal of the squib for fear of danger 
 to themselves seems to me to be a continuation of the first act of 
 the defendant until the explosion of the squib; no man contracts 
 guilt in defending himself ; the second and third man were not guilty 
 of any trespass, but all the injury was done by the first act of the de- 
 fendant; here I lay the stress, and here I differ with my brother 
 Blackstone ; for I conceive all the facts of throwing the squib must 
 be considered as one single act, namely the act of the defendant; the 
 same as if it had been a cracker made with gunpowder which had 
 bounded and rebounded again and again before it struck out the plain- 
 tiff's eye. I am of opinion that judgment must be for the plaintiff, 
 and the postea was accordingly delivered to him, by the opinion of 
 three judges against one 
 
 27 
 
 27 Part of the opinion is omitted. The statement of the plaintiff's pleading 
 is abridged. 
 
 This case is fully reported, also, in 2 Wm. Bl. 892, whose report is followed 
 in 1 Smith L. C. (8th Ed.) 737. Compare Blackstone's statement of the prin- 
 ciple in 3 Bl. Com. 123 : "It is a settled distinction that where an act is done 
 which is in itself an immediate injury to another's person or property, there 
 the remedy is usually an action of trespass vi et armis; but where there is 
 no act done, but only a culpable omission, or where the act is not immediately 
 injurious, but only by consequence and collaterally ; there no action of 
 trespass vi et armis will lie, but an action on the special case, for the damages 
 consequent on such omission or act." 
 
 See Holmes' Common Law, 104 : "In the latter case [Scott v. Shepherd], it 
 is pretty clear that the majority of the court considered that to repel personal 
 danger by instantaneously tossing away a squib thrown by another upon one's 
 stall was not a trespass, although a new motion was thereby imparted to the 
 squib, and the plaintiff's eye was put out in consequence." 
 
 See, also, Terry's Leading I'rinciples of Anglo-American Law, 75 : "If one 
 person wrongfully causes another to make one of those bodily movements which
 
 60 TORTS THROUGH ACTS OP ABSOLUTE LIABILITY (Part 1 
 
 HOPPER et ux. V. REEVE. 
 
 (Court of Common Pleas, 1817. 7 Taunt. 698, 18 E. R. 629, 129 Reprint, 27S.) 
 
 The plaintiff declared that the defendant with force and arms drove 
 a gig against a carriage in which the plaintiff's wife was riding, and 
 overturned it, and greatly hurt the plaintiff's wife. 
 
 After verdict for the plaintiff Pell, Serjt., moved in arrest of judg- 
 ment, upon the ground that this ought not to have been an action of 
 trespass, but an action on the case, for that the declaration did not 
 state that the carriage in which the plaintift''s wife was riding was the 
 carriage of the plaintiff, nor aver any injury to the carriage, but was 
 solely for an injury to the wife. Though that injury received by the 
 plaintiff's wife arose out of an act of the defendant, yet it was in con- 
 sequence of the defendant having run against the carriage of some 
 other person, for such it must be intended to be, not being stated to 
 be the carriage of the plaintiff, and no act could be more consequen- 
 tial in its nature, than this injury to the plaintiff"'s wife. The case 
 of Scott V. Shepherd, 2 W. Bl. 892, 3 Wils. 403, went beyond the law, 
 but not so far as this. The Court granted a rule nisi. 
 
 GiBBSj Ch. J. I do not think I could point out any defect in the 
 legal argument of either of the counsel, but the facts are not brought 
 within the law stated by the defendant's counsel; for I am of opin- 
 ion that he who throws over a chair or a carriage in which another 
 person is sitting, commits a direct trespass against the person of him 
 who is sitting in that carriage or chair, and that the action of tres- 
 pass may be well maintained for it. 
 
 Rule discharged.^ ^ 
 
 we have called instinctive, whether or not the movement Is reckoned as an act 
 of the doer of it, it is imputed as an act of the person who so caused it. This 
 was decided in the famous case of Scott v. Shepherd, which has been followed 
 in later cases." 
 
 2 8 Accord: Dodwell v. Burford (16G9) 1 Mod. 24, 86 Reprint, 70.3 (In tres- 
 pass for a battery, P. declared that D. struck the horse whereon P. rode, so that 
 the horse ran away with her, whereby she was thrown down and another horse 
 ran over her) ; Mareutille v. Oliver (ISOS) 1 Penn. (2 N. J. Law) 358, 359 (D. 
 struck with a club the horse before a carriage in which P. was sitting); Smith 
 V. Kahn (191.3) 141 N. Y. Supp. 520 (D. pushed down a window onto P.'s hand). 
 
 Compare : 
 
 Bull V. Colton (185G) 22 Barb. (N. Y.) 94 : D. with a hoe beat P.'s horse, 
 hitched to a buggy in which P. was sitting. The action was before a justice 
 of the peace, who had jurisdiction in trespass to property, but no jurisdiction 
 in trespass for an assault and battery upon the person. 
 
 Kirland v. State (1873) 43 Ind. 146, 13 Am. Rep. 386: The court had in- 
 structed the jury that if the defendant beat the horses of the prosecuting wit- 
 ness while he was driving his team in the field, in the act of gathering corn, 
 the defendant was guilty of an assault and battery. Held, error. "In the case 
 under consideration," said Buskirk, .!., after an ehiborate review of the autlior- 
 ities, "the court ignores all these things and instructs the jury to convict on 
 proof alone of the striking of the horses of the prosecuting witness. It is not 
 even necessary, according to this charge, that the prosecuting witness should 
 have been in the wagon or holding the lines, or connected with or attached to 
 the horses in any way. That Bein was driving his team and gathering his
 
 Ch. 1) TRESPASSES 61 
 
 STATE V. MONROE. 
 
 (Supreme Court of North Carolina, 1897. 121 N. C. 677, 28 S. E. 547; 43 L. R. 
 
 A. 861, 61 Am. St. Rep. 686.) 
 
 Faircloth, C. J. Will Horn administered to Ernest Barrett a 
 dose of croton oil, and the oil had an injurious effect on Barrett. De- 
 fendant admits he sold the oil to Horn, and at his request dropped it 
 into a piece of candy. * * * Defendant is indicted for an as- 
 sault on Barrett. If guilty, he must be so as a principal, and not as 
 an accessory. His guilt, then, depends upon whether he knew or had 
 reason to believe that the dose was intended for Barrett or some oth- 
 er person as a trick, and not for medicinal purposes. 
 
 The whole evidence was submitted to a jury who rendered a verdict 
 of guilty. His honor instructed the jury that wdien the defendant 
 sold the oil, if he "knew or had reason to believe, and did believe that 
 it was intended for Barrett or some other person by way of a trick 
 or joke, and not for a medicinal purpose, the defendant would be 
 guilty of assault and battery." 
 
 He also charged that it was not necessary that it should be a poi- 
 sonous or deadly dose ; that it was sufficient if it was an unusual dose, 
 likely to produce serious injury. To this instruction we see no ob- 
 jection. * * * 29 
 
 DYK V. DE YOUNG. 
 (Appellate Court of Illiuois, First District, 1889. 35 111. App. 138.) 
 
 Gray, P. J. * * * The husband of the appellee was to pay 
 the appellant $5. The appellant wrote a receipt which (whether 
 against the will of the appellant or not was disputed) the husband 
 took into his hands. The husband gave it to the appellee and she said 
 something about it (but what, is also disputed), and the appellant 
 then attempted to take it from her by pulling it out of her grasp. In 
 this attempt the receipt was torn, but no injury came to the appellee 
 from the force thus used. * * * 
 
 The appellant complained of the refusal of this instruction : 
 
 "The jury are further Instructed that if they believe from the evidence that 
 the plaintiff, with force, and without the consent of the defendant, obtained 
 the possession of the receipt in question, with the intention of keeping the 
 same without paying the money described in the receipt for the purpose of 
 fraudulently using the same at some future time, then the defendant had a 
 right to obtain the same, using no more force or violence than was necessary 
 to obtain the same." 
 
 corn does not necessarily so connect him with the horses that the touching 
 of the horses would be an assault and battery on him. He may have been, 
 as is frequently done, driving his horses from one pile of corn to another, by 
 words of command, without being in the wagon or having hold of the lines." 
 2 8 Part of the opinion is omitted.
 
 62 TORTS THROUGH ACTS OP ABSOLUTE LIABILITY (Part 1 
 
 There was no evidence that she by force obtained the possession 
 of the receipt. If he was entitled to it, and she withheld it, a request 
 must, in such a case, precede the exercise of force. TuUay v. Reed, 
 1 C. & P. 6, and cases cited in 2 Ch. PI. 698 et seq., 16th Am. 
 from 7th Lond. Ed. 
 
 The mere snatching of the paper, or a part of it, from her, was a 
 technical assault, 1 Selw. N. P. 27; Respublica v. De Longchamps, 
 1 Dallas, 114, 1 L. Ed. 59; State v. Davis, 1 Hill (S. C.) 46, and though 
 no injury followed, would entitle the appellee to some damages. 
 There is no error and the judgment must be affirmed. 
 
 Judgment affirmed.^" 
 
 INNES V. WYLIE et al. 
 
 (At Nisi Prius, 1844. 1 Car. & Kir. 257, 70 R. R. 786.) 
 
 Assault. The declaration stated that the defendants, on the 30th 
 day of November, 1843, — 
 
 "assaulted the plaintiff, he then being a member of a certain society of- per- 
 sons lawfully and voluntarily associated together and called and known by the 
 name of 'The Caledonian Society of London,' he the plaintiff then being about 
 to enter into a certain room situated in and forming part of a certain hotel or 
 public-house called and known by the name of 'Radley's Hotel,' and situated 
 in the city of London, for the purpose of attending at, and partaking of, a pub- 
 lic general meeting and dinner of the members of the said society which was 
 then about to be held and take place in the said room, and into which said 
 room the said plaintiff as such member of the said society as aforesaid then 
 was lawfully entitled and then had a legal right to enter, for the purpose of 
 attending at, and partaking of, the said public general meeting and dinner of 
 the members of the said society, and which said public general meethig and 
 dinner the said plaintiff, as sucli member of the said society as aforesaid, then 
 was lawfully entitled, and then had a legal right to attend and partake of, and 
 then pushed and shoved the plaintiff from the said room, and hindered and 
 prevented the plaintiff from entering the said room, and from attending at, and 
 partaking of, the said public general meeting and dinner of the members of 
 the .said society, whereby the plaintiff was totally hindered, prevented, and 
 excluded from attending at, and partaking of, the said public general 
 meeting and dinner of the members of the said society, and from enjoying and 
 participating in the advantages, benefits, and privileges of the said society at 
 the said public general meeting and dinner, and other wrongs to the plaintiff 
 then did, against the peace," etc. 
 
 The defendant pleaded, first, "not guilty," and secondly that the 
 plaintiff had been expelled from the society before the said meeting. 
 Replication de injuria. 
 
 Lord Denman, Ch. J. (in summing up). * * * The society 
 was, in my opinion, wrong in removing him without giving him dis- 
 
 30 Tart of the opinion is omitted. 
 
 Compare the remark of McKean, C. J., in Respublica v. De Longchamps 
 (1784) 1 Dallas, 111, 114 (1 L. Ed. 59) : "As to the assault [the defendant had 
 struck a cane in the hand of the complainant] this is, perhaps, one of the 
 kind in which the insult is Uiore to be considered than the actual damage; for, 
 though no great bodily pain is suffei'cd by a blow on the palm of the band, or 
 the skirt of the coat, yet these are clearly within the legal definition of assault 
 and battery, and among gentlemen too often induce duelling and terminate in 
 murder."
 
 Ch. 1^ TRESPASSES 63 
 
 tinct and positive notice that he was to come and answer the charge 
 that was made against him, and I hold that he should have been told 
 what the charge was, and called on to answer it, and told that it was 
 meant to remove him if he did not make his defence. No proceeding 
 in the nature of a judicial proceeding can be valid unless the part)' 
 charged is told that he is so charged, is called on to answer the charge, 
 and is warned of the consequences of refusing to do so. As no such 
 notice was given here, I think that the removal was altogether a void 
 act, and I am therefore of opinion that the plaintiff is still a member 
 of the society. Being so, it appears that he went to one of its meetings 
 on the 30th of November, 1843, and was then prevented, by a police- 
 man acting under the orders of the defendants, from entering the 
 room. You will say, whether, on the evidence, you think that the 
 policeman committed an assault on the plaintiff, or was merely pas- 
 sive. If the policeman was entirely passive like a door or a wall put 
 to prevent the plaintiff from entering the room, and simply obstruct- 
 ing the entrance of the plaintiff, no assault has been committed on the 
 plaintiff, and your verdict will be for the defendant. The question 
 is, did the policeman take any active measures to prevent the plain- 
 tiff from entering the room, or did he stand in the door way passive, 
 and not move at all. 
 
 Verdict for the plaintiff. Damages, 40s. ^^ 
 
 THE LORD DERBY. 
 (United States Circuit Court, E. D. Louisiana, 1883. 17 Fed. 265.) 
 
 Admiralty Appeal. 
 
 The libelant, a pilot, was taken on board the steamship at the mouth 
 of the Mississippi, and while on the voyage up the river to New Or- 
 leans he was very seriously bitten by a dog, which had been brought 
 from Europe for sale in this country, and which was kept in the cabin, 
 chained under the table. This suit was brought against the vessel in 
 rem for damages suffered thereby by the libelant. 
 
 Pardee, J. The questions presented in this case are: First. Is 
 the proceeding properly brought against the ship ? ^^ * * * 
 
 1. It is contended that the case, as presented in the libel, shows a 
 case of assault and battery, which, under the sixteenth admiralty rule, 
 "shall be in personam only." The ingenuity which suggested the point 
 has not failed to supply the court with an ingenious argument to sup- 
 port it. This definition is given of assault and battery, as taken from 
 3 East (Leame v. Bray) 593 : 
 
 "Wlienever one willfully or negligently puts in motion a force, the direct 
 result of which is an injury, it constitutes an assault and battery, and the ac- 
 tion brought should be trespass vi et aruiis." 
 
 31 Part of the opinion is omitted. 
 
 32 Only so much of the case is given as relates to the one point.
 
 04 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 An examination of the case shows that the brief goes further than 
 the authority cited. The question before the court was whether the 
 action was properly brought in trespass, and all the judges agreed 
 that where an injury results directly from force trespass lies, but 
 nothing is said of assault and battery. The other cases cited (Gib- 
 bons V. Pepper, 1 Ld. Raym. 39; Blackman v. Simmons, 3 Car. & 
 P. 138) are also cases of trespass. An assault and battery is where 
 one intentionally inflicts unlawful violence upon another, and if there 
 is a case in the books which goes further than this, it is an unsafe 
 case to follow. That there may be such gross negligence that an in- 
 tent to injure may be inferred therefrom, may be conceded, and per- 
 haps Blackman v. Simmons, supra, shows such gross negligence; 
 but the case made by the libel does not show such negligence, nor does 
 it bring such negligence home to any particular individual, as would 
 be necessary in a case of assault and battery. 
 
 In my opinion the case made in the libel is very far from a case of 
 "assaulting and beating," within the sixteenth admiralty rule. And 
 the case, as disclosed by the evidence, seems to me to be a clear case 
 of liability on the part of the ship. The dog inflicting the injuries on 
 libelant was brought over on the ship, with the consent of the masters 
 and owners, to be disposed of in this port. It was part of the cargo. 
 The libelant was lawfully on board as pilot, and entitled to be carried 
 safely. An injury to him from carelessness, or negligence in handling 
 or caring for" the dog, would entitle him to remuneration from the ship 
 the same as if his injuries had resulted from goods falling on him, or 
 from defective spars or rigging. * * * 
 
 A decree will be entered for the libelant. 
 
 HOLMES et ux. v. MATHER. 
 
 (Court of Exchequer, 1S75. L. R. 10 Exch. 261.) 
 
 The first count of the declaration alleged that the female plaintiff 
 was passing along a highway, and the defendant so negligently drove 
 a carriage and horses in the highway that they ran against her and 
 threw her down, whereby she and the male plaintiff were damnified. 
 The second count alleged that the defendant drove a carriage with 
 great force and violence against the female plaintiff and wounded 
 her, whereby, etc. Plea, not guilty, and issue thereon. 
 
 At the trial the following facts were proved: In July, 1874, the 
 defendant kept two horses at a livery stable in North Shields, and 
 wishing to try them for the first time in double harness, had them 
 harnessed together in his carriage. At his request a groom drove, 
 the defendant sitting on the box beside him. After driving for a 
 short time, the horses, being startled by a dog which suddenly ran 
 out and barked at them, ran away and became so unmanageable that 
 the groom could not stop them, though he could to some extent guide
 
 Ch. 1) TRESPASSES 65 
 
 them. The groom begged the defendant to leave the management to 
 him, and the defendant accordingly did not interfere. The groom 
 succeeded in turning the horses safely around several corners, and at 
 last guided them into Spring Terrace, at the end of which and at 
 right angles runs Albion Street, a shop in Albion Street being opposite 
 the end of Spring Terrace. When they arrived at the end of Spring 
 Terrace the horses made a sudden swerve to the right, and the groom 
 then pulled them more to the right, thinking that was the best course, 
 and tried to guide them safely round the corner. He was unable to 
 accomplish this and the horses were going so fast that the carriage 
 was dashed against the palisades in front of the shop; one of the 
 horses fell, and at the same time the female plaintifif, who was on the 
 pavement near the shop, was knocked down by the horses and severely 
 injured. The jury stopped the case before the close of the evidence 
 offered on the defendant's part, and said that in their opinion there 
 was no negligence in anyone. The plaintiff's counsel contended that 
 since the groom had given the horses the direction which guided them 
 against the female plaintiff', that was a trespass which entitled the 
 plaintiffs to a verdict on the second count. 
 
 The verdict was entered for the defendant, leave being reserved 
 to the plaintiffs to move to enter it for them for i50. on the second 
 count, the Court to be at liberty to draw inferences of fact, and to 
 make any amendment in the pleadings necessary to enable the defend- 
 ant to raise any defence that ought to be raised. 
 
 Herschell, Q. C, having obtained a rule nisi to enter the verdict 
 for the plaintiffs for £50., pursuant to leave reserved, on the ground 
 that, upon the facts proved, the plaintiff's were entitled to a verdict on 
 the trespass count, 
 
 C. Russell, O. C, and Crompton, for the defendant, shewed cause. 
 BramweIvIv, B. I am inclined to think, upon the authorities, that 
 the defendant is in the same situation as the man driving; but, with- 
 out deciding that question, I assume, for the purposes of the opinion 
 I am about to express, that he is as much liable as if he had been 
 driving. 
 
 Now, what do we find to be the facts? The driver is absolutely 
 free from all blame in the matter ; not only does he not do anything 
 wrong, but he endeavours to do what is best to be done under the 
 circumstances. The misfortune happens through the horses being so 
 startled by the barking of a dog that they run away with the groom 
 and the defendant who is sitting beside him. Now, if the plaintiff 
 under such circumstances can bring an action, I really cannot see 
 why she could not bring an action because a splash of mud, in fhe 
 ordinary course of driving, was thown upon her dress or got into 
 her eye and so injured it. It seems manifest that, under such circum- 
 stances, she could not maintain an action. For the convenience of 
 mankind in carrying on the affairs of life, people as they go along 
 Hepb.Torts — 5
 
 66 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 roads must expect, or put up with, such mischief as reasonable care 
 on the part of others cannot avoid. I think the present action not to 
 be maintainable. 
 
 That is the general view of the case. Now I will put it a little more 
 specifically, and address myself to the argument of Mr. Herschell. 
 Here, he says, if the driver had done nothing, there is no reason to 
 suppose this mischief would have happened to the woman ; but he 
 did give the horses a pull, or inclination, in the direction of the plain- 
 tiff — he drove them there. It is true that he endeavoured to drive 
 them further away from the place by getting them to turn to the 
 right, but he did not succeed in doing that. The argument, therefore, 
 is, if he had not given that impulse or direction to them, they would 
 not have come where the plaintiff was. Now, it seems to me, that ar- 
 gument is not tenable, and I think one can deal with it in this way. 
 Here, as in almost all cases, you must look at the immediate act that 
 did the mischief, at what the driver was doing before the mischief 
 happened, and not to what he was doing next before what he was 
 then doing. If you looked to the last act but one, you might as well 
 argue that if the driver had not started on that morning, or had not 
 turned down that particular street, this mischief would not have hap- 
 pened. 
 
 I think the proper answer is. You cannot complain of me unless I 
 was immediately doing the act which did the mischief to you. Now 
 the driver was not doing that. What I take to be the case is this : 
 he did not guide the horses upon the plaintiff ; he guided them away 
 from her, in another direction ; but they ran away with him, upon her, 
 in spite of his efforts to take them away from where she was. It 
 is not the case where a person has to make a choice of two evils, and 
 singles the plaintiff out, and drives to the spot where she is standing. 
 That is not the case at all. The driver was endeavoring to guide them 
 indeed, but he was taken there in spite of himself. I think the obser- 
 vation made by my Brother Pollock during the argument is irresisti- 
 ble, that if Mr. Herschell's contention is right, it would come to this : 
 if I am being run away with, and sit quiet and let the horses run 
 wherever they think fit, clearly I am not liable, because it is they, 
 and not I, who guide them ; but if I unfortunately do my best to avoid 
 injury to myself and other persons, then, it may be said that it is 
 my act of guiding them that brings them to the place where the ac- 
 cident happens. Surely it is impossible. 
 
 As to the cases cited, most of them are really decisions on the form 
 of action, whether case or trespass. The result of them is this, and 
 it is intelligible enough : if the act that does an injury is an act of di- 
 rect force vi et armis, trespass is the proper remedy (if there is any 
 remedy) where the act is wrongful, either as being wilful or as being 
 the result of negligence. Where the act is not wrongful for either 
 of these reasons, no action is maintainable, though trespass would 
 be the proper form of action if it were wrongful. That is the
 
 Ch. 1) TRESPASSES 67 
 
 effect of the decisions. In Sharrocl v. London and North Western 
 Ry. Co., 4 Ex. 580, the master was not present. In M'Laughlin v. 
 Pryor, 4 Man. & G. 48, the defendant was present, and was supposed 
 to be taking part in the control of the animals. In Leame v. Bray, 
 3 East, 593, 599, there was an act of direct force vi et armis, and 
 there was negligence. I think, therefore, that our judgment should 
 be for the defendant. 
 
 I think I could distinguish the case cited from the Year Book, but 
 I will only say that there the defendant let out animals, liable to 
 stray, whether frightened or not, in a place not inclosed, and without 
 anybody to keep them in bounds. ^^ 
 
 ClEasby, B. I would only add a word as to a point on which my 
 Brother BramwELL has not given judgment, and that is this. This 
 is not a case where the act that is done must be justified, as where 
 a man does a particular thing to avoid something else, but it is a case 
 where it must be shewn that it was the act of the defendant himself. 
 I sum up all in these words : in my opinion the horses were not 
 driven there by the defendant's servant, but they went there in spite 
 of him, so far as he directed them at all. 
 
 Rule discharged. 
 
 3 3 The "case cited from the Year Book" is the case in Y. B. 21 Hen. VIII, 
 with the comment upon it by Grose, .J., in Leame v. Bray (1S03) 3 East. 593, 
 599. See infra, "Inevitable Accident." 
 
 The arguments of counsel are omitted. 
 
 Accord: Goodman v, Taylor (1S32) 5 Car. & P. 410; Trespass, because P.'s 
 horse had been hit by D.'s pony and chaise. Plea, not guilty. The evidence 
 showed that P.'s wife stood by the head of the pony holding it by the rein 
 when a Punch and Judy show coming by frightened the pony so that he ran 
 away, breaking from D.'s vife notwithstanding her best efforts to hold him. 
 Chief Justice Denman was inclined to consider this "as an inevitable accident." 
 See infi-a, "The Different Forms of Justification or Excuse in Trespass." 
 
 Steudle v. Rentchler (1872) 64 111. 161: D.'s horses had run over P. The 
 evidence showed that a boy had hit one of the horses with some missile. He 
 began to kick and frightened the other horse. The driver jumped from the 
 vehicle and seized them by the head. They overpowered him and ran awav. 
 
 Compare Vincent v. Stinehour (1835) 7 Vt 62, 64 (29 Am. Dec. 145) , where 
 Williams, C. J., remarks: "The principle of law, which is laid down by all 
 the writers upon this subject, and which is gathered from and confirmed by 
 the whole series of reported cases, is that no one can be made responsible, in 
 the action of trespass for consequences, where he could not have prevented 
 those con.sequences by prudence and care. Thus it has been laid down, that if 
 a horse, upon a sudden surprise, run away with his rider, and runs against a 
 man and hurts him, this is no battery. Where a person, in doing an act which 
 it is his duty to perform, hurts another, he is not guilty of battery. A man 
 falling out of a window, without any imprudence, injures another — there is no 
 trespass. A soldier, in exercise, hurts his companion — no recovery can be had 
 against him. In the case of Gibbons v. Pepper (1695) 4 Mod. 405, it was dis- 
 tinctly decided, that if a horse runs away with his rider, against his will, and 
 he could not have avoided it, and runs against another, it is no battery in the 
 rider, and he can defend under the general issue. In the case of Wakenuin v. 
 Robinson (1823) 1 Bing. 213, in trespass for driving against plaintiff's horse, 
 and injuring him with shafts of a gig, it was considered a good defence, that 
 the horse was frightened by the noisy and rapid approach of a butcher's cart, 
 and became ungovernable, so that the injury was occasioned by unavoidable 
 accident."
 
 68 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 SULLIVAN V. DUNHAM et al. 
 
 iCourt of Appeals of New York, WOO. 161 N. Y. 290, 55 N. E. 923, 47 L. R. A. 
 
 715, 76 Am. St. Rep. 274.) 
 
 Action by the administratrix of Annie E. Harten against Carroll 
 Dunham and others. From a judgment of the appellate division (36 
 App. Div. 639, 56 N. Y. Supp. 1117) affirming a judgment in plain- 
 tiff's favor, defendants appeal. v^ 
 
 The plaintiff's intestate, a young lady 19 years of age, while travel- 
 ing on a public highway near the village of Irvington, was killed by 
 a blow from a section of a tree which fell upon her after it had been 
 hurled more than 400 feet by a blast. The defendants Dinkel & 
 Jewell, as co-partners, had been employed by the defendant Dunham, 
 the owner of a tract of rough land, to blast out certain trees standing 
 upon it. On the south side of the tract, about 300 feet from the near- 
 est point of the highway in question, there was a large living elm tree, 
 from 60 to 70 feet in height, between which and the highway was 
 some woodland. Dynamite was placed under the roots of this tree 
 and exploded, shattering it and throwing a section of the stump over 
 the intervening forest, a distance of 412 feet, to a point in the high- 
 way where the plaintiff's intestate was traveling. She was struck by 
 it with such force as to cause her death within a few hours. 
 
 This action was brought to recover damages for the benefit of the 
 next of kin on account of the death of the plaintiff's intestate, caused, 
 as alleged, by the wrongful act of the defendants. Notwithstanding 
 their objection and exception, the case was submitted to the jury on 
 the theory that it was not essential for the plaintiff" to establish neg- 
 ligence in order to make out a cause of action. The judgment ren- 
 dered in favor of the plaintiff upon the first trial was reversed by 
 the appellate division on account of erroneous rulings (10 App. Div. 
 438, 41 N. Y. Supp. 1083), but the judgment rendered in her favor 
 upon the second trial was unanimously affirmed; and the defendants, 
 having first obtained leave, now come here. 
 
 Vann, J. The main question presented by this appeal is whether 
 one who, for a lawful purpose, and without negligence or want of 
 skill, explodes a blast upon his own land, and thereby causes a piece 
 of wood to fall upon a person lawfully traveling in a public highway, 
 is liable for the injury thus inflicted. 
 
 The statute authorizes the personal representative of a decedent to 
 "maintain an action to recover damages for a wrongful act, neglect, 
 or default, by which the decedent's death was caused, against a nat- 
 ural person who, or a corporation which, would have been liable to 
 an action in favor of the decedent, by reason thereof, if death had not 
 ensued." Code Civ. Proc. § 1902. It covers any action of trespass 
 upon the person which the deceased could have maintained if she had
 
 Ch. 1) TRESPASSES 69 
 
 survived the accident. Stated in another form, therefore, the ques- 
 tion before us is whether the defendants are Hable as trespassers. 
 
 This is not a new question, for it has been considered, directly or 
 indirectly, so many times by this court that a reference to the earlier 
 authorities is unnecessary. In the leading case upon the subject the 
 defendant, in order to dig a canal authorized by its charter, necessarily 
 blasted out rocks from its own land with gunpowder, and thus threw 
 fragments against the plaintiff's house, which stood upon the adjoin- 
 ing premises. Although there was no proof of negligence or want 
 of skill, the defendant was held liable for the injury sustained. All 
 the judges concurred in the opinion of Gardiner, J., who said: "The 
 defendants had the right to dig the canal; the plaintiff', the right to 
 the undisturbed possession of his property. If these rights conflict, 
 the former must yield to the latter, as the more important of the two, 
 since, upon grounds of public policy, it is better that one man should 
 surrender a particular use of his land than that another should be 
 deprived of the beneficial use of his property altogether, which might 
 be the consequence if the privilege of the former should be wholly 
 unrestricted. The case before us illustrates this principle; for if the 
 defendants, in excavating their canal, in itself a lawful use of their 
 land, could, in the manner mentioned by the witnesses, demolish the 
 stoop of the plaintiff with impunity, they might, for the same pur- 
 pose, on the exercise of reasonable care, demolish his house, and thus 
 deprive him of all use of his property. The use of land by the pro- 
 prietor is not, therefore, an absolute right, but qualified and limited 
 by the higher right of others to the lawful possession of their prop- 
 erty. To this possession the law prohibits all direct injury, without 
 regard to its extent or the motives of the aggressor. * * * He 
 may excavate a canal, but he cannot cast the dirt or stones upon the 
 land of his neighbor, either by human agency or the force of gun- 
 powder. If he cannot construct the work without the adoption of 
 such means, he must abandon that mode of using his property, or be 
 held responsible for all damages resulting therefrom. He will not 
 be permitted to accomplish a legal object in an unlawful manner." 
 Hay V. Cohoes Co., 2 N. Y. 159, 51 Am. Dec. 279. This case was 
 followed immediately by Tremain v. Same, 2 N. Y. 163, 51 Am. 
 Dec. 284, — a similar action against the same defendant, — which of- 
 fered to show upon the trial "that the work was done in the best 
 and most careful manner." It was held that the evidence was prop- 
 erly excluded, because the manner in which the defendant performed 
 its work was of no consequence, as what it did to the plaintift''s in- 
 jury was the sole question. 
 
 These were cases of trespass upon lands, while the case before us 
 involves trespass upon the person of a human being, when she was 
 where she had the same right to protection from injury as if she 
 had been walking upon her own land. As the safety of the person
 
 70 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 is more sacred than the safety of property, the cases cited should 
 govern our decision, unless they are no longer the law. * * * 
 
 We think that the Hay Case has always been recognized by this 
 court as a sound and valuable authority. After standing for 50 years 
 as the law of the state upon the subject, it should not be disturbed, 
 and we have no inclination to disturb it. It rests upon the principle, 
 founded in public policy, that the safety of property generally is su- 
 perior in right to a particular use of a single piece of property by 
 its owner. It renders the enjoyment of all property more secure, b}'' 
 preventing such a use of one piece by one man as may injure all his 
 neighbors. It makes human life safer, by tending to prevent a land- 
 owner from casting, either with or without negligence a part of 
 his land upon the person of one who is where he has a right to be. 
 It so applies the maxim of "Sic utere^ tuo" as to protect person and 
 property from direct physical violence, which, although accidental, has 
 the same effect as if it were intentional. It lessens the hardship by 
 placing absolute liability upon the one who causes the injury. The 
 accident in question was a misfortune to the defendants, but it was 
 a greater misfortune to the young woman who was killed. The 
 safety of travelers upon the public highway is more important to the 
 state than the improvement of one piece of property by a special 
 method is to its owner. As was said by the supreme court of Indiana, 
 in following the Hay Case : "The public travel must not be endan- 
 gered to accommodate the private rights of individuals." Wright v. 
 Compton, 53 Ind. 337. 
 
 We think the courts below were right in holding the defendants 
 liable as trespassers, regardless of the care they may have used in 
 doing the work. Their action was a direct invasion of the rights 
 of the person injured, who was lawfully in a public highway, which 
 was a safe place until they made it otherwise by throwing into it the 
 section of a tree. * * * 
 
 The judgment is right and should be affirmed, with costs. 
 
 Judgment affirmed.^* 
 
 3 4 Part of the opinion is omitted. 
 
 Accord : Wright v. Compton (1876) !53 Tnd. .3.37 (D.. quarrying: .stone near a 
 public highway, by a blast of gunpowder threw fragments of stone against a 
 traveller passing along the highway. Said the Court: "The question involved 
 is not one of negligence on the part of the defendants. The act charged against 
 them is itself unlawful — not the act of blasting and quarrying stone, but the 
 act of casting fragments of rock against the plaintiff. * * * The defend- 
 ants could not lawfully so use their stone quarry as to embarrass the rights of 
 travellers along the public highway"); Hoffman v. Walsh (llKHi) 117 Mo. A pp. 
 27S, 93 S. W. 853 (A blast lawfully set off, by D., without negligence, caused a 
 piece of rock to strike P., standing on a scaffold, on the inside of a wall, some 
 500 feet distant). 
 
 Comjjare Cleghorn v. Thompson (1901) 62 Kan. 727, 64 Pac. 605, 54 L. R. A. 
 402: Dogs trespassing on D.'s land around his slaughter house had caused 
 trouble. To get rid of the dogs, D. shot at one of them. The bullet, missing 
 the dog, struck a stone, was deflected at a wide angle, and hit and killed P. 
 There was no negligence on the part of D. 11 eld, in the absence of negligence, 
 there can be no recovery.
 
 Ch. 1) TRESPASSES 71 
 
 BELL V. MILLER. 
 
 (Supreme Court of Ohio, 1831. 5 Ohio, 2.50.) 
 
 The action was for an assault and battery ; verdict for the plaintiff. 
 Three reasons were assigned for a new trial : 
 
 1. That the court charged the jury, that if the defendant incited 
 or in any degree promoted the commission of the assault and battery 
 upon the plaintiff, he was liable in this action, though not in a situa- 
 tion to afford any actual aid to the person who committed it. * * * 
 
 By the Court. All concerned in the commission of a trespass 
 are considered principals. An assault and battery may be commit- 
 ted by a party not present, if he be a principal actor in or advisor 
 and promoter of making the attack. If one person employ another 
 to commit an assault and battery or any other trespass, and the act 
 is perpetrated, both are guilty, and both responsible in damages. It 
 was not supposed that this was now a debatable question. There is 
 no error in the charge of the court. * * * 
 
 New trial refused. ^^ 
 
 DAINGERFIELD v. THO^IPSON. 
 (Supreme Court of Appeals of Virginia, ISSO. 33 Grat. 136, 36 Am. Rep. 783.) 
 
 Thompson sued Daingerfield and Harrison for an alleged assault 
 and battery. The facts, in brief, were as follows : Daingerfield and 
 Harrison, about midnight, came to Thompson's restaurant. It was 
 closed but a light was burning within. They demanded admission, 
 pounding on the door. Failing to get in, Daingerfield said to Harri- 
 son, "Fire a salute." Harrison thereupon fired a pistol at the door. 
 Thompson, who was just opening the door, was struck by the ball 
 and badly hurt. Daingerfield subsequently testified that he had not 
 supposed that Harrison "was fool enough to shoot into the house." 
 
 Both parties appeared by their attorneys, and the defendant Dain- 
 gerfield moved the court that the cause be tried as to each of the de- 
 fendants separately. This motion the court granted, and the cause 
 was continued as to the defendant Harrison, and was proceeded with as 
 to the defendant Daingerfield, upon the issue of not guilty as to him. 
 And upon this issue the jury, after hearing the evidence, found a 
 verdict for the plaintiff (the defendant in error), against the defend- 
 ant Daingerfield, and assessed his damages at the sum of $8,000. 
 Upon this verdict the Circuit Court entered its judgment for the 
 sum of $8,000 — the damages by the jury in their verdict ascertained, 
 with costs. To this judgment a writ of error was awarded by one 
 of the judges of this court. 
 
 se The statement of facts is abridged and part of the opinion is omitted.
 
 72 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 Christl\x, J. * * * It is earnestly insisted however by the 
 learned counsel for the plaintiff in error (Daingerfield), that the evi- 
 dence against him does not sustain the charge in the declaration, and 
 in each count thereof, of assault and battery; that while such as- 
 sault is proved against Harrison, who fired the pistol, it is not proved 
 against Daingerfield ; that he committed no assault, but simply ad- 
 vised and instigated an act which was in itself harmless, to wit : "Fire 
 a salute," and that this act was not a trespass or assault as far as 
 Daingerfield was concerned ; that he did not direct Harrison to "shoot 
 Thompson, or to fire into his house, but simply to "fire a salute," and 
 that Harrison did another and dift'erent act from the one which was 
 advised and instigated by Daingerfield, and that the injury resulted 
 from Harrison's act done differently from the act directed by Dain- 
 gerfield, and consequently Daingerfield cannot be held liable in this 
 action. 
 
 Now, the fatal defect in this argument is that the firing of a pistol 
 in the streets of a city is not a harmless act, but, on the contrary, is 
 an unlawful and dangerous act, prohibited and made unlawful by 
 express ordinance. And besides, the evidence abundantly shows that 
 even before the firing of the pistol Daingerfield and Harrison w^ere 
 joint trespassers upon the premises of Thompson. The firing of the 
 pistol was an aggravation of the trespass, and being in itself an un- 
 lawful act (and that unlawful act causing the fatal injury), being 
 instigated and prompted by Daingerfield, he is equally responsible 
 with Harrison for its unhappy consequences, although it was not done 
 maliciously and not done by the hand of Daingerfield. 
 
 The law is well settled that any person who is present at the com- 
 mission of a trespass, encouraging or inciting the same by words, ges- 
 tures, looks or signs, or who in any way or by any means countenances 
 or approves the same, is in law deemed to be an aider and abettor, 
 and liable as principal. 1 Hale P. C. 438; 3 Greenl. §§ 40, 41; IMc- 
 Mannus v. Lee, 43 Mo. 206, 97 Am. Dec. 386, and cases there cited. 
 
 There seems indeed to be no principle of law better settled, and for 
 which numerous authorities may be cited if necessary, than this : 
 That all persons who wrongfully contribute in any manner to the 
 commission of a trespass are responsible as principals, and each one 
 is liable to the extent of the injury done. 
 
 The defendant Daingerfield being present, aiding and abetting and 
 instigating Harrison, was equally guilty with him of an assault to 
 the same degree as if he had fired the fatal shot himself. * * * 
 
 Judgment afffrmed,^" 
 
 36 The statement of facts is rewritten and part of the opinion is omitted. 
 
 Compare Bird v. Lynn (IS.jO) 10 B. Men. (Ivy.) 422: A boy who had been 
 whipped by a man sued liim in assault and battery and made a Mrs. Jouett a 
 co-defendant. There was no evidence that Mrs. Jouett was present wlien the 
 boy was whipped. But the court charged that if she "encouracod the trespass" 
 she was a party to it. The verdict and the judgment went against her, and she
 
 Ch. 1) TRESPASSES 73 
 
 FORDE V. SKINNER et al. 
 
 (At Nisi Prius, 1S30. 4 Car. & P. 239, 34 R. R. 791.) 
 
 False imprisonment, with a count for a common assault. Plea, gen- 
 eral issue. 
 
 The defendants were the parish officers of the parish of Ninfield, 
 in Sussex, and the plaintiff was a young woman, who was a pauper 
 in the poor-house there. The false imprisonment was not proved; 
 and the assault complained of w^as, that, on the 10th of December, 
 1829, the defendants sent for the plaintiff into a room in the poor- 
 house, and by force, and against her consent, cut off' her hair; and 
 it appeared, that in the struggle, occasioned by her resisting, one of 
 her arms was bruised. It was shewn that the plaintiff wore long 
 hair, and kept it in a clean and neat state ; and there was also evi- 
 dence given that when the plaintiff' had, shortly before, gone with 
 two of the defendants before the magistrates at Battle, one of the 
 defendants said, alluding to the plaintiff' and her sister, who was 
 also in the poor-house, that he would soon do something "to take 
 their pride down." It also appeared that the sister's hair was cut off 
 in a similar way. 
 
 Bayle;y, J. (in summing up). However desirable such a regula- 
 tion as that of cutting off' the hair of persons in a poor-house may be 
 with regard to health and cleanliness, yet it is altogether unauthorized 
 by law and is a wrongful act, if done without the consent of the 
 party. If, in this case, it was done violently and with force, and with 
 the malicious intent imputed, namely, "of taking down their pride," 
 
 appealed. Marshall, C. J., delivering the opinion of the Court of Appeals, re- 
 ma rived as follows: "As Mrs. Jouett was not present when the trespass was 
 committed, the word 'encourage' seems to be not sufficiently definite to ex- 
 press the true ground of liabilitj-. If Mrs. Jouett had directed Bird to whip 
 or beat the plaintiff, and he had done it in consequence, this would, undoubted- 
 ly, have been an encouragen;ent of the trespass, which would make her a par- 
 ty. If she had said in Bird's presence that the plaintiff was a bad boy and 
 deserved a whipping, or that he had mistreated her. and she wished somebody 
 would whip him. in consequence of which Bird had beaten him, this might, in 
 some sense, have been deemed an encouragement of the trespass, and yet, un- 
 less she had used this language for the purpose or with the intention of incit- 
 ing Bird to commit the act and of thus producing or procuring the trespass, we 
 apprehend that Bird, though in fact committing the act, in consequence of 
 what she had said, should be regarded as a mere volunteer, and that she would 
 not be a co-trespasser on the ground of having encouraged the trespass. To 
 make Mrs. Jouett liable as having encouraged the trespass by words used on a 
 prior occasion, those words must have had a direct relation to the trespass, and 
 have been calculated and intended to produce it by stimulating or exciting 
 some person hearing them to do the act or procure it to be done. If it were 
 sufficient that the act was done in consequence of the words spoken, then one 
 person might be made a trespasser and e\ en a felon against his or her consent, 
 and by the mere rashness or precipitancy or overheated zeal of another, and the 
 mere expression of just anger or resentment, or the statement of a fact cal- 
 culated to excite indignation against an individual, and to create an opinion or 
 desire that he should be chastised might make the party using such expres- 
 sions or making the statement liable for the inconsiderate act of another."
 
 74 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 and not with a view to cleanliness, that will be an aggravation, and 
 ought to increase the damages. You will therefore decide on the mo- 
 tives which actuated the defendants, and according to that decision 
 3'ou will estimate the amount of damages. 
 Verdict for the plaintiff. Damages £60.^^ 
 
 ANDERSON v. ARNOLD'S EX'R. 
 
 (Court of Appeals of Kentucky, ISSl. 79 Ky. 370.) 
 
 Judge: Pryor delivered the opinion of the court. Section 1 of 
 chapter 10, General Statutes, provides : "No right of action for per- 
 sonal injury, or injury to real or personal estate, shall cease or die 
 with the person injuring or the person injured, except actions for as- 
 sault and battery, slander, criminal conversation, and so much of 
 the action for malicious prosecution as is intended to recover for 
 the personal injury; but for any injury other than those excepted, 
 an action may be brought or revived by the personal representative, 
 or against the personal representative, heir, or devisee, in the same 
 manner as causes of action founded on contract." 
 
 The appellant, James Anderson, instituted his action in the Hardin 
 
 circuit court, in which he alleges that on the day of , 
 
 in the year 1878, the appellee's testator negligently and recklessly, but 
 not intentionally, inflicted a wound upon the body of the plaintiff (ap- 
 pellant) with a pistol ; in other words, that the appellee's testator 
 shot the plaintiff with a pistol, causing him great pain and bodily 
 suffering, and for which he asks a judgment, etc. On the hearing of 
 the cause, a demurrer was filed and sustained to the petition on the 
 
 37 Compare the remark of Holt, C. J., in Cole v. Turner (1704) 6 Mod. 149: 
 "The least touching of another in anger is a battery." 
 
 In Courtney v. Kneib (1908) l."Jl Mo. App. 204, 110 S. W. 665, an action for 
 assault and battery, the defendant pleaded that the plaintiff made the firt^t 
 assault. The trial court refused to give the following instructions asked by 
 the defendant: "The court instructs the jury that when the plaintiff got into 
 the wagon of Phillip Kneib, Sr.. for the purpose of taking the corn away from 
 Philip Kneib. Sr., and Philip Kneib, Sr.. then undertook to prevent him from 
 .so doing, and the plaintiff laid his hands upon the person of the said Philii> 
 Kneib, Sr., the plaintiff then committed an assault and battery upon the said 
 Philip Kneib, Sr., and his conduct was in violation of the law." On this, 
 Bioaddus, P. ,T., delivering the opinion of the Kansas City Court of Appeals, 
 renmrked: "There is one very serious oljjection to said instruction, and that 
 is that it .seeks to make an assault and battery out of the fact that plaintiff 
 merely laid his hand on defendant's fatlier, I'hilip Kneib, Sr. Such an act of 
 itself did not constitute an assault and battery. In order to have it made 
 such, the act must have been accompanied with anger or some other circum- 
 stance of the kind evincing hostility. All concur." 
 
 And see In re Murphy (18S4) lOJ) 111. .'!1. 'M : In our judgment malice was 
 the gist of tlie action (for assault and battery) within the sense (in wliicli) the 
 svord "malice" is used in the .statute (as to arrests in civil action when malice 
 "is not the gist of the action"). See. also, 3 Cyc. 1068: "Malice is the gist of 
 the action for assault and battery."
 
 Ch. 1) TRESPASSES T5 
 
 ground that the cause of action died with the person, and no action 
 could be maintained against Arnold's personal representative. 
 
 Counsel for the plaintiff proceeded on the idea that the injury must 
 be intentional in order to constitute it an assault and battery, and if 
 involuntary, the remedy was by an action on the case : as if A. shoot 
 at B. and wound C, the shooting of C. being unintentional is not an 
 assault and battery on C, but the result of an assault on B. 
 
 The various statutes authorizing actions by the widow, heirs, and 
 personal representative of one whose life has been lost by the neg- 
 ligence of another are not involved in the question presented in this 
 case, and there is no reason why the court should depart from the 
 common law rule in defining what constitutes an assault and battery, 
 although the appellant may have sustained great injury. The action 
 of trespass lies for injuries committed by force, and generally is 
 only for such as are immediate. (Chitty's Pleadings, vol. 1, p. 190.) 
 When the act complained of, and not the consequences of the act, 
 causes the injury, the remedy is trespass and not case. "Nor," says 
 Chitty, "is the motive, intent, or design of the wrong-doer towards 
 the complainant the criterion as to the form of the remedy; and it 
 is clear that the mind need not in general concur in the act that causes 
 an injury to another; and if the action occasion an immediate in- 
 jury, trespass is the proper remedy without reference to the intent." 
 (Chitty's Pleadings, vol. 1, p. 147.) When on uncocking a gun it 
 went off accidentally and wounded a bystander, it was held that the 
 action was properly brought in trespass. So when the defendant, in 
 firing his musket, accidentally wounded the plaintiff', trespass and 
 not case was the remedy. 
 
 The familiar illustrations given in the elementary books as to the 
 distinctio'U between trespass and case settle the question here. When 
 a log is thrown in the highway, and in the act of throwing it strikes 
 one, it is a trespass ; but if, when placed in the highway, one is in- 
 jured by falling over it, case is the proper remedy. So of the lighted 
 squib that was thrown in the market space, and afterwards thrown 
 about by others in self-defense ; the new impetus given to it by 
 others was held to be a continuance of the original force, and tres- 
 pass was the remedy. Following, therefore, this common law defini- 
 tion, it was an assault and battery committed upon the plaintiff', al- 
 though the shot was fired at a third person; and the meaning of the 
 words "assault and battery" will not be restricted to an actual and 
 intentional beating of another so as to authorize the recovery. If 
 an assault and battery at common law, the action does not survive, 
 and that it was there can be no doubt. 
 
 Judgment affirmed.
 
 76 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 VOSBURG V. PUTNEY. 
 
 (Supreme Court of Wisconsin, 1891. 80 Wis. 523, 50 N. W. 403, 
 14 L. R. A. 226, 27 Am. St. Rep. 47.) 
 
 The action was brought to recover damages for an assault and bat- 
 tery, alleged to have been committed by the defendant upon the plain- 
 tiff on February 20, 1889. The answer is a general denial. At the 
 date of the alleged assault the plaintiff was a little more than 14 years 
 of age, and the defendant a little less than 12 years of age. The 
 injury complained of was caused by a kick inflicted by defendant upon 
 the leg of the plaintiff, a little below the knee. The transaction oc- 
 curred in a school-room in Waukesha, during school hours, both 
 parties being pupils in the school. A former trial of the cause re- 
 sulted in a verdict and judgment for the plaintiff for $2,800. The 
 defendant appealed from such judgment to this court, and the same 
 was reversed for error, and a new trial awarded. 78 Wis. 84, 47 
 N. W. 99. The case has been again tried in the circuit court, and the 
 trial resulted in a verdict for plaintiff for $2,500. 
 
 On the last trial the jury found a special verdict, as follows: "(1) 
 Had the plaintiff during the month of January, 1889, received an in- 
 jury just above the knee, which became inflamed and produced pus? 
 Answer. Yes. (2) Had such injury on the 20th day of February, 1889, 
 nearly healed at the point of the injury? A. Yes. (3) Was the plain- 
 tiff, before said 20th of February, lame, as the result of such injury? 
 A. No. (4) Had the tibia in the plaintiff's right leg become inflamed 
 or diseased to some extent before he received the blow or kick from 
 the defendant? A. No. (5) What was the exciting cause of the 
 injury to the plaintiff's leg? A. Kick. (6) Did the defendant, in 
 touching the plaintiff with his foot, intend to do him any harm? A. 
 No. (7) At what sum do you assess the damages of the plaintiff? 
 A. Twenty-five hundred dollars." The defendant moved for judg- 
 ment in his favor on the verdict, and also for a new trial. The plain- 
 tiff moved for judgment on the verdict in his favor. The motions 
 of defendant were overruled, and that of the plaintiff granted. There- 
 upon judgment for plaintiff, for $2,500 damages and costs of suit, was 
 duly entered. The defendant appeals from the judgment. 
 
 Lyon, J. Several errors are assigned, only three of which will be 
 considered. 
 
 I. The jury having found that the defendant, in touching the plain- 
 tiff with his foot, did not intend to do him any harm, counsel for de- 
 fendant maintain that the plaintiff has no cause of action, and that 
 defendant's motion for judgment on the special verdict should have 
 been granted. In support of this proposition counsel quote from 2 
 Greenl. Ev. § 83, the rule that "the intention to do harm is of the 
 essence of an assault." Such is the rule, no doubt, in actions or prose- 
 cutions for mere assaults. But this is an action to recover damages
 
 Cll. 1) TRESPASSES 77 
 
 for an alleged assault and battery. In such case the rule is correctly 
 stated, in many of the authorities cited by counsel, that plaintiff must 
 show either that the intention was unlawful, or that the defendant is 
 in fault. If the intended act is unlawful, the intention to commit it 
 must necessarily be unlawful. 
 
 Hence, as applied to this case, if the kicking of the plaintiff by 
 the defendant was an unlawful act, the intention of defendant to 
 kick him was also unlawful. Had the parties been upon the play- 
 grounds of the school, engaged in the usual boyish sports, the defend- 
 ant being free from malice, wantonness, or negligence, and intending 
 no harm to plaintiff in what he did, we should hesitate to hold the 
 act of the defendant unlawful, or that he could be held liable in this 
 action. Some consideration is due to the implied license of the play- 
 grounds. But it appears that the injury was inflicted in the school, 
 after it had been called to order by the teacher, and after the regular 
 exercises of the school had commenced. Under these circumstances, 
 no implied license to do the act complained of existed, and such act 
 w^as a violation of the order and decorum of the school, and neces- 
 sarily unlawful. Hence we are of the opinion that, under the evi- 
 dence and verdict, the action may be sustained. * * * ^^ 
 
 RICHMOND V. FISKE. 
 (Supreme Judicial Court of Massachusetts, 1893. 160 Mass. 34, 35 N. E. 103.) 
 
 Trespass by Richmond against Fiske. From a judgment in defend- 
 ant's favor, plaintiff appeals. 
 
 The case was submitted upon the following agreed statement of 
 facts : 
 
 "Plaintiff was in the rightful possession of a tenement on the second floor 
 of No. ir)2 Hancoclv street, i^pringfield. His tenement was reached by a flight 
 of stairs, at the head of which was a door opening into a hall 12 or 15 feet 
 long, at one end of which a door opened into the Ivitchen. and at the other 
 end a door opened into plaintiff's sleeping room. The hallway was part of 
 the plaintiff's premises, and the outer entrance was about midway of its 
 length. Defendant was a milkman in the employ of the Springfield i\Iilk A.s- 
 sociation, and he delivered milk to plaintiff at an early hour every morning. 
 The hall and kitchen doors were left unlocked, so that defendant could enter, 
 and leave the milk in the kitchen. For some time prior to the act complained 
 of, defendant had, with plaintiff's permission, occasionally entered plaintiff's 
 sleeping room, through the door from the hall, for the purpose of collecting 
 the milk bills. Prior to the alleged trespass, plaintiff had forbidden defend- 
 ant entering the sleeping room any more, and requested him to keep out. On 
 the morning in question, after a night of suffering from sick headache, the 
 plaintiff' had dropped off into sleep, when defendant, entering the sleeping 
 room from the hall, after having left milk in the kitchen as usual, and find- 
 ing plaintiff" asleep, took hold of his arm and shoulders, and used sufficient 
 force to awaken the phiintift' for the purpose of presenting a milk bill. If, 
 upon these facts, defendant was guilty of a trespass, as alleged, plaintiff is to 
 be awarded such sum lor damages as to the court shall seem just; otherwi.se 
 judgment is to be for defendant." 
 
 88 Part of the opinion is omitted.
 
 78 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 Field, C. J. The declaration contains two counts, — one for an 
 assault and battery upon the plaintiff, and the other for forcibly en- 
 tering the plaintiff's close. The agreed facts show that the defend- 
 ant entered the plaintiff's close by his permission. The fact that after 
 the defendant entered, by permission, through the outer door into the 
 hall, he went, against the commands of the plaintiff, into the plain- 
 tiff's sleeping room, does not constitute a trespass upon the close. 
 Smith V, Pierce, 110 Mass. 35. 
 
 But the facts show a trespass upon the person of the plaintiff". Com. 
 V. Clark, 2 Aletc. (Mass.) 23. On the facts agreed, it must be taken 
 that the defendant, against the express commands of the plaintiff', en- 
 tered the plaintiff'"s sleeping room, and "took hold of his arm and 
 shoulders, and used sufficient force to awaken the plaintiff, for the 
 purpose of presenting a milk bill." If there were any circumstances 
 which would justify this, they do not appear in the agreed statement 
 of facts. Although the trespass is slight, the damages are not neces- 
 sarily nominal, and they should be left to be assessed by the superior 
 court. 
 
 The judgment should be reversed, and, in accordance with the 
 agreed statement, the plaintiff's damages should be assessed under the 
 first count. So ordered. 
 
 MOHR V. WILLIAMS. 
 
 (Supreme Coiu-t of Minnesota, 1905. 95 Minn. 261, 104 N. W. 12, 1 L. R. A. 
 [N. S.] 439, 111 Am. St. Rep. 462, 5 Ann. Cas. 303.) 
 
 Action to recover damages for an alleged assault and battery. There 
 was a verdict for plaintiff' for $14,322.50, whereupon the defendant 
 moved for judgment notwithstanding the verdict, on the ground that, 
 on the evidence presented, plaintiff was not entitled to recover, or, if 
 that relief was denied, for a new trial on the ground, among others, 
 that tlie verdict was excessive. The trial court denied the motion for 
 judgment, but granted a new trial on the ground, as stated in the or- 
 der, that the damages were excessive. Defendant appealed from the 
 order denying the motion for judgment, and plaintiff' appealed from 
 the order granting a new trial. 
 
 Brown, J. Defendant is a physician and surgeon of standing and 
 character, making disorders of the ear a specialty, and having an 
 extensive practice in the city of St. Paul. He was consulted by 
 plaintiff, who complained to him of trouble with her right ear, and, 
 at her request, made an examination of that organ for the purpose 
 of ascertaining its condition. He also at the same time examined her 
 left ear, but, owing to foreign substances therein, was unable to make 
 a full and complete diagnosis at that time. The examination of her 
 right ear disclosed a large perforation in the lower portion of the 
 drum membrane, and a large polyp in the middle ear, which indicated 
 that some of the small bones of the middle ear (ossicles) were proba-
 
 Ch. 1) TRESPASSES 79 
 
 bly diseased. He informed plaintiff of the result of his examination, 
 and advised an operation for the purpose of removing the polyp and 
 diseased ossicles. After consultation with her family physician, and 
 one or two further consultations with defendant, plaintiff decided to 
 submit to the proposed operation. She was not informed that her 
 left ear was in any way diseased, and understood that the necessity 
 for an operation applied to her right ear only. She repaired to the 
 hospital, and was placed under the influence of anaesthetics ; and, after 
 being made unconscious, defendant made a thorough examination of 
 her left ear, and found it in a more serious condition than her right 
 one. A small perforation was discovered high up in the drum mem- 
 brane, hooded, 'and with granulated edges, and the bone of the inner 
 wall of the middle ear was diseased and dead. He called this discov- 
 ery to the attention of Dr. Davis — plaintift''s family physician, who 
 attended the operation at her request — who also examined the ear, 
 and confirmed defendant in his diagnosis. Defendant also further 
 examined the right ear, and found its condition less serious than ex- 
 pected, and finally concluded that the left, instead of the right, should 
 be operated upon ; devoting to the right ear other treatment. He 
 then performed the operation of ossiculectomy on plaintiff's left ear ; 
 removing a portion of the drum membrane, and scraping away the 
 diseased portion of the inner wall of the ear. The operation was 
 in every way successful and skillfully performed. It is claimed by 
 plaintiff that the operation greatly impaired her hearing, seriously in- 
 jured her person, and, not having been consented to by her, was 
 wrongful and unlawful, constituting an assault and battery; and she 
 brought this action to recover damages therefor. * * * 
 
 The last contention of defendant is that the act complained of did 
 not amount to an assault and battery. This is based upon the theory 
 that, as plaintiff's left ear was in fact diseased, in a condition dan- 
 gerous and threatening to her health, the operation was necessary, 
 and, having been skillfully performed at a time when plaintiff had 
 requested a like operation on the other ear, the charge of assault 
 and battery cannot be sustained; that, in view of these conditions, 
 and the claim that there was no negligence on the part of defendant, 
 and an entire absence of any evidence tending to show an evil intent, the 
 court should say, as a matter of law, that no assault and battery was 
 committed, even though she did not consent to the operation. In 
 other words, that the absence of a showing that defendant was actu- 
 ated by a wrongful intent, or guilty of negligence, relieves the act of 
 defendant from the charge of an unlawful assault and battery. 
 
 We are unable to reach that conclusion, though the contention is 
 not without merit. It would seem to follow from what has been 
 said on the other features of the case^^ that the act of defendant 
 
 3 9 These features are given infra, in connection with the different forms of 
 ju.stification or excuse in trespass.
 
 80 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 amounted at least to a technical assault and battery.*" If the opera- 
 tion was performed without plaintiff's consent, and the circumstances 
 were not such as to justify its performance without, it was wrong- 
 ful; and, if it was wrongful, it was unlawful. As remarked in 1 Jag- 
 gard on Torts, 437, every person has a right to complete immunity 
 of his person from physical interference of others, except in so far 
 as contact may be necessary under the general doctrine of privilege ; 
 and any unlawful or unauthorized touching of the person of another, 
 except it be in the spirit of pleasantry, constitutes an assault and bat- 
 tery. In the case at bar, as we have already seen, the question wheth- 
 er defendant's act in performing the operation upon plaintiff' was 
 authorized was a question for the jury to determine. If it was un- 
 authorized, then it was, within what we have said, unlawful. It was 
 a violent assault, not a mere pleasantry; and, even though no neg- 
 ligence is shown, it was wrongful and unlawful. The case is unlike 
 a criminal prosecution for assault and battery, for there an unlawful 
 intent must be shown. But that rule does not apply to a civil action, 
 to maintain which it is sufficient to show that the assault complained 
 of was wrongful and unlawful or the result of negligence. 1 Addi- 
 son on Torts, 689; Lander v. Seaver, 32 Vt. 114, 76 Am. Dec. 156; 
 Vosburg V. Putney, 80 Wis. 523, 50 N. W. 403, 14 L. R. A. 226, 27 
 Am. St. Rep. 47. * * * 
 
 (C) In False Imprisonment 
 (a) In General 
 
 WRIGHT V. WILSON. 
 
 (Summer Assizes at Lincoln, 1699. 1 Ld. Raym. 739, 91 Reprint, 1394.) 
 
 A. has a chamber adjoining to the chamber of B. and has a door 
 that opens into it, by which there is a passage to go out ; and A. 
 has another door, which C. stops, so that A. cannot go out by that. 
 This is no imprisonment of A. by C. because A. may go out by the 
 door in the chamber of B. though he be a trespasser by doing it. But 
 A. may have a special action upon his case against C. Ruled by 
 
 <o On the general principle, see also, Schloendorff v. Society of New York 
 Hospital (N. Y. 1914) 105 N. E. 92: A patient to whom ether was beiiis ad- 
 ministered in the surgical ward of a hospital said to the attendant that there 
 must be no operation but only an ether examination. The surgeon in charge 
 operated while the patient was unconscious. "In the case at hand," said 
 Cardozo, J., "the wrong coiiiplained of is not merely negligence. It is tres- 
 pass. Every human being of adult years and sound mind has a right to de- 
 termine what shall be done with his own body ; and a surgeon who performs 
 an operation without his patient's consent connnits an assault, for which he 
 is liable in damages." See, also. Pratt v. Davis (1006) 224 111. 300, 79 N. E. 
 562, 7 L. R. A. (N. S.) 600, 8 Ann. Cas. 197 ; Rolater v. Strain (1913) 39 Okl. 
 572, 137 Pac. 90, 50 L. R. A. (N. S.) 880.
 
 Ch.l) 
 
 TRESPASSES 81 
 
 Holt, Chief Justice, in evidence at the trial in an action of false im- 
 prisonment. And the plaintiff was nonsuit.*^ 
 
 41 See Bird v. Jones (1845) 7 Q. B. 742, 68 R. R. 564, 115 Reprint, 668: 
 
 A part of Ilammersmitli Bridge wliicii was ordinarily used as a public foot- 
 way was appropriated for seats to view a regatta, and was separated for tliat 
 purpose from tlie cari-iage way by a temporary fence. Tlie plaintiff insisted 
 in passing along the part so appropriated, and attempted to climb over the 
 fence. The defendant then stationed two policemen to prevent, and they did 
 prevent, the plaintiff from proceeding forward along the footpath; but he 
 was told that he might go back to the carriage way, and proceed to the 
 other side of the bridge if he pleased. 
 
 Coleridge, J. " * * * I am of opinion that there was no imprisonment. 
 To call it so appears to me to confound partial obstruction and disturbance 
 witli total obstruction and detention. A prison may have its boundary large 
 or narrow, visible and tangible, or, though real, still in the conception only ; 
 it may itself be movable or tixed; but a boundary it must have; and that 
 boundary the party imprisoned must be prevented from passing; he must 
 be prevented from leaving that place, within the ambit of which the party 
 imprisoning would contine him, except by prison breach. Some confusion 
 seems to me to arise from confounding imprisonment of the body with mere 
 loss of freedom: it is one part of the definition of freedom to be able to go 
 withersoever one pleases ; but imprisonment is something more than the 
 mere loss of this power ; it includes the notion of restraint within some limits 
 dettned by a will or power exterior to our own. * * * If in the course of 
 a night, both ends of a street were walled up, and there was no egress from 
 the house but into the street, I should have no difficulty in saying that the 
 inhabitants were thereby imprisoned ; but, if only one end were walled up, 
 and an armed force stationed outside to prevent any scaling of the wall or 
 passage that way, I should feel equally clear that there was no imprisonment. 
 If there were the street would obviously be the prison ; and yet, as obviously, 
 none would be confined to it. * * * " 
 
 Lord Denman, C. J. " * * * But this liberty to do something else does 
 not appear to me to affect the question of imprisonment. As long as I am 
 prevented from doing wliat I have a right to do, of what importance is it 
 that I am permitted to do something else? How does the imposition of an 
 unlawful condition show tliat I am not restrained V If I am locked in a room, 
 am I not imprisoned because I might effect my escape through a window, or 
 because I might find an exit dangerous or inconvenient to myself, as by wad- 
 ing through water or by taking a route so circuitous that my necessary affairs 
 would suffer by delay? It appears to me that this is a total deprivation of 
 liberty with reference to the purpose for which he lawfully wished to employ 
 his liberty: and, being effected by force, it is not the mere obstruction of 
 a way, but a restraint of the person. The case cited as occurring before Chief 
 Justice Tindal, as I understand it, is nmch in point. He held it an imprison- 
 ment where the defendant stopped the plaintiff on his road till he had 
 read a libel to him. Yet he did not prevent his escaping in another direc- 
 tion." * * * 
 
 And see 19 Cyc. 322, note 24. 
 
 Compare Norton v. Union Ry. Co. (1908) 58 Misc. Rep. 188, 109 N. Y. Supp. 
 73 (P., having a transfer neither asked for nor exhibited, boarded a trolley 
 car which was not run farther, but, after P. and all intending passengers 
 had been asked to take another car, there standing, it was put upon a siding. 
 Here P. and three others sat for an hour or more. P. claims false imprison- 
 ment)'; Crossett v. Campbell (1908) 122 La. 659, 666, 48 South. 141, 143, 20 
 L. R. A. (N. S.) 967, 129 Am. St. Rep. 362 (P. entered upon grounds which 
 were lawfully in possession of schoolboys, who were giving a free picnic, and 
 who had given notice, in advance, that later in the day a game of baseball 
 would be played, to which a ti'illing admission fee would be charged. When 
 the game was about to begin he refused, though repeatedly requested so to do, 
 to pay the fee or go out, and he was thereupon taken by the arm by a citizen — 
 one of the assembled guests or patrons — acting in behalf of the boys, though 
 
 Hepb.Tokts — 6
 
 82 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 HERRING V. BOYLE. 
 
 (Court of Exchequer, 1S34. 1 Cr. M. & R. 377, 40 R. R. 610.) 
 
 Trespass for assault and false imprisonment. Plea, the general is- 
 sue. At the trial, the following appeared to be the facts of the case : 
 
 The phiintiff, who sued by his next friend, was an infant about ten years 
 old. He was placed by his mother, who was a widow, at a school kept by the 
 defendant. The terms of the defendant's school were twenty guineas a year, 
 payable quarterly. The first quarter, which became due on the 29th of Sep- 
 tember, 1833, was duly paid. On the 24th of December in the same year, the 
 plaintiff's mother went to the school and asked the defendant to permit the 
 plaintiff to go home with her for a few days. The defendant refused, and 
 would not permit the mother to see the son, and told the mother that he 
 would not allow him to go home, unless the quarter ending on the 25th of 
 December was paid. The mother remonstrated, and said she would pay the 
 quarter's schooling in a short time, but it was not due until the next day. A 
 few days afterwards, the mother went again to the defendant at his school, 
 and demanded from him to see her son, and be allowed to take him home 
 with her. The defendant refused. On the 31st of December, the mother went 
 again with a friend, and made the same demand ; but the defendant refused 
 to let her see the plaintiff, or to allow her to take him home, and he then 
 claimed another quarter's schooling, as a few days of the quarter after the 
 25th of December had then elapsed, and he insisted on keeping the plaintiff 
 until that amount also should be paid. A formal demand was afterwards 
 made, and on a writ of habeas corpus being sued out, the plaintiff was sent 
 home, seventeen days having elapsed after the first demand by his mother. 
 No proof was given that the plaintiff knew of the denial of his mother, nor 
 was there any evidence of any actual restraint upon him. 
 
 On these facts the learned Baron was of opinion that there was 
 no evidence of an imprisonment to go to the jury, and he nonsuited 
 the plaintiff. 
 
 Comyn obtained a rule to set aside the nonsuit and for a new trial, 
 against which cause was now shewn by 
 
 Hutchinson, for the defendant : The nonsuit was right. There 
 was no corporal touch or restraint on the plaintiff. The form of 
 the proceeding in trespass shews that there must be an actual force. 
 It must be laid contra pacem and vi et armis. Here there was no 
 force or restraint for which either an indictment or action of tres- 
 pass vi et armis was maintainable. 
 
 Comyn and Butt, contra : The boy was sent by his mother to the 
 defendant's school. She had authority to place him in the care of 
 the schoolmaster, and she had authority to determine his continuance 
 there. Now it was proved that the authority from the mother to 
 the master was withdrawn, and the defendant could not justify the 
 detention after such authority was withdrawn. * * * Here, when 
 the authority to keep the boy was withdrawn, the master persisted 
 in detaining him for the purpose of extortion. (Aldi^Irson, B. The 
 
 without special authority, and led in the direction of the gate, always with 
 the privilege of paying and staying, and the alternative ol" not paying and 
 going. Before reaching the gate, he paid the fee, and thereafter stayed and 
 witnessed the game. Held, P. had no ground for an action for false imprison- 
 ment).
 
 Ch. 1) TRESPASSES 83 
 
 fallacy seems to me to be, that you assume, for the purpose of your 
 argument, that every boy at school is in prison. If that were so, 
 you would go a long way to convince us that when the authority to 
 keep him, there is at an end, his remaining at school might be an im- 
 prisonment. That however is not so with regard to a boy at school. 
 In the case of a lunatic perhaps it might be different. A person of 
 full age restrained as a lunatic, might probably be taken prima facie 
 to be detained against his will.) The assent of a child of such tender 
 years may perhaps be assumed, in the first instance, because the law 
 will presume the assent of an infant to what is for his benefit; but 
 that assent must be taken to be revoked when the contract for school- 
 ing is determined by the act of the mother. In the present case, the 
 plaintiff was detained during the holidays, and it may fairly be pre- 
 sumed that keeping at school during the holidays, is against the will 
 of a school-boy. (Holland, B. The evidence did not bring the 
 schoolmaster and the plaintiff into contact, so as to shew that there 
 was any the least restraint of the one upon the other.) Every de- 
 tention against the will is a false im.prisonment, and every false im- 
 prisonment includes an assault in point of law, so that any argument 
 to be derived from the form of the action for assault is totally un- 
 founded. The only question is, whether there was any evidence to 
 go to the jury of a detention against the will of the plaintiff'. It is 
 submitted that there was. The child was kept through the holidays, 
 and it ought to have been left to the jury, whether that was not 
 against the plaintiff's will. Besides, in the case of a child of such 
 tender years, the will of the parent is to be considered as the will 
 of the child, and in this case the wall of the mother was sufficiently 
 expressed. The master declared distinctly that he would detain him 
 until he was compelled by habeas corpus to deliver him up ; and he 
 was detained at school, and such declaration of the master, coupled 
 with the fact of the boy remaining at school during the holidays, was 
 surely evidence to go to the jury that the master had acted on such 
 declaration and had kept the boy there against the will both of his 
 mother and himself. (AldLRSON, B. It is clear that the assent of 
 the plaintiff" would put an end to an action in this form ; that shews 
 that the will of the mother is not the will of the child. In the pres- 
 ent case there was no proof that the master conducted himself to the 
 boy in a different manner in any respect before and after the refusal 
 to deliver him up to his mother ; as against the mother he detained 
 him unlawfully ; he says in respect to the mother, I will not give liim 
 up to you without a habeas corpus. That might however be with or 
 without the assent of the boy. The plaintiff was bound to prove his 
 dissent, and not to leave that question in ambiguity.) Cur. adv. vult. 
 The judgment of the Court was delivered on the next day : 
 Holland, B. This was an action of trespass for assault and false 
 imprisonment, brought by an infant by his next friend. * * * There
 
 84 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 are many cases which shew that it is not necessary, to constitute an 
 imprisonment, that the hand should be laid upon the person ; but in 
 no case has any conduct been held to amount to an imprisonment in 
 the absence of the party supposed to be imprisoned. An officer may 
 make an arrest without laying his hand on the party arrested ; but 
 in the present case, as far as we know, the boy may have been 
 willing to stay; he does not appear to have been cognizant of any 
 restraint, and there was no evidence of any act whatsoever done by 
 the defendant in his presence. I think that we cannot construe the 
 refusal to the mother in the boy's absence, and without his being cog- 
 nizant of any restraint, to be an imprisonment of him against his 
 will; and therefore I am of opinion that the rule must be discharged.*^ 
 
 MOSES V. DUBOIS. 
 (Court of Appeals of South Carolina, 1S3S. Dud. 209.) 
 
 False imprisonment against the captain of a steamboat for carrying 
 the plaintiff, a deputy-sheriff, to sea against his will. Verdict for 
 $100. Motion for a new trial. 
 
 Earls, J. Every unlawful restraint of personal liberty is an im- 
 prisonment, whether accompanied by corporal touch or not ; whether 
 in a house, in a ship, or in the street. But force of some sort must 
 be used, and it must be a detention against the will; and it is indis- 
 pensable that these two circumstances should unite. The force may 
 be exhibited in a variety of ways without actual assault or corporal 
 touch. — ^by locking a door after enticing one within, and refusing to 
 open it for his departure; by setting sail or pushing off from shore, 
 having one on board, and refusing to allow him to go ashore; or 
 
 4 2 The concurring opinions of Alderson and Guvney, BB., are omitted. 
 Lord I.yndhurst concurred in the judgment. 
 
 Compare: 
 
 Com. V. Nickerson (1862) 5 Allen (Mass.) .518: N. entered a school room 
 and forcibly seized and carried away a boy of nine years, who had been placed 
 in the school by his father, the legal custodian of the child. N.'s acts were 
 under the direction of the mother of tlio boy, who, when he learned the pur- 
 pose of the seizure, wished to have it carried out. Is', had no actual knowl- 
 edge that his acts were violating the father's legal rights. Held that such 
 evidence sustained an indictment for false imprisonment. "Being in the ac- 
 tual custody of his father, whose will alone was to govern as to his place of 
 residence and the selection of a teacher and custodian, this child of nine years 
 of age was incapable of assenting to a forcible removal from the custody of 
 his teacher, and a transfer to other persons forliidden by law to take such 
 custody. He was under illegal restraint, when taken away from the lawful 
 custody and against the will of his riglitful custodian ; and such taking is in 
 law deemed to be forcible and against the will of the child." Per Dewey, J., 
 5 Allen, page o2C. 
 
 Wood v. Cuniniings (1908) 197 Mass. 80, 83 N. E. 318: D. locked the outside 
 door of a building while P. was within, not to detain P., but as a means of 
 protection against interference from without; the door was unlocked as soon as 
 P. made known his desire to go out.
 
 Ch. 1) TRESPASSES 85 
 
 by detaining one on the highway by threats of personal violence if 
 he departed. And it is equally essential that the person should be 
 detained against his will; for if he voluntarily place himself in a sit- 
 uation where another may lawfully do that which has the effect of 
 restraining liberty, especially if he refuse to depart when he may, he 
 cannot complain that he is unlawfully imprisoned against his will. A 
 sheriff's officer goes to the house of A. on the evening of an •enter- 
 tainment, w-ith a bail process against one of his guests, and enters, 
 as he lawfully may, and makes the arrest, A. refusing to assist him, 
 but offering no hinderance ; being unable to remove his prisoner, he 
 chooses to remain until the close of the entertainment, expecting then 
 to accomplish his purpose on the departure of the guests ; but the 
 prisoner, being on a visit there, remains. The officer, being informed 
 that the doors are about to be closed, is requested to depart with his 
 prisoner, if he can take him, else without him ; but he is unable to 
 take, and refuses to go w'ithout him. If A. should lock his doors 
 and retire to rest, could the officer complain of false imprisonment 
 if A. should refuse to rise at a late hour of the night, at his request, 
 to open the door? I should think not. If a man enters a tavern 
 and continues there all night against the will of the landlord, it is a 
 trespass, — could he complain if the landlord shuts his door upon him? 
 The general rule is, that a trespass will not lie for a mere non- 
 feasance ; and it seems to follow from that proposition that when 
 an act has been done, in the first instance lawful in itself, it cannot 
 be rendered unlawful ab initio, except by some positive act incom- 
 patible with the exercise of the legal right to do the first act. Gates 
 v. Lounsbury, 20 John. 429; Gardner v. Campbell, 15 ib. 401, 
 
 In the case made by the evidence it does not appear that the plain- 
 tiff was carried from the shore against his will, but the reverse. The 
 destination of the boat was known, — the accustomed hour of departure 
 was passed; the boat w-as in the act of getting under way; at that 
 moment the plaintiff chose to go on board to arrest a person on a 
 bail process, evidently under the mistaken impression as to the ex- 
 tent of his authority; and, seeing the boat leaving the wharf, he 
 chooses to remain. Here, then, there was no unlawful detention, ac- 
 cording to the principles I have laid down : the defendant was in 
 discharge of his known and accustomed duty, and therefore in the 
 performance of a lawful act, and the plaintiff' was not detained against 
 his will. i\t what time did the false imprisonment commence? After 
 the boat had proceeded into the stream some distance from the wharf, 
 the defendant came and proposed to the plaintiff to send him ashore 
 with his prisoner, if he could take him, else to send him alone. The 
 plaintiff refused to go unless the defendant would aid him in carry- 
 ing his prisoner. It need not be repeated that this the defendant was 
 not bound to do. It was his duty to interpose no obstacle to the ar-
 
 86 TORTS THROUGH ACTS OP ABSOLUTE LIABILITY (Part 1 
 
 rest or the removal of the prisoner, but rather to afford such facilities 
 as he could to the service of legal process. This he seems to have 
 done, and more could hardly have been expected. On the refusal of 
 the plaintiff to go ashore, the defendant proceeded on his voyage, — 
 one on which the plaintiff" knew the boat was in the act of departing 
 when he went aboard. This was also the accustomed duty, the of- 
 fice of^the defendant, and was therefore a lawful act. 
 
 If the defendant was not bound to aid in the arrest and removal 
 of the prisoner, I do not perceive that he was bound either to delay 
 his voyage or put back his boat to enable the plaintiff to procure as- 
 sistance. When the boat had arrived at the mouth of the harbor, 
 near Sullivan's Island, the plaintiff demanded to be put ashore, which 
 the defendant then refused ; here commenced the detention of the 
 plaintiff' against his will. Was it unlawful? I think it cannot be so 
 held ; the defendant only proceeded on his voyage. His refusal to 
 send the plaintiff ashore at that time, which would have delayed his 
 progress and put him in trouble, was a mere non-feasance, which if 
 he had been guilty of no trespass up to that time, did not render him a 
 trespasser ab initio : it was not a positive act, incompatible with the 
 legal exercise of the right to proceed from the wharf, the plaintiff 
 being on board. 
 
 Motion for a new trial granted.** 
 
 4 3 Compare: 
 
 Spoor V. Spooner (1S47) 12 Mete. (Mass.) 281: A ship was on the point of 
 sailing when P., a constable, came on board with a civil process to arrest the 
 steward. The sails were set and the fasts, by which the ship was held to the 
 wharf, were singled. P. immediately npon going on board, found and ar- 
 rested the steward, but remained standing with him ten or twelve minutes 
 without attempting to leave. In common with others, P. had repeated notice 
 that the fasts were about to be cast off, and that all persons not belonging 
 on board should quit the ship. After full notice, the fasts were cast off and 
 the ship sailed with P. still on board. He sues the master in trespass for 
 false imprisonment. 
 
 Williams v. Powell (1869) 101 Mass. 467, 3 Am. Rep. 306: P., a constable, 
 attached the desk and law books of an attorney, in the office of D., an insur- 
 ance brolcer, and placed a keeper over them. The property attached did not 
 amount to more than $1100 in value ; but P. neglected to remove them during 
 the five hours of daylight. P. then demanded of 1). a key to the door of the 
 office, that he might continue his possession through the night, and on being 
 refused procured a key from a locksmith. It being near sunset, D. put an- 
 other lock on the door and gave I*, notice to remove the attached chattels im- 
 mediately and leave the ofhce. P. refused to leave, saying that he could not 
 move the goods that night, but would move them early in the morning. D. 
 then secured the door for the night, locking in P. and the keeper. P. sues 
 for false imprisonment. 
 
 Robinson v. Balmain Ferry Company (1910) A. C. 295, the facts of which 
 are given infra. 
 
 And see "Leave and License," infra.
 
 Ch. 1) TRESPASSES 87 
 
 GARNIER V. SQUIRES. 
 (Supreme Court of Kansas, 1900. 62 Kan. 321, 62 Pac. 1005.) 
 
 Action by Garnier against Squires on three causes of action : First, 
 for slander in charging plaintiff with the larceny of $500; second, 
 for false imprisonment; third, for an unlawful search of plaintiff's 
 premises. There was a judgment for defendant, and plaintiff brings 
 error. 
 
 Johnston, j. * * * The facts out of which the controversy 
 arose are substantially as follows : On the night of February 14, 1878, 
 Squires claimed that when he retired he had $500 in his vest pocket ; 
 that it was taken therefrom at some time during the night ; that 
 Garnier was in the house, and knew that defendant had the money; 
 that the doors of the house were securely locked, and there was no 
 one else in the house who could or would have taken the money. 
 And he charged that Garnier stole it from him. On the next morning 
 after missing his money Squires went to Garnier's place of business, 
 and pointed a loaded revolver at Garnier's head and demanded $500 
 which he said Garnier had stolen from him. He admits in his plead- 
 ing and in his testimony that he followed Garnier to his office, ac- 
 cused him of stealing his money, and that he threatened to shoot him 
 if he did not unlock the safe and give him the money. The plaintiff' 
 says that about 9 o'clock in the morning, and while he was busy, some 
 one approached him with an oath, saying, "If you don't give me that 
 five hundred dollars you stole from me, I will blow you full of holes," 
 and that when he looked around he was facing a revolver in the hands 
 of "Sir. Squires ; that Squires held a revolver on him and made him 
 unlock the safe ; that he was scared and thought Squires was going 
 to kill him. But the nioney was not found in the safe or on the 
 premises, and no direct proof was offered of the steaHng of the 
 money by any one. The defendant alleged that he honestly believed, 
 and still believes, that Garnier stole the money from him. 
 
 After the testimony was received the court instructed the jury: 
 
 "If you believe from the evidence that the defendant lost said sum of S.iOO, 
 and had reasonable grounds for believing that the plaintiff had stolen it from 
 him, and without malice towards the plaintiff, but in an endeavor to recover 
 said sum of §500, went to the place of business of the plaintiff and there de- 
 manded a return of said money, and there accused the plaintiff of having stol- 
 en said money, and detained the plaintiff by pointing at him a loaded revolver, 
 then you should render a verdict for the defendant." 
 
 Objection was made to this instruction when it was given, and it 
 constitutes the principal ground assigned for the reversal of the judg- 
 ment that was rendered against the plaintiff. It was intended to 
 apply to the testimony given in support of the count for false im- 
 prisonment, and we think it does not correctly state the law applica- 
 ble to that phase of the case. The testimony in the case justified a 
 charge as to what were the constituent elements of false imprison-
 
 88 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 ment, chief of which are the detention and restraint, and the unlaw- 
 fulness of such detention and restraint. The testimony for the plain-" 
 tiff tended to show actual restraint for a short time, accomplished 
 through fear of violence and bodily harm. It is true, there was no 
 judicial proceeding, no warrant of arrest, nor any manual touching 
 or taking into custody. But these are not essential elements. "False 
 imprisonment is necessarily a wrongful interference with the personal 
 liberty of an individual. The wrong may be committed by words 
 alone or by acts alone, or by both, and by merely operating on the 
 will of the individual, or by personal violence, or by both. It is not 
 necessary that the individual be confined within a prison or within 
 walls, or that he be assaulted or even touched. It is not necessary that 
 there should be any injury done to the individual's person or to his 
 character or reputation ; nor is it necessary that the wrongful act 
 be committed with malice or ill will, or even with the slightest wrong- 
 ful intention ; nor is it necessary that the act be under color of any 
 legal or judicial proceeding. All that is necessary is that the in- 
 dividual be restrained of his liberty without any sufficient legal cause 
 therefor, and by words or acts which he fears to disregard." Comer 
 V. Knowles, 17 Kan. 436.'^* 
 Judgment reversed. 
 
 SMITH V. STATE. 
 
 (Supreme Court of Tennessee, 1846. 7 Humph. 43.) 
 
 Rodgers, with horse and carryall, was carried over the Chucky 
 river by Smith in his ferry boat. Smith was the keeper of a public 
 ferry. When over. Smith demanded the ferriage, which Rodgers 
 said was already paid; on this a dispute occurred, and Smith told 
 him he should not go on till he paid the ferriage. Some other con- 
 versation ensued, when Rodgers paid the ferriage demanded. Rodgers 
 was detained ten or fifteen minutes. 
 
 An indictment was found against Smith for an assault and false 
 imprisonment. Rodgers stated on the trial that Smith had not touched 
 his bridle or his horse ; that he made no eft'ort to strike or touch his 
 person or his horse ; and that he made no threats of personal violence, 
 but that he was afraid of a difficulty with Smith. Smith told Rodgers, 
 after he had paid the charge, that if he had not paid it he had deter- 
 mined to have put his carryall and horse back into the boat, and to 
 have carried them back. A verdict and judgment were rendered for 
 the state, and defendant appealed. 
 
 Green, J. The court charged the jury: 
 
 "That, to make out the offence as charged, no actual force was necessary, 
 but that a man might be assaulted by being beset by another; and if the 
 
 ** A portion of the opinion, mainly on other points, is omitted.
 
 Ch. 1) TRESPASSES 89 
 
 opposition to the prosecutor's going forward was such as a prudent man 
 would not risk, then the defendant would," in contemplation of law, be guilty 
 of false imprisonment." 
 
 This charge is correct in all its parts, and the facts were fairly left 
 to the jury. A verdict of guilty has been pronounced, and we. do not 
 feel authorized to disturb it. The prosecutor and defendant disputed 
 about the ferriage defendant claimed. Smith insisted upon his de- 
 mand, and said he did not choose to sue every man that crossed at 
 his ferry. Although he did not take hold of the prosecutor, or offer 
 violence to his person, yet his manner may have operated as a moral 
 force to detain the prosecutor. 
 
 And this appears the more probable, as, after the affair was set- 
 tled, the prosecutor inquired what defendant would have done if he 
 had not paid the ferriage demanded, to which the defendant replied, 
 "he would have put his carryall and horse back into the boat and 
 taken them across the river again." As this determination existed in 
 his mind, it doubtless was exhibited in the manner of the defendant, 
 and thus operated upon the fears of the prosecutor. 
 
 Affirm the judgment.*^ 
 
 45 Compare Hebrew v. Pulis (1906) 7.3 N. J. Law. 621. 64 Atl. 121. 7 L. R. 
 A. (X. S.) .580, lis Am. St. Rep. 716: P., a maid servant in the employ of S., 
 was suspected by S. of stealing a ring. S. called in a policeman in uniform, 
 D., and summoned P. to their presence. D. asked P. if she had the ring. P. 
 denied having it or knowing where it was. After further parley D. roughly or- 
 dered P. to go to her room "and strip herself to the hide," remarking: "We are 
 going to search every piece of clothing you own. I am going to find that 
 ring." P. protested but made no physical resistance, and the search was made 
 by S. as directed, D. meanwhile standing at the door. On the question whether 
 there was an imprisonment although D. did not lay a hand on P., Swayze, J., 
 remarked: "The fact that Pulis [D.] was a police officer and known to the 
 plaintiff to be such, that she was confronted not only by him, but her employ- 
 ers, that she was suspected of larceny for which the otficer might arrest her 
 if he had reasonable ground to believe that the crime had been committed, 
 warranted her in believing that if she failed to submit to Pulis' demands she 
 would be actually arrested. The emphatic language in which the officer 
 commanded her to strip to the hide was calculated to terrorize a girl in her 
 situation, and the verj' fact that the officer, wholly without right, asserted 
 such authority and gave such a command justifies the inference that he and 
 his employers and codefendants intended to terrorize the plaintiff and to se- 
 cure the effect of a search without legal process. If it was only intended to 
 secure the consent of the plaintiff' to a thorough search, the presence of the 
 police officer was quite unnecessary. The appeal of the Misses Sands would 
 have been as persuasive as the command of the officer, but for his seeming 
 authority. We think the case at least presents a question for the jury, and 
 that the reason given by the learned trial judge is not sufficient to justify his 
 conclusion. We think, further, that the nonsuit cannot be .sustained on any 
 other ground. There is, indeed, no proof that the defendants laid hands on 
 the plaintiff ; but that is unnecessary. Whatever doubt may have been 
 tlirown upon this question by some of the earlier English cases is now re- 
 moved by the later authorities. Grainger v. Hill (1S.3S) 4 P>ingham, N. C, 212; 
 Warner v. Riddiford (1858) 4 Common Bench, X. S., 180. The American cases 
 are to the same effect. Bissell v. Gold (1828) 1 Wend. (X. Y.) 210, 19 Am. Dec. 
 480 ; Pike v. Hanson (1838) 9 X. H. 491 ; Rrushaber v. Stegemann (1871) 22 
 Mich. 266; Johnson v. Tompkins (183.3) Baldw. 571, 601, 602, Fed. Cas. Xo. 
 7,416. Tlie essential thing is the constraint of the person. This constraint 
 may be caused by threats, as well as by actual force ; and the threats may be
 
 90 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 FOTHERINGHA^I v. ADAMS EXPRESS CO. 
 (United States Circuit Court, E. D. Missouri, 18S8. 36 Fed. 252, 1 L. R. A. 474.) 
 
 Action by Fotheringham against the Adams Express Company. 
 Verdict for the plaintiff. Motion for a new trial. 
 
 Thayer, j, * * * j entertain no doubt that the jury were 
 warranted in finding that plaintiff was unlawfully restrained of his 
 liberty from about the 27th or 28th of October until the 10th of 
 November following ; that is to say, for a period of about two weeks. 
 The testimony in the case clearly showed that during that period he 
 was constantly guarded by detectives employed by defendant for 
 that purpose ; that he was at no time free to come and go as he 
 pleased; that his movements were at all times subject to the control 
 and direction of those who had him in charge; that he was urged by 
 them on several occasions to confess his guilt, and make known his 
 confederates ; and that he was subjected to repeated examinations 
 and cross-examinations touching the robbery, of such character as 
 clearly to imply that he was regarded as a criminal, and that force 
 would be used to detain him if he attempted to assert his liberty. The 
 jury in all probability found (as they were warranted in doing) that dur- 
 ing the time plaintiff remained in company with the detectives, he was 
 in fact deprived of all real freedom of action, and that whatever 
 consent he gave to such restraint was an enforced consent, and did not 
 justify the detention without a warrant. It is manifest that the court 
 ought not to disturb the finding on that issue. * * * 
 
 Motion overruled.*® 
 
 by conduct or by words. If the words or conduct are such as to induce a 
 reasonable apprehen.siou of force, and the means of coercion are at hand, a 
 ])erson may be as effectually restrained and deprived of liberty as by prisou 
 bars. Unless it is clear that there is no reasonable apprehension of force, 
 it is a question for the jury whether the submission was a voluntary act, or 
 brought about by fear that force would be used. No doubt cases may arise 
 where it will be a question of difficulty to determine how far the free will of 
 the plaintiff was overcome, but that determination rests with the jury." 
 
 4 Part of the opinion is omitted. 
 
 The verdict was for $20,000 damages. The court overruled the motion 
 for a new trial only on condition that the plaintiff "remit at least 40 per cent, 
 of the verdict within the next five days." 
 
 Compare Schultz v. Frankfurt Marine Ins. Co. (1913) 151 Wis. 537, 139 
 N. W. 386, 43 L. R. A. (N. S.) 520: P. had been a witness adverse to D. in 
 an action. While a motion for a new trial was pending in this action P. was 
 "rough shadowed," at D.'s instance, by detectives. The court asks, and an- 
 swers in the allirmative, the question whether, "omitting all alleged restraint 
 of personal liability" any personal right is "violated by openly and publicly 
 following and watching one." See "Defamation," infra, and 13 Col. Law Rev. 
 336, 337.
 
 Ch. 1) TRESPASSES 91 
 
 YOUNG V. ROSSI. 
 
 WILLARD V. ROSSI. 
 (United States District Court, E. D. New York, 18S7. .30 Fed. 231.) 
 
 In Admiralty. 
 
 Benedict, J. These cases can be disposed of together. In each 
 case the hbelant seeks to recover of the defendant damages for false 
 imprisonment. The wrongful detention of the men on board his 
 vessel by the defendant is admitted. But it is not a case for large 
 damages ; no loss resulted to the libelants from their detention. If 
 $100 be paid each libelant, a sufficient remuneration will be received 
 for the infringement of their personal rights and any inconvenience 
 to which they were put. 
 
 Let each libelant have a decree for $100, and his costs. 
 
 TALCOTT V. NATIONAL EXHIBITION CO. 
 
 (Supreme Court of New York, Appellate Division, 1911. 144 App. Div. 337. 
 
 128 N. Y. Supp. 1059.) 
 
 Carr, J. The defendant appeals from a jtidgment of a Trial Term 
 of the Supreme Court in Westchester county, entered upon a verdict 
 of a jury in an action for false imprisonment, and from an order 
 denying a motion for a new trial. The facts are as follows : 
 
 On the morning of the 8th of October, 1908, the plaintiff went into 
 the inclosure of the defendant in the city of New York to buy some 
 reserved seats for a baseball game which was to be held there in the 
 afternoon of that day. These seats were sold at a number of booths 
 within the inclosure. The plaintiff was unsuccessful in his quest, as 
 all the reserved seats had been sold. He tried to leave the inclosure 
 through some gates used generally for ingress and exit. A consider- 
 able number of other persons were trying to leave the inclosure 
 through the same gates at the same time. It appears that the base- 
 ball game which was to take place was one of very great importance 
 to those interested in such games, and a vast outpouring of people 
 were attracted to it. IMany thousands of these came early in the day 
 to seek admittance to the ball grounds, and the result was that the 
 various gates used generally for entrance or exit were thronged with 
 a dense mass of people coming in. The plaintiff was prevented by the 
 servants of the defendant from attempting to pass out through this 
 throng, and as a result of this interference he was detained in the in- 
 closure for an hour or more, much to his annoyance and personal in- 
 convenience. The plaintiff and those similarly situated made many 
 attempts to get out through these gates, and in the restraint put upon 
 them to defeat their efforts they were subjected to some hauling and
 
 92 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 pushing by the defendant's special policemen. Finally the plaintiff and 
 the others were taken through a club house within the inclosure and 
 allowed to go out through the entrance to the club house to the street. 
 
 Concededly the plaintiff had a legal right to leave the inclosure, 
 and the defendant had no legal right to detain him therein against 
 his will. But the right of each had corresponding duties. A tem- 
 porary interference with the plaintiff's legal right of egress could 
 be justified as a proper police measure, if the plaintiff sought to exer- 
 cise such right under circumstances likely to create disorder and 
 danger. Assuming, however, that the defendant was justified in pre- 
 venting the plaintiff' from passing out through the gates in question, 
 it should have directed him to pass out through some other means of 
 exit, if there were any. The plaintiff' told the agents of the defendant 
 of his desire to get out, but received no directions or suggestions how 
 to get out. The defendant claims that the plaintiff might have gone 
 out through other gates in another portion of the field used for the 
 entrance of motor cars and other vehicles ; but the plaintiff swears 
 that he did not know of the other gates, and there is no proof that his 
 attention was called to them in any way when he and the others sought 
 to go out. He got out in the end, not through the gates for vehicles, 
 but through the club house, on the permission and direction of the 
 defendant. Granting that the restraint placed upon the plaintiff" in pre- 
 venting his going out through the gateways through which he sought 
 exit was justifiable as a police measure, yet the defendant owed him 
 an active duty to point out the other existing methods of egress. It 
 could not stand idly by and simply detain and imprison the plaintiff 
 against his will. 
 
 Judgment affirmed. 
 
 ROBINSON V. BALMAIN NEW FERRY CO., Limited. 
 (Judicial Committee of the Privy Council [1910] A. C. 295.) 
 
 Appeal by special leave from an order of the High Court of Aus- 
 tralia, reversing a judgment of the Supreme Court of New South 
 Wales which discharged a rule nisi for a new trial or a verdict for 
 the defendants in an action by the appellant, a barrister-at-law of the 
 State of New South Wales, for assault and false imprisonment. 
 
 The respondents carry on the business of a harbour steam ferry 
 between the city of Sydney and Balmain and have on the Sydney side 
 of their steam ferry a wharf and premises held by them under lease 
 from the Sydney Harbour Trust Commissioners. A barrier with two 
 turnstiles separates the wharf from the street. Persons coming upon 
 the wharf enter it by one of the turnstiles and leave it by the other. 
 There is also a gate with a door in it opening parallel to the street
 
 Ch. 1) TRESPASSES 93 
 
 and at right angles to the turnstiles. At each turnstile an officer of 
 the respondents is stationed. By the lawful regulations of the re- 
 spondents, one penny has to be paid by all persons entering the wharf 
 to the officer at the entry turnstile and by all persons leaving the wharf 
 to the officer at the exit turnstile. No other charge is made for the 
 use of the ferry, either to or from Balmain. The turnstiles automati- 
 cally register the number of persons passing through them and so 
 check the takings of the two officers. 
 
 A few feet above the two turnstiles and on each side of the bar- 
 rier is a notice board placed so as to be seen by passengers, on which 
 is painted the words "Notice. A fare of one penny must be paid on 
 entering or leaving the wharf. No exception will be made to this 
 rule, whether the passenger has travelled by the ferry or not." 
 
 On June 5, 1905, at about 7:45 P. AL, the appellant entered the 
 wharf by the entry turnstile, intending to cross to Balmain by one 
 of the respondents' steamers. He paid one penny to Penson, the 
 off.cer of the respondents in charge of the entry turnstile. Finding 
 that the next steamer would not start for some twenty minutes, the 
 appellant informed Penson of his wish to leave the wharf, and was 
 directed by him to the exit turnstile. Anderson, the officer in charge 
 thereof, demanded a penny, which the appellant declined to pay. He 
 then endeavoured to force his way past the two officers, who for a 
 time prevented him. Eventually he succeeded in getting past them 
 and squeezed himself through a narrow space between the entry turn- 
 stile and the bulkhead into the street. 
 
 At the trial Darley, C. J., refused to nonsuit, directing the jury that 
 there was no evidence that the appellant knew of the notice when he 
 went onto the respondents' wharf. The jury found a verdict for 
 the appellant for £100. 
 • The judgment of their Lordships was delivered by 
 
 Lord LorEburx, L. C, * * * The plaintiff paid a penny on 
 entering the wharf to stay there till the boat should start and then 
 be taken by the boat to the other side. The defendants were admit- 
 tedly always ready and willing to carry out their part of this contract. 
 Then the plaintiff changed his mind and wished to go back. The rules 
 as to the exit from the wharf by the turnstile required a penny for 
 any person who went through. This the plaintiff' refused to pay, and 
 he was by force prevented from going through the turnstile. He 
 then claimed damages for assault and false imprisonment. 
 
 There was no complaint, at all events there was no question left to 
 the jury by the plaintiff's request, of any excessive violence, and in 
 the circumstances admitted it is clear to their Lordships that there 
 was no false imprisonment at all. The plaintiff was merely called 
 upon to leave the wharf in the way in which he contracted to leave it. 
 There is no law requiring the defendants to make the exit from their 
 premises gratuitous to people who come there upon a definite contract
 
 94 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 which involves their leaving the wharf by another way; and the de- 
 fendants were entitled to resist a forcible passage through their turn- 
 stile. 
 
 The question whether the notice which was affixed to these premises 
 was brought home to the knowledge of the plaintiff is immaterial, 
 because the notice itself is immaterial. 
 
 When the plaintiff entered the defendants' premises there was noth- 
 ing agreed as to the terms on which he might go back, because neither 
 party contemplated his going .back. When he desired to do so the 
 defendants were entitled to impose a reasonable condition before al- 
 lowing him to pass through their turnstile from a place to which he 
 had gone of his own free will. The payment of a penny was a quite 
 fair condition, and if he did not choose to comply with it the defend- 
 ants were not bound to let him through. He could proceed on the 
 journey he had contracted for. 
 
 Under these circumstances their Lordships consider that, when the 
 defendants at the end of the case submitted that there ought to be a 
 nonsuit, the learned judge ought to have nonsuited the plain- 
 tiff. * * * 
 
 Their Lordships will humbly advise His Majesty that this appeal 
 should be dismissed with costs.*'' 
 
 WHITMAN v. ATCHISON, T. & S. F. RY. CO. 
 
 (Supreme Court of Kansas, 1911. 85 Kan. 150, 116 Pac. 231, 34 L. R. A. 
 
 [N. S.] 1029, Ann. Cas. 1912D, 722.) 
 
 Action by Whitman against the railway company for a personal in- 
 jury. Judgment for the plaintiff and defendant appealed. 
 
 The plaintiff recovered a judgment against the railway company 
 for $400 on account of injuries received in alighting from the caboose 
 of a freight train at the station of Cherryvale. At the time of the 
 injury, he was 75 years of age. When the train reached Cherryvale 
 about dusk, it did not stop at the depot, but continued across Alain 
 street in order not to block that street, and came to a stop about 275 
 feet from the depot. The plaintiff' expected the train to stop at the 
 depot, and, fearing that he would be carried past his station, left his 
 seat and went upon the platform. Thinking that the train was go- 
 ing slowly enough he attempted to get off, and was thrown or fell 
 to the ground, and sustained a fracture of the leg. When he came 
 out on the platform, the conductor was standing there, facing toward 
 the front of the train and signaling to the engineer with a lantern. 
 After the train stopped and the conductor learned that some one had 
 been hurt, he went to where the plaintiff lay upon the pavement, and 
 
 *^ The statement of the case is abridged, and the arguments are omitted
 
 Ch. 1) TRESPASSES 95 
 
 informed him that he would have to obtain a statement in regard to 
 the accident; that the law required the conductor to obtain such 
 statement from every injured passenger. A cab was called, plaintiff, 
 at his request, was lifted into it, and, at the direction of the conductor, 
 he was driven to where the caboose was standing. The conductor 
 brought his papers from the caboose, got into the cab with the plain- 
 tiff, and filled out the blank forms, which the plaintiff then signed. 
 One of these was a personal injury report required by the company's 
 rules, and the other was a report required by the Interstate Com- 
 merce Commission. Immediately after the statements were signed, 
 plaintiff was taken to his home, ^^hen plaintiff purchased his ticket 
 at Independence, he signed a freight train release authorized by a 
 statute then in force, releasing the company from liability for loss 
 or damage to his person while on such train, or while going to or 
 from the same, except in case of willful negligence. 
 
 Plaintiff' relied upon two causes of action. The first was based upon 
 an alleged willful injury, the second, upon an alleged unlawful re- 
 straint by the conductor. 
 
 Porter, J. * * * In the case at bar it appears from the evi- 
 dence that the rules of the company required the conductor to send in 
 a report of all accidents, and the company furnished him with a 
 blank for the purpose of obtaining a statement of any passenger 
 who might be injured, with instructions that: "This blank should be 
 filled out immediately upon the happening of the accident, if the in- 
 jured party is able. If not, then at the earliest time thereafter." The 
 company also furnished the conductor a blank prepared in conformity 
 with the interstate commerce law, to be signed by the injured pas- 
 senger, which contained the following statement : "To Passengers : 
 The law requires railway companies to report accidents to the Inter- 
 state Commerce Commission. That tliis law may be complied with 
 you are requested to fill the following blank." The rules of the com- 
 pany authorized the conductor to obtain from any injured passenger 
 a statement in writing ; but there was no law nor any rule of the 
 company W'hich required a passenger to make either statement, and it 
 will not be seriously contended that what the conductor told the plain- 
 tiff as to the law was true. It was a misrepresentation which, ac- 
 cording to the plaintiff's evidence, induced him to consent, while suf- 
 fering from his injuries and desiring needed medical attention, to re- 
 main there until what he had been falsely informed was a requirement 
 of the law had been complied with. This amounted to an unlawful re- 
 straint of his personal liberty, and it is obvious that the same princi- 
 ple should apply as though he had suffered an unlawful imprisonment, 
 notwithstanding there is no evidence of such coercion by the conductor 
 as to bring the case squarely within the rules which ordinarily govern 
 in cases of false imprisonment. The conductor had the right to re- 
 quest him, if able, to make the statement, but had no right to induce
 
 9G TORTS THROUGH ACTS OP ABSOLUTE LIABILITY (Part 1 
 
 him to remain and make the statements by misrepresenting that the law 
 of the state required him to make them at that time and place. 
 
 Probably the injuries sustained by plaintiff by reason of this un- 
 lawful detention were slight; but that does not affect the principle 
 involved. If he had sustained a severed artery which required im- 
 mediate attention to prevent him from bleeding to death, and the con- 
 ductor had used the same unlawful means to detain him, and pro- 
 cured the statement against his will, the case would only differ in de- 
 gree, but not in principle. The giving of the instruction complained 
 of cannot, therefore, be regarded as error, although it might have 
 been worded differently in order to apply to the actual facts in evi- 
 dence. All that was necessary, in order for the plaintiff' to recover 
 upon the second cause of action, was to show that he was unlawfully 
 restrained of his liberty without any sufficient legal cause therefor, 
 and by words or acts which he feared to disregard. He testified that 
 he agreed to remain and make the statements, because he had been 
 informed that the law required him to do so. This, in connection 
 with his age, his suffering, and his helpless condition, and all the cir- 
 cumstances in evidence, would warrant a jury in finding that he was 
 restrained by words and acts which he feared to disregard. 
 
 The defendant contends further that, if the acts of the conductor 
 amounted to an unlawful restraint of the plaintiff, they were not 
 within the scope of his authority. The evidence shows that the printed 
 instructions of the conductor were to obtain a statement from the 
 injured passengers; the instructions reading: "All conductors of 
 trains carrying passengers must have a supply of this form on hand 
 at all times when on duty, and as soon as possible after the occur- 
 rence of an accident, the conductor will obtain from each passenger, 
 * * * wdiether injured or not, a statement hereon and forward 
 by the first train to the superintendent." The defendant having in- 
 structed its servant and employe to obtain the statement from any in- 
 jured passenger must be held to have authorized him to use what he 
 considered necessary means to obtain it. Defendant relies upon the 
 recent case of Crelly v. Telephone Co., 84 Kan. 19, 113 Pac. 386, 
 33 L. R. A. (N. S.) 328, where the local manager of a telephone com- 
 pany was held not to have been acting in the scope of his employment 
 when he violently assaulted and beat an operator w-ho was about to 
 quit the service, because she refused to sign a voucher for the com- 
 pensation due her. The opinion in that case quotes Collette v. Rebori, 
 107 Mo. App. 711, 82 S. W. 552, holding that the master is liable for 
 the tortious acts of his servant when it is shown that the act com- 
 plained of was done as a means or for the purpose of doing the work 
 assigned by the master. The conductor was authorized to obtain from 
 the passenger the statement, and, for the purpose of obtaining it, he 
 represented to him that the law required the statement to be made. 
 This is far different in principle from the act of a ser^^ant in commit-
 
 Ch. 1) TRESPASSES 97 
 
 ting an assault which would be unlikely to bring about the accom- 
 plishment of the purpose. The representation that the law required 
 the report to be signed by the passenger was something quite likely 
 to induce compliance with the request, and which the company might 
 well have anticipated its servant would do. The tendency of modern 
 decisions is to a wider interpretation of the implied authority of the 
 servant in cases of this kind (19 Cyc. 329), especially where the re- 
 lation of carrier and passenger exists. A., T. & S. F. R. Co. v. Henry, 
 55 Kan. 715, 723, 41 Pac. 952, 29 L. R. A. 465. Unquestionably the 
 plaintiff was a passenger at the time the conductor detained him. He 
 was injured in alighting from the train at his destination. Before he 
 had been removed from the company's right of way, the conductor 
 took control over him for the purpose of obtaining a statement from 
 him as an injured passenger, and we think the relation of carrier and 
 passenger continued during the time the conductor detained him. We 
 think the acts of the conductor were fairly and reasonably within the 
 scope of his employment.*^ 
 
 BENNETT v. AUSTRO AMERICANA S. S. CO. 
 (Supreme Court of New York, Appellate Division, 1914. 147 N. Y. Supp. 193.) 
 
 Bennett brought an action in New York for an alleged false im- 
 prisonment. From a judgment dismissing the complaint, the plaintiff" 
 appeals. 
 
 Carr, J. On the trial of this action, the complaint was dismissed 
 by the trial court at the close of the defendant's evidence, and judg- 
 ment was entered accordingly, from which the plaintiff appeals. The 
 only question involved in the case before us is whether, considering 
 the plaintiff"s proofs in their most favorable aspect, he has made out 
 a cause of action. He is a nonresident of the state, the defendant 
 is a foreign corporation, and the facts set forth in the complaint hap- 
 pened and the action was brought before the recent amendment to 
 section 1780 of the Code of Civil Procedure. Hence this court had 
 no jurisdiction of the plaintiff's cause of action unless it arose within 
 this state. Payne v. N. Y., S. & W. R. R. Co., 157 App. Div. 302, 
 142 N. Y. Supp. 241. 
 
 The facts appearing in the plaintiff''s proofs show that in August, 
 1908, he was a second cabin passenger on one of the defendant's 
 steamships journeying from a port in Greece to the port of New 
 York. The vessel was crowded with emigrants and a large number 
 
 4 8 The statement of facts is abridged. A portion of the opinion is omitted. 
 The first cause was hold open to a demurrer to the evidence. As the verdict 
 was general with nothing to indicate how much of the damages allowed was 
 apportioned to the first cause, the judgment was reversed, and remanded for 
 further proceedings on the cause for false imprisonment. 
 
 There was a dissent in part from Burth and Porter, JJ. 
 Hepb.Torts — 7
 
 98 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 of second cabin passengers. The latter, or a large number of them, 
 became dissatisfied with the food furnished to them, and with other 
 matters, and claimed improper attention to their needs and comfort 
 on the part of the ship's ofificers. A letter was framed for the pur- 
 pose of complaint and publication on the arrival of the ship at the 
 port of New York, and the plaintiff undertook to get signatures to 
 it, even from first-class passengers. He was told that a Mr. Allen, 
 a first-class passenger, would sign this letter. The ship was then on 
 the high seas, nearing the port of New York. The plaintiff went 
 to the first cabin music room, where he found Mr. Allen and tendered 
 him the letter for signature. The latter took the letter and began 
 to read it before signing it. Thereupon the ship's captain entered 
 the music room and took the letter from Mr. Allen and ordered the 
 plaintiff from the room, on the ground that he, as a second-class 
 passenger, had no right to be in the first cabin quarters. The plain- 
 tiff answered that he would not leave the room until he got back his 
 letter. The captain refused to return it, and again ordered the plain- 
 tiff to leave the room, and on his refusal to go the captain struck him 
 and ordered his removal forcibly by members of the crew. He was 
 then confined in a stateroom, and the imprisonment continued while 
 the vessel entered the port and for several hours after it had docked 
 in New York City. The respondent contends that if the plaintiff has 
 any cause of action it "arose" upon the high seas and this court had 
 no jurisdiction of it. The appellant contends that he has a cause of 
 action for false imprisonment to the extent of such imprisonment 
 while within the jurisdiction of this state, even though such imprison- 
 ment began outside the jurisdiction, for its continuance made a fresh 
 cause of action in his favor as long as it lasted, and, if it continued 
 within this jurisdiction, a fresh cause of action arose within this ju- 
 risdiction to the extent of the continued imprisonment. In this con- 
 tention we think the appellant is correct. Hardy v. Ryle, 9 B. & C. 
 608; Huggins v. Toler, 64 Ky. (1 Bush) 192; Dusenbury v. Keiley, 
 8 Daly, 537; s. c, 85 N. Y. 383; Van Ingen v. Snyder, 24 Hun, 
 
 01 * * * 49 
 
 Judgment reversed and new trial granted. ^° 
 
 40 Compare Rogina v. Lesley (1860) Bell, 220, 8 Cox, C. C. 2G9: P. and 
 others, being in Chili and subjects of that state, were banished by the govern- 
 ment of Chili to England. D., the master of an English merchant vessel lying 
 in the territorial waters of Chili, contracted with that government to take P. 
 and his companions from Valparaiso to Liverpool and they were accordingly 
 bronght on board D.'s vessel by the oflicers of the government and carried by 
 D. to Liverpool under his contract. Assuming that D.'s act within Chilian 
 waters was justified the question was whether D. was liable, in an English 
 court, on a charge of false imprisonment for what was done on the high seas? 
 
 6 Part of the opinion, on a question of excess, is omitted.
 
 Ch. 1) TRESPASSES 99 
 
 HARNESS V. STEELE. 
 
 (Supreme Court of ludiana, 19012. 159 Ind. 2S6, 64 N. E. 875.) 
 
 The action was by Steele. There was a judgment for the plaintiff 
 and the defendant appealed. 
 
 Jordan, J. Appellee, a minor, by his next friend, sued appellant, 
 the sheriff of Howard county, together with one Strubbs, to recover 
 damages for false imprisonment. A trial before a jury resulted in a 
 verdict against appellant for S400, and a finding in favor of the de- 
 fendant Strubbs. Over appellant's motion for a new trial, wherein he 
 assigns various reasons, the court rendered judgment on the verdict, 
 from which appellant appealed to the appellate court. The appeal was 
 transferred to this court under the act of March 13, 1901. 
 
 The first error argued by counsel for appellant is the overruling of 
 the demurrer to the first paragraph of the amended complaint. This 
 complaint consists of two paragraphs. The first, omitting the caption, 
 is as follows : "Plaintiff, for his amended complaint, complains of 
 the defendant, and says that on the 15th day of May, 1900, the de- 
 fendant unlawfully imprisoned the plaintiff and deprived him of his 
 liberty for the space of one hour, to his damage in the sum of $2,000, 
 for which he demands judgment." It is contended that this paragraph 
 contains no facts to show that appellee was falsely imprisoned and 
 deprived of his liberty, but consists merely of conclusions. While the 
 paragraph is somewhat terse, it is an exact copy of the form given in 
 3 Works, Prac. p. 152. It may also be said that it substantially fol- 
 lows the averments in a form given in 1 Estes, PI. & Forms, p. 561, 
 with the exception that the latter form does not contain the word 
 "unlawfully," and states that the imprisonment was "without probable 
 cause," and also gives the place at which the plaintiff was imprisoned. 
 The charge that "the defendants * * * imprisoned the plaintiff 
 and deprived him of his liberty for the space of one hour" is certainly 
 not a mere conclusion of the pleader, but is a composite statement of 
 an ultimate fact, the imprisonment of the plaintiff. The word "un- 
 lawful" is not essential, and may be omitted from the pleading, for 
 the rule is settled in this state that a complaint for false imprisonment 
 is sufficient without alleging that the act complained of was illegal, 
 or wrongful, or that the arrest or imprisonment was without competent 
 authority, or malicious, or without probable cause. Colter v. Lower, 
 35 Ind. 285, 9 Am. Rep. 735 ; Gallimore v. Ammerman, 39 Ind. 323 ; 
 Boaz v. Tate, 43 Ind. 60. The paragraph in controversy is at least suf- 
 ficient on demurrer. It might possibly have been open to the objec- 
 tion, upon a motion to make it more specific, that it did not state the 
 venue where the alleged wrong was perpetrated by the defendants; 
 but in respect to this question we do not decide. * * * si 
 
 51 Part of the opinion is omitted.
 
 100 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 (b) In Arrest 
 
 GENNER V. SPARKES. 
 (Court of King's Bench, 1704. 1 Salk. 79, 91 Reprint, 74.) 
 
 Genner, a bailiff having a warrant against Sparkes, went to him in 
 his yard, and being at some distance told him, he had a warrant, and 
 said he arrested him. Sparkes having a fork in his hand, keeps off 
 the bailiff from touching him, and retreats into his house. And this 
 was moved as a contempt. Et per Cur. The bailiff cannot have 
 an attachment, for here was no arrest nor rescous. Bare words will 
 not make an arrest ; but if the bailiff had touched him, that had been 
 an arrest, and the retreat a rescous, and the bailiff might have pur- 
 sued and broken open the house ; or might have had an attachment 
 or rescous against him ; but as this case is, the bailiff has no remedy 
 but an action for assault; for the holding up of the fork against him 
 when he was within reach, is good evidence of that. 
 
 HUNTINGTON v. SHULTZ. 
 (Constitutional Court of Soutli Carolina, 1824. Harp. 452, 18 Am. Dec. 660.) 
 
 The defendant was served with a capias ad respondendum when 
 he was attending on court, as a party to a suit. He moved to set 
 aside the service of the writ, on the ground that he was privileged 
 from the service of this writ during his attendance on the court. 
 The court granted the motion, and the plaintiff appealed. 
 
 Richardson, J. The question in this case depends upon the act 
 of 1791: 1 Faust, 44; 1 Brevard, 223; which enacts that "all per- 
 sons necessarily going to, attending on, or returning from the same" 
 (referring to the superior courts), "shall be freed from arrest in any 
 civil action." Now, what does the term "arrest" mean? Wood (see 
 Institutes, 595) defines it : "A detention of the person." And Black- 
 stone, vol. 3, p. 288, says : "An arrest must be by corporal seizing 
 the defendant's body; after which the sheriff may justify breaking 
 open the house, in order to take him ;" and in page 289, he says : 
 "When the defendant is arrested, he must either go to prison, or put 
 in special bail to the sheriff." These authorities show that an arrest 
 is synonymous with actual detention of the person of the party ar- 
 rested ; and does not mean merely a summons, or citation. 
 
 The scope and object of the act of 1791, too, evidently require no 
 more than that the person of the party attending court shall be free 
 from detention ; and he may be cited or summoned without any de- 
 tention of his person. * * * 
 
 The motion is granted.
 
 Ch. 1) TRESPASSES 101 
 
 RUSSEN V. LUCAS. 
 
 (At Nisi Prius, Sittings after Hilary Term, 1824. 1 Car. & P. 153, 
 
 12 E. C. L. 9S.) 
 
 Action against a sheriff for an escape. The only point in dispute 
 was, whether a person named Hamer was arrested by the sheriff's 
 officer, and escaped. 
 
 The officer having the warrant went to the One Tun tavern in 
 Jermyn street, where Hamer w^as sitting. He said, "j\Ir. Hamer, 
 I want you." Hamer rephed, "^^'ait for me outside the door, and I 
 will come to you." The officer went out to wait, and Hamer went 
 out at another door, and got away. 
 
 Abbott, C. J. Mere words will not constitute an arrest; and if 
 the officer says, "I arrest you," and the party runs away, it is no 
 escape; but if the party acquiesces in the arrest, and goes with the 
 officer, it will be a good arrest. If Hamer had gone even into the 
 passage, the arrest would have been complete : but, on these facts, if 
 I had been applied to for an escape-warrant I would not have grant- 
 ed it. 
 
 Nonsuit. 
 
 WHITHEAD V. KEYES. 
 
 (Supreme Judicial Court of Massachusetts, 1S62. 3 Allen. 495, 
 
 81 Am. Dec. 672.) 
 
 Tort against a sheriff" for an escape suffered by his deputy. * * * 
 
 The defendant also requested the court to instruct the jury that if 
 the hold taken by Stoddard by the officer was only for an instant, and 
 Stoddard broke away from that hold by superior force, or was 
 rescued therefrom by the interference of others, this would be a suffi- 
 cient retaking by the officer to allow him to return a rescue. The 
 judge declined so to rule, and instructed the jury that to enable the 
 defendant to set up a rearrest of Stoddard by the officer, the hold 
 by the officer would not be stifficient unless Stoddard was held and 
 stopped, or the officer had such a hold on him that it was in his power 
 to stop him. 
 
 The jury returned a verdict for the plaintiff, and the defendant 
 alleged exceptions. 
 
 Metcalf, j * * * "We are also of the opinion that the jury 
 were wrongly instructed that to enable the defendant to set up a re- 
 arrest of the debtor (Stoddard) by the officer (Thomas) the hold of 
 the debtor by the officer would not be sufficient, unless the debtor was 
 held and stopped, or the officer had such a hold on him, that it was 
 in his power to stop him.
 
 102 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 There cannot be either an escape or a rescue of a person unless 
 he is first arrested. If an arrest is prevented by a party's avoidance 
 or resistance of an officer, or by the interference of others, the party 
 does not escape, and the officer is not liable in an action for an escape, 
 but is liable, if at all, in an action for negligence in not making an 
 arrest when he might and ought. And the law is the same in regard 
 to a rescue. An officer cannot legally return a rescue of a party whom 
 he had not arrested. Such a return would be false. We have there- 
 fore, in deciding on this last instruction given to the jury, to con- 
 sider the question — what constitutes an arrest? And our opinion is, 
 that an officer effects an arrest of a person whom he has authority to 
 arrest, by laying his hand on him for the purpose of arresting him, 
 though he may not succeed in stopping and holding him. 1 Hale P. 
 C. 459. Genner v. Sparkes, 1 Salk. 79, and 6 Mod. 173. Sheriff of 
 Hampshire v. Godfrey, 7 Mod. (Leach's Ed.) 289. Williams v. Jones, 
 Rep. Temp. Hardw. 301. Bui. N. P. 62. Watson's Sheriff, 90. Unit- 
 ed States v. Benner, Bald. 239, Fed. Gas. No. 14,568. And we need 
 not express an opinion as to what else will or will not amount to an 
 arrest. We think that the instruction, prayed for on this point by 
 the defendant, should have been granted, and that the exception 
 taken to the instruction that was given must be sustained. 
 
 New trial granted. ^^ 
 
 GOODELL v. TOWER. 
 
 (Supreme Court of Vermont, 1904. 77 Vt. 61, 58 Atl. 790, 107 
 
 Am. St. Rep. 745.) 
 
 Goodell brought trespass for a false imprisonment against Tower. 
 Hastings and another. There was a judgment in favor of the plain- 
 tiff. The defendants bring exceptions. 
 
 Tyler, J. * * * It is contended in defendant Hastings' be- 
 half that he did not restrain the plaintiff of his liberty. The trial court 
 found that, having the complaint and warrant signed respectively by 
 the other two defendants, he met the plaintiff and stopped him by 
 speaking to him, as he was driving along on a business errand, read 
 the paper to him, and told him he would have to go with him, Hast- 
 ings ; that the plaintiff told the officer that he would have to get some- 
 one to take his team ; that the officer permitted him to do his errand, 
 but directed him to return as soon as he could ; that the plaintiff then 
 drove along ; that Hastings became impatient, and went to meet him, 
 turned in behind the plaintiff's team and followed him to the village; 
 that he went to the place of trial with the plaintiff, delivered the. paper 
 to the justice and informed him that the plaintiff was present; that 
 this was all that Hastings did besides making his return upon the war- 
 rant; that he understood that the plaintiff' was in his custody. 
 
 62 The statemont of facts is abridged and part of the opinion is omitted.
 
 Gh. 1) TRESPASSES 103 
 
 The action of the officer constituted a false imprisonment of the 
 plaintiff. It was not necessary that he should lay his hands upon him. 
 It was sufficient that the plaintiff was within his power and submitted 
 to the arrest: Mowry v. Chase, 100 Mass. 79. Every restraint upon 
 a man's liberty is, in the eye of law, an imprisonment, wherever may 
 be the place or whatever may be the manner in which the restraint is 
 effected : 2 Kent's Commentaries, 26. And see Pike v. Hanson, 9 
 N. H. 491, cited in the notes, where it was held that the words may 
 constitute an imprisonment, if they impose a restraint upon the per- 
 son, and he is accordingly restrained and submits. The law is so well 
 settled upon this point that it is hardly necessary to cite authorities, 
 but the notes in Bissell v. Gold, 1 Wend. (N. Y.) 210, 19 Am. Dec. 
 480, are interesting and clearly elucidate the rule that to constitute 
 an arrest there must be some real or pretended legal authority for 
 taking the party into custody ; that he must be restrained of his lib- 
 erty; that if he submits and is within the power of the officer it is 
 sufficient without an actual touching of his person. This is the rule 
 laid down by Savage, C. J., in the main case, and it has not been de- 
 parted from in recent authorities. * * * 
 
 Judgment affirmed.^^ 
 
 (c) Imprisonment — Distinguished from Malicious Prosecution 
 
 LOCK V. ASHTON. 
 
 (Court of Queen's Bench, 1848. 12 Q. B. 871, IIG Reprint, 1097, 
 
 76 R. R. 434.) 
 
 Trespass for an alleged imprisonment. Plea, not guilty. On the 
 trial it appeared that the plaintiff, being servant to the defendant, 
 who was a corn dealer, was sent by him with a cart to the premises of 
 Messrs. Rosling and Watson, also corn dealers, for twenty sacks of 
 oats. The whole quantity was not delivered ; and the plaintiff signed 
 a receipt note for eighteen. On his return to the defendant's it was 
 found that only seventeen sacks were in the cart. Messrs. Rosling 
 and Watson, on enquiry by the defendant, insisted that they had de- 
 livered eighteen sacks. The plaintiff, being further questioned, made 
 unsatisfactory answers : and the defendant then gave him into cus- 
 tody, and had him conveyed to a station house, and from thence to a 
 police office. The magistrate, after hearing witnesses, remanded the 
 plaintiff' for further examination. He was again brought up for ex- 
 amination, and a second time remanded. Before the third hearing, 
 Messrs. Rosling and Watson, discovered that the missing sack had 
 remained on their premises undelivered; they communicated this to 
 
 53 Part of the opinion is omitted.
 
 104 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 the defendant ; and he stated it to the magistrate on the third exami- 
 nation : and the plaintiff was thereupon discharged. There was no 
 evidence to show that the defendant had induced the magistrate to 
 remand the plaintiff on the first or second examination, or that he had 
 unduly delayed making the statement on which the plaintiff was liberat- 
 ed. It was urged, on the defendant's behalf, that in this action he could 
 be liable only for the first imprisonment and taking before the mag- 
 istrate, not for the remand or the subsequent detention, these being 
 the acts of the justice. Lord Denman, Ch. J., asked if there was any 
 authority for this position ; and, none being cited, he left the case 
 to the jury on the whole matter of complaint. Verdict for the plain- 
 tiff, damages £10. 
 
 Whitehurst, in support of a rule for a new trial : It is true that the 
 defendant may be liable for all that happened till the parties appeared 
 before the magistrate. After that, the justice acted in the discharge 
 of his official duty; and the acts done were his. He was bound to 
 retain the plaintiff, even if the defendant had pressed for his release. 
 A mistake was discovered ; but before that time the case was out of 
 the defendant's control. The argument for the plaintiff would make 
 a prosecutor in such a case answerable for the detention even to the 
 time of trial. The remands, then, not being his acts, could not be the 
 subject of an action of trespass; case might have lain; but then 
 malice and want of probable cause must have been alleged and shown. 
 This appears by the well known series of cases in which persons hav- 
 ing wrongfully, as was alleged, put a Court in motion, have been sued 
 in case or trespass, and trespass has been held not to lie. * * * 
 (Coleridge, J. : Suppose the defendant takes the plaintiff' to a police 
 office on a day when he knows that, as a matter of course, there will 
 be a remand.) That would be evidence of malice in an action for ma- 
 licious prosecution. (ErlE, J. : If the arresting were a trespass, and 
 the remand were ground only for an action on the case, the same 
 course of prosecution would be trespass on Saturday and case on 
 Monday.) It would. (Coleridge, J. : Is not the remand a matter by 
 which to measure the damages?) It was so treated, but mistakenly. 
 The defendant was not liable, as to the remand, in trespass, or in any 
 form, if he arrested bona fide in the first instance. (ErlE, J. : A turn- 
 ing point here may be, whether or not the remand was at defendant's 
 instance.) 
 
 Lord Denman, Ch. J. Much may depend on that. * * * jf 
 the remand here is considered as the independent judicial act of the 
 magistrate, it will be difficult to say that the defendant is liable in 
 this form of action. We will look at the declaration and the Judge's 
 notes. 
 
 Cur. adv. vult. 
 
 Lord Denman, Ch. J. (on the last day of the Term). The verdict 
 in this case cannot be sustained, the action being trespass, and the
 
 Ch. 1) TRESPASSES 105 
 
 jnry having given damages not only for the trespass in arresting, but 
 for the remand, which was the act of the magistrate. 
 Rule absolute.^^* 
 
 II. In Tre:spass to Propejrty 
 
 (A) In Trespass to Real Property 
 
 WINCKWORTH v. MAN. 
 
 (Court of Common Pleas, 160S. 1 Brownl. & G. 210, 123 Reprint, 759.) 
 
 The plaintiff declares for a trespass in one acre of land in D. and 
 abuts that, east, west, north and south ; and upon not guilty pleaded, 
 the jury found the defendant guilty in half an acre within written, 
 and moved in arrest of judgment, because upon the matter no tres- 
 pass had been found, for there is no moiety bounded as the plaintiff 
 had declared, for the whole acre is only bounded by the plaintiff con- 
 taining his trespass within those bounds, and the defendant ought 
 to be found a trespasser within those bounds, for otherwise it is not 
 good ; and it is impossible for the moiety of one acre to be within 
 
 5 4 Part of the opinion is omitted. 
 
 "The distinction between false imprisonment and malicious prosecution is 
 well illustrated by the case where, parties being before a magistrate, one 
 makes a charge against another, whereupon the magistrate orders the person 
 charged to be taken into custody and detained until the matter can be in- 
 vestigated. The party making the charge is not liable to an action for false 
 imprisonment, because he does not set a ministerial officer in motion, but a 
 judicial officer. The opinion and judgment of a judicial officer are Inter- 
 posed between the charge and the imprisonment." Per Willes, J., in Austin 
 V. Dowling (1870) L. R. 5 C. P. 534, 540. 
 
 "If an individual prefers a complaint to a magistrate, and procures a war- 
 rant to be granted, upon which the accused is taken into custody, the com- 
 plainant, in such a case, is not liable in trespass for the imprisonment ; and 
 that, even although the magistrate had no jurisdiction. According to the case 
 of West V. Smallwood ([183S] 3 M. & W. 418, 49 R. R. CG6), a party who shall 
 make a direct application to a magistrate for a warrant, that another may 
 be taken into custody, is deemed thereby only to make an appeal to the 
 magistrate to exercise his jurisdiction: and the imprisonment is referred to 
 the magistrate's authority, so as to exempt the complainant from all liability 
 in trespass: and what takes place in the presence of the magistrate, ought 
 to be referred to the exercise of his authority, as in Barber v. Rollinson 
 ([1833] 1 Cr. & M. 330). In that case, the plaintiff having been discharged 
 from criminal custody by a magistrate, was leaving the post-office, when the 
 defendant said, "I have another charge against him, for forgery;" upon which 
 the plaintiff was again taken and placed at the Bar, and upon the trial before 
 Lord Lyndhurst, in an action of trespass in respect of this second imprison- 
 ment, the plaintiff was nonsuited ; and, upon motion to set aside the nonsuit, 
 it was held that the acts of the defendant were part of the proceedings before 
 the magistrate, for which the defendant could not be held .liable in trespass; 
 that the taking could not be consitk-red as the act of the defendant, who had 
 only put the law in motion, for which he might be liable in case." Per Colt- 
 man, J., in Brown v. Chapman (1848) G C. B. 3U5, 37G, 77 R. R. 347, 355.
 
 106 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 those bounds : but the whole Court except Fenner, were of opinion 
 that the plaintiff should have his judgment: for if the plaintiff layeth 
 his action for a trespass committed in one acre, and the jury find that 
 only to be in one foot of it, it is good; and here they have found the 
 trespass in the moiety of the acre bounded, which is sufficient in this 
 action, where damages only are to be recovered, but if it had been in 
 ejectment, the verdict had been naught, for it is uncertain in what 
 part he should have his writ of habere facias possessionem. 
 
 GRAHAM v. PEAT. 
 (Court of King's Bench, 1801. 1 East, 244, 102 Reprint, 95.) 
 
 Trespass quare clausum fregit. Plea the general issue, and certain 
 special pleas not material to the question. At the trial before Gra- 
 ham, B., the trespass was proved in fact; but it also appeared that 
 the locus in quo was part of the glebe of the rector of the parish 
 of Workington in Cumberland, which had been demised by the rector 
 to the plaintiff, and that the rector had not been resident within the 
 parish for five years last past, and no sufficient excuse was shewn 
 for his absence. Whereupon it was objected that the action could 
 not be maintained, the lease being absolutely void by the Act of 13 
 Eliz. c. 20, which enacts, "That no lease of any benefice or ecclesiasti- 
 cal promotion with cure or any part thereof shall endure any longer 
 than while the lessor shall be ordinarily resident and serving the cure 
 of such benefice without absence above fourscore days in any one 
 year; but that every lease immediately upon such absence shall cease 
 and be void." And thereupon the plaintiff w-as nonsuited. 
 
 A rule was obtained in ]\Iichaelmas term last to shew cause why the 
 nonsuit should not be set aside, upon the ground that the action was 
 maintainable against a wrong-doer upon the plaintiff's possession alone, 
 without shewing any title. 
 
 Cockell Serjt., Park, and Wood, now shewed cause, and insisted 
 that possession was no further sufficient to ground the action even 
 against strangers than as it was prima facie evidence to title, and 
 sufficient to warrant a verdict for the plaintiff, if nothing appeared 
 to the contrary. But here it did expressly appear by the plaintiff's 
 own case that his possession was wrongful, for it was a possession 
 in fact against the positive provisions of an act of Parliament, without 
 any colour of title even against strangers. [Carter & Claycoles Case] 
 1 Leon. 307. He was not even so much as tenant at sufferance; 
 though it is not certain that this latter can maintain a trespass. It 
 is settled that the plaintiff could not have maintained an ejectment 
 against a stranger who had evicted him. 
 
 Lord Kicxvox, C. J. There is no doubt that the plaintiff's pos- 
 session in this case was sufficient to maintain trespass against a
 
 Ch. 1) TRESPASSES 107 
 
 wrong-doer; and if he could not have maintained an ejectment upon 
 such a demise, it is because that is a fictitious remedy founded upon 
 title. Any possession is a legal possession against a wrong-doer. 
 Suppose a burglary committed in the dwelling house of such a one, 
 must it not be laid to be his dwelling house notwithstanding the 
 defect of his title under that statute. 
 Per Curiam. Rule absolute. ^^ 
 
 LANE V. DIXON. 
 
 (Court of Common Pleas, 1847. 3 C. B. 776, 71 R. R. 484, 136 Reprint, 311.) 
 
 Trespass. The declaration stated that the defendant with force 
 and arms broke and entered certain rooms of the plaintiff, in a parcel 
 of a certain dwelling house, and then ejected the plaintiff and his 
 family from the possession of the said rooms and kept them so eject- 
 ed and expelled. Pleas, not guilty and live special pleas. The facts 
 shewn upon the trial were as follows: In August, 1845, the plaintiff, 
 a medical practitioner, hired from one Johnson certain rooms in Bury 
 Street, St. James's, at a rent of i50. a year, with the privilege of 
 putting a brass plate with his name engraved thereon, upon the front 
 door, there to remain so long as he should continue to occupy the 
 apartments. In September, Johnson demised the whole house to the 
 defendant, for twenty-one years. On the 15th of January, 1846, the 
 rent being unpaid, the defendant removed the plaintiff's brass plate 
 from the door, and refused to allow the plaintiff to have access ro 
 his apartments. It appeared that the defendant let the whole of the 
 house in separate apartments: but there was no direct evidence that 
 the defendant had actually entered the plaintiff's rooms. 
 
 This action was commenced early in February, 1846. On the part 
 of the defendant, it was insisted that the charge of breaking and 
 entering the plaintiff's rooms was not proved. * * * Verdict for 
 the plaintiff, leave being reserved to the defendant to move to enter 
 a verdict for him, or a nonsuit, if the Court should be of opinion that 
 there was no evidence of a breaking and entering. 
 
 Byles, Serjt., in Trinity Term, obtained a rule nisi accordingly, and 
 also for a new trial, on the ground there was no evidence to justify 
 the verdict. 
 
 55 Compare: 
 
 Cary v. Holt (1746) 2 Str. 12.18: P. deelarod in trespass upon his possession. 
 D. made title and gave colour to P., wlio, in a replication de injuria, denied 
 the title set out by D. Held, a good replicntion "for it lays the defendant's 
 title out of the case, and then it stands upou the plaintiff's possession, which 
 is good enough against a wrongdoer." 
 
 Harker v. Birbeck (17G4) 3 Burr. 1556: P. has a liberty of digging in a lead 
 mine but has no property in the soil above the mine. For an encroachment on 
 the mine P. sues in trespass on the case. Lord Manslield: "We are all clear 
 that the action ought to have been trespass."
 
 108 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Parti 
 
 Wilde, C. J. One ground upon which this rule was moved, is, 
 that there was no evidence to go to the jury, in support of so much of 
 the declaration as alleges a trespass to the plaintiff's rooms, and eject- 
 ing him therefrom, and seizing his goods. The evidence offered 
 was that the plaintiff had taken apartments in the house in question, 
 for a certain term; and that, before that term had expired, the de- 
 fendant refused to permit the plaintiff to have access to them. It 
 appears to me that that was competent evidence to submit to the 
 jury, and that it afforded a reasonable foundation for a verdict for 
 the plaintiff. The period of time during which the plaintiff was ex- 
 cluded, the nature of the property and other surrounding circum- 
 stances, were all proper to be taken into account in determining wheth- 
 er or not it was to be presumed that the defendant broke and en- 
 tered the rooms. It appeared that the apartments in question were 
 open, and that the defendant took advantage of the temporary ab- 
 sence of the plaintiff, to fasten the outer door and so exclude the 
 plaintiff from his lodgings. Considering that the whole house was let 
 out in separate suits of apartments, and that the defendant refused 
 to permit the plaintiff to return to the rooms, what is the reasonable 
 intendment of the use to which the plaintiff would put them? Out 
 of Court, no one would for a moment doubt that he would at once 
 enter them for his own occupation or for the purpose of letting. All 
 the circumstances were proper to be submitted to the jury, and 
 could not properly be withheld from them : and I see no ground 
 for saying that the inference they have drawn was incorrect. The 
 first ground of the motion, therefore, fails. * * * 
 
 Rule discharged./*® 
 
 WELLS V. HOWELL. 
 
 (Supreme Court of Judicature, New York, 1822. 19 .Johns. .SS5.) 
 
 Howell sued Wells before a justice, because the defendant's horse 
 had entered the plaintiff's field and destroyed the grass. Wells 
 pleaded that there was no fence around the field when the damage 
 was done, and admitted the trespass and the damage. Howell de- 
 murred to the plea. It was admitted that there was no fence, as 
 stated, and that there was no town by-law about fences, or cattle 
 running at large. The justice gave judgment for the plaintiff below 
 for $10 and costs. 
 
 Per Curiam. Every unwarrantable entry on another's land is a 
 trespass, whether the land be inclosed or not. 3 Bl. Com. 209; 3 
 Selw. N. P. 1101. A person is equally answerable for the trespass 
 of his cattle, as of himself. 3 Bl. Com. 211. The defendant below 
 
 58 Only so much of the case is given as relates to the one point. The con- 
 curring opinions of Maule, Cresswell, and V. Williams, JJ., are omitted.
 
 Ch. 1) TRESPASSES 109 
 
 was bound to show a right to permit his cattle to go at large ; and 
 it is conceded that there was no town regulation on the subject. 
 The judgment must be affirmed. 
 Judgment affirmed. ^^ 
 
 PATRICK V. GREENWAY. 
 
 (Court of Common Pleas, 1796. 1 Wms. Sauud. 343, 344 note. So Re- 
 print, 495, 498.) 
 
 This was an action of trespass for fishing in the plaintift's several 
 fishery. It appeared in evidence that the defendant fished there but 
 did not take any fish ; neither was it alleged in the declaration that 
 the defendant caught any fish. The plaintifT obtained a verdict, 
 which, in the following term, the defendant moved to set aside. 
 But the Court of Common Pleas refused even a rule to shew cause, 
 upon the ground that the act of fishing was not only an infringe- 
 ment of the plaintiff's right, but would hereafter be evidence of an 
 using and exercising of the right of the defendant if such an act were 
 overlooked.^ ^ 
 
 57 Accord: Y. B. 20 Edw. IV. (1481) f. 11, pi. 10: Trespass with cattle. 
 Plea, that the plaintiff's land adjoined a place where defendant had common, 
 that the cattle strayed from the common and defendant drove them back as 
 •soon as he could. Brian, C. J.: "If the land in which he has common be not 
 Inclosed, it behooves him to keep the beasts in the common and out of the 
 land of any other."' 
 
 Star V. Rookesby (1711) 1 Salk. 336, 91 Reprint, 295 ("for the law bounds 
 ever^' man's propert3' and is his fence"). 
 
 Compare Ellis v. Loftus Iron Co. (1874) ,L. R. 10 C. P. 10: P. sued to 
 recover damages because his mare had been kicked and bitten by D.'s horse. 
 It appeared that D. was accustomed to graze his horse in a plot of ground 
 which was separated from the plaintiff's pasture by a wire fence, and that 
 the horse, without going into P.'s ground, had caused the injury complained 
 of bj- biting and kicking the mare through the fence. No negligence on the 
 part of D. was established. Brett, J.: "* * * I had no doubt that if 
 there was evidence of negligence and as a result of such negligence an animal 
 of the defendant's passed wholly or in part onto the plaintift's land, such a 
 circumstance would constitute a trespass ; but what I did doubt for some time 
 was whether, when there was no negligence at all on the part of the de- 
 fendant, the same consequence would follow. Having looked into the au- 
 thorities, it appears to me that the result of them is that in the case of ani- 
 mals trespassing on land the mere act of the animal belonging to a man, which 
 he could not foresee, or which he took all reasonable means of preventing, 
 may be a trespass, ina.smuch as the same act. if done by himself, would have 
 been a trespass. Blackstone (16th Ed.) vol. iii, c. 12, p. 211 ; Chitty on Plead- 
 ing (7th Ed.) vol. i, p. 98; and Comyns' Digest, title 'Trespass C,' are all au- 
 thorities to this effect." 
 
 Compare Salmond, Jurisprudence (1910) 378. 
 
 5 8 The case is reported from a note to Mellor v. Spateman (1670) 1 Wms. 
 Saund. 343.
 
 110 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 PFEIFFER V. GROSSMAN. 
 
 (Supreme Court of Illinois, 1853. 15 111. 53.) 
 
 This was an action of trespass quare clausum fregit. The plea 
 was, not guilty. On the trial the court refused to give these instruc- 
 tions : 
 
 "That the putting of a fence or letting it stay on the land of another is a 
 trespass in the eye of the law, for which the aggrieved person is entitled to 
 at least nominal damages; that the plowing up of another man's land and 
 cultivating it, although the land may thereby be improved, is still a trespass 
 in the law, for which the person aggrieved is entitled to at least nominal dam- 
 ages." 
 
 The jury found for the defendant, and the court rendered judg- 
 ment on the verdict. The plaintiff went up on error. 
 
 Treat, C. J. The instructions not only asserted correct legal prin- 
 ciples, but they were strictly applicable to the case. If a party puts 
 a fence on another's land or plows up the soil, he is liable as a tres- 
 passer. Such acts are a violation of the owner's right of possession, 
 to redress which the law gives him an action. And the action is main- 
 tainable, although the owner is not substantially injured. He is 
 entitled to nominal damages for the intrusion upon his possession. 
 The defendant cannot defeat the action by showing that the plain- 
 tiff is not materially prejudiced, or even that he is actually benefit- 
 ed. A right is invaded and a wrong committed, and that is a suffi- 
 cient basis for an action. Every unauthorized entrance on the land 
 of another is a trespass, for which an action will lie. The law im- 
 plies damage to the owner, and in the absence of proof as to the ex- 
 tent of the injury, he is entitled to recover nominal damages. Es- 
 pecially is this the case where the suit is brought for the purpose of 
 settling a question of right. Dixon v. Clow, 24 Wend. (N. Y.) 188 ; 
 Pastorius v. Fisher, 1 Rawle (Pa.) 27; Bagby v. Harris, 9 Ala. 173; 
 Plumleigh v. Dawson, 1 Oilman, 544, 41 Am. Dec. 199; Bolivar 
 Manuf. Co. v. Neponset Manuf. Co., 16 Pick. (Mass.) 241 ; Whipple 
 V. The Cumberland Manuf. Co., 2 Story's R. 561. 
 
 The judgment is reversed and the cause remanded.^® 
 
 59 "And although a thing appear for the profit of a man, and not to his dam- 
 age, yet it is not lawful for a man to commit a tort. As if a man saw the 
 beasts of his neighbour in another land damage feasants, it is not lawful for 
 him to drive them off, and if he do, the owner shall have trespass; and yet 
 he did a good act, and saved the owner from damages for the depasturing 
 of his beasts. Also it is ruled in 21 H. 7. (27. b.) that a person brings tres- 
 pass for corn carried away, the defendant pleads that the corn was severed 
 from the nine parts and was in danger of being destroyed by cattle, wherefore 
 the defendant carried it to the plaintiffs own barn, and laid it there, and 
 judgment, etc. And this was adjudged no plea, and yet he received no dam- 
 age. So here, although the termor has reiiaired the house of the lessor with 
 the tre<^s, which sounds to his advantage; yet, inasnuich as he hatli ex- 
 ceeded his duty, and taken upon him the authority of the lessor, without any 
 request, it is a reason why he should be punished. As if the commoner make
 
 Ch. 1) TRESPASSES HI 
 
 PICKERING V. RUDD. 
 
 (At Nisi Prius, 1815. 4 Camp. 219, 16 R. R. 777.) 
 
 Trespass for breaking and entering the plaintiff's close, and placing 
 a board over it, and cutting a tree, etc. Plea, not guilty as to the claus- 
 um f regit; and as to cutting the tree, a justification that it was wrong- 
 fully growing against the wall of the defendant, and that he there- 
 fore removed it, as he lawfully might. New assignment of excess, 
 and issue thereupon. 
 
 The defendant's house adjoins to the plaintiff's garden, the locus in 
 quo ; and to prove the breaking and entering of this the evidence was, 
 that the defendant had nailed upon his house a board, which projected 
 several inches from the wall, and so far overhung the garden. 
 
 Garrow, A. G. and Richardson for the plaintiff contended that this 
 was a trespass for which he had a right to maintain the present action. 
 Cujus est solum, ejus est usque ad coelum. The space over the soil 
 of the garden is the plaintiffs, like the minerals below, and an invasion 
 of either is, in contemplation of law, a breaking of his close. A mere 
 temporary projection of a body through the air across the garden may 
 not be actionable ; but where a board is caused permanently to over- 
 hang the garden, this is a clear invasion of the plaintiff's possession. 
 If this be not a trespass, it is easy to conceive that the whole garden 
 may be overshadowed and excluded from the sun and air without a 
 trespass being committed. 
 
 Lord Ellenborough, Ch. J. I do not think it is a trespass to 
 interfere v.ith the column of air superincumbent on the close. I once 
 had occasion to rule upon the circuit, that a man who, from the out- 
 side of a field, discharged a gun into it. so that the shot must have 
 struck the soil, was guilty of breaking and entering it. A very learned 
 Judge, who went the circuit with me, at first doubted the decision, but 
 I believe he afterwards approved of it, and that it met with the gen- 
 eral concurrence of those to whom it was mentioned. I am by no 
 means prepared to say, that firing across a field in vacuo, no part of 
 the contents touching it, amounts to a clausum fregit. Nay, if this 
 board overhanging the plaintift"s garden be a trespass, it would follow 
 that an aeronaut is liable to an action of trespass quare clausum fregit 
 at the suit of the occupier of every field over which his balloon passes 
 in the course of his voyage. Whether the action may be maintained 
 cannot depend upon the length of time for which the superincumbent 
 air is invaded. If any damage arises from the object which overhangs 
 the close, the remedy is by an action on the case. Here the verdict de- 
 pends upon the new assignment of excess in cutting down the tree. 
 
 The jury found for the defendant. 
 
 a trench in the soil, whereby the soil is made better, yet he shall be punish- 
 able, because he has transgressed." Maleverer v. iSpiuke (1538) 1 Dyer, ooh, 
 36b, 73 Reprint, 79, 81.
 
 112 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 SMITH V. SMITH. 
 -(Supreme Judicial Court of Massachusetts, 1872, 110 Mass. 302.) 
 
 Tort. The declaration alleged that the defendant built a part of a 
 barn upon the plaintiff's close, and thereby expelled and put out the 
 plaintiff from possession and occupation of a part of the close, and 
 kept and continued him so kept out and expelled from said part of the 
 close. Verdict for the defendant. The following bill of exceptions 
 was allowed : The plaintiff offered to prove that the eaves of the barn, 
 alleged to have been built and erected upon the plaintiff's close by the 
 defendant, extended over on to the close from fifteen to eighteen inch- 
 es, but the judge excluded the evidence. 
 
 Morton, j. * * * "\Ve think it was competent for the plain- 
 tiff to prove" that the eaves of the defendant's barn projected over the 
 plaintiff's close. Projecting his eaves over the plaintiff's land is a 
 wrongful act on the part of the defendant which, if continued for 
 twenty years, might give him a title to the land by adverse occupation. 
 It is a wrongful occupation of the plaintiff's land, for which he may 
 maintain an action of trespass. Codman v. Evans, 7 Allen, 431. Car- 
 brey v. Willis, 7 Allen, 364, 83 Am. Dec. 688. 
 
 Exceptions sustained.''" 
 
 6 Only so much of the case is given as relates to the one point. 
 
 As to trespass on superjacent space, see Butler v. Frontier Telephone Co. 
 (1900) ISO N. Y. 486, 491, 79 X. E. 710, 116 Am. St. Rep. 563, 11 L. R. A. (N. 
 S.) 920, 9 Ann. Cas. 858: D. had strung a telephone wire across P.'s lot, alout 
 30 feet above the surface. The wire reaches the entire width of the lot, but 
 does not touch the soil or any building on the lot. P. brings ejectment. In 
 this case Yann, J., remarks: "What is 'real property'? What does the term 
 include so far as the action of ejectment is concerned? The answer to these 
 questions is found in the ancient principle of law: Cujus est solum, ejus est 
 usque ad ccclum et ad inferos. The surface of the ground is a guide, but not 
 the full measure, for within reasonable limitations land includes not only the 
 surface but also the space above and the part beneath. Co, Litt. 4a ; 2 Black- 
 stone's Comm. IS; 3 Kent's Com. (14th Ed.) 401. 'Usque ad coelum' is the 
 upper boundary, and while this may not be taken too literally, there is no 
 limitation within the bounds of any structure yet erected by man. So far as 
 the case before us is concerned, the plaintiff as the owner of the soil owned 
 upward to an indefinite extent. He owned the space occupied by the wire and 
 had the right to the exclusive possession of that space which was not per- 
 sonal property, but a part of his land. According to fundamental principles 
 and within the limit;ition mentioned space above land is real estate the same 
 as the land itself. The law regards the empty space as if it were a solid, 
 inseparable from the soil, and protects it from hostile occupation accordingly." 
 
 Compare: 
 
 Ilannabalson v. Sessions (190!i) 116 Iowa, 457, 90 N. W. 93, 93 Am. St. Rep. 
 250: n. and S. lived upon adjoining lots. Upon the boundary between the 
 lots there was a tight board fence. Between the families there was a frequent 
 war of words. H. was leaning against the fence, on her own side, with her 
 arm extended over the top, on the other side. S. claims that this is a tres- 
 pass upon his real estate. See infra, under "Defenses." 
 
 Whittaker v. Stangvick (1!)07) 100 Miim. 3S0, 111 N. W. 295, 117 Am. St. 
 Rep. 703, 10 L. R. A. (N. S.) 921, 10 Ann. Cas. 528: P. owned a narrow duck 
 pass between two navigable lakes; D. was about to erect blinds in front of
 
 Ch. 1) TRESPASSES 113 
 
 COSTIGAN V. PENNSYLVANIA R. CO. 
 
 (Supreme Court of New Jersey, 1892. 54 N. J. Law, 233, 23 Atl. 810.) 
 
 Action by Costigan against the Pennsylvania Railroad Company to 
 recover damages for an injury to the plaintiff's premises. Case cer- 
 tified to the Supreme Court for advice. 
 
 Depue, J. The plaintiffs are owners of a lot of land on which were 
 erected two dwelling-houses. The premises are situated near to a 
 strip of land on which the defendants are engaged in constructing 
 a railroad. The declaration charges that : 
 
 "The defendants, wrongfully and injuriously intending, etc., on divers days 
 and times, etc., dumped and filled into and upon the natural surface of cer- 
 tain lands near to plaintiff's said lot and dwelling-houses a vast quantity, to 
 wit, two hundred thousand tons of earth, gravel, stones and other filling, 
 and raised and banked upon said lands embankments of great height, to wit, 
 of the height of thirty feet, and thereby forced and pressed large quantities, 
 of the said earth, gravel, stones and other filling into and upon the said lot 
 of plaintiffs' beneath the surface of the same, and thereby upheaved and 
 greatly disturbed the surface and soil of said lot, and forced and carried the 
 said dwelling-houses to the northward and eastward of their proper position 
 upon said lot. and to and upon the lauds of others, and thereby caused the 
 foundation of said dwelling-houses to fall away, crack and crumble, and the 
 Vi-alls of said houses to become broken, shattered and defaced, and to topple 
 and lean over," etc. 
 
 The defendants, by a special plea, justify as lessees of the New- 
 Jersey Junction Railroad Company, a corporation of this state or- 
 ganized under the General Railroad law, and authorized to lay out, 
 construct, maintain and operate a railroad between certain designated 
 points. * * * 
 
 The cause of action set out in the declaration is a trespass upon the 
 plaintiffs' lands. The allegation that the acts of the defendants were 
 wrongfully and injuriously done is a sufficient averment to sustain 
 
 the pass, and about 300 feet away, with the intention of shooting ducks flying 
 over the pass. In so doing D. would shoot across P.'s land. 
 
 See, also, the provision of the German Civil Code (taking effect in 1000) § 
 905: "The right of the owner of a piece of land extends to the space above the 
 surface and to the substance of the earth beneath the surface. The owner 
 may not, however, forbid interference which takes place at such a height or 
 depth that he has no interest in its prevention." (Wang's trans.) 
 
 And compare 25 Harv. Law Rev. 486 (1912): "The landowner cannot safely 
 rely on the old maxim, 'Cujus est solum, ejus est usque ad coelum,' as furnish- 
 ing a satisfactory ratio decidendi. That maxim, taken in its literal and un- 
 qualified sense, is not likely to be recognized at the present time as a com- 
 plete statement of the law. Two theories are prominent: One, that the air 
 space above the earth belongs to the public ; the other, that it belongs to the 
 landowner. But each theory is subject to provisos and limitations which, in 
 the great majority of cases, would bring the same result, whichever theory 
 is adopted. The public right, under the first theory, is subject to be exercised 
 with due regard to the interests of the landowner. On the other hand, the 
 ownership of the landowner under the second theory, is burdened by a right 
 of passage for the public." And see 38 Cyc. 49S, note 83. 
 
 Hepb.Torts — 8
 
 114 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 the declaration. The merits of this controversy arise upon the con- 
 sideration of the pleas filed by way of justification. * * * 
 
 On both pleas the plaintiffs are entitled to judgment. The Circuit 
 Court is advised accordingly.®^ 
 
 (B) hi Trespass to Personal Property 
 
 MARENTLLLE v. OLIVER. 
 (Supreme Court of New Jersey, ISOS. 1 Peuu. [2 N. J. Law] 379.) 
 
 Trespass. The charge was that the defendant unlawfully, forcibly, 
 and with great violence, with a large stick, struck the horse of the 
 plaintiff, on a public highway, which said horse was then before a 
 carriage, in which the plaintiff was riding, on the said public highway, 
 to the damage of the plaintiff, $50. Verdict and judgment for the 
 plaintiff' with $15 damages. 
 
 Pennington, J. * * * To attack and strike with a club, with 
 violence, the horse before a carriage, in which a person is riding, 
 strikes me as an assault on the person ; and if so, the justice had no 
 jurisdiction of the action. But if this is to be considered as trespass 
 on property, unconnected with an assault on the person, I think it 
 was incumbent on the plaintiff below, to state an injury done to the 
 horse, whereby the plaintiff suff'ered damage ; that he was, in conse- 
 quence of the blow, bruised or wounded, and unable to perform serv- 
 ice; or that the plaintiff" had been put to expense in curing him, or 
 the like. All the precedents of declarations for injuries done to do- 
 mestic animals, as far as my recollection goes, are in that way ; and 
 I think with good reason. Suppose a man, seeing a stranger's horse 
 in the street, was to strike him with a whip, or large stick, if you 
 
 61 Only so much of the case is given as relates to the one point. 
 
 For instances of trespass on subjacent space, see Comyu v. Kyneto (1604) 
 Cro. .Jae. ino, 79 Reprint, 131, where it was objected in vain that "an eject- 
 ment lies not of a coal mine becaiise it is quoadam proficuum subtus solum, 
 and an habere facias possessionem cannot be thereof." 
 
 See. also. Golden Reward Mining Co. v. Buxton Mining Co. (1S99) 97 Fed. 
 413, 38 C. C. A. 228 (P. and D. were owners of adjoining mining claims in 
 South Dakota. D. ran tunnels from his property into I'.'s projiorty. and ex- 
 tracted a large amount of ore. This was discovered four years later, when 
 D.'s excavations caused the superimposed earth to settle, making depressions 
 on the surface. P. thereupon sued for trespass upon his real property) ; 
 Chartiers Block Coal Co. v. Mellon (1893) 152 Pa. 286, 25 Atl. 597, 598, 18 L. 
 R. A. 702, 34 Am. St. Rep. 015; and the remarks of Paxson, O. J., ibid. 
 
 As to the time when the cause of action for such hidden trespasses accrues, 
 see Lewey v. Frick Coke Co. (1895) 166 Pa. 536, 31 Atl. 261, 28 L. R. A. 283, 
 45 Am. St. Rep. 681 (the statute of limitations against the owner in favor 
 of taking coal from beneath the surface begins to run from the time of the 
 actual di.scovery of the trespa.ss, or the time when the discovery was reason- 
 ably po.ssible) ; and 9 llarv. Law Rev. 147.
 
 Ch. 1) TRESPASSES 115 
 
 please, and no injury was to ensue, could the owner of the horse main- 
 tain an action for this act? I apprehend not. For these reasons, I 
 incline to think that this judgment ought to be reversed,®^ 
 
 KiRKPATRiCK, C. J., concurred in the reversal. 
 
 Judgment reversed. 
 
 6 2 Part of the opinion is omitted. 
 
 Compare Slater v. Swann (1729) Stra. 872: Action upon the case, for that 
 the plaintiff was possessed of a horse and cart, and the defendant so vio- 
 lently beat the horse, that the plaintiff was deprived of the use of his horse 
 and cart for several days. The Chief Justice (Lord Raymond) said: "This 
 differed from trespass vi et armis for assaulting a man, where the assault is 
 a cause of action ; but here the assault on the horse is no cause of action, 
 unless accompanied with a special damage." 
 
 In Marlow v. Weekes (1744) Barnes' Notes, 452, which was an action of 
 trespass for beating the plaintiffs mare, the court remarked: "Assault upon 
 a ship (a dead thing) bad ; but for an iniury to a beast a writ in trespass vi 
 et armis appears in the Register." But see Professor Ames' comment on this: 
 "There seems to be no such writ in the Register. Trespass for the asporta- 
 tion or the destruction of a chattel are the only writs for trespass affecting 
 personal property. Other injuries to chattels were doubtless deemed of too 
 trivial a nature to warrant a proceeding in the King's Court, and were re- 
 dressed in the inferior Courts." Ames' Cases on Torts, vol. 1, p. 61, 3d Ed. 
 And see Pollock on Torts (7th Ed.) o42: "Authority, so far as known to the 
 present writer, does not clearly show whether it is in strictness a trespass 
 merely to lay hands on another's chattel without either dispossession or ac- 
 tual damage. By the analogy of trespass to land it seems that it must be 
 so. There is no doubt that the least actual damage would be enough." 
 
 Salmond. Law of Torts (2d Ed.) 340: "It is probable that a trespass to chat- 
 tels is actionable per se without any proof of actionable damage. This, in- 
 deed, seems never to have been decided, but it is clearly so in the case of 
 trespass to land and to the person, and there is no reason why it should be 
 otherwise in the case of goods. If this is so, any unauthorized touching or 
 moving of a chattel is actionable at the suit of the possessor of it, even though 
 no harm ensues. It may be necessary for the protection of certain kinds of 
 property that this should be the law," 
 
 In Paul V. Slason (1S50) 22 Vt. 281, 54 Am. Dec. 75, D., a sheriff, who had 
 attached hay belonging to P., used P.'s pitchfork, without his consent, in re- 
 moving the hay. P. sued in trespass. The court charged the jury that if 
 they believed from the evidence that the defendant took and carried away the 
 pitchfork, they should give the plaintiff its value ; that if it was used and 
 left on the premises, so that the defendant received it again, and it was dam- 
 aged by this use, the plaintiff' would be entitled to recover the amount of 
 such damage ; but that if the pitchfork was merely used in removing the 
 piaintift"s property there attached, and was left where it was found, so that 
 the plaintiff" had it again, and the pitchfork was not damaged by this use, they 
 were not bound to give the plaintiff damages. A judgment on a vei'dict for 
 the defendant was sustained by the Supreme Court, but on the principle of 
 de minimis non curat lex. But see Fullam v. Stearns (1897) 30 Vt. 443, 456. 
 
 See the remarks of Wilson, J., in Graves v. Severeus (18GS) 40 Vt. 636. 640: 
 "It is true that for an unlawful entry upon the real property, or disturbance 
 of incorporeal rights, when the unlawful act might have an effect upon the 
 rights of the party and be evidence in favor of the wrong door, if his right 
 ever came in question, an action may be supported, though there be no actual 
 damage done. And where anyone wantonly invades another's rights for the 
 purpose of injury, an action will lie, though no actual damage be done. But 
 It would seem to be settled that an action for a trespass to personal property 
 will not lie, when no unlawful intent, or disturbance of a right or possession, 
 is shown, and when no actual damage has been done, but all damage is ex- 
 pressly disproved, unless there be some right in question, which it is important 
 to the plaintiff to establish. Paul v. Slas«m (1850) 22 Vt. 231, 54 Am, Dec. 75: 
 Fairbanks v. Kittredge, 24 Vt. 9; Sedgwick on Dam, 62."
 
 IIG TORTS THROUGH ACTS OP ABSOLUTE LIABILITY (Part 1 
 
 WINTRINGHAM v. LAFOY. 
 (Supreme Court of New York, 1S27. 7 Cow. 735.) 
 
 On error from the C. P. of the City and County of N. Y. The 
 action in the court below was trespass de bonis asportatis by Lafoy 
 against Wintringham. It appeared on the trial that Wintringham 
 was a constable, who held a fi. fa. issued by the Marine Court of the 
 city, against the goods and chattels of one Gallis ; and that, Jan. 19. 
 1826, he levied on the articles in question, consisting of jewelry in 
 the store occupied by Gallis, who was present at the levy. That Gal- 
 lis informed the defendant below that the goods had been assigned by 
 him (Gallis), and the defendant below said he was indemnified. That 
 Gallis placed the articles on the glass case, so that the defendant be- 
 low might look at them to ascertain their value. That the defendant 
 below made an inventory, and said he would remove the goods, un- 
 less security was given that they would be forthcoming, to answer the 
 execution. That security was, therefore, given, and the articles were 
 left in the store. It further appeared that, Dec. 21, 1825, Gallis had 
 executed an assignment of all his property to the plaintiff below, La- 
 foy, for the purpose, first, of paying law expenses, then the debt of 
 the plaintiff below, then certain other creditors named, and then the 
 rest of his creditors. * * * 
 
 Savage;, C. J. It is not denied that a debtor in failing circum- 
 stances may prefer one of his creditors, or one set of creditors to 
 another ; nor is it pretended that any fraud in fact was proved in the 
 court below. Indeed this was negatived by the proof and verdict of 
 the jury. * =f= * 
 
 W^as there any evidence of a trespass? If a sheriff takes the 
 goods of a stranger, he is liable in this action. It is contended, how- 
 ever, that admitting the goods to belong to the plaintiff, the defendant 
 did no tortious act. Every unlawful interference, by one person with 
 the property or person of another, is a trespass. The defendant in 
 the court below undertook to control the property levied on. He took 
 it into his possession, though there was no manual seizing of it. He 
 was about to take it away, and would have done so, but for the se- 
 curity given him that it should be forthcoming upon the execution. 
 He exercised dominion over it. This was enough to constitute him a 
 trespasser, he having no authority. Trover lies against a defendant 
 who undertakes to control property in defiance or exclusion of the 
 owner. Reynolds v. Shulcr, 5 Cow. 325, 326, and cases cited. The 
 same doctrine is applicable in trespass, as in trover, where the con- 
 version is the tortious intermeddling with the goods of another. *^^ 
 
 The judgment must be affirmed. 
 
 63 The statement of facts is abriduerl and part of the opinion Is omitted. 
 
 See remarks of Dewey, J., in Miller v. Baker (1840) 1 Mete. (Mass.) ill, liO: 
 
 "A forcible taking of goods is not necessary to enable the owner to maintain
 
 Ch. 1) TRESPASSES 117 
 
 HARTLEY v. MOXHAM. 
 
 <Court of Queen's Bcncb. 1842. 3 Q. B. 701, 114 Reprint, 675, 61 R. R. 359.) 
 
 Trespass for seizing, taking, carrying away and converting arti- 
 cles, goods and chattels of the plaintiff. Plea, not guilty. On the 
 trial, before Cresswell, J., the following facts appeared : The plain- 
 tiff had lodged in the house of the defendant. In September, 1841, 
 plaintiff" was packing up some goods for the purpose of taking them 
 to Gloucester for sale, when defendant said that nothing should be 
 removed till plaintiff had paid defendant his bill. A dispute arose; 
 and the bill was not paid. Plaintiff put the goods under the charge 
 of his own servant, in his bedroom : and defendant then locked 
 them up in that room, kept the key, and detained the goods till 
 plaintiff' was prevented from going on his intended journey. It was 
 objected that trespass would not lie, inasmuch as no act of taking 
 appeared, but, at most, only a wrongful detention, the defendant 
 never having touched the goods ; and Cresswell, J., being of opinion 
 that no taking was proved which would support an action of tres- 
 pass, directed a nonsuit. 
 
 Erie now moved for a new trial, contending, that if the goods 
 were not in a literal sense taken away, they were separated from the 
 owner by locking the door upon them.*'* 
 
 Lord Denman, C. J. There is no ground for this motion. Cases 
 like the present must often have occurred ; yet there is no authority 
 for an action of trespass under the circumstances. The case diff'ers 
 from that of a distress, where the landlord asserts that he takes the 
 goods, and thereby acquires an authority and power and control 
 over them. And, even in such a case of taking, it has never been 
 held that trespass would lie if the act was wrongful. 
 
 Rule refused. 
 
 trespass. On a similar question, in Gibbs v. Ghase, 10 Mass. 128, Sewall, J., 
 says: 'No actual force is necessary to be proved. He who interferes with my 
 goods, and without delivery by me, and without my consent, undertakes to 
 dispose of them as having the property, general or special, does it at his 
 peril to answer me the value in trespass or trover.' It is sufficient to maintain 
 trespass, if the party exercises an authority over the goods against the will 
 and to the exclusion of the owner by an unlawful intermeddling, though there 
 be no manual taking or removal. Wintrincham v. Lafoy, 7 Cow. (N. Y.) 
 735; Phillips v. Hall, 8 Wend. (X. Y.) 610, 24 Am. Dec. 108. In the present 
 case there was not only an attachment of the property, but the placing of a 
 keeper over it with directions to permit no one to remove the same, and 
 an entry and exclusive possession by the keeper. It seems, therefore, that 
 as to so much of the property in controversy as is conceded to be personal 
 chattels, the case is clearly with the plaintiff." 
 
 6* The statement of the case is slightly abridged, and a pica in justification, 
 on which, as it turned out, nothing depended, that the defendant was an 
 innkeeper, is omitted. Williams, Coleridge, and Wright, JJ., concurred with 
 the Chief Justice.
 
 118 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 BROOKS V. OLMSTEAD. 
 (Supreme Court of Pennsylvania, 1851. 17 Pa. 24.) 
 
 This was an action of trespass brought by Henry Olmstead 
 against Brooks and Tozer, before a justice of the peace, and brought 
 into court by an appeal from the judgment of the justice. The 
 plaintiff filed a special declaration in the court below for taking and 
 driving away a heifer, the property of the plaintiff, to which the de- 
 fendants pleaded not guilty. On the trial, the defendants admitted 
 that the heifer was found in their possession, but denied their liabil- 
 ity as trespassers, alleging that the heifer was put into their posses- 
 sion without their knowledge or assent, and so continued in their 
 possession, without their knowledge, till found by the defendants in 
 error, when they purchased the heifer and paid for her, which was 
 the material question in the cause. 
 
 Coulter, J. It is, no doubt, true that one who comes to the pos- 
 session of goods by delivery, and who has been guilty of no fault on 
 his part, although it may turn out that the person who made the 
 delivery to him had no title himself and was a wrongdoer, yet the 
 receiver, guilty of no fault, cannot be treated as a trespasser. For, 
 in such case, he has done no act which aided in depriving the true 
 owner of his property. He, nevertheless, holds the property for the 
 true owner, who may recover in trover, if the recipient of the prop- 
 erty has converted it to his own use ; or he is liable in replevin. So 
 it may be stated, safely, that he who buys property from a trespass- 
 er, without any knowledge whatever of the original trespass, cannot 
 be treated as a trespasser himself; because he has been guilty of 
 no fault, or assisted in any way in depriving the true owner of his 
 property. And this is the general import of the cases cited from the 
 New York books of reports. The law is correctly enough expound- 
 ed in these books, and accurately stated. Indeed, the court .below, 
 in this case, seems fully to acknowledge this principle. 
 
 But, before testing the accuracy of the opinion of the court below, 
 we must look at the exact case which was before them. Two drovers, 
 Brooks and Tozer, purchased a drove in Bradford county, and had 
 them collected, as is customary, by their agents, at the field of one 
 Watkins. Among the cattle driven into that field was the heifer or 
 cow about which this dispute originated, which heifer the defendants 
 never did purchase, nor had they paid anything for it, either by them- 
 selves or their agents. Before they drove off the cattle from Wat- 
 kins' field, it appears distinctly from the testimony of one of their 
 agents, that they knew there was one beast more than their number, 
 or than they had purchased. One of the witnesses, however, Ben- 
 jamin Sawyer, testifies, that four days before the cattle were driven 
 off, Brooks and Tozer called on him, and he stated to them that he
 
 Ch. 1) TRESPASSES 119 
 
 knew Olmstead's heifer, and pointed her out; they then asked him 
 if he thought Ohnstead would sell her. 
 
 The counsel for the defendant requested the court to charge the 
 jury, that "if the heifer in question came into possession of the de- 
 fendants by the act of their servant, without their knowledge or as- 
 sent, and continued in their drove without their knowing that the 
 heifer was among their cattle, trespass would not lie." The court an- 
 swers that : 
 
 "Although the taking of the heifer by Charles Brooks, their agent, and his 
 driving her to Watkins', and there putting her into their drove of cattle, if 
 without their knowledge, would not make them trespassers; yet if they took 
 possession of the heifer with their other cattle, and drove her away from Wat- 
 kins' in Athens, to Sullivan county, where they were overtaken by plaintiff, 
 they might be treated as trespassers, and their want of knowledge that the 
 heifer was brought into their drove would not bar the plaintiff's right to re- 
 cover in this case." 
 
 This answer is a little indistinct; but substantially, it answers the 
 point of the defendants quite as favorably as the law allowed. For 
 it was the duty of the defendants, before they became the actors in 
 depriving the plaintiff of his property, by driving it far away, to take 
 the usual and proper precautions to ascertain whether they had more 
 than their own. I believe it is the universal custom of drovers be- 
 fore they start off with the drove, to count their cattle — a custom dic- 
 tated by their own interest, in order that they may know whether they 
 have all they purchased; as well as by a due regard to the interest 
 of others, in order that they may know that they do not take awa)' 
 the property of other people. 
 
 Were the defendants then not in fault? Surely they were. For 
 it will not- do to allow any person the privilege of alleging his own 
 recklessness, carelessness, or negligence, as an excuse for depriving 
 another man of his property or rights. A man may be guilty of 
 a high crime, if he rashly and recklessly, without proper precaution, 
 does an act which injures another, although he does not intend to 
 commit the crime or actually knows that he is doing so. Com. v. 
 Cornish, 6 Bin. 249. A fortiori he may be guilty of a trespass. If 
 the law were held otherwise, farmers and people in villages where 
 cattle are allowed to run at large, would be exposed to great trouble 
 and expense in regaining their cattle, driven off by the agents or 
 servants of drovers. Because in the action of trover, if they were 
 driven to that, the measure of damages would be the value of the 
 goods and chattels at the time of the demand with interest, which 
 would be no compensation for the loss of time, the expense and trou- 
 ble in pursuing cattle to u great distance. When the plaintiff' fol- 
 lowed the defendants, in pursuit of his property, into Sullivan county, 
 the defendants, when overtaken, admitted the right of property in the 
 heifer to be in plaintiff, and offered to buy her. The plaintiff" finally 
 agreed to take $15 for the heifer, but they could not agree as to the 
 amount of damages for expenses and trouble in following after the
 
 120 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 heifer, and at last it was agreed that that sum should be settled when 
 the drovers returned from the sale of their drove. It does not ap- 
 pear that the defendants, after their return, made any attempt to 
 settle or pay the damages, and the plaintiff brought this action of tres- 
 pass. 
 
 The counsel for the defendants submitted a second point to the 
 court as follows : "That Olmstead, having sold the heifer to the 
 defendants, and assented to settle the damages with the defendants 
 after their return home, could not maintain this action of trespass." 
 The counsel for plaintiffs in error contends that the court did not 
 answer this point. It is true they did not answer it separately and 
 distinctly; but it was substantially answered by the instruction ta 
 the jury, that the defendants below might be treated as trespassers,, 
 and that the action would lie. The point, however, wants substance, 
 and if answered directly against the plaintiff there would not have 
 been error. Taking pay for the heifer and expressly reserving the 
 question of damages, left the matter open, and did not purge or wipe 
 away the action of trespass. The wrong was not atoned for or sat- 
 isfied; and the original action remained as well by the understanding 
 of the parties, as by operation of law, 
 
 I do not well see what other action would lie for the enforcement 
 of these damages under the circumstances. 
 
 We are of the opinion that the action of trespass was maintainable. 
 
 Judgment affirmed. 
 
 WEBBE V. LEEK. 
 
 (Court of Common Pleas, 13SS. Y. B. 12 Rich. II., Trinity Term.) 
 
 Trespass brought by one man against another, and counted by Rik- 
 hill that by force and arms he broke the house of the plaintiff in a 
 certain vill and took and carried away a servant of his found there 
 ready, etc. 
 
 W'adham. As to all but the servant, not guilty ; and as to the 
 servant we say that on the same day of the trespass that he has com- 
 plained of, we came to the said vill and we say that this which he 
 has said was his servant was only an infant of the age of four years 
 and we found the infant wandering in the same vill, wherefore we 
 took the said infant for charity and to satisfy his needs and we de- 
 mand judgment if wrong (were done). * * * 
 
 Thirning, J. This action is not taken upon the statute of laborers, 
 "Quod potens in corpore, etc.," but it is an action which was at the 
 common law, for at the common law a man shall have an action for 
 his infant or his servant taken out of his keeping, and it can be un- 
 derstood that although he was only of such an age, still he could con- 
 fer ease and advantage on his master, as by taking care of a house and
 
 Ch. 1) TRESPASSES 121 
 
 Other things, and it is reason that he have his action which is given 
 to him at the common law. 
 
 Alarkham. A man shall have a good writ of trespass "quare quon- 
 dam puerum suum in custodia sua existente" whether it be his serv- 
 ant or his infant of whatever age he may be, but not "quare servien- 
 tem" and particularly in this case, because it cannot be understood 
 that an infant of four years could render service to any one, etc. 
 
 And by the opinion of Charlton and Thirxixg his action might 
 be maintained at the common law, whatever his age.*^^ 
 
 HYDE v. SCYSSOR. 
 
 (In the Exchequer Chamber, 1620. Cro. Jac. 538, 79 Reprint, 462.) 
 
 Trespass; for that the defendant, 21 ^lay, 6 Jac. 1, made an as- 
 sault upon Elizabeth the plaintiff's wife, 
 
 •et illam verberavit, et male tractavit, necnon the said Elizabeth simul cum 
 one gown, one petticoat, etc., of the goods of the plaintiff, simul cum the said 
 EUzabeth, at D. tunc et ibidem cepit, abduxit, et abcai'iavit, necnon eandem 
 Elizabetham per 5 annos ab eodem le plaintiff detinuit et custodivit, per quod 
 le plaintiff solamen et consortium, necnon consilium et auxilium in rebus 
 domesticis quae idem le plaintiff habere debuisset et potuisset cum uxore sua 
 per totam tempus prsed. perdidit et amisit, et alia enormia, etc. 
 
 The defendant pleaded not guilty; and it was found against him, 
 and damages assessed to £300., and judgment found for the plain- 
 tiff : and now a writ of error thereof was brought in the Exchequer 
 Chamber. 
 
 The first error assigned was, because the action was by the husband 
 solely for the battery of his wife, which ought not to be ; for the 
 tort and damages are properly done to the wife, and therefore the 
 husband sole without the wife could not maintain the action; and 
 then the damages being entirely given, the judgment is erroneous. 
 Vide 9 Edw. 4, pi. 52 ; 46 Edw. 3, pi. 3 ; 22 Ass. pi. 16. 
 
 But all the Justices and Barons held, that true it is the husband, for 
 the battery of his wife, ought to join his wife with him in the action, 
 if this had been brought for that cause ; but here the action is not 
 brought for the battery of his wife, but for the loss and damage of 
 
 6 5 Part of the case is omitted. 
 
 The translation is from Mr. George F. Deiser's edition of the Year Book of 
 12 Ricliard II., for the Ames Foundation. 
 
 Compare Scidmore v. Smith (1816) 1-3 Johns. (N. Y.) 322: "Smith brought 
 an action of trespass to recover damages for seducing and harboring his man- 
 servant. It was objected that the action should have been debt, under the 
 15th section of the 'Act Concerning Slaves and Servants' (2 Rev. Laws ISi;;, 
 p. 206) ; but the exception was ovei-ruled, and judgment was given for the 
 plaintiff. Per Curiam: The statute penalty for harboring slaves or servants 
 is cumulative, and does not destroy the common law remedy." See also Fores 
 v. Wilson (1701) 1 Peake, 77, 3 R. R. 052: P. sues for debauching his maid- 
 servant. Erskme, for the defendant, objected, in vain, that the plaintiff was 
 ■"no relation to the person seduced."
 
 122 TORTS THROUGH ACTS OP ABSOLUTE LIABILITY (Part 1 
 
 the husband, for want of her company and aid ; and all is concluded 
 with the per quod consortium amisit, which extends to all that was 
 before; as where an action brought by the master for the battery 
 of his servant, per quod servitium amisit, etc. 
 Judgment affirmed. 
 
 SECTION 3.— JUSTIFICATION OR EXCUSE OF A PRIMA 
 
 FACIE TRESPASS 
 
 I. Showing the Justification 
 
 [Note: on the Prima Facie Cause and the Aesoi^ute Cause. 
 The question. What are the essentials of a cause in trespass? — or 
 of any cause in tort or contract — is apt to arise, in a given case, not 
 as a question of the essentials of an absolute cause, but as a question 
 of the prima facie cause. To a great extent, the real difficulty in the 
 law of torts is "to define the substantial principles of justification and 
 excuse." But of the defendant's justification or excuse, although rest- 
 ing on facts which are cotemporaneous with the facts set up by the 
 plaintiff in his first pleading, and well within his knowledge, the plain- 
 tift''s first pleading makes no mention. He pleads only the facts of 
 a prima facie cause. And unless the defendant pleads his justification 
 or excuse, the court, answering the question whether the facts in the 
 case make a valid cause, will, as a rule, pay no heed to this outlying 
 fact; yet its possible existence often colors the general notion of this 
 tort. 
 
 The defendant can meet the prima facie cause presented in the 
 plaintiff's first pleading — his declaration at common law, his complaint 
 or petition under the code, in one or the other of three ways: (1) The 
 defendant may demur, and thus raise the question whether the facts 
 which appear in the plaintift"'s pleading are sufficient in law to consti- 
 tute a good prima facie cause existing in his right against the defend- 
 ant. (2) The defendant may traverse, or deny, one or more of the 
 facts alleged in the plaintift"'s pleading, and thus put the plaintiff' to 
 the proof of the material facts denied. The facts not denied are ad- 
 mitted. (3) The defendant may plead, or answer, by confession and 
 avoidance. 
 
 The effect of a confession and avoidance is to admit the plaintiff's 
 case as pleaded, but to offer to avoid its prima facie eft'ect through the 
 proof by the defendant of the "new matter" which he has pleaded. If 
 the defendant does not succeed in this, and the burden of proof as to 
 the new facts is on him, the plaintiff succeeds once more on his prima 
 facie case.
 
 Ch. 1) TRESPASSES 123 
 
 It is to be remembered that the office of a traverse, or denial, is not 
 to excuse but to contradict, and thus deline what the plaintiff must 
 prove. It cannot "be made to do the work of a plea in confession and 
 avoidance." Regularly "all matters in confession and avoidance shall 
 be pleaded specially." (Rules of Hilary Term, 1853, rr. 12, 17.) It 
 should be remembered also that matter in confession and avoidance 
 is of two kinds. Admitting that the facts alleged by the plaintiff make 
 a good prima facie case, the defendant may destroy their effect by 
 showing that the plaintiff never, at any time, had an absolute cause 
 of action, because the defendant's act, when committed, was justifiable 
 or excusable. Or the defendant may admit that the plaintiff had for 
 a time an absolute cause of action against him, but may show that it 
 has been discharged or released by something occurring subsequently. 
 In the cases given in the text, only the defence of justification or ex- 
 cuse is considered. — Ed.] 
 
 BADKIN V. POWELL et al. 
 (Court of King's Bench. 1776. Covrp. 476, 9S Eeprint. 1195.) 
 
 Upon shewing cause why a verdict should not be entered in this 
 cas^ for the defendant Chancellor ; the case upon the report of Lord 
 Mansfield, before whom the cause was tried, appeared to be as fol- 
 lows: 
 
 The plaintiff was a running dustman, and the defendant Powell, a publick 
 scavenger. Powell and King detained the plaintiffs cart and horses as they 
 were standing in the street, under pretence of their being an estray, and with- 
 in the City of London ; and carried them to the Green Yard, of which the 
 defendant Chancellor was the pound-keeper ; who afterwards insisted upon 
 being paid the following sums before he would deliver them up. For bringing 
 them in, 2s., for crying them, 2s., for keeping the horses, £2, 6s. Sd., and for 
 the care of the cart fl. 3s., which the plaintiff accordingly was obliged to 
 pay: upon not guilty pleaded, the jury found a verdict for the plaintiff 
 against all the three defendants. 
 
 The only question at the trial was, whether this action of trespass could 
 be maintained against the defendant Chancellor the pound-keeper, who did 
 no other act than barely receiving the horses and cart into the pound when 
 they were brought there and keeping them several days till redeemed. I 
 thought he ought to be found not guilty ; but it was contended he was a 
 trespasser by continuing them in the pound, being wrongfully impounded, and 
 the jury found him, as well as the other defendants, guilty. 
 
 Mr. Wallace and Mr. Buller shewed cause, and argued, 1st. That 
 in trespass all are principals : and here the original taking being tor- 
 tious, the pound-keeper, by refusing to release the cattle, till the plain- 
 tiff had discharged the fees and all expences, had adopted the original 
 taking."^ 
 
 Lord Mansfikld. This is an action of trespass against three de- 
 fendants for seizing and detaining the plaintiff's cart and horses; and 
 they have all pleaded not guilty. The question reserved is, whether 
 the defendant Chancellor ought to be found guilty or not? 
 
 68 The arguments and Aston, J.'s, concurring opinion are omitted.
 
 124 TOKTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part I 
 
 It has been argued two ways ; 1st, whether on the merits of the case- 
 he was a trespasser? 2dly, supposing on the merits of the case he 
 was no trespasser, whether by pleading the general issue he has not 
 mispleaded, and ought to have justified? 
 
 1st, upon the merits of the case: it was necessary for the plaintiff 
 to prove him guilty of the trespass ; otherwise the case stands, that 
 two persons seized the cart and horses and brought them to the pound, 
 of which Chancellor was the keeper. Chancellor has no concern in 
 the taking or bringing them there. How then is he guilty of trespass? 
 The pound is the custody of the law : and the pound-keeper is bound 
 to take and keep whatever is brought to him, at the peril of the per- 
 son who brings it. There is no judgment, no direction, no written 
 warrant or examination to be had by him. When is the trespass com- 
 mitted by him? He does nothing to ratify it: but only takes the cat- 
 tle as he is obliged to do, at the peril of the person who brings them. 
 If wrongfully taken, they are answerable, not he. It would be ter- 
 rible if a pound-keeper were liable to an action for refusing to take 
 cattle in, and were also liable in another action for not letting them 
 go. If he goes one jot beyond the duty and assents to the trespass, 
 that may be a different case. But here he has done nothing beyond 
 his duty : when the cattle are once impounded, he cannot let them go 
 without a replevin, or without the consent of the party. Upon their 
 being released he is entitled to legal fees. If he is guilty of extortion 
 there is another remedy. 
 
 What I have said is a clear answer to the 2d objection, that he has 
 not pleaded specially, as it has been contended he ought to have done. 
 No man is bound to justify who' is not prima facie a trespasser. A 
 gaoler if he has a prisoner in custody is prima facie guilty of an im- 
 prisonment, and therefore must justify. But here it comes out on the 
 plaintifif's own shewing, that the pound-keeper had nothing to do with 
 the taking. The law thinks him so indifferent a person, that if the 
 pound is broken, the pound-keeper cannot bring an action, but it 
 must be brought by the party interested. It would be attended with 
 terrible inconveniences, if he were answerable for a wrongful taking 
 by the persons who bring the cattle to him ; and, therefore, I am clear- 
 ly of opinion there ought to be judgment for the defendant Chancel- 
 lor in this case. 
 
 BENNETT v. ALLCOTT. 
 
 (Court of King's Bench, 1787. 2 Term R. 166, 100 Reprint, 90, 
 
 31 R. R. 667, note.) 
 
 Trespass for breaking and entering the plaintiff's house, debauching 
 his daughter (describing her as a menial servant), and getting her 
 with child, per quod servitium amisit. Plea, not guilty. At the trial 
 it appeared, that the defendant, who was a collector of the land-tax, 
 visited the plaintiff's daughter in the character of a suitor, but at
 
 Ch. 1) TRESPASSES 125 
 
 the time when his entering the house was proved in order to support 
 the trespass, he went to demand payment of the land-tax, when, the 
 plaintiff being from home, his wife invited the defendant to go into 
 the daughter's bed-chamber, where she was lying upon the bed, and 
 left them together for several hours. The jury gave a verdict for 
 the plaintiff with £200. damages; which the learned judge thought 
 were not excessive. A motion was made to set aside the verdict. 
 
 Lane. This is not an action on the case for the consequential 
 damages, where the per quod is the gist of the action, but trespass 
 for the immediate injury. Now if the trespass for breaking and en- 
 tering the plaintiff's house fall to the ground, that which is a conse- 
 quence must necessarily fall with it. It was proved that the defend- 
 ant entered the plaintift"s house as a collector of the land-tax, there- 
 fore his entry was law^ful, and his continuing there was at the re- 
 quest of the plaintiff's wife; this would have supported a plea of 
 licence, and evidence of it is good under the general issue. 
 
 BuLLER, J. An action merely for debauching a man's daughter, 
 by which he loses her service, is an action on the case. But according 
 to Lord Holt's opinion. [Russell v. Corne] 2 Lord Raymond, 1032, 
 where the offence is accompanied with an illegal entry of the father's 
 house, he has his election either to bring trespass for the breaking and 
 entering, and lay the debauching of the daughter and loss of her serv- 
 ice as consequential ; or he may bring the action on the case merely 
 for debauching his daughter, per quod servitium amisit. In the pres- 
 ent case the plaintiff has made his election, and has brought an action 
 of trespass for breaking and entering his house, and all the rest is 
 merely consequential. And therefore it is true, as was said, that if 
 the trespass had not been proved, the defendant would have been en- 
 titled to a verdict. But it is now perfectly clear that a licence to en- 
 ter cannot be given in evidence under the general issue. The plea 
 of "not guilty" only goes to deny the fact of the trespass : now as 
 that was proved in fact, the plaintiff was entitled to a verdict ; and 
 the only consideration for the jury was as to the quantum of dam- 
 ages. * * * 
 
 Rule discharged. ^^ 
 
 6T Part of the opinion is omitted. Ashhurst and Butler, J J., concurred in 
 the result 
 
 On license as a defense, when pleaded, see infra, page 132, "The Different 
 Kinds of Justification or Excuse in Trespass: Consent."
 
 126 TOUTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 WATSON V. CHRISTIE. 
 
 (Court of Common Pleas, 1800. 2 Bos. & P. 224, 126 Reprint, 1248, 5 R. R. ,579.) 
 
 Trespass for assaulting and beating the plaintiff. Plea not guilty. 
 At the trial it appeared that the defendant was the captain of a ship, 
 and the plaintiff one of his crew; that the plaintiff while under the 
 defendant's command had been so severely beaten by order of the 
 defendant, that he had ever since that time been in a state of extreme 
 ill health, and was likely to continue so during the rest of his life, which, 
 he was in some danger of ultimately losing in consequence of the as- 
 sault. On the other hand, it was oft'ered to be shewn that the beating 
 in c|uestion was given by way of punishment for misbehaviour on 
 board the ship, and it was insisted that the conduct of the defendant 
 at the time of the assault being necessarily in evidence proved that 
 misbehaviour. 
 
 Lord Eldon, Ch. J., before whom the cause was tried, directed 
 the jury that the only questions for their consideration were. Whether 
 the defendant was guilty of the beating? and what damages the plain- 
 tiff had sustained in consequence of it? that although the beating in 
 question, however severe, might possibly be justified on the ground 
 of the necessity of maintaining dicipline on board the ship, yet that 
 such a defence could not be resorted to unless put upon the record, 
 in the shape of a special justification; that the defendant had not 
 said on the record that this was discipline, or justified it on any 
 ground ; that much evil beyond the mere act of wrong had been actu- 
 ally suffered ; which evil had been occasioned by a cause which the 
 defendant admitted he could not justify; that in his Lordship's judg- 
 ment therefore the evil actually suffered in consequence of what was 
 not justified ought to be compensated for in damages; that the jury 
 should give damages to the extent of the evil suffered, without les- 
 sening them on account of the circumstances under which it was in- 
 flicted; that if they gave damages beyond a compensation for the in- 
 jury actually sustained they would give too much, but that if they 
 gave less they would not give enough. 
 
 The jury found a verdict for £500, being all the damages laid in 
 the declaration. 
 
 Shepherd, Serjt., now moved for a rule calling on the plaintiff to 
 shew cause why this verdict should not be set aside and a new trial 
 be had, on the ground of the damages being excessive, and because the 
 jury ought not to have been directed to exclude from their consider- 
 ation those circumstances which tended to shew the necessity of that 
 punishment being inflicted which was the cause of the action; for 
 that although the plaintiff might perhaps be entitled to some damages, 
 since the circumstances alluded to did not amount to a legal defence, 
 yet the defendant had a right to the benefit of those circumstances by 
 way of mitigation.
 
 Ch. 1) TRESPASSES 127 
 
 But the Court were of opinion that his Lordship's direction was 
 perfectly right in point of law, and that it did not appear from the 
 report that the damages given by the jury were excessive. 
 
 Shepherd took nothing by his motion.^ ^ 
 
 MILMAN V. DOLWELL. 
 
 (At Nisi Prius, 1810. 2 Campb. 378.) 
 
 Trespass for cutting the plaintiff's barges from their moorings in 
 the river Thames; whereby they had been set adrift and been injured. 
 It appeared at a time when there was a great quantity of ice in the 
 Thames, the defendant took two barges of the plaintiff from the 
 middle of the river, where they were moored, to the opposite shore, 
 and that one of them was immediately after discovered to have a 
 hole in its bottom, but there was no evidence to show how this had 
 been occasioned. 
 
 Garrow, for the defendant, offered to prove, that at the time of the 
 supposed trespass these barges were in the greatest danger of being 
 carried away by ice; that if he had not interfered, they most prob- 
 ably would have been destroyed; that he did what was prudent and 
 most for the plaintift''s advantage to be done under the circumstances ; 
 and that he had been employed by the plaintiff generally to take 
 charge of the barges, and must be presumed to have had his authority 
 to remove them from a place of danger to a place of safety. 
 
 Lord EllKnborough. These facts should have been specially 
 pleaded. I cannot admit evidence of them under the plea of not 
 guilty; — the issue joined upon which is, whether the defendant re- 
 moved the barges belonging to the plaintiff from their moorings, not 
 whether he was justified in doing so. 
 
 Garrow argued that the plea of not guilty merely denied the com- 
 mitting of any trespass, and it was impossible to say that any tres- 
 pass was committed, if the barges were removed by the plaintiff's 
 own orders either express or implied. The case was the same as if 
 the plaintiff had stood by and directed how the thing was to be done, 
 and the unmooring of the barges must be considered the act of the 
 plaintiff rather than of the defendant. 
 
 Lord EllEnborough. The defendant allows that he intermed- 
 dled with goods which were the property and in the possession of the 
 plaintiff. By so doing he is presumed to be a trespasser ; and if he 
 has any matter of justification, he must put it upon the record. The 
 plea of not guilty only denies the act done, and the plaintiff's title 
 
 6 8 "Even in mitigation of damages it is well settled that you cannot go into 
 evidence which, if proved, would constitute a justification." The Earl of 
 Halsbury, L. C, in Watt v. Watt (inor>) A. C. 115, 118. 
 
 See, also, Pujolas v. Holland (1841) 3 Ir. L. R. .53.3. 
 
 On discipline as a defense, when pleaded, see infra, "The Different Kinds 
 of Justification or Excuse in Trespass: Discipline."
 
 128 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 to the subject of the trespass. If the defendant has any authority, 
 general or particular, express or implied from the plaintiff, this must 
 be specially pleaded, by way of excuse. 
 
 Garrow then offered to prove that these barges were frozen to 
 some others belonging to J. S., by whom the defendant was employed 
 to get the latter ashore, and that it was utterly impossible to do this 
 without bringing the former along with them. 
 
 Lord EllEnborough. If tlie necessity was inevitable, and the 
 barges of the third person by whose express orders the defendant 
 acted, must otherwise have been destroyed, this might have amounted 
 to a justification; but like the first set up, it must have been put upon 
 the record. 
 
 The jury found a verdict for the plaintiff with one farthing damages. 
 
 Garrow afterwards moved for a new trial, on the ground that the 
 evidence had been improperly rejected; and further contended, that 
 the action should have been case and not trespass ; but the court were 
 against him on both points, and refused a rule to show cause. "^^ 
 
 BRIDGETT v. COYNEY. 
 
 (Court of King's Bench, 1827. 1 Man. & R. 211, 31 R. R. 316.) 
 
 Trespass against a magistrate for an assault and false imprison- 
 ment. Verdict for the plaintiff. Motion for a new trial. 
 
 Lord TenterdKn, C. J. * * ■" What are the circumstances of 
 the case? The plaintiff appears before the defendant, who is a mag- 
 istrate, to answer the complaint of Dawson, of having unlawfully 
 killed his dog. The defendant proposes to the parties to arrange 
 the matter upon amicable terms. The plaintiff rejects the proposal, 
 upon which the defendant tells him, that unless he pays a certain 
 sum of money, he shall convict him in a penalty of that amount, un- 
 der an act of parliament, in which case he will be committed to prison. 
 The plaintiff still rejects the proposal and declares that he will carry 
 the case elsewhere ; that is, that he will appeal from the defendant's 
 jurisdiction to a higher tribunal. Upon that the defendant calls in 
 a constable, whom he orders to take the plaintiff out, and if the par- 
 ties cannot settle the matter, to bring him in again, as he must proceed 
 to commit him under the act. The plaintiff accordingly goes out with 
 the constable, and while they are absent the affair is settled, by the 
 plaintiff's paying a sum of money. It seems to me impossible to doubt 
 that the plaintiff went out on that occasion in custody, having been 
 ordered into that custody by the defendant; and if so, there is, in 
 the eye of the law, an assault and false imprisonment by the defendant 
 upon the person of the plaintiff. Then what is the justification? It 
 
 CO On the preservation of property as a defense, when pleaded, see infra, 
 "The Different Kinds of Justification or Excuse in Trespass: Defense of Per- 
 sonal Property."
 
 Ch. 1) TRESPASSES 129 
 
 is said that the plaintiff was convicted, and therefore that his deten- 
 tion was legal. What evidence is there of his conviction? No con- 
 viction was produced at the trial, or is laid before us now; indeed, 
 it is admitted that none has ever been drawn up : then how can we 
 possibly say that the party was convicted ? The final arrangement of the 
 matter by the parties in an amicable way, might properly prevent the 
 defendant from acting upon the conviction, if there had been one ; but 
 it did not prevent his drawing it up as a justification for his own 
 conduct in the transaction ; and not having done so, he is without 
 justification, and must abide the consequences. 
 
 The other judges concurred. 
 
 Rule refused^" 
 
 CARSON V. WILSON. 
 
 (Supreme Court of New Jersey, 1S29. 11 N. J. Law [6 Halst.] 43, 
 
 19 Am. Dec. 368.) 
 
 EwixG, C. J. The declaration is in trespass for breaking and en- 
 tering the house of the plaintiff and taking and carrying away his 
 goods and chattels. The plea is. Not guilty. On the trial the defend- 
 ants oft'ered evidence to justify the breaking and entry and the taking 
 of the property, under an execution from a court for the trial of small 
 causes, in debt, at the suit of one of them, placed in the hands of an- 
 other of them who was a constable ; and to shew that the goods and 
 chattels mentioned in the declaration were the property of one Buck- 
 alew the defendant in the execution, and fraudulently secreted in the 
 house of the plaintiff, and as such were levied on and taken by virtue 
 of the execution. The Court of Common Pleas rejected the evidence 
 and a verdict and judgment were rendered for the plaintiff. 
 
 Under the plea of, not guilty the evidence offered by the defendants 
 was inadmissible. The charge set forth in the declaration and proved 
 on the trial by the witness of the plaintiff appeared prima facie to be 
 at common law a trespass. In such case the rule of pleading requires 
 matter of justification or excuse, to be specially pleaded; and this rule 
 has been expressly applied to an entry by virtue of process of fieri fa- 
 cias, Co. Lit. 282, b; 283, a; Com. Dig. tit. "Pleader," E. 15, 17; 3 
 Bos. & Puller, 223 ; 1 Saund. 298, n. 1 ; 1 Chit. Plead. 492, 495 ; 2 
 Chit. PI. 587, and note g. 
 
 The evidence oft'ered by the defendants was therefore properly over- 
 ruled and the judgment shall be affirmed. 
 
 Judgment affirmed. '^^ 
 
 7 The statement of facts is abridged and part of the opinion Is omitted. 
 
 On lawful detention as a defense, when pleaded, see infra. "The Different 
 Kinds of Justification or Excuse in Trespass: Judicial Process, Lawful Ar- 
 rest." 
 
 71 On judicial process as a defense, when pleaded, see infra, "The Different 
 Kinds of Justification or Excuse in Trespas^s : Judicial Process." 
 Hepb. Torts — 9
 
 130 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 ANTHONY V. HANEYS et al. 
 (Court of Common Pleas, 1S32. 8 Bing. 186, 131 Reprint, 372, 34 R. R. G70.) 
 
 Trespass for breaking and entering the plaintiff's close. Pleas, the 
 general issue and a special plea that the defendant was the owner of 
 certain goods and chattels, to wit, 10,000 bricks, etc., then in and upon 
 the close of the plaintiff, and that defendant entered to remove them, 
 doing no unnecessary damage. Demurrer and joinder. 
 
 BosANQUET, J. I am of opinion that this plea is no answer to the 
 trespass with which the defendant is charged. It is put broadly and 
 nakedly that the defendant has a right to enter the soil of another to 
 take his own property without shewing the circumstances under which 
 it came there. The case has been argued on the ground of necessity : 
 but on that ground at least the necessity should be shewn. There are, 
 no doubt, various cases in which it has been held that the party is en- 
 titled to enter, but in all of them the peculiar circumstances have been 
 stated on which the party rested his claim to enter. It would be too 
 much to infer that the party may enter in all cases where his goods are 
 on the soil of another, because he may enter in some where he shows 
 sufficient grounds for so doing. 
 
 Judgment for plaintiff J ^ 
 
 HALL V. FEARNLEY. 
 
 (Court of Queen's Bench, 1842. 3 Q. B. 919, 114 Reprint. 761.) 
 
 Trespass for driving defendant's cart and horse against plaintiff, 
 and thereby knocking him down, bruising and wounding him. Plea, 
 not guilty. » 
 
 On the trial, it was proved that the plaintiff was walking on a nar- 
 row part of the pavement in a public street, where there was a con- 
 siderable curvature in it. The defendant was driving a cart in the 
 road near the pavement at the edge of which the plaintiff was walk- 
 ing. The case for the plaintiff was that there was want of due care 
 on the part of the defendant, who had driven so close to the pavement 
 as to knock the plaintiff down, and run over and break his leg. The 
 defendant endeavoured to shew that the plaintiff had slipped from 
 the curb-stone at the moment when the cart was passing, and had so 
 got his leg under the wheel. The defendant called no witnesses. 
 WiGiiTMAN, J., told the jury that the question for them was, whether 
 the injury was occasioned by unavoidable accident or by the defend- 
 ant's default; and that, if they thought the plaintiff had accidentally 
 
 72 The statement of the pleadings has been abridged. The argument and the 
 concurring opinions of Tindal, C. J., and Parlv and Alderson, JJ.. are omitted. 
 
 On necessity as a defense, if pleaded, see infra, "The Different Kinds of Jus- 
 tification or Excuse in Trespass: Necessity."
 
 Ch. 1) TRESPASSES 131 
 
 slipped off the pavement as the defendant's cart was passing, and had 
 been run over in consequence of such accident, they ought to find for 
 the defendant. Verdict for the defendant. 
 
 In the same term Crowder obtained a rule nisi for a new trial on 
 the ground that the judge had misdirected the jury, by telling them 
 that, on the issue, if the injury was accidental, the defendant was en- 
 titled to a verdict. 
 
 Lord Dexmax. C. J. The authorities shew that if the accident had 
 resulted entirely from a superior agency, that would have been a de- 
 fence, and might have been proved under the general issue; but a 
 defence admitting that the accident resulted from an act of the de- 
 fendant would not have been so proveable. 
 
 Coleridge;, J. Any defence, which admits the trespass complained 
 of to be the act of the defendant, must be pleaded specially. 
 
 \\'iGHTMAX, J. The act of the defendant was prima facie unjus- 
 tifiable, and required an excuse to be shown. When the motion in 
 this case was first made, I had in my recollection the case of Wake- 
 man V. Robinson, 1 Bing. 213. It was there agreed that an involun- 
 tary act might be a defence on the general issue. The decision indeed 
 turned on a difTerent point ; but the general proposition is laid down. 
 I think the omission to plead the defence here deprived the defend- 
 ant of the benefit of it, and entitled the plaintiff to recover. 
 
 Rule absolute for a new trial. "^ 
 
 YASKA v. SWEXDRZYNSKI et al. 
 (Supreme Court of Wisconsin, 1907. 133 Wis. 475, 113 N. W. 959.) 
 
 Action for an assault and battery alleged to have been committed 
 by the three defendants jointly. They answered separately by mere 
 general denial. The evidence disclosed, substantially without dis- 
 pute, a severe beating of plaintiff by defendant Swendrzynski, and 
 there was some evidence of an attack by each of the other defend- 
 ants. There was also some attempt to prove a previous agreement 
 amongst the three defendants to assault plaintiff. Evidence was ad- 
 mitted tending to show a first assault by plaintiff, and the court sub- 
 mitted the case upon the theory that such first assault might consiitute 
 a defence, and the jury might consider whether the defendants acted 
 in self-defence. A general verdict for the defendants was found, 
 and judgment in their favor rendered, from which the plaintiff ap- 
 pealed. 
 
 Dodge, J. Obvious error was committed in charging the jury that 
 the assault conceded to have been made by one of the defendants, 
 
 T3 On accident as a defense, if pleaded, see infra, "The Different Kinds of 
 Justification or Excuse in Trespass: Accident."
 
 w 
 
 y 
 
 132 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 and of which there was some evidence as to the others, might be 
 justified, and a verdict for the defendants found, in case the plain- 
 tiff committed the first assault and the defendants acted in self-de- 
 fence. Respondents' counsel substantially concede that such justi- 
 fication and defence was not admissible under mere general denial, 
 and such is the law as settled by authorities. Levi v. Brooks, 121 
 Mass. 501; Cooper v. McKenna, 124 Mass. 284, 26 Am. Rep. 667; 
 Barr v. Post, 56 Neb. 698, 77 N. W. 123 ; Atkinson v. Harran, 68 
 ^^'is. 405, 407, 32 N. W. 756; 3 Cyc. p. 1084; 2 Ency. PI. & Pr. p. 
 862. We cannot doubt that the verdict in favor of all of the de- 
 fendants may well have been due to this error. Hence no course is 
 open to us but to reverse the judgment and order a new trial. * * * 
 Judgment reversed and cause remanded for a new trial,^* 
 
 II. The; Diffkri^nt Forms of Justification or Excuse; 
 
 (A) Consent 
 (a) Leave and License 
 
 Harm sufifered by consent is, within limits to be mentioned, not 
 a cause of civil action. The same is true where it is met with under 
 conditions manifesting acceptance, on the part of the person suffer- 
 ing it, of the risk of that kind of harm. The maxim by which the 
 rule is commonly brought to mind is "Volenti non fit injuria." "Leave 
 and licence'' is the current English phrase for the defence raised in 
 this class of cases. On the one hand, however, "volenti non fit injuria" 
 is not universally true. On the other hand, neither the Latin nor 
 the English formula provides in terms for the state of things in which 
 there is not specific will or assent to suffer something which, if in- 
 flicted against the party's will, would be a wrong, but only conduct 
 showing that, for one reason or another, he is content to abide the 
 chance of it.'^ 
 
 Pollock, Law of Torts (8th Ed.) 159. 
 
 7-1 A part of the opinion, on other points, is omitted. 
 
 So, in Connnon L:i\v States, see Lutlopp v. Heclimann (1904) 70 N. J. Law, 
 272, 57 Atl. 104G: "In order to set up in such a case [assault and battery] the 
 defense of son assault demesne, it must he pleaded specially." 
 
 On son assault demesne as a sufhcient defense, see infra, "The Different 
 Kinds of Justification or Excuse in Trespass: Defense of the Person." 
 
 7B The standard common law form of the pica of leave and license had this 
 as its cardinal averment: "Because he says that he. the said defendant, at 
 the said several times when, etc., by the leave and license of the said plaintiff, 
 to him for that purpose first «iven and granted, to wit, at, etc., aforesaid, ccin- 
 mitted the said several supposed trespasses in the said declaration mentioned :
 
 Ch. 1) TRESPASSES 133 
 
 PATRICK V. COLERICK. 
 
 (Court of Exchequer, 1S3S. 3 Mees. & W. 483, 49 R. R. 696.) 
 
 Trespass for breaking and entering the plaintiff's close with horsey 
 and waggons. Third plea, that the defendant being possessed of ten 
 cart loads of straw, the plaintiff' without the defendant's leave and 
 against his will, took the said straw and wrongfully carried it away and 
 placed it on plaintiff's said close, and that defendant made fresh pur- 
 suit after his said straw, and then quietly and peaceably entered the 
 said close, 
 
 "and with said horses, mares, geldings and waggons in the introductory part 
 of this plea mentioned (the same then being necessary and proper for that pur- 
 pose) in order to retake his said straw and did then and there quietly and; 
 peaceably retake his said straw, and load the same upon the last mentioned 
 waggons, and carry the same away from and out of the said close in the said 
 first count mentioned, in which, etc., as he lawfully might for the cause afore- 
 said, doing no unnecessary damage to the plaintift." 
 
 Demurrer, and joinder in demurrer.'^ ^ 
 
 Parke, B. The passage in Blackstone, as to the right of recaption, 
 applies to the case where the goods are placed on the ground of a 
 third party. All the old authorities say, that where a party places 
 the goods upon his own close, he gives to the owner of them an im- 
 plied license to enter for the purpose of recaption. There are many 
 authorities to that eff'ect in Viner's Abridgement. Thus, in title ''Tres- 
 pass," (l)a, it is said, "If a man takes my goods and carries them 
 into his own land, I may justify my entry into the said land to take 
 my goods again; for they came there by his own act." The rea- 
 son of the judgment of the Court of Common Pleas ^^ is, that it 
 was not shewn who placed the goods there ; and that the mere fact 
 of the defendant's goods being on the plaintift''s land is no justifica- 
 tion of the entry, unless it be shewn that they came there by the 
 plaintiff's act. 
 
 Lord Abinger, C. B., Bolland, B., and Alderson, B., concurred. 
 
 Judgment for the defendant. 
 
 as he lawfully might for the cause aforesaid." 2 Chitty, PI. (2d Ed. 1811) 608. 
 609. 
 
 By the common law procedure act of 1S52, the averment was reduced to this : 
 "That he did what is complained of bv the plaintiff's leave." 2 Chitty, PI. 
 (16th Am. Ed.) p. 658. See Common Law Procedure Act, 15 & 16 Vict. c. 76, 
 Sch. B., 44. 
 
 76 The statement of facts is abridged; the argument is omitted. 
 7 7 The allusion is to Anthony v. Haneys (1832) 8 Biug. 186, 34 R. R. 670, 
 given ante, page 130.
 
 134 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 MOSES V. DUBOIS. 
 
 (Court of Appeals of South Carolina, 1838. Dud. 209.) 
 [This case is reported ante, p. 84, "False Imprisonment."] 
 
 ARROWSMITH v. LE MESURIER. 
 
 (Court of Common Pleas, 1S06. 2 B. & P. N. R. 211, 127 Reprint, 605, 
 
 9 R. R. G42.) 
 
 Trespass for assault and false imprisonment. At the trial it appear- 
 ed that a warrant having been granted by a magistrate, for appre- 
 hending the plaintiff upon a charge of conspiracy to sue out a fraud- 
 ulent commission of bankrupt, a constable went with the warrant to 
 the plaintiff's house, and shewed it to him ; that after conversing 
 some time with the constable, the plaintiff desired to have a copy of 
 the warrant, which the constable permitted him to take ; after which 
 the plaintiff attended the constable to the magistrate, and after being 
 examined upon the subject of the charge, was dismissed, about six 
 hours after the time when the warrant was first shewn to him ; that 
 the constable never touched the plaintiff", and that due notice of the 
 action had been given. Verdict for the defendant. 
 
 A rule having been obtained, calling on defendant to shew cause 
 why this verdict should not be set aside, and a new trial be had, Sellon, 
 Serjt., in support of the rule, contended, that it was not necessary 
 that the plaintiff" should be touched in order to constitute an arrest; 
 that the plaintiff" having gone before the magistrate in obedience to 
 the warrant, must be considered to have been arrested, and conse- 
 quently the plaintiff was entitled to a verdict. 
 
 Sir Jamks Mansfield, Ch. J. I can suppose that an arrest may 
 take place without an actual touch, as if a man be locked in a room: 
 but here the plaintiff went voluntarily before a magistrate. The war- 
 rant was made no other use of than as a summons. The constable 
 brought a v/arrant, but did not arrest the plaintiff. How can a man's 
 walking freely to a magistrate prove him to be arrested? I think that 
 the jury have done justice. 
 
 The other judges concurring, rule discharged.''' 
 
 7 8 Compare Wood v. Lane (1S34) 6 C. & P. 774, at Nisi Prius before Tindal, 
 C. J.: 
 
 The action was against Lane and Cleaton for false imprisonment, with pleas 
 of not guilty and leave and license. It appeared that the plaintiff was at the 
 house of one Saunders, bargaining with him for the sale of some goods, and 
 had just made out an invoice, when the defendant Cleaton came in alone, and 
 asked the plaintiff to pay him the amount he owed him, or some money on ac- 
 count. The plaintiff said ho would not; upon which Cleaton wont just outside 
 the door, and returned immediately, followed by the defendant Lane, and point- 
 ing to the plaintiff, said, "This is the gentleman." The plaintiff tore up the
 
 Ch. 1) TRESPASSES l'»^ 
 
 CADWELL V. FARRELL. 
 
 (Supreme Court of Illinois, 1SG2. 28 111. 438.) 
 
 This is an action entitled, "of a plea of trespass on the case," where- 
 in Julia Farrell is plaintiff, and Frederick A. Cadwell is defendant, 
 commenced and tried in the Superior Court of Chicago. Plea, gen- 
 eral issue. There was a verdict for the plaintiff for $10,000. The 
 defendant moved in arrest of judgment, assigning a misjoinder of 
 causes of action. This motion was denied, and the court rendered 
 judgment on the verdict. The defendant went up on error. '^^ 
 
 Walker, J. It is insisted that there is a misjoinder of counts in 
 this declaration ; that the sixth count is in trespass, whilst the others 
 are in case. This is the only question raised upon this record. If 
 this objection is well taken, the court below erred in refusing to ar- 
 rest the judgment. 
 
 The sixth count avers that appellee had a spot on her left eye, which 
 injured her personal appearance, and that appellant falsely, fraudu- 
 lently and deceitfully represented and pretended to appellee, that by 
 
 invoice and threw it on tlie fire and said. "I suppose I am to go witti you." 
 The answer was, "Yes." The plaintiff and the two defendants went away to- 
 gether, to the plaintiff's house. There was no bailable process against the 
 plaintiff. The defendant Lane was merely a clerk to Cleaton's attorney, but 
 had represented himself as having authority to arrest. 
 
 Talfourd, Serjt, for the defendant. No arrest has been proved. Saunders, 
 who was present, says nothing of the laymg hold of the plaintiff. 
 
 (Tindal, C. J. The question is whether the plaintiff w^ent voluntarily from 
 Mr. Saunders' to his own house, or whether he went in consequence of the act 
 of the defendants. If you put your hand upon a man, or tell him he must go 
 with you, and he goes, supposing you to have the power to enforce him, is not 
 that an arrest? May you not arrest without touching a man?) 
 
 White referred to the case of Arrowsmith v. Le Mesurier (1806) 2 B. & P. 
 N. R. 211. 
 
 (Tindal, C. J. That is a ease which has often been spoken of as going to 
 the very extreme point ; but In that case the jury found that the plaintiff went 
 voluntarily with the officer. And in this case, if you can persuade the jury 
 that the plaintiff went voluntarily, you may succeed.) 
 
 Talfourd, Serjt., then addressed the jury for the defendants. There was no 
 real compulsion. No writ was produced. It was only an endeavour by a 
 manoeuver to make the plaintiff do what he ought, but would not, viz., pay the 
 money which he owed. It was a sudden thought which struck the attorney's 
 clerk, and it is not a case for damages. 
 
 Tindal, C. J., in summing up, told the jury, that, if the plaintiff acted as an 
 unwilling agent at the time and against his own will, when he went to his 
 house from that of Saunders, it was just as much an arrest as if the defend- 
 ants had forced him along. 
 
 The jury found for the plaintiff. Damage, £10. 
 
 Compare Shinglcmeyer v. Wright (IJiOO) 124 Mich. 230. 82 N. W. 887, .^0 L. R. 
 A. 129 (P., charged with stealing D.'s bicycle and checking it from a certain 
 railway station, went with a policeman to the police station and thence with 
 two detectives to the railway station, to see if she could be identified as tlie 
 woman who checked (he wheel) ; Kirk v. Garrett (ISOG) 81 Md. :!s:!, .'^,5 Atl. 1089 
 (I'., a prosecuting witness, consents to remain in custody until he can appear 
 before the grand jury). 
 
 And see 19 Cyc. 323, and cases cited in note 37. 
 
 7 The arguments and a part of the opinion are omitted.
 
 136 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 means of his skill and knowledge as an oculist, he could remove the 
 blemish from her eye, and render its appearance equal to that of her 
 right eye, without any injury to the right eye; and that he would not 
 take out or destroy her left eye, and that she would be well and free 
 from the effects of the treatment in six or seven days ; that appellee, 
 confiding in the truth of the representations thus made by appellant, 
 and believing them to be true, was deceived, and thereby induced, at 
 his special instance and request, to treat her left eye, to make it look 
 as well as the right eye, for the sum of thirty dollars, which she paid 
 to him. But that appellant, well knowing as aforesaid, falsely and 
 maliciously pretended to operate on appellee's left eye, for the pre- 
 tended purpose of causing it to look as well as her right eye, and to 
 remove the spot therefrom, and did cut and lacerate the left eye, by 
 means of which cutting and lacerating and tearing of the left eye, 
 she suffered great pain ; and that in consequence thereof, her right eye 
 became greatly inflamed, and she suffered great pain, and was obliged 
 to lay out and expend large sums of money for medical attendance for 
 her cure, and was unable to perform labor for a long space of time. 
 
 It is urged that this count charges the operation to have been per- 
 formed with malice, and that a direct injury to the person, prompted 
 by malice, constitutes a trespass, for which case cannot be sustained. 
 Direct and immediate force employed by one person against another, 
 without his consent, with malice, constitutes trespass, however slight 
 the injury produced; but it is otherwise wdien the force used is with 
 the consent or at the request of the person against whom employed. 
 If a dentist extract a tooth for a person at his request, whether neces- 
 sary or not, it is no wrong; but if unskillfully performed, he would be- 
 come liable in case for the injury resulting from a want of proper 
 skill. If the same act were performed with malice, and without con- 
 sent, it would be an aggravated trespass, if not a crime. In this case, 
 the operation was performed at the request of appellee. This pre- 
 vents her from recovering in trespass, and had the operation been 
 skillfully performed, she could have no right of recovery in any form 
 of action ; but if the representatioiis which induced the retainer were 
 false and fraudulent, or if the proper skill was not employed, then 
 case is properly the remedy. * * * so 
 
 8 The court saved the case upon the theory that the sixth count was not for 
 the direct and immediate force, but for falsely pretending to perform the op- 
 eration for the purpose of improving the appearance of the eye.
 
 Ch. 1) TRESPASSES 137 
 
 MARKLEY v. WHITMAN. 
 
 (Supreme Court of Michigan, 1893. 95 Mich. 236, 54 N. W. 763, 20 L. R. A. 
 
 55, 35 Am. St. Rep. 558.) 
 
 Action for assault and battery. There was a judgment for the 
 plaintiff, and the defendant brings error. 
 
 Long, J. Plaintiff and defendant were both students at the Buchan- 
 nan high school. On February 7, 1890, wdiile the plaintiff" was on his 
 way home from school, the defendant and others of the scholars were 
 engaged in what is called a "rush" or "horse game." The practice of 
 the game is to find some one in advance, when the others form in a 
 line, each one in the rear pushing the one in advance of him, and so on 
 through the line until the one to be "rushed," who knows nothing of 
 what is coming, is rushed upon by the one in his rear, and pushed or 
 rushed. On the day in question the plaintiff', while going towards 
 home on the sidewalk, was to be rushed. The defendant was in his 
 immediate rear, and engaged in the game. When pushed, he rushed 
 upon the plaintiff, striking him with his hands between the shoulders 
 with such violence that the plaintiff was thrown nearly to the ground. 
 Immediately thereafter he lost his voice above a whisper, and has never 
 recovered its use. His neck was nearly fractured, and for several 
 months he was compelled to take medical treatment in Chicago. It 
 is claimed that he suffered great pain, and has not fully recovered. 
 This action was brought to recover for the injuries thus occasioned. 
 On the trial in the court below, the plaintiff had verdict and judgment 
 for $2,500. Defendant brings error. 
 
 The errors relied upon relate principally to the charge of the court. 
 It was claimed on the trial in the court below (1) that the push 
 against the plaintiff was not an assault, and therefore not actionable ; 
 (2) that it was a pure accident ; (3) that it was not a dangerous game, 
 and the results which followed from the push could not have been 
 anticipated; (4) that the defendant only put himself in a position 
 ready to be pushed if the spirit of frolic should be entered into by 
 those behind him, and his rush upon the plaintiff was neither invited 
 nor approved ; (5) that there was no unlawful intent to injure the 
 plaintiff. It is insisted that the court below, in its charge, entirely 
 ignored the claim of the defendant made on the trial; and also that 
 the plaintiff was one of the school fellows, and stood in a diff'erent 
 position to the defendant than would a stranger. The court instruct- 
 ed the jury substantially that, if the plaintiff was participating in the 
 play, or in any way contributed to the injury, he could not recover; 
 that, to entitle the plaintiff to recover, he must show by a preponder- 
 ance of evidence that the game was a dangerous one, and that the 
 injury was occasioned by the push given by the defendant; and that 
 the defendant willfully pushed the plaintiff, or was voluntarily en- 
 gaged in the game, which must be found to be dangerous, and one
 
 138 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 reasonably calculated to be dangerous to innocent persons lawfully 
 
 traveling along the sidewalk upon which the play was conducted. 
 
 The court below further instructed the jury as follows : 
 
 ''If the game in question was a dangerous one to indulge in on tlie street and 
 at the time in question, and if the defendant was voluntarily engaged in such 
 play at the time of the accident, and if the plaintiff was not participating in 
 such sport, and was not guilty of conduct which in any way contriltuted to the 
 injury, but, on the contrary, was lawfully traveling on the sidewalk, and in the 
 exercise of reasonable care, and if the defendant, while so playing, pushed the 
 plaintiff and injured him, he is liable; and in such case it is no excuse for him 
 to say that he himself was pushed against the plaintiff by some other boy." 
 
 This charge fully protected the rights of the defendant, and was 
 as favorable to him as the facts of the case warranted. In fact, on 
 the trial it was little in dispute that the injury occurred exactly as the 
 plaintiff claimed. He was peaceably walking along the street, and 
 had no intimation that he was to be "rushed." He was not participat- 
 ing in the game, and, if his testimony is true, never had taken part 
 in it, and on that occasion was not anticipating that he was the victim 
 selected to be rttshed. It was an assault upon him, and the court 
 correctly stated the rules of law applicable to the case ; at least the 
 defendant had no reason to complain. It is evident that the defend- 
 ant was one of those engaged in the game, which, upon a bare state- 
 ment of the manner in which it is to be played, must be regarded as 
 dangerous. He voltmtarily engaged in it, and his conduct occasioned 
 the injury. It was unlawful to "rush" the plaintiff under the circum- 
 stances shown, and the defendant must be held responsible for the 
 consequences which followed. It may be, and probably is, true that 
 those taking part in it did not anticipate the injurious effects upon 
 the plaintiff; but that does not lessen the plaintiff's pain and suffering, 
 or make the act less unlawful. The plaintiff, while passing along the 
 street, and not engaged in the sport, had the same right to be protected 
 from such an assault as a stranger would have had, and the assault 
 upon him was as unlawful as it would have been upon a stranger. 
 
 We find no error in the case, and the judgment must be affirmed, 
 with costs. 
 
 MOHR v. WILLIAMS. 
 
 (Supreme Court of Minnesota, 1905. 95 Minn. 2G1, 104 N. W. 12, 1 I,. R. A. 
 [N. S.J 4.39, 111 Am. St. Rep. 402, 5 Ann. Cas. 303.) 
 
 Brown, J. W^e come then to a consideration of the questions pre- 
 sented by defendant's appeal from the order denying his motion for 
 judgment notwithstanding the verdict. 
 
 It is contended that final judgment should be ordered in his favor 
 for the following reasons: (a) That it api^ears from the evidence 
 received on the trial that plaintiff consented to the operation on her 
 left ear. (b) If the court shall find that no such consent was given,
 
 Ch. 1) TRESPASSES 139 
 
 that, under the circumstances disclosed by the record, no consent was 
 necessary. * * * 
 
 We shall consider first the question whether, under the circumstanc- 
 es shown in the record, the consent of plaintiff to the operation was 
 necessary. If, under the particular facts of this case, such consent 
 was unnecessary, no recovery can be had, for the evidence fairly 
 shows that the operation complained of was skillfully performed and 
 of a generally beneficial nature. But if the consent of plaintiff was 
 necessary, then the further questions presented become important. 
 This particular question is new in this state. At least, no case has 
 been called to our attention wherein it has been discussed or decided, 
 and very few cases are cited from other courts. We have given it very 
 deliberate consideration, and are unable to concur with counsel for 
 defendant in their contention that the consent of plaintiff was unneces- 
 sary. 
 
 The evidence tends to show that, upon the first examination of plain- 
 tiff, defendant pronounced the left ear in good condition, and that, 
 at the time plaintiff repaired to the hospital to submit to the operation 
 on her right ear, she was under the impression that no difficulty ex- 
 isted as to the left. In fact, she testified that she had not previously 
 experienced any trouble with that organ. It cannot be doubted that 
 ordinarily the patient must be consulted, and his consent given, be- 
 fore a physician may operate upon him. * * * 
 
 Kinkead on Torts, vol. 1, § 375, states the general rule on this sub- 
 ject as follows: 
 
 "The patient must be the final arbiter as to whetlier he will take his chances 
 with the operation, or take his chances of living without it. Such is the natu- 
 ral right of the indivirlual, which the law recognizes as a legal one. Consent, 
 therefore, of an individual, must be either expressly or impliedly given before 
 a surgeon may have the right to operate." 
 
 There is logic in the principle thus stated, for, in all other trades, 
 professions, or occupations, contracts are entered into by the mutual 
 agreement of the interested parties, and are required to be performed 
 in accordance with their letter and spirit. No reason occurs to us 
 why the same rule should not apply between physician and patient. 
 If the physician advises his patient to submit to a particular operation, 
 and the patient weighs the dangers and risks incident to its perform- 
 ance, and finally consents, he thereby, in effect, enters into a contract 
 authorizing his physician to operate to the extent of the consent given, 
 but no further. 
 
 It is not, however, contended by defendant that under ordinary cir- 
 cumstances consent is unnecessary, but that, under the particular cir- 
 cumstances of this case, consent was implied ; that it was an emergency 
 case, such as to authorize the operation without express consent or 
 permission. The medical profession has made signal progress in solv- 
 ing the problems of health and disease, and they may justly point 
 with pride to the advancements made in supplementing nature and cor-
 
 140 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 recting deformities, and relieving pain and suffering. The physician 
 impliedly contracts that he possesses, and will exercise in the treatment 
 of patients, skill and learning, and that he will exercise reasonable care 
 and exert his best judgment to bring about favorable results.. The 
 methods of treatment are committed almost exclusively to his judg- 
 ment, but we are aware of no rule or principle of law which would 
 extend to him free license respecting surgical operations. Reasonable 
 latitude must, however, be allowed the physician in a particular case ; 
 and we would not lay down any rule which would unreasonably inter- 
 fere with the exercise of his discretion, or prevent him from taking 
 such measures as his judgment dictated for the welfare of the patient 
 in a case of emergency. If a person should be injured to the extent 
 of rendering him unconscious, and his injuries were of such a nature 
 as to require prompt surgical attention, a physician called to attend 
 him w^ould be justified in applying such medical or surgical treatment 
 as might reasonably be necessary for the preservation of his life or 
 limb, and consent on the part of the injured person w^ould be implied. 
 And again, if, in the course of an operation to which the patient con- 
 sented, the physician should discover conditions not anticipated before 
 the operation w^as commenced, and which, if not removed, would 
 endanger the life or health of the patient, he would, though no express 
 consent was obtained or given, be justified in extending the opera- 
 tion to remove and overcome them. 
 
 But such is not the case at bar. The diseased condition of plaintiff's 
 left ear was not discovered in the course of an operation on the right, 
 which was authorized, but upon an independent examination of that 
 organ, made after the authorized operation was found unnecessary. 
 Nor is the evidence such as to justify the court in holding, as a matter 
 of law, that it was such an affection as would result immediately in 
 the serious injury of plaintiff", or such an emergency as to justify pro- 
 ceeding w'ithout her consent. She had experienced no particular 
 difficulty with that ear, and the questions as to when its diseased 
 condition would become alarming or fatal, and whether there was an 
 immediate necessity for an operation, were, under the evidence, ques- 
 tions of fact for the jury. 
 
 The contention of defendant that the ope'ration was consented to 
 by plaintiff is not sustained by the evidence. At least, the evidence 
 was such as to take the question to the jury. This contention is based 
 upon the fact that she was represented on the occasion in question 
 by her family physician ; that the condition of her left ear was made 
 known to him, and the propriety of an operation thereon suggested, 
 to which he made no objection. It is urged that by his conduct he 
 assented to it, and that plaintiff was bound thereby. It is not claimed 
 that he gave his express consent. It is not disputed but that the fam- 
 ily physician of plaintiff was present on the occasion of the operation, 
 and at her request. But the purpose of his presence was not that he
 
 Ch. 1) TRESPASSES 141 
 
 might participate in the operation, nor does it appear that he was 
 authorized to consent to any change in the one originally proposed to 
 be made. Plaintiff was naturally nervous and fearful of the conse- 
 quences of being placed under the influence of ancESthetics, and the 
 presence of her family physician was requested under the impression 
 that it would allay and calm her fears. The evidence made the ques- 
 tion one of fact for the jury to determine. * * * 
 Order affirmed. ^^ 
 
 81 Part of the opinion is omitted. See ante, p. 78. 
 
 Compare Bennan v. Parsonuet (1912) S3 N. J. Law, 20. 8.3 Atl. 948: P. ap- 
 plied to I)., a surgeon, to operate upon a rupture in P.'s left groin. After P. 
 had been placed under the anaesthetic, D. discovered in P.'s right groin a rup- 
 ture of more serious menace, and likely to cause P.'s death if strangulation oc- 
 curred. This danger was not to be apprehended from the other rupture, which 
 had been operated upon before, although without entire success. D. operated 
 upon the more serious rupture without waiting for P. to regain consciousness. 
 In an action by P. for assault and battery, the jury, under the charge of the 
 court, found that D. had performed an operation upon P. without his consent, 
 and rendered a verdict of $1,000. The Supreme Court set aside the verdict, 
 upon the theory of an implied assent. "The conclusion to which we are led," 
 said Garrison, J., deliveriug the opinion, "is that when a person has selected 
 a surgeon to operate upon him, and has appointed no other person to represent 
 him during the period of unconsciousness that constitutes a part of such oper- 
 ation, the law will by implication constitute such surgeon the representative 
 pro hac vice of his patient, and will, within the scope to which such implication 
 applies, cast upon him the responsibility of so acting in the interest of his 
 patient that the latter shall receive the full benefit of that professional judg- 
 ment and skill to which he is legally entitled. Such implication affords no li- 
 cense to the surgeon to operate upon a patient against his will or by subter- 
 fuge, or to perform upon him any operation of a sort different from that to 
 which he had consented or that involved risks and results of a kind not con- 
 templated. As to such matters, the rule in question submits nothing to the 
 judgment of the surgeon, who as the implied representative of his patient can 
 under such implication truly represent him only in so far as he gives to him 
 the benefit of his professional wisdom within the general lines of the curative 
 treatment agreed upon between them, unless, of course, a wider discretion has 
 been accorded to him. Within such general lines, however, much is necessarily 
 left to the good judgment of the operating surgeon, just how much will depend 
 upon the circumstances of the individual case. If the surgeon transcends his 
 implied authority as thus defined, the question of his skill and wisdom is ir- 
 relevant, since no amount of professional skill can justify the substitution of 
 the will of the surgeon for that of his patient." 
 
 Compare, further, Rishworth v. Moss (1913, Tex. Civ. App.) l.o9 S. W. 122 : 
 A child 11 years of age was taken by her adult sister to a surgeon, who, with- 
 out the knowledge of the child's parents, but at the instance and request of the 
 adult sister, placed the child under an anaesthetic with a view to an operation 
 for the removal of adenoids. The child died in the operation. The life of the 
 child was not dependent upon an operation, nor was there any emergency. The 
 parents could have been communicated with before the operation. Held, that 
 the child had no authority to consent to the operation, and that, in the absence 
 of evidence of delegated authority in the sister, the surgeon was liable although 
 usiug due skill. 
 
 See, also, I'ratt v. Davis (1906) 224 111. 300, 79 N. E. 502, 7 L. R. A. (N. S.) 
 609, 8 Ann. Cas. 197: H. placed his wife. P., in a sanitarium for treatment. 
 The physician in charge, D., told H. that a proposed operation would be a 
 trifling one, but said al.so that two operations might be necessary. Thereafter 
 D. performed one operation, and P. returned home. There being no improve- 
 ment, n. brought P. back to the sanitarium, and D. the next day performed a 
 second o])eration, but without asking the consent of either II. or P. There 
 was no lack of skill in performing the second operation. Held, that D. wa-S
 
 142 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 STOUT V. WREN. 
 
 (Supreme Court of North Carolina, 1821. 8 N. C. 420, 9 Am. Dec. 653.) 
 
 Action for damages for a battery. The facts were that the plain- 
 tiff and defendant quarreled and agreed to fight, and that after they 
 had gone out for that purpose the defendant asked the plaintiff if 
 he would "clear him of the law," and the latter said, "Yes," where- 
 upon the defendant beat him, he making no resistance. There was 
 some evidence, contradicted however by other witnesses, that the 
 plaintiff was so drunk as not to know what he was doing. The court 
 instructed the jury that if the plaintiff was so intoxicated as not to 
 know what he was about, he should have a verdict, otherwise not, 
 for his assent to the injury barred his right of recovery. There was 
 a verdict for the defendant and judgment thereon, a new trial having 
 been refused, and the plaintiff appealed to this court. 
 
 Taylor, C. J. It is equally reasonable and correct, that a man 
 shall not recover a recompense for an injury received by his own 
 consent, but the rule must necessarily be received with this qualifica- 
 tion, that the act from whence the injury proceeded be lawful. Hence 
 in those manly sports and exercises which are thought to qualify men 
 for the use of arms, and to give them strength and activity, if two 
 played by consent at cudgels, and one hurt the other, no action would 
 lie. But where in an action for assault and battery, the defendant 
 offered to give in evidence that the plaintiff and he boxed by consent, 
 from whence the injury proceeded, it was held to be no bar to the 
 action, for as the act of boxing is unlawful, the consent of the par- 
 ties to fight could not excuse the injury : Boulter v. Clark, Bull. N. 
 P. 16. The consequence of this distinction is apparent also in the 
 law of homicide; for if death ensue from innocent and allowable 
 recreations, the case will fall within the rule of excusable homicide, 
 but if the sport be unlawful and endanger the peace, and death ensue, 
 the party killing is guilty of manslaughter: Fost. 259. It is laid down 
 in Matthew v. Ollerton, Comb. 218,*^- that if one license another to 
 beat him, such license is void, because it is against the peace, and the 
 plaintiff recovered a verdict and judgment. 
 
 liable. Scott, C. J., delivering the opinion, reniarks : "Where the narr. sliows 
 the act to have been a trespass to the person, or avers it to have been without 
 the consent of the patient, it wonkl seem to le unnecessary to go farther and 
 negative the fact that some otlier person lawfully authorized to act for the 
 patient consented. The question of the consent of such other person, if in the 
 case, might well be left to be presented by a plea in bar." 
 
 8 2 This case, Matthew v. Ollerton (1693), was in debt upon an award; the 
 remark quoted was a dictum. It is apparently, however, the beginning of the 
 doctrine upon this point. See Bell v. llanslev (is.").!) 4S N. C. 131; Adams v. 
 Waggoner (1870) 3:', Ind. 531, 5 Am. Kep. 230; Shay v. Thompson (1SS4) 59 Wis. 
 540, ISN. W. 473, 48 Am. Rep. 538; Willey v. Carpenter (1892) 04 Vt. 212, 23 
 Atl. 030. 35 Jj. R. A. S.T,: Lund v. Tvler (1901) 115 Iowa, 230, 88 N. W. 333;. 
 Morris v. Miller (1909) 83 Nob. 218, 119 N. W. 458, 20 L. R. A. (N. S.) 907, 131 
 Am. St. liep. 030, 17 Ann. Cas. 1047.
 
 Ch. 1) TRESPASSES 143 
 
 The case was very fairly put to the jury, as to the evidence of the 
 plaintiff's intoxication, but I think the law was misconceived in stat- 
 ing to them, that if the plaintiff was sober and assented, he was not 
 entitled to recover. There must be a new trial. *^ 
 
 EVANS V. WAITE. 
 
 (Supreme Court of Wisconsin, 1892. 83 Wis. 286, 53 N. W. 445.) 
 
 This is an action to recover damages for personal injuries alleged 
 
 to have been inflicted by defendant upon plaintiff. It is charged in 
 
 the complaint that: 
 
 "On July 4, 1891, while the plaintiff was lawfully riding on horseback on the 
 public highway, in company with defendant, the defendant, being then and 
 there armed with a revolver loaded Avith powder and leaden ball, negligently 
 and carelessly discharged the said revolver so that the ball therefrom struck 
 the plaintiff in the hip, and passed on through the flesh into his thigh, where 
 it became lodged and imbedded so that it was impracticable to remove the 
 same; and that the said ball so fired from the revolver in the hands of the 
 defendant caused a deep, painful, and dangerous wound.'" 
 
 It is further alleged that the defendant is a minor of about the age 
 of eighteen years. 
 
 The defendant answered by his guardian : (1) A general denial ; 
 and (2) that the plaintiff was guilty of contributory negligence, in that 
 he enticed the defendant to go with him for the purpose of shooting, 
 and that while the parties were shooting the plaintiff was accidentally 
 injured, and not through any negligence of the defendant. 
 
 83 lu Morris v. Miller (1909) 83 Neb. 218, 119 N. W. 460, 20 L. E. A. (N. S.) 
 907, 131 Am. St. Rep. 636, 17 Ann. Cas. 1047, the following instruction had been 
 given: "You are instructed that if you believe from the evidence that plain- 
 tiff and defendant voluntarily and by agreement entered into a fight, still I 
 charge you that such agreement, if made, was unlawful, for the reason that 
 .such agreement, if made, would be in violation of the laws of the state and 
 void, and such agreement, if made, would not be any defense to this action." 
 Referring to it, Reese, C. J., remarked : "This instruction was given as ap- 
 I)licaljle to the contention that the fight or combat was entered into voluntarily 
 and by mutual agreement, and that the unsuccessful party to the strife could 
 not transfer his cause from the street to the courts and recover damages for 
 whatever injury he might sustain by reason of the prowess or activity of his 
 adversary. At the time of the argument of the case at the bar of this coiut, 
 the writer was of the opinion that the giving of the instruction might have 
 been erroneous, but more mature reflection and an examination of the authori- 
 ties have led to a different conclusion. It is true that an instruction of this 
 kind would be condemned by some reimtable authorities, among which are Gal- 
 braith v. Fleming (18S6) 60 Mich. 403, 27 N. W. 581, and Smith v. Simon (1888) 
 69 Mich. 481, 37 N. W. 548; but it is quite clear that the great weight of au- 
 thority is the other way, and that the recognized rule is that where two parties 
 fight voluntarily, either party may recover from the other the actual damages 
 suffered, and the consent of the plaintiff to engage in the combat will not bar 
 his suit to recover.'' 
 
 Compare Barliolt v. Wright (1887) 45 Ohio St. 177. 12 N. E. 185, 4 Am. St. 
 Rep. 535, where, under a general denial, the agreement to fight was shown in 
 mitigation of damages, but was no bar to the action.
 
 144 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 On the trial it was proved that the defendant was a minor; that 
 on the occasion mentioned in the pleadings he was armed with a re- 
 volver ; and that the plaintiff was wounded, as charged in the com- 
 plaint, by a bullet discharged from the revolver by accident, when in 
 the hands of the defendant. The circuit judge held that, because the 
 defendant was a minor and was armed with a revolver in violation 
 of chapter 329, Laws of 1883 (S. & B. Ann. St. § 4397b), he was 
 liable to the plaintiff for the injury, without regard to the question 
 of negligence. Thereupon the jury were instructed to find for the 
 plaintiff and to assess damages for the injury. The court confined 
 the recovery to compensatory damages. The jury assessed plaintiff's 
 damages at $375, nearly $150 of which was for actual necessary ex- 
 penses incurred by the plaintiff, and for loss of time by reason of 
 the injury. A motion for a new trial was denied, and judgment en- 
 tered for the plaintiff pursuant to the verdict. The defendant ap- 
 peals from the judgment. 
 
 Lyon, C. J. In Shay v. Thompson, 59 Wis. 540, IS N. W. 473, 
 48 Am. Rep. 538, it was held that if two persons, by mutual consent, 
 in anger fight together, each is liable to the other for actual damages. 
 The fighting being unlawful, the consent of either party is no bar to 
 the action. The authorities upon which the decision is based are 
 cited in the opinion. The rule of that case applies here. It was un- 
 lawful for the defendant to be armed with a revolver when the plain- 
 tiff was injured, and hence he is liable for any injur}^ inflicted by him 
 with such weapon. It is immaterial that the plaintiff was consenting 
 to the defendant being so armed and to his use of the revolver. Such 
 is the rule of Shay v. Thompson, 59 Wis. 540, 18 N. W. 473, 48 Am. 
 Rep. 538. The only effect of such consent was to confine the re- 
 covery to compensatory damages, and it was so restricted. 
 
 The question of negligence is also immaterial. True, the complaint 
 charges that the defendant was negligent, but it also contains a suffi- 
 cient statement of a cause of action based upon the fact that the 
 defendant was unlawfully armed with the revolver with which he 
 wounded the plaintiff. Were there any defect in the complaint in that 
 view of the case, it was amendable, for the whole transaction was 
 fully proved on the trial without objection. This brings the case 
 within the rule which allows the pleading to be amended to correspond 
 with the proofs, or permits a variance between the pleadings and 
 proofs to be disregarded. We fail to find any error disclosed in the 
 record. 
 
 By the; Court. The judgment of the circuit court is affirmed."** 
 
 84 Accord: Horton v. Wylie (1902) 115 Wis. 505, 92 N. W. 245, 95 Am. St. 
 Rep. 953: P. and D., two boys about 13 years of age, were plajing "cowboy" 
 in a pasture. D. had a loaded revolver. Both boys had been alternately point- 
 ing it at each other. D. pointed it at P., at close range, and at full cock. P. 
 struck up the revolver with his hand, and it went off, wounding P. The pos-
 
 Ch. 1) TRESPASSES 145 
 
 WELSUND V. SCHUELLER 
 
 (Supreme Court of Minnesota, 1906. 98 Minn. -175, 108 N. W. 4S3.) 
 
 This was an action to recover damages for seduction. The plain- 
 tiff was an uneducated and inexperienced girl of 16, without relatives 
 in this country. She could not speak English, and was dependent upon 
 her own labor for support. While employed as a servant in the fam- 
 ily of defendant's father, she was seduced by defendant, who ob- 
 tained her consent by assurances of love and caressing, and by in- 
 ducing her to believe she would lose her place of employment if she 
 did not submit. The relation continued about two months, when the 
 defendant absconded, and did not return to the state until five years 
 after her child was born. A demurrer was sustained by the trial 
 court, upon the ground that the complaint did not state facts sufficient 
 to constitute a cause of action. 
 
 Lewis, J. (after stating the facts). No right of action existed at 
 common law in favor of a woman against her seducer. The right to 
 recover damages for seduction is at common law limited to the father 
 or any one standing in loco parentis. Although damages were not 
 -limited to the loss of services, yet the action was based upon the re- 
 lation of master and servant. Some states, including our own, have 
 modified the common law permitting the action to be maintained by 
 the parent or guardian, even though the daughter or ward is not liv- 
 ing with or in the service of the plaintiff", and although there is no 
 loss of service. And in a few states the right of action is conferred 
 upon the female seduced, notably Indiana, Iowa, and Oregon. Even 
 in those states the courts have sharply drawn the distinction between 
 real seduction and acquiescence, holding that no cause of action ex- 
 isted if it was shown to be a voluntary act. Consent must be pro- 
 cured by some trick or artifice other than mere solicitation. Brown 
 V. Kingsley, 38 Iowa, 220. The statute only applies where the defend- 
 ant has been mainly instrumental in occasioning the wrong. Breon 
 V. Henkle, 14 Or. 494, 13 Pac. 289. However, in the absence of any 
 modification of the common law, the action will lie where the defend- 
 ant fraudulently acquired possession of his victim by taking her into 
 his family as a ward. Smith v. Richards, 29 Conn. 232. 
 
 The people of this state have seen fit to acquiesce in the common 
 law, except as stated. It would be debatable whether the facts alleged 
 in the complaint now before us are sufficient, even with thd statutory 
 modification above noted, and certainly they do not constitute such ex- 
 session of a revolver by a minor and the pointing of it were both forbidden 
 by statute. 
 
 Compare Gilmore v. Fuller (1902) 198 111. 130, 65 N. E. 84, 60 L. R. A. 2S6 : 
 P., a member of a charivari party serenading a bridal couple with firearms, 
 was accidentally shot by D., another member of the party. Held, that there 
 could be no recovery. 
 
 Hepb. Torts — 10
 
 liG TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 ceptional circumstances as to bring tlie case within Smith v. Richards. 
 As the law is, no cause of action is stated, and whether it is wise to 
 change it calls for no opinion on our part. That is a question con- 
 cerning which there is a diversity of opinion and can only be deter- 
 mined by the legislative power. 
 Order affirmed.*^ 
 
 (b) Assumption of Risk in Trespass se ^ 
 
 MIDDLETON v. BRIDELYNGTON. 
 
 (De Banco Roll, Hilary 12 Rich. II. [13SS] rot 124, York.) 
 
 William the son of Richard of Middleton, of Beverly, draper, was 
 attached to reply to Gregory of Bridelyngton, of a plea that with force 
 and arms he assaulted the said Gregory at Beverly, and beat, and 
 wounded and ill treated him, to the great damage of the said Gregory, 
 and contra pacem. And further that the said Gregory complains by 
 
 85 Accord, on the common-law rule : Oberlin v. Upson (1911) 84 Ohio St. Ill, 
 95 X. E. 511, Ann. Cas. 1912B, 1061 note; Robinson v. Musser (1SS3) 78 Mo. 
 153 (In a civil action for an alleged rape, i;he plaintiff's testimony showed con- 
 sent. A judgment for plaintiff was reversed, the Supreme Court remarking, 
 "We feel constrained to say, 'Volenti non fit injuria' "). 
 
 On the statutory change, permitting the woman to sue her seducer, see Brad- 
 shaw V. Jones (1899) 103 Tenn. 331. 52 S. W. 1072, with an elaborate note in 76 
 Am. St. Rep. 655, 659; Wilson v. Mangold (1912) 154 Iowa, 352, 134 N. W. 1072 
 ("If without being deceived, and without any false promises, deceit, or artifice, 
 the plaintiff voluntarily submitted, the defendant would not be liable"). 
 
 See, also, for a summary of the varied character of this statutory modifica- 
 tion of the common-law principle. 35 Cyc. 1291, 1295, and cases cited in note 3; 
 and the cases under Dec. Dig., Key-Xo., "Seduction." § 11. 
 
 8 6 The doctrine of assumption of risk appears more often in negligence 
 cases, and especially in cases which involve the relation of master and servant. 
 It is sometimes treated as resting on an implied contract. See Dowd v. Xew 
 York, etc., Ry. (1902) 170 X. Y. 459, 471, 63 X. B. 541, and cases there cited. 
 One of its earliest appearances in prominent form is in Ilott v. Wilkes (1820) 
 3 B. & Aid. 304, 22 R. R. 400. The facts here were as follows: The defend- 
 ant was the owner of Chrishall Wood, consisting of fifty or sixty acres; and 
 by his order, nine or ten spring-guns were set there. Several boards were 
 affixed, containing notice to the public that such instruments were so placed. 
 There formerly had been a path on the outside of the wood, but it had not 
 been used for some years. The plaintiff, on the occasion in question, ac- 
 companied by another person, went out in the day time for the purpose of 
 gathering nuts, and proposed to his companion to enter Chrishall Wood. The 
 latter, however, refused, unless the plaintiff would go first ; and he then told 
 plaintiff' that spring-guns were set there. They both, however, entered the 
 wood, and the plaintiff" received the injury which was the subject of the ac- 
 tion, in consequence of treading on the wire communicating with the spring- 
 gun. Upon these facts, the learned judge considering that this involved the 
 same question which was under the consideration of the Common Pleas, in 
 Deane v. Clayton (1816) 2 Marsh. 577, directed the jury to find a verdict for 
 the plaintiff, and reserved to the defendant liberty to move to enter a nonsuit 
 The jury assessed the damages at £50. ; and found, that at the time of the 
 injury, there was not iiny footpath near the place in question; that the plain-
 
 Ch. 1) TRESPASSES 147 
 
 John of Wilton, his attorney, that the said W'ilHam, on the Monday 
 next after the feast of the Assumption of the Virgin ]\Iary, 8 Richard 
 II., vi et armis, to wit, with swords, bows and arrows, assaulted, 
 wounded etc. the said Gregory at Beverly, contra pacem etc., and he 
 claimed damages of twenty pounds. 
 
 The defendant by Thomas of Lynton, his attorney, defended the 
 force and arms and pleaded not guilty, and placed himself upon the 
 country, upon w'hich issue was joined. 
 
 And as to the beating and wounding of the said Gregory, he said 
 that he and the said Gregory, being between the ages of nine and ten 
 years, were playing together at Beverly at a place called the Feegang, 
 and there of their common accord sported and played together, and 
 the harm suffered by the said Gregory was done in play, uninten- 
 tionally and without malice on the part of the said William. 
 
 In his replication Gregory asserts that the injury w^as done intention- 
 ally and prays that this may be inquired of by the country, and Wil- 
 liam joins issue. 
 
 A venire facias is awarded, and the defendant finds bail.* 
 
 tiff was not in the exercise of any right of path, but was gathering nuts; 
 and that he had Ivucwledge and notice that spring-guns were placed in the 
 wood. On the question whether a nonsuit should be entered, all the judges 
 concurred that the action could not be maintained. Said Bayley, J.: "This is 
 a case in which the plaintiff had notice that there were spring-guns in the 
 wood. The declaration states that the plaintiff had no notice of the places or 
 of the direction in wliich the guns themselves were placed, or where the wires 
 communicating with the guns were placed; but it is not necessary to give 
 notice to the public that guns are placed in such particular spots in such 
 particular fields ; for that would deprive the property of the intended pro- 
 tection. It is sufficient for a party generally to say, 'There are spring-guns 
 in this wood' ; and if another then takes upon himself to go into the wood, 
 knowing that he is in the hazard of meeting with the injuiy which the guns 
 are calculated to produce, it seems to me that he does it at his own peril, and 
 must take the consequences of his own act. The maxim of law, 'Volenti non 
 tit injuria,' applies ; for he voluntarily exposes himself to the mischief which 
 has happened. He is told that if he goes into the wood he will run a par- 
 ticular risk, for that in those grounds there are spring-guns. Notwithstanding 
 that caution, he says, 'I will go into the wood, and I will run the risk of all 
 consequences.' " 
 
 Compare the remark of Blackburn, J., delivering the judgment of the Ex- 
 chequer Chamber in Fletcher v. Rylauds (1866) L. R. 1 Ex. 265, 286: "Traf- 
 fic on the highways, whether by land or sea, cannot be conducted without ex- 
 posing those whose persons or property are near it to some inevitable risli ; 
 and that being so, those who go on the highway, or have their property ad- 
 jacent to it, may well be held to do so subject to their taking upon themselves 
 the risk of injurj- from that inevitable danger ; and persons who by the 
 license of the owner pass near to warehouses where goods are being raised 
 or lowered, certainly do so subject to the inevitable risk of accident. In 
 neither case, therefore, can they recover without proof of want of care or 
 .skill occasioning the accident; and it is believed that all the cases in which 
 inevitable accident has been held an excuse for what prima facie was a 
 trespass, can be explained on the same principle, viz., that the circumstances 
 were such as to show that the plaintiff had taken that risk upon himself." 
 
 * Note from the Record. See Deiser's edition of Y. B. 12 Rich. II., for the 
 Ames Foundation, pp. 125, 126. 
 
 Compare Briese v. Maechtle (1911) 146 Wis. SO, 1.30 N. W. SO.*?, .35 L, R. 
 A. (X. S.) 574, Ann. Cas. 1912C, 176. P., a boy ten years old. and D., a boy
 
 148 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 COLE V. TURNER. 
 
 (At Nisi Prins, 1704. Holt, K. B. 108, 90 Reprint, 958.) 
 
 At Nisi Pruis, upon evidence in trespass for assault and battery, 
 Holt. C. J., declared, 1. That the least touching of another in anger 
 is a battery. ^^ 2. If two or more meet in a narrow passage, and with- 
 out any violence or design of harm, the one touches the other gently, 
 it is no battery.*^ 3. If any of them use violence against the other, 
 to force his way in a rude inordinate manner, it is a battery ; or any 
 struggle about the passage, to that degree as may do hurt, is a battery. 
 Vid. Bro. Tresp. 236. 7 E. 4, 26. 22 Ass. 60. 3 H. 4, 9. 
 
 Note: It was in action of battery by husband and wife, for a bat- 
 tery upon the husband and wife, ad dampnum ipsorum ; and though 
 the plaintiff had a verdict, yet the Chief Justice said he should never 
 have judgment. And judgment w^as after arrested above upon that 
 exception. 
 
 RUTER V. FOY. 
 (Supreme Court of Iowa, 1S77. 46 Iowa, 1.32.) 
 
 The plaintiff avers in her petition that the defendant assaulted and 
 beat her with a pitchfork, whereby she sustained great injuries. Tri- 
 al by jury. Verdict for plaintiff" for $200. Defendant appeals. 
 
 Adams, J. * * * I. The defendant asked an instruction which 
 is in the following Vv'ords : "If you find from the evidence that plain- 
 tiff was injured, or contributed to her injury, by her own act or neg- 
 ligence, defendant would not be liable for assault and battery upon 
 her, and plaintiff' cannot recover." The court refused to give the in- 
 struction and the refusal is assigned as error. 
 
 of about the same age, attended the same school and at recess were both play- 
 ins in the school yard. As P. was kneeling to shoot a marble, D. cam(> running 
 around the school house, being chased by another boy, and accidentally ran 
 into P., knocking him over and so injuring his eye that P.'s sight was de- 
 stroyed. A judgment for the defendant was affirmed. 
 
 87 Accord: Kerriford's Case (1G30) Clayton 22, pi. .38: "Kerifford, an at- 
 torny, was plaintifte in battery, and the case was thus: He was walking in 
 the market (as attornies do too much), and the defendant and he had some 
 angry words there, upon which the defoncbuit did presse to go by him. and 
 in going, by reason of the throng of people tliere, he justled the plaintiffe. and 
 for this he brought this action, in which if an assault onely be proved, it is 
 sufficient, and holden it was no assault, for the touching him or justle was 
 to another end, namely, to get by him in the throng and not to beat him, etc." 
 
 88 Compare Reynolds v. Pierson (1902) 29 Ind. App. 27.3. 64 N. E. 484: P., 
 a man 6S years old, was standing in a public place talking to S., when D., a 
 man of .35 years, weighhig 225 pounds, came walking briskly towards S. As 
 he passed, I), seized and jerked the arm of !S. The force of D.'s act was such 
 that P., whose arm S. was then holding, was thrown to the ground. D.'s 
 act was friendly and a customary form of greeting between him and S. D. 
 passed on, without knowledge that P. was thrown down or hurt.
 
 Ch. 1) TRESPASSES 149 
 
 The doctrine of contributory negligence has no appHcation in an 
 action for assault and battery. There can be no contributory negli- 
 gence except where the defendant has been guilty of negligence to 
 which the plaintiff's negligence could contribute. An assault and 
 battery is not negligence. The former is intentional ; the latter is un- 
 intentional.^^ 
 
 SCANLON V. WEDGER. 
 
 (Supreme Judicial Court of Massacluisetts, 1892. 156 Mass. 462, 31 N. E. 642, 
 
 IG L. R. A. 393.) 
 
 Tort, for personal injuries. Verdict for the defendant, and Ham- 
 mond, J., reported the case for the determination of this court. 
 
 Allen, J. The several plaintiffs were injured by the explosion of 
 a bomb or shell during a display of fireworks in Broadway Square, 
 which was a public highway in Chelsea. This display was made by 
 the defendant Wedger, who acted under a license from the mayor 
 and aldermen of Chelsea for a display of fireworks in Broadway 
 Square on that evening, under Pub. St. 1882, c. 102, § 55. A verdict 
 was returned for the defendant, and the jury made a* special finding 
 that the defendant in firing the bomb exercised reasonable care. The 
 
 8 9 Only so much of the case is given as relates to this one point. 
 
 Accord: Steinmetz v. Kelly (ISSO) 72 Ind. 442. 445 (37 Am. Rep. 170): "The 
 doctrine, that contributory negligence on the part of the plaintiff will defeat 
 his action, has been generally applied in actions based on the negligence of 
 the defendant ; in short, in cases involving mutual negligence. But it has 
 also been applied in some cases where the matter complained of was not negli- 
 gence merely, but the commission of some act in itself unlawful, without ref- 
 orence to the manner of committing it, as the willful and unauthorized ob- 
 struction of a highway, whereby a person is injured. Butterfield v. Forrester 
 (1S09) 11 East, 60; Dygert v. Schenck (1840) 23 ^Yend. (N. Y.) 446, 35 Am. 
 Dec. 575. The doctrine, however, can have no application to the case of an 
 intentional and unlawful assault and battery, for the reason that the person 
 thus assaulted is under no obligation to exercise any care to avoid the same 
 by retreating or otherwise, and for the further reason that his want of care 
 can. in no just sense, be said to contribute to the injury inflicted upon him by 
 such assault and battery. An intentional and unlawful assault and battery, 
 intlicted upon a person, is an invasion of his right of personal security, for 
 which the law gives him redress, and of this redress he cannot be deprived 
 on the ground that he was negligent and took no care to avoid such invasion 
 of his right." Per Worden, J. 
 
 And see Kain v. Larkin (1890) 56 Hun, 79, 9 N. T. Supp. 89: Action to re- 
 cover for the death of Kain, caused by the wrongful act of the defendant. 
 "In this case the defendant, who was acting as an officer, told Kain, the de- 
 ceased, to go about his business, and shoved him off the sidewalk. Kain came 
 back, and defendant again told him to go home. He said defendant could 
 not make him. Then defendant shot him." In his charge to the jury, the 
 trial judge applied to the case the principle of contributory negligence, and 
 instructed that there could be no recovery if the decedent in any degree con- 
 tributed to the injury. On this there was a verdict with judgment for the 
 defendant. The plaintiff appealed.
 
 150 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 case comes to us on a report which states that if, on the facts contain- 
 ed therein, and on said finding, the plaintiffs are entitled to recover, 
 the case is to be remitted to the Superior Court for the assessment 
 of damages; otherwise, judgments are to be entered for the defend- 
 ant. It is therefore to be considered whether it appears affirmatively 
 that the plaintiffs were entitled to recover. 
 
 The plaintiffs apparently were present at the display of fireworks 
 as voluntary spectators, and were of ordinary intelligence. No fact 
 is stated in the report to show the contrary, nor has any suggestion 
 to that effect been made in the argument. The plaintiffs have not 
 rested their claims at all upon the ground that they were merely travel- 
 lers upon the highway, or that they were unaware of the nature and 
 risk of the display. The report says : "A considerable number of 
 persons were attracted to said square by said meeting, and said bombs 
 and other fireworks which were being exploded there. A portion of 
 the center of said square, about forty by sixty feet, was roped off by 
 the police of said Chelsea, and said bombs or shells were fired off 
 within the space so enclosed and no spectators were allowed to be 
 within said enclosure. * * * The plaintiff's were lawfully in said 
 highway at the time of the explosion of said mortar, and near said 
 ropes, and were in the exercise of due care." 
 
 The bombs or shells are described in the report, and they were to 
 be thrown from mortars into the air, it being intended that they should 
 explode in the air and display colored lights. They were apparently a 
 common form of fireworks, such as has long been in use. 
 
 The ground on which the plaintiffs place their several cases is, that 
 the Pub. St. 1882, c. 102, § 55, did not authorize the mayor and alder- 
 men of Chelsea to license the firing of anything but rockets, crackers, 
 squibs, or serpents, and that therefore the act of the defendant in 
 firing bombs or shells was unauthorized and unlawful. It is not con- 
 tended that it was at the time supposed, either by the defendant or by 
 anybody else, that the license was insufficient to warrant the display 
 which was actually made. The licensee was the chairman of a com- 
 mittee which had a political meeting in charge, and the defendant 
 acted at the request of the committee, and was directed by them as 
 to when and where to fire oft' the fireworks. 
 
 Under this state of things it must be considered that the ])laintiffs 
 were content to abide the chance of personal injury not caused by neg- 
 ligence, and that it is immaterial whether there w^as or was not a valid 
 license for the display. If an ordinary traveller upon the highway 
 had been injured, different reasons would be applicable. Vosburgh v. 
 Moak, 1 Cush. 453, 48 Am. Dec. 613; Jenne v. Sutton, 43 N. J. 
 Law, 257, 39 Am. Rep. 578 ; Conradt v. Clauve, 93 Ind. 476, 47 Am. 
 Rep. 388. But a voluntary spectator, who is present merely for the 
 purpose of witnessing the display, must be held to consent to it, and 
 he suffers no legal wrong if accidentally injured without negligence
 
 Ch. 1) 
 
 TRESPASSES 151 
 
 on the part of any one, although the show was unauthorized. He takes 
 the risk. See Pollock on Torts, 138-144.^° 
 
 In the opinion of a majority of the court, the entry must be, judg- 
 ment for the defendant.®^ 
 
 90. The reference is to the first edition of Pollock on Torts. But see the 
 remark of the same author, in his seventh edition, page oOZr. "Liability under 
 the rule in Indermaur v. Dames may be avoided not only by showing con- 
 tributory negligence in the plaintiff, but by showing that the risk was as well 
 known to him as to the defendant, and that with such knowledge he volunta- 
 rily exposed himself to it; but this will not excuse the breach of a positive 
 statutory dutj'." 
 
 91 Morton and Knowlton, J J., dissented. In his dissenting opinion Morton, 
 J., remarks: "It is carrying the doctrine of assumption of the risk further 
 than I think it has ever been carried, to say that one who, being lawfully on 
 the highway and in the exercise of due care, observes as a spectator an un- 
 lawful and dangerous exhibition in it, assumes the risk of injury from it. 
 The exhibitor is bound at his peril to see that he has a valid license. If 
 he selects the highway for an unlawful and dangerous display designed or 
 calculated to attract the public, he, and not the spectators, assumes the risk 
 of injury. * * * Fiu'ther, the question of assumption of the risk is ordi- 
 narily one of fact for the jury. The plaintiffs are not bound to show that 
 they did not assume the risk. Unless it appears that they did, they are en- 
 titled to recover. This court cannot say, as matter of law, upon the facts stat- 
 ed, that the plaintiffs assumed the risk. Nothing is disclosed as to the cir- 
 cumstances under whicli the plaintiffs were present. For aught that appears, 
 they might have been travellers, stopping for a moment on their way through 
 the square, or detained by the crowd." 
 
 That it is no part of the plaintiff's case to show that he did not assume the 
 risk, see Dowd v. New York, etc., Ry. (1902) 170 N. Y. 459, 472, 63 N. E. 541. 
 
 The majority opinion in Scanlon v. Wedger was followed in Frost v. Jos- 
 selyn (1902) ISO Mass. 392, 62 N. E. 469. Its doctrine was approved in John- 
 son V. City of New York (1906) 186 N. Y. 139, 149, 78 N. E. 715, 116 Am. St. 
 Rep. 045, 9 Ann. Cas. 824: P. sought to recover for personal injuries caused 
 by being struck by a speeding automobile in an unlawful speed test on a pub- 
 lic highway. The plaintiff was present not as a casual spectator traveling on 
 the highway, but for the express purpose of seeing a test in which automoliiles 
 would be driven at the greatest possible speed. So, in Bogart v. City of New 
 York (1911) 200 N. Y. 379, 93 N. E. 937, 21 Ann. Cas. 466. 
 
 But see Moore v. City of Bloomington (1912) 51 Ind. App. 145, 95 N. E. 
 374: A city, without authority to do so, granted the free use of certain streets 
 for a fireworks display. P., a child of tender years, standing in the street 
 near the platform from whicli the fireworks were being discharged, was struck 
 in the face by a skyrocket. Said Lairy, C. J., delivering the opinion: "It ap- 
 pears from the evidence in this case that appellant [P.] was not using the 
 street for travel at the time of her injury, but that she had come to the place 
 solely for the I'urpose of watching the fireworks. Under such circumstances 
 it is insisted that she assumed the risk of injury and cannot recover for that 
 reason. * * * It appears that she was a girl of tender years, and she may 
 not have known or fully appreciated the danger she was encountering. She 
 may have had no knowledge of the dangerous character of the fireworks which 
 were being used or of the inexperience of the person iii charge." A judgment 
 for the defendant was accordingly reversed.
 
 152 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part I 
 
 SULLIVAN V. DUNHAM. 
 
 (Supreme Court of New York, Appellate Division, 1806. 10 App. 
 Div. 4;J8, 41 X. Y. «upp. 108o.) 
 
 Action by Mary Sullivan, as administratrix of the estate of Annie 
 E. Harten, deceased, to recover for the death of her intestate. From 
 a judgment entered on a verdict in favor of plaintiff, and from an 
 order denying a motion for a new trial, defendants appeal. 
 
 WiLLARD BartlivTT, J* * * 'fj-jg complaint charged that the 
 defendants "wrongfully and unlawfully, and in reckless disregard of 
 human life, did carelessly, negligently, and unskillfully blast and blow 
 out" the tree; but the learned judge who presided at the trial held 
 that the action was based, not at all upon negligence, but upon a wrong 
 consisting of the improper use of real estate. The jury were told, 
 in substance, that the plaintiff was entitled to a verdict if they were 
 satisfied that the young girl was struck and killed in the highway by 
 a portion of the tree blasted out on Dr. Dunham's land by Messrs. 
 Dinkel & Jewell, employed by him to do the work under the direction 
 of his foreman. Ward. The court also instructed the jury that the 
 caution which the young lady exercised in respect to taking care of 
 herself was not to be considered having previously, in the course of 
 the trial, excluded evidence offered by the defendant for the purpose 
 of showing that, after she was warned of the danger, she voluntarily 
 remained in the vicinity. 
 
 In the instruction and ruling upon the degree of care required of 
 the injured person in such a case, it is clear that an error was com- 
 mitted. Even where the cause of action is not founded upon negli- 
 gence, but rests upon the commission of a trespass by the defendant, 
 the party suffering injury therefrom is not wholly relieved of the ob- 
 ligation to exercise some degree of caution. If he is on his own 
 land, or in the public highway, he has a right to assume, in the ab- 
 sence of knowledge or fair warning to the contrary, that others will 
 not endanger his safety by trespass or other wrong. St. Peter v. Den- 
 ison, 58 N. Y. 416, 17 Am. Rep. 258; Ochsenbein v. Shapley, 85 N. 
 Y. 214. But, where there is personal notice of the existence of dan- 
 ger, or fair warning, the law imposes upon the person whose safety 
 is imperiled the duty of using such reasonable means as are at hand 
 to protect himself, and he cannot voluntarily and knowingly remain 
 in a place of risk without losing his right of action for the injury 
 which it was thus in his power to avoid. While I am far from saying 
 that, upon the proof actually before the court in the case before us, 
 the young woman who lost her life neglected any precaution which the 
 law demanded, I think there was error in the exclusion of evidence 
 which was offered on that subject. * * * 
 
 1 think the judgment should be reversed, and a new trial granted."^ 
 
 02 Only so much of the case is given as relates to the one point. See ante, 
 p. 08. 
 
 For the subsequent history of this case, see (1898) 35 App. Div. 633, 54 N.
 
 Ch. 1) TRESPASSES 153 
 
 WELLS V. KNIGHT. 
 
 (Supreme Court of Rhode Island. 1911. 32 R. I. 432. 80 Atl. 16.) 
 
 Action by the widow and minor children of Llewellyn Wells, for 
 damages, under a Rhode Island statute, on account of his death by 
 the alleged wrongful act of the defendant. There was a verdict for 
 ■defendant, and plaintiffs bring exceptions.^^ 
 
 Parkhurst, J. * * * In the writ and declaration in the case 
 at bar the action is styled "an action of the case." The amended dec- 
 laration says that it was the duty of the defendant "to exercise due, 
 proper, and reasonable care in the control, management, and opera- 
 tion" of his premises, and in the blasting or quarrying of rock or stone 
 as aforesaid, and to give to travelers due, proper, and sufficient notice 
 of such blasting, so that they would not be injured. The declaration 
 alleges, as to the wrongful act complained of : 
 
 "And said plaintiffs aver that said Llewellyn "Wells, on, to wit, said 21st day 
 ot May, A. D. 1907, at said Cranston, was in the exercise of due care, and was 
 driving in, to wit, a southerly direction, a horse and wagon or vehicle over, 
 across, and upon said Scituate avenue, in said town of Cranston, and while 
 driving or traveling as aforesaid, and while in the exercise of due care, said 
 Llewellyn Wells was struck in the right side, chest, arm, and body with a 
 certain stone or rock, which was thrown or blown by blasting or quarrying 
 as aforesaid, from said ledge or quarry over, across, and upon said highway, 
 which said blasting or quarrying was done by said defendant, his agents and 
 servants." 
 
 This, then, is the statement of the case upon which the plaintiffs 
 must recover. The declaration states just how the accident happened. 
 It does not state whether or not it was due to negligence. 
 
 It is plainly a declaration in trespass, alleging a direct and forcible 
 trespass to the person, without any allegation of negligence on the 
 part of the defendant. Such a declaration in trespass, founded on a 
 writ, sounding in case, is permitted by statute (section 246, Court and 
 Practice Act 1905), as construed in Adams v. Lorraine Mfg. Co., 29 
 R. I. 333, 71 Atl. 180 ; and we regard the action in form as an action 
 of trespass, and not as an action of trespass on the case for negligence. 
 It follows, therefore, that as there is no allegation of negligence, and 
 the action is founded on a direct trespass to the person, the evidence 
 offered in regard to the negligence of the defendant in the matter of 
 the use of explosives and of the covering of the blast was, under strict 
 rules, inadmissible. Furthermore, this court has recently approved 
 the rule set forth in Hickey v.- McCabe & Bihler, 30 R. I. 346, 348, 
 75 Atl. 404, 405, 27 L. R. A. (N. S.) 425, 19 Ann. Cas. 783, that "it 
 is well settled that negligence need not be shown in order to recover 
 for damage done by matter thrown by blasting upon the adjoining land. 
 
 y. Supp. 962, and (1900) 161 N. Y. 290, 5.5 N. E. 923, 47 L. R. A. 715, 76 Am. 
 St. Rep. 274, given ante, p. 68. 
 
 9 3 The statement of facts is abridged, and only so much of the o])inion is 
 :given as relates to the one point.
 
 154 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 The rule is stated in 19 Cyc. 7, as follows : 'It may be said to be the 
 rule that one who, in blasting upon his premises, casts rocks or other 
 debris upon the land of another, is liable for such invasion, regardless 
 of the degree of care or skill used in doing the work' " — citing numer- 
 ous cases. The case proceeds to discuss the application of the same 
 rule to cases where the damage was caused by concussions and vibra- 
 tions due to blasting, noting the conflict of authority, and concludes 
 that the same rule should apply in both classes of cases, and that 'proof 
 of negligence on the part of the defendant is not necessary in cases 
 where the damage caused by blasting results from concussions and vi- 
 brations, any more than in cases where damage results from rocks 
 or other debris cast upon the land. * * * 
 
 And the rule of law is the same in cases of injury to the person as 
 in case of damage to property. Hoffman v. Walsh, 117 Mo. App. 278, 
 93 S. W. 853; St. Peter v. Denison, 58 N. Y. 416, 17 Am. Rep. 258; 
 Munro v. Dredging, etc., Co., 84 Cal. 515, 24 Pac. 303, 18 Am. St. 
 Rep. 248, and cases infra. So the same rules are applied in case of 
 injury or death caused to a person traveling in a highway. 2 Shearm. 
 & Red. on Neg. § 688a ; Sullivan v. Dunham, 161 N. Y. 290, 294. 295, 
 299, 55 N. E. 923, 47 L. R. A. 715, 76 Am. St. Rep. 274; Wright v. 
 Compton, 53 Ind. ZZ7, 341. * * * 94 
 
 We come, then, to the question of contributory negligence. A care- 
 ful consideration of the testimony convinces us that upon this ground 
 the jury was justified in finding a verdict for the defendant. It is 
 undisputed that the defendant sent his employe, Mr. Gardner, express- 
 ly for the purpose of warning travelers upon the highway to a point 
 sufficiently far from the blast to be a safe place to wait till after the 
 blasting was over, and that Gardner did warn the deceased and his 
 companion, Ryan, at that point, to stop because of the danger. And 
 although there is some conflict as to whether Mr. Gardner told the 
 deceased and Ryan that there was to be more than one blast, there 
 was ample evidence to corroborate Mr. Gardner's statement that he 
 expressly said to them that three blasts were to be fired, and there 
 is ample evidence that there were warnings given by the men on the 
 ledge and others in the hearing of the deceased and Ryan, and heard 
 by others much farther away than the deceased, that there were other 
 blasts to follow the one already fired, while the deceased was waiting 
 in his buggy at the place where he was first stopped by Gardner. A 
 number of witnesses, eight or more, testify in various ways and to 
 various facts and circumstances regarding the warnings — some di- 
 rectly corroborating Gardner's statement as to his direct warning of 
 three blasts to be fired, others, as to the warnings given by the men at 
 the ledge. 
 
 94 On the quostion of an assniilt and battery, the opinion quotes from and 
 follow.s Sullivan v. Dunham (1900) 161 N. Y. 290, 55 N. E. 923, 47 L. R. A. 
 715, 76 Am. St. Rep. 274, given ante, p. 68.
 
 Ch. 1) TRESPASSES 155 
 
 As there was ample evidence to warrant the jury in believing that 
 full and explicit warning of the danger was given to the deceased, 
 and it is undisputed that he was in a safe place when the warning was 
 given, and voluntarily disregarded the warning and moved forward 
 into a place of danger, when he met his death, and as the judge who 
 has tried the case has approved the verdict of the jury, we find no 
 ground for setting the verdict aside. Wilcox v. R. I. Co., 29 R. I. 
 292, 70 Atl. 913. It is not disputed, in this case, as we understand, 
 that contributory negligence, if proved, is as much a bar to recovery 
 in cases of this character, as in other cases of personal injury or death. 
 Wright V. Compton, 53 Ind. ZZ7 ; Sullivan v. Dunham, 10 App. Div. 
 438, 41 N. Y. Supp. 1083; 19 Cyc. p. 10; Shearm. & Red. vol. 2, pp. 
 1188-1190; Am. & Eng. Ency. Law (2d Ed.) vol. 12, p. 510; Smith 
 V. Day (C. C.) 86 Fed. 62 ; Wadsworth v. Marshall, 88 Me. 263, 34 
 Atl. 30, 32 L. R. A. 588 ; Gary Bros. & Hannon v. Morrison, 129 Fed. 
 177, 62> C. C. A. 267, 65 L. R. A. 659. * * * 
 
 The case is remitted to the superior court, with direction to enter 
 its judgment for the defendant upon the verdict as rendered by the 
 jury. 
 
 (B) Accident; Mistake; Necessity 
 (a) Accident 
 
 There is a case put in the Year Book 21 Hen. VII., 28, a (1506), 
 that where one shot an arrow at a mark, which glanced from it and 
 struck another, it was holden to be trespass.''^ 
 
 Grose, J., in Leame v. Bray (1803) 3 East, 593, 596. 
 
 95 So it was argued, forty years earlier, iu the Thorn-Cutting Case (14G6) 
 Y. B. 6 Edw. IV., f. 7, pi. 18: "Sir, if one is shooting at hutts, and his bow 
 shakes iu his hands, and kills a man, ipso invito, it is no felony, as has been 
 said, etc. ; but if he wounds one by shooting, he shall have a good action of 
 trespass against him, and yet the shooting was lawful, etc., and the wrong 
 which the other received was against his will." 
 
 Keferring to the case in the Year Book of 1506, Denman, J., remarks, in 
 Stanley v. Powell (1S91) 1 Q. B. 86, 89: "It appears that the passage in ques- 
 tion was a mere dictum of Rede, who (see .5 Foss' Lives of the .Judges, p. 
 230) was at the time (1506) either a judge of the King's Bench or C. J. of the 
 Common Pleas, which he became in October in that year, in a case of a very 
 different kind from that in question, and it only amounts to a statement that 
 an action of trespass may lie even where the act done by the defendant is 
 unintentional. The words relied on are, 'Mes ou on tire a les buts et blesse 
 un home, coment que est incontre sa volonte, il sera dit un trespassor incontre 
 son entent.' But in that passage Ifede makes observations which shew that 
 he has in his mind cases in which that which would be prima facie a tres- 
 pass may be excused." 
 
 And see Pollock on Torts (8th Ed.) 137, 142: "If we go far back enough, 
 indeed, we shall find a time and an order of ideas in which the thing itself 
 that does damage is primarily liable, so to speak, and through the thing its 
 owner is made answerable. That order of ideas was preserved in the noxal 
 actions of Itonian law, and in our own ciiniiii.-il law by the forfeiture of the
 
 156 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 WEAVER V. WARD. 
 
 (Court of King's Bench, 1616. Hobart, 134, SO Reprint. 2S4.) 
 
 Weaver brought an action of trespass of assault and battery against 
 Ward. The defendant pleaded, that he was among others by the com- 
 mandment of the Lords of the Council a trained soldier in London, of 
 the band of one Andrews, captain, and so was the plaintiff ; and that 
 they were skirmishing with their muskets charged with powder for 
 their exercise in re militari, against another captain and his band ; and 
 as they were so skirmishing, the defendant casualiter et per infortunium 
 et contra voluntatem suam, in discharging of his piece, did hurt and 
 wound the plaintiff, which is the same, etc., absque hoc, that he was 
 guilty aliter sive alio modo. And upon demurrer by the plaintiff', judg- 
 ment was given for him; for though it were agreed that if men tilt 
 or turney in the presence of the king, or if two masters of defence 
 playing their prizes kill one another, that this shall be no felony; 
 or if a lunatick kill a man or the like, because felony must be done 
 animo f elonico : yet in trespass, which tends only to give damages 
 according to hurt or loss, it is not so ; and therefore if a lunatick hurt 
 
 offending object which had moved, as it was said, to a man's death, under 
 the name of deodand. But this is a matter of history, not of modern legal 
 policy. So mucli we may concede, that when a man's act is the apparent 
 cause of mischief, the burden of proof is on liim to show that the consequence 
 was not one which by due diligence he could have prevented. But so does 
 (and must) the burden of proving matter of justification or excuse fall in 
 every case on the person talcing advantage of it. If he were not, on the first 
 impression of the facts, a wrong-doer, the justification or excuse would not 
 be needed. * * * There is a good deal of appearance of authority in the 
 older books for the contrary proposition that a man must answer for all di- 
 rect consequences of his voluntary acts at any rate, or as Justice O. W. 
 Holmes has put it 'acts at his peril.' Such seems to have been the early 
 (Germanic law, and such was the current opinion of English lawyers till about 
 the end of the eighteenth century. * * * They [the English authorities] 
 have certainly been supposed to show that inevitable accident is no excuse 
 when the immediate result of an act is complained of. Erskine said more 
 than a century ago in his argument in the celebrated Case of the Dean of St. 
 / Asaph (17S;j) 21 St. Tr. 1022 (and he said it by way of a familiar illustration 
 of the difference Itetween criminal and civil liability), that 'if a man rising in 
 his sleep walks into a china shop and breaks everything about him, his being 
 a.sleep is a complete answer to an indictment for trespass, but he must answer 
 in an action for everything lie has broken.' And Bacon had said earlier to 
 the same purpose, that 'if a man be killed by misadventure, as by an arrow 
 at butts, this hath a pardon of course ; but if a man be hurt or maimed only, 
 an action of trespass lieth, though it be done against the party's mind and 
 will.' Maxims of the Law, Reg. 7 [1596]. Stronger examples could not well 
 be propounded. For walking in one's sleep is not a voluntary act at all, 
 though possibly an act that might have been prevented ; and the practice of 
 archery was, when Bacon wrote, a positive legal duty under statutes as recent 
 as Henry VIII. 's time, though on the other hand shooting is an extra hazar- 
 dous act." 
 
 See, also, the chapter on "Trespass and Negligence" in Holmes' Common 
 Law ; Professor Wigmore's articles in 7 Harv. Law Rev. 315, 383. 441, re- 
 printed in 3 Anglo-American Legal Essays, 474; and "Negligence in the Field 
 of Trespa.ss," Street's Foundations of Legal Liability, vol. 1, pp. 73-85.
 
 Ch. 1) TRESPASSES 157 
 
 a man. he shall be answerable in trespass : and therefore no man 
 shall be excused of a trespass (for this is the nature of an excuse, 
 and not of a justification, prout ei bene licuit) except it may be judged 
 utterly without his fault. ^^ 
 
 As if a man by force take my hand and strike you, or if here the 
 defendant had said that the plaintiff ran across his piece when it was 
 discharging, or had set forth the case with the circumstances so as it 
 had appeared to the court that it had been inevitable, and that the 
 defendant had committed no negligence to give occasion to the hurt 
 
 97 
 
 »6 "It has been generally supposed that until the present century (earlier 
 in this country, later in England) the old notion continued, i. e.. that the ra- 
 tionalization never proceeded any further than to posit a voluntary act by the 
 defendant; that if from a voluntary act a trespass — that is, a direct and 
 immediate injury — followed, nothing could save the defendant from civil 
 responsibility. And no doubt this came to be at least the preliminary test, 
 the sine (,"ua non, showing itself most prominently in the rule of pleading that 
 if there had been no such voluntary act, then there was not even a prima 
 facie trespass. But more than this the whole course of precedents and of 
 contemporary legal opinion does not allow us to believe. The evidence seems 
 plain that the rationalization towards the present standards began at a much 
 earlier period than has been supposed. In other words, there has never been 
 a time, in English law, since (say) the early 1500's, when the defendant in an 
 action for trespass was not allowed to appeal to some test or standard of moral 
 blame or fault in addition to and beyond the mere question of his act having 
 been voluntary ; i. e., conceding a voluntary act, he might still exonerate 
 himself (apart from excuses of self-defence, consent, and the like). At first 
 this test, naturally, was vague enough. 'Inevitable necessity," 'unavoidable ac- 
 cident,' 'could not do otherwise,' served indiscriminately to express, in judicial 
 language, the reasons of fairness on which they equally exempted him who 
 had intentionally stnick in self-defense, and him who unintentionally injured 
 without what we now call 'negligence,' and him who intentionally trespassed 
 on the plaintiff's land to avoid a highway attack. The phrases, 'non potuit a]- 
 iter facere' and 'inevitable necessity,' served as leading catchwords for many 
 centuries ; and even up to the 1800'S we find court and counsel constantly inter- 
 changing 'inevitable accident' and 'absence of negligence or blame.' The 
 precedents show us, then, that somewhere about 1500 a decided sloughing-off 
 of the last stage of the primitive notion took place, and a defendant could 
 exempt himself in this sort of an action if his act, though voluntary, had been 
 without blame ; the standard being more indefinite, and perhaps not as liberal, 
 as to-day, but not different in kind. But it would seem that towards the lat- 
 ter half of the 1800" s the opinion at the bar in England misconceived the lan- 
 guage of some of the earlier cases, and it became necessary to review them 
 in two cases (Holmes v. Mather, 1875 ; Stanley v. Powell, 1891), in which the 
 doctrine was finally settled, for England, that the defendant's attention to the 
 requirements of due care may be (not necessarily always is) a defence, even 
 where a trespass has been done. The same doctrine ('there must be some 
 blame or want of care and prudence to make a man answerable in trespass") 
 had long been laid down in this country, and that, too, purely as a matter of 
 tlie right reading of the precedents." John H. Wigmore, "Responsibility for 
 Tortious Acts," 7 Harv. Law Eev. 315, 383, 442 ; 3 Legal Essays, 474, 504, cit- 
 ing authorities. 
 
 9T Compare: 
 
 Dickenson v. Watson (1682) T. Jones, 205, 84 Reprint, 1218: Trespass for 
 tissault and battery, in that D. had wounded P. in the eye By discharging a 
 gun loaded with "hail-shot." D. pleaded that he was an otficer appointed to 
 collect hearth-money, and carried firearms for the more sure custody of the 
 money collected and to be collected, and that having one of his pistols in his 
 hands, and intending to discharge it ne aliquod damnum eveniret. he dis- 
 charged it (nemine in opposito vis. existente), and while he discharged it the
 
 158 TORTS THROUGH ACTS OP ABSOLUTE LIABILITY (Part 1 
 
 ^ 
 
 UNDERWOOD v. HEWSON. 
 (At Nisi Prius. Coram Forteseue et Raymond, Justices, 1724. 1 Strange, 596.9 8) 
 [This case is given ante, see page 31.] 
 
 JAMES V. CAMPBELL. 
 
 (At Nisi Prius, 1832. 5 Car. & P. 372, 24 E. C. L. 611.) 
 
 Assault and battery. In a quarrel between the defendant, Campbell, 
 and a Mr. Paxton, the plaintiff, James, was struck by the defendant. 
 It was claimed that the blow was intended for Mr. Paxton, not for 
 the plaintiff, although the plaintiff and the defendant had not been 
 on good terms. ^" 
 
 Bodkin, for the defendant, in his address to the jury, contended, 
 that if the defendant did not intentionally strike the plaintiff, they 
 ought to find their verdict for him. 
 
 plaintiff casualiter viam illam praeterivit, et si aliquod malum ei inde accideret 
 hoc fuit contra voluntat. of the defendant; quae est eadem trausgressio. To 
 this plea the plaintiff demurred. 
 
 Bullock V. Babcock (1829) 3 Wend. (N. T.) 391: In 1816, P., then a school- 
 boy 10 years of age, was hit in the eye with an arrow shot by D., a schoolmate 
 about 12 years old. P. and D. had been shooting at a mark, when D. said 
 to P., "I will shoot you." P. ran into the schoolroom and hid behind a fire 
 board. D. followed to the door of the schoolroom and saying "See me shoot 
 that basket," discharged the arrow. At that moment P. raised his head above 
 the Are board, and the arrow struck him. In 1827, P. sued D. in trespass for 
 the assault and battery. 
 
 Castle V. Duryea (ISGO) 32 Barb. 480; Id., 2 Keyes (*41 N. T.) 169: D., 
 commanding a regiment in public military exercises, ordered his men to fire. 
 It was intended that only blank cartridges should be used, and elaliorate pre- 
 cautions had been taken to secure this. In the belief that there was no ball 
 cartridge in any of the guns, the regiment fired towards the specfc^tors. P., 
 one of the spectators, was hit by a ball which had accidentally been left in a 
 gun used. 
 
 98 Compare Cole v. Fisher (1814) 11 Mass. 137: Trespass vi et armis for 
 firing a gun, by which the plaintiff's horse was frightened and ran away with 
 his chaise and broke it. Sewall, C. J., remarked: "The well-known distinc- 
 tion of immediate injury and consequential injury is the rule upon which our 
 doubts have arisen: in all other respects, the action is clearly maintained 
 for the plaintiff upon the facts agreed. It is immaterial, as resi>ects the right 
 of action, or the form, whether the act of the defendant was by his intention 
 and purpose injurious to the plaintiff, or the mischief which ensued was 
 accidental, and besides his intention, or contrary to it. The decision in the 
 case of Underwood v. Hewson has never been questioned. There the de- 
 fendant was uncocking his gun, when it went off and accidentally wounded a 
 bystander. The defendant was charged, and holden liable in trespa.ss. Other 
 cases before and since, might be cited, in which the same doctrine, which gov- 
 erned in that decision, has been recognized as the law." 
 
 And see 1 Beven on Negligence (3d Ed.) 56.j: "If, then, blame is at the root 
 of liability, the doer of an unlawful act [i. e., not an act done without jus- 
 tification I)nt an act wbich, apart from the question of justification, is prima- 
 rily against law] is a fortiori liable for the consequences of it." Compare: 
 38 Cyc. 424, note 22. 
 
 90 The statement of facts is abridged.
 
 Ch. 1) TRESPASSES 1^0 
 
 Mr. Justice BosanouET (to the jury) : If you think, as I appre- 
 hend there can be no doubt, that the defendant struck the plaintiff, the 
 plaintiff is entitled to your verdict, whether it was done intentionally 
 or not. But the intention is material in considering the amount of 
 damages.^"" 
 
 Verdict for the plaintiff. Damages £10. 
 
 WELLS V. HOWELL. ' ' 
 
 (Supreme Court of Judicature of New York, 1822. 19 Johns. 385. i) 
 [This case is given ante, p. 108; see "Trespass to Real Property."] 
 
 NEWSOM V. ANDERSON. 
 
 (Supreme Court of North Carolina, 1S41. 2 Ired. [24 N. C] 42, 37 Am. 
 
 Dec. 406.) 
 
 Trespass quare clausum fregit. The defendant was cutting trees 
 on his own land, when one of them accidentally fell on the land of 
 the plaintiff". The defendant did not act designedly or negligently, 
 and it did not appear that there was any actual injury to the land. 
 The plaintiff's counsel moved the court to instruct tlie jury that this 
 constituted a trespass on the part of the defendant. The court refused. 
 The instruction given sufficiently appears from the opinion. Ver- 
 dict and judgment for defendant. Plaintiff appealed. 
 
 Daniel, J. To sustain trespass, the injury must in general be 
 immediate, and committed with force, either actual or implied. If the 
 injurious act be the immediate result of the force originally applied 
 
 100 Accord: Davis v. Collins (1904) 69 S. C. 460, 48 S. E. 469 (D. learned 
 that S., with whom he had quarreled, was coming to town on a certain train. 
 D. accordingly armed himself with brass knuckles and went to the railway 
 station, intending to attack S. immediately upon his arrival. When S. got off 
 the train, he stopped to speak to P.. a young lady. D., attempting to strike S., 
 accidentally hit P.) ; Peterson v. Haftner (1877) 59 Ind. mO. 26 Am. Rep. 81. 
 (The plaintiff, Fred Haffner, 5 years old, and his brother William, 7 years old, 
 were sitting on a sand pile, beside a box of mortar, in the public street before 
 their home, when the defendant, 14 years old, with four other boys, came down 
 the street. Some of the boys began throwing pebldes and mortar, in sport. 
 The defendant picking up a piece of mortar, said to William Ilaffner, "Kun 
 or I will hit you." William started to run, and the plaintiff with him. The 
 defendant threw the mortar at William and hit him on tlio back of tlie head. 
 At that instant the plaintiff looked back, and a piece of the mortar which had 
 stnick William flew oft" and hit the plaintiff in the eye. The result was the 
 loss of sight in this eye). 
 
 1 For an historical explanation of the absolute liability for accident in such 
 cases, see Salmoud, Jurisprudence (3d Ed. 1910) 378; Wigmore, Responsi- 
 bility for Tortious Acts, 7 Harv. Law Review (1894) 450. And see 2 Cyc. 
 376, note 38.
 
 160 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 by the defendant, and the plaintiff be injured thereby, it is the subject 
 of an action of trespass vi et armis, by all the cases, both ancient and 
 modern, and it is immaterial whether the injury be willful or not : 
 Leame v. Bray, 3 East, 599; 2 Leigh's N. P. 1402. We think that 
 the charge of the judge was incorrect, when he said, "that the plain- 
 tiff could not recover, unless the tree was designedly or carelessly 
 felled by the defendant, so as to fall on the plaintiff's land, or that, 
 by falling on the plaintiff's land, it had fallen on his grass or vegetable 
 growth of some kind." The ground of the action, quare clausum 
 fregit, is the injury to the possession: 3 Bl. Com. 210; [Smith v. 
 Milles] 1 T. R. 480; and that whether the injury extends to the 
 plaintiff's land in the mineral or vegetable kingdom. Is not the felling 
 of trees on a person's land, and incumbering it with rubbish, an injury 
 to the possession ? We think it is. * * * ^ 
 By Court. New trial awarded. 
 
 HALL v. FEARNLEY. 
 
 (Court of Queen's Bench, 1842. 3 Q. B. 919, 114 Reprint, 761.) 
 [This case is given ante, see page 130.] 
 
 BROWN V. KENDALL. 
 
 (Supreme Judicial Court of Massachusetts, 1850. G Cush. 292.) 
 
 This was an action of trespass for assault and battery. It appeared 
 in the evidence that two dogs, belonging to the plaintiff and the 
 defendant, respectively, were fighting in the presence of their masters ; 
 that the defendant took a stick about four feet long, and commenced 
 beating the dogs in order to separate them ; that the plaintiff was 
 looking on, at a distance of about a rod, and that he advanced a step 
 or two towards the dogs. In their strugole, the dogs approached the 
 place where the plaintiff was standing. The defendant retreated back- 
 wards from before the dogs, striking them as he retreated; and as 
 
 2 Part of the opinion is omitted. 
 
 Accord: Gates v. Miles (1819) 3 Conn. G4: The plaintiffs were the owners 
 of the sloop Mary ; the defendant was the owner of the sloop Susan. The 
 defendant was proceeding with the Susan, under his personal direction and 
 management, through Long Island Sound, to New Haven. One of the plain- 
 tiff.s was navigating the Mary, in the opposite direction, to New York. When 
 the two sloops were distant from eacli other about 30 rods, the defendant 
 commanded the person at the helm of the Susan to luff; "in obedience to 
 which, the helmsman suddenly luffed, and turned said sloop Susan to wind- 
 ward, and in pursuance of the direction thus given, she directly struck the 
 larboard quarter of the Mary, with great violence."
 
 Ch. 1) TRESPASSES 161 
 
 he approached the plaintiff, with his back towards him, in raising his 
 stick over his shoulder, in order to strike the dogs, he accidentally hit 
 the plaintiff in the eye, inflicting upon him a severe injury. * * * 
 The judge declined to give certain instructions requested by the de- 
 fendant but left the case to the jury under the following instructions: 
 
 "If the defendant, in beating the dogs, was doing a necessary act, or one 
 which it was his duty under the circumstances of the case to do, and was 
 doing it in a proper way ; tlien he was not responsible in this action, pro- 
 vided he was using ordinary care at the time of the blow. If it was not a 
 necessary act ; if he was not in duty bound to attempt to part the dogs, but 
 might with propriety interfere or not as he chose; the defendant was re- 
 sponsible for the consequences of the blow, unless it appeared that he was in 
 the exercise of extraordinary care, so that the accident was inevitable, using 
 the word inevitable not in a strict but a popular sense. 
 
 "If. however, the plaintiff, when he met with the injury, was not in the 
 exercise of ordinary care, he cannot recover, and this rule applies, whether 
 the interference of the defendant in the fight of the dogs was necessary or not. 
 If the jury believe, that it was the duty of the defendant to interfere, then the 
 burden of proving negligence on the part of the defendant, and ordinary care 
 on the part of the plaintiff, is on the plaintiff. If the jury believe, that the 
 act of interference in the fight was unnecessary, then the burden of proving 
 extraordinary care on the part of the defendant, or want of ordinary care on 
 the part of tlie plaintiff, is on the defendant." 
 
 The jury under these instructions returned a verdict for the plain- 
 tiff; whereupon the defendant alleged exceptions. 
 
 Shaw, C. J. * * * The facts set forth in the bill of exceptions 
 preclude the supposition, that the blow, inflicted by the hand of the 
 defendant upon the person of the plaintiff, was intentional. The 
 whole case proceeds on the assumption, that the damage sustained 
 by the plaintiff', from the stick held by the defendant, was inadvertent 
 and unintentional; and the case involves the question how far, and 
 under what qualifications, the party by whose' unconscious act the 
 damage was done is responsible for it. We use the term "uninten- 
 tional" rather than involuntary, because in some of the cases, it is 
 stated, that the act of holding and using a weapon or instrument, the 
 movement of which is the immediate cause of hurt to another, is a 
 voluntary act, although its particular effect in hitting and hurting 
 another is not within the purpose or intention of the party doing the 
 act. 
 
 It appears to us, that some of the confusion in the cases on this 
 subject has grown out of the long-vexed question, under the rule of 
 the common law, whether a party's remedy, where he has one, should 
 be sought in an action of the case, or of trespass. This is very dis- 
 tinguishable from the question, whether in a given case, any action 
 will lie. The result of these cases is, that if the damage complained 
 of is the immediate effect of the act of the defendant, trespass vi et 
 armis lies ; if consequential only, and not immediate, case is the proper 
 remedy. Leame v. Bray, 3 East, 593; Hugget v. Alontgomery, 2 N. 
 R. 446, Day's Ed. and notes. 
 Hepb.Torts — 11
 
 162 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 In these discussions, it is frequently stated by judges, that when 
 one receives injury from the direct act of another, trespass will lie. 
 But we think this is said in reference to the question, whether tres- 
 pass and not case will lie, assuming that the facts are such, that some 
 action will lie. These dicta are no authority, we think, for holding, 
 that damage received by a direct act of force from another will be 
 sufficient to maintain an action of trespass, whether the act was lawful 
 or unlawful, and neither wilful, intentional, or careless. * * * 
 
 We think, as a result of all the authorities, the rule is correctly 
 stated by Mr. Greenleaf, that the plaintiff must come prepared with 
 evidence to show either that the intention was unlawful, or that the 
 defendant was in fault; for if the injury was unavoidable, and the 
 conduct of the defendant was free from blame, he will not be liable. 
 2 Greenl. Ev. §§ 85 to 92; Wakeman v. Robinson, 1 Bing. 213. If, 
 in the prosecution of a lawful act, a casualty purely accidental arises, 
 no action can be supported for an injury arising therefrom. Davis 
 v. Saunders, 2 Chit. R. 639; Com. Dig. Battery, A. (Day's Ed.) and 
 notes ; Vincent v. Stinehour, 7 Vt. 69, 29 Am. Dec. 145, 
 
 In applying these rules to the present case, w^e can perceive no rea- 
 son why the instructions asked for by the defendant ought not to 
 have been given; to this effect, that if both plaintiff and defendant 
 at the time of the blov/ were using ordinary care, or if at the time 
 the defendant was using ordinary care, and the plaintiff was not, or 
 if at that time both plaintiff and defendant were not using ordinary 
 care, then the plaintiff could not recover. 
 
 In using this term, ordinary care, it may be proper to state, that 
 what constitutes ordinary care will vary with the circumstances of 
 the cases. In general, it means that kind and degree of care, which 
 prudent and cautious men would use, such as is required by the ex- 
 igency of the case, and such as is necessary to guard against probable 
 danger. A man, who should have occasion to discharge a gun, on an 
 open and extensive marsh, or in a forest, would be required to use less 
 circumspection and care, than if he w^ere to do the same thing in 
 an inhabited town, village, or city. To make an accident, or casualty, 
 or as the law sometimes states it, inevitable accident, it must be such 
 an accident as the defendant could not have avoided by the use of 
 the kind and degree of care necessary to the exigency, and in the 
 circumstances in which he was placed. 
 
 We are not aware of any circumstances in this case, requiring a 
 distinction between acts which it was lawful and proper to do, and 
 acts of legal duty. There are cases, undoubtedly, in which officers 
 are bound to act under process, for the legality of which they are not 
 responsible, and perhaps some others in which this distinction would 
 be important. We can have no doubt that the act of the defendant 
 in attempting to part the fighting dogs, one of which was his own, 
 and for the injurious acts of which he might be responsible, was a
 
 Ch. 1) TRESPASSES 1G3 
 
 lawful and proper act, which he might do by proper and safe means. 
 If, then, in doing this act, using due care and all proper precautions 
 necessary to the exigency of the case, to avoid hurt to others, in rais- 
 ing his stick for that purpose, he accidentally hit the plaintiff in his 
 eye and wounded him, this was the result of pure accident, or was 
 involuntary and unavoidable, and therefore the action would not 
 lie. * * * 
 
 The court instructed the jury, that if it was not a necessary act, 
 and the defendant was not in duty bound to part the dogs, but might 
 with propriety interfere or not as he chose, the defendant was re- 
 sponsible for the consequences of the blow, unless it appeared that he 
 was in the exercise of extraordinary care, so that the accident was 
 inevitable, using the word not in a strict but a popular sense. This is 
 to be taken in connection with the charge afterwards given, that if the 
 jury believed, that the act of interference in the fight was unnecessary 
 (that is, as before explained, not a duty incumbent on the defendant), 
 then the burden of proving extraordinary care on the part of the de- 
 fendant, or want of ordinary care on the part of the plaintiff, was on 
 the defendant. 
 
 The court are of opinion that these directions were not conformable 
 to law. If the act of hitting the plaintiff was unintentional, on the 
 part of the defendant, and done in the doing of a lawful act, then 
 the defendant was not liable, unless it was done in the want of exer- 
 cise of due care, adapted to the exigency of the case, and therefore 
 such want of due care became part of the plaintift"'s case, and the 
 burden of proof was on the plaintiff to establish it. 2 Greenl. Ev. § 
 85; Powers v. Russell, 13 Pick. (Mass.) 69, 76; Tourtellot v. Rose- 
 brook, 11 :\Ietc. (Mass.) 460. 
 
 Perhaps the learned judge, by the use of the term "extraordinary 
 care," in the above charge, explained as it is by the context, may have 
 intended nothing more than that increased degree of care and diligence, 
 which the exigency of particular circumstances might require, and 
 which men of ordinary care and prudence would use under like cir- 
 cumstances, to guard against danger. If such was the meaning of this 
 part of the charge, then it does not differ from our views, as above 
 explained. But we are of opinion, that the other part of the charge, 
 that the burden of proof was on the defendant, was incorrect. Those 
 facts which are essential to enable the plaintiff to recover, he takes 
 the burden of proving. The evidence may be offered by the plaintiff 
 or by the defendant ; the question of due care, or want of care, may 
 be essentially connected with the main facts, and arise from the same 
 proof ; but the eft'ect of the rule, as to the burden of proof, is this, 
 that when the proof is all in, and before the jury, from whatever side 
 it comes, and whether directly proved or inferred from circumstances, 
 if it appears that the defendant was doing a lawful act, and uninten- 
 tionally hit and hurt the plaintiff, then unless it also appears to the
 
 164 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 satisfaction of the jury, that the defendant is chargeable with some 
 fault, negligence, carelessness, or want of prudence, the plaintiff fails 
 to sustain the burden of proof and is not entitled to recover.^ 
 New trial ordered. 
 
 3 The statement of facts is abbreviated and part of the opinion is omitted. 
 
 "If the accident had happened while chastising the dog, would the injured 
 person be precluded from recovery because the act out of which the injury 
 arose was a lawful one? If he could recover, the test of whether beating a 
 dog in the street is a lawful act or not is not the correct test. If he could 
 not, the maxim of law, 'Sic uti tuo ut alienum non Itedas,' is reversed or lim- 
 ited, with some reference, perhaps, to real rights alone. The quiet citizen 
 must keep out of the way of tb.e exuberantly active one. The duty is to 
 avoid being injured, not to avoid injuring. Test the matter by pleading. A 
 trespass is only actionable when it results from other than a lawful act ; con- 
 sequently, a declaration setting out the facts would often be insufficient as 
 being consistent with a lawful as well as an unlawful act; for illegality is 
 never to be presumed." 1 Beven on Negligence (3d Ed.) 565. 
 
 Accord: Stanley v. Powell [1891] 1 Q. B. 86: The defendant and several 
 others were pheasant shooting in a party, some being inside and some outside 
 of a wood which the beaters were beating. The right of shooting was in one 
 Greenwood, who was of the party. The plaintiff was employed by Greenwood 
 to carry cartridges and the game which might be shot. Several beaters were 
 driving the game along a plantation of saplings toward an open drive. The 
 plaintiff stood just outside a gate which led into a field outside the plantation, 
 at the end of the drive. The defendant was walking along in that field a 
 few yards from the hedge which bounded the plantation. As he was walking 
 along a pheasant rose inside the plantation ; the defendant fired one barrel at 
 this bird, and struck it with his first shot. The bird, when struck by the 
 • first shot, began to lower and turn back toward the beaters, whereupon the 
 defendant fired his second barrel and killed the bird, but a shot, glancing 
 from the bough of an oak which was in or close to the hedge and striking the 
 plaintiff in the eye, caused the injury complained of. The oak was partly 
 between the defendant and the bird when the second barrel was fired, but it 
 was not in a line with the plaintiff', but, on the contrary, so much out of that 
 line, that the shot must have been diverted to a considerable extent from the 
 direction in which the gun must have been pointed in order to hit the plain- 
 tiff". The distance between the plaintiff' and the defendant, in a direct line, 
 when the second barrel was fired was about thirty yards. The plaintiff' sued 
 to recover his damages arising from the loss of his eye. The jury found that 
 the plaintiff's hurt had been caused by a shot from the defendant's gun but 
 that the shot had been fired by the defendant without any negligence. It was 
 contended for the plaintiff that there could be a recovery on the ground of 
 trespass, on the doctrine that even in the absence of negligence, an action of 
 trespass might lie. Held that "if the case is regarded as an action on the 
 case for an injury by negligence the plaintiff has failed to establish that 
 which is the very gL'Jt of such an action, if on the other hand it is turned 
 into an action for trespass, and the defendant is (as he nnist be) supposed 
 to have pleaded a plea denying negligence and establishing that the injury 
 was accidental in the sense above explained, the verdict of the jury is equally 
 fatal to the action." Judgment was accordingly given for the defendant. 
 
 Compare Osborne v. Van Dyke (IttOl) 113 Iowa, 557, 85 N. W. 784, 54 L. R. 
 A. 367: P. was holding a horse while D. applied medicine to its neck. The 
 horse jumped, and D. began beating it with a heavy stick, with a nail in the 
 end. While he was thus engaged, D.'s foot slipped, and in consequence he 
 unintentionally hit P. in the face, breaking the bones of his nose. The trial 
 judge charged the jury that D. would not be liable if in beating the horse he 
 exercised reasonable care to avoid striking P., and the blow which intlicted 
 P.'s injury was caused by an accidental slip, for which D. was not to blame; 
 and tliat this was the law even if D. in beating the horse was guilty of an 
 unlawful act. Held, erroneous. 
 
 As bearing on the principle of Stanley v. Powell, see the discussion in 1 
 Beven on Negligence (1908) 565-570. 

 
 Ch. 1) TRESPASSES 165 
 
 SULLIVAN V. DUNHAM, ^r^-y^ubt 
 
 (Court of Appeals of New York, 1900. 161 N. Y. 290, 55 N. E. 923, 47 L. R. A. 
 
 715, 76 Am. St. Rep. 274.) 
 
 [This case is given ante, p. 68; see "Battery."] 
 
 BRADLEY v. LAKE SHORE & M. S. RY. CO. 
 
 (Supreme Court of Pennsylvania, 1913. 23S Pa. 315, 86 Atl. 200, 44 L. R. A. 
 
 [N. S.] 1148.) 
 
 Action of trespass by Bradley against the railway company for a 
 personal injury. From a judgment for the defendant, on a directed 
 verdict, the plaintitf appeals. 
 
 Potter, J. The facts in this case are substantially as follows : On 
 the evening of August 11, 1909, the plaintiff went to the passenger 
 station of the defendant company, at Polk, Pa., at about 7 o'clock. 
 He concluded to go to Franklin upon a train leaving about 9 o'clock, 
 and with that purpose in view remained at or near the station. Short- 
 ly after 8 o'clock, while the plaintiff was seated upon a baggage truck, 
 which stood upon the station platform, a freight train passed rapidly 
 upon the second track from the platform. While the train was pass- 
 ing, an iron brake bar, which formed part of the brake equipment, 
 broke, or became loosened at one end, fell down, and was dragged 
 for some distance, and then broke away entirely, and was hurled vio- 
 lently from the train, striking the station platform, and, rebounding 
 therefrom, struck and crushed plaintiff's hand, which rested upon 
 the truck at his side. The plaintiff brought this action to recover dam- 
 ages for the resulting injury. At the trial a verdict for the defendant 
 was directed upon the ground that the evidence did not warrant a 
 finding by the jury of negligence upon the part of the defendant com- 
 pany. Afterwards, in an opinion refusing a new trial, the learned 
 judge of the court below considered the legal questions raised most 
 elaborately, and concluded that, under the evidence, the plaintiff" could 
 not, at the time and place of the accident, be properly regarded as hav- 
 ing assumed the relation of passenger to the defendant company, and 
 further that the defendant company had in no way failed in the dis- 
 charge of any duty which it owed to the plaintiff, and that there was 
 no proof of negligence, on the part of the defendant, which caused the 
 accident, and no basis upon which to found an inference of it. It 
 seems that the brake bar which inflicted the injury was of consider- 
 able size and weight, being from two to three feet in length, and, 
 when in its proper position, its place was under the trucks of the car, 
 about on a level with the axle, and at right angles thereto. At either 
 end of the bar were inserted fulcrum pins fastening it to brake levers, 
 
 ^
 
 1G6 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 and through these pins ran cotter pins to hold them in place. If the 
 cotter pins came out, through jolting or vibration, the fulcrum pins 
 in turn might be misplaced, thus permitting the larger connecting bar 
 to fall to the ground, which is just what seems to have happened in 
 this case. 
 
 The facts bring the case within the principle of the decision in 
 Bauman v. Manufacturing Co., 234 Pa. 416, 83 Atl. 293, where in- 
 jury was caused by the loss of a cotter pin. This, without more, was 
 held insufficient proof of negligence on the part of defendant. To the 
 same effect were the decisions in Bradbury v. Kingston Coal Co., 157 
 Pa. 231, 27 Atl. 400, and East End Oil Co. v. Torpedo Co., 190 Pa. 
 350, 42 Atl. 707. In the present case it was shown that the cars on 
 the train in question were inspected on the afternoon of the accident, 
 and prior thereto, and were found to be in order with the exception 
 that a brake bar was missing on one car, but that was not regarded 
 as affecting in any way the safe operation of the train. The evidence 
 shows that the matter may very properly be regarded as an accident 
 pure and simple, and as such it falls within the rule that one engaged 
 in a lawful act is not responsible for damage arising from a pure ac- 
 cident in the doing of it. It was not shown that the inspection made 
 shortly before the accident was faulty or ineffective in any way, or 
 that it was made by incompetent persons. As the trial judge says, it 
 may be assumed that the accident was due to the cotter pin coming 
 out of place, and that it would not have occurred had the pin been kept 
 in place. Yet, as he points out, this affords no basis for inferring any 
 lack of ordinary care upon the part of the defendant. The bolts and 
 pins may have been in place when inspected, and yet have been jarred 
 out of place or broken shortly afterward. There is no evidence upon 
 this point, and nothing tending to show that the dropping of the brake 
 bar was due to faulty inspection or any want of repair by the defend- 
 ant company. That the bar should have fallen down, broken off, and 
 been hurled from the train just at the spot where the plaintiff was sit- 
 ting was of course a result which the defendant could not have fore- 
 seen. As the trial judge suggests, even if there had been any compe- 
 tent proof (and there was none) that the brake rod had become loosen- 
 ed, and, through oversight on the part of the employes, it was permit- 
 ted to remain on the car, "only an extreme visionary would have im- 
 agined the consequences which followed, or that injury could result 
 to person or property therefrom." We agree with the court below 
 in the final conclusion that nothing in the evidence justified an infer- 
 ence that the defendant company failed in the discharge of any duty 
 owed by it to the plaintiff".* 
 
 The assignments of error are overruled, and the judgment is af- 
 firmed. 
 
 * Compare Kirk v. West Virginia Colliery Co. (1914) 215 Fed. 77: The coal 
 from D.'s mine was run by D. down an incline from the pit's mouth to a tipple 
 above a side track, and thence into cars. Tlie center of the side track was 18
 
 Ch. 1) TRESPASSES 1G7 
 
 THE MERCHANT <PRINCE. 
 
 (Court of Appeal, [1892] P. 179.) 
 
 OvlI^ 
 
 Appeal by plaintiffs, the owners of the Catalonia, from a decision 
 of the President, dismissing, with costs, their action of damage by 
 collision against the defendants, the owners of the Merchant Prince, 
 on the ground that the collision was the result of inevitable accident. 
 In substance the plaintiff's case was as follows : The Catalonia, a 
 screw steamer, was lying at anchor in the Mersey, when the Mer- 
 chant Prince, a screw steamer, coming down the river in broad day 
 light struck the Catalonia a heavy blow on the port quarter, doing 
 very considerable damage. The defendants pleaded that the collision 
 and damage were caused by inevitable accident, and the evidence 
 shewed that at the time the Merchant Prince was proceeding down 
 the Mersey, there was a moderate gale blowing from the westward, 
 and, it being slack water, the Catalonia was lying wind-rode partly 
 athwart the river. She was observed to be about half a point on the 
 port bow at about a mile distant. Owing to the force of the wind the 
 Merchant Prince griped a little as she approached the Catalonia, so 
 that her head came over somewhat to port. The pilot thereupon gave 
 the order "port," and then "hard a port," but the third officer, who 
 was steering, on trying to get the wheel over to port, found that the 
 steering gear would not act, and on calling out that the wheel was 
 jammed, the engines were put astern, but the vessels were too close 
 for the collision to be avoided. * * * 
 
 Fry, L. J. * * * It is a case in which a ship in motion has 
 run into a ship at anchor. The law appertaining to that class of case 
 appears to be clear. In the case of The Annot Lyle, 11 P. D. 114, 
 it was laid down by Lord Herschell that in such a case the cause of the 
 collision might be an inevitable accident, but unless the defendants 
 proved this they are liable for damages. The burden rests on the de- 
 fendants to shew inevitable accident. To sustain that the defendants 
 must do one or other of two things. They must either shew what 
 was the cause of the accident, and shew that the result of that cause 
 was inevitable ; or they must shew all the possible causes, one or 
 other of which produced the effect, and must further shew with re- 
 gard to every one of these possible causes that the result could not 
 have been avoided. Unless they do one or other of these two things, 
 it does not appear to me that they have shewn inevitable accident. 
 
 feet distant from the center of the main track. P., walliing down the main 
 track to take a train, asked D.'s foreman whether it was safe to pass the tip- 
 ple. He said, "There is no danger, go on." P. accordingly started hy, walk- 
 ing on the outer edge of the main track, when a lump of coal coming through 
 the tijiple bounded over from the car then being loaded by D. and struck P. 
 The court was of opinion that "the case resolves itself into one of pure acci- 
 dent for which the coal company could not, upon any principle of law, be held 
 liable."
 
 168 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 In the present case the defendants have not shewn what was the cause. 
 They have left that entirely undecided. In fact, their evidence has 
 been largely given to shew that the event never did happen ; but, un- 
 fortunately for them, it did happen. * * * 4 
 
 Lopes, L. J. In this case the moving vessel runs into and comes 
 into collision with a vessel at anchor. As I understand it, the law is 
 perfectly clear that in the circumstances such as I have described the 
 defendants are bound to shew that what happened was inevitable. 
 In this case it is beyond dispute that the defendants are unable to 
 tell what the cause of the accident was, or how or why it happened. 
 It occurs to me that that being so, it cannot be said that they have dis- 
 charged the burden fastened upon them by shewing that what happen- 
 ed was inevitable. Can they say that they could not avoid a thing 
 when they did not know what the thing to be avoided was? I think 
 not. In this case the steerage gear absolutely failed. How is that 
 to be accounted for? It appears to me it can only be accounted for 
 in two ways. It must have arisen from a defect in the machinery, or 
 from bad management of the machinery. The defendants have not 
 satisfied me that what happened did not proceed from the kinking of 
 the chain. I rather think it did proceed from that cause. If that is 
 so, how does the matter stand with regard to the defendants? They 
 knew they had a new chain, and they ought to have known a new 
 chain was liable to stretch. They ought to have known that a chain 
 that stretched was liable to kink. Knowing these matters, they ought 
 to have provided against that which happened by being prepared to 
 use one or other of the modes of steerage with which they were sup- 
 plied. In these circumstances, I am unable to see that what hap- 
 pened was inevitable; I am unable to agree with the learned judge be- 
 low, and I think the appeal ought to be allowed and judgment given 
 m favour of the plaintiffs. 
 
 Appeal allowed, judgment reversed and entered for the plaintiffs. 
 
 (b) Mistake 
 
 If I drive over a man in the dark because I do not know that he is 
 in the road, I injure him accidentally; but if I procure his arrest, 
 because I mistake him for some one who is liable to arrest, I injure 
 him not accidentally but by mistake. In the former case I did not 
 intend the harm at all, while in the latter case I fully intended it, but 
 falsely believed in the existence of a circumstance which would have 
 served to justify it. So if by insufficient care I allow my cattle to 
 
 * The statement of facts is abridged. The opinion of Lord Esber, M. R., and 
 liortion.s of the concurring opinions, are omitted.
 
 Ch. 1) TRESPASSES 169 
 
 escape into my neighbor's field, their presence there is due to acci- 
 dent, but if I put them there because I wrongly believe that the field 
 is mine, their presence is due to mistake. In neither case did I in- 
 tend to wrong my neighbor, but in the one case my intention failed 
 as to the consequence, and in the other as to the circumstance. 
 Salmond, Jurisprudence (3d Ed.) Z77 . 
 
 BASELY V. CLARKSON. ifyrC^ 
 
 (Court of Common Pleas, 16S1. 3 Lev. 37, 83 Reprint. 565.) 
 
 Trespass for breaking his closs called the balk and the hade, and cut- 
 ting his grass, and carrying it away. The defendant disclaims any 
 title in the lands of the plaintiff, but says that he hath a balk and 
 hade adjoining to the balk and hade of the plaintiff, and in mowing 
 his own land he involuntarily and by mistake mowed down some grass 
 growing upon the balk and hade of the plaintiff', intending only to 
 mow the grass upon his own balk and hade, and carried the grass, 
 etc., qu£e est eadem, etc. Et quod ante emanationem brevis he ten- 
 dered to the plaintiff 2s. in satisfaction, and that 2s. was a sufficient 
 amends. Upon this the plaintiff' demurred, and had judgment; for 
 it appears the fact was voluntary, and his intention and knowledge are 
 not traversable ; they cannot be known. ^ 
 
 5 See Holmes, Common Law (ISSl) 99 et seq.; Whittier's "Mistake in the 
 Law of Torts" (1902) 15 Harv. Law Rev. 335-352: Salmond. Law of Torts 
 (1910) 15 : "The plea of inevitable accident is that the consequences com- v 
 plained of as a wrong were not intended by the defendant and could not have ^ 
 been foreseen and avoided by the exercise of reasonable care. The plea of in- • 
 evitable mistake, on the other hand, is that although the act and its conse- ^ H6. 
 quences were intended, the defendant acted under an erroneous belief, formed ^ 
 on reasonable grounds, that some circumstance existed which justified him. ( 
 Such a mistaken belief in justification, however reasonable, is not itself a jus- 
 titication. This is probably the most important of all the exceptions recognized 
 by law to the requirement of mens rea as a ground of civil liability." 
 
 "A word may be said as to the historical origin of this failure of English law 
 to recognise inevitable mistake as a ground of exemption from civil liability. ^ 
 Ancient modes of procedure and proof were not adapted for inquiries into men- 
 tal conditions. By the practical difficulties of proof early law was driven to 
 attach exclusive importance to overt acts. The subjective elements of wrong- 
 doing were largely beyond proof or knowledge, and were therefore disregarded 
 as far as possible. It was a rule of our law that intent and knowledge were 
 not matters that could be proved or put in issue. 'It is common learning,' said 
 one of the judges of King Edward IV., 'that the intent of a man will not be 
 tried, for the devil himself knoweth not the intent of a man.' Y. B. 17 Edw. 
 IV. The sole question which the courts would entertain was whether the de- 
 fendant did the act complained of. Whether he did it iguorantly or with 
 guilty knowledge was entirely immaterial. This rule, however, was restricted 
 to civil liability. It was early recognised that criminal responsibility was too 
 serious a thing to be imposed upon an innocent man simply for the sake of 
 avoiding a difficult inquiry into his knowledge and intention. In the case of 
 civil liability, on the other hand, the rule was general. The success with which 
 it has maintained itself in modern hiw is due in part to its undeniable utility 
 in obviating inconvenient or even impracticable inquiries, and in part to the in- 
 fluence of the conception of redress in minimizing the importance of the fornjal 
 condition of penal liability." Salmond, Jurisprudence (3d Ed.) 376.
 
 170 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 ^ 
 
 STONEHOUSE v. ELLIOTT. 
 
 (Court of King's Bench, 1795. 6 T. R. 315, 101 Reprint, 571.) 
 
 This action of trespass, assault and false imprisonment was tried 
 before Lord Kenyon at the sittings at Westminister after last Hilary 
 term, when these facts were given in evidence. The defendant, whose 
 pocket had been picked at the play-house, suspected the plaintiff, and 
 having laid hold of him gave him in charge to a constable who was 
 present, and to whom she had before communicated her suspicions. 
 The plaintiff was taken to the office in Bow Street, where the defend- 
 ant still persisted in her charge against the plaintiff, but after some 
 examination it appeared that the defendaant was mistaken in her 
 suspicions of the plaintiff, and he was released. It was objected that 
 the plaintiff had misconceived his action, that he should have brought 
 an action on the case for making the malicious charge, and that tres- 
 pass would not lie in such a case as the present. The cause however 
 proceeded, and the plaintiff obtained a verdict subject to the opinion 
 of this Court, whether the action in its present form could be main- 
 tained. Accordingly, 
 
 Gibbs moved in the last term to set aside the verdict, and to enter 
 a nonsuit. 
 
 Lord Kenyon, C. J. The doubt whether this was the proper form 
 of action originated with me. I thought at the trial that as the con- 
 stable's power to arrest flagrante delicto, for the purpose of putting the 
 supposed offender into a course of justice, was allowed by the law, 
 the person making the charge could only be liable in an action on the 
 case for making such a charge maliciously. But I am now satisfied 
 that trespass will lie in this case, this having been the constant course 
 of proceeding.** 
 
 Per Curiam. Rule discharged. 
 
 HIGGINSON et al. v. YORK. 
 
 (Supreme Judicial Court of Massachusetts, 1809. 5 Mass. 341.) 
 
 Trespass for breaking and entering the close of the plaintiffs, called 
 Burnt Coat island, and taking and carrying away three hundred cords 
 of the plaintiffs' wood. Upon the general issue, pleaded and joined, 
 the action was tried at the sittings after the last June term in this 
 county, and a verdict found for the plaintiffs, subject to the opinion 
 of the Court upon the following facts contained in the judge's report. 
 
 « Compare Samuel v. Payne (1780) 1 Doucl. 350: Thinkinpr. on reasonable 
 grounds, that P. had stolen laces from him, D. caused an ofliccr to take P. into 
 custody. The ollicer acted without a warrant. It turned out that D. was mis- 
 taken. P. sued both D. and the officer in tresi.ass for false inijirisonment. 
 Held, that D. was liable, but that the charge made by D. to the officer was a 
 sufiicient justiticutiou as to him.
 
 Ch. 1) TRESPASSES 17^1 
 
 In the year 1805, the defendant, being master of a vessel regularly 
 employed in the coasting trade, was applied to by one Kenniston, who 
 was then a trader in the town of Sedgwick, to take a cargo of wood 
 from the said island to Boston. He accordingly went to this island 
 with Kenniston, took on board his vessel thirty or forty cords of 
 wood and carried the same to Boston, where it was sold and the pro- 
 ceeds thereof accounted for by the defendant to Kenniston. 
 
 It was also in evidence that one Phinney, without right or author- 
 ity, had cut the wood in question, and sold it to Kenniston, previously 
 to his agreement with the defendant to carry it to Boston. There was 
 no evidence that the defendant had any knowledge of the trespass com- 
 mitted by Phinney, or that he was in any manner concerned, or 
 aiding or assisting therein, other than by going to the island, and 
 taking the wood upon freight as aforesaid. The title of the plaintiffs 
 to the island was not questioned. 
 
 The cause was submitted without argument. The Court did not 
 hesitate in giving their opinion in favor of the action, observing that 
 the defendant was clearly a trespasser in going, without the license 
 of the owner, upon the island of the plaintiffs; and supposing his 
 taking the wood there to be a mistake as to the rights of Kenniston, 
 and that under this mistake K. had been paid the full value of the 
 wood taken by York, neither the mistake nor the accommodation, as 
 being between joint trespassers, were any answer to the lawful owner, 
 sustaining the injury to the soil, or the loss of his chattels. For when 
 taken, the wood, being cut and separated from the soil, was the per- 
 sonal property of the plaintiffs. 
 
 The doubt in this case, which probably occasioned it to be reserved, 
 was a mistaken apprehension that K. & Y. were to be constructively 
 connected with Phinney in his original trespass in cutting the wood. 
 But the causes of the action are entirely distinct. P. acquired no 
 property in the wood by cutting it, as against the owners of the soil ; 
 K. could acquire none from him, and could transfer none to the 
 present defendant; and these last broke the close of the plaintiffs in 
 going upon their island, and were trespassers, and as such are charge- 
 able in damages, at least to the value of the wood taken and carried 
 away. Judgment according to the verdict. 
 
 HOBART V. HAGGET. 
 
 (Stipreme JiKlicial Court of Maine, 1835. 12 Me. 67, 28 Am. Dec. 159.) 
 
 In an action of trespass, in which the general issue had been pleaded 
 and joined, the following facts appeared : The defendant had bought 
 an ox of the plaintiff, and having paid plaintiff the agreed price was 
 directed by him to go and take the ox. The defendant went to the 
 plaintiff's enclosure and took out an ox which he supposed was the
 
 172 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 one he had purchased ; but in fact it was not the ox which the plain- 
 tiff had intended to sell. The jury were instructed that if they were 
 satisfied that there had been an innocent mistake between the parties, 
 and that the defendant had supposed that he had purchased the ox in 
 question when in fact the plaintiff supposed he was not selling that 
 ox but another, then they should find for the plaintiff'. Under these 
 instructions there was a verdict for the plaintiff. The defendant ex- 
 cepted/ 
 
 Parris, J. * * * ^]^Q j^^j-y Jiaving found for the plaintiff have 
 virtually found that he did not sell the ox in controversy, and the 
 question is raised whether the defendant is liable in trespass for hav- 
 ing taken it by mistake. It is contended that where the act complained 
 of is involuntary and without fault, trespass will not lie, and sundry 
 authorities have been referred to in support of that position. But 
 the act complained of in this case was not involuntary. The taking 
 of the plaintiff''s ox was the deliberate and voluntary act of the de- 
 fendant. He might not have intended to commit a trespass in so do- 
 ing. Neither does the officer, when on a precept against A. he takes 
 by mistake the property of B., intend to commit a trespass ; nor does 
 he intend to become a trespasser, who, believing that he is cutting tim- 
 ber on his own land, by mistaking the line of division cuts on his neigh- 
 bor's land; and yet, in both cases, the law would hold them as tres- 
 passers. * * * ^ 
 
 The exceptions are overruled, and there must be judgment on the 
 verdict. 
 
 / PAXTON v. BOYER. 
 
 (Supreme Court of Illinois, 1873. 67 111. 132, 16 Am. Rep. 615.) 
 
 Action of trespass by Boyer against Paxton for an assault and bat- 
 tery. The declaration was in the usual form. The defendant pleaded 
 the general issue, with which was filed a stipulation that all matters 
 might be given in evidence that could be specially pleaded. A trial 
 was had, and the jury returned the following verdict: 
 
 "We, the .iury, find the defendant guilty, and asse.ss the plaintiff's damages 
 at $4.50. We, the jury, find from the evidence, that the blow complained of 
 was struck by the defendant without nialite, and under circumstances which 
 would have led a reasonable man to believe it was necessary to his proper 
 self-defense." 
 
 7 This statement of the case is substituted for that by the reporter. A part 
 of the opinion is omitted. 
 
 8 Accord: Dexter v. Cole (1858) 6 Wis. 320, 70 Am. Dec. 465 : D., a butcher, 
 was driving sheep, which he had purchased, towards his slaughterhouse. As 
 they were passing along a highway, they became mixed with 22 sheep belonging 
 to P., which were running at large upon the highway. D. undertook to sep- 
 arate them and did thro\r out, as he thought, all of P.'s sheep. In fact, how- 
 ever, four of P.'s sheep remained in the flock, and were driven with it by D. to 
 his slaughterhouse. P. sues in trespass.
 
 Ch. 1) TRESPASSES 173 
 
 B REESE, J * * * fi^Q testimony sliows the trespass was com- 
 mitted by the defendant against an unoffending party — against one 
 who had given no cause or provocation of any kind. The defendant 
 asked this instruction, which was refused : 
 
 "The defendant can not be found guilty, in an action of this kind, unless, in 
 inflicting the injury complained of. he has been guilty of some wrong, evil in- 
 tent or want of care; and if you find, from the evidence, he struck the blow 
 without any fault, you will find for the defendant." 
 
 On coming in of the verdict, the defendant moved for judgment on 
 the special verdict, which the court denied. This is the first point 
 made by appellant. He insists judgment should have been rendered 
 for the defendant upon the special verdict, as that ignores malice and 
 unlawful intent, and finds that the act was done under circumstances 
 which would have led a reasonable man to believe it was necessary 
 to his proper self-defense. Appellant's theory is, that he mistook 
 plaintiff for his brother, with whom he was in conflict, and who 
 had felled him to the floor by violence. 
 
 The court, for the plaintiff, instructed the jury that it was no de- 
 fense, so far as actual damages are concerned, that the defendant 
 had been violently assaulted by persons other than the plaintiff, or 
 was then being assaulted by such other persons, or that he may have 
 honestly believed he was striking Peter Boyer when he struck the 
 plaintiff', or that he may have honestly believed it was necessary for 
 his self-defense to assault the plaintiff', if the jury find, from the evi- 
 dence, that the plaintiff' was not a party to such assault upon the 
 defendant; such evidence of mistake of facts, or good intentions 
 on the part of the defendant, can only be considered in this case by 
 the jury as a defense against the infliction by the jury of vindictive 
 damages, and not as a defense against such actual damages as the 
 evidence may show the plaintiff has suff'ered from such assault, or as 
 naturally resulted from such assault. These instructions involve the 
 merits of this controversy. 
 
 Appellant relies, in support of his theory, upon Morris v. Piatt, 32 
 Conn. 75, and Brown v. Kendall, 6 Cush. (Alass.) 292. These cases 
 are fully discussed, and sustain appellant. The facts in both cases 
 are similar to those in this case, and were actions of assault and bat- 
 tery. The principle is announced in those cases, that a person is not 
 liable for an unintentional injury resulting from a lawful act, where 
 neither negligence nor folly is imputable to him who does the act, and 
 that the burden of proving the negligence or folly, where the act is 
 lawful, is upon the plaintiff'. 
 
 This cause was tried on the general issue, with leave to give all 
 matters in evidence which could be specially pleaded. That the plea 
 of self-defense could have been pleaded is not questioned; in fact, the 
 plaintiff in his second instruction, so put it to the jury, and they, by their 
 special finding, have said the act was done in necessary self-defense, 
 or under circumstances which would have led a reasonable man to
 
 174 TORTS THROUGH ACTS OP ABSOLUTE LIABILITY (Part 1 
 
 believe it was necessary to his proper self-defense. This finding was 
 not excepted to by the plaintiff, nor did he object that the jury should 
 be instructed on that point. It, therefore, stands as the verdict of 
 the jury, that there was no malice in the act, and that it was done in 
 necessary self-defense. This brings the case within those relied on 
 by appellant, supra. 
 
 Can it be a question that, for an act done under such circum- 
 stances, the party doing the act is liable either civiliter or criminaliter? 
 The rule is well established that, in an action of assault and battery, 
 the plaintiff must be prepared with evidence to show, either that the 
 intention was unlawful, or that the defendant was in fault. 2 Green- 
 leaf on Ev. § 85. 
 
 The jury, by their special finding, have ignored the unlawful inten- 
 tion, and have said the defendant was not in fault. On what prin- 
 ciple, then, can he be made chargeable? If a person, doing a lawful 
 act in a lawful manner, with all due care and circumspection, happens 
 to kill another, without any intention of doing so, he is not liable 
 criminally. How, then, can it be said he shall be responsible in a 
 civil case, when, in doing a lawful act with due care, and an injury 
 happens, he shall be deemed in fault, and mulcted in damages? 
 
 It is said by appellee the rule is different in civil cases ; that the 
 motive (quoting from Chitty), intent or design of the wrongdoer to- 
 wards the plaintiff is not the criterion as to the form of the remedy, 
 for when the act occasioning the injury is unlawful, the intent of the 
 wrongdoer is immaterial ; but appellant here is no wrongdoer, as the 
 jury have said by the special verdict. 
 
 We do not deny the principle contended for by appellee, that, 
 where a tort is done, intention is no element to be considered. The 
 special verdict out of the way, we should not have much difficulty in 
 coming to the conclusion appellee's counsel have reached, but, with 
 that at the threshold of the case, we are unable to see the force of 
 them. 
 
 The authority cited from 2 Greenleaf Ev. § 94, by appellee, keep- 
 ing the special verdict all tlie time in view, is decisive of the question. 
 It finds, substantially, appellant "free from fault," and therefore not 
 responsible. 
 
 The special finding must override the general verdict, because both 
 can not stand, there being such an irreconcilable antagonism, and this 
 is the provision of section 51, supra. It may be answered to the 
 argument of appellee, that he was assaulted while in the enjoyment 
 of a legal right which he had not forfeited by any act of his ; that 
 the jury have found the act done by appellant was done in the exercise 
 of his legal right, without any design to injure appellee. 
 
 We have thought much on this case, and are constrained to hold, on 
 the authority of Morris v. Piatt, and P>rown v. Kendall, supra, and 
 on principle, that judgment should have been pronounced for the de-
 
 Ch. 1) TRESPASSES 175 
 
 fendanl on the special verdict, for that justified him. This renders it 
 unnecessary to consider any other question made on the record. 
 
 The judgment must be reversed, and the cause remanded, with 
 directions to enter judgment for the defendant on the special verdict. 
 
 Judgment reversed. 
 
 SEIGEL v. LONG. ot-^*^ 
 
 (Supreme Court of Alabama, 1910. 169 Ala. 79, 53 South. 753, 33 L. R. A. 
 
 [N. S.] 1070.) 
 
 Seigel sued Long for assault and battery. It appeared from the 
 defendant's evidence that he had walked from his wagon down to 
 an automobile in which the plaintiff was sitting, and had placed his 
 hand on the plaintiff's forehead, and pushed his hat back, in order 
 to see his face, remarking '"Some scoundrel came along here yester- 
 day and scared my horses and caused them to run away and break 
 my rake, and I am looking for him." The plaintiff asked for a general 
 affirmative charge for nominal damages. This was refused. There 
 was a judgment for the defendant, and plaintiff appeals.® 
 
 MAYFiiii^D, J. * * '■' It is true tha.t defendant's testimony tend- 
 ed to show that defendant made a mistake as to the identity of the 
 party Avhom he assaulted, and he told the plaintiff that, if he was not 
 the person who frightened his team, he owed him an apology; but 
 this did not prevent what he did from being an assault and battery 
 It was an assault and battery, with or without mistaken identity. 
 Carter v. State, 87 Ala. 113, 6 South. 356. It was likewise no defence 
 that defendant offered to apologize after the assault, if he made a 
 mistake as to the identity of the person assaulted. ^^ 
 
 Reversed and remanded. 
 
 4-L 
 
 (c) Necessity 
 
 MOUSE'S CASE. 
 
 (Court of King's Bench, 1608. 12 Co. Rep. 63, 77 Reprint, 1341.) 
 
 In an action of trespass brought by Mouse, for a casket, and a 
 hundred and thirteen pounds, taken and carried away, the case was, 
 the ferryman of Gravesend, took forty-seven passengers into his barge, 
 to pass to London, and Mouse was one of them, and the barge being 
 upon the water, a great tempest happened, and a strong wind, so that 
 
 9 This statement of facts is substituted for the statement given in the re- 
 porter. 
 
 10 Only so much of the opinion is given as relates to the one point.
 
 176 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 the barge and all the passengers were in danger to be drowned, if a 
 hogshead of wine and other ponderous things were not cast out, for 
 the safeguard of the lives of the men: it was resolved per totam 
 Curiam, that in case of necessity for the saving of the lives of the 
 passengers, it was lawful to the defendant, being a passenger, to cast 
 the casket of the plaintiff out of the barge, with the other things in it ; 
 for quod quis ob tutelam corporis sui fecerit, jure id fecisse videtur," 
 to which the defendant pleads all this special matter, and the plaintiff 
 replies, de injuria sua propria absque tali causa : and the first day 
 of this term, this issue was tried, and it was proved directly, that if 
 the things had not been cast out of the barge, the passengers had been 
 drowned; and that levandi causa they were ejected, some by one pas- 
 senger, and some by another ; and upon this the plaintiff was nonsuit. 
 It was also resolved, that although the ferryman surcharge the 
 barge, yet for safety of the lives of the passengers in such a time and 
 accident and necessity, it is lawful for any passenger to cast the things 
 out of the barge : and the owners shall have their remedy upon the sur- 
 charge against the ferryman, for the fault was in him upon the sur- 
 charge; but if no surcharge was, but the danger accrued only by the 
 act of God, as by tempest, no default being in the ferryman, everyone 
 ought to bear his loss for the safeguard and life of a man: for in- 
 terest reipublicse quod homines conserventur, 8 Ed. 4. 23, etc. 12 
 H. 8. 15. 28 H. 8. Dyer, 36. plucking clown of a house, in time of fire, 
 etc./^ and this pro bono publico; et conservatio vitas hominis est 
 
 11 "There are, I conceive, two different and distinct principles upon which 
 private property may be justly taken, used or destroyed for the benefit of oth- 
 r ers. Both of these are commonly comprehended and confounded in the phrase 
 of 'taking or destroying private property for public benefit.' One of these 
 principles is applied when the property of an individual is taken by the au- 
 thority of the state for the common use or benefit of the puldic. * * * But 
 there is also another ground upon which the property or rights of individuals 
 may be justly sacrificed to the necessities of others, where neither the state, as 
 a whole, nor the public, in the general seaise of that term, have any interest 
 in such a sacrifice. This may be seen in cases of innninent peril, where 'he 
 right of self-defence, or the protection of life or of property, authorizes the 
 sacrifice of other and less valuable propertj'. The throwing overboard of goods 
 in a storm, the pulling down of a house to prevent the spreading of a con- 
 flagration, are connnon examples of the exercise of this riglit. This is a 
 natural right arising from inevitable and pressing necessity, when of two im- 
 mediate evils, one miist be chosen, and tlie less is Aoluntarily inflicted in order 
 to avoid the greater. Under such circumstances, the general and natural law 
 of all civilized nations, recognized and ratified by the express decisions of our 
 own common law, authorizes the destruction of property by any citizen, without 
 liis being sul»ject to any right of recovery against him l)y the owner. The agent 
 in such destruction, whether in prot(>cti(Ui of bis own rights or the rights of 
 others which may be accidentally under his safeguard, acts from good motives 
 and for a justifiable end : so that against him the sufferer has no rightful 
 claim. But the loser ma.v liave an ecpntabie right of compensation against 
 those who have benefited by his loss in the preservation of their projterty." 
 Yerplanck. Senator, in Stone v. Mayor of New York (1S40) 25 Wend. 157. 17.'3. 
 
 1^ Compare: Surocco v. Geary (1S5;{) 3 Cal. 70, 58 Am. Dec. .■},S5: Action 
 to recover damages for blowing up and destroying the plaintiff's house. An- 
 swer that the defendant had destroyed the house to stop the progress of a
 
 Ch. 1) TRESPASSES l"*"? 
 
 bonum publicum. So if a tempest arise in the sea. levandi navis causa, 
 and for the salvation of the lives of men, it may be lawful for the 
 passengers to cast over the merchandizes, etc. 
 
 conflagration then raging. Said Murray. C. J., delivering the opinion : "The 
 only question for our consideration is, whether the person who tears down or 
 destroys the house of another, in good faith, and under apparent necessity, 
 during^ the time of a conflagration, for the purpose of saving the buildings ad- 
 jacent, and stopping its progress, can be held personally liable in an action by 
 the owner of the property destroyed. * * * The right to destroy property, 
 to prevent the spread of a conflagration, has been traced to the highest law of 
 necessity, and the natural rights of man, independent of society or civil gov- 
 enuuent. It is referred by moralists and jurists to the same great principle 
 which justifies the exclusive appropriation of a plank in a shipwreck, though 
 the life of another be sacrificed; with the throwing overboard of goods in a 
 tempest, for the safety of a vessel; with the trespassing upon the lands of 
 another, to escape death by an enemy. It rests upon the maxim. 'Necessitas 
 inducit privilegium quoad jura privata.' The common law adopts the principles 
 of the natural law, and places the justification of an act otherwise tortious pre- 
 cisely on the same ground of necessity. (See American Print Works v. Law- 
 rence, 21 N. J. Law, 258, 264, and the cases there cited.) This principle has 
 been familiarly recognized by the books from the time of the Saltpetre Case 
 [12 Co. Rep. 13 (1607)], and the instances of tearing down a house to prevent 
 a conflagration, or to raise bulwarks for the defence of a city, are made use 
 of as illustrations, rather than as abstract cases, in which its exercise is per- 
 mitted. At such times the individual rights of property give way to the higher 
 laws of impending necessity." 
 
 The Queen v. Dudley and Stephens (1884) 14 Q. B. D. 273 : Two seamen 
 and a 17 year old boy, Cast away in a storm on the high seas, were compelled 
 to put into an open boat. After eighteen days in the boat, when they had 
 been seven days without food and five days without water, and the boat was 
 drifting more than 1000 miles from land. D. and S. decided that, as the boy was 
 extremely weak and likely to die, they would kill him, in order that their lives 
 might be saved. On the twentieth day D. with the assent of S. killed the boy. 
 The two lived on his flesh for fc-ur days, when they were picked up by a pass- 
 ing vessel. At the time of D.'s act there was no sail in sight nor any reason- 
 able prospect of relief; and there appeared to D. and S. to be every probability 
 that unless they fed upon the boy all must die of starvation. When found, it 
 appeared that if D. and S. had not fed upon the body of the boy, they would 
 not have survived to be rescued. Lord Coleridge, C. J.: 
 
 " * * * It is said that it follows from the various definitions of murder 
 in books of authority, which definitions imply, if they do not state, the doc- 
 trine, that in order to save your own life you may lawfully take away the life 
 of another, when that other is neither attempting nor threatening yours, nor 
 is guilty of any illegal act whatever towards you or any one else. But if these 
 definitions be looked at they will not be found to sustain this conten- 
 tion. * * * 
 
 "The only real authority of former times is Lord Bacon, who, in his com- 
 mentary on the maxim, 'necessitas inducit privilegium quoad jura privata,' 
 lays down the law as follows : 'Necessity carrieth a privilege in itself. Neces- 
 sity is of three sorts — necessity of conservation of life, necessity of obedience, 
 and necessity of the act of God or of a stranger. First of the conservation of 
 life; if a man steal viands to satisfy his present hungei", this is no felony 
 or larceny. So if divers be in danger of drowning by the casting away of some 
 boat or barge, and one of them get to some plank, or on the boat's side to 
 keep himself above water, and another to save his life thrust him from it. 
 whereby he is drowned, this is neither se defendeudo nor by misadventure, but 
 justifiable.' On this it is to be observed that Lord Bacon's proposition that 
 stealing to satisfy hunger is no larceny is hardly supported by Staundforde. 
 whom i>e cites for it, and is expressly contradicted by Lord Hale in the pass- 
 age already cited. And for the proposition as to the plank or boat, it is said 
 to be derived from the canonists. At any rate he cites no authority for it, and 
 
 Hepb.Tobts — 12
 
 178 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 GILBERT V. STONE. 
 
 (Court of King's Bench, 1648. Style, 72.) 
 [This case is reported ante, page 29; see "Characteristics of a 
 " Cause in Trespass."] 
 
 HENN'S CASE. 
 
 (At a Justice's Seat for the Forest of Windsor, 1G33. Coram the Earl of Hol- 
 land, Lord Richardson, O. J., of K. B., and Baron Denham; 
 Wm. Jones, 296, 82 Reprint, 157.) 
 
 The Judges agreed, that it hath been adjudged, that if a man do 
 inclose, where he may by law, that he is bound to leave a good way, 
 and also to keep it in continual repair at his own charge, and the coun- 
 trey out not to be contributory thereto. 
 
 :^Ir. Attorney said, it was a Norfolke case, that in an action of tres- 
 pass for debrusing his close, the defendant pleaded, that time out 
 of mind, there was a common footpath, through that close, etc. The 
 plaintiff replyed, that the defendant went into other places out of the 
 
 it must stand upon his own. Lord Bacon was great even as a lawyer; but it 
 is permissible to much smaller men, relying upon the principle and on the au- 
 thority of others, the equals and even the superior of Lord Bacon as lawyers, 
 to question the soundness of his dictum. There are many conceivable states 
 of things in which it might possibly be true, but if Lord Bacon meant to lay 
 down the broad proposition that a man may save his life by killing, if neces- 
 sary, an innocent and uuofEending neighbour, it certainly is not law at the 
 present day. * * * 
 
 "Xow, except for the purpose of testing how far the conservation of a man's 
 own life is in all cases and under all circumstances, an absolute, unqualified, 
 and paramount duty, we exclude from our consideration all incidents of war. 
 We are dealing with a case of private homicide, not one imposed upon men in 
 the service of their Sovereign and in the defence of their country. Now it is 
 admitted that the deliberate killing of this unoffending and unresisting boy 
 was clearly murder, unless the killing can be justified by some well-recognised 
 excuse adinitted by the law. It is further admitted that there was in this 
 case no such excuse, unless the killing was justified by what has been called 
 'necessity.' But the temptation to the act which existed here was not what the 
 law had ever called a necessity. Nor is this to be regretted. Though law and 
 morality are not the same, and many things may be immoral which are not 
 necessarily illegal, yet the absolute divorce of law from morality would be of 
 fatal consequence; and such divorce would follow if the temptation to murder 
 in this case were to lie held by the law an absolute defence of it. It is not so. 
 To preserve one's life is generally speaking a duty, but it may be the plainest 
 and highest duty to sacrifice it. * * * It is not needful to point out the 
 awful danger of admitting the principle which has been contended for. Who 
 is to be the judge of this sort of necessity? By what measure is the comjiara- 
 (ive value of lives to be measured? Is it to be strength, or intellect, or what? 
 It is plain that the principle leaves to him who is to profit by it to determine 
 the necessity which will justify him in deliberately taldng another's life to 
 save his own. ♦ • * 
 
 "It is therefore our duty to declare that the prisoners' act in this case was 
 wilful murder, that the facts as stated in the verdict are no legal justification 
 of the homicide; and to say that in our unaiiimuus opinion the prisoners are 
 on this special verdict guilty of murder."
 
 Ch. 1) TRESPASSES 179 
 
 way (which was a kind of new assignment) ; the defendant rejoyned, 
 that the footpath was adeo lutosa et funderosa, in default of the 
 plaintiff, who ought to amend it, that he could not pass along that, 
 and therefore he went as near the path as he could, in good and passa- 
 ble way, and this was resolved a good plea and justification ; out of 
 which Mr. Attorney inferred, that in case where a man incloseth, and 
 doth not make a good way, it is lawful for passengers to make gaps 
 in his hedges, to avoid the ill way, so that they do not ride further in- 
 to his inclosed grounds then is needful for avoiding the bad way/^ 
 
 13 ""WTiere a highway passes through open and uninclosed land, the public 
 have a right to deviate onto the adjoining land (even though cultivated) when 
 the usual track is foundrous and impassable ; but it is uncertain whether this 
 right exists as a matter of law independently of evidence of user, or not. It 
 is, however, submitted that unless some evidence of the exercise of a prescrip- 
 tive right to deviate can be adduced, the existence of such a right will not 
 now be assumed as a matter of law. There is authority for saying that, if an 
 owner of land adjoining a highway actively obstructs it, or being under obliga- 
 tion to repair it, fails to do so, the public may then deviate onto his adjoining 
 land, even through his fences." Halsbury's Laws of England, vol. 16, p. 50, 
 citing and commenting on the English authorities. 
 
 For the American doctrine, see "iStreers and Highways," 37 Cyc. 206, and 
 cases cited in notes 90 and 91; Cent. Dig., "Highways," § 291; and Key No., 
 Dee. Dig., "Highways," § 82. 
 
 Compare Campbell v. Race (1851) 7 Cush. (Mass.) 408, 54 Am. Dec. 728 : D. 
 was travelling with his team on a highway running east and west, which led 
 to a highway running north and south. The latter led to another highway, 
 on which the defendant had occasion to go and which could be reached, by 
 highway, only by passing over the two highways first named. At the time of 
 the alleged trespass, they were both impassable with snow-drifts. Because of 
 this, D. turned out of the first highway, at a place where it was impassable, 
 and passed over the adjoining fields of the plaintiff, doing no unnecessary dam- 
 age, and turned into the second highway, as soon as he had passed the obstruc- 
 tions which rendered both impassable. And he contended, that the highways 
 being thus rendered impassable, he had a way of necessity over the plaintiff's 
 adjoining fields. The trial judge ruled, that these facts constituted no defense. 
 But said Bigelow, J., giving the opinion of the reviewing court : "It is not 
 controverted, by the counsel for the plaintiff, that the rule of law is well set- 
 tled in England, that where a highway becomes obstructed and impassable 
 from temporary causes, a traveller has a right to go extra viam upon adjoin- 
 ing lands, without being guilty of trespass. The rale is so laid down in the 
 elementary books, and it is fully supported by the adjudged cases. Such being 
 the admitted rule of law, as settled by English authorities, it was urged in be- 
 half of the plaintiff, that it had never been recognised or sustained by American 
 authors or cases. But we do not find such to be the fact. * * * The rule 
 itself is founded on the established principles of the common law, and is i^ 
 accordance with the fixed and uniform usage of the community. The plaintiff's 
 counsel is under a misapprehension in supposing that the authoiities in sujiport 
 of the rule rest upon any peculiar or exceptional principle of law. They are 
 based upon the familiar and well settled doctrine, that to justify or excuse an 
 alleged trespass, inevitable necessity or accident must be shown. If a trav- 
 eller in a highway, by unexpected and unforeseen occurrences, such as a sud- 
 den flood, heavy drifts of snow, or the falling of a tree, is shut out from the 
 travelled paths, so that he cannot reach his destination, without passing upon 
 adjacent lands, he is certainly under a necessity to do so. It is essential to 
 the act to be done, without which it cannot bo accomplished. ♦ * * to 
 hold a party guilty of a wrongful invasion of another's rights, for passing over 
 land adjacent to the highway, under the pressure of such a necessity, would 
 be pushing individual rights of property to an unreasonable extent, and giving 
 them a protection beyond that which finds a sanction in the rules of law. 
 Such a temporary and unavoidable use of private property, must be regarded
 
 ISO TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 BULLARD V. HARRISON. 
 (Court of King's Bench, 1S15. 4 M. & S. 3S7, 105 Reprint, 877, IG R. R. 403.) 
 
 Trespass for breaking and entering two closes of the plaintiff. The 
 defendant in two special pleas, claimed a private right of way, and al- 
 leged that this way had become impassable ; that the defendant there- 
 upon gave notice to the plaintiff to repair the same, which he refused 
 to do; and that the defendant having occasion to use the said way, 
 did of necessity turn out of it, and pass over the adjoining closes, 
 keeping as near as he possibly could to the private way. The plain- 
 tiff demurred. 
 
 Lord Ellenborough, C. J. * * '■' ^'* The question intended to 
 be agitated upon this record is, whether in the case of a private way 
 the grantee may break out, and go extra viam, if it be impassable, as 
 in the case of a public way. As to that, I consider Taylor v. White- 
 head, Doug. 749, has settled the distinction, that the right of .going on 
 adjoining lands extends not to private as well as public ways. And 
 there may be many reasons in the case of highways, why the public 
 should have an outlet, because it is for the public good that a passage 
 should be afforded to the subjects at all times. But the same neces- 
 sity does not exist in the case of a private right. Whoever will look 
 to Serjt. Williams's note to the case of Pomfret v. Rycroft, 1 Saund. 
 323, note 6, will find both the law upon the subject, and the manner of 
 pleading a way of necessity, very accurately detailed. It is a thing 
 founded in grant, and the granter of a private way does not grant a 
 liberty to break out of it at random over the whole surface of his 
 close. It is established law, that the grantee of a private way can- 
 not break out of it, and I hope that we shall not be carried to Nisi 
 Prius upon such an unlimited right as claimed by these pleas. It seems 
 to me that both pleas are ill.^^ 
 
 Per Curiam. Judgment for the plaintiff. 
 
 as one of those incidental burdens to which all property in a civilized com- 
 nuinity is subject. In fact, the rule is sometimes justiiied upon the j^round of 
 public convenience and necessity. Highways being established for public serv- 
 ice, and for the use and benefit of the whole coninuinity, a due regard for the 
 welfare of all requires, that when temporarily obstructed, the right of travel 
 should not be interrupted." 
 
 14 The statement of facts is abridged, and a part of the opinion is omitted. 
 
 15 Coini)!ire Arnold v. Ilolbrook (1873) L. R. 8 Q. B. 9G : P. was an occupier 
 of an arai)le field across which was a public fo()ti)ath, but the plaintiff had the 
 right to plow up the footpath when pUiughing the field. After a ploughing, the 
 public way would become muddy, and those using it would walk out on either 
 side of it, for a better way. To prevent this P. placed hurdles on the sides of 
 tlie way. D. threw down three of these hurdles. P. sued for a trespass. The 
 trial .iudge gave judgment in favor of the dcfi-ndant, on the ground that it was 
 the duty of the plaintiff, after he had ploughed up the path, to set out again a 
 proper path for the use of the public, instead of leaving them to tread out a 
 path the best way they could; and that the path so trodden out having be- 
 come in a muddy and foundtMous state, the public were justified in deviating 
 on tlu? i)laiiitirts land to find a firmer and better path. Held, that this judg- 
 ment must be reversed and judgment entered for the plaintiff.
 
 Ch. 1) TRESPASSES 181 
 
 PROCTOR V. ADAMS. 
 
 (Supreme Judicial Court of Massachusetts, 1873. 113 Mass. 376, 
 
 18 Am. Rep. 500.) 
 
 Tort, in the nature of a trespass quare clausum, for entering the 
 plaintiff's close and carrying away a boat. At the trial it appeared 
 that the premises described in the declaration were a sandy beach on 
 the sea side of Plum Island, and that the defendants went there, be- 
 tween high and low water mark, January 19, 1873, and against the ob- 
 jection and remonstrances of the plaintiff's tenant, carried away a 
 boat worth $50, which they found lying there. The defendants of- 
 fered evidence that upon the night of January 18, 1873, there was a 
 severe storm ; that the next morning they went upon the beach to 
 see if any vessels or property had been cast ashore ; that they found 
 a boat lying upon the beach twenty-five feet below high water mark, 
 which had apparently been driven ashore in the storm ; that in order 
 to save it, they endeavored to haul it upon the beach, and succeeded 
 in putting it near the line of high water mark ; that not thinking it 
 secure, they, the next day, pushed it into the water, and carried it 
 around into Plum Island River, on the inside of the Island ; that they 
 at once advertised it in the Ipswich and Newburyport papers ; that 
 they shortly afterwards delivered it to one Jackman, who claimed it 
 as agent for the underwriters of the wrecked steamer Sir Francis, 
 and who paid them twelve dollars for their services and expenses. 
 
 The court ruled that these facts, if proved, would not constitute a 
 defence, and proposed to instruct the jury as follows: 
 
 "If the land upon which the boat was found and taken possession of by the 
 defendants was in possession or occupation of the plaintiff, the defendants' en- 
 try u})on it without permission of the plaintiff was an unlawful entry. 
 
 "If the defendants, having made an unlawful entry upon the plaintiff's land, 
 there took and therefrom can-ied a boat, for any purpose affecting the boat 
 as derelict or wrecked property, they are liable to the plaintitf for their unlaw- 
 ful entry upon the laud in nominal damage, and also, the boat not being their 
 property, but a wreck, in damages for the unlawful taking and carrying away 
 of the boat, to the value of the boat." 
 
 The defendants requested the court to rule that, upon the case pre- 
 sented, the law would imply a license, but the court declined so to 
 rule. The defendants then declined to go to the jury, and the court 
 instructed the jury to return a verdict for the plaintiff for $51, and 
 reported the case to this court. 
 
 Gray, C. J. The boat, having been cast ashore by the sea, was a 
 wreck, in the strictest legal sense. 3 Bl. Com. 106. Chase v. Corcor- 
 an, 106 Mass. 286, 288. Neither the finders of the boat, nor the own- 
 er of the beach, nor the Commonwealth, had any title to the boat as 
 against its former owner. Body of Liberties, art. 90. Anc. Chart. 211. 
 2 Mass. Col. Rec. 143. St. 1814, c. 170. Rev. Sts. c. 57. Gen. Sts. 
 c. 81. 3 Dane Ab. 134, 136, 138, 144. 2 Kent Com. 322, 359. But the
 
 182 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 owner of the land on which the boat was cast was under no duty to 
 save it for him. Sutton v. Buck, 2 Taunt. 302, 312. 
 
 If the boat, being upon land between high and low water mark, own- 
 ed or occupied by the plaintiff, was taken by the defendants, claiming 
 it as their own, when it was not, the plaintiff' had a sufficient right of 
 possession to maintain an action against them. Barker v. Bates, 13 
 Pick. 255, 23 Am. Dec. 678. Dunwick v. Sterry, 1 B. & Ad. 831. But if, 
 as the evidence offered by them tended to show, the boat was in danger 
 of being carried off by the sea, and they, before the plaintiff had tak- 
 en possession of it, removed it for the purpose of saving it and re- 
 storing it to its lawful owner, they were not trespassers. In such a 
 case, though they had no permission from the plaintiff or any other 
 person, they had an implied license by law to enter on the beach to 
 save the property. It is a very ancient rule of common law, that an 
 entry upon land to save goods which are in jeopardy of being lost 
 or destroyed by water, fire, or any like danger, is not a trespass. 21 
 H. VII. 27, 28, pi. 5. Bro. Ab.' Trespass, 213. Vin. Ab. Trespass 
 (H. a. 4), pi. 24 ad fin. ; (K. a.) pi. 3. In Dunwick v. Sterry, 1 B. & 
 Ad. 831, a case very like this, Mr. Justice Parke (afterwards Baron 
 Parke and Lord Wensleydale) left it to the jury to say whether the 
 defendant took the property for the benefit of the owners, or under 
 a claim of his own and to put the plaintiffs to proof of their title. In 
 Barker v. Bates, 13 Pick. 255, 23 Am. Dec. 678, upon which the plain- 
 tiff mainly relies, the only right claimed by the defendants was as 
 finders of the property and for their own benefit. 
 
 The defendants are therefore entitled to a new trial. As the answer 
 was not objected to, and the declaration may be amended in the court 
 below, we have not considered the form of the pleadings. 
 
 New trial ordered. 
 
 NEWKIRK V. SABLER. 
 
 (Supreme Court of New York, 1S50. 9 Barb. 652.) 
 
 This was an action for an assault and battery. It appeared that 
 the plaintiff" had sent his servant, with a team and wagon, across the 
 farm of the defendant, upon which he entered by taking down the 
 bars, after the defendant had forbidden the plaintiff's crossing his 
 lands. On the return of the team to the place where it had entered, 
 the bars were found fastened by boards nailed over them. The serv- 
 ant, after an ineffectual attempt to get through, left the team and 
 wagon on the defendant's land, and went and informed the plaintiff', 
 who came and commenced tearing down the fence for the purpose 
 of taking away his property. The defendant forbade the plaintift''s 
 taking down the fence, but the latter persisting in his attempt, the de- 
 fendant struck the plaintiff, or struck at him, with a stick. A fight
 
 Ch. 1) TRESPASSES 183 
 
 ensued between the parties, in which the plaintiff received the in- 
 juries complained of; and both parties were more or less injured. 
 The result was, that the plaintiff got the fence down, and brought 
 away his team. 
 
 The judge charged the jury, among other things, that although the 
 team and wagon of the plaintiff' were wrongfully on the land of the 
 defendant, it was the duty and right of the plaintiff to get liiem off, 
 with the least possible injury to the premises; and that the defend- 
 ant was not justified in using personal violence to prevent him from 
 removing his team from the premises. That the real question for 
 them to determine was, whether the plaintiff was, at the time of the 
 assault, engaged in wanton and unnecessary destruction of the de- 
 fendant's fences ; or whether he was endeavoring in the most direct 
 way, to remove his team from the premises; that if the jury should 
 be satisfied from the evidence, that the force employed by the defend- 
 ant was exerted for the purpose of preventing the plaintiff from re- 
 moving his team from the premises, and not to preserve his fence 
 from unnecessary injury, then they ought to find for the plaintiff. 
 But on the contrary, if they should find that the injury the plaintiff 
 was doing to the fence was unnecessary, and that the defendant com- 
 mitted the acts complained of for the purpose of preventing such un- 
 necessary injury to the fenCe, then the verdict should be for the de- 
 fendant. The counsel for the defendant excepted to so much of the 
 charge, as charged that it was the duty of the plaintiff, and that he 
 had a right, though his horses and wagons were upon the lands of 
 the defendant, to remove them therefrom; and that the plaintiff was 
 justifiable in breaking down the fence to remove them, if it was neces- 
 sary to do so for that purpose; and that the defendant would not 
 be justifiable in committing a battery to prevent him from so doing; 
 and to so much of the charge as submitted to the jury the question 
 which in the opinion of the judge, was the real question for them 
 to try. 
 
 The jury found a verdict for $50 in favor of the plaintiff. From 
 the judgment entered on this verdict the defendant appealed. 
 
 Parker, J. I think that the learned justice erred in holding that 
 the plaintiff had a right to enter upon the lands of the defendant for 
 the purpose of regaining possession of his property. 
 
 The right to land is exclusive; and every entry thereon, without 
 the owner's leave, or the licence or authority of law, is a trespass. 
 (3 Bl. Com. 209. Percival v. Hickey, 18 John. 285, 9 Am. Dec. 210.) 
 There is a variety of cases where an authority to enter is given by 
 law ; as to execute legal process ; to distrain for rent ; to a landlord 
 or reversioner, to see that his tenant does no w^aste, and keeps the 
 premises in repair according to his covenant or promise; to a cred- 
 itor, to demand money payable there ; or to a person entering an 
 inn for the purpose of getting refreshment there. (3 Bl. Com. 212.
 
 184 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 1 Cowen's Tr. 411.) In some cases, a license will be implied; as if a 
 man make a lease, reserving' the trees, he has a right to enter and 
 show them to a purchaser. * * * 
 
 In some cases entry will be excused by necessity. As if a public 
 highway is impassable, a traveler may go over the adjoining land. 
 (Absor V. French, 2 Show. 28. Asser v. Finch, 2 Lev. 234. Young 
 
 v. , 1 Ld. Raym. 725.) But this would not extend to a private 
 
 way ; for it is the owner's fault if he do not keep it in repair. (Taylor 
 v. Whitehead, Doug. 747. Promfret v. Ricroft, 1 Saund. 321.) So 
 if a man who is assaulted, and in danger of his life, run through 
 the close of another, trespass will not lie, because it is necessary for 
 the preservation of his life. (Year-Book, Z7 H. 6, Z7 , pi. 26.) If my 
 tree be blown down and fall on the land of my neighbor, I may go 
 on and take it away. (Bro. Tres. pi. 213.) And the same rule pre- 
 vails where fruit falls on the land of another. (Aliller v. Fawdry, 
 Latch, 120.) But if the owner of a tree cut the loppings so that they 
 fall on another's land, he can not be excused for entering to take 
 them away on the ground of necessity, because he might have pre- 
 vented it. (Bac. Abr. Trespass F.) 
 
 Some times the right of action depends on the question which is 
 the first wrongdoer. If J. S. have driven the beast of J. N. into the 
 close of J. S., or if it have been driven therein by a stranger, with 
 the consent of J. S., and J. N. go therein and take it away, trespass 
 will not lie, because J. S. was himself the first wrongdoer. (3 Roll. 
 Abr. 566, pi. 9. Chapman v. Thumbethorp, Cro. Eliz. 329). Tested 
 by that rule, the plaintiff in this suit certainly has no right of action; 
 for he w^as the first wrongdoer. But it is well settled that where there 
 is neither an express nor an implied license, nor any such legal ex- 
 cuse as is above stated, a man has no right to enter upon the land of 
 another for the purpose of taking away a chattel being there, which 
 belongs to the former. The mere fact that the plaintiff owns the chat- 
 tel, gives him no authority to go upon the land of another to get it. 
 In Heermance v. Vernoy, 6 John. 5, where A. had entered upon the 
 land of B. without his permission to take a chattel belonging to A. ; 
 it was held to be a trespass. So in Blake v. Jerome, 14 John. 406, 
 a mare and a colt were taken out of the plaintiff's field, by a person 
 who acted under the orders and direction of the defendant, after they 
 had been demanded by the defendant and refused to be delivered 
 to him ; and after he had been expressly forbidden to take them, and 
 the defendant was held to be guilty of a trespass. 
 
 In this case, the plaintiff's horses and wagon were on lands of the 
 defendant, where they had been left by the servant of the plaintiff. 
 They were not there by the defendant's permission. On the contrary 
 the plaintiff had been guilty of a trespass in sending his team across 
 the lands of the defendant, after he had been forbidden to do so. And 
 I think the defendant had the right to detain them before they left 
 the premises, and to distrain them damage feasant. 2 Rev. St. pt. 3,
 
 Ch. 1) • TRESPASSES 185 
 
 c. 8, p. 427. But it is not necessary to decide, whether the defendant 
 detained the property rightfully or wrongfully. 
 
 The plaintiff attempted to enter upon the lands of the defendant 
 and against his will, for the purpose of taking away his property. 
 This he had no right to do, even though his property were unlawfully 
 detained there. If the plaintiff could not regain the possession of 
 his property peaceably, he should have resorted to his legal remedy, 
 by which he could, after demand and refusal, have recovered either 
 the property itself or its value. He had no right to redress himself 
 by force. (1 Bl. Com. 4.) In pursuing his object, the plaintiff tore 
 down the defendant's fence after he had been forbidden to enter, 
 and after he had been ordered by the defendant to desist. The de- 
 fendant had a right to protect himself in the enjoyment of his posses- 
 sion and his property, by defending them against such aggression. 
 Weaver v. Bush, 8 T. R. 78, Gregory v. Hill, Id., 299 ; Greene v. Jones, 
 1 Saund. 296, note 1. Green v. Goddard, 1 Salk. 641. Turner v. 
 Meymott, 1 Bing. 158. 3 Bl. Com. 5. 
 
 The defendant can not be held liable for the injuries inflicted upon 
 the plaintiff, on the occasion in question, unless he used more force 
 than was necessary for the defense of his possession; and it seems 
 that he did not use enough to prevent the plaintiff's effecting his for- 
 cible entry and taking away the property. But that was a question 
 proper to be submitted to the jury. 
 
 The judgment of the circuit court must be reversed, and a new trial 
 awarded; costs to abide the event.^^ 
 
 KIRK, Executor, v. GREGORY et ux. 
 
 (Exchequer Division, 1876. 1 Ex, Div. 55.) 
 
 The second count alleged a trespass by the female defendant in tak- 
 ing away certain jewelry claimed by the plaintiff as executor. Under 
 a plea of not guilty the following facts were proved : The plaintiff's 
 testator died in his own house, while in a state of delirium tremens. 
 His attendants and others were feasting and drinking in the house. 
 The female defendant, who was the wife of the testator's brother, 
 immediately after the death, took out of an unlocked drawer in the 
 room where the testator died some jewelry belonging to the testator, 
 and (as she said) placed it with a watch of the testator's in a box, and 
 put the box in a cupboard in another room for safety. The box and 
 the cupboard were unlocked. The plaintiff on being informed found 
 the watch, but the jewelry was missing and had never been found. 
 
 The judge left to the jury the question, whether the female defend- 
 ant had put the things away bona fide for the purpose of preserving 
 
 10 Part of the opinion Is omitted.
 
 ISO TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 them. The jury answered in the affirmative, and the judge thereupon 
 directed a verdict for the defendants, giving the plaintiff leave to move 
 to enter the verdict for him for Is. damages on the count of trespass; 
 the defendants to have liberty to add any plea of justification which 
 the facts would support.^' 
 
 Anstie, for the defendants. To constitute a trespass, there must be 
 a wrongful taking; here there was none such. 
 
 Cave, Q. C, for the plaintiff. Removing the goods from the drawer 
 was an asportation, and it would be no answer to say that the things 
 would otherwise have been lost, even if the defendants had saved 
 them instead of losing them as they did. In Bac. Abr. Trespass, E. 
 (7th Ed.) by Gwillim & Dodd, p. 671, it is said: "If J. S. take the 
 goods of J. N. to prevent them from being stolen or spoiled, an ac- 
 tion of trespass lies ; because the loss to J. N. would not, if either of 
 these things had happened, have been irremediable. But if the goods 
 of J. N. are in danger of being destroyed by fire, and J. S., in or- 
 der to prevent this, take them, this action does not lie ; because the 
 loss if this had happened would have been irremediable." Eor this 
 Bro. Abr. Tresp. pi. 213, is cited. See, also, Isaac v. Clark, 2 Bulst. 
 306, 312, 1 Roll. Rep. 1216, 130, and Reg. v. Thurborn, 1 Den. Cr. 
 C. 387. 
 
 Bramwell, B. * * * There has clearly been an asportation 
 which the defendants have to justify. Mr. Anstie, on their behalf, 
 had leave to add any plea he thought fit, provided it was a good plea. 
 Suppose there was a plea to the effect that the owner of the goods 
 was recently dead, the executor was unknown, no one was in charge 
 of the house, that the defendants were near relations to the deceased 
 who had visited him, and that the trespass in question was a necessary 
 removal of the goods for their preservation and protection, and a 
 reasonable step. I am inclined to think this would be a good pica. The 
 law cannot be so unreasonable as to lay down that a person cannot 
 interfere for the protection of such things as rings and jewelry in 
 the house of a man just dead. But the v/hole of the supposed plea 
 was not proved. The jury found that the defendant acted bona fide, 
 that is to say, that the articles were removed for their preservation ; 
 but it was not proved that the interference was reasonably necessary, 
 that is to say, that the things were in a position to require the inter- 
 ference, and that the interference was reasonably carried out. Mr. 
 Anstie ingeniously argued that the responsibility of a person under 
 circumstances of this kind is really a question of negligence and not 
 of trespass. I do not think it is. But even if it were, it was not 
 shewn that the goods were in jeopardy. The supposed plea has not 
 been proved. As the point now raised by the plaintiff never went to 
 
 17 The statement is abridged. There were concurring opinions from Cleasby 
 and .\)iiphlett. RB. Only so much of Bramwell, B.'s, opinion is given as relates 
 to tlie one point.
 
 Ch. 1) TRESPASSES 187 
 
 the jury, the defendants would be entitled to a new trial; but as 
 they do not ask for it, the verdict must be entered for the plaintiff for 
 Is. damages.^* 
 
 PLOOF V. PUTNAAI. 
 
 (Supreme Court of Vermont, 1908. 81 Vt. 471, 71 Atl. 188, 20 L. R. A. [N. S.] 
 152, 130 Am. St. Rep. 1072, 15 Ann. Cas. 1151.) 
 
 The case was heard on demurrer to the declaration. The declara- 
 tion was held sufficient and the demurrer was overruled, to which the 
 defendant excepted. 
 
 MuNSON, J. It is alleged as the ground of recovery that on the 
 13th day of November, 1904, the defendant was the owner of a cer- 
 tain island in Lake Champlain, and of a certain dock attached there- 
 to, which island and dock were then in charge of the defendant's 
 servant ; that the plaintiff was then possessed of and sailing upon said 
 lake a certain loaded sloop, on which were the plaintiff and his wife 
 and two minor children ; that there then arose a sudden and violent 
 tempest, whereby the sloop and the property and persons therein were 
 placed in great danger of destruction; that, to save these from de- 
 struction or injury, the plaintiff was compelled to, and did, moor the 
 sloop to defendant's dock; that the defendant, by his servant, un- 
 moored the sloop, whereupon it was driven upon the shore by the 
 tempest, without the plaintiff's fault; and that the sloop and its con- 
 tents were thereby destroyed, and the plaintiff and his wife and chil- 
 dren cast into the lake and upon the shore, receiving injuries. 
 
 This claim is set forth in two counts — one in trespass, charging 
 that the defendant by his servant with force and arms willfully and 
 designedly unmoored the sloop ; the other in case, alleging that it 
 was the duty of the defendant by his servant to permit the plaintiff 
 to moor his sloop to the dock, and to permit it to remain so moored 
 during the continuance of the tempest, but that the defendant by his 
 
 18 Compare the remarks of Bigelow, J., in Campbell v. Race (1851) 7 Cusb. 
 (Mass.) 408, 41.3 (54 Am. Dec. 728), the facts of which are given ante: "The 
 limitations and restrictions of the right to go upon adjacent lands in case of 
 ob.structious in the highway can be readily inferred. Having its origin in 
 necessity, it must be limited by that necessity; cessante ratione, cessat ipssa 
 lex. Such a right is not to be exercised from convenience merely, nor when, 
 by the exercise of due care, after notice of obstructions, other ways may be 
 selected and the obstructions avoided. But it is to be couhned to those cases of 
 inevitable necessity, or unavoidable accident, arising from sudden and recent 
 causes which have occasioned temporary and impassable obstructions in the 
 highway. What shall constitute such inevitable necessity or unavoidable ac- 
 cident must depend upon the various circumstances attending each particular 
 case. The nature of the obstruction in the road, the length of time during 
 which it has existed, the vicinity or distance of other public ways, the exi- 
 gencies of the traveller, are some of the many considerations which would en- 
 ter into the inquiry and upon which it is the exclusive province of the jury to 
 pa.'-s, in order to deteniiine whether any necessity really existed which would 
 justify or excuse the traveller."
 
 1S8 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 servant, in disregard of this duty, negligently, carelessly, and wrong- 
 fully unmoored the sloop. Both counts are demurred to generally. 
 
 There are many cases in the books which hold that necessity, and 
 an inability to control movements inaugurated in the proper exercise 
 of a strict right, will justify entries upon land and interferences with 
 personal property that would otherwise have been trespasses. A 
 reference to a few of these will be sufficient to illustrate the doctrine. 
 In ]^Iiller v. Fandrye, Poph. 161, trespass was brought for chasing 
 sheep, and the defendant pleaded that the sheep were trespassing up- 
 on his land, and that he with a little dog chased them out, and that, 
 as soon as the sheep were off his land, he called in the dog. It was 
 argued that, although the defendant might lawfully drive the sheep 
 from his own ground with a dog, he had no right to pursue them into 
 the next ground ; but the court considered that the defendant might 
 drive the sheep from his land with a dog, and that the nature of a 
 dog is such that he cannot be withdrawn in an instant, and that, as 
 the defendant had done his best to recall the dog, trespass would not 
 lie. In trespass of cattle taken in A., defendant pleaded that he was 
 seised of C. and found the cattle there damage feasant, and chased 
 them towards the pound, and they escaped from him and went in- 
 to A., and he presently retook them; and this was held a good plea. 
 21 Edw. IV, 64; Vin. Ab. Trespass, H. a, 4, pi. 19. If one have a 
 way over the land of another for his beasts to pass, and the beasts, 
 being properly driven, feed the grass by morsels in passing, or run 
 out of the way and are promptly pursued and brought back, trespass 
 will not lie. See Vin. Ab. Trespass, K. a, pi. 1. A traveler on a high- 
 way who finds it obstructed from a sudden and temporary cause may 
 pass upon the adjoining land without becoming a trespasser because 
 of the necessity. Henn's Case, W. Jones, 296; Campbell v. Race, 7 
 Cush. (Mass.) 408, 54 Am. Dec. 728 ; Hyde v. Jamaica, 27 Vt. 443 
 (459); Morey v. Fitzgerald, 56 Vt. 487, 48 Am. Rep. 811. An entry 
 upon land to save goods which are in danger of being lost or destroy- 
 ed by water or fire is not a trespass. 21 Hen. VII, 27; Vin. Ab. 
 Trespass, H. a, 4, pi. 24, K. a, pi. 3. * * * 
 
 This doctrine of necessity applies with special force to the preserva- 
 tion of human life. One assaulted and in peril of his life may run 
 through the close of another to escape from his assailant. Z7 Hen. 
 VII, pi. 26. One may sacrifice the personal property of another to 
 save his life or the lives of his fellows. In Mouse's Case, 12 Co. 63, 
 the defendant was sued for taking and carrying away the plaintiff's 
 casket and its contents. It appeared that the ferryman of Gravesend 
 took 47 passengers into his barge to pass to London, among whom 
 were the plaintiff and defendant ; and the barge being upon the water 
 a great tempest happened, and a strong wind, so that the barge and 
 all the passengers were in danger of being lost if certain ponderous 
 things were not cast out, and the defendant thereupon cast out the 
 plaintiff's casket. It was resolved that in case of necessity, to save
 
 Ch. 1) TRESPASSES 189 
 
 the lives of the passengers, it was lawful for the defendant, being a 
 passenger, to cast the plaintiff's casket out of the barge; that, if the 
 ferryman surcharge the barge, the owner shall have his remedy upon 
 the surcharge against the ferryman, but that if there be no surcharge, 
 and the danger accrue only by the act of God, as by tempest, without 
 fault of the ferryman, every one ought to bear his loss to safeguard 
 the life of a man. 
 
 It is clear that an entry upon the land of another may be justified 
 by necessity, and that the declaration before us discloses a necessity 
 for mooring the sloop. But the defendant questions the sufficiency 
 of the counts because they do not negative the existence of natural 
 objects to which the plaintiff could have moored with equal safety. 
 The allegations are, in substance, that the stress of a sudden and vio- 
 lent tempest compelled the plaintiff to moor to defendant's dock to 
 save his sloop and the people in it. The averment of necessity is com^ 
 plete, for it covers not only the necessity of mooring, but the neces- 
 sity of mooring to the dock; and the details of the situation which 
 created this necessity, whatever the legal requirements regarding 
 them, are matters of proof, and need not be alleged. It is certain that 
 the rule suggested cannot be held applicable irrespective of circum- 
 stance, and the question must be left for adjudication upon proceed- 
 ings had with reference to the evidence or the charge. 
 
 The defendant insists that the counts are defective, in that they 
 fail to show that the servant in casting off the rope was acting within 
 the scope of his employment. It is said that the allegation that the 
 island and dock were in charge of the servant does not imply authority 
 to do an unlawful act, and that the allegations as a whole fairly indi- 
 cate that the servant unmoored the sloop for a wrongful purpose of 
 his own, and not by virtue of any general authority or special instruc- 
 tion received from the defendant. But we think the counts are suf- 
 ficient in this respect. The allegation is that the defendant did this 
 by his servant. The words "willfully, and designedly" in one count, 
 and "negligently, carelessly, and wrongfully" in the other, are not 
 applied to the servant, but to the defendant acting through the serv- 
 ant. The necessary implication is that the servant was acting within 
 the scope of his employment. 13 Ency. P. & Pr. 922 ; Voegeli v. Pick- 
 el Marble, etc., Co., 49 Mo. App. 643; Wabash Ry. Co. v. Savage, 110 
 Ind. 156, 9 N. E. 85. See, also, Palmer v. St. Albans, 60 Vt. 427, 13 
 Atl. 569, 6 Am. St. Rep. 125. 
 
 Judgment affirmed and cause remanded.' 
 
 19 Part of the opinion is omitted.
 
 190 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 (C) Defense of the Person 
 
 The man who commits homicide by misadventure or in self-defence 
 deserves but needs a pardon. Bracton cannot conceal this from us, 
 and it is plain from multitudinous records of Henry III.'s reign. If 
 the justices have before them a man who, as a verdict declares, has 
 done a deed of this kind, they do not acquit him, nor can they pardon 
 him, they bid him hope for the king's mercy. In a precedent book 
 of Edward I.'s time a justice is supposed to address the following 
 speech to one whose plea of self-defence has been endorsed by the 
 verdict of a jury: "Thomas, these good folk testify upon their oath 
 to all that you have said. Therefore by way of judgment we say 
 that what you did was done in self-defence; but we cannot deliver 
 you from your imprisonment without the special command of our 
 lord the king; therefore we will report your condition to the king's 
 court and will procure for you his special grace." 
 
 2 Pollock and Maitland, Hist. Eng. Law (2d Ed.) 479.^° 
 
 ANON. 
 (Court of Common Bench, 13SS. Y. B. 12 Rich. II. Michaelmas Term, 10.) 
 
 A man and his wife brought a writ of trespass against a man for 
 a battery done to his wife and the defendant came by the cape in 
 custody, wherefore 
 
 Rikhill for the defendant said that the day and place on which they 
 suppose the battery to have been done to the wife, the husband and 
 the wife made an assault on the defendant, so that the injury that 
 the wife had suffered was due to her own assault, and we demand 
 judgment if we have done any wrong. 
 
 Bryncheley. Of his own wrong, without any such reason, ready. 
 And issue was joined.^^ 
 
 2.0 "The statute of Gloucester (127S) provided that in Crown Cases, the slay- 
 er in self-defence (tlioush forfeiting his goods) should receive a pardon by the 
 king's favor if he pleased. * * ♦ In civil actions of trespass, however, the 
 mitigation was longer in coming. In 12i>4 and in 1319 the defendant was 
 ulilii?e(l to respond; but in 1400 and ever since the plea is accepted as a com- 
 plete defence." John II. Wigraore, "Tortious Responsibility," 7 Harv. Law 
 Rev. 315; 3 Anglo-American Legal Essays, 474, 508. And see the following 
 note. 
 
 21 The translation is from Mr. George F. Deiser's edition, for the Ames 
 Foundation, p. 59. 
 
 Compare : 
 
 Y. B. 12 Ed. II., 381 (1319) : In trespass for a battery the defendant pleaded 
 not guilty. The jury found that the plaintiff was beaten, but this was because 
 of his own assault, since the defendant could not otherwise escape: so that 
 he brought this action out of malice ; and the defendant prayed the discretion
 
 Ch. 1) TRESPASSES 191 
 
 JONES V. TRESILIAN. 
 
 (Court of King's Bench, 1670. 1 Mod. 36, 86 Reprint. 713.) 
 
 An action of trespass of assault and battery. The defendant pleads, 
 son assault demesne. The plaintiff replies, that the defendant would 
 have forced his horse from him, whereby he did molliter insultum 
 facere upon the defendant in defence of his possession. To this the 
 defendant demurred. 
 
 MoRETON, Justice. Molliter insultum facere is a contradiction.!^ 
 Suppose you had said, that molliter you struck him down. 
 
 TwiSDEN, Justice. You cannot justify the beating of a man in de- 
 fence of your possession, but you may say that you did molliter manus 
 imponere, etc. 
 
 KeIvYNGK, Chief Justice. You ought to have replied, that you did 
 molliter manus imponere, quae est eadem transgressio. 
 
 The Court. Ouerens nil capiat per billam, unless better cause be 
 shown this term.^^ 
 
 of the justices. It was nevertheless adjudged that the plaintiff should recover 
 his damages according to the verdict, and the defendant go to prison. See 
 Ames. Cases on Torts (3d Ed.) 105. 
 
 Chapleyn of Greye's Inue (1400) Y. B. 2 Hen. IV., 8: In an action for a 
 battery the defendants justified that the wrong which the plaintiff had was 
 from his own assault. Markham. Although a man make an assault upon an- 
 other, if he upon whom the assault is made can escape with his life, it is not 
 lawful for him to beat the other, who made the assault, quod tota curia con- 
 cessit. Cockayn, C. B. But I am not bouud to wait until the other has given 
 a blow, for perhaps it will come too late afterwards, quod conceditur. Ames. 
 Cases on Torts (3d Ed.) 106. 
 
 22 On the seneral principle, see the remark of Pollock, C. B., in Ibbotson v. 
 Peat (1865) 3 H. & C. 644, 649, 140 R. R. 655. 65S: "'The defendant, by his 
 plea, says, 'You have done me some wrong and I have been trying to redress 
 that wrong by doing some wrong to you.' As a general proposition it may be 
 laid down, that cannot be done. If a person is attacked by force he may de- 
 fend himself by force; but in general a person cannot, because a wrong has 
 been done to him, commit some other wrong for the purpose of repairing the 
 injury; but he must endeavor to obtain redress in a lawful manner. As my 
 brother Bramwell suggests, if a person libels another the latter is not justi- 
 fied in horsewhipping him; and if a person horsewhips another the latter is 
 not justified in libeling him. On these grounds it appears to me that the plea 
 is bad, and that the plaintiff is entitled to judgment." 
 
 The standard form of the common-law plea of self-defence (the plea of son 
 assault demesne), with its modifications under the Rules of Hilary Term of 
 1834, was as follows: "And for a further plea [i. e., after a general issue] in 
 this behalf, the defendant says, that the plaintiff, just before the said time, 
 when, etc., to wit, on the day and year aforesaid, with force and arms, made 
 an assault upon him, the defendant, and would then have beaten and ill-treat- 
 ed him, the defendant, if he had not immediately defended himself against the 
 plaiutifl:, wherefore the defendant did then defend himself against the pl;ii)itifi\ 
 as he lawfully might, for the cause aforesaid ; and in so doing did necessarily 
 and unavoidably a little beat, wound, and ill-treat the plaintiff: doing no un- 
 necessary damage to the plaintiff on the occasion aforesaid. And so the de- 
 fendant saith, that if any hurt or damage then happened to the plaintiff, the 
 same was occasioned by the said assault so made by the plaintiff on him the 
 defendant, and in the necessary def(>nce of himself the doTcMKlant against the 
 plaintiff; which are the supposed trespasses in the introductory part of this
 
 192 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 BARFOOT V. REYNOLDS et al. 
 
 (Court of Kiug's Beuch, 1729. 2 Strauge, 953, 93 Reprint, 9G3.) 
 
 Trespass, assault and battery against Reynolds and Westwood. 
 Reynolds pleaded son assault : and Westwood pleaded that he was 
 a servant to Reynolds the other defendant, and that the plaintiff 
 having assaulted his master in his presence, he in defence of his mas- 
 ter struck the plaintiff. And on demurrer the plea was held ill, for 
 the assault on the master might be over, and the servant cannot strike 
 by way of revenge, but in order to prevent an injury; and the right 
 way of pleading is, that the plaintiff would have beat the master, if 
 the servant had not interposed, prout ei bene licuit. The plaintiff had 
 judgment. 
 
 YASKA V. SWENDRZYNSKI. 
 (Supreme Court of Wisconsin, 1907. 133 Wis. 475, 113 N. W. 959.23) 
 
 [This case is reported ante, page 131 ; see "Showing the Justifica- 
 tion."] 
 
 COCKCROFT V. SMITH. 
 
 (Court of King's Bench, 170.5. 2 Salk. 642, 91 Reprint, 541.) 
 
 In an action of mayhem brought by Cockcroft Attorney against 
 Smith, the defendant pleaded son assault demesne and issue being 
 joined thereupon, Holt, Chief Justice, directed a verdict for the de- 
 / fendant, the first assault being tilting the form upon which the de- 
 fendant sat, whereby he fell; the maim was that the defendant bit 
 off the plaintiff's finger. 
 
 But the question was, what assault was sufficient to maintain such 
 a plea in mayhem? Holt, C. J., said that Wadham Wyndham, J,, 
 
 plea mentioned, and whereof the plaintiff hath above complained. And this the 
 defendant is ready to verify." See Stephen on Pleading (Williston's Ed.) 190. 
 The historic form, down to the Rules of Hilary Term, was not substantially 
 different. See Stephen on Pleading (Tyler's Ed.) 180; 2 Chitty on Pleading 
 (3d Am. Ed.) 429. 
 
 Under the Common Law Procedure Act of 1852, schedule B, 45, the following 
 short allegation was permis.sible : "That the plaintiff first assaulted and beat 
 the defendant, who thereupon necessarily committed the alleged assault [or 
 trespass, or did what is complained of] in his own defence." 2 Chitty on 
 Pleading (16th Am. Ed.) 697. 
 
 -3 Accord: Lutlopp v. Heckmann (liXtl) 70 N. J. Law, 272, 57 Atl. 104(): 
 Action for assault and battery. I'lea of not guilty. Said Hendrickson, .L: 
 "The evidence for the plaintiff was not returned with the writ, but, taking 
 the evidence for the defendant, it plainly appeared prima facie that the a.s- 
 sault complained of was established. Upon this point there was no question 
 for the jury. The oidy defense suggested or that could be raised in avoidance 
 of liability was that of self-defense. But no plea setting up such a defense 
 had been filed, the defendant having gone to trial upon the general issue.
 
 Ch. 1) TRESPASSES 193 
 
 would not allow it if it was an unequal return ; but the practice had 
 been otherwise, and was fit to be settled : That for every assault he 
 did not think it reasonable that a man should be banged with a cudgel ; 
 that the meaning of the plea was that he struck in his own defence : 
 That if A. strike B. and B. strikes again, and they close immediately 
 and in the scuffle B. mayhems A. that is son assault, but if upon a 
 little blow given by A. to B., B. gives him a blow that mayhems him, 
 that is not son assault demesne. Powell, J., agreed ; for the reason 
 why son assault is a good plea in mayhem, is, because it might be 
 such an assault as endangered the defendant's life.^* 
 
 IRELAND V. ELLIOT. 
 
 (Supreme Court of Iowa, 1857. 5 Iowa, 478, 68 Am. Dec. 715.) 
 
 This action was brought to recover damages for an assault and 
 battery upon the plaintiff by the defendant. The jury rendered a 
 verdict in favor of the defendant, from which the plaintiff appeals. 
 The questions made in the case arise upon the instructions of the 
 court below, which will be found in the opinion of the court. 
 
 Woodward, j. * * * The plaintiff' requested the court to in- 
 struct the jury that: "No amount of words, will justify an assault, 
 or an assault and battery," which the caurt gave, with the following 
 qualification: "This is so in criminal cases, but if the jury find in this 
 action that Ireland, by abusive words and threatening conduct, brought 
 the battery on himself, it is a defence." The plaintiff further re- 
 quested the court to instruct the jury, that: "Words alone, do not 
 constitute such wrongful acts, as to justify an assault and battery," 
 which the court gave, but with this modification : "Unless the words 
 were such as to (and were so intended and designed), cause a prudent 
 man to lose his reason for the time, and if the battery was not more 
 excessive than the provocation. In such case, it is a defence in a civil 
 action for damages, provided the plaintiff was the wrongdoer." 
 
 The time permits but a brief attention to the question here present- 
 ed, and in truth, it requires but a word. Provoking and insulting 
 language, constitutes a defence to acts of violence, in a civil action, no 
 more than in a criminal prosecution. The farthest that the law has 
 gone, and the farthest it can go, whilst attempting to maintain a rule, 
 is to permit the high provocation of language, to be shown as a 
 palliation for the acts and results of anger; that is, in legal phrase, 
 
 2 4 The statement of facts is from 1 Ld. Raym. 177. The same case, Cockeroft 
 V. Smith, appears in (1704) 6 Mod. 2:J0, 87 Reprint, 981, with this statement: 
 "The defendant in a scuffle bit off the forefinger of an attorney's right hand." 
 The case appears again in 11 Mod. 43, 88 Reprint, 872 (170.")) Cockeroft v. 
 Smith, with this statement of the facts: "Cockeroft in a scuffle ran his finger 
 towards Smith's eyes, who bit off a joint from the plaintiff's finger." 
 
 Hepb.Torts — 13
 
 194 TORTS THROUGH ACTS OP ABSOLUTE LIABILITY (Part 1 
 
 to be shown in mitigation of damages. Thus far the law has gone 
 and no farther. Language which, in its nature, tends generally to 
 excite the angry passions of men, is admitted in evidence, as an ex- 
 tenuation, but never as a justification or defence, either in a crim- 
 inal, or civil cause. * * * 
 Judgment reversed, and cause remanded.^"* 
 
 TUBERVILLE v. SAVAGE. 
 
 V (Court of King's Bench, 1669. 1 Mod. 3, 86 Reprint, 6S4.) 
 
 [This case is reported ante, page 49; see "Assault."] 
 
 KEEP v. QUALLMAN. 
 
 (Supreme Court of Wisconsin, 1887. 68 Wis. 451, .32 N. W. 2.3.3.) 
 
 This action was brought to recover damages for an assault and 
 battery alleged to have been committed by the defendant upon the 
 person of the plaintiff. 
 
 The parties are neighbors, but not friends. On a certain Sunday 
 afternoon they met in a public highway. Several other persons were 
 present. The testimony tends to show that the defendant accosted 
 the plaintiff by asking him, "What is the reason you are slandering 
 me around all the time?" that immediately the plaintiff put his hand 
 in his pocket, and was about taking it out again when the defendent 
 struck him on the head with a cane twice, knocking him down. He 
 got up, and, as the defendant testifies, attacked the latter, whereupon 
 they fought with their fists until the plaintiff was vanquished and 
 retreated. The defendant also testifies that he had just then heard 
 that the plaintiff had told their neighbors to watch him; that pre- 
 viously he had been told that, at different times, the plaintiff had 
 threatened to inflict personal violence upon him, and that plaintiff 
 was in the habit of shooting people, and was a dangerous man ; and 
 when he put his hand in his pocket, the movement indicated to his 
 (the defendant's) mind an intention to draw a revolver. 
 
 The court excluded other testimony offered by the defendant to 
 show that the plaintiff was of a quarrelsome disposition and in the 
 habit of using dangerous weapons. The jury were instructed that 
 the defendant had shown no legal justification for the assault, and 
 hence the defendant was liable to respond in damages therefor, and 
 the case was submitted to the jury only for an assessment of dam- 
 ages. The damages were assessed at $175. A motion for a new trial 
 
 25 A part of the opinion, on other points, is omitted.
 
 Ch. 1) TRESPASSES 195 
 
 was denied, and judgment was entered for the plaintiff pursuant to the 
 verdict. The defendant appeals from the judgment. 
 
 Lyon, J. It was not unlawful for the defendant to address the 
 plaintiff as he did when they met on the highway, and if the plaintiff 
 by his former threats of personal violence (if he made any), and by 
 putting his hand in his pocket as testified to by the defendant (if 
 he did so), gave the defendant reason to believe that he was about 
 to draw a revolver or other weapon upon him, it was an assault, and 
 the defendant had the right to act upon appearances and at once 
 repel or prevent the supposed contemplated attack. See 1 Whart. 
 Crim. Law, §§ 603-606. We think the testimony sufficient to send 
 to the jury the question whether the acts of the plaintiff were suffi- 
 cient to give the defendant reason to believe that he was in imminent 
 danger of being attacked by the plaintiff when he knocked the latter 
 down. That is to say, we think the testimony tends to prove a state 
 of facts from which the jury might properly find the defendant was 
 legally justified in striking the blows to prevent the plaintiff from 
 attacking him. Hence the instruction that the defendant was abso- 
 lutely liable in the action was erroneous. The instruction should have 
 been that, if the defendant had no reasonable grounds to fear an 
 immediate attack by the plaintiff, or, having such grounds, if he used 
 more force than was necessary to prevent such attack, the plaintiff 
 could recover ; otherw^ise not. 
 
 We are also inclined to think that on the authority of State v. Nett, 
 50 Wis. 524, 7 N. W. 344, proof of the quarrelsome and violent dis- 
 position of the plaintiff should have been received, as elements in 
 the correct solution of the questions above suggested. 
 
 By the Court. The judgment of the circuit court is reversed, 
 and the cause will be remanded for a new trial. 
 
 TICKELL v. READ. 
 
 (At Nisi Prius, 1772. Lofft 215, 98 Reprint. G17.) 
 
 Action of assault and battery, defendant pleads the general issue, 
 not guilty; and also a special plea in justification, that he assisted 
 his servant, whom the plaintiff was beating. 
 
 Contended, that the law will oiot justify a master interposing on 
 an assault against his servant, by assaulting the person who beats 
 the servant, as it does a servant in like case interposing for his master ; 
 because it was the duty of the servant, who was hired to serve and 
 be assistant to his master's person, but not so the master to the serv- 
 ant. On the other hand it was contended to this effect nearly ; the 
 duty of master and servant was reciprocal, and if the servant owed 
 to his master fidelity and obedience, the master owed to the servant
 
 196 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 protection and defence; and might, therefore, well justify by this 
 plea. 
 
 Lord Mansfield. I cannot tell them a master interposing when 
 his servant is assailed, is not justifiable, under the circumstances of 
 the case, as well as a servant interposing for his master: it rests on 
 the relation. 
 
 4^ 
 
 (D) Defense of Property 
 (a) Defense of Personal Property; Recaption 
 
 If a man will take my horse from me, or anything which belongs 
 to me, and I will not sufifer him to do it, although he is hurt, in this 
 case I shall be excused in law. And suppose that a man is about to 
 beat my servant, and I aid my servant in his defence, although the 
 other is hurt by me, all this matter shall be adjudged in defence of 
 ^ my servant, and of my goods. For, since he was about to injure me, 
 this malfeasance shall be said to be an assault upon me begvm by him, 
 and all this shall be said to be in defence of the goods and chattels of 
 the defendant.^** 
 
 Newton, C. J., Anon. (1440) Y. B. 19 Hen. VI, fol. 31, pi. 59. 
 
 Recaption or reprisal is another species of remedy by the mere act 
 of the party injured. This happens when any one hath deprived an- 
 other of his property in goods or chattels personal, or wrongfully 
 detains one's wife, child, or servant : in which case tlie owner of the 
 goods, and the husband, parent, or master, may lawfully claim and 
 retake them wherever he happens to find them, so it be not in a riot- 
 ous manner, or attended with a breach of the peace. The reason for 
 this is obvious; since it may frequently happen that the owner may 
 have this only opportunity of doing himself justice: his goods may be 
 afterwards conveyed away or destroyed ; and his wife, children, or 
 servants concealed or carried out of his reach ; if he had no speedier 
 remedy than the ordinary process of law. If therefore he can so 
 contrive it as to gain possession of his property again without force 
 or terror, the law favors and will justify his proceeding. But as the 
 public peace is a superior consideration to any one man's private prop- 
 erty ; and as, if individuals were once allowed to use private force 
 as a remedy for private injuries, all social justice must cease, the 
 strong would give law to the weak, and every man would revert to 
 a state of nature ; for these reasons it is provided that this natural 
 right of recaption shall never be exerted where such exercise must 
 
 20 "And so was the opinion of Ayscoglie, Fulthorpe, JJ., and all the Court" 
 See Ames. Cases on Torts (3d Ed.) 121.
 
 Ch. 1) TRESPASSES 197 
 
 occasion strife and bodily contention, or endanger the peace of society. 
 If, for instance, my horse is taken away, and I find him in a common, 
 a fair, or a pubHc inn, I may lawfully seize him to my own use ; but 
 I cannot justify breaking open a private stable, or entering on the 
 grounds of a third person, to take him, except he be feloniously stolen ; 
 but must have recourse to an action at law. 
 Blackstone, 3 Com. 4. (1765). 
 
 JONES V. TRESILIAN. 
 
 (Court of King's Bench, 1670. 1 Mod. 36.) 
 [This case is given ante, page 191 ; see "Defense of the Person."] 
 
 WADHURST V. DA:\1ME. 
 (Court of King's Bench, 1004. Cro. Jac. 45, 79 Reprint, 37.) 
 
 Trespass ; for that he killed his dog, being a mastiff dog. The de- 
 fendant pleads, that Sir Francis Willoughby was seised in fee of a 
 warren in D. within the same county, whereof he is and then was 
 warrener, and that his dog was divers times killing conies there ; and 
 therefore he finding him there, tempore quo, etc., running at conies, 
 he there killed him, absque hoc that he is guilty at Etonbridge prout, 
 etc. And it was thereupon demurred * * * for the matter of the 
 justification. 
 
 But all the court held that the matter of justification is good; be- 
 cause it being alleged that the dog used to be there killing conies, 
 it is good cause for the killing him, in salvation of his conies ; for, 
 having used to haunt the warren, he cannot otherwise be restrained. 
 
 YelvERTon doubted thereof, because it is not alleged that the mas- 
 ter was sciens of that quality, or had warning given to him thereof. 
 
 PoPHAM. The common use of England is, to kill dogs and cats 
 in all warrens as well as any vermin ; which shews that the law hath 
 been always taken to be, that they may well kill them: so the justifi- 
 cation is good.^^ * * * Wherefore it accordingly was adjudged 
 for the defendant. 
 
 27 A question as to the venue is omitted. 
 
 Accord: Leonard v. Wilkins (1812) 9 Johns. (N. T.) 2.33 (D. had shot P.'s 
 dog when it was in D.'s held. "The dog was running witli a fowl in his luouth, 
 and the defendant called after the dog before he fired, but he had the fowl in 
 his mouth at the time he was shot." The property in the fowl was not shown) ; 
 Harrington v. Hall (1906) 6 Pennewill (Del.) 72, 63 Atl. 875, where the court 
 charged the jury thus: "The defendant justifies the killing of a dog, whose.so- 
 ever it was, on the day in question, because, as he claims, the dog was, at the 
 time of the shooting, in the act of killing one of a flock of his turkeys then 
 upon his premises. We say to you that if you find under the evidence that the 
 defendant himself, or his son under the father's directions, did kill the plain-
 
 198 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 WRIGHT V. RAMSCOT. 
 
 (Court of King's Bench, 1667. 1 Wms. Saund. 84, 85 Reprint, 93.) 
 
 Trespass. The plaintiff declared that the defendant did beat, strike, 
 and stab a mastiff of the plaintiff, so that the mastiff died. The de- 
 fendant pleaded in bar, that the plaintiff suffered his mastiff to go un- 
 muzzled in the street, by reason whereof the mastiff run violently 
 upon a dog of one EHen Bagshaw, and did then and there bite the 
 said dog (which dog the said Ellen kept in her house for the preserva- 
 tion thereof) ; wherefore the defendant, being the servant of the said 
 Ellen, then and there killed the mastiff', that he might not do any fur- 
 ther mischief. Upon which plea the plaintiff demurred in law. 
 
 And Saunders of counsel for the plaintiff argued that * * * 
 here the defendant has not said that he could not otherwise part 
 or take off the mastiff from worrying the other dog; and if he had 
 said so, it would have altered the case : and he might have justified 
 the beating of the mastiff to preserve his dog, but not the killing of 
 him, unless it could not otherwise be prevented. But in this case he 
 said nothing more than that he killed the mastiff to prevent the other 
 dog from being killed ; whereas, for anything that appears to the 
 contrary, he might have saved the other dog without killing the mas- 
 tiff : and so he has killed the mastiff without any necessity or cause, 
 which is not justifiable ; and he has not in any way excused that in- 
 jury. And therefore he concluded that the plea was bad. 
 
 And of that opinion was the whole Court; and judgment was given 
 for the plaintiff.^^ 
 
 JANSON V. BROWN. 
 (At Nisi Prius, Adjourned Sittings in London, 1807. 1 Camp. 41.) 
 
 Trespass for shooting the plaintiff's dog. Pleas, 1, not guilty; and 
 
 2, a justification, that the dog was worrying and attempting to kill 
 
 ^ fowl of the defendant's, and could not otherwise be prevented from 
 
 «^so doing. Replication to the last plea, de injuria sua propria absque 
 
 tali causa. 
 
 The case being made out on the part of the plaintiff, Garrow for 
 the defendant said, he should prove that just before the dog was shot, 
 being accustomed to chase the defendant's poultry, he was worrying 
 the fowl in question, and that he had not dropped it from his mouth 
 above an instant when the piece was fired. But, 
 
 tiff's dog under sucli circumstances, it was justifiable, and tlie plaintiff would 
 not be entitled to recover. For, if the dog was upon the land of the defendant 
 in the act of destroying his turkeys, the defendant was justified in killing 
 him." 
 
 -"'The statement of the pleadings is abridged. The pleadings are set out 
 at length in (1G05) 1 Wms. Suund. 82, 85 Reprint, 92.
 
 Ch. 1) TRESPASSES 199 
 
 Lord EllEnborough said, this would not make out the justifica- 
 tion ; to which it was necessary that when the dog was shot, he should 
 have been in the very act of killing the fowl, and could not be prevent- 
 ed from effecting his purpose by any other means. -^ 
 
 Verdict for plaintiff, with Is. damages. 
 
 LIVERMORE v. BATCHELDER. 
 (Supreme Judicial Court of Massachusetts, 1SS6. 141 Mass. 179, 5 N. E. 275.) 
 
 Tort for killing the plaintiff's dog. Trial without a jury; the trial 
 
 judge found the following facts: 
 
 The plaintiff, on February 20, 1884, was the owner of a dog, which was 
 dulv licensed by the town of Reading, and wore a collar, duly marked as re- 
 quired by the Pub. St. 18S2, c. 102, § 80. On said February 20, the plaintifC's 
 dog, with another dog, came upon the defendant's premises and there killed 
 and maimed hens of the defendant, which were in his hen-house or shed. 
 The dogs were driven away, and, in about fifteen minutes afterwai'ds, came 
 again upon the defendant's premises, and were running toward the same shed 
 and hen-house of the defendant, when the defendant, having reasonable cause 
 to believe that the dogs were proceeding to maim and kill others of his hens 
 in said shed and hen-house, shot and killed the plaintifC's dog. 
 
 Upon these facts, the judge ruled that the defendant's killing of 
 the plaintiff's dog under the circumstances stated, was not in law 
 justifiable; and thereupon found and ordered judgment for the plain- 
 tiff'. The defendant alleged exceptions. 
 
 Holmes, J. The ruling of the court, as we understand it, meant 
 that the facts found, without more, did not disclose a justification for 
 killing the plaintiff's dog. It was found that the defendant had rea- 
 sonable cause to believe that the dog was proceeding to maim and 
 kill his hens, but not that he had reasonable cause to believe that it 
 was necessary to kill the dog in order to prevfent him from killing 
 the hens. The justification, therefore, was not made out. Wright v. 
 Ramscot, 1 Saund. 84. Janson v. Brown, 1 Camp. 41. See Common- 
 wealth V. Woodward, 102 Mass. 155, 161. 
 
 It is unnecessary to consider whether the common law remedy is 
 taken away by the' Pub. Sts. c. 102, §§ 80-110. 
 
 Exceptions overruled. ^° 
 
 2 9 Compare Reed v. Goldneck (1905) 112 Mo. App. 310, 86 S. W. 1104: "Un- 
 der the rule of the common law which obtained prior to the statute as an- 
 nounced in the cases supra, one was not justified in killing a dog, even though 
 it was on his premises, unless the dog was actually doing or attempting to do 
 injury to his domestic animals; and in the latter case the danger from the 
 dog must have been so apparent as to threaten imminent peril, * * * [But 
 under the statute of 1899] if the dog be found either killing or chasing the 
 animals, or under such circumstances as would make it appear satisfactorily 
 to the jury that the dog had been engaged either in killing or chasing the 
 animals, then the killing of the dog is justifiable." 
 
 30 Compare Aldrich v. Wright (1873) 53 X. H. .mS. 16 Am. Rep. 3.39: Four 
 minks were swimming towards D.'s geese, at a distance of from one to three 
 rods, when D. came out with a gun. The minks stopped pursuing the geese
 
 200 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 McCHESNEY v. WILSON. 
 
 (Supreme Court of Michigan, 1903. 132 Mich. 252, 93 N. W. 627, 
 
 1 Ann. Cas. 191.) 
 
 The defendant shot and killed the plaintiff's dog when it was tres- 
 passing upon the defendant's premises. The dog had killed three 
 chickens belonging to the defendant and was in the habit of urinating 
 through the defendant's screen door onto his carpet. But at the time 
 when he was shot the dog was not in the act of killing or pursuing a 
 chicken. In the circuit court the plaintiff had a verdict and judgment 
 for $20, the value of the dog. The defendant brings error. 
 
 Grant, J. The court instructed the jury that the defendant was 
 
 and ran upon a little island, and there stopped. D. fired at the minks on the 
 island and killed them all at one shot. The trial court ruled that D. was not 
 justified in killing the minks if the geese were not in imminent danger, and 
 could have been protected either by driving away the geese, or frightening 
 or driving off the minks. Verdict for plaintiff. Said Doe, J., delivering the 
 opinion: "The plaintiff's claim that the defendant is liable if the geese were 
 not in imminent danger, taken in the sense for which the plaintiff contends, 
 and the sense in which both parties, at the trial, probably understood it, can- 
 not be sustained. * * * It is probable that the parties understood that by 
 the doctrine of imminent danger, the defendant was liable unless the geese 
 would, in a few moments, have been killed by the minks but for the defendant's 
 shot. The doctrine, asserted in that form, would be erroneous. It was for 
 the jury to say, considering the defendant's valuable property in the geese, 
 the absence of absolute property in the minks, their character, whether harm- 
 less or dangerous, the probability of their renewing their pursuit if he had 
 gone about his usual business and left the geese to their fate, the sufficiency 
 and practicability of other kinds of defense, considering all the material 
 elements of the question, — it was for the jury to say whether the danger was 
 so imminent as to make the defendant's shot reasonably necessary in point 
 of time. If, but for the shot, some of the geese, continuing to resort as usual 
 to the pond, apparently would have been killed by these minks within a period 
 quite indefinite, and if other precautionary measures of a reasonable kind, as 
 measured by consequences, would have been ineffectual, the danger was im- 
 minent enough to justify the destruction of the minks for the protection of 
 property. Tlie right of defense is the right to do whatever apparently is rea- 
 sonably necessary to be done in defense under the circumstances of the case. 
 * * * The claim that the defendant was liable if the geese could have been 
 protected by driving them away from the minks, cannot be sustained. Re- 
 quiring the defendant to drive away the minks if he could, is an admission 
 that he had a right to drive them away, and that they had no right to remain 
 on his premises without his consent. But, requiring him, if he could not 
 drive them away from the geese, to drive the geese away from them, is a 
 practical denial of his right to keep geese in his own pond or on his own land, 
 if he could only keep them there by killing minks. It amounts to this: it 
 being impracticable to permanently eject the assailants, he must banish the 
 assailed ; and the raising of geese being impossible, the raising of minks is 
 compulsory. A freeholder, permitted to fire blank cartridges only to cover 
 the endless retreat of his poultry before these marauders, and obliged to suf- 
 fer such an enemy to ravage his lands and waters with l)oldness generated by 
 impunity, is a result of turning the fact of the reasonable necessity of re- 
 treating to the wall before a human assailant into a universal rule of law. 
 This rule practically compels the defendant to bring his poultry to the block 
 prematurely, and to abandon an important branch of agricultural industry. 
 His right of protecting liis fowls is merely his right of exterminating tliem." 
 The oi)inion in this case reviews at length the authorities and the principles 
 involved.
 
 Ch. 1) TRESPASSES 201 
 
 not justified in killing the dog, unless he was in the act of chasing, 
 killing, or annoying his sheep or other domestic animals. The fol- 
 lowing facts are conclusively established: (1) That the dog was a 
 killer of domestic fowls ; (2) that he was a frequent trespasser upon 
 the premises of the defendant, and frequently committed the disgust- 
 ing nuisance above mentioned ; (3) that plaintiff was notified by the 
 defendant and others of the disposition of his dog ; (4) that he took 
 no steps to restrain him. Evidently the attention of the learned cir- 
 cuit judge had not been called to the cases of Hubbard v. Preston, 
 90 Mich. 221, 51 N. W. 209, 15 L. R. A. 249, 30 Am. St. Rep. 426, 
 and Throne v. Mead, 122 Mich. 273, 80 N. W. 1080, 80 Am. St. Rep. 
 568, otherwise I think he would have directed a verdict for the de- 
 fendant. Under the principle laid down in these decisions the de- 
 fendant was justified in killing the dog. 
 
 That there is property in dogs, for which the owner may recover 
 in a proper case, is conceded ; but this does not authorize a party to 
 keep a dog of the character of the one in tliis case, who almost daily 
 commits a nuisance at his neighbor's house, and kills and destroys 
 his neighbor's domestic fowls. No statute is needed to justify the in- 
 jured party in killing a dog of this character when he appears upon 
 the premises, after notifying the owner of his depredations, and giv- 
 ing him ample time to take care of him. Whether the statute (Comp. 
 Laws 1897, § 5592) is broad enough to include domestic fowls is 
 unnecessary to decide. See Marshall v. Blackshire, 44 Iowa, 475. 
 This is not a case where a dog is found for the first time committing 
 a nuisance in trespassing, or in killing fowls or animals. This is not 
 the case of Bowers v. Horen, 93 Mich. 420, 53 N. W. 535, 17 L. R. 
 A. ITh, 32 Am. St. Rep. 513, where the offense with which the dog 
 was charged was in walking over a freshly painted porch, and once 
 being found in a henhouse without doing any damage, and in going 
 around the defendant's house at night, chasing cats into trees, and 
 barking. In that case stress was laid upon the fact that the defend- 
 ant, knowing who the owner was, failed to notify him that the dog 
 gave him any annoyance. Had the defendant in that case done so, 
 a dift'erent result might have been reached, under the decision of Hub- 
 bard V. Preston, supra. * * * 31 
 
 Judgment reversed. 
 
 31 A part of the opinion is omitted. Hooker, C. J., and Montgomery and 
 Moore, JJ., concurred in the reversal. 
 
 Compare Brill v. Flagler (1840) 23 Wend. (N. Y.) .354: D. shot P.'s dog, 
 although it ^Yas not threatening either D. or his prtiperty. A demurrer to the 
 plea admitted that the dog was in the constiint haliit of coming on D.'s prem- 
 ises, and about his dwelling, day and night, barking and howling, to the great 
 annoyance of the family, that P. knew of this mischievous propensity of his 
 dog and would not confine him, and that D. wos unable to prevent the an- 
 noyance otherwise than by shooting. Held that the plea was a good bar. See 
 generally under "Jsuisance," infra.
 
 202 TORTS TUROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 BLADES V. HIGGS et al. 
 
 (Court of Common Pleas, 1861. 10 C. B. [N. S.] 713, 142 Reprint, 634, 
 
 128 R. R. 890.) 
 
 The declaration charged that the defendants assaulted and beat and 
 pushed about the plaintifit, and took from him his goods, that is to say, 
 dead rabbits. The defendants pleaded, amongst other pleas, 
 
 Tliirdly, as to the assaulting, beating, and pushing about the plaintiff, that the 
 plaintiff, at the said time when, etc., luid wrongfully in his possession certain 
 dead rabbits of and belonging to the Marquis of Exter; that the said rabbits 
 were then in the possession of the plaintiff without the leave and license and 
 against the will ol the said Marquis ; and that the plaintiff" was about wrong- 
 fully and unlawfully to take and carry away tlie said rabbits and convert the 
 same to his own use; whereupon the defendants, as the servants of the Mar- 
 quis, and by his command, requested the plaintiff to refrain from carrying 
 away and converting the same rabbits, and to quit the possession thereof to the 
 defendants as such servants, which the plaintiff refused to do; and that there- 
 upon the defendants, as the servants of the said Marquis, and by his command, 
 gently laid their hands upon the plaintiff, and took the said rabbits from him, 
 using no more force than necessary; which were the alleged trespasses in the 
 declaration mentioned, etc. Demurrer and joinder. 
 
 Beasley, in support of the demurrer: The plea is clearly bad. In 
 order to sustain it, it must be made out, that, wherever A.'s goods are 
 wrongfully in the hands of B., A. or his servants may forcibly take 
 them, without showing that a felony has been committed, or the way 
 in which the goods came to B.'s possession, or that the defendant 
 was attempting to retake them, on fresh pursuit. To permit this, 
 would be manifestly against one of the first principles of law. It is 
 not alleged that the defendant had wrongfully taken the rabbits. He 
 might have been an innocent bailee, or a purchaser in market overt.^- 
 
 ErlE, Ch. J. The declaration in this case was for an assault and 
 battery. The substance of the justification was, that, the plaintiff 
 having wrongfully in his possession rabbits belonging to the defend- 
 ants (we consider the servants here the same as the master), and be- 
 ing about to carry them away, the defendants requested him to re- 
 frain, and, on his refusal, moUiter manus imposuerunt, and used no 
 more force than was necessary to take the rabbits from him. To 
 this the plaintiff has demurred, and thereby admits that he was do- 
 ii:g the wrong, and that the defendants were maintaining the right, as 
 alleged : and he contends that the defendants are not justified in using 
 necessary force, on account of the danger to the public peace : but he 
 adduces no authority to support his contention. The defendants like- 
 wise have failed to adduce any case where the justification was sup- 
 ported without an allegation to explain how the plaintiff took the 
 property of the defendant and became the holder thereof. But the 
 princii)les of law are in our judgment decisive to show that the plea 
 is good, although that allegation is not made. 
 
 32 A large part of the argument is omitted.
 
 Ch. 1) TRESPASSES 203 
 
 If the defendants had actual possession of the chattels, and the 
 plaintiff took them from them against their will, it is not disputed that 
 the defendants might justify using force sufficient to defend their 
 right and retake the chattels ; and we think there is no substantial 
 distinction between that case and the present ; for, if the defendants 
 were the owners of the chattels, and entitled to the possession of them, 
 and the plaintiff wrongfully detained them from them after request, 
 the defendants in law would have the possession, and the plaintiff's 
 wrongful detention against the request of the defendants would be the 
 same violation of the right of property as the taking of the chattels 
 out of the actual possession of the owner. 
 
 It has been decided that the owner of land entitled to the possession 
 may enter thereon and use force sufficient to remove a wrong-doer 
 therefrom. In respect of land, as well as chattels, the wrong-doers 
 have argued that they ought to be allowed to keep what they are 
 wrongfully holding, and that the owner cannot use force to defend 
 his property, but must bring his action, lest the peace should be en- 
 dangered if force was justified : see Newton v. Harland, 1 Man. & 
 G. 644. But in respect of land, that argument has been overruled in 
 Han^ey v. Brydges, 14 M. & W. 442. Parke, B., says: "Where a 
 breach of the peace is committed by a freeholder, who, in order to 
 get possession of his land, assaults a person wrongfully holding pos- 
 session of it against his will, although the freeholder may be responsi- 
 ble to the public in the shape of an indictment for a forcible entry, 
 he is not liable to the other party. I cannot see how it is possible to 
 doubt that it is a perfectly good justification to say that the plaintiff' 
 was in possession of the land against the will of the defendant, who 
 was owner, and that he entered upon it accordingly; even though 
 in so doing a breach of the peace was committed." 
 
 In our opinion, all that is so said of the right of property in land, 
 applies in principle to a right of property in a chattel, and supports 
 the present justification. If the owner was compellable by law to 
 seek redress by action for a violation of his right of property, the 
 remedy would be often worse than the mischief, and the law would 
 aggravate the injury instead of redressing it. 
 
 For these reasons, our judgment is for the defendants.^' 
 
 33 For the subsequent history of this case, see (1862) 12 C. B. N. S. 501 ; 
 (1803) 13 C. B. N. S. (Exch.) 844; and (1805) 11 H. L. C. 621, to the effect that 
 title to property created nierely by the act of reducing a thing into possession, 
 necessarily implies a reduction into possession effected by an act which is not 
 in any way of a wrongful nature. Such an act, therefore, effected by one who 
 is at the moment a trespasser, cannot create a title to property. 
 
 See the remark in I'ollock on Torts (Tth Ed.) p. 380, note c: "Tlie reasons 
 given at page TL'O [of 10 C. B. N. S., i. e., Erie's opinion] seem wrong, and the 
 decision itself is contrary to the common law as understood in tlie thirteenth 
 century. One who retook liis own goods by force (save, perhaps, on fresh pur- 
 suit) was a trespasser and lost the goods." 
 
 See, also. Sir Frederick I'ollock's later comment on tlie case in 128 Rev. Rep. 
 vi : "There seems to be no doubt that in Blades v. Iliggs, the court allowed an
 
 204 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 MONSON V. LEWIS. 
 
 (Supreme Court of Wisconsin, 1905. 123 Wis. 5S3, 101 N. W. 1004.) 
 
 This was an action to recover damages for an assault and battery 
 by which the plaintiff's arm was broken. The defendant pleaded a 
 justification. The evidence showed that the parties were working 
 on the highway (the defendant being superintendent of highways, 
 and the plaintiff working under him), and that the plaintiff was 
 handling an ordinary scraper, the horses attached to the scraper being 
 driven by a third person; that the defendant was not satisfied with 
 the manner in which the plaintiff handled the scraper, and an alter- 
 cation arose between them, which resulted in a personal encounter. 
 The plaintiff's testimony tended to show that he retained possession 
 of the scraper, and the defendant attempted to take the scraper 
 y^ away from him, and struck his arm in the attempt, by which the arm 
 was broken. The defendant's testimony tended to show that during 
 the altercation the scraper came to a standstill, and that he then 
 discharged the plaintiff from the work, and the plaintiff' stood up and 
 let go of the scraper; that thereupon the defendant took hold of 
 both handles of the scraper, and the plaintiff then tried to take it away 
 from him, and he (defendant) struck the plaintiff's arm in defending 
 his possession of the scraper. There was a verdict and judgment for 
 the defendant, and the plaintiff appeals. 
 
 WiNSLOW, J. There was no doubt, under the evidence, of the fact 
 that the defendant struck the plaintiff and fractured his arm; but 
 the principal disputed question seemed to be whether the defendant 
 struck the blow while trying to take the scraper from plaintiff's pos- 
 session, or whether the plaintiff had entirely let go of the scraper, 
 and the defendant had, without violence, taken it and struck the 
 blow while the plaintiff was endeavoring to retake it. In the one 
 case the act of defendant was an attempt to take the property by 
 force from plaintiff's possession, and in the other case it was an 
 attempt to defend his own possession. In this situation of the evi- 
 dence, the following instruction was given: 
 
 "If the defendant in this case ordered and directed the plaintiff to let go of 
 the scraper and quit worlc, and discharged him, and the plaintiff refused to 
 let go of the scraper and refused to <piit work, then, after such order and re- 
 fusal, the dcferdant had a right to use proper and reasonable force to enable 
 him to control the scraper in question, and the .lury must determine from all 
 the evidence how much and what kind of force the defendant did in fact use." 
 
 amount of self help which their predecessors in the Middle Ages would have 
 disapproved as too dangerous to the public peace. Obviously the danger 
 would be greater when most men went armed, and men of high rank witli 
 armed retinues." 
 
 But compare 27 Halsbury's Laws of England (1913) SC8: '"If the goods are 
 wrongfully remove<l or are in the wrongful possession of some one else, tho 
 owner may retake them and may use force if necessary." 
 
 For American cases, see 3 Cyc. lOTS. note 15; 4 Cent. Dig., "Assault," §§ IS- 
 IS; Dec. Dig., Key. No.. "Assault," § 15.
 
 Ch. 1) TRESPASSES 205 
 
 This instruction admits at least of the construction that, if the de- 
 fendant had discharged the plaintiff, the defendant was entitled to 
 take the scraper from plaintiff's possession by force, if the force used 
 was reasonable and proper to accomplish the purpose. We do not 
 understand this to be the law. It was held in Barnes v. Martin, 15 
 Wis. 240, 82 Am. Dec. 670, that the owner of property which is in 
 the peaceable possession of another has no right to retake the property 
 by force. This principle is based upon public policy. It is in the in- 
 terest of peace and public order. Any other rule would substitute 
 the strong arm for the court of justice, and promote lawbreaking and 
 violence. The right of the owner to recapture personal property is 
 to be exercised only when he may peaceably do so, with the possible 
 exception (not necessary to be discussed here) that, when the property 
 has been momentarily taken from the owner by force or fraud, it may 
 be lawfully retaken, if only reasonable and proper force be used. 2 
 Am. & Eng. Enc. of Law (2d Ed.) 983 ; 3 Cyc. 1078. In the present 
 case, plaintiff's original possession of the scraper was lawful, and, 
 if he retained the possession continuously, the defendant was not 
 justified in using force to take it away; but if the plaintiff let go of 
 it, and the defendant peaceably took possession, he might defend 
 such possession with reasonable and proper force. 
 
 The court further charged the jury that "in this case, as in all other 
 civil cases, the burden is upon the plaintiff to establish the facts es- 
 sential to his recovery by a preponderance of the evidence." This 
 might well be understood as meaning that the plaintiff, after proving 
 the blow, was obliged to prove that there was no justification for it. 
 This is not the law. The blow and consequent damage being admitted 
 by the defendant, a prima facie case was made, and the burden lay 
 upon him to prove facts constituting a justification therefor. Timm 
 v. Bear, 29 Wis. 254 ; Blake v. Damon, 103 Mass. 199 ; 2 Greenleaf , 
 Ev. (15th Ed.) §§ 95-98. 
 
 Judgment reversed, and action remanded for a new trial. ^* 
 
 3 4 Accord: Bobb v. Bosworth (1808) Litt. Sel. Cas. (Ky.) 81, 12 Am. Dec. 273: 
 In an action by Bosworth for an assault and battery by Bobb, it appeared that 
 at the time of the assault and battery, Bosworth was in possession of the slave 
 which v»-as the subject of dispute between the parties: that Bobb came to re- 
 take him out of Bosworth's possession in a violent and forcible manner, which 
 was resisted by Bosworth: and that in the scuffle Bobb broke Bosworth's arm. 
 Said the Court, per Trimble, J. : "It is not material, whether Bobb or Bos- 
 worth had the better right to the negro. Bosworth was in actual possession; 
 Bobb could not lawfully use violence and force in regaining possession. Hav- 
 ing broken the peace, and used force, where he was forbidden by law to do so, 
 he nmst be answerable for the consequences." 
 
 Kirby v. Foster (1891) 17 R. I. 4^7, 22 Atl. 1111, 14 L. R. A. 317 : P. was In 
 the employ of a corporation as bookkeeper. The sum of .^.50 belonging to the 
 corporation had been lost. P. was held responsible for this by the oliicers of 
 the corporation, and the amount wa.s deducted from his pay. On a subsequent 
 pay day, D., an ofhcer of the corporation, handed P. some money to pay the 
 help. P., acting under the advice of counsel, took from this money the amount 
 due him at the time, including what had been deducted from his pay, put It 
 into his pocket, and returned the balance to D., saying that he had received
 
 206 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 his pay and was going to leave and that he did this under advice of counsel. 
 D. thereupon attempted by force to take the money from him. In the struggle 
 which ensued, P. received injuries, for which he brouglit suit. D. claimed a 
 justification. There was a verdict for P., with a petition by 1). for a new trial. 
 Said Stiness. J., delivering the opinion: ''Unquestionably if one takes another's 
 property from his possession without right and against his will, the owner or 
 person in charge may protect his possession, or retake the property, by the use 
 of necessary force. He is not bound to stand by and submit to wrongful dispos- 
 session or larceny when he can stop it, and he is not guilty of assault in thus 
 defending his right, by using force to prevent his property from being carried 
 away. But this right of defence and recapture involves two things; first, pos- 
 session by the owner, and, second, a purely wrongful taking or conversion, 
 without a claim of right. If one has intrusted his property to another, who, 
 afterwards, honestly though erroneously, claims it as his own, the owner has 
 no right to retake it by personal force. If he has, the actions of replevin and 
 trover in many cases are of little use. The law does not permit parties to take 
 the settlement of conflicting claims into their own hands. It gives the right 
 of defence, but not of redress. The circumstances may be exasperating; the 
 remedy at law may seem to be inadequate; but still the injured party cannot 
 be arbiter of his own claim. Public order and the public peace are of greater 
 consequence than a private right or an occasional hardship. Inadequacy of 
 remedy is of frequent occurrence, but it cannot find its complement in person- 
 al violence. Upon these grounds the doctrine contended for by the defendants 
 is limited to the defence of one's possession and the right of recapture as 
 against a mere wrong-doer. It is therefore to be noted in this case that the 
 money was in the actual possession of the plaintiff, to whom it had been in- 
 trusted for the purpose of paying help, who thereupon claimed the right to 
 appropriate it to his own payment, supposing he might lawfully do so. Con- 
 ceding that the advice was bad, nevertheless, upon such appropriation the 
 plaintiff held the money adversely, as his own, and not as the servant or agent 
 of the company. If his possession was the company's possession, then the 
 companj' was not deprived of its property, and there could be neither occa- 
 sion nor justification for violence. Possession by the company would be con- 
 structive merely, which would cease when the plaintiff exercised dominion and 
 control on his own behalf under an honest claim of right. It is only in this 
 way, in many cases, that conversion is established. Having thus appropriated 
 the money to himself, it is urged that the act amounted to embezzlement, 
 which justified the intervention of the defendants to prevent the consumma- 
 tion of the crime. "We do not think this is so. The plaintiff stated what he 
 had done, and the grounds upon which he claimed the right to do it. handing 
 back the balance above what was due him. A controversy followed; he start- 
 ed to go out, but was stopped by the defendants, and then the assault took 
 place. The sincerity of the plaintiff's belief that he had a right to retain the 
 money is unquestionable. Hence, as stated in Cluff v. Mutual Benefit Life In- 
 surance Co., 13 Allen (Mass.) 308, cited by the defendants, even a forcible tak- 
 ing of property, 'if done under an honest claim of right, however ill founded, 
 would not constitute the crime of robbery or larceny ; because, where a party 
 sincerely, though erroneously, believes that he is legally justified in taking 
 property, he is not guilty of the felonious intent which is an essential ingre- 
 dient of these crimes.' * * * The defendants object to the charge of the 
 court, that where a person has come into the peaceable possession of a chattel 
 from another, the latter has no right to retake it by violence, whether the pos- 
 session is lawful or unlawful, upon the ground that this rule would prevent tl)e 
 recapture of property obtained by trickery or fraud. The instruction must be 
 considered not as an abstract proposition, but with reference to the case before 
 the jury. Nothing appeared to show that the money had been procured by mis- 
 representation, trickery, or fraud. It was delivered to the plaintiff volun- 
 tarily, in the usual course of business. True, under the advice of a lawyer 
 whom he had consulted, the i)laintiff had previously determined to ai)ply the 
 money to his own payment when he should receive it; but this did not make 
 the delivery itself fraudulent, nor did his intent to assert what he believed to 
 be his right make that intent criminjil. We think, therefore, with reference to 
 the case as it stood, there was no error in the charge as given, nor in the refus- 
 als to charge as requested." 
 
 1^
 
 Ch. 1) TRESPASSES 20'i 
 
 (b) Defense of Real Property; Forcible Re-extry 
 
 The first and principal remedy is of this kind, namely, that he 
 who has been disseised may reject the spoiler of his own strength if 
 he can, or by strength which he has called in or recalled, provided 
 no interval has elapsed, the disseisin or misdeed being flagrant. 
 
 Bracton (circa 1250) 162 b.^" 
 
 And also the King defendeth, That none from henceforth make 
 any entry into any lands and tenements but in case w^here entry is 
 given by the law; and in such case not with strong hand, nor wath 
 multitude of people, but only in peaceable and easy manner. And 
 if any man from henceforth do to the contrary, and thereof be 
 duly convict, he shall be punished by imprisonment of his body, and 
 thereof ransomed at the King's will. 
 
 'fc> 
 
 Statute, 5 Rich. II., c. 7 (1381), 
 
 36 
 
 SKEVILL v. AVERY. 
 
 (Court of King's Bench, 1629. Cro. Car. 138, 79 Reprint, 722.) 
 
 Trespass of assault, battery, and wounding. The defendant plead- 
 ed to the wounding, not guilty. To the assault and battery he pleaded, 
 that he was possessed of a house in such a parish for years, and that 
 the plaintiff entered his house, and would have thrust him out of pos- 
 session thereof; whereupon he molliter manus imposuit to put him 
 out, and the harm, if any done, was in defence of his own possession. 
 The plaintiff hereupon demurred. 
 
 35 As quoted by Barker, J., in Page v. Dwight (1S97) 170 Mass. 29, 48 N. E. 
 850, 39 L. R. A. 418, and by Swayze, J., in Schwiuu v. Perkins (1910) 79 N. J. 
 Law, 515, 78 Atl. 19, 32 L. R. A. (N. S.) 51, 21 Ann. Cas. 1223. 
 
 "Bracton's expression as translated, 'provided no interval has elapsed." 
 hardly differs from Lord Denmau's expression six centuries later [in Browne 
 w Dawson (1S40) 12 Ad. & El. G24, 629: 'A mere trespasser cannot, by the very 
 act of trespass, immediately and without acquiescence give himself what the 
 law uudei'stands by possession against the person whom he ejects, and drive 
 him to produce his title, if he can, without delay, reinstate himself in his for- 
 mer possession']. In such a case, as Mr. Justice Barker suggests in Page v. 
 Dwight, the forcible entry and the recapture are but one transaction and the 
 recapture is not a forcible entry but a successful and proper resistance of a 
 forcible entry; all that has been done is to resist successfully a wrongful act." 
 Mr. Justice Swayze in Schwinn v. Perkins (1910) 79 N. J. Law, 515, 78 Atl. 
 19, 32 L. R. A. (N. S.) 51, 21 Ann. Cas. 1223. 
 
 36 A confirming statute in 1429 (8 Hen. VI., a 9) provided that if it appeared 
 that one had been forcibly put out of possession contrary to the statute, the 
 justices "shall put the party so put out in full possession of the same lands 
 and tenements so entered or holden as before." 
 
 .^
 
 208 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Pai't 1 
 
 Goldsmith, for the plaintiff, shewed for cause, that the defendant 
 had pleaded a lease for years, not shewing who made the lease, nor 
 when it was made, nor for how many years ; whereas they ought to 
 have been pleaded specially, and shewn particulatim, for if it be trav- 
 ersed, there cannot be any issue thereupon : and he relied upon 
 Crogat's case, 8 Co. 66, that de injuria sua propria is no plea. 
 
 But all the Court held, that the defendant had well pleaded; for 
 saying that he was possessed for years is but an inducement and 
 conveyance to his justification and not the substance thereof, which is, 
 that he oft'ered to thrust him out of the possession of his house ; and 
 whatsoever title he hath, it is not material, for if he were in posses- 
 sion by virtue of a lease at will, or any other title, "de injuria sua 
 propria" is a good plea; for the title or interest not coming in ques- 
 tion (and what was pleaded or alledged being but an inducement to 
 the plea), it needs not be so certain as where it is pleaded by way of 
 title to make a claim in the defendant. Whereupon it was adjudged 
 for the defendant. 
 
 WEAVER v. BUSH. 
 
 (Court of King's Bench, 179S. 8 Term R. 78, 101 Reprint, 1276.) 
 
 To trespass for assaulting and beating the plaintiff with a stick, 
 
 the defendant pleaded (besides the general issue and son assault, which 
 
 were found for the plaintiff) that : 
 
 "As to tlie assaulting of tbe plaintiff and beating, bruising, and ill-treating 
 him, and with the said stick, giving and striking him the said blows, etc., he 
 (the defendant) at the time when, etc., was lawfully possessed of and in a cer- 
 tain close called, etc., at, etc.; and being so possessed, the plaintiff at tbe said 
 time when, etc., with force and arms and with a strong baud as much as in 
 him lay did attempt and endeavour forcibly to break into and enter the said 
 close of the defendant, and would have broken into and entered the said close 
 without the defendant's licence and against his will, whereupon the defendant 
 being then in his said close, and seeing the said attempt and endeavour of the 
 plaintiff, did then and there resist and oppose such entrance into the said close; 
 and upon that occasion did then and there defend his possession, as it was 
 lawful for him to do; and that if any damage or injury then and there hap- 
 pened to the plaintiff, it was in the defence of the possession of the said close." 
 
 To this plea the plaintiff replied de injuria sua propria absque tali 
 causa; the issue on this plea was found for the defendant. 
 
 Lens having moved to enter up judgment for the plaintiff, notwith- 
 standing the justification in the third plea, which was found for the 
 defendant, on the ground that that plea could not be supported on the 
 authority of Jones v. Tresilian, 1 Mod. 36, where Twisden, J., said 
 "You cannot justify the beating of a man in defence of your posses- 
 sion ; but you may say that you did molliter manus imponere," etc. 
 
 Bond, Gibbs, and Dampier, now shewed cause against that rule, 
 
 Lawrence, J. The general form of pleading, certainly has been 
 as the plaintiff's counsel contends ; and on this ground, that the de- 
 fendant ought not in the first instance to begin with striking the
 
 Ch. 1) TRESPASSES 209 
 
 plaintiff; but the law allows him, either in defence of his person or 
 possessions, to lay his hand on the plaintiff, and then he may say, 
 if any further mischief ensued, it was in consequence of the plaintiff's 
 own act ; so that the battery follows from the resistance. But it does 
 not necessarily follow from any thing stated in this plea, that the 
 defendant did more than gently lay his hands on plaintiff in the first 
 instance ; and if not, this plea may stand consistently with all the au- 
 thorities. * * * 37 
 
 Per Curiam, Rule discharged. 
 
 POLKIXHORX V. WRIGHT. 
 
 (Court of Queen's Bench, 184.5. 8 Q. B. 197, 115 Reprint, 849.) 
 
 Lord Denman, C. J. This was an action of trespass for assault 
 and battery ; and the plaintiff in his declaration, complained that the 
 defendant, on the 1st day of January 1844, assaulted the plaintiff, 
 and then seized him, and dragged him about, and struck him many 
 blows ; by means whereof the plaintiff was greatly hurt, etc. 
 
 To this the defendant pleaded two pleas of justification : one in 
 defence of the possession of a close and a gate, which the plaintiff en- 
 deavoured forcibly and with a strong hand to break and enter; and 
 the other stating that the defendant was possessed of a cow, then 
 being in a certain close, and that the plaintiff, against the will of the 
 defendant, endeavoured to drive the cow away from the close and 
 to dispossess the defendant of her, and would, forcibly and in breach 
 of the peace, have driven away and dispossessed the defendant of the 
 COW' : wherefore the defendant resisted the attempt, and justifies the 
 trespasses. The plaintiff replied de injuria. * * * 
 
 But the plaintiff' contended that the defendant's pleas were bad 
 for not alleging a request to desist before resisting with force. We 
 do not think there is any weight in this objection. There is a mani- 
 fest distinction between endeavouring to turn a man out of a house 
 or close, into which he has previously entered quietly, and resisting 
 a forcible attempt to enter. In the first case, a request is necessary; 
 in the latter not. This distinction is expressly taken in Green v. God- 
 dard (2 Salk. 641), and Weaver v. Bush (8 T. R. 78). In the present 
 case the pleas justify the trespasses on the ground of resisting a 
 forcible attempt, in the one case to enter the defendant's close, and in 
 the other to dispossess him of his cow ; in neither of which cases was 
 a request to desist necessary.^^ 
 
 Judgment for defendant. 
 
 3 7 The arguments of counsel, and the opinion of Lord Kenyon, C. J., with 
 whom Lawrence, J., concurred, are omitted. 
 
 3s The stateuipiit of the cjise. the arguments of counsel, and a part of the 
 opinion, on another point, are omitted. 
 
 Hepb.Tokts — 14
 
 210 TOKTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 HOLMES V. BAGGE et al. 
 (Court of Queen's Bench. 1853. 1 El. & Bl. 782, 118 Reprint, 629.) 
 
 Trespass. The declaration contained counts for two assaults. 
 There were seven pleas. The first was not guilty, with issue thereon. 
 The sixth plea, to the first count, was that the defendant Bagge and 
 ten others named, being eleven members of a cricket club called the 
 Lynn Cricket Club, and eleven others named, being eleven members 
 of a cricket club called the Lytcham Cricket Club, "were lawfully 
 possessed of a certain close," and were lawfully playing a certain law- 
 ful game or match at cricket in the said close ; and plaintiff was "un- 
 lawfully in and upon the said close," and "vexatiously and unlawfully 
 interrupted, hindered and prevented" Bagge and the other twenty 
 one persons "in and from any longer playing the said lawful game :" 
 whereupon Bagge, in his own right and by the authority of the other 
 twenty one persons, and Fletcher, as Bagge's servant, requested plain- 
 tiff "to depart from and out of the said close, and to desist from in- 
 terrupting" the playing : which plaintiff refused to do : whereupon 
 Bagge and Fletcher gently laid their hands upon plaintiff "in order 
 to remove and did remove, him from and out of the said close in this 
 plea mentioned." The seventh plea was similar to the sixth, but di- 
 rected to the second count. To the sixth and seventh pleas, the plain- 
 tiff replied de injuria. 
 
 At the trial before Lord Campbell, C. J., at the last Norwich as- 
 sizes, it appeared that the plaintiff" and the defendant Bagge were both 
 members of the committee of the Lynn Cricket Club. The owner of 
 the close mentioned in the pleas was W. S. Rolin; and he had signed 
 an agreement with the committee, of which the material parts were 
 as follows : 
 
 "The said W. S. R. agrees to let unto the said committee, who accordinglj- 
 hereby agree to hire, all that," etc., "now in the occupation of the said W. S. 
 R., to be used as a cricket field by the members of the above named club, and 
 for that purpose only, at the annual rent of £10." "The committee to 
 do all that Uiay be necessary for keeping the ground in proper playing condi- 
 tion, at tJieir own expense. The tenancy under this agreement to be determin- 
 able at the end of any current season, on notice in writing to that effect being 
 given by either party on or before the 29th September." 
 
 On the day of the alleged assault, there was a match between the 
 eleven of the Lynn Cricket Club, of which eleven defendant Bagge 
 was one, and plaintiff was not one, and the eleven of the Lytcham 
 Cricket Club. The match was played on the close in question; and 
 the spectators left a clear space round the players, which was, as the 
 jury found, "tabooed" to all but the players. During the innings of 
 the Lytcham Cricket Club, one of the Lynn eleven retired for a tem- 
 porary purpose ; and the plaintiff, who was among the spectators, was 
 requested to take his place. He complied, but did not take off his 
 coat. Bagge, who was captain of the Lynn eleven, told him to do so: 
 offence was taken at the tone in which the command w^as given ; and 
 the plaintiff w^ould neither take off his coat nor leave the "tabooed"
 
 Ch. 1) TRESPASSES 211 
 
 spot. He was then, by the direction of the defendant, forcibly re- 
 moved from the "tabooed" ground; and the assaults were committed 
 in so removing him. 
 
 The Lord Chief Justice, on proof of these facts, was of opinion that, 
 the assaults in fact being clearly made out, the issue upon Not guilty 
 must be found for the plaintiff, and that none of the other pleas were 
 made out. He took the opinion of the jury as to whether the twenty 
 two were lawfully playing at cricket, and whether the plaintiff dis- 
 turbed them. The jury said they were lawfully playing, and plaintiff 
 disturbed them by remaining on the tabooed ground. The Lord Chief 
 Justice thereupon directed a verdict for the plaintiff, but reserved 
 leave to enter a verdict on the 6th and 7th issues for the defendant, if 
 the Court should be of opinion that the part of those pleas proved con- 
 stituted a defence. 
 
 Byles Serjeant moved for a rule nisi to enter the verdict on the 6th 
 and 7th issues, pursuant to the leave reserved. 
 
 Lord CampbelIv, C. J. * * * As to the sixth and seventh 
 pleas, they set up that the twenty two persons named were lawfully 
 possessed of a close, and lawfully playing cricket there, that plaintiff 
 wrongfully remained on the close, and interrupted the playing, and, 
 though requested to depart from the close and to desist from the in- 
 terruption, would not do so ; whereupon the defendants gently laid 
 their hands on him "in order to remove, and did remove, him from and 
 out of said close." Now, no doubt a plea might have been framed to 
 meet the facts, so as to have entitled the defendant to a verdict ; for 
 according to the evidence the two elevens were lawfully playing; and, 
 as the jury found, the space round the wickets was tabooed, and the 
 plaintiff came into that tabooed space, and persisted in remaining there 
 though requested to go. And it may be that it would be a good jus- 
 tification that they removed him for disturbing persons lawfully play- 
 ing at a lawful game; and, if such had been the justification here the 
 plea would have been proved. But such is not the language of this 
 plea, it avers that the twenty two persons named were possessed of the 
 close, and that the plaintiff was removed from the close, because he 
 would not leave it. Therefore the plea justifies the trespasses on the 
 ground that the twenty two were possessed of the close, and commit- 
 ted the trespasses in defence of their possession. Now, in fact, the 
 twenty two were not possessed. It was the cricket field of the Lynn 
 Cricket Club; and eleven out of the twenty two were strangers, in- 
 vited by the Lynn Cricket Club to come there as guests to play. They 
 were in no sense possessed of the field. Therefore the justification, 
 as pleaded, fails; and those issues were rightly found for the plain- 
 tiff.3« 
 
 Rule refused. 
 
 39 The stateuient is abridged; part of the opinion, on another point, is 
 omitted. 
 
 Compare Dean v. Hogg (18.34) 10 Bing. 345, 38 R. R. 443: The defendant 
 Le\vi.s hired a steamboat for a party of pleasure to Richmond, upon the terms
 
 212 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 BRUCH V. CARTER. 
 
 (Court of Errors and Appeals of New Jersey, 1S67. 32 N. J. Law, 554.) 
 
 A writ of error brought up for review a judgment against the de- 
 fendants below, after verdict in an action of trespass. The declara- 
 tion, framed in four counts, had alleged, in the second count, that the 
 defendants, 
 
 "with force and arms, seized and broke loose, from a certain post of the said 
 plaintiff, wliere he stood tied, a certain other horse of the said plaintiff of 
 great value, etc., and removed the said horse a great distance, to wit, a dis- 
 tance of ten yards, and fastened the said other horse to a certain other post, 
 by means whereof the said horse of the said plaintiff became entangled in his 
 halter, was thrown with great violence upon the ground, and was instantly 
 killed." 
 
 The court having overruled an objection to the declaration, the de- 
 fendants, after the plaintiff had rested his cause, moved that he be 
 non-suited, on the ground that he had not established his right to 
 recover in the action. This motion was refused, and the defendants 
 excepted. 
 
 WooDHULL, J. * * * ^° No extended examination of the tes- 
 timony is required to show that the motion to non-suit was properly 
 refused. The fact that Jacob Cowell, one of the defendants, un- 
 tied the plaintiff's horse, and removed him from the hitching post, to 
 which his owner had fastened him, is so clearly established by the 
 testimony of John Carter, the plaintiff below, and of Jacob Cowell 
 
 disclosed in the following letter from the owner : "I note the Adelaide is en- 
 gaged to you for Richmond or Twickenham for Tuesday the 2Sth of May, at 
 the hire for the day of £5. 10 s., your party not exceeding fifty pei-sons." 
 The vessel was navigated by a captain and crew, employed and paid by 
 the owner. Just as she was about to start from a quay in London, the 
 plaintiff, an attorney, a stranger to the defendant, stepped on board, not being 
 aware that the vessel had been hired for the day by Lewis, and his embarka- 
 tion being countenanced by the captain. The plaintiff was not long in dis- 
 covering that he had intruded into a private party, and expressed to some one 
 near him his readiness to quit the vessel when an opportunity should present 
 itself; but the person so addressed rather counselled him to stay. However, 
 by the time the Adelaide had reached Rattersea, it was generally bruited about 
 that a stranger was on board. The ladies became alarmed; and Hogg, as the 
 plaintiff alleged, in an imperious tone, oi-dered him to quit the vessel. The 
 plaintiff, irritated by what appeared to him a harsh manner of making a law- 
 ful request, refused to go ; whereupon the defendants, after calling on the cap- 
 tain to remove the plaintiff, with considerable violence shoved him into a boat 
 alongside, and, in so doing, tore off the skirts of his coat. For this assauU the 
 plaintiff sued them in trespass; and having obtained a verdict for £10. dam- 
 ages, the question, upon a motion to set aside the verdict and enter a nonsuit 
 instead, was, whether, under the above contract with the owner, Lewis had 
 such possession of the steam vessel as to support the defendant's second plea, 
 which alleged that Lewis was lawfully possessed of the steam vessel mentioned 
 in the declaration; that the plaintiff was unlawfully in the steam vessel, from 
 which he would not depart when requested; and then justified the ronnuitting 
 of the trespasses by the defendants in defence of the possession of Lewis, and 
 in order to remove the plaintiff from the vessel. 
 
 ■*o A considerable j)ortion of the opinion, touching on other points, has beon 
 omitted. The statement of facts has been abridged.
 
 Ch. 1) TRESPASSES 213 
 
 himself, that it does not appear to have been at all controverted in 
 the cause. It is equally clear that the post in question stood in the 
 highway, and that the plaintiff's right to use it, if not exclusive, was, 
 at least, as good as that of either of the defendants. Here, then, we 
 find, without looking further, acts done by one of the defendants, 
 which must be held to amount to at least a technical trespass, for 
 .which the plaintiff below would be entitled, under the declaration in 
 the cause, to recover nominal damages against this defendant, if noth- 
 ing more. The plaintiff had, therefore, established his right to re- 
 cover in the action, and there was no error in overruling the motion 
 for a non-suit. * * * 
 
 It appears by one of the bills of exception that, towards the close 
 of the testimony on the part of the defendants, the counsel for Bruch, 
 asked the witness, Jacob Cowell, the following question: "Who put 
 the post in the ground there from which you removed Carter's horse 
 that day?" Which question was overruled by the court as proving 
 an immaterial fact. The counsel then oft'ered to prove, by the same 
 witness, that the post from which he removed the horse, was his 
 father's post; that the witness helped to put it there; and that he 
 had a right to tie to it. Which offer was overruled by the court. The 
 fourth and fifth assignments of error are founded upon the rejection 
 by the court of tlie evidence thus oft'ered on the part of the plaintiff" 
 in error. This evidence appears to me to be wholly immaterial to the 
 issue in the cause, and to have been, for that reason, properly over- 
 ruled. Admitting all these alleged facts to be true, they neither estab- 
 lish, nor tend to establish, in the defendants, or either of them, any 
 such exclusive right to use the post in question as would enable them 
 to justify the acts complained of in the declaration. It may well 
 be doubted whether even J-acob Cowell's father, upon the facts as 
 offered to be proved, could have legally untied and removed the plain- 
 tiff's horse, as the defendants, or one of them, did in this case. He 
 may have owned the post, and may have placed it where it stood, in 
 the highway near the church, for his own convenience ; he may have 
 had a perfect right to remove it at his pleasure, but while it remained 
 there, should it not be regarded as so far dedicated to the use of per- 
 sons having occasion to attend that church, that anyone finding it un- 
 occupied, might lawfully tie his horse to it? However this may be, 
 and whatever exclusive right Jacob Cowell's father may be supposed 
 to have had to use the post in question, it is very certain that Jacob 
 Cowell could not justify under that right, without showing that he 
 acted by the direction, or, at least, the permission of his father. This 
 he did not offer to do ; but merely offered to prove that he helped 
 his father put the post where it stood. 
 
 But the evidence in question, even if material, could not have been 
 received under the general issue. * * * 
 
 Judgment affirmed.
 
 214 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 OILMAN V. EMERY. 
 
 (Supreme Judicial Court of Maine, 1867. 54 Me. 460.) 
 
 Trespass to recover damages to plaintiff's horse and wagon. It 
 appeared that the plaintiff started with his brother to drive two 
 heifers from his stable, in Waterville, to another town. As they 
 were passing the defendant's premises, leading plaintiff's horse at- 
 tached to his wagon, and driving the heifers, one of the latter turned 
 and ran back. Thereupon the plaintiff hitched his horse to a shade 
 tree, twenty-two inches in diameter, standing upon the defendant's 
 premises but within the limits of the highway, and went back for 
 his heifer. The defendant seeing plaintiff's horse so hitched, removed 
 him and hitched him to a post a few feet from the tree. When the 
 plaintiff was returning for his horse, some twenty minutes afterwards, 
 he saw his horse running through the streets, with halter dragging, 
 and the wagon liroken. There was no evidence as to the precise 
 manner in which the defendant hitched the horse, or as to how he 
 was freed from the post. 
 
 Plaintiff moved to amend by adding a count alleging a wrongful 
 taking by the defendant, a negligent use and control of said horse 
 and wagon, whereby they became injured and unfit for use. The 
 presiding Judge overruled the motion, and ordered a nonsuit, and 
 the plaintiff alleged exceptions. 
 
 Walton, J. Travellers have no right to hitch horses to shade 
 trees. It is well known that most horses have a propensity to gnaw 
 whatever they are hitched to. Hitching posts of the hardest wood 
 have to be capped with iron or they are soon so badly gnawed as 
 to be ruined. Too many beautiful shade trees, planted at great ex- 
 pense and watched for years with anxious care, have been destroyed 
 by having horses hitched to them, not to know that the practice is 
 exceedingly dangerous. When, therefore, the owner of a shade 
 tree finds a horse hitched to it,' he may immediately remove him to a 
 place of safety, and such removal will not be a trespass. 
 
 In this case, the defendant found a horse hitched to one of his 
 shade trees. He unhitched him and led him a few feet and hitched 
 him to a post set in the ground on purpose to hitch horses to. This 
 was not an act of trespass, and probably the plaintiff would not have 
 complained of it, but for the fact tiiat his horse afterwards broke 
 loose from the post and ran away and broke his wagon. But there 
 is no evidence that the defendant did not use ordinary care in hitch- 
 ing the horse, and the plaintiff's writ does not charge him with negli- 
 gence ; it simply charges him with trespass vi et armis, in taking and 
 carrying away the horse, buggy, etc. 
 
 The presiding Judge, being of opinion that the action could not be 
 maintained, ordered a nonsuit, to which the plaintiff excepted. Wc 
 cannot doubt that the nonsuit was rightly ordered.
 
 Ch. 1) TRESPASSES 215 
 
 BRENDLIN v. BEERS. 
 
 (Supreme Court of New York, Appellate Division, 1911. 144 App. Div. 403, 
 
 129 N. Y. Supp. 222.) 
 
 The plaintiff, who was engaged in the retail tea and coffee business, 
 employed salesmen to take orders and make deliveries, but collected the 
 bills personally. For the purpose of collecting a bill from a cus- 
 tomer, the plaintiff' went to an apartment house owned by the de- 
 fendant, entered the vestibule, and rang the customer's bell. There- V 
 upon the janitor appeared and asked what he wanted. The plaintiff 
 informed him that he came to collect a bill from one of the tenants, 
 whom he named. The janitor then told him to go down stairs and 
 make the collection by means of the dumb-waiter, at the same time 
 saying that this was in accordance with the orders given him by 
 the owner of the premises. The plaintiff refused to do this, and 
 attempted to forcibly pass the janitor for the purpose of going to 
 his customer's apartment. The janitor thereupon seized him, and 
 they both fell to the floor, where they remained until separated. The 
 plaintiff then left the premises and instituted this action in the City 
 Court of the City of New York against the owner of the apartment 
 house to recover damages for alleged assault and battery by the jan- 
 itor. The complaint was dismissed at the close of plaintiff's case, and 
 the plaintiff appealed to the Appellate Term, which reversed the judg- 
 ment and ordered a new trial, and from such determination the de- 
 fendant appeals to this court. The janitor was acting within the scope 
 of his authority.*^ 
 
 McLaughlin, J. I am of the opinion the complaint was properly 
 dismissed. There is no evidence that the janitor used any more 
 force than was necessary to prevent the ])laintift* from entering the 
 house after he had been told he could not do so. The alleged cause 
 of action is predicated upon the proposition that the plaintiff had 
 a legal right to enter the apartment house, notwithstanding the fact 
 that the owner forbade his doing so. He had no such right, and, if 
 he had, he could not resort to force to accomplish that purpose. When 
 the owner of a house rents it to another, he thereby confers upon 
 the tenant the right to use the building or such part of it as is rented, 
 and this includes an easement of ingress and egress by the usual way. 
 This easement, however, is for the tenant (Totten v. Phipps, 52 N. 
 Y. 354; Doyle v. Lord, 64 N. Y. 432, 21 Am. Rep. 629), and third 
 parties, except upon the invitation, either express or implied, of the 
 
 *i The statement of facts has been abridged, and a part of the opinion, on 
 another point, is omitted. 
 
 For the oiirlier history of the case, see Brondlin v. Beers (1910) 68 Misc. 
 Rep. .310, 123 N. Y. Supp. 10G2 : "The ( omplaint alleges that the plaintiff en- 
 tered the premises on the invitation of one of the tenants for the purpose of 
 collecting a bill due him." See, also, (1910) 140 App. Div. 914, 125 N. Y. Supp. 
 1114. 
 
 -^ ^ 5KRVV/
 
 >/ 
 
 216 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 landlord or tenant, have no more right to enter the building than they 
 would if it were vacant. Here the record is absolutely barren of 
 any evidence that the tenant had, either expressly or impliedly, in- 
 vited the plaintiff to enter the building, contrary to the rules estab- 
 lished by the landlord. The plaintiff', before the alleged assault was 
 committed, had been informed, that he could not deliver goods or 
 collect bills, except by means of the dumb-waiter, which was located 
 in the basement. This was a rule which had been established by the 
 landlord, and so far as appears was a reasonable one, and entirely 
 satisfactory to the tenant. It certainly was one which, so far as this 
 plaintiff was concerned, the defendant had a right to make, and 
 when he was so informed, and told he could not enter for the purpose 
 of collecting the bill, he should have left the building. When he 
 thereafter attempted to force his way into the building, defendant 
 had a right to prevent his doing so, by using force sufficient for that 
 purpose. Fove v. Sewell, 21 Abb. N. C. 15; Breitenbach v. Trow- 
 bridge, 64 M'ich. 293, 31 N. W. 402, 8 Am. St. Rep. 829; Parsons 
 v. Brown, 15 Barb. 590. * * * 
 
 Reversed and judgment of City Court affirmed. 
 
 HANNABAll^SON v. SESSIONS. 
 
 (Supreme Court of Iowa, 1902. 116 Iowa, 457, 90 N. W. 93, 
 93 Am. St. Rep. 520.) 
 
 Action at law to recover damages for an alleged assault and battery. 
 It appeared that in a war of words the defendant had pushed the 
 plaintiff's arm back from the defendant's side of a partition fence. 
 There was a verdict and judgment for defendant, and plaintiff* appeals. 
 
 Weaver, J. * * * It is also said that the court erred in in- 
 structing the jury that, if plaintiff leaned over the partition fence and 
 attempted to interfere with the ladder, defendant had the right to 
 use such force upon her as was reasonably necessary to cause her to 
 desist, and to expel her from his premises. It is claimed that this 
 instruction is wrong. * * * The general doctrine announced in 
 the instruction is, in our judgment, correct. The mere fact that the 
 plaintiff' did not step across the boundary line does not make her any 
 less a trespasser if she reached her arm across the line, as she admits 
 she did. It is one of the oldest rules of property known to the law 
 that the title of the owner of the soil extends, not only downward to 
 the center of the earth, but upward usque ad coelum, although it is, 
 perhaps, doubtful whether owners as quarrelsome as the parties in 
 this case will ever enjoy the usufruct of their property in the lat- 
 ter direction. The maxim, "Ubi pars est ibi est totum," — that where 
 the greater part is, there is the whole, — does not apply to tlie per- 
 son of the trespasser, and the court and jury could therefore not be
 
 Ch. 1) TRESPASSES 217 
 
 expected to enter into any inquiry as to the side of the boundary 
 line upon which plaintiff preponderated, as she reached over the 
 fence top. It was enough that she thrust her hand or arm across 
 the boundary to technically authorize the defendant to demand that 
 she cease the intrusion, and to justify him in using reasonable and 
 necessary force required for the expulsion of so much of her person 
 as he found upon his side of the line, being careful to keep within 
 the limits of the rule, "Molliter manus imposuit," so far as was con- 
 sistent with his own safety. Under the instructions of the court, 
 the jury must have found that defendant kept within the scope of 
 his legal rights in this respect, and that the alleged assault was not 
 established by the evidence. 
 
 The judgment of the district court is affirmed.^* 
 
 GREGORY and Honour, his Wife, v. HILL. 
 (Court of King's Bench, 1799. 8 Term R. 299, 101 Reprint, 1400.) 
 
 The declaration stated, that the defendant, on, etc., at, etc., with 
 force and arms, made an assault on the plaintiff's wife; and then and 
 there beat, bruised, and wounded and ill-treated her; and then and 
 there gave and struck her divers and repeated blows and strokes on 
 divers parts of her body ; and then and there, with great force and 
 violence, several and repeated times, knocked her down upon the 
 ground, whereby, etc. 
 
 To this the defendant pleaded, that before and at the time when, 
 etc., he was possessed of a certain dwelling house, situate, etc., which 
 he then inhabited with his family; and that the said Honour, before 
 the said time when, etc., entered into the said house, and continued 
 therein, without the licence and against the will of him the defendant; 
 and then and there made a great noise and disturbance therein, and 
 disturbed the defendant and his family in the said house; whereupon 
 the defendant requested she would cease her said disturbance, and 
 quietly depart out of the said house, which she refused to do ; where- 
 upon the defendant gently laid his hands upon her, to turn her out of 
 the said house, as it was lawful for him to do, which is the same as- 
 saulting, beating, bruising, wounding, ill-treating, and striking the said 
 Honour divers and repeated blows and strokes, and knocking her 
 down upon the ground, whereof the plaintiffs have above complained 
 against him ; without this, that the defendant is guilty of the premises 
 aforesaid, at the place aforesaid, or elsewhere, out of the said house 
 at, etc., and this he is ready to verify; wherefore, etc. 
 
 To this plea the plaintiff demurred ; and assigned for causes, that 
 it alleges no sufficient justification or excuse, nor any denial of the 
 
 4 2 Part of the opinion is omitted. The statement of the case is abridged.
 
 218 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 battery, bruising, wounding and ill-treating of the said Honour, and 
 striking the said blows and strokes, and knocking down of the said 
 Honour upon the ground, in the introductory part of the said plea 
 mentioned. 
 
 Marryat was to have argued in support of the demurrer, and Espi- 
 nasse against it; but 
 
 The Court said the case was too plain for argument : that though 
 a plea of molliter manus imposuit would justify what the law con- 
 siders as an assault, such as might be necessary to have put the party 
 out of the house, without outrage and violence, yet it never was con- 
 sidered as any answer to a charge, such as is contained in the dec- 
 laration, of beating, wounding and knocking the party down ; and 
 they adverted to the case of Collins v. Renison, Sayer, 138, where, to 
 an action of trespass, alleging that the defendant overturned a ladder 
 on which the plaintiff was standing, and threw him from it on the 
 ground, the defendant pleaded, that he was possessed of a garden ; 
 and that the plaintiff, against his will, set up a ladder there, and went 
 up the ladder, in order to nail a board to the plaintiff's house : that 
 the defendant forbade him, and requested him to come down; anrl 
 that the plaintiff' persisting in nailing the board, the defendant gently 
 shook the ladder, and gently overturned it and gently threw the plain- 
 tiff from it on the ground, doing him as little damage as possible ; 
 which was holden bad_ on demurrer. 
 
 The defendant had leave to amend. 
 
 JOHNSON V. PATTERSON. 
 (Supreirie Court of Errors of Connecticut, 1840. 14 Conn. 1. .S.o Am. Dec. 96.) 
 
 The original action was trespass for killing and destroying ten hens 
 and chickens, the property of the plaintiff. There was also a special 
 count in case, for the same injury. 
 
 On the trial before the county court, the plaintiff oft'ered evidence 
 to prove, and claimed to have proved, the allegations in his declara- 
 tion. The defendant claimed to have proved, by proper evidence in- 
 troduced for that purpose, that he had been, for a long time, trespass- 
 ed upon, by the plaintiff's fowls coming upon his land and destroying 
 the seeds therein planted, and the vegetation thereon growing; and 
 that to prevent a repetition and continuation of these trespasses, he 
 prepared Indian meal mixed with arsenic, and scattered it upon his 
 land, having first informed the plaintiff, that such a preparation would 
 be placed there, and that the plaintiff' must confine his fowls, or in 
 some other. way prevent them from trespassing upon his land again, 
 otherwise they certainly would be poisoned ; that after such notice, 
 the meal so prepared was immediately scattered on the defendant's 
 land ; and the plaintiff still neglecting to confine his fowls, or to pre- 
 vent their coming upon the defendant's premises, they trespassed
 
 Ch. 1) TRESPASSES 219 
 
 thereon, and while so trespassing ate the Indian meal so prepared, 
 and some of them thereafter died in consequence of it; which, the 
 defendant claimed, was the same injury for which the plaintiff sought 
 to recover damages. And the defendant claimed, that if these facts 
 were satisfactorily proved, he was justified; and that the court should 
 so charge the jury. The defendant further claimed, that he might 
 lawfully scatter poisoned meal upon his own premises, without any 
 notice to the plaintiff. 
 
 The court charged the jury, that unless the defendant had given 
 full and ample notice to the plaintiff', after the poisoned meal had been 
 laid, the defendant could not be justified; and that no previous notice 
 of his intention so to prepare and leave the poisoned meal, could be 
 sufficient; and refused to charge the jury, that the defendant had a 
 right to scatter it, without notice. 
 
 The jury returned a verdict for the plaintiff". The defendant filed 
 a bill of exceptions to the charge, and thereupon brought a writ of 
 error in the superior court ; which was reserved for the consideration 
 and advice of this court. 
 
 Sher:iiax, J. This is not a case in which the destruction of the 
 plaintiff's property resulted from acts done by the defendant, in the 
 ordinary use of his own, without any intention to do the injury com- 
 plained; as in Blythe v. Topham, Cro. Jac. 158, where a stray horse 
 fell into a pit made by the defendant in the common; or as in Bush 
 V. Brainard, 1 Cow. (N. Y.) 78, 13 Am. Dec. 513, where the cow of 
 the plaintiff, trespassing on the defendant's land, was killed, by drink- 
 ing maple syrup in the defendant's sugar works. In this case, the 
 defendant scattered the poison in his enclosure with intent to kill the 
 plaintiff's fowls, if they should again trespass on the place. Being 
 of opinion that the notice given by the defendant immediately before 
 the poisonous article was put on the land, was sufficient, the only 
 important question is, whether the defendant, having given such no- 
 tice, offered in evidence a sufficient justification. If the jury have 
 found the verdict, which they ought ultimately to give, the final judg- 
 ment must be affirmed, although the court erred in regard to the suf- 
 ficiency of the notice. 
 
 By the settled principles of the English law, the degree of force, 
 which may be employed in defending one's person or property, when 
 present, is well defined, and admits of no controversy. It is entire- 
 ly and exclusively defensive. If a man makes an assault on the per- 
 son of another ; or enters his house and refuses to go out, when or- 
 dered ; or enters on his land ; or in any way attempts a mere trespass 
 on his property real or personal, by force; so much force as is neces- 
 sary to repel or prevent injury, or remove the trespasser, may be 
 employed. There is no doubt, that if A. is trespassing on the land of 
 B., the latter, when present, by himself or his servants, may, after 
 notice to depart, use such reasonable force as is necessary for his re- 
 moval. He may use like force to expel another's beast from his land,
 
 220 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 or he may seize and impound it. But he has no right, by the English 
 law or our own, when present, in such a case, to destroy life, or in- 
 flict permanent injury, or use greater force than is necessary for re- 
 moval or prevention. This is admitted. The right to kill a bull or 
 other furious beast from which one's person is in present danger; or 
 a dog chasing sheep or other animals of property, so that they are 
 exposed to harm ; or a dog seen at large, which is accustomed to bite 
 mankind ; is an exception to this rule. * * * 
 
 We cannot justify the defendant in committing the comparatively 
 small trespass for which the plaintiff complains, upon any principles 
 which have been admitted in this state, or which we can reconcile with 
 those just provisions of the English common law, which we have al- 
 ready incorporated into our own, in regard to the means which may 
 be used to prevent a simple trespass. The case does not involve the 
 inquiry, what may lawfully be done to prevent a burglary or other 
 felony. Cases of that character are governed by other and well set- 
 tled rules. 
 
 We advise that the judgment of the county court be affirmed.*^ 
 
 McCHESNEY v. WILSON. 
 
 (Supreme Court of Michigan, 1903. 132 Mich. 252, 93 N. W. 627, 1 Ann. 
 
 Gas. 191.) 
 
 [This case is given, ante, page 200.] 
 
 SKINNER v. WILDER. 
 
 (Supreme Court of Vermont, 1S65. 38 Vt. 115, 83 Am. Dec. G45.) 
 
 Trespass quare clausum fregit, with a count in trover. Plea, the 
 
 general issue. Upon the plaintiff's offer to prove the facts set forth 
 
 in the opinion the court held pro forma that if these facts were proved 
 
 ^ the plaintiff would not be entitled to recover, and directed a verdict 
 
 for the defendant, to which the plaintiff excepted. 
 
 Pdck, J. In this case, it appears, that the plaintiff planted or set 
 apple trees on his own land six feet from the division line between 
 his land and the defendant's land; the trees grew until the roots ex- 
 tended into and the branches overhung the defendant's land. The 
 
 •*8 Part of the opinion is omitted. 
 
 Accord: James v. Tindall (1913, Del. Super.) 88 Atl. 1003: D. shot and 
 killed sixteen turkeys belonging to P., which at the time were in D.'s field. D. 
 claimed that the killing of the turkeys was justified, because they were on 
 V his property destroying grain. But, said Kioe, J., delivering the opinion : "We 
 think it was neither necessary nor justifiable to kill the turkeys in the pro- 
 tection of grain. The defendant might have impounded the turkeys or brought 
 an action for damages to his property, if any, caused by the fowls."
 
 Ch. 1) TRESPASSES 221 
 
 question is, whether the defendant is liable either in trespass on the 
 freehold or in trover for picking, carrying away, and converting to 
 his own use the apples growing on the branches overhanging his own 
 land. Each party claims to be the sole owner of the fruit in ques- 
 tion ; the plaintiff upon the ground that he is the owner of the tree ; 
 the defendant upon the ground that the branches and the fruit there- 
 on overhung his land, and that in virtue of his ownership of his land 
 he owns everything above it. 
 
 It is true that whoever owns land owns above it to an indefinite 
 height, — that is, he owns the space above, or rather has the right to 
 appropriate it to his use, so that no one can lawfully obstruct it to 
 his prejudice. But it is not true in all cases that the owner of land 
 owns everything upon or above it, though placed there wrongfully 
 by another. Certainly, in case one's personal property is wrongfully 
 placed upon the land of another, the property in the thing is not there- 
 by changed. The owner of the soil has his remedy by action for 
 damages, and he may remove it ; but he does not become the owner. 
 If a man build a house on his own land, with the eaves and windows 
 above the surface of the ground projecting over the land of the ad- 
 joining proprietor, he is liable to an action for damages, and generally, 
 at least under some circumstances, the adjoining proprietor may re- 
 move the obstruction as a nuisance ; but the material removed does 
 not become his property. In order to justify the act of removal in 
 such a case, he must allege that the obstruction was wrongfully en- 
 cumbering his premises, and that he therefore removed it, doing no 
 unnecessary damage. If it appear that he unnecessarily destroyed it, 
 or appropriated it to his own use, the justification fails. This shows 
 that the right of removal does not depend on ownership, but on his 
 right to protect his own premises from invasion. The defendant there- 
 fore cannot be regarded as the owner of the apples merely because 
 the branches on which they grew were wrongfully encumbering his 
 ground. * * * 
 
 Judgment reversed, and new trial granted.** 
 
 TURNER V. MEYMOTT. 
 
 (Court of Common Pleas, 1823. 1 Bing. 158, 130 Reprint 64, 25 R. R. 612.) 
 
 Trespass for breaking and entering plaintiff's house. At the trial 
 before the Lord Chief Baron, it appeared that the plaintiff had been 
 tenant of the house to the defendant, from week to week ; that he 
 had received a regular notice to quit, but omitted to deliver up pos- 
 
 4 4 Only so much of the case is given as relates to the one point. 
 
 Compare Dul)ois v. Beaver (1802) 25 N. Y. 123. 82 Am. Dec. .'526 (action in 
 trespass for cutting down a tree which stood in the line of the division fence 
 between the plaintiff's and the defendant's land).
 
 222 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 session, whereupon the defendant, at a time when nobody was in 
 the house, broke open the door with a crow-bar, and other forcible 
 apphcations, and resumed possession. Some httle furniture was still 
 in the house. The Chief Baron having said that the law would not 
 allow the defendant thus forcibly to reinstate himself, the jury found 
 a verdict for the plaintiff, whereupon, 
 
 Taddy, Serjt., obtained a rule nisi for a new trial, and 
 Pell, Serjt., now shewed cause against the rule: The question is, 
 whether when a tenant refuses to deliver possession after a regular 
 notice to quit, the landlord may make a forcible re-entry : but it can- 
 not be permitted he should take the law into his own hands, and do 
 that by violence which is usually accomplished by an action of eject- 
 ment. It is contrary to the first principles of law, that he should be- 
 come judge in his own cause, and substitute his own strength for the 
 ordinary civil process. If there had been resistance, and death had 
 ensued, the crime of murder would have been committed; and it 
 makes no difference that nobody was in the house, for the defendant 
 could not ascertain that till he entered, and the plaintiff might have 
 come up while the violence was in progress. Some furniture being 
 in the house, this was not a case of vacant possession. The statute 
 of 11 Geo. II., which gives the landlord double value where the ten- 
 ant holds over, shews what is the appropriate remedy in such cases ; 
 but that statute would be useless if the landlord might thus take the 
 law into his own hands. It might be urged that if the landlord had 
 proceeded irregularly he would be liable in an indictm.ejit for a forci- 
 ble entry, but his subsequent liability would not justify the previous 
 wrong. In Taunton v. Costar ^^ the entry made by the landlord's put- 
 ting his cattle on the ground was entirely peaceable, and to that there 
 could be no objection; so that Lord Kenyon's observation, "that if he 
 dispossessed the tenant with a strong hand, he would be hable for a 
 forcible entry, but there could be no doubt of his right to enter on 
 the land at the expiration of the term," was uncalled for by the case 
 before him, and leads to the absurdity that, in certain cases, a land- 
 lord may enter, and yet he shall be punished for the entry. 
 
 Dallas, Ch. J. The high respect which I entertain for my Lord 
 Chief Baron has alone made me hesitate a single moment, and even 
 now, perhaps, as the cause is to go down to be tried again, I ought 
 not to express an opinion. The question is, whether a landlord has 
 a right to enter in the manner the defendant did under the circum- 
 stances of this case, in which the tenant held over after his right to 
 possession had ceased, and the landlord's right to enter had accrued. 
 It must be admitted he had a right to take possession in some way; 
 the case of Taunton v. Costar*" is in point to shew that he might 
 
 *6in Taunton v. Costar (1797) 7 T. R. 431, 4 R. R. 481, it appeared that a 
 tenant from year to year, wlio was holding over after proi>er notice to quit, 
 bad distrained as damage feasant cortiiin cattle which his landlord, after the 
 expiration of the term, had peaceably put upon the premises.
 
 Ch. 1) TRESPASSES 223 
 
 enter peaceably, and that no ejectment was necessary. If he has used 
 force, that is an offence of itself ; but an offence against the public 
 for which, if he has done wrong, he may be indicted.*" 
 
 BuRROUGH, J. I was once concerned at the Cockpit in a case sim- 
 ilar to the present, where I used the same arguments as have now 
 been urged by my brother Pell, but Lord Kenyon and Lord Alvanley, 
 who were there, entertained no doubt, and said the landlord might 
 enter. The rule for a new trial in this case must be made absolute.*^ 
 
 46 The allusion is to the statute of 5 Rich. II, c. 7 (1381), the terms of which 
 are given ante. 
 
 4- In Beddall v. Maitland (ISSl) 17 Ch. Div. 174, ISS. Fry. J., remarks as 
 follows of this act of 13S1 (5 Rich. II., c. 7), and its effect in England: "This 
 statute creates one of the great differences which exist in our law between 
 the being in possession and the being out of possession of land, and which gave 
 rise to the old saying that posses^^ion is nine points of the law. The effect 
 of the statute is this, that when a man is in possession he may use force to 
 keep out a trespasser; hut, if a trespasser has gained possession, the right- 
 ful owner cannot use force to put him out, but must appeal to the law for 
 assistance. And the result of the cases appears to me to be this, that, inas- 
 much as the possession of the defendant was unlawful, he can recover no 
 damages for the forcible entry of the plaintiff. He can recover no damages 
 for the entry, because the possession was not legally his, and he can recover 
 none for force used in the entry because, though the statute of Rich. II. 
 creates a crime, it gives no civil remedy. But. in respect of independent wrong- 
 ful acts which are done in the course of or after the forcible entry, a right 
 of action does arise, because the person doing them cannot allege that the acts 
 were lawful, unless justified by a lawful entry ; and he cannot plead that he 
 has a lawful possession. This, as it appears to me, is the result of the cases. 
 The leading authority on the subject is Newton v. Harland (1840) 1 Scott, 
 X. R. 474, a case in which a great difference of opinion was evinced between 
 the learned Judges before whom it came. It was tried three times, first 
 lief ore Baron Parke, secondly before Baron Alderson, and thirdly before Mr. 
 Justice Coltman, and came three times before the Court of Common Pleas in 
 Banc, and it must, in my judgment, be taken as having settled the law on the 
 subject. The action was brought to recover damages for an assault committed 
 on the plaintiffs wife in the course of a forcible entry by the defendant into 
 some apartments which had been occupied by the plaintiff as tenant to the 
 defendant. The plaintiff remained in the apartments after the expiration of 
 his term, and the defendant entered by force and turned out the plaintift"s 
 wife and family, and in so doing assaulted the wife. The defendant pleaded 
 that the acts were done in defence of his iX)Ssession of the house, and the 
 Court of Common Pleas held, contrary to< the opinions of Baron Parke and 
 Baron Alderson, that the defence failed, because the defendant's entry was 
 unlawful. On the other hand, when the cause of action alleged is simply the 
 eviction, no damages can be recovered. That is the result of Pollen v. I3rewer 
 (1859) 7 C. B. (N. S.) 371, and it is also clear from other cases. No doubt, in 
 Harvey v. Brydges (1845) 14 M. & W. 437, Baron Parke and Baron Alderson 
 expressed their disapproval of Newton v. Harland (1840) 1 Scott. N. R. 474, 
 but they were the Judges who had tried that case, and whose opinions had 
 been overruled by the Court in Banc. * * * i think that none of those 
 cases in any way countervail Newton v. Harland (1840) 1 Scott, N. R. 474, 
 which I take to have established this, that there is a good cause of action 
 whenever in the course of a forcible entry there has been committed by the 
 Ijerson who has entered forcibly an independent wrong, some act which can 
 be justified only if he was in lawful possession. I come, therefore, to the 
 conclusion that, in respect of his claim for damages for the forcible entry 
 and eviction, the defendant cannot succeed, but that, in respect of his claim 
 for damages for the injury done to his furniture, which the plaintiff could 
 only justify by a lawful possession, the defendant is entitled to succeed."' 
 
 The facts in Beddall v. Maitland which are matei'ial to the question may be
 
 224 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 ALLEN V. KEILY. 
 
 (Supreme Court of Rhode Island, 1892. 17 R. I. 731, 24 Atl. 776, 33 Am. 
 
 St. Rep. 905, 16 L. R. A. 798.) 
 
 Defendant's petition for a new trial. 
 
 TiLLiNGHAST. J. The only question raised by the exceptions taken 
 to the rulings of the court in this case is, whether a landlord can forci- 
 bly eject a tenant from his premises, after the expiration of the 
 tenancy, if the tenant holds possession, in good faith, under a color 
 and reasonable claim of right. The defendant requested the court 
 to charge the jury as follows, viz. : 
 
 First. "If the landlord enter and expel the occupant who wrongly holds a 
 tenement, but uses no more force than is reasonably necessary to accomplish 
 this, he will not be liable to an action of assault and battery, although, in 
 order to effect such expulsion and removal, it becomes necessary to use so 
 much force and violence as to subject him to an indictment at common law 
 for a breach of the peace, or under the statute for making forcible entry." 
 
 Second. "If the plaintitf was in possession, but the rent was due more than 
 fifteen days after demand, the plaintiff was a mere trespasser and could be 
 expelled by the defendant." 
 
 These requests were refused by the court, and the following was 
 charged in lieu thereof, viz. : "One in possession under a reasonable 
 claim and color of right, honestly believing it, has a right to main- 
 tain his possession, and no personal violence can be used to expel him. 
 * * * If Mrs. Baldwin was in possession under a claim of right, 
 the defendant had no right to use any degree of personal force to 
 expel plaintiff." 
 
 In explanation of its charge, and refusal to charge as requested, the 
 court stated the law applicable to the case on trial to be as follows, 
 viz. : "That an owner has the right to put an undoubted trespasser oft" 
 his premises. But if one is out of possession of property held by 
 
 summarized thus: P.'s lease of D.'s house had expired. D. had demanded 
 possession, but P. still continued to occupy the house. In this state of things, 
 D., accompanied by several men, came to the house to douuind immediate 
 possession. He was admitted without resistance at the front door and told 
 P. what he had come for. After some conversation they went out of the house 
 together to loolv at the stock in the nursery. Wlien they were outside, P. 
 suddenly ran back into the house, and locked the door, and refused to allow 
 D. to re-enter. D., with the assistance of his men, forcibly broke down the 
 back door. No further resistance was offered. D. and his men turned P. and 
 his family out, and also put his furniture out of the house. P. claimed a 
 right to recover damages for the forcible entry and eviction and also a right 
 to recover for the damage done to the furniture. 
 
 See also, as to the Englisli doctrine, 18 llaisbury's Laws of England, 557- 
 558 (1911): "Where the tenant fails to deliver up possession, the landh)rd 
 is entitled to re-enter and take possession, subject only to certain statutory 
 restrictions. Thus he can re-enter where the tenant has abandoned possession, 
 or where he can ellect the entry peaceably; and even if he enters forcibly, 
 and is thus liable to criminal proceedings under the statutes, yet the tenant has 
 no civil remedy against him in respect of the entry, though the tenant can 
 recover damages for injury to himself, or his family, or his property in the 
 <'ourse of the entry. If, however, the entry is peaceable, the landlord is not 
 liable for damage to goods which are unlawfully ou the premises."
 
 Ch. 1) TRESPASSES 225 
 
 another under a color and reasonable claim of right, he has no right 
 to use personal violence to regain possession. Hence, if Mrs. Bald- 
 win was in possession under a fair claim of right to remain a tenant, 
 or under her husband's tenancy, on the ground that the defendant 
 had money belonging to one of them in his possession, more than the 
 amount of rent due, on account of which her occupation had been 
 recognized, he had no right to use personal violence to eject her." 
 
 We think this was error. The question at issue, in so far as the 
 tenancy in question was concerned, was, whether or not it had been 
 terminated. If it had, the plaintiff was a mere trespasser, and the 
 defendant had the right to use so much force as was reasonably neces- 
 sary to expel her. If the tenancy had not been terminated, she was 
 not a trespasser, and the defendant had no right to interfere with 
 her. But the question as to whether Mrs. Baldwin was entitled to pos- 
 session was a mere question of right, depending upon the fact as to 
 whether the tenancy had been legally terminated, and not upon the 
 belief of the tenant as to her right to remain. That is to say, the mere 
 fact that a person honestly believes that he is lawfully in possession 
 of a tenement or messuage does not prevent him from being a tres- 
 passer, and liable to be dealt with as such. Possession of real estate 
 is either rightful or wrongful. And the right to the possession there- 
 of, like the right of ownership, is to be determined solely by the evi- 
 dence submitted, and the law applicable thereto, and is not dependent 
 upon, or in any degree affected by, the belief of the claimant as to 
 such right. If this were not so, it would be in the power of any one 
 in the wrongful possession of real estate, who believes his possession 
 to be rightful, to compel the person who is legally entitled to the pos- 
 session thereof to resort to an action at law to recover the same, thus 
 practically nullifying the right which the law confers upon the owner 
 to take forcible possession by expelling the trespasser. 
 
 Nor do we see that the distinction made by the court, between 
 "an undoubted trespasser" and one who holds possession "under a 
 color and reasonable claim of right," changes the legal aspect of the 
 case. Mrs. Baldwin was either a trespasser or she was not. If she 
 was, neither her belief that she was not, nor the fact that she held 
 "under a color and reasonable claim of right," was of any importance. 
 The only question of importance concerning this branch of the case 
 was, whether she was in fact a trespasser. And this was a question 
 to be determined by the jury upon all the proof bearing upon that 
 point. 
 
 The doctrine laid down by this court in Souter v. Codman, 14 R. 
 I. 119, 51 Am. Rep. 364, and subsequently followed in Freeman v. 
 Wilson, 16 R. I. 524, 17 Atl. 921, is in harmony with the current of 
 both the American and English decisions as to the right of a land- 
 lord to use physical force in expelling a tenant whose term has ex- 
 Hepb.Torts — 15
 
 226 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 pired; and we see no reason to overrule or modify the opinions there- 
 in expressed. See, also, 2 Taylor's Landlord and Tenant (8th Ed.) 
 §§ 531, 532, and cases cited. 
 
 We are therefore of the opinion that the court erred in refusing the 
 defendant's requests to charge, and in charging to the contrary, as 
 above set forth. 
 
 Petition granted. 
 
 BLISS V. BANGE. 
 (Supreme Court of Errors of Connecticut, 1S26. 6 Conn. 78.) 
 
 This was an action of trespass quare clausum fregit, brought on 
 the statute directing proceedings against forcible entry and detainer, 
 demanding treble damages. 
 
 The declaration stated, that on the 9th of December, 1823, the plain- 
 tiff was in the actual and peaceable possession of the locus in quo, 
 when the defendant, with force and strong hand, entered upon the 
 same, and broke open divers doors of the plaintiff's barn thereon 
 standing, and broke to pieces divers locks, staples and hinges of said 
 doors, and ejected the plaintiff, and kept him from the possession, use 
 and occupation of the premises, with other enormities ; and that the 
 plaintiff, on the same day, pursuant to the statute, prayed out a writ 
 of forcible entry and detainer against the defendant, to recover pos- 
 session of the premises ; and that such writ being legally served and 
 returned, a jury, legally empannelled, found, by their verdict, that 
 the defendant did, by force and strong hand, enter upon the premises, 
 and detain the same, which verdict was accepted by the court, who 
 thereupon rendered judgment of restitution of the premises. The 
 defendant in his plea, admitting that he had entered upon the premises, 
 and done the acts complained of, attempted to justify such entry and 
 the commission of such acts, by command, and as the servant of Alice 
 Lawrence, in whom the freehold of the premises then was. This 
 plea was traversed by the plaintiff; and the jury found the facts al- 
 leged in it to be true. The plaintiff then filed his motion, that judg- 
 ment might be rendered in his favor veredicto non obstante ; and the 
 question arising on such motion, was reserved for the advice of this 
 court. 
 
 Daggett, J. There can be no doubt but that this motion ought to 
 prevail, if an action of trespass can be maintained, under the statute, 
 where the plaintiff, being in possession, has been forcibly ejected from 
 lands or tenements, by the true owner : because enough is admitted, 
 on that supposition by this plea, to shew a clear cause of action. 
 Does, then, the statute "directing proceedings against forcible entry 
 and detainer," by the fifth section, give the plaintiff' an action of tres- 
 pass? 
 
 It is urged, by the counsel for the defendant, that the English stat- 
 ute, and that of the state of New York, are similar to that of Con-
 
 Ch. 1) TRESPASSES 227 
 
 necticut; and that their courts and commentators have established 
 the contrary doctrine, declaring, that when it appears on trial, that 
 the plaintiff had no title, an action of trespass cannot be sustained. 
 I decline an examination of these positions, because in my judgment, 
 our statute is perfectly unequivocal. It gives the action of trespass, 
 in so many words, to the party aggrieved ; and the party aggrieved is, 
 by irresistible implication, the person forcibly ejected. The statute 
 designedly excludes the examination and decision of the question of 
 title, and, on principles of public policy, prohibits forcible entries and 
 detainers, authorizes the process of restitution, and the action of tres- 
 pass. 
 
 I am not at liberty to disobey a plain legislative enactment of an- 
 cient date, and carefully revised, as late as 1821, to which there is no 
 constitutional objection. I would, therefore, advise the superior court, 
 that judgment be entered up for the plaintiff; and that damages be 
 assessed by that court. 
 
 The other Judges vrere of the same opinion. 
 
 Judgment for the plaintiff.*^ 
 
 48 Tlie arguments of counsel are omitted. On the owner's invarfon of a 
 possession without right, see 19 Cyc. 1132. 
 
 See, also, 24 Cyc. 1394 et seq., and Dec. Dig. Key-No. "Landlord and Tenant," 
 § 277(3). Compare Domhoff v. Paul Stier, Inc. (1913) 157 App. Div. 204, 141 
 N. Y. Supp. 82.5: "Trespass is an injury to possession, and action therefor 
 may be maintained by any one in actual possession of land (Holmes v. Seelv 
 flSGS] 19 Wend. [X. Y.] 509 ; Van Brunt v. Schenck [1814] 11 Johns. [N. Y.'] 
 377). and title is unnecessary (.38 Cyc. 10O4; Oglesbv v. Stodghill [1857] 23 
 Ga. 590; Price v. Brown [18S6] 101 N. Y. 669, 670, 5 X. E. 434). ^Tiether 
 plaintiff was a tenant or a subtenant, whether he was liable to be dispossessed 
 for holding over after expiration of his term, or for failure to pay rent, he 
 was in actual possession of at least a portion of the farm, and defendant had 
 no i-ight to regain possession of such premises by force and violence. Bristor 
 V. Burr (1890) 120 X. Y. 427, 24 X. E. 937, 8 L. R. A. 710; Michaels v. 
 Fishel (1902) 169 X. Y. 381. 389, 62 X. E. 42S; Xorton v. Arveruam Co. (lS97t 
 14 App. Div. 581, 43 N. Y. Supp. 1099." Per Burr, J. 
 
 And see Judy v. Citizen (1884) 101 Ind. IS, 20: "The statute providing a 
 remedy for a forcible entry was designed to protect persons in the actual 
 peaceable possession of premises, under a claim of right, from forcible evic- 
 tion or unlawful invasion, whether such claim might in the end turn out 
 to be well founded or not. Cooley, Torts, 323. Where a person is thus in 
 actual peaceable possession, and such possession is forcilily and violently in- 
 vaded, even though it be by the owner, who in the end has the right of pos- 
 session, such person is entitled to the remedy provided by this statute. In 
 such case, proof of actual, exclusive, peaceable possession under a claim of 
 right will support the 'right to possession,' and entitle the person evicted to res- 
 titution. 'Presumptively, a peaceable possession is always rightful.' Cooley, 
 Torts, 326. If this is not the proper construction of the statute, then every 
 tenant holding over, and every other person in actual possession, whose claim 
 turns out not to be well founded, would be at the mercy of the landlord or 
 other person having the better legal right, and might be expelled with what- 
 ever violence the owner might reasonably think fit to employ, thus substitut- 
 ing force and violence in the place of the orderly methods of the law. To 
 prevent this was, as we have seen, the very purpose for which the forcible 
 entry and detainer act was first enacted. Under this statute, the possession 
 cannot be changed against the person who actually has it, under claim of 
 right, without the intervention of legal procedure." Per Mitchell, J.
 
 228 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 GREELEY v. SPRATT. 
 
 (Supreme Court of Florida, 1883. 19 Fla. 645.) 
 
 This was a proceeding by Spratt, under the statute relating to for- 
 cible entry and unlawful detainer. The plaintiff, praying for restitu- 
 tion and damages, alleged "that Jonathan C. Greeley hath forcibly 
 turned him out of and unlawfully and against his consent withholds 
 from him the possession of a certain room, to wit, the room in the 
 three-story brick building situate in the city of Jacksonville in the 
 said county in the southwest corner of Pine and Forsyth streets im- 
 mediately to the right of the staircase leading to the third story of 
 said building." 
 
 Spratt testified that he took possession of the room in question about 
 the first day of July, 1880, as his own property, to be used as a law 
 office, and put in his office furniture, and was there several weeks ; 
 that he left one evening, having locked the door ; that he returned, 
 the next morning, as usual, and found his office furniture out, and a 
 colored man there, and a white man, Warriner, taking the lock from 
 the door ; that witness was denied permission to enter ; that when 
 he offered to open the door something was said by persons inside; 
 that witness then said, "What does this mean?" and that from the 
 words in reply, he understood that he could not come in without using 
 force. The rental value of the room was about $15 a month. On 
 cross-examination defendant's coimsel, to show that Spratt was sim- 
 ply an intruder or trespasser, asked him, "By what means did you 
 originally get possession of this room?" The question was objected 
 to as immaterial, and the objection was sustained, to which ruling the 
 defendant excepted. The judge charged the jury thus: 
 
 "The peaceable possession and the forcible entry are the questions at issue. 
 The law forbids forcible entry, whether the party has title or not, and there 
 can be no inquiry into the title of the property. If the party entering has 
 right to the possession he must resort to the authority of law to obtain such 
 possession. * * * jf ^^j^g jury find from the evidence that the plaintiff, 
 on or about the first day of July, 1880, was in the possession of the room de- 
 scribed in the complaint, using the same for his office, and that while so pos- 
 sessed the defendant Greeley, by himself or his agent, instructed for that 
 purpose, and whether said Greeley was present or not, by the use of a skeleton 
 key opened the door and entered said room in the night time, and in the ab- 
 sence of the plaintiff, and turned out of said room the office furniture of said 
 room so belonging to tlie plaintiff, and resisted the said plaintiff" the next 
 morning by closing the door upon him, and kept possession of said room until 
 and at the exhibition of this complaint, then the jury must find for the plain- 
 tiff." 
 
 Both these charges were excepted to by the defendant. There was 
 a verdict for plaintiff in statutory form and damages assessed at $224. 
 From a judgment upon this verdict the defendant appeals. 
 
 Randall, Ch. J.*® * * * 'pj^g third ground of error is the rul- 
 ing of the court in excluding the question by what means the plain- 
 
 *o The statement of facts is abridged. A part of the opinion ip omitted.
 
 Ch. 1) TRESPASSES 229 
 
 tiff obtained possession of the room, which question was asked for 
 the purpose of showing that the plaintiff was an intruder or trespasser. 
 The statute provides that no person shall enter into lands or tene- 
 ments but in case where entry is given by law, nor shall any person, 
 where entry is given by law, enter with a strong hand, but only in a 
 peaceable, easy and open manner. If any person shall enter in case 
 where entry is not given by law, or shall enter any lands or tenements 
 with strong hand, even in case where entry is given by law, the per- 
 son turned out or deprived of possession by such unlawful or forci- 
 ble entry, by whatever right or estate he held or claimed such posses- 
 sion, shall at any time within three years be entitled to the summary 
 remedy provided. Chap. 1630, Act of 1868. The complaint was made 
 under the provisions of this act. 
 
 It is not pretended that the plaintiff was a loafer or a vagabond, 
 intruding upon the house or premises of another in an unseemly or 
 offensive manner, for the testimony shows that the plaintiff was peace- 
 ably occupying the room in question as a law office with his books 
 and furniture when he was dispossessed by putting his property out 
 in the night and forbidden to enter, and by force prevented from en- 
 tering. The statute contemplates that a party so having peaceable 
 possession shall not be thus forcibly ejected even w^here entry is given 
 by law ; that is, where the right to enter and possess has been deter- 
 mined by law, but only in a ''peaceable and open manner." The right 
 to enter, based upon a paramount title or interest, cannot be tried in 
 this proceeding. * * * ^"^ 
 
 50 Compare Schwinn v. Perkins (1910) 79 N. J. Law, 515, 78 Atl. 19, 32 L. 
 R. A. (N. S.) 51, 21 Ann. Cas. 1223 ("There may be possession without occu- 
 pancy, as where a man's servant is in the actual occupancy of the property, 
 holding possession for him, or where a man has temporarily gone out of his 
 house, leaving no one in charge, but still having legal possession ; and there 
 may be a case of occupancy without possession, as where, in a man's absence, 
 a mere stranger, visitor, or trespasser goes into his house without claim of 
 right." Per Swayze, J.) ; Hodgldns v. Price (1SS2) 1.32 Mass. 196. 19S ("The 
 process is for the purpose of restoring one to a possession which lias been 
 kept from him by force. It is not a process against a party who resists the 
 right of possession by force, but it is for an interference with an actual pos- 
 session. The claim that this plaintiff was ever in possession of this estate is 
 simply preposterous. He had no more possession of it than he would have 
 had of one of the rooms of the building if he had gone into such room and 
 said to the occupant of it: 'I have come to take possession of this room. Here 
 I am, in possession ; you will please to go out. I propose to hold this by force, 
 and if you attempt to remove me by force, then the weaker of us on lieing 
 ejected will bring an action of forcible entry and detainer against the other.' 
 But to make this illustration precisely analogous, we will say that this party, 
 instead of calling in at the place of business when the tenant was there, took 
 the opportunity while he had gone to diimer to clamber through the transom- 
 window over his door, and in the mode before suggested salute him upon his 
 return. It would be a disgrace to the law, and to all concerned in the ad- 
 ministration of it, to say that a possession thus forcibly obtained, before the 
 business hours of the daj', from one who is in the actual, peaceable occupa- 
 tion of the premises, is to be protected and restored by the law when the 
 actual occupant shall resume his occupation." I'er Lord, J.). 
 
 Compare, also. Page v. Dwight (1897) 170 Mass. 29, 48 N. E. 850, 39 L. R. 
 A. 418: D. was entitled to possession of premises occupied by P. under pos-
 
 230 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 That portion of the charge excepted to, viz. : "If the party enter- 
 ing has the right to the possession he must resort to the authority of 
 law to obtain such possession," is alleged to be erroneous and mislead- 
 ing, because it would call upon the jury to find for the plaintiff al- 
 though defendant did not enter by force. But the judge in the same 
 paragraph charged the jury that "the peaceable possession and the 
 forcible entry are the questions at issue." The proposition of the 
 charge was that if the plaintiff was in peaceable possession the de- 
 fendant could not resort to force to oust him except by process of law ; 
 that force without process tended to a breach of the peace. The stat- 
 ute itself says that no person shall invade the possession of another 
 except where entry is given by law, and that in a peaceable, easy and 
 open manner and without a strong hand. 
 
 We find no substantial objection to the charge of the court. It 
 submitted the whole issue of fact to the jury upon the testimony and 
 assumed nothing as to the facts. 
 
 There was testimony given by defendant which, by itself, would 
 go to show that he had not directed Warriner to remove plaintiff or 
 his goods from the premises. Yet Warriner was in defendant's serv- 
 ice at the time, and he swears that every thing he did was by defend- 
 ant's direction. The jury have decided as to the facts and the lia- 
 bility of the defendant for the acts of Warriner. 
 
 session lawfully obtained but unlawfully withbeld ; D. puts P. out by force. 
 Held, tbat under tbe Massachusetts statute (Pub. St. c. 175) P. cannot re- 
 cover possession. "Upon the whole," said Barker, J., "we think that the bet- 
 ter view is that the legislature, after making a fresh trial of the ancient sys- 
 tem under which a possession ended by force might be restored without regard 
 to title or right of possession, thought it better to provide that those only who 
 had a right of possession should be put in by the courts, and to leave to the 
 criminal law the acts of one who, being entitled to possession, takes it by pro- 
 hibited force." 
 
 The statute of 1381 (5 Rich. II., c. 7) and its supplementary acts have had 
 a substantial sui'^'ival in many states of the Union, either as part of their 
 inheritance from the mother country or by statutory adoption. See 19 Cyc. 
 1114, and notes 26-30. On the effect of the enactment, however, the states 
 are not at one. See 24 Cyc. 1394-1395, and notes 90-99, and the notes to 
 Wilson V. Campbell (1907) in 8 L. R. A. (N. S.) 426, and to Schwinn v. Per- 
 kins (1910) 32 L. R. A. (N. S.) 51. "In this country," says Professor Burdick, 
 "neither the statutes nor the decisions are uniform upon these points. Some 
 .states punish forcible entry and detainer as crimes, but do not give a civil 
 action against one guilty of these offenses, if he was entitled to possession, 
 either for trespass quare clausum fregit, or for damages to the wrongful oc- 
 cupant. But, in most jurisdictions, even the owner of land who is entitled 
 to immediate possession is not allowed to take the law into liis own hands, and 
 gain possession by the exercise of force which amounts to a breach of the 
 peace. If he acquires possession in that way, he may be compelled to re- 
 store it and pay damages for trespass upon the property, as well as for in- 
 juries intlicted upon the persons of the wrongful occupants who resist the 
 wrongful entry. If, however, he can gain possession peaceably, he may resort 
 to force to retain it, without being chargeable with wrongful detainer, and 
 he may resort to force to eject a mere trespasser." Burdick on Torts, 222 
 (3d Ed., 1913).
 
 Ch. 1) TRESPASSES 231 
 
 (E) Lawful Arrest 
 (a) Under Judicial Process 
 
 And a difference was taken when a Court has jurisdiction of the 
 cause, and proceeds inverse ordine or erroneously, there the party who 
 sues, or the officer or minister of the Court who executes the precept 
 or process of the Court, no action lies against them. But when the 
 Court has not jurisdiction of the cause, there the whole proceeding is 
 coram non judice, and actions will lie against them without any re- 
 gard of the precept or process, and therefore the said rule cited by 
 the other side, sc. "Qui jussu judicii aliquod fecerit (but when he 
 has no jurisdiction, non est judex) non videtur dolo malo fecisse, quia »/ 
 parere necesse est," was well allowed, but it is not of necessity to obey 
 him who is not Judge of the cause, no more than it is a mere stranger, 
 for the rule is, "judicium a non suo judice datum nullius est momenti." 
 And that fully appears in our books; and therefore in the case be- 
 twixt Bowser and Collins in 22 E. 4, 33, b. there Pigot says, if the 
 Court has not power and authority, then their proceeding is coram 
 non judice: as if the Court of Common Pleas holds plea in an appeal 
 of death, robbery, or any other appeal, and the defendant is attainted, 
 it is coram non judice quod omnes concesserunt. But if the Court 
 of Common Pleas in a plea of debt awards a capias against a duke, 
 earl, etc., which by the law doth not lie against them, and that appears 
 in the writ itself ; and if the sheriff arrests them by force of the 
 capias, although the writ be against law, notwithstanding, inasmuch 
 as the Court has jurisdiction of the cause, the sheriff is excused : and 
 therewith agrees 38 H. 8, Dy. 60, b. 
 
 The Case of the Alarshalsea (1613) 10 Co. Rep. 68b, 76b. 
 
 O'SHAUGNESSY v. BAXTER. 
 (Supreme Judicial Court of Massachusetts, 1ST6. 121 Mass. ol.j.) 
 
 Gray, C. J. This is an action of tort against a constable of Boston 
 for an assault and false imprisonment. The material facts of the case, 
 as they appear from the statements in the report and the findings of 
 the jury, are as follows: This plaintiff, whose real name is John 
 O'Shaugnessy, was sued by the name of John Shaugnessy, a name 
 by which he was commonly known, upon a promissory note signed by 
 another person of that name, and not by himself. The person who 
 made the writ knew that the plaintiff was not the person who signed 
 the note, but intended to have the writ served upon him, and it was 
 served upon him by another constable, and entered in the court hav-
 
 232 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 ing jurisdiction thereof, which rendered judgment, upon his default, 
 for the plaintiff in that action, and issued execution accordingly, in 
 due form of law. The execution, with the proper certificates, was de- 
 livered to this defendant, with instructions to take this plaintiff and 
 commit him to jail. The defendant did so, in obedience to such in- 
 structions, and in good faith, after ascertaining that the original writ 
 had been served upon the plaintiff, but knowing that he was not the 
 person who signed the note upon which the action was brought. 
 
 On this state of facts, the plaintiff, being the party against whom 
 the writ was intended to be made, and on whom it was actually serv- 
 ed, was the party defendant therein, and the person against whom the 
 judgment was rendered and the execution issued. Whatever remedies 
 he might have to relieve him from the judgment and execution as ob- 
 tained by fraud, or to recover damages against the person who fraud- 
 ulently abused the process of the court, the officer, acting in good faith, 
 had the right to rely for his protection upon the process put into his 
 hands, and was not bound to go behind that process, and to assume 
 the risk of determining the question whether the plaintiff really signed 
 the note upon which the action was brought, or the truth of any ex- 
 trinsic fact which would exempt him from being arrested or impris- 
 oned upon the execution. Laroche v. Wasbrough, 2 T. R. 737, 739; 
 JMagnay v. Burt. 5 O. B. 381 ; s. c. Dav. & Aleriv. 652 ; Wilmarth v. 
 Burt, 7 Mete. 257; Twitchell v. Shaw. 10 Cush. 46, 57 Am. Dec. 80; 
 Underwood v. Robinson. 106 Alass. 296, and other cases there cited. 
 In the words of Chief Justice Parker, "The difficulty in such cases 
 is, to ascertain whether the judgment was or was not, in fact, render- 
 ed against the person who is taken in execution ; for if it was, al- 
 though the person was mistaken, yet the officer would be justified." 
 Hallowell & Augusta Bank v. Howard, 14 Mass. 181, 183. 
 
 The fact that this plaintiff was commonly known by the name by 
 which he was sued and arrested, distinguishes the case from those in 
 which one man has been arrested upon a writ against another of a dif- 
 ferent name. See Cole v. Hindson, 6 T. R. 234; Finch v. Cocken, 5 
 Tyrwh. 774, 785; s. c. 3 Dowl. 678, 686; Griswold v. Sedgwick, 1 
 Wend. (N. Y.) 126, 132 ; Langmaid v. Puffer, 7 Gray, 378. 
 
 Judgment on the verdict for the defendant.^ ^ 
 
 61 Compare Whitten v. Bennett (1S96 C. C.) 77 Fed. 271 (B., while state's 
 attorney, drew an indictment cliarsiug P., tojiether with S.. with murder in 
 the second degree. By mistake and clerical error, the indictment against P. 
 was marked by the grand jury as "a true bill," although the grand jury knew 
 rhat there was no case against P. and did not intend to indict him. B. knew 
 of all this, and that there was no evidence against P., but nevertheless used 
 the indictment to ol)tain a requisition against P., who was in another state, 
 and sent D. to arrest him under the requisition. D. was instructed to bring 
 P. with all .speed, so as to prevent his obtaining a habeas corpus. Tlie process 
 under which D. acted in arresting P. was regular in form, and the record 
 showed a proper indictment).
 
 Ch. 1) TRESPASSES 233 
 
 PIPER V. PEARSON. 
 
 (Supreme Judicial Court of Massachusetts, 1854. 2 Gray, 120, 
 
 61 Am. Dec. 438). 
 
 Action of tort against a justice of the peace, residing in Dracut, 
 for assault, battery and false imprisonment. Answer, that the plain- 
 tiff was imprisoned in the county jail, in due process of law, for 
 a contempt of court. 
 
 At the trial, the plaintiff gave in evidence copies, certified by the 
 defendant, of the following papers : A complaint made to the de- / 
 fendant, charging John Russ with an unlawful sale of intoxicating*^ 
 liquors in Lowell, and a warrant issued thereon for the arrest of 
 Russ; a mittimus issued by the defendant for the commitment of 
 the plaintiff to prison for refusing to testify on the trial of said 
 complaint before the defendant at Lowell, concerning sales of in- 
 toxicating liquors, made by Russ, and known to the witness; and a 
 subsequent judgment of acquittal of Russ by the defendant. By St. 
 1848, c. 331, § 4, the exclusive jurisdiction of all crimes and offences 
 committed within the district of Lowell is vested in the police court 
 of Lowell. 
 
 The defendant relied, for his justification, on the record of the 
 judgment; and contended that no sufficient proof had been adduced 
 to show that his acts were without jurisdiction and void. But ]\Iet- 
 calf, J., ruled that the record and mittimus constituted no defence. 
 And to this ruling the defendant, being found guilty, alleged excep- 
 tions. 
 
 BiGELOW, J. The decision of this case depends on the familiar 
 and well settled rule concerning the liability of courts and magistrates 
 exercising an inferior and limited jurisdiction, for acts done by 
 them, or by their authority, under color of legal proceedings. 
 
 One of the leading purposes of every wise system of law is to se- 
 cure a fearless and impartial administration of justice, and at the 
 same time to guard individuals against a wanton and oppressive abuse 
 of legal authority. To attain this end, the common law affords to 
 all inferior tribunals and magistrates complete protection in the dis- 
 charge of their official functions, so long as they act within the scope 
 of their jurisdiction, however false and erroneous may be the con- 
 clusions and judgments at which they arrive. But on the other hand, 
 if they act without any jurisdiction over the subject matter; or if, 
 having cognizance of a cause, they are guilty of an excess of juris- 
 diction; they are liable in damages to the party injured by such un- 
 authorized acts. In all cases therefore where the cause of action 
 against a judicial officer, exercising only a special and limited author- 
 ity, is founded on his acts done colore officii, the single inquiry is 
 whether he has acted without any jurisdiction over the subject matter.
 
 234 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 or has been guilty of an excess of jurisdiction. By this simple test, 
 his legal liability will at once be determined. 1 Chit. PI. (6th Am. 
 Ed.) 90, 209-213; Beaurain v. Scott, 3 Campb. 388; Ackerley v. 
 Parkinson, 3 M. & S. 425, 428; Borden v. Fitch, 15 Johns. (N. Y.) 
 121, 8 Am. Dec. 225; Bigelow v. Stearns, 19 Johns. (N. Y.) 39, 10 
 Am. Dec. 189; Allen v. Gray, 11 Conn, 95. If a magistrate acts 
 beyond the limits of his jurisdiction, his proceedings are deemed to 
 be coram non judice and void; and if he attempts to enforce any 
 process founded on any judgment, sentence or conviction in such 
 case, he thereby becomes a trespasser. 1 Chit. PI. 210; Bigelow v. 
 , Stearns, 19 Johns. (N. Y.) 39, 10 Am. Dec. 189. (See Clarke v. May, 
 2 Gray, 410, 61 Am. Dec. 470.) 
 
 These well settled principles leave no room for question as to the 
 liability of the defendant in this action. As a justice of the peace 
 for the county of Middlesex, he had no jurisdiction whatever to try 
 the complaint against Russ. It was for an offence committed "with- 
 in the district of Lowell," of which the police court of the city of 
 Lowell had exclusive jurisdiction by St. 1848, c. 331, § 4, and which 
 the justice of said court was legally competent to try and determine. 
 Commonwealth v. Emery, 11 Cush. 406, 412. The defendant there- 
 fore acted wholly without legal authority, and can show no legal 
 justification under any judicial record. 
 
 It was urged on the part of the defendant, that he had authority 
 to punish the plaintiff for contempt, although he had no jurisdiction 
 to try the principal case before him. But the answer to this sugges- 
 tion is obvious. The power to punish for contempt is only incidental 
 to the more general and comprehensive authority conferred on a 
 magistrate, by which he is empowered to exercise important judicial 
 functions. It is to enable him to try and determine causes without 
 molestation, and protect himself from indignity and insult, that the 
 law gives him authority to punish such disorderly conduct as may 
 interrupt judicial proceedings before him or be a contempt of his 
 authority or person. Rev. St. 1836, c. 85, § 33. But it is only when 
 lie is in the proj^er exercise of his judicial functions, that this power 
 can be exercised. If he has no jurisdiction of a cause, he cannot sit 
 as a magistrate to try it, and is entitled to no protection while acting 
 beyond the sphere of his judicial power. His action is then extra- 
 judicial and void. His power and authority are commensurate only 
 v/ith his jurisdiction. If he cannot try the case, he cannot exercise 
 a power which is only auxiliary and incidental. There can be no 
 contempt, technically speaking, where there is no authority. In the 
 case at bar, the defendant had no more power to entertain jurisdic- 
 tion of the complaint against Russ than any other individual in the 
 community. Although he acted through mistake, it was nevertheless 
 a usurpation. The plaintiff therefore could not have been guilty of 
 contempt toward the defendant in his capacity as a magistrate, while
 
 Ch. 1) TRESPASSES 235 
 
 trying a cause of which he had no jurisdiction; and the commitment 
 therefor was unauthorized and void. 
 
 It was suggested by the counsel for the defendant, that there was 
 nothing in the case from which it could be properly inferred that the 
 offence with which Russ was charged was actually committed in the 
 city of Lowell ; and that as the defendant, by virtue of his author- 
 ity as a justice of the peace, had cognizance of offences committed 
 elsewhere in the county of IMiddlesex, which he might well hear and 
 determine in the city of Lowell, the presumption was that he was 
 acting rightfully, till the contrary was shown. But there are two 
 decisive answers to this argument. In the first place, the record 
 on its face sets out an offence committed in the city of Lowell. That 
 being a district set apart by statute, in which the police court has 
 exclusive jurisdiction of criminal offences usually cognizable by mag- 
 istrates, and the offence being charged as having been committed in 
 Lowell, the record legally imports that it was committed there. 1 
 Stark. Crim. PI. (2d Ed.) 62 ; Bac. Ab. Indictment, G, 4. 
 
 But in the next place, it was for the defendant to show a complete 
 justification for the alleged trespass; if the record left it doubtful 
 whether he had jurisdiction of the oft'ence, it would not avail as a 
 defence to the action. There is a marked distinction in this respect 
 between courts of general jurisdiction and inferior tribunals having 
 only a special or limited jurisdiction. In the former case, the pre- 
 sumption of law is that they had jurisdiction, until the contrary is 
 shown ; but with regard to inferior courts and magistrates, it is for 
 them, when claiming any right or exemption under their proceedings, 
 to show affirmatively that they acted within the limits of their jurisdic- 
 tion. Peacock v. Bell, 1 Saund. 74, and notes ; Mills v. IMartin, 19 
 Johns. (N. Y.) 33, 34. The record in the present case prima facie 
 shows a want of jurisdiction in the defendant. 
 
 Exceptions overruled. 
 
 SUMNER v. BEELER. 
 
 (Supreme Court of Indiana, 1S75. 50 lud. o41, 19 Am. Rep. 718.) 
 
 Action to recover damages for an illegal arrest, on charge of being 
 found drunk, under the ninth section of the Baxter bill of 1873. The 
 defendants answered in justification under the ninth section of this 
 law. A demurrer for want of facts was sustained, and this ruling is 
 assigned for error. 
 
 Pettit, C. J. This section has been held to be unconstitutional, or, 
 in other words, that it is not law. State v. Young, 47 Ind. 150. No 
 question in law is better settled, and this is admitted by the counsel 
 for the appellants in their brief, than that ministerial ofiicers and other 
 persons are liable for acts done under an act of the legislature which 
 is unconstitutional and void. All persons are presumed to know the
 
 236 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 law, and if they act under an unconstitutional enactment of the legis- 
 lature, they do so at their peril, and must take the consequences. 
 
 There was no error in sustaining the demurrer to this paragraph of 
 the answer. ^^ 
 
 GIFFORD V. WIGGINS. 
 
 (Supreme Court of Minnesota, 1892. 50 Minn. 401, 52 N. W. 904, 
 
 18 L. R. A. 356.) 
 
 Action for false imprisonment. Judgment for defendant. Plain- 
 tiff appeals. 
 
 Mitche;lIv, J. The material allegations of the complaint may be 
 
 summarized as follows : 
 
 The defendant made a complaint under oath to a justice of the peace in 
 tlie village of Wilmar that plaintiff had violated the provisions of an ordinance 
 of that village prohiluting peddling any goods, wares, merchandise, or other 
 articles not manufactured or grown within the county of Kandiyohi without 
 first having obtained a license therefor, and praying that the plaintiff might 
 be arr-^sted and dealt with according to law ; that upon this complaint the 
 justice issued a warrant, upon which the plaintiff was arrested and tried, and, 
 upon the testimony of the defendant, adjudged guilty of a violation of the 
 ordinance ; that plaintiff was thereupon committed to jail, and there im- 
 prisoned until discharged on a writ of habeas corpus, on the ground that 
 the ordinance in question was unconstitutional and void. There is no allega- 
 tion that the complaint was made maliciously and without probable cause ; 
 hence the facts stated do not constitute a cause of action for malicious prose- 
 cution. 
 
 If the complaint states a cause of action at all, it must be for false 
 imprisonment. It is not alleged that defendant participated or took 
 part in plaintiff's arrest, or officiously interfered therewith by giving 
 orders or directions to the officers or otherwise. It is true that in the 
 complaint to the justice he prayed that the plaintiff might be arrested 
 and dealt with according to law, but this is what is done, impliedly 
 at least, in every case where a complaint is made to a magistrate or 
 court charging any person with a violation of public law. The allega- 
 tion that the plaintiff was convicted on the testimony of the defendant 
 adds nothing to the complaint. By testifying as witness, certainly 
 defendant did nothing that rendered him liable unless he testified f alse- 
 
 62 Accord: Barling v. West (1871) 29 Wis. 307, 9 Am. Rep. 576; Campbell v. 
 Sherman (1874) 35 Wis. 103, 110: "How can it be expected, it is asked, that 
 a mere ministerial officer could decide such a question, and then find out that 
 his process was void for want of jurisdiction in the court which issued itV 
 The maxim ignorantia juris non excusat — ignorance of the law, which every 
 man is presumed to know, does not afford excuse — in its application to human 
 affairs frequently operates harshly ; and yet it is manifest that if ignorance 
 of the law were a ground of exemption, the administration of justice would 
 be arrested, and society could not exist." Per Cole, J. 
 
 For modifications and limitations of this principle, see Brooks v. Mangan 
 (1891) 86 Mich. 576, 49 N. W. O:;::, 24 Am. St. Rep. 137 ; Tranimell v. Kussell- 
 ville (1879) M Ark. 105, 36 Am. Kep. 1 ; Tilliiian v. Beard (1S99) 121 Mich. 
 475, 80 N. W. 248, 46 L. R. A. 215; Bohri v. r.arnett (1900) 144 Fed. 389, 75 
 C. C. A. 327.
 
 Ch. 1) TRESPASSES 237 
 
 ly, which is not charged. It is alleged that the confinement of plain- 
 tilt was "on account and by reason of the procurement and direction 
 of the defendant," but, in the absence of any allegations of specific 
 facts, this must be construed as having reference to the act of making 
 the complaint upon which the warrant was issued. It is also alleged 
 that this confinement was wrongfully, maliciously, and unlawfully 
 procured by defendant, and that said confinement was without prob- 
 able cause ; but this has reference to and is qualified by what im- 
 mediately follows, to wit: "In this, that said ordinance was and is 
 wholly void and unconstitutional." Hence, after stripping the com- 
 plaint of all mere verbiage, we have a case where all that it is alleged 
 that defendant did was to lay before the justice the complaint upon 
 which the justice issued the warrant on which the plaintiff was arrest- 
 ed ; and the sole ground upon which defendant is claimed to be lia- 
 ble is that the ordinance under which the proceedings were instituted 
 was void. There is no doubt of the invalidity of the ordinance as 
 "class legislation," for we have not yet arrived at the point where it 
 is permissible to protect "home industries" under the guise of an ex- 
 ercise of the police power. It is to be observed that the object of this 
 prosecution was not the enforcement of any private right of the de- 
 fendant. He did not make the complaint on his own account, or for 
 his own private benefit. The complaint was for an alleged violation 
 of public law, in which he represented, not himself, but the public, — 
 an important distinction, which courts have sometimes overlooked, and 
 which counsel for plaintiflf seems to have failed to notice in the cita- 
 tion of cases. It seems to be settled by an almost unbroken line of 
 authorities that if a person merely lays a criminal complaint before a 
 magistrate in a matter over which the magistrate has a general ju- 
 risdiction, and the magistrate issues a warrant upon which the person 
 charged is arrested, the party laying the complaint is not liable for an 
 assault and false imprisonment, although the particular case may be 
 one in which the magistrate had no jurisdiction. The law on this sub- 
 ject was as well stated as anywhere by Lord Abinger in West v. Small- 
 wood, 3 I\Iees. & W. 417, as follows: "Where a magistrate has a 
 general jurisdiction over the subject-matter, and a party comes before 
 him and prefers a complaint, upon which the magistrate makes a mis- 
 take in thinking it a case within his authority, and grants a warrant 
 which is not justifiable in point of law, the party complaining is not 
 liable as a trespasser, but the only remedy against him is by an ac- 
 tion upon the case if he has acted maliciously." See, also, Leigh v. 
 Webb. 3 Esp. 165; Carratt v. Morley, 1 O. B. 18; Murphy v. Wal- 
 ters, 34 ^lich. 180; Von Latham v. Libby, 38 Barb. (X. Y.) 339; 
 Barker v. Stetson, 7 Grav (Mass.) 53, 66 Am. Dec. 457 ; Langford v. 
 Railway Co., 144 Mass. 431, 11 N. E. 697; Teal v. Kissel (C. C.) 28 
 Fed. 351. This rule has been frequently applied where the facts 
 stated in the complaint did not constitute a public offense, and it can 
 make no difference in principle whether this is because the facts stated
 
 238 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 do not bring the case within a vaHd statute, or because the statute 
 under which the proceedings were instituted is invahd. In either case, 
 the' acts charged constitute no offense, because there is no law mak- 
 ing them such. Barker v. Stetson, supra, was a case of the latter class. 
 The present case comes fully within the rule. The justice had a 
 general jurisdiction over the subject-matter, to wit, prosecutions for 
 the violations of village ordinances. The defendant merely stated the 
 case to the magistrate in a complaint, without, so far as appears, bad 
 faith or malice. The magistrate erred in thinking that the ordinance 
 was valid, and that it was therefore a case within his authority, and 
 issued a warrant which was not justifiable in point of law, and the 
 plaintiff was arrested. Under such a state of facts the complainant is 
 not liable. Under any other doctrine a person would never feel safe 
 in making complaint of the commission of a public offense until the 
 validity of the statute creating the offense had been passed upon by 
 the court of last resort. Order affirmed. 
 
 PEOPLE v. McLEAN. 
 
 (Supreme Court of Michigan, 1SS8. 68 Mich. 480, 36 N. W. 231.) 
 
 McLean was convicted in the circuit court of the county of Macki- 
 nac of resisting an officer, and sentenced to state prison for two years. 
 He prosecuted error. 
 
 Champlin, J. * * * It appears from the testimony returned 
 in the bill of exceptions that on the night of the twenty-third of Au- 
 gust, 1887, L. J. ]\Ionteith was sheriff of Mackinac county, and Peter 
 A. Paquin was under-sheriff ; that about 10 o'clock in the evening of 
 that day. Justice Rutherford handed the sheriff a warrant for assault 
 and battery against McLean in front of Rutherford's office ; that Pe- 
 / ter A. Paquin was then present, and the sheriff told him to get into 
 a hack, and go up to what was known as "Red Annie's," a house of 
 ill fame, by the road, and arrest McLean if he found him there ; that 
 he would take another direction by the railroad track, and go to an- 
 other house of ill fame, and search for McLean there; that the sher- 
 iff had the warrant with him, and that Paquin had no warrant; that 
 these houses of ill fame were about 80 rods apart; that he and the 
 under-sheriff separated, the sheriff going up the railroad track, and 
 the under-sheriff going in a hack in another direction. 
 
 Paquin arrived at "Red Annie's," found the door open, and a num- 
 ber of persons in the room. He saw ^McLean in there and went in, 
 and laid his hand on ^McLean's shoulder and said: "McLean, I want 
 you. I have got a warrant for you ; you are my prisoner." McLean 
 then pulled a revolver from his right-hand coat pocket, and pointed 
 
 it at Paquin's head, and said: "Get out, you , 
 
 or I will blow your brains out."
 
 Ch. 1) TRESPASSES 239 
 
 Paquin did not know whether the revolver was cocked or loaded, 
 but he backed out of the door, McLean following him with the re- 
 volver, pointed at him, saying: "Get out; get out; get out of the 
 house, or I will kill you." 
 
 About five minutes after he got out he heard the report of a re- 
 volver, but who fired it he did not know. He started to find the sher- 
 iff, and met him coming a short distance from the house. He did not 
 tell jMcLean that he was an officer, and had no uniform or badge of 
 office on. He had no personal acquaintance with McLean, and had 
 never talked with him before that night. He did not know at the 
 time he attempted to make the arrest where the sheriff was, only the 
 sheriff had told him vv'here he was going. * * * 
 
 The question whether an arrest can be made without warrant has 
 been decided from time to time according to the various circumstances 
 of each particular case, many of which may be found in 2 Hale, P. 
 C. 72-105. The principles recognized in the cases are: 
 
 L Any person may arrest another who is actually committing, or 
 has actually committed, a felony. 
 
 2. He may arrest any person whom he suspects on reasonable 
 grounds to have committed a felony, if one has actually been commit- 
 ted. 
 
 3. Any constable or sheriff may arrest any person whom he sus- 
 pects, on reasonable grounds, of having committed a felony, whether 
 in fact a felony has been actually committed or not. 
 
 The common law never allowed the arrest of persons, who were 
 either guilty of or suspected of having committed misdemeanors, with- 
 out a warrant issued by lawful authority, except in cases of actual 
 breach of the peace committed in the presence of the officer, while the 
 person was taken in the act, or immediately after its commission. 
 This exception was made, not to bring the offender to justice, but in 
 order to preserve the peace, which by the common law v/as regarded 
 as of utmost consequence. 
 
 McLean was charged simply with a misdemeanor, and he could not 
 be arrested for the crime after the commission of the act, without a 
 proper warrant. The warrant was issued and delivered to the sher- 
 iff. The sheriff is authorized to take such assistance with him in mak- 
 ing an arrest as he may deem necessary, and the warrant in his pos- 
 session while present and pursuing his object will be a justification 
 to his assistants in making the arrest. But he has no authority to send 
 an under-sheriff or deputy to one place to make an arrest without a 
 warrant, while he goes to another for the same purpose with the 
 warrant. He cannot send his deputy into one town or county while 
 he gives pursuit in another. Under the ancient practice of hue and 
 cry, before warrants were issued, this might be done in the pursuit of 
 felons, but no hue and cry could be raised for a misdemeanor. 
 
 We think it clear that in cases of misdemeanors the sheriff must be 
 present either in sight or hearing, directing the arrest, to justify a
 
 2-40 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 person not armed with the warrant to make the arrest. Such was 
 not the case here. The under-sheriff had no warrant in his posses- 
 sion when he attempted to arrest McLean, and although acting under 
 the orders of the sheriff, given before they separated, to search dif- 
 ferent places, the sheriff was not in such proximity nor did he have 
 such immediate control of the action of the under-sheriff, as justified 
 the court or jury in saying that the warrant was in the possession or 
 control of the under-sheriff, or that it conferred upon him any author- 
 ity to make the arrest. A warrant for a misdemeanor cannot lawful- 
 ly be held by two officers at once, when they are not together. The 
 case is fully covered in the opinion of Mr. Justice Campbell in Dren- 
 nan v. People, 10 Mich. 184 et seq. Upon this point there was no 
 disagreement between the members of the court, although they were 
 divided upon the question whether the offense charged was felony, 
 and therefore authorized an arrest without warrant. 
 
 We think the judgment should be reversed, and prisoner discharg- 
 ed.«3 
 
 HOLROYD V. DONCASTER. 
 (Court of Common Pleas, 1S26. 3 Bing. 492, 130 Reprint, 603, 28 R. R. 672.) 
 
 This was an action of trespass for false imprisonment, tried before 
 Bayley, J., last York Assizes. The declaration was in the usual form. 
 A constable, who had made the arrest of which the plaintiff com- 
 plained, stated that he had arrested the plaintiff under a warrant which 
 he had received from another person, and that when about to execute 
 it, the defendant desired him to make haste. It was also proved, that 
 the defendant had admitted in conversation that he had sent the plain- 
 tiff to prison. But no warrant was produced in evidence. The plain- 
 tiff's counsel, however, having opened the case as an arrest upon an 
 illegal warrant, it was objected on the part of the defendant that the 
 plaintiff ought to produce the warrant. A verdict was taken for the 
 plaintiff, with liberty for the defendant to move to enter a nonsuit, 
 if the Court should be of opinion that the plaintiff ought to have pro- 
 duced the warrant. 
 
 Wilde, Serjt., accordingly moved for a rule to this effect, on the 
 ground that the plaintiff ought to have produced the warrant which 
 was the cause of his action ; also, that it sufficiently appeared from the 
 defendant's admission, that the plaintiff had been apprehended un- 
 der a warrant, and that, therefore, the action ought to have been con- 
 ceived in case and not in trespass. Morgan v. Hughes, 2 T. R. 225 ; 
 Stonehouse v. Elliot, 6 T. R. 315, 3 R. R. 183. 
 
 A rule nisi was granted and Wilde was this day heard in support 
 of it. But 
 
 5 3 Part of the opinion is omitted.
 
 Ch. 1) TRESPASSES 241 
 
 The Court were clearly of opinion that the warrant not having 
 been produced, there was no legitimate evidence on which it could be 
 presumed that it had ever issued, or that the action ought, in conse- 
 quence, to have been case; and that, with respect to the production 
 of the warrant, it was equally clear that a party who took upon him- 
 self to imprison another was prima facie guilty of a trespass, the onus 
 of justifying which rested entirely with himself. 
 
 Rule discharged. 
 
 WILLI A:\IS v. JONES et al. 
 (Court of King's Bench, 1736. Cas. t. Hard. 298, 95 Reprint, 193.) 
 
 Trespass for an assault, battery and imprisonment of the plaintiff. 
 The defendants justify for that the defendant Jones sued out a 
 capias ad respondendum against the plaintiff, out of the Court of 
 Common Pleas, directed to and delivered to the Sheriffs of London; 
 whereupon the sheriff issued a warrant to the defendant Chamberlain, 
 one of the Serjeants of mace, who by virtue thereof arrested the plain- 
 tiff, and detained him in custody for six hours, at the request of de- 
 fendant Jones, who was plaintiff in the said writ, which is the same 
 trespass and assault, etc. to which plea the plaintiff demurred gen- 
 erally. * * * 
 
 Lord HardwickS, C. J. The question is, whether a battery of the 
 plaintiff can be justified by shewing an arrest by lawful process ; and 
 upon consideration of the cases, we are of opinion that a battery can- 
 not be justified by shewing an arrest barely; but that in order to make 
 it good, something further should be shewn : as, that defendant gently 
 laid his hands in order to arrest; and did arrest him; as in the case 
 of Patrick and Johnson, 3 Lev. 403 ; though that way of pleading has 
 been doubted of: or else that the plaintiff made resistance, and was 
 going to rescue himself, and by reason of that he beat him to take 
 him. There is no case in all the books, that says, that a battery may 
 be justified, barely by shewing an arrest. * * * 
 
 As to what has been said, that every arrest admits a battery, be- 
 cause it cannot be without laying on of hands, and every laying on of 
 hands is so; that is a mistake in the case of Genner and Sparkes, 
 which was cited to warrant that distinction, which it does not do; 
 for the question there was, whether there had been a rescue, and the 
 Court held that there had not, because there had been no arrest, for 
 the officer had not touched the defendant ; and to be sure in that case 
 there was no arrest, for the party was neither touched nor confined. 
 But it does not follow that an arrest cannot be made without touch- 
 ing the person ; for if a bailiff' comes into a room and tells the de- 
 fendant he arrests him, and locks the door, that is an arrest, for he 
 is in custody of the officer. But, supposing there was a laying on of 
 Hepb.Toets — 16
 
 242 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 hands in the present case, every laying on of hands is not a battery ; 
 for the party's intention must be considered : for people will some- 
 times by way of joke, or in friendship, clap a man on the back; and 
 it would be ridiculous to say, that in every such case, a man must 
 justify, and may not plead not guilty. The case of Wilson and Dodd, 
 2 Roll. Abr. 543, is directly in point, that a molliter manus is not a 
 battery. That case indeed favours Lutwyche's opinion, that a molliter 
 manus is not a justification, because it does not admit a battery: 
 therefore as the arrest is not a battery, this is not a sufficient justifica- 
 tion. 
 
 Per Curiam. Judgment for plaintiff.^* 
 
 (b) Arkest without Warrant 
 HENNESSY v. CONNOLLY. - 
 
 (Supreme Court of New York, 1878. 13 Hun, 173.) 
 
 Talcott, J. This is an appeal from a judgment for the defend- 
 ant, rendered on a verdict at the Oswego Circuit, and from an order 
 of the Special Term denying a new trial. The action was for assault 
 and battery and false imprisonment. The defendant was a policeman 
 of the city of Oswego, and arrested the plaintiff on view and with- 
 out warrant, on the charge of violating an ordinance of the city, which 
 is as follows, viz.: 
 
 "Section 8. The bridge across the Oswego river in this city, on the line of 
 Bridge street, shall be kept and reserved free from all obstructions, and all 
 groups and assemblages of persons thereon at any time are strictly prohibited. 
 No person or persons shall sit or stand on said bridge or any railing thereof 
 or occupy the same so as in any manner to obstruct the free passage thereof, 
 or to hinder, molest or annoy any person in passing along the same; and no 
 person shall peddle any fruits, nuts or other articles or things thereon. 
 Whoever shall violate any provision of this section shall forfeit a penalty of 
 five dollars for each and every offense." 
 
 By the charter of the city of Oswego, title 3, section 8 (Sess. Laws 
 of 1860, ch. 463), the penalty for a violation of such an ordinance is 
 to be collected before a justice of the peace, or other court, and the 
 first process may be by civil warrant or summons. The justice at 
 the circuit instructed the jury that the plaintiff was violating a city 
 ordinance in regard to the bridge, and if he did not desist at the com- 
 mand of the officer then the officer had a right to arrest him without 
 any process. 
 
 We find nothing, and are referred to no section in the charter of 
 the city of Oswego, providing that a policeman may arrest without 
 warrant and simply on view, for the violation of a city ordinance. 
 It is not like the charter of Syracuse, which was examined by thi.s 
 
 S4 Part of the opinion Is omitted
 
 Ch. 1) TRESPASSES 243 
 
 court in this respect in Biitolph v. Blust, 5 Lans. 84; and it was 
 found in that charter the power was expressly conferred on a poHce- 
 man of the city to arrest, detain and take before the pohce justice, 
 any person whom he shall find committing a violation of any ordinance 
 of the city. 
 
 Admitting the obstruction of the bridge to have been a misdemeanor, 
 the policeman had no authority to arrest the defendant unless such 
 misdemeanor was accompanied by a breach of the peace at common 
 law. Butolph V. Blust, supra. There was some evidence tending to 
 show a breach of the peace by the plaintiff, preliminary to the arrest, 
 and that the conduct of the plaintiff was reprehensible in the extreme, 
 but the difficulty with the charge excepted to is, that it was not in any 
 manner qualified; and the jury was instructed generally that if the 
 plaintiff was violating a city ordinance and did not desist on demand, 
 the policeman had a right to arrest him without warrant. 
 
 It may be that a policeman should have authority to arrest without 
 warrant, and on view, any person engaged in the violation of a city 
 ordinance, and we presume this authority is conferred by most city 
 charters, but it is a matter which rests with the legislature, and until 
 the power is conferred, an arrest by a constable without v/arrant, in 
 case of a misdemeanor, can only take place where it is accompanied 
 by a breach of the peace. 1 Chitty's Crim. Law, 13; Carpenter v. 
 Mills, 29 How. Prac. 473. 
 
 For the reason that the jury, under the instruction given them, can- 
 not be deemed to have found a breach of the peace, the judgment and 
 order denying a new trial must be reversed. 
 
 STATE V. HUNTER. 
 
 (Supreme Court of North Carolina, 1890. 106 N. C. 796, 11 S. E. 3G6, 
 
 8 L. R. A. 529.) 
 
 This was an indictment for false imprisonment. The defendant, a 
 policeman of the city of Asheville, had arrested one Bennett for al- 
 leged violation of a city ordinance in the following words : 
 
 "Whenever three or more persons obstruct the sidewalk, it shall be the 
 duty of the officer to courteously request them to move on, and. it' such i>er- 
 sous unreasonably persist in remaining, so as to incommode others passing, 
 he shall take them to the station house." 
 
 The defendant testified that Bennett and four or five others were 
 standing on the sidewalk when other people were passing, that the 
 latter had to step on the curbing to get around them, that when defend- 
 ant requested Bennett and his companions to move on, all left except 
 Bennett, who refused, a third time, to go, and that the defendant then 
 arrested Bennett, and took him to the station house. From a ver- 
 dict of guilty, the defendant appealed.
 
 244 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 AvKRY, J. In the case of State v. Freeman, 86 N. C. 683, the court 
 distinctly recognized the right of a poHce officer to arrest without 
 warrant, not only for felonies, riots, and breaches of the peace, but 
 for violation of a city or town by-law prohibiting nuisances, and 
 which the municipality has the power to make, when the offense is 
 committed in his presence. The Code (section 3820) makes it a mis- 
 demeanor to violate any valid city or town ordinance. * * * 
 
 The second ordinance relied upon for the protection of the officer, 
 rule 15, is clearly in violation of the Constitution (article 1, §§ 12, 
 13, 17), in providing that a person may be arrested because he re- 
 fuses to "move on," and, in the opinion of the officer, who is left to 
 judge of his conduct, "unreasonably persists in remaining, so as to 
 incommode others passing," and can be taken, without warrant or 
 hearing, to the station house. Under this law, he may be deprived of 
 his liberty, and sent to a dungeon, not only without trial, but without 
 even a preliminary examination, or an opportunity to give bail for his 
 appearance at an investigation to be had in future, because, in the 
 opinion of a policeman, he consumes an unreasonable time in ex- 
 changing greetings with two friends whom he meets upon the side- 
 walk of the city. * * * 
 
 The charter of the city (chapter 111, §§ 25, 27, 59 Priv. Laws 1883) 
 gave the city marshal the powers, as a peace officer, of the sheriff 
 or constables of the county of Buncombe, and to both the marshal and 
 a policeman the authority to make arrests "(1) whenever he shall 
 have in his hands a warrant duly issued by the mayor of the city 
 of Asheville or a justice of the peace of the county of Buncombe ; 
 * * * (3) whenever a misdemeanor or violation of any ordinance 
 has been committed, and he has reasonable cause to believe that the 
 suspected party may make his escape before a warrant can be ob- 
 tained." The power to arrest without warrant is, in express terms, 
 confined to two classes of cases, — where he sees an offense commit- 
 ted; or where he knows it has been committed and has reasonable 
 ground to apprehend an escape. The latter provision enlarges his au- 
 thority beyond that of a sheriff or constable, but upon condition that 
 the ordinance has certainly been violated. Judge Dillon, in his work 
 on Municipal Corporations (volume 1, § 211), says: "Charters au- 
 thorizing municipal officers to make arrests upon view, and without 
 process, are to be viewed in connection with the general statutes of 
 the state, and, being in derogation of liberty, are strictly construed." 
 Pesterfield v. Vickers, 3 Cold. (Tenn.) 205; White v. Kent, 11 Ohio 
 St. 550. In the exercise of the extraordinary power given him by the 
 charter, it was the duty of the defendant, before he touched the per- 
 son of the prosecutor and demanded a surrender of his liberty, to 
 know that the misdemeanor had been committed, either from seeing, 
 or from such information as made him willing to incur the risk of
 
 Ch, 1) TRESPASSES 245 
 
 indictment, or of being mulcted in damages, if no ordinance had been 
 violated. The question of good faith on the part of the policeman 
 comes to his aid when he is resisted in making an arrest that he has 
 an undoubted right to make, if there be resistance, and the question 
 arise whether excessive force was used to overcome it ; but policemen 
 of Asheville must determine at their peril, preliminary to proceeding 
 without warrant, whether a valid ordinance has been violated within 
 or out of their view. The principle recognized in the cases of State 
 V. McNinch, 90 N. C. 695, and State v. Pugh, 101 N. C. 117, 7 S. E. 
 7^7 , 9 Am. St. Rep. 44, was never intended to apply in any case ex- 
 cept where an officer is making a lawful arrest. * * * 
 
 We conclude that, according to the defendant's own evidence, he was 
 guilty; and, therefore, though the judge may have failed to state the 
 law correctly in submitting to the jury the whole case, still the defend- 
 ant is not entitled to a new trial if he was guilty in the aspect of the 
 testimony most favorable to himself, and founded upon the conception 
 that his own statement was true. The judgment must be affirmed.^^ 
 
 Davis, J., dissenting. 
 
 COOK v. HASTINGS. 
 
 (Supreme Court of Michigau, 1907. 150 Mich. 2S9, 114 N. W. 71, 14 L. R. A. 
 
 [N. S.] 1123, 13 Ann. Cas. 194.) 
 
 The action was by Cook against Hastings and two others. The 
 judgment below was in favor of the defendants; the plaintiff brings 
 error. 
 
 Carpenter, J. The three defendants are each members of the po- 
 lice force of the city of Detroit. December 6, 1904, between 8 and 
 9 p. m., defendant Hastings arrested plaintiff on Columbia street, in 
 said city of Detroit. Hastings was looking for a man who had been 
 exposing his person to women and children, and — stating the facts 
 most favorably to defendants — he believed and had reason to believe 
 plaintiff to be that man. The arrest was made because of that belief, 
 and because plaintiff' refused to state his name or his business, and 
 gave a false explanation (perhaps it was a false explanation) for 
 waiting on the street behind a tree where Hastings discovered him. 
 After the arrest, Hastings placed plaintiff' in a patrol wagon of which 
 defendants Stock and McDermott were in charge, and carried him to 
 the Central Police Station, and the undisputed evidence compels the 
 inference that while in the wagon plaintiff was in the joint custody 
 of the three defendants. Soon after the patrol wagon reached the 
 Central Station, plaintiff was given his liberty. He brought this suit 
 
 05 The statement of facts is abridged and part of the opinion is omitted. 
 
 /
 
 #^ 
 
 246 TORTS THROUGH ACTS OP ABSOLUTE LIABILITY (Part 1 
 
 to recover damages for false imprisonment. It was tried in the 
 circuit court before a jury. The trial judge directed a verdict in 
 favor of defendants Stock and McDermott, and submitted to them 
 the question of defendant Hastings' liability, and they returned a 
 verdict in his favor. 
 
 The law governing this case is elementary. Except for a breach of 
 the peace committed in his presence, or when he has a reasonable 
 ground to believe that the person arrested is a felon or is about to 
 commit a felony, a police officer has no authority to arrest without 
 a warrant. In this case there was not only no reasonable ground to 
 believe, but there was not even a suspicion, that plaintiff was a felon 
 or was about to commit a felony. (For the offense of which he was 
 suspected was not a felony.) It is equally clear that refusal to make 
 any explanation to the police officer was not a breach of the peace. 
 Klein V. Pollard, 149 Mich 200, 112 N. W. 717, 10 L. R. A. (N. S.) 
 1008, 119 Am. St. Rep. 670. The arrest was therefore illegal, and 
 the trial court should have directed a verdict against defendant 
 Hastings. The liability of the other defendants, legally speaking, is 
 equally clear. During his conveyance in the patrol wagon, plaintiff 
 was just as much in their custody as he was in Hastings'. It is then 
 quite correct to say that they assisted defendant Hastings in depriv- 
 ing plaintiff of his liberty. It is true they rendered this assistance, 
 not by actually laying their hands on plaintiff, but by a voluntary 
 display of force which was intended to and did deprive him of his 
 liberty. The law governing this question is correctly stated in a 
 note, 12 A. & E. Enc. Law (2d Ed.) p. 777 (citing Griffin v. Coleman, 
 4 H. & N. 265), as follows : "If an arrest by a constable is in its in- 
 ception wrongful, all other constables who act and assist in the con- 
 tinuance of the wrongful imprisonment are responsible for the entire 
 damage thereby caused to the plaintiff, although they had no knowl- 
 edge of the unlawfulness of the imprisonment and intended to act in 
 the strict discharge of their official duties." The trial court should 
 have directed a verdict for plaintiff against all the defendants. 
 
 Defendants' counsel urge that under the law declared in this opinion 
 police officers will sometimes be compelled either to neglect their duty 
 of preserving order — a duty they owe to the public — or to make un- 
 lawful arrests, and it is also urged that that alternative was presented 
 in this case. If so, they must either neglect that duty or accept the 
 risk of being held liable for the consequences, for if they are sued, 
 the court will pass judgment on their conduct in accordance, not with 
 the judge's notion of justice, but in accordance with a law which 
 condemns. It is not for the judge presiding over the court to de- 
 termine whether or not he will apply that law. He has no choice. 
 He did not make the law, and he cannot change it. That law is as 
 obligatory on him as it is on the humblest suitor who ever appeared 
 in his court. He is bound to apply it in determining controversies.
 
 Ch. 1) TRESPASSES 247 
 
 The argument under consideration is in reality an appeal for a change 
 of the law. It should have been addressed, not to a court, but to 
 some other tribunal — a tribunal having authority to change the law.^® 
 Judgment reversed, and a new trial ordered. 
 
 TIMOTHY V. SIMPSON. 
 
 (Court of Exchequer, 1835. 1 Cr., M. & R. 757, 40 R. R. 722.) 
 
 Parke, B. This was an action of trespass and false imprisonment, 
 tried before me at the sittings after Trinity Term last, at Guildhall. 
 The declaration was for an assault and false imprisonment; to which 
 there was a plea of not guilty, and a special plea of justification, on 
 the ground that the plaintiff was guilty of a breach of the peace in 
 the defendant's dwelling-house, and that he thereupon gave him in 
 charge to a policeman, who was not averred to have had view of the 
 breach of the peace. To this special plea there was a replication of 
 de injuria sua propria absque tali causa. On the trial, the jury found 
 a verdict for the plaintiff on the general issue, and for the defendant 
 on the special plea, as I was of opinion that the material parts of it 
 were proved; but, as it appeared to me that the plea was bad in 
 law, I directed the jury to assess the damages on the general issue, 
 and I also gave the plaintiff permission to move to enter a verdict for 
 him on the special plea, if the Court should be of opinion that it 
 was not substantially proved. A rule nisi having been obtained to 
 enter a verdict for the plaintiff, or judgment non obstante veredicto, 
 the case was fully argued before my Brothers Bolland, Alderson, 
 Gurney, and myself, last Term. We have since considered the case, 
 and are of opinion that the rule ought not to be made absolute, but 
 that there should be a new trial, unless the parties will consent to 
 enter a stet processus. 
 
 The facts of the case, as to which there was little or rather no con- 
 tradictory evidence, may be very shortly stated. The defendant was 
 a linen-draper; the plaintiff was passing his shop, and, seeing an 
 
 5c Accord: Hardy v. Murphy (1795) 1 Esp. 294 (P. and S. were talking 
 loudly in the street, and refused to be quiet when so ordered by D., a watch- 
 man, who thereupon took them to the station house) ; Booth v. Hanley (1826) 
 2 C. & P. 2S8 (D., a policeman, arrests P., who, in a public street, was "turn- 
 ing to the wall for a particular purpose*') ; Wooding v. Oxley (1839) 9 C. «& 
 P. 1 (P. arrested for disturldng a public meeting) ; Palmer v. Maine Cent. 
 R. Co. (1899) 92 Me. 125, 42 Atl. 800, 44 L. R. A. 673, 69 Am. St. Rep. 513 (the 
 conductor of the defendant railway company caused the plaintiff to be ar- 
 rested by a constable without a warrant, on the ground that plaintiff had 
 fraudulently evaded the payment of his fare) ; Kurtz v. Moffitt (1885), 115 
 U. S. 487, 6 Sup. Ct. 148, 29 L. Ed. 458 (a deserter from the Federal army was 
 arrested by a state police otiiccr without a warrant). 
 
 And see "Arrest," 3 Cyc. 880, note 65. For statutory modifications of the 
 common-law rule, see 3 Cyc. 880-881, notes 67-70.
 
 248 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part T 
 
 article in the window, with a ticket apparently attached to it, de- 
 noting a low price, sent his companion in to buy it; the shopman re- 
 fused, and demanded a larger price; the plaintiff went in himself and 
 required the article at the lower rate. The shopman still insisted 
 on a greater price; the plaintiff called it "an imposition." Some of 
 the shopmen desired him to go out of the shop in a somewhat offen- 
 sive manner ; he refused to go without the article at the price he bid 
 for it; the shopmen pushed him out. Before they did so, he declared 
 he would strike any one who laid hands on him. One of the shop- 
 men, really supposing, or pretending to suppose, this to be a chal- 
 lenge to fight, stepped out and struck the plaintiff in the face, near 
 the shop door; the plaintiff went back into the shop and returned 
 the blow, and a contest commenced, in which the other shopmen 
 took a part, and fell on the plaintiff. There was a great noise in the 
 shop, so that the business could not go on — many persons were there, 
 and others about the street door. The noise brought down the de- 
 fendant, who was sitting in the room above. When he came down 
 he found the shop in disorder, and the plaintiff on the ground strug- 
 gling and scuffling with the shopmen; and this scuffle continued in 
 the defendant's presence for two or three minutes. The defendant 
 sent for a policeman, who soon afterwards came ; in the meantime 
 the plaintiff was taken hold of by two of the shopmen, who, how- 
 ever, relinquished their hold before the policeman came ; and, on 
 his arrival, the plaintiff was requested by the defendant to go from 
 the shop quietly; but he refused, unless he first obtained his hat, 
 which he had lost in the scuffle. He was standing still in the shop 
 insisting on his right to remain there, and a mob gathering round 
 the door; when the defendant gave him in charge to the policeman, 
 who took him to the police station. The defendant followed; but, 
 on the recommendation of the constable at the station, the charge 
 was dropped. 
 
 Upon these facts the plaintiff appears to have been, in the first in- 
 stance, a trespasser, by refusing to quit the shop when requested, 
 and so to have been the cause of the affray which subsequently took 
 place; but the first act of unlawful violence and breach of the 
 peace was committed by the shopman ; that led to a conflict, in which 
 there were mutual acts of violence clearly amounting to an affray, 
 the latter part of which took place in the defendant's presence; and 
 the plaintiff was on the spot on which the breach of the peace oc- 
 curred, persisting in remaining there under such circumstances as 
 to make it probable that the breach of the peace would be renewed, 
 when he was delivered by the defendant to the police officer in the 
 very place where the affray had happened. 
 
 The first question which arises upon these facts is, whether the 
 defendant had a right to arrest and deliver the plaintiff to a con- 
 stable, the police officer having, by the stat. 10 Geo. IV. c. 44, § 4, the
 
 Ch. 1) TRESPASSES 249 
 
 same powers as a constable has at common law. It is not necessary 
 for us to decide in the present case whether a private individual, who 
 has seen an affray committed, may give in charge to a constable who 
 has not, and such constable may thereupon take into his custody the 
 affrayers, or either of them, in order to be carried before a justice, 
 after the aft'ray has entirely ceased, after the oft'enders have quitted 
 the place where it was committed, and there is no danger of its 
 renewal. * * * Here the defendant, who had immediately before 
 witnessed an affray, gave one of the aft'rayers in charge to the con- 
 stable on the very spot where it was committed, and whilst there was 
 a reasonable apprehension of its continuance; and we are of opinion 
 thac he was justified in so doing, though the constable had seen no 
 part of the affray. It is unquestionable that any bystander may and 
 ought to interfere to part those who make an affray, and to stay 
 those who are going to join in it till the affray be ended. It is also 
 clearly laid down that he may arrest the affrayers, and detain them 
 until the heat be over, and then deliver them to a constable. Lam- 
 bard, in his Eirenarcha, chap. 3, p. 130, says: "Any man also may 
 stay the aff"ra3'ers until the storm of their heat be calmed, and then 
 may he deliver them over to a constable to imprison them till they 
 find surety for the peace ; but he himself may not commit them to 
 prison, unless the one of them be in peril of death by some hurt, for 
 then may any man carry the other to the goal till it be known, 
 whether he, so hurt, will live or die, as appeareth by the stat. 3 
 Hen. VII. c. 1." In Hawk. P. C. book 1, c. 63, § 11, it is said, that 
 it seems agreed that any one who sees others fighting may lawfully 
 part them, and also stay them until the heat be over, and then de- 
 liver them to the constable, who may carry them before a justice of 
 the peace, in order to their finding sureties for the peace; and pleas 
 founded upon this rule, and signed by Mr. Justice Buller, are to be 
 found in 9 Went. Plead. 344, 345 ; and De Grey, Ch. J., on the trial, 
 held the justification to be good. It is clear, therefore, that any per- 
 son present may arrest the affrayer at the moment of the affray, and 
 detain him till his passion has cooled, and his desire to break the 
 peace has ceased, and then deliver him to a peace olffcer. And, if 
 that be so, what reason can there be why he may not arrest an affrayer 
 after the actual violence is over, bu^ whilst he shews a disposition to 
 renew it, by persisting in remaining on the spot where he has com- 
 mitted it? Both cases fall within the same principle, which is that, 
 for the sake of the preservation of the peace, any individual who 
 sees it broken may restrain the liberty of him whom he sees breaking 
 it, so long as his conduct shews that the public peace is likely to be 
 endangered by his acts. * * * por these reasons we are of opin- 
 ion that the defendant was, upon the facts in evidence, justified in 
 delivering the plaintiff to the police officer. 
 
 This brings me to the second question, whether the plea upon the 
 record was substantially proved. I thought upon the trial that it
 
 250 TORTS THROUGH ACTS OP ABSOLUTE LIABILITY (Part 1 
 
 was, but, upon further consideration, I concur with the rest of the 
 Court in thinking that it was not. The plea was as follows : 
 
 "And the defendant says, that before and at the said time when, etc., the 
 said defendant was lawfully possessed of a certain dwelling-house in the city 
 of London, and tlie said defendant being so possessed thereof, the said plain- 
 tiff just before the said time when &e. entered and came into the said dwelling- 
 house, and then and there, with force and arms, made a great noise, dis- 
 turbance, and affray therein, and then and there insulted, abused, and ill- 
 treated the defendant and his servants in the said dwelling-house, and greatly 
 disturbed and disquieted them in the peaceable and quiet possession of the 
 said dwelling-house, in breach of the peace of our said lord the King ; where- 
 upon the defendant then and there requested the plaintiff to cease his noise 
 and disturbance, and to depart from and out of the said house, which the 
 plaintiff' then and there wholly refused to do, and continued in the said house, 
 making the said noise, disturbance, and affray therein; whereupon the de- 
 fendant, in order to preserve the peace and restore good order and tran- 
 quillity in the said house, then and there gave charge of the plaintiff to a 
 certain policeman of the city of London, and then and there requested the 
 said policeman to take the plaintiff into his custody, to be dealt with ac- 
 cording to law; and the said policeman, so being such policeman as aforesaid, 
 at such request of the defendant, then and there gently laid his hands on the 
 plaintiff for the cause aforesaid, and did then and there take the plaintiff" into 
 his custody." 
 
 The replication puts in issue all the allegations constituting the 
 ground of the arrest, and of these it is not necessary to prove all. 
 It is enough to establish so many of them as would justify the ar- 
 rest. It is not enough to prove facts which justify the imprison- 
 ment, it is necessary to prove such of the facts alleged as would do so. 
 The allegations which were proved were the entry into the defend- 
 ant's house, the assault on his servants, the disturbance of the de- 
 fendant in his possession of the house, by an affray in it, in which the 
 plaintiff bore a part, just before the time of the arrest, and that the 
 defendant gave the plaintiff in charge in order to preserve the pub- 
 lic peace; but the fact of an assault on the plaintiff himself was not 
 proved, and that is the only breach of the peace which in the plea 
 appears by necessary implication to have been committed in the de- 
 fendant's presence; for in none of the other alleged facts is the 
 defendant's presence inserted or necessarily implied before the mo- 
 ment of actual interference. The disturbance of the defendant in 
 the possession of his dwelling-house might have occurred by an entry 
 in his absence, and therefore that averment does not by necessary 
 implication affect the defendant's presence. If so, the substance of 
 this plea, that is, so many of the allegations in it as constituted a 
 defence, was not proved, as the assault on the defendant himself was 
 not proved. For this reason we think that the proof failed : but, as 
 this is a case in which an amendment would have been allowed by 
 virtue of the late statute, as it is clear upon the facts that there 
 was a defence, on the ground of the defendant's right to arrest for 
 a breach of the peace in his presence, and as the declaration of my 
 opinion, that the plea was substantially proved, at the time, probably 
 prevented an application to amend, we think that there should be
 
 Ch. 1) TRESPASSES 251 
 
 a new trial, when, or before which, the plea may be amended. And 
 as ultimately there will be a verdict for the defendant, if the same 
 evidence is adduced, the best course will be for the parties to agree to 
 enter a sfet processus.^'' 
 Rule accordingly. 
 
 DERECOURT v. CORBISHLEY. 
 
 (Court of Queen's Bencli, 1855. 5 El. & Bl. 188, 119 Reprint, 451.) 
 
 Declaration for assaulting and beating defendant, and giving him 
 
 into custody to a policeman, and causing him to be imprisoned at a 
 
 police station. There was a plea that 
 
 Before the committing, etc., one Jolin Watkins was lawfully possessed of a 
 messuage, situate within tlie city of Loudon police district: and, being so 
 possessed, the plaintiff, with force and arms, and with a strong hand, into 
 the said messuage unlawfully, violently and forcibly did enter and, from the 
 possession of the said messuage, with a strong hand, unlawfully, violently and 
 forcibly did expel and amove the said J. W., against the peace, etc. ; and the 
 plaintiff committed the said breach of the peace in the presence of one of the 
 officers of the city of London police, and a peace officer and constable of our 
 lady the queen, and who then and there had view of the said breach of the 
 peace which was committed within the city of London police district. And 
 thereupon defendant gave plaintiif in charge of the said police officer for the 
 said offence, and directed him to take him into custody and convey him before 
 one of the city of London police magistrates to answer for the said offence ; 
 and the said police officer, accordingly, in pursuance of the said charge, gently 
 laid his hands on the plaintiff, and took him into custody ; and, for the pur- 
 pose of conveying him before a city of London police magistrate, conveyed him 
 in custody to, and imprisoned him for a short and reasonable time at, the 
 said police station, doing no more than in duty he was bound to do; and 
 which are the trespasses and acts complained of. 
 
 To the plea there was a demurrer. 
 
 Erle, J. I also think that the plea is good. The action is for tres- 
 pass and false imprisonment : I think there is a good confession and 
 avoidance. The defendant says he did call upon the constable to ar- 
 rest the plaintiff; so there is a good confession. Then the avoidance 
 is, that the plaintiff committed a breach of the peace in the sight of 
 the constable, and thereupon the defendant directed the constable to 
 arrest him; that, I think, is a good avoidance. The argument for 
 the plaintiff is, that the breach of the peace might have been over be- 
 fore the arrest took place ; but the plea uses the word "thereupon,'' 
 which I understand to mean the same as "then and there." Then 
 was the defendant wrong in directing the constable to do his duty 
 against the plaintiff ? I think it very important to hold that he was right. 
 On the plea, as we must understand it, the plaintiff has been shewn 
 to be dealt with according to law. Xo right, therefore, has been vio- 
 lated. It has been pressed upon us that, although the constable might 
 have a right to arrest, the defendant had no right to direct him to do 
 
 BT Part of the opinion Is omitted.
 
 252 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part I 
 
 SO. It may very often happen that bystanders may see a constable 
 passing by a breach of the peace with perfect indifference, and may 
 think it right to take up the matter and direct the constable to do his 
 duty. I should be very unwilling to hold, and I never heard that it 
 has been holden, that in such a case a bystander may not set the con- 
 stable in motion. 
 Judgment for defendant.^' 
 
 BAYNES V. BREWSTER. 
 
 (Court of Queen's Bench, 1841. 2 Q. B. 375, 114 Reprint, 149, 57 R. R. 707.) 
 
 Trespass for assault and false imprisonment. The defendant plead- 
 ed first, not guilty, and secondly, that the plaintiff on a certain night, 
 notwithstanding the defendant's request that he cease and depart, 
 knocked and rapped on the back door of defendant's dwelling house 
 and was threatening the defendant to continue making the said noise 
 and disturbance until defendant should deliver to plaintiff a certain 
 book, then in the possession of the defendant ; that the plaintiff' hav- 
 ing continued to make said noise and disturbance for two hours, the 
 defendant then sent to one James Chatters, then being the constable 
 of the parish, 
 
 for the purpose of arresting and taking plaintiff into custody, and thereby 
 preventing him further disturbing and annoying defendant and liis family as 
 aforesaid ; and plaintiff, having ascertained that he was about to he given 
 into custody by defendant, ceased the said knocking and rapping at the back 
 door of the said dwelling house, but which he had violently, wrongfully, and 
 illegally continued up to that period, and then and there ran and escaped off 
 and from the said premises of the defendant; when defendant, accompanied 
 by certain persons who had been called to the aid and assistance of the said 
 James Chatters, so being such constable as aforesaid, immediately followed 
 and pursued plaintiff, and overtook him in a certain close near to the said 
 dwelling house of the defendant; whereupon defendant, in order to preserve 
 the peace and to prevent the said plaintiff f i-om continuing to disturb the good 
 order and tranquillity of the said dwelling house of the defendant, and to 
 hinder and prevent plaintiff from continuing to make said noise and disturb- 
 ance at the said dwelling house of defendant during the whole night, then 
 gave charge of plaintitf to said James Chatters, then and there being such 
 constable as aforesaid, and then requested the said James Chatters, so being 
 such, etc., to take plaintiff into his custody, and carry him before some justice 
 or justices of our said lady the queen, assigned, etc., to answer the premises, 
 and to be dealt with according to law. 
 
 Issue was taken on this second plea, and at the trial a verdict was 
 found for the plaintiff* on the general issue and for the defendant on 
 the second plea. Afterwards a rule nisi was obtained for judgment 
 non obstante veredicto.^ ^ 
 
 58 The concurring opinions of Lord Campbell, C. J., and Coleridge, J., are 
 omitted. 
 
 fio The statement of facts has been abridged. Part of the opinion of 
 Colei-idge, J., and the concurring opinions of Lord Denman, C. J., and Wil- 
 liams, J., are omitted.
 
 Ch. 1) TRESPASSES 253 
 
 Coleridge, J. * * * The plaintiff quitted the premises when 
 he ascertained that the constable was coming. The plea does indeed 
 allege that the defendant gave the plaintiff into custody in order to 
 prevent a continuance of the breach of the peace : but it is not aver- 
 red that the plaintiff', after quitting the premises, either threatened or 
 intended to continue the breach of the peace. The plea, therefore, 
 contains nothing equivalent to an allegation that another breach of the 
 peace was about to be committed. The question is simply whether, 
 after a breach of the peace is over, a constable who has not seen it 
 may take up the party without warrant. Then it is contended that 
 after verdict we must infer all the facts necessary to support the ver- 
 dict. But the plea here contains nothing of which proof might not 
 have been given without evidence of circumstances necessary to com- 
 plete a good defence. 
 
 WiGHTMAN, J. The plaintiff is entitled to our judgment on the 
 question, whether or not the defendant, when he caused the imprison- 
 ment, was justified in so doing. The point is perfectly clear. The 
 authorities are collected in Timothy v. Simpson [1835] 1 Cr., M. &. 
 R. 757. * * * 60 
 
 The defendant here fails to bring his case within that principle. 
 On the contrary the plaintiff" only threatened at first to continue the 
 disturbance ; but, when he heard the officer was coming, ran away. 
 There is nothing to show that, after he ran away, he either insisted on 
 remaining, or intended to do so. It would be going a very great 
 length indeed to hold that the subsequent apprehension upon a pur- 
 suit under such circumstances, without warrant, was justifiable. 
 
 Rule absolute. 
 
 BALTBIORE & O. R. CO. v. CAIN. 
 
 (Court of Appeals of Maryland, 1895. SI Md. 87, 31 Atl. 801, 28 L. R. A. 6S8.) 
 
 Action by Cain against the railway company for false imprisonment 
 in having plaintiff arrested on a charge of disorderly conduct, on one 
 of defendant's trains. From a verdict and judgment for the plaintiff, 
 the defendant appealed. 
 
 It appeared in the evidence that on a Sunday morning the plain- 
 tiff' and three companions drove to a camp meeting at Washington 
 Grove and shortly thereafter took passage on the defendant's train 
 for Washington City, entering the ladies' car. There was evidence 
 also, that, after these men entered the ladies' car, they cursed and 
 swore and drank liquor openly, and that one of them was smoking; 
 that the conductor expostulated with them, and urged them to be quiet 
 or to go into the smoking car, where they could drink and smoke as 
 much as they pleased ; that they said they had paid their fares, and 
 would ride where it suited them. 
 
 6 Wightman, J., here quoted at length from Timothy v. Simpson.
 
 254 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 McSniiRRY, J. * * * f he conductor again appealed to them to 
 be orderly, or he would be obliged to put them off the car ; whereupon 
 the plaintiff replied : "If you put him off (meaning Watkins, who 
 was smoking), you will have to go too." It was further proved that 
 numerous complaints were made by ladies and gentlemen about the 
 conduct of these four men, and that one lady left the car, and went 
 into the forward car. Afterwards other ladies who got on the train 
 at other stations were put in the forward car, because it was not fit 
 for them to enter the one where the men were. The conductor did 
 not undertake to put them off, because he did not believe himself able 
 to cope with these four intoxicated and lawless men. Just before the 
 train arrived in Washington, the plaintiff was still behaving in a dis- 
 orderly manner, and using profane language, in the hearing of the 
 passengers on the same car. There were between 50 and 60 passen- 
 gers on the train, most of whom were on their way to church in Wash- 
 ington. Finding himself unable to control these men or to suppress 
 their disorder, and feeling powerless to eject them because of their 
 threatened resistance, the conductor telegraphed from Forest Grove 
 to Washington for an officer to arrest them, and, when the train drew 
 up in the depot in that city, the policeman was there, and the conductor 
 pointed out to him the plaintiff; and the officer then and there arrest- 
 ed the plaintiff, and took him to the station house. 
 
 With these facts before the jury, there were two prayers presented 
 by the plaintiff, both of which were granted ; and there were nine 
 presented by the defendant, all of which, except the sixth, were re- 
 jected. The view we take of the case dispenses with a separate consid- 
 eration of each of these prayers, inasmuch as the defendant's fifth 
 prayer raises the crucial inquiry contained in the record; and what 
 we shall say in discussing that prayer will, with a few brief addition- 
 al observations, dispose of most, if not all, of the others. The fifth 
 prayer maintains that, if the plaintiff was riotous and disorderly, the 
 conductor had the right to eject him; that, if the conductor was un- 
 able to do this by reason of the threat of resistance, then the conductor 
 was justified in requesting the first police officer whom he could find 
 to arrest the plaintiff and it proceeds : 
 
 "If the jury further find that the police officer at the Washington depot was 
 the first police oflicer the conductor saw, and that the conductor used due 
 diligence in procuring a police officer, and that the conductor directed the 
 police officer to arrest the plaintifl; for said disordei'ly conduct, that the de- 
 fendant is not liable for this arrest, and the verdict of the jury must be for 
 the defendant." 
 
 From this prayer, considered in connection with the evidence to 
 which allusion has been made, it is obvious at a glance that the pre- 
 dominant and controlling question before us involves the legality of 
 the conceded arrest made in the city of Washington. Under the un- 
 disputed proof, that arrest was made without a warrant having been 
 first procured. It was not made for an alleged felony, nor for a mis- 
 dem-eanor or breach of the peace, committed within view of the offi-
 
 Ch. 1) TRESPASSES 255 
 
 cer who took the plaintiff into custody, but, if the evidence of the 
 defendant's witnesses be credited, it was made for a flagrant breach 
 of the peace, which began at Washington Grove, and continued into 
 Washington City, on the morning train of the defendant, and was 
 made at the instance of the conductor, the very moment he reached 
 a place where he could deliver these intoxicated offenders into the 
 custody of a police officer. Was the arrest so made illegal? 
 
 It is settled that an officer has the right to arrest without a war- 
 rant for any crime committed within his view. It was his duty to do 
 so at the common law, and this is still the law (Roddy v. Finnegan, 
 43 Md. 504; Phillips v. Trull, 11 Johns. [N. Y.] 486; Derecourt v. 
 Corbishley, 5 El. & Bl. 188) ; and in cases of felony he may arrest 
 upon information, without warrant, where he has reasonable cause 
 (Rex V. Birnie, 1 Moody & R. 160; Rohan v. Sawin, 5 Cush. [Mass.] 
 281). And so any person, although not an officer, in whose view a 
 felony is committed, may arrest the off'ender. Ruloff v. People, 45 
 N. Y. 213. But the right of a person not an officer to make an arrest 
 is not confined to cases of felony for he may take into custody, with- 
 out a warrant, one who in his presence is guilty of an affray or a 
 breach of the peace. Knot v. Gay, 1 Root (Conn.) 66. "It seems 
 agreed that any one who sees others fighting may lawfully part them, 
 and also stay them till the heat be over, and then deliver them to the 
 constable, who may carry them before a justice of the peace, in order 
 to their finding sureties for the peace." 1 Russ. Crimes, 272 ; 1 
 Archb. Cr. Prac. & PI. 82; 1 Hawk. P. C. c. 63, §§ 11, 17; 2 Hale, 
 P. C. 90; East, P. C. 306; Timothy v. Simpson, 1 Cromp., M. & R. 
 757. * * * 
 
 Now, if it be true that the plaintiff was guilty of the reprehensible 
 and disorderly conduct attributed to him by the witnesses, he was in- 
 contestably engaged in a flagrant and an outrageous breach of the 
 peace, as pronounced as if there had been an actual affray during the 
 whole time he was in the defendant's car ; and it was clearly lawful, 
 under these conditions, for the conductor to expel him and his drunk- 
 en companions from the train if he had a sufficient force to overcome 
 their threatened resistance, or else to arrest them all without warrant, 
 and then deliver them to the first peace officer he could procure within 
 a reasonable time. If this were not so, then, as said by Lord Chief 
 Justice Denman in Webster v. Watts [11 O. B. 311], "the peace of 
 all the world would be in jeopardy." And it would be in jeopardy, 
 because if, in such and similar instances, no arrest could be lawfully 
 made without a warrant, the culprit, "if transient and unknown, would 
 escape altogether," before a warrant could be obtained (Mitchell v. 
 Lemon, 34 Md. 181), and there would soon cease to be any order or 
 any security or protection afforded the public on swiftly-moving rail- 
 road trains, or even elsewhere, unless a peace officer were constantly 
 present. The delay necessarily incident to obtaining a warrant would 
 be in many, if not in most, cases of this and a kindred character ecjuiv-
 
 25G TORTS THROUGH ACTS OP ABSOLUTE LIABILITY (Part 1 
 
 alent to an absolute immunity from arrest and punishment; and, 
 should the name of the offender be unknown, he, most probably, 
 would never be apprehended if once suffered to depart. The law is 
 not so impotent and ineffective as that. 
 
 Being physically unable to expel these alleged riotous persons from 
 the train, the conductor telegraphed for a peace officer, and without 
 delay, and while the plaintiff was still drunk, caused his arrest the 
 instant the officer thus summoned came in view of the plaintiff. If, then, 
 any bystander could, in the language of Baron Parke, "for the sake 
 of the preservation of the peace, * * * restrain the liberty of 
 him whom he sees breaking" the peace, the act of the conductor in 
 telegraphing for the policeman, and within a short space of time there- 
 after handing the plaintiff over to the officer, was in no respect dif- 
 ferent from a formal arrest of the plaintiff by the conductor, in the 
 midst of the riot and disorder, and the prompt delivery of him after- 
 wards to the officer. If the plaintiff was not in fact arrested by the 
 conductor because of the presence of superior resisting force, that 
 fact cannot make the subsequent act of the conductor in pointing out 
 the plaintiff to the officer wrongful or illegal. The charge, according 
 to the plaintiff's own testimony, was sustained. A fine was imposed, 
 and he paid it. The accusation was therefore well founded, and what 
 was done by the conductor, if the facts testified to by the defendant's 
 witnesses be credited, was undeniably lawful, under all the circum- 
 stances. If this be so, then there is obviously no cause of action 
 against the defendant, because no wrong has been done to the plain- 
 tiff. This is the theory of the defendant's fifth prayer. That prayer, 
 being correct in principle and proper in form, ought to have been 
 granted. For the same reasons, the second, third, fourth, and seventh 
 prayers should have been granted. 
 
 The eighth was properly rejected. It makes the right to arrest de- 
 pend on the fact that, while on the train, the plaintiff was charged 
 by the conductor with being disorderly, whereas the right to arrest 
 depended on the fact that the plaintiff was in reality disorderly. His 
 having been charged by the conductor with being disorderly is quite 
 a different thing from his having been in fact disorderly. The ninth 
 prayer was properly rejected. It failed to submit to the jury that the 
 arrest was made for the alleged breach of the peace. Though the ar- 
 rest had been made without an assigned cause, the prayer exonerated 
 the defendant. 
 
 The plaintiff's first prayer ought to have been rejected. Its fallacy 
 lies in the postulate that an arrest for a breach of the peace, committed 
 out of the view of a peace officer, necessarily could not be legally 
 made without a warrant. * * * 
 
 Judgment reversed and new trial awarded.®^ 
 
 01 The statement of facts is abridged and part of the opinion is omitted.
 
 Ch. 1) TRESPASSES 257 
 
 HANDCOCK V. BAKER et al. 
 
 (Court of Common Pleas, 1800. 2 Bos. & P. 260, 126 Reprint, 1270, 5 R. R. 587.) 
 
 Trespass for breaking the plaintiff's dwelling-house and assaulting 
 him therein, and dragging him out of bed, and forcing him without 
 clothes out of his house along the public street, and beating and im- 
 prisoning him without cause. Two of the defendants suffered judg- 
 ment by default; and the other two pleaded, 1st, not guilty; 2ndly, 
 as follows : 
 
 That the plaintiff, in the said dwelling-house, broke the peace and assaulted 
 his wife, and purposed to have feloniously killed and slain her, and was on the 
 point of so doing; and that her life being in great danger she cried murder 
 and called for assistance ; whereupon the defendants, for the preservation of 
 the peace, and to prevent the plaintiff from so killing and slaying his wife, and 
 committing the said felony, endeavoured to enter by the door, and knocked 
 thereat; and because the same was fastened, and there was reason to pre- 
 sume that the wife's life could not have been otherwise preserved than by 
 immediately breaking open the door and entering the said dwelling-li.use. and 
 they could not otherwise obtain possession, they did for that purpose break 
 and enter the said dwelling-house, and somewhat break, etc., doing as little 
 damage as possible, and gently laid hands on the plaintiff, and prevented him 
 from further assaulting and feloniously killing and slaying his said wife; 
 and for the same purpose and also for that of taking and delivering the 
 plaintiff to a constable, to be by him taken before a justice, and dealt with 
 according to law, kept and detained him a short and reasonable time in that 
 behalf, and because he had not then proper and reasonable clothes on him, 
 took their hands oft' from him, and permitted him to enter a bed-chamber, 
 and to remain there a reasonable time, that he might put on such clothes, 
 which he might have done ; and because he did not nor would so do, but 
 wholly refused and went into bed there, and remained there at the end of 
 such reasonable time, and would not quit the same, although thereto requested, 
 the defendants for the same purposes as they so kept and detained the plaintiff 
 as above mentioned, there being then no reasonable ground for presuming that 
 he had changed his purpose of further assaulting and feloniously slaying his 
 said wife, entered the bed-chamber in order for these purposes to take him 
 therefrom, whereupon the plaintiff assaulted and would have beat the said 
 defendants if they had not defended themselves, which they did, and if any 
 damage happened to the plaintiff" it was occasioned by his own assault, and 
 the defendants for the purpose in that behalf aforesaid, gently laid hands upon 
 the plaintiff and took him from the bed and out of the dwelling house along 
 the public streets for a reasonable time, and kept and detained him for a short 
 and reasonable time for those purposes, till they could find a constable, and 
 as soon as they could find a constable delivered him to the constable for the 
 purpose in that behalf aforesaid. 
 
 On the trial there was a verdict for the plaintiff on the general is- 
 sue, and for the defendants on the special justification. At the fol- 
 lowing term a rule nisi was obtained calling on the defendants to show 
 cause why judgment in their favor on the special justification should 
 not be arrested and a verdict entered for the plaintiff on the gen- 
 eral issue, with Is. damages. 
 
 Lord Eldon, Ch. J. * * * In this case the plaintiff being 
 about to commit a felony by killing and slaying his wife, the defend- 
 ants interfered by breaking and entering the house in order to pre- 
 Hepb.Tobts — 17
 
 258 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 vent the execution of that intent; and "for the same purposes," that 
 is, with a view to prevent the plaintiff from kiUing and slaying his 
 wife, they afterwards committed the injury complained of in the bed- 
 room, into which they had permitted him to enter in order to put 
 on necessary clothes. It is stated that there was no reasonable ground 
 for presuming that the plaintiff had changed his purpose ; and it is 
 argued that it ought to have been averred that his purpose actually 
 continued : but if the preceding allegation be true, that the defend- 
 ants entered the bed-room for the same purpose for which they had 
 previously entered the house, the latter allegation was unnecessary; 
 since the averment that it was for the same purposes sufficiently 
 brought the question before the jury, Whether or not the defendants 
 (entered) into the bed-chamber and detained the plaintiff for the pur- 
 pose of preventing him from killing and slaying his wife? It is not 
 difficult to conceive that under some circumstances it might be more 
 especially the defendants' duty to interfere in that manner. Suppose 
 A. endeavour to lay hold of B. who is in pursuit of C. with an intent 
 to kill him, and B. thereupon ceases to pursue with a view of eft"ect- 
 ing his purpose with more cunning, the act of ceasing to run, so far 
 from being evidence of an intention to desist from his purpose, might 
 afford strong evidence of an intention to prosecute it with more ef- 
 fect; in which case the detention of B. would be justified. In this 
 case the jury were competent to consider whether under all the cir- 
 cumstances of the case, including the presence or absence of the wife, 
 the plaintiff got into bed with a view of more effectually executing his 
 intent to kill his wife. In fact the jury have found that the defend- 
 ants kept and detained the plaintiff after he had gone into the bed- 
 room for the same purpose for which they kept and detained him be- 
 fore. With respect to the averment which has been supposed to be 
 necessary, it is sufficient to answer, that after verdict it must be pre- 
 sumed that every thing is proved which is necessary to support the 
 verdict; and the jury have found that it was necessary for the pres- 
 ervation of the woman's life that the defendants should do what they 
 did. 
 
 Heath, J. I am of the same opinion. It is a matter of the last 
 consequence that it should be known upon what occasions by-standers 
 may interfere to prevent felony. In the riots which took place in the 
 year 1780, this matter was much misunderstood, and a general per- 
 suasion prevailed that no indifferent person could interpose without 
 the authority of the magistrate; in consequence of which much mis- 
 chief was done, which might otherwise have been prevented. In this 
 case the defendants broke and entered the plaintiff's house in order 
 to prevent the commission of murder, and that seems to have been 
 admitted to be a good justification. The only dispute therefore turns 
 on the propriety of their conduct towards the plaintiff' after they had 
 suffered him to go into the bed-room. Now I think that enough is 
 stated in the justification to support the verdict, since the jury have
 
 Ch. 1) TRESPASSES 259 
 
 thought that the conduct of the defendants was right. After verdict 
 we may suppose anything. We may suppose that the plaintiff's pas- 
 sion continued, and that he again declared that he would kill his 
 wife. 
 
 Rule discharged.^* 
 
 BECKWITH V. PHILBY et al. 
 
 (Court of King's Bench, 1827. 6 Barn. & C. 635, 108 Reprint, 585, 30 R. R. 484.) 
 
 This was an action for assaulting, beating, handcuffing, and im- 
 prisoning the plaintiff, and keeping and detaining him handcuffed 
 and imprisoned, without any reasonable or probable cause for forty- 
 eight hours, on a false and pretended charge of felony. At the trial 
 the following appeared to be the facts of the case : 
 
 The plaintiff was a blaclvsmith residing at Waltham Cross, in the county 
 of Hertford. The defendant Philby was high constable of Ongar in Essex, 
 and resided at Loughton, in that county. The defendants Wilks and Spicer 
 were constables of that parish. The plaintiff, on the 31st of January, 1826, 
 with a bridle and saddle on his back, was returning from Romford market, 
 where he had sold a pony for £7. 10 s., and about half past six in the eve- 
 ning sat down to rest himself near Loughton Bridge. While he was sitting 
 there, one Gould, a farmer resident in the neighborhood, passed him. Gould 
 told Philby the circumstance, and said he thought he ought to look after the 
 man. Philby went out and asked the plaintiff several questions, to which he 
 gave such answers as induced Philby to think he had been stealing a horse, or 
 was about to do so. The plaintiff was searched, and was again asked by 
 Philby where he came from ; the plaintiff then said that he had come from 
 Cheshunt, and had been to Romford to sell a horse, that his name was Beck- 
 with, and he had got the horse of one Bartlett. He then referred Philby to 
 one Noble, who lived in the neighbourhood. No inquiry was made by Philby 
 of Noble that night. Philby then sent for the defendant Wilks, to take the 
 plaintiff to the watch-house, and on Wilks' arrival desired him to handcuff 
 the plaintiff, which was done. Wilks took him, at his own request, to a pub- 
 lic-house at Loughton, and he remained there handcuffed during the night. 
 On the following morning Wilks delivered the plaintiff to the custody of 
 Spicer, who took him to a magistrate, who examined him, and said he thought 
 it his duty to detain him, but that if there was anybody near who would be 
 bound for his appearance, he might go home to his family. Noble became 
 bound for the plaintiff's appearance, and he was then discharged. Philby was 
 present at this examination. On inquiry at Cheshunt it appeared that the 
 plaintiff had bought a horse of Bartlett, as he had stated, and nothing sub- 
 sequently appeared against his character. No horse had been stolen in or 
 
 62 A part of the opinion of Lord Eldon and the concurring opinions of 
 Chamln-e and Rooke. JJ., are omitted. 
 
 Shepherd and Williams, Serjts., arguing against the rule, cited 9 Edw. IV., 
 26 b, Bro. Ab. tit. Trespass, pi. 184, where to trespass for assault and impris- 
 onment the defendant pleaded that the plaintiff was lying in wait in the high- 
 way to rob the king's subjects, that one Alice was riding on the same highway, 
 against whom the plaintiff drew his sword and commanded her to deliver 
 her purse, whereupon .she levied hue and cry, that the defendant was riding 
 there and heard the cry, and returned and took the plaintiff, and because 
 there were no stocks in the vill he carried him to S. and there delivered him 
 to the constable ; and the plea was held good by the whole Court, and Moile 
 said, If one say to me, "See this man, I will certainly kill him," in this case I 
 may hold him so that he do not kill the man, and this holding is no imprison- 
 ment.
 
 2G0 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 near Loughton on the day, or for some days before the plaintiff was appre- 
 hended, but within the preceding month many had been stolen. 
 
 For the plaintiff it was contended, that as there was no charge of 
 felony made, nor any felony committed, the defendant Philby was not 
 justified in making the arrest in tlie first instance, and still less were 
 he and the other defendants justified in detaining the plaintiff' during 
 the night. The learned Judge was of opinion that the arrest and de- 
 tention were lawful, provided the defendants had reasonable cause to 
 suspect that the plaintiff had committed a felony, and he directed the 
 jury to find a verdict for the defendants, if they thought upon the whole 
 evidence that the defendants had reasonable cause for suspecting the 
 plaintiff' of felony. A verdict was found for the defendants, but lib- 
 erty was reserved to the plaintiff to move to enter a verdict for nom- 
 inal damages, if the Court should be of opinion that the arrest and de- 
 tention were unlawful, 
 
 Gurney now moved to enter a verdict for the plaintiff for nominal 
 damages, on the ground that a constable had no authority without a 
 warrant to apprehend a person unless there was a charge of felony 
 made by a third person, or unless a felony had been committed. A 
 constable acting on his own suspicion, places himself in the situation 
 ■of a private person. The latter cannot lawfully arrest another unless 
 a felony has actually been committed, and then it must be on his 
 own suspicion, and not on report or suspicion of another. When a 
 I'elony has been committed by some one, a constable may, upon the 
 information of others, lawfully apprehend a supposed offender, with- 
 out any knowledge of the circumstances on which a suspicion is 
 founded. But if he act without having information from others, and 
 on his own suspicion, then he, in the same manner as a private in- 
 dividual, must be liable to an action if it afterwards appear that no 
 felony has been committed. 
 
 Lord TenterdEN, C. J. I am of opinion that there is no ground 
 for disturbing the verdict. Whether there was any reasonable cause 
 for suspecting that the plaintiff had committed a felony, or was about 
 to commit one, or whether he had been detained in custody an un- 
 reasonable time, were questions of fact for the jury, which they have 
 decided against the plaintiff, and in my judgment most correctly. The 
 only question of law in the case is, whether a constable having rea- 
 sonable cause to suspect that a person has committed a felony, may de- 
 tain such person until he can be brought before a justice of the peace 
 to have his conduct investigated. There is this distinction between a 
 private individual and a constable; in order to justify the former in 
 causing the imprisonment of a person, he must not only make out a 
 reasonable ground of suspicion, but he must prove that a felony has 
 actually been committed ; whereas a constable having reasonable 
 ground to suspect that a felony has been committed, is authorized to 
 detain the party suspected until inquiry can be made by the proper 
 authorities. Now in this case it is quite clear upon the evidence, and
 
 Ch. 1) TRESPASSES 261 
 
 the jury have so found, that the conduct of the plaintiff had given the 
 defendants just cause for suspecting that he either had committed, or 
 was about to commit a felony, and the jury having so found, I am 
 of opinion that the action was not maintainable. 
 Rule refused.®^ 
 
 WALTERS V. W. H. S^IITH & SON. 
 (Court of King's Bench, [1914] 1 K. B. 595.) 
 
 Action by Walters to recover damages for false imprisonment and 
 malicious prosecution. 
 
 The following statement of the facts is taken from the judgment 
 of Sir Rufus Isaacs, C. J. : 
 
 "Tbe plaintiff brouglit this action to recover damages for false imprison- 
 ment and malicious prosecution. It was tried by me with a special jury to 
 whom I submitted certain questions to which they gave the following an- 
 swers: (1) Did the defendants take reasonable care to inform themselves of 
 the true facts of the case? — Yes. (2A) Did the defendants honestly believe 
 that the plaintiff had stolen the bookV — Yes. (2B) Did the defendants rea- 
 sonably believe that the plaintiff had stolen moneys and stock (other than the 
 book 'TrafBc") from the bookstall? — Yes. (8) Were the defendants in institut- 
 ing the criminal proceedings actuated by malice? — No. (4) What damages for 
 false imprisonment? — £75. 
 
 "I ruled that there was not an absence of reasonable and probable cause for 
 the prosecution. Thus the plaintiff failed and the defendant succeeded upon 
 the claim for malicious prosecution, and the claim for false imprisonment 
 remained to be dealt with. 
 
 "During the trial it was contended by the plaintiff that, inasmuch as the 
 defendants admitted that no felony had in fact been committed in respect of 
 the book 'Traffic' there was no defence to the claim based upon false imprison- 
 ment. The defendants contended that all that they need establish as legal 
 justification for the imprisonment was (1) that an actual felony or felonies 
 had been committed, and (2) that they had reasonable and probable cause 
 for suspecting the plaintiff of having committed an actual felony or actual 
 felonies; in other words, it was argued for the defendants that it was not 
 essential to their defence to prove that the felony for vrhich the plaintiff was 
 arrested had in fact been committed. In order to give the defendants the 
 opportunity of raising this point of law I left question (2B) to the jury, which 
 was answered in favour of the defendants. Both parties claimed judgment 
 upon the verdict of the jury. The matter was then argued before me, and 
 I received great assistance from counsel on both sides, who argued the case 
 with great ability. It was agi-eed by counsel for the parties that I should be 
 at liberty to find any further facts which might become necessary. So far as 
 they are material to the questions now raised the facts are that the plaintiff 
 was, and had been for some nine years, in the employment of the defendants 
 as assistant manager at a bookstall at the King's Cross Railway Station of 
 the Great Northern Railway where some five other persons were also employed 
 under a manager. Early in 1912 it was discovered at the usual half-yearly 
 stocktaking that there was a deficiency of £126. which pointed to dishonesty 
 and thefts by one or more of the defendants' servants. Stock was again 
 taken in February, when the deficiency was £154., and again in April, 1912, 
 when it was £148. Such a deficiency was inexplicable except upon the basis 
 that money or stock, or both, had been stolen; probably only money was 
 taken, but it might well be that stock also had been stolen. It is clear, and 
 
 3 The statement of facts is abridged.
 
 262 TORTS THROUGH ACTS OP ABSOLUTE LIABILITY (Part 1 
 
 indeed it was not, and could not be, disputed by the plaintiff at the trial, 
 that a felony, or more probably a series of felonies, had been committed which 
 caused the deficiency, and it was unlikely that they could have been committed 
 otherwise than by a person employed by the defendants at this bookstall. 
 The defendants in order to detect the culprit, and acting upon advice, there- 
 upon set what was called 'a trap.' Copies of a book called 'Traffic' were 
 marked and delivered to the bookstall at King's Cross. An agent of the 
 defendants went to a shop at Staines kept by the plaintiff and his wife, where 
 magazines and newspapers were sold, to purchase a copy of 'Traffic' On a 
 later day he called, and one of the marked copies was sold to him in exchange 
 for the price which he then paid. The book had been taken on June 1.5, 1912, 
 by the plaintiff from the bookstall without payment having been made, and 
 without the knowledge of the manager or other assistants at the bookstall. 
 These facts when ascertained were duly reported, on June 19, to Mr. Kimpton, 
 a manager of one of the defendants' departments, to whom the elucidation of 
 the mystery had been entrusted. In addition, and as the result of inquiries, it 
 was discovered that the plaintiff had acted in various respects in contraven- 
 tion of the practice regulating his employment by the defendants, which he 
 knew he was bound to observe, and that in particular he, with his wife's 
 assistance, had commenced, and was carrying on, a business where newspapers 
 and magazines, and occasionally books, were sold. All these facts were 
 thereupon reported to Mr. Hornby, one of the members of the defendant firm. 
 The plaintiff was asked into a room, and in answer to questions put to him 
 made statements which were of a very unsatisfactory character, and wholly 
 failed to give an explanation of his possession of the book 'Traffic' Mr. 
 Hornby honestly believed that the plaintiff had stolen the book 'Traffic' and 
 that the plaintiff had committed the thefts of money or books from the hook- 
 stall which had caused the deficiency, and at the end of the interview Mr. 
 Hornby gave the plaintiff into the custody of Sergeant Budge, who had been 
 employed in the matter as a detective officer. The plaintiff was taken to 
 the police court and charged with stealing the book 'Traffic" He was com- 
 mitted for trial and was eventually tried at the County of London Sessions 
 held at Newingtou and acquitted ; the defence was that in taking the book 
 he had no felonious intent, which the jury accepted. At the hearing before 
 me it was admitted by the defendants that the plaintiff had not stolen the 
 book, but had taken it away with the intention of subsequently accounting or 
 paying for it, and no imputation now rests upon him iu connection with this 
 transaction, and no suggestion is made against him of being party to the acts 
 of theft or dishonesty which caused the deficiency. 
 
 "Having regard to the facts proved I have no doubt that the defendants had 
 reasonable and probable cause for suspecting the plaintiff of having stolen 
 the money or books other than the book 'Traffic' when they gave the plaintiff 
 into custody. I further find as a fact that the plaintiff" was given into custody 
 for stealing the book 'Trafl^c,' and that although the defendants when they 
 caused his arrest were convinced that the man who stole 'Traffic' was also 
 guilty of the other thefts, tliey did not cause his arrest for those other thefts, 
 but only for that theft of which they thought they had clear evidence. Doubt- 
 less they were infiuenced in taking this course by the suspicion, and indeed 
 conviction, in their minds that the plaintiff had committed the other thefts. 
 It induced them to give him into custody for stealing the book, whereas other- 
 wise they might merely have summoned him or indeed might not have prose- 
 cuted him at all." 
 
 Sir Rufus Isaacs, C. J., after stating the facts above set out, con- 
 tinued: If as a matter of law the defendants must prove that the 
 particular felony for which the plaintifif was imprisoned had in fact 
 been committed they have failed in their defence, inasmuch as no 
 felony with regard to "Traffic" had in fact been committed. If as a 
 matter of law the defendants may justify the imprisonment by proof 
 that at the time of the arrest of the plaintifif felonies had been com- 
 mitted other than that for which he had been arrested, and that they
 
 Ch. 1) TRESPASSES 263 
 
 had reasonable and probable cause for suspecting the plaintiff of hav- 
 ing committed them, they would be entitled to succeed. 
 
 That is, in my view, the precise question for decision in this case, 
 and one which, so far as I am aware, has never been expressly de- 
 cided, and for that reason I have gone carefully into the facts and 
 set them out in detail in order that, should it be desired to argue the 
 case further, all the findings of fact will be found in my judgment. 
 
 It was strenuously argued before me by counsel for the defend- 
 ants that in ordering the arrest of the plaintiff they had only caused 
 such an interference with his liberty as was necessary to put matters 
 in train for judicial inquiry, and that the charge subsequently formu- 
 lated against the plaintiff in the legal proceedings should not be re- 
 garded in the claim for false imprisonment. I cannot accept that view 
 inasmuch as it became quite clear during the course of the case, as 
 I have found, that the plaintiff was arrested for stealing the book ; 
 and I must deal with the case upon that basis. Interference with the 
 liberty of the subject, and especially interference by a private person, 
 has ever been most jealously guarded by the common law of the land. 
 At common law a police constable may arrest a person if he has rea- 
 sonable cause to suspect that a felony has been committed, although 
 it afterwards appears that no felony has been committed, but that 
 is not so when a private person makes or causes the arrest, for to 
 justify his action he must prove, among other things, that a felony 
 has actually been committed. See per Lord Tenterden, C. J., in Beck- 
 with V. Philby, 6 B. & C. 635. I have come to the conclusion that 
 it is necessary for a private person to prove that the same felony had 
 been committed for which the plaintiff had been given into custody. 
 In Hawkins' Pleas of the Crown (7th Ed., 1795) bk. ii., ch. xii., p. 
 163, the law is thus stated: "As to the fourth particular, namely, in 
 what manner an arrest for such suspicion is to be justified in plead- 
 ing. Sect. 18. It seems to be certain, that * * * regularly he 
 ought expressly to show that the very same crime for which he made 
 the arrest, was actually committed." * * * 
 
 The case which is nearest to the one which we are at present con- 
 sidering IS Anon., Y. B. 27 Hen. \TII, p. 23, where the plea was 
 that divers cattle were stolen, and the defendant suspected the plain- 
 tiff of stealing six cattle. That plea was held bad on the ground that 
 the defendant must prove that the thing which he suspected the plain- 
 tiff of stealing was in fact stolen. It is not the precise point, but it 
 is at any rate the nearest to it that I have been able to find. * * * 
 
 i\Iy attention was also directed to a more modern authority, namely, 
 Bullen and Leake's Precedents of Pleading (3d Ed., 1868) at page 
 797. This authority was produced by the defendants for another pur- 
 pose to which I will refer in a moment, but in the note at page 795 
 I find the law thus stated: "A private individual is justified in him- 
 self arresting a person or ordering him to be arrested where a felonv
 
 264 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 has been committed and he has reasonable ground of suspicion that 
 the person accused is guilty of it" — that means the felony for which 
 he has been arrested. I doubt whether the two cases cited are in 
 themselves a sufficient authority for the proposition there laid down, 
 but I am satisfied that, as indeed one would expect to find in this 
 very learned work, it is an accurate statement of the common law. 
 I cannot find that any doubt has ever been expressed as to the accuracy 
 of this proposition. On behalf of the defendants Mr. Clavell Salter 
 attached some importance to Chitty on Pleadings, vol. iii., pp. 333 and 
 334, which contains a plea in bar in an action for trespass, and no 
 doubt there the plea was in terms that the arrested person was given 
 into custody (I am not using the exact language) for the purpose of 
 setting on foot a judicial inquiry or legal proceeding, and that was 
 very persistently and very ably relied upon before me. For the rea- 
 son I have already given I do not think that in this case it assists the 
 defendants, as I am quite convinced that the dominant intention in the 
 minds of the defendants, as was shewn by the fact of the arrest, was 
 to give the plaintiff into custody for having stolen the book and not 
 merely for the purpose of setting on foot a judicial inquiry or formu- 
 lating subsequently the charges upon which he was arrested. I think 
 on examination of that plea it will be found that it does not support, 
 or at least does not assist in, this case, because as a matter of law I 
 think it is perfectly right to say (and it will be found in the pleas 
 in all the old books on pleading) that there is a statement such as Mr. 
 Salter argued must be pleaded, that it must be pleaded in substance 
 that the plaintiff had been given into custody for the purpose of set- 
 ting on foot a judicial inquiry, because were it otherwise there could 
 be no justification for the arrest, and no private person would be jus- 
 tified in detaining a person in his own room or in his own house merely 
 for the purpose of detention or punishment. Plis only justification, 
 given the other circumstances which I have indicated, must be that he 
 did it for the purpose of setting on foot a judicial inquiry. It is only 
 by means of judicial process that the arrest can otherwise be justi- 
 fied. The mere fact of arrest for the purpose of detaining a person 
 and not setting on foot a judicial inquiry could not be justified. It 
 is in that connection that reference was made to the pleas in Bullen 
 and Leake's Precedents of Pleading in the edition which I have 
 quoted. 
 
 I have considered the authorities cited by Mr. St, John Hutchinson, 
 but I do not think that they really assist. It is admitted on both sides 
 that there is no authority precisely in point; one gets close to it, no 
 doubt, in a number of cases, but I do not think that any real assistance 
 is derived from the consideration of authorities which are not upon 
 the precise point to be determined. It is by reference to the earlier 
 works on the common law, which has never been altered, that one 
 must ascertain what is the law of the land. I cannot find that any
 
 Ch. 1) TRESPASSES 265 
 
 doubt has ever been expressed upon the accuracy of the proposition 
 of law which I have stated in the simplest language from the note 
 in Bullen and Leake's Precedents of Pleading. I am bound to follow 
 the law thus laid down, and, moreover, I am convinced on considera- 
 tion that it is based on sound principle. I should be bound to follow 
 it whether I was of that opinion or not, although it may well be that 
 in some cases — as in this particular case — the law seems to operate 
 somewhat harshly upon the defendants. But I have to bear in mind 
 that the principle of law applicable to the facts in this case must be 
 one of general application and cannot be modified, unless the law al- 
 lows it, in order to meet the difficulties of a particular set of circum- 
 stances. The principle urged by the defendants' counsel would, in 
 my judgment, be an encroachment upon the Hberty of the subject as 
 hitherto understood. It is true that very often there is a duty cast 
 upon a person to put the law in motion in order to bring offenders to 
 justice, and it is no doubt for reasons of public policy that some 
 excuse, limited in character, is permissible in an action for damages 
 at civil law for false imprisonment when a private person has wrongly 
 caused the arrest of another. But be it observed that this concession 
 is limited to felonies, and although a misdemeanour, which may be 
 a more serious crime than some felonies, may have been committed, 
 yet if a person causes a wrongful arrest, however serious the mis- 
 demeanour may be, it cannot be made the basis of any legal excuse 
 if the party has been wrongfully arrested. 
 
 When a person, instead of having recourse to legal proceeding by 
 applying for a judicial warrant for arrest or laying an information 
 or issuing other process well known to the law, gives another into 
 custody, he takes a risk upon himself by which he must abide, and 
 if in the result it turns out that the person arrested was innocent, and 
 that therefore the arrest was wrongful, he cannot plead any lawful 
 excuse unless he can bring himself within the proposition of law 
 which I have enunciated in this judgment. 
 
 In this case, although the defendants thought, and indeed it ap- 
 peared that they were justified in thinking, that the plaintiff was the 
 person who had committed the theft, it turned out in fact that they 
 were wrong. The felony for which they gave the plaintiff into cus- 
 tody had not in fact been committed, and, therefore, the very basis 
 upon which they must rest any defence of lawful excuse for the wrong- 
 ful arrest of another fails them in this case. Although I am quite sat- 
 isfied not only that they acted with perfect bona fides in the matter 
 but were genuinely convinced after reasonable inquiry that they had 
 in fact discovered the perpetrator of the crime, it now turns out that 
 they were mistaken, and it cannot be established that the crime had 
 been committed for which they gave the plaintiff into custody ; they 
 have failed to justify in law the arrest, and there must, therefore, 
 be judgment for the plaintiff for the £75. damages which have been 
 awarded, with the consequent results.
 
 266 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 It follows from what I have said that, although there is judgment 
 for the plaintiff for this amount, the defendants have succeeded on 
 the issue as to malicious prosecution, and having succeeded, in my 
 judgment they are entitled to all such costs as the Master thinks were 
 properly attributable to that issue as distinguished from the general 
 costs of the action, and I think the costs should follow the event ; the 
 Master will have to rule upon it, but so far as it may be necessary I 
 make that order. 
 
 There will therefore be judgment for the plaintiff for £75. and 
 costs."* 
 
 (F) Discipline 
 
 A master may justify the beating his apprentice, servant, scholar, 
 etc., if the beating is in nature of correction only, and with a proper 
 instrument, otherwise immoderate castigavit is a good reply ; and so 
 it was adjudged in Keits's Case, per Holt, Chief Justice. 
 
 Assault and battery; the defendant justified, for that the plaintiff 
 was his apprentice, and that he tempore quo, etc., gave him gentle 
 ^correction, and traversed that he was guilty at any time before or 
 after he was his apprentice; and upon a demurrer to this plea it was 
 adjudged ill, because the defendant ought to shew some cause specially, 
 or the fault for which he beat his apprentice, and then conclude absque 
 hoc, that he beat him before or after that time. 
 
 3 Salk. 47 (1695).«^ 
 
 LORD LEIGHS CASE. 
 
 (Court of King's Bench, 1675. 3 Keble, 433, 84 Reprint, 807.) 
 
 On difference between him and his lady about settlement of £200. 
 per annum, pin money in case of separation, she upon affidavit of 
 hard usage, and that she went in fear of her life, prayed security of 
 the peace against him, which was granted. And by Hale;, Chief Jus- 
 tice, the salva moderata castigatione in the register is not meant of 
 
 ti* I'arts of the opiuion are uiultU'd. ( uuipuie Dec. Dig., "Arrest," § U4. 
 
 6 5 "There are also several kinds of authority in the way of summary force 
 or restraint which the necessities of society require to be exercised l)y private 
 persons. And such persons are protected in exercise thereof, if they act with 
 good faith and in a reasonable and moderate manner. Parental authority is 
 the most obvious and universal instance. * * * The master of a merchant 
 sliip has by reason of necessity the right of using force to preserve order and 
 discipline for the safety of the vessel and the persons and property on board. 
 * * * There are conceivable circumstances in which the leader of a party 
 on land, such as an Alpine expedition, might be justified on the same principle 
 in exercising compulsion to a.'jsure the common safety of the party." Pollock 
 on Torts (,Sth Ed.) 11^7, 12S, V2\).
 
 Ch. 1) TRESPASSES 2G7 
 
 beating, but only of admonition and confinement to the house, in 
 case of her extravagance ; which the Court agreed, she being not as 
 an apprentice, etc., but after the parties were reconciled, and all dis- 
 charged.*^^ 
 
 SHEEHAN V. STURGES. 
 
 (Supreme Court of Errors of Connecticut, 1885. 53 Conn. 481, 2 Atl. 841.) 
 
 Action for assault and battery, tried to the court. Finding of facts, 
 with judgment for the defendant. The plaintiff appeals. 
 
 Grange^r, J. This is a complaint for an assault and battery. The 
 defense is that the plaintiff was at the time a pupil in a school kept 
 by the defendant, that he willfully violated the reasonable rules of the 
 school and disobeyed the reasonable commands of the defendant as 
 his teacher, and that for this misconduct the defendant as such teach- 
 er whipped him in a reasonable manner. The sole controversy up- '^ 
 on the trial was as to the reasonableness of the punishment inflicted. 
 The court found that "such whipping was not unreasonable or exces- 
 sive and was fully justified by the plaintiff's misconduct at that time." 
 
 The extent and reasonableness of the punishment administered by 
 a teacher to his pupil is purely a question of fact. This is too well 
 settled to make the citation of authorities necessary. The finding of 
 the court therefore settles the question as to this, unless the court 
 acted upon improper evidence. 
 
 The plaintiff testified as a witness in his own behalf, and on his cross- 
 examination the defendant, against the objection of the plaintiff's 
 counsel, was allowed to ask him whether on two former occasions, 
 
 66 "The husband also, by the old law, might give his wife moderate correc- 
 tion. For, as he is to answer for her misbehavior, the law thought it rea- 
 sonable to intrust him with this power of restraining her, by domestic chastise- 
 ment, in the same moderation that a man is allowed to correct his apprentices 
 or children ; for whom the master or parent is also liable in some cases to 
 answer. * * * But with us in the politer reign of Charles the Second this 
 power of correction began to be doubted and a wife may now have security 
 of the peace against her husband ; or, in return, a husband against his wife. 
 Yet the lower rank of people, who were always fond of the old common law, 
 still claim and exert their ancient privilege ; and the courts of law will still 
 permit a husband to restrain a wife of her liberty, in case of any gross mis- 
 behavior." 1 Bl. Com. 444 (1765). 
 
 Compare State v. Rhodes (1868), 61 N. C. 453, 98 Am. Dec. 78: A husband 
 struck his wife three blows "with a switch about the size of one of his fingers." 
 Said the court: "The violence complained of would, without question, have 
 constituted a battery, if the subject of it had not been the defendant's wife." 
 Held, that the husband should not be convicted. 
 
 But see State v. Oliver (1874) 70 N. C. 60, Fulgbam v. State (1871) 46 Ala. 
 143, Kales, Cas. on Persons, 009, and Lawson v. .State (1902) 115 Ga. 578, 
 41 S. E. 993: While a husband may use such foi'ce as is necessary to 
 repel a felonious assault by his wife upon him, he is not justified under any 
 circumstances in striking his wife, either by way of chastisement or in resent- 
 ment of a past injury. 
 
 Compare The Queen v. Jackson, [1S91] 1 Q. B. 671, Kales, Cases on I'er- 
 sons, 612.
 
 268 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 both cf them more than a week before the whipping in question, he 
 had not assaulted the teacher while he was chastising him. And the 
 defendant afterwards, in his testimony in his own behalf, was allowed, 
 against the objection of the plaintiff, to state that the plaintift"'s con- 
 duct in school was habitually bad, and that on two former occasions, 
 one of them about two weeks and the other seven or eight days before 
 the whipping in question, the plaintiff had assaulted him while he was 
 chastising him. The defendant was also allowed, on the plaintiff's 
 cross-examination, against objection, to inquire of him whether he 
 had not, seven or eight days before the whipping in question, put 
 stones in his pocket and declared that he was going to attack the 
 teacher with them. The plaintiff, in answer to the inquiry, denied 
 that he had done so, and the defendant, against the plaintiff's objec- 
 tion, was allowed to show by a witness that the plaintiff had so done. 
 The defendant did not inform the plaintiff at the time of the whip- 
 ping that he was punishing him for his past and habitual misconduct. 
 
 We think the court committed no error in admitting the inquiries 
 and evidence. The right of the schoolmaster to require obedience to 
 reasonable rules and a proper submission to his authority, and to in- 
 flict corporal punishment for disobedience, is well settled. * * * 
 
 No precise rule can be laid down as to what shall be considered ex- 
 cessive or unreasonable punishment. Reeve's Dom. Rel. 288. Each 
 case must depend upon its own circumstances. In Commonwealth v. 
 Randall, 4 Gray (Mass.) 36, it is held that, "in inflicting corporal pun- 
 ishment, a teacher must exercise reasonable judgment and discretion, 
 and be governed as to the mode and severity of the punishment by 
 the nature of the offense, and the age, size, and apparent powers of 
 endurance of the pupil." And we think it equally clear that he should 
 also take into consideration the mental and moral qualities of the pu- 
 pil, and, as indicative of these, his general behavior in school and his 
 attitude towards his teacher become proper subjects of consideration. 
 
 We think therefore that the court acted properly in admitting evi- 
 dence of the prior and habitual misconduct of the plaintiff, and that 
 it was perfectly proper for the defendant, in chastising him, to con- 
 sider not merely the immediate offense which had called for the pun- 
 ishment, but the past offenses that aggravated the present one, and 
 showed the plaintiff to have been habitually refractory and disobedi- 
 ent. Nor was it necessary that the teacher should, at the time of in- 
 flicting the punishment, remind the pupil of his past and accumulat- 
 ing offenses. The pupil knew them well enough, without having them 
 brought freshly to his notice. 
 
 There is no error. In this opinion the other judges concurred.*'^ 
 
 68 Part of the opinion is omitted.
 
 Ch. 1) TRESPASSES 261) 
 
 STATE V. VANDERBILT. 
 
 (Supneme Court of Indiana, 1888. 116 Ind. 11, 18 N. E. 266, 9 Am. St 
 
 Rep. 820.) 
 
 The teaclier of a public school, having made a rule that pupils must 
 pay for the wanton and careless destruction of school property, en- 
 forced it by chastising a pupil. A charge of assault and battery was 
 thereupon brought against the teacher, who was acquitted in the trial 
 court. The State appealed the case. 
 
 ZoLLARS, J. * * * Looking to the record before us as a whole, we 
 think that it sufficiently presents the question as to whether or not a 
 teacher of a public school may establish, and enforce by chastisement, a 
 rule requiring pupils to "pay for the wanton and careless destruction 
 of school property." 
 
 The bill of exceptions shows that the State, by the prosecuting at- 
 torney, asked the court to charge the jury "that a teacher in a public 
 district school has no right to inflict a money penalty upon a pupil 
 for the accidental destruction or breakage of school property, and 
 enforce the same." That instruction the court refused, and over the 
 exception of the State gave the following instruction : 
 
 "A rule of the teacher, requiriug that the pupil shall pay for the wanton and 
 careless destruction of school property, is a reasonable rule, and one that the 
 teacher has the right to enforce." 
 
 It is not necessary that the evidence should be in the record to en- 
 able us to pass upon these instructions, if in any case on appeal by 
 the State the evidence can be examined, a question which we leave 
 where it is left by our cases. Without speaking of the instruction 
 refused, which is the opposite of that given, the latter, if erroneous, 
 would be erroneous under any supposable state of the evidence. 
 
 Under our cases, a school teacher has the right to exact from pu- 
 pils obedience to his lawful and reasonable demands and rules, and to 
 punish for disobedience, "with kindness, prudence and propriety." 
 And where, in such case, the punishment is not administered with un- 
 reasonable severity, a proceeding for an assault and battery can not 
 be maintained against the teacher. Danenhoffer v. State, 69 Ind. 295, 
 35 Am. Rep. 216. The rule or rules to which the teacher may thus 
 enforce obedience must, however, be reasonable, and whether or not 
 such rules are reasonable is ultimately a question for the courts. Fer- 
 tich v. Michener, 111 Ind. 472, 11 N. E. 605, 14 N. E. 68, 60 Am. Rep. 
 
 ;o9. 
 
 We think that a rule requiring pupils to pay for school property 
 which they may wantonly and carelessly break or destroy, is not a 
 reasonable rule, and, therefore, that teachers have no right to make 
 and enforce such a rule by chastisement of the pupils. The "wanton 
 and careless destruction," etc., amounts to nothing more than care- 
 lessness. Lafayette, etc., R. R. Co. v. Huffman, 28 Ind. 287, 92 Am.
 
 270 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 Dec. 318; Terre Haute, etc., R. R. Co. v. Graham, 95 Ind. 286, 296, 
 48 Am. Rep. 719. Carelessness on the part of children is one of the 
 most common, and yet one of the least blameworthy, of their faults. 
 In simple carelessness there is no purpose to do wrong. To punish 
 a child for carelessness in any case is to punish it where it has no 
 purpose or intent to do wrong or violate rules. 
 
 But beyond this, no rule is reasonable which requires of the pu- 
 pils what they can not do. The vast majority of pupils, whether small 
 or large, have no money at their command with which to pay for 
 school property which they injure or destroy by carelessness or other- 
 wise. If required to pay for such property, they would have to look 
 to their parents or guardians for the money. If the parent or guardi- 
 an should not have the money, or if they should refuse to give it to 
 the child, the child would be left subject to punishment for not having 
 done what it had no power to do. 
 
 Without giving other reasons for our conclusion that the rule in 
 question was an unreasonable rule, our judgment is that the court 
 below erred in giving the instruction above set out, and that this ap- 
 peal must be sustained, and the appellee taxed with the costs on ap- 
 peal. «» 
 
 KING V. FRANKLIN. 
 
 (At Nisi Prius, 1858. 1 Fost. & F. 360, 115 R. R. 924.) 
 
 Action for false imprisonment and placing the plaintiff in irons. 
 The defendant was captain of, and the plaintiff a passenger in, the 
 Undaunted. The placing in irons having been proved, the defence set 
 up was, that a mutiny was imminent, and a justification of the im- 
 prisonment for the prevention of the mutiny. It appeared that a 
 quarrel had arisen between the captain and some of the passengers 
 respecting the playing of cards in a particular part of the vessel, and 
 some confusion arose therefrom. In the course of the dispute the 
 ^ plaintiff had said that the ship was a floating hotel and the captain 
 only the landlord of her. The captain thereupon ordered the plain- 
 tiff to be slightly ironed, stating, in his evidence, that there was no 
 cabin in which to confine him. 
 
 Watson, B. (in summing up). The captain has the absolute con- 
 trol over the passengers and crew. The contract with the passenger 
 is to carry, board and lodge him, and the passenger is to obey all the 
 captain's reasonable orders, in an emergency even to work the ship 
 when necessary. If a passenger misconduct himself at table, the cap- 
 tain may remove him, or may even imprison him for a short period, 
 if imprisonment be necessary for the enforcement of his lawful com- 
 mands. The rule of law is simple; the power of the captain is lim- 
 es Part of the opinion is omitted.
 
 Ch. 1) TRESPASSES 271 
 
 ited to the necessity of the case. In the present case the defendant 
 justifies, for "that he had reasonable and probable cause to believe, 
 and did believe, that a mutiny was imminent." To succeed in his 
 defence he must prove the whole of this allegation. It would not 
 be sufficient that he did believe unless he had also reasonable cause 
 for apprehending a mutiny. The defendant appears to have taken 
 great ofifence at the term "landlord of hotel" being applied to him ; 
 but the term is not altogether incorrect, except that in case of mis- 
 conduct the landlord may remove the guest from the house, but as 
 the captain cannot remove the passenger from the ship, he may, if 
 necessary, and in moderation, imprison him. He certainly would not 
 be justified in imprisoning a person for having called him "the land- 
 lord of an hotel." 
 
 Verdict for the plaintifif. 
 
 BROWN, HUSSEY & ERITH v. HOWARD. 
 
 (Supreme Court of Judicature of New York, 1817. 14 Johns. 119.) 
 
 Howard sued Brown, Hussey and Erith, for assault and battery 
 and false imprisonment on the high seas, on board the ship Teaplant. 
 Brown, the master of the ship, pleaded not guilty, and son assault 
 demesne ; the other defendants, who were mates on the ship, plead- 
 ed not guilty, and justified that they acted by the orders of Brown, 
 the master. There was testimony that Hussey and Erith interfered 
 in no other way than by tying Howard, at the master's order. The 
 counsel for the defendants then moved that the two mates should 
 be acquitted, and struck out of the record, which the court refused; 
 and judgment was given for the plaintiff for $125. 
 
 Thompson, C. J. * * * The return states that all the facts rel- 
 ative to the transaction took place in presence of the two defend- 
 ants who were offered as witnesses, and of course, fully known to 
 them at the time they obeyed the order of the captain in binding the 
 plaintiff's hands and feet with ropes. If this was an illegal act in 
 the captain, the mates were not bound to obey him, and cannot ex- 
 cuse themselves under such order. A master has no right to com- 
 mand his servant to commit a trespass, or do a wrongful or unlawful 
 act. From the facts stated in the return, it appears to me that the 
 conduct of the captain, to say the least of it, was harsh and rigorous 
 and altogether unjustifiable; and unless we are warranted in presum- 
 ing the statement to be, in some degree, colored by the witnesses who 
 were fellow seamen with the plaintiff below, the conduct of the cap- 
 tain merits severe animadversion. 
 
 Although a captain may have a right to inflict corporal punishment 
 upon a seaman under his command, yet it is not an arbitrary and un- 
 controlled right; he is amenable to the law for the due exercise of 
 
 ^
 
 272 TORTS THROUGH ACTS OP ABSOLUTE LIABILITY (Part 1 
 
 it. He ought to be able to show, not only that there was a sufficient 
 cause for chastisement, but that the chastisement itself was reasonable 
 and moderate. 2 Bos. & P. 224; Michaelson v. Denison, 3 Day 
 (Conn.) 294, Fed. Cas. No. 9,523. The rule on this subject is well 
 laid down by Abbott. Abb. on Shipping, 125. By the common law, 
 says he, the master has authority over all the mariners on board the 
 ship, and it is their duty to obey his commands in all lawful matters 
 relative to the navigation of the ship, and the preservation of good 
 order ; and in case of disobedience or disorderly conduct, he may 
 lawfully correct them in a reasonable manner; his authority, in this 
 respect, being analogous to that of a parent over a child, or a master 
 over his apprentice or scholar. Such an authority is absolutely neces- 
 sary to the safety of the ship and of the lives of the persons on 
 board ; but it behooves the master to be very careful in the exercise 
 of it, and not to make his parental power a pretext for cruelty and 
 oppression. 
 
 Not being able to discovei", from the return, the least justification 
 for the captain's treatment of the plaintiff below, and the mates hav- 
 ing been acquainted with the whole transaction, I can perceive no 
 ground upon which they can be exonerated as parties, nor, of course, 
 admissible as witnesses. The judgment below must, accordingly, be 
 affirmed.'^*' 
 
 HANNEN V. EDES. 
 
 (Supreme Judicial Court of Massachusetts, 1819. 15 Mass. 347.) 
 
 This was an action of trespass for an assault and battery. The de- 
 fendant pleads, in bar, that at the time when, etc., he was master of 
 the ship Cicero, then in a distant port; that the plaintiff was a sea- 
 man, or mariner, on board the same ship ; that he, the defendant, is- 
 sued a reasonable and proper order to the plaintiff, relative to his 
 duty on board the vessel, which the plaintiff wilfully disobeyed ; and 
 that he, the defendant, moderately chastised him for such disobedi- 
 ence — which is averred to be the same beating complained of in the 
 declaration. The plaintiff replied de injuria sua propria absque tali 
 causa, etc., on which issue was joined. 
 
 On the trial the defendant having proved his justification, so far 
 as respected his authority, the duty of the plaintiff, and his disobedi- 
 ence of a reasonable and proper command, the plaintiff was permitted 
 to show, in evidence, (the defendant objecting), and to insist to the 
 jury, that the beating complained of was excessive, and out of all pro- 
 portion to the offence committed ; and having proved this, a verdict 
 
 7 The statement of the case is abridged, and a portion of the opinion is 
 omitted. The question before the reviewiuR court, in error on certiorari from 
 a justice's court, was whetlier llussey and EriUi could be talien out of the case 
 as parties and thus be admitted as witnesses.
 
 Ch. 1) TRESPASSES 273 
 
 was returned in his favor. The defendant moved for a new trial, on 
 the ground that this evidence was improperly admitted; contending 
 that, if the plaintiff relied upon any excess or unreasonableness in 
 the beating, he ought to have set it forth specially in his replication, 
 in the nature of a new assignment. 
 
 Parker, C. J. * * * The general doctrine upon which the whole 
 matter rests is that, whenever the defendant's plea, in an action of 
 trespass, confesses and avoids, by justifying the whole trespass set 
 forth in the declaration, and the plaintiff would set up some new mat- 
 ter as the foundation of his action, he shall show that new matter 
 specially, as in the case of Scot v. Dixon, 2 Wils. 3, cited in the argu- 
 ment. Where, in trespass, the defendant justifies under a license, for 
 putting his cattle into the plaintiff's close, the plaintiff may reply that 
 he put them in at another time without leave, and he shall not shew 
 this in evidence under the general traverse; for, not having specified 
 the time in his declaration, and there being but one trespass complained 
 of, the justification shall be held to apply to that, unless the plaintiff' 
 shows another and distinct trespass, in such manner as to give the 
 defendant an opportunity to deny or justify it. 
 
 So, in the case of Dye v. Leatherdale, 3 Wils. 20, also referred to 
 in the argument for the defendant, which was trespass for taking 
 and carrying away a hog, and converting him, etc., the justification 
 was that the hog was taken damage feasant; to which the plaintiff re- 
 plied specially, acknowledging the justification, and averring that the 
 defendant afterwards converted the hog to his own use. This was 
 held to be good pleading ; because it alleged a new fact, different from 
 that which was justified in the bar. And in the case of Oystead v. 
 Shed, 12 Mass. 506, the doctrine relied upon by the counsel for the 
 defendant rests upon the same principle, viz., that the breaking of the 
 outer door was a new fact, not relied upon in the declaration, except 
 by way of aggravation ; and therefore, as the trespass, as alleged in 
 the declaration, was justified, the plaintiff, in order to take advantage 
 of this, ought to have replied it specially. And to this effect are all 
 the other authorities cited for the defendant. 
 
 Now if the case before us cannot be distinguished from those which 
 have been cited, the pleading in this case was wrong for the plaintiff's 
 purpose, and the whole practice of the state has been wrong. But 
 we think it is clearly distinguishable. In the plea of moderate casti- 
 gavit, the defendant must not only make out his authority, and the 
 cause of the beating, but must also show that the beating was, in fact, 
 moderate; so that if, by his own evidence, it should appear that he 
 had abused his authority, and inflicted blows unnecessary for the pur- 
 pose, or cruel in the degree, the issue would fail him entirely ; and it 
 would be of his own wrong, and without the cause set forth in his 
 plea ; and this not upon the ground of his being a trespasser ab 
 initio, so much as because he shows no right at all to inflict any beat- 
 Hepb.Toets — 18
 
 274 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 ing, in the manner and to the degree which the evidence would prove; 
 and he therefore falsifies his own plea. 
 
 If the plaintiff intended to rely upon another beating, different in 
 point of time from that which was justified in the plea, he should have 
 replied specially, and set forth such different beating; but if there 
 were but one, as in the present case, and the answer to the justification 
 was intended to be, that the very beating was immoderate, and there- 
 fore not justified, the general traverse is right. And so are the au- 
 thorities, as will be found in Franks v. Morris, 10 East, 81, note (a), 
 and more at large in 1 Saund. 299, note (6), by Sergeant Williams, 
 which were referred to in the argument of the counsel for the plain- 
 tiff. 
 
 The truth is, the plaintiff had no new cause to assign. The beating 
 which he complained of was the same with that attempted to be 
 justified; and by his replication de injuria sua, etc., he denies the 
 justification. He does not show that afterwards, viz., after the mod- 
 erate chastisement averred in the plea, there was a further excessive 
 beating, but that the beating itself, alleged to be moderate, was ex- 
 cessive, and so defeated the justification; and thus, we think, the 
 uninterrupted practice is reconcilable with the authorities. 
 
 There is an old case reported in Siderfin, 246, and Keble, 884, which 
 was an action for an assault and battery ; and wounding and may- 
 hem, by breaking the arm, were alleged. Upon a plea of son assault 
 demesne the plaintiff demurred, stating, as the ground of his demur- 
 rer, that as a heinous battery and a mayhem were alleged, the plea 
 ought to have shown an assault sufficient to justify such a battery. 
 But it was holden that the plea was good ; because the degree and 
 proportion of the beating to the assault was matter of evidence. If 
 it was not proportionable, the issue would be for the plaintiff, not- 
 withstanding he made the first assault ; otherwise, for the defendant. 
 The same principle is applicable to the case before us. The degree 
 and proportion between the offence and the punishment was matter 
 of evidence ; and being found disproportioned, the issue was rightly 
 found for the plaintiff', notwithstanding the matter set forth in the 
 plea. 
 
 Judgment on the verdict.''^ 
 
 Ti The argument of Stearns, and part of the opinion of Parker, C. J., are 
 omitted. 
 
 Compare tlie remark in 2 Phillips on Evidence. 204 (7th London Ed.): "It 
 seems to be the better opinion that, when the trespass is alleged in the declar- 
 ation in general terms, and it is justified in the like terms, if the defendant has 
 inflicted a greater injury on the plaintiff than he ought to have done, the 
 excess is properly the subject of a special i-eplication." 2 Phill. 204, 7th Lond. 
 Ed.; Dale v. Wood (1822) 7 Moore, Xi, Bowen v. Parry (1824) 1 Car. & Payne, 
 394, Franks v. Morris (1808) 10 East, 81, note. Skinner, 387. See Phillips v. 
 llowgate (1821) 5 B. & A. 220, Cockroft v. Smith (1704) 2 Salk. 642. BnV. N. 
 P. 15; 1 Chitty, PI. 625. 
 
 I^ut SCO .'". Cyc. 1086, notes 7 and 8, and Abney v. Mize (1908) 155 Ala. 391, 
 46 South. 230.
 
 Ch. 1) TRESPASSES 275 
 
 (G) Safety of Plaintiff 
 
 A private person may, without an express warrant, confine a per- 
 son disordered in his mind, who seems disposed to do mischief to him- 
 self, or to any other person. 
 
 Bacon's Abridg. Trespass, (D). 
 
 LOOK V. DEAN. 
 
 (Supreme Judicial Court of Massachusetts, 1871. 108 Mass. 116, 
 
 11 Am. Rep. 323.) 
 
 Tort for unlawfully arresting and imprisoning the plaintiff. In 
 
 justification of an admitted restraint, the defendant pleaded : 
 
 That the plaintiff at the time and place aforesaid was insane, and incapable 
 of taking care of himself, and was conducting himself in a wild and irrational 
 manner, and the defendant prevailed upon him to cease from such disorderly 
 conduct and to retire to a place of quiet ; and if in so doing he in any manner 
 restrained the plaintiff of his liberty, he did so without malice towards the 
 plaintiff', and because the plaintiff', by reason of his insanity, was incapable of 
 taking care of himself; and the defendant did only what was, as he believed, 
 for the welfare and safety of the plaintiff'. 
 
 On the trial there was a verdict for the plaintiff. The defendant 
 brings exceptions. 
 
 Chapman, C. J. The question which this case presents arises upon 
 the defendant's request for instructions, and the instructions that were 
 actually given. The defendant asked the court to rule that if the 
 plaintiff was insane, and the defendant, honestly believing that the 
 welfare of the plaintiff demanded that he should go from the crowd, 
 to which he was talking, to a place of quiet near by, took him forcibly 
 to such place, using no more force than was necessary for the. purpose, 
 and acting from no other motive than a desire to assist and protect 
 the plaintiff, such act would not be an assault nor an unlawful arrest 
 or imprisonment. The court declined to give this instruction, but in- 
 structed the jury that, if the plaintiff was insane, the officer had a right 
 to arrest him, but it would in such case be his duty immediately to 
 take proper steps to have him committed to a lunatic hospital, and if 
 he failed to do so he would be liable from the beginning for the ar- 
 rest. 
 
 Both the request and the instructions assume that he was neither 
 dangerously insane, nor disturbing the peace, but was merely insane. 
 The defendant was a deputy of the state constable, but his office gave 
 him no authority over the plaintiff". He had only such authority as 
 any private person would have. The right which every citizen has to 
 enjoy personal liberty is necessarily subject to some exceptions. ]\Iost 
 of these exceptions are enumerated in Colby v. Jackson, 12 N. H. 526. 
 and the authorities there cited. Among them, are the right to restrain 
 
 %^
 
 276 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 a person who is fighting, or doing mischief, or disturbing a congrega- 
 tion, or has fallen in a fit, or is so sick as to be helpless, or is uncon- 
 sciously going into great danger, or is drunk, or has delirium tremens, 
 or is so insane as to be dangerous to himself or others. In such cas- 
 es, the right to restrain persons has its foundation in a reasonable 
 necessity, and ceases with the necessity. As to insane persons who 
 are not dangerous, they are not liable to be thus arrested or restrain- 
 ed by strangers. Bac. Ab. Trespass, D; Anderdon v. Burrows, 4 
 C. & P. 210; Scott V. Wakem, 3 Fost. & Finl. 328; Fletcher v. Fletch- 
 er, 28 L. J. N. S. (Q. B.) 134; In re Oakes, 8 Law Reporter, 122. 
 There is no reason why they should be thus liable ; for it is well known 
 that many persons who are insane, and especially monomaniacs, are 
 as harmless as any other persons, and are not deemed proper sub- 
 jects for treatment in a hospital. The request for instructions was 
 properly refused. 
 
 We need not in this case discuss the question whether the defendant 
 would have had the right, as stated in the instructions given, to take 
 up the plaintifif, he not being a dangerous person, provided he had 
 taken the proper steps to have him committed to a lunatic hospital ; 
 for he took no such steps. There was no legal justification for the 
 acts of the defendant. 
 
 It is elementary law that one who would justify himself under a 
 statute must pursue the statute. The question put to the defendant as 
 a witness, by his counsel, whether he was acting under the direction 
 of any superior officer, was properly ruled to be inadmissible, because 
 he did not proceed under the statutes, but merely held the plaintiff 
 for a while, and then released him. A superior officer could not au- 
 thorize this course. 
 
 The question whether in his opinion the mind of the plaintifif, at 
 the time of the arrest, was in a normal or abnormal condition, and 
 whether the plaintiff was sane or insane, was also inadmissible, be- 
 cause the fact itself was immaterial, it not being pretended that the 
 defendant was acting under the statutes. 
 
 The subsequent commitment of the plaintiff to the hospital by an- 
 other constable was a separate matter, and could not have justified 
 the defendant, even if it had been legal. 
 
 Exceptions overruled.''^ 
 
 72 The statement of tlie case is abridwd. 
 
 "In Fletcher v. Fletcher (1S59) 1 E. & E. 420, [28 L. J. Q. B. 134], the Court 
 nsed general language which might seem to convey the notion that the mere 
 fact of lunacy justified the confinement of the sufferer. The judges did not, it 
 is conceived, mean this. The distinction between liarmless and dangerous lun- 
 atics was not material for them to consider." Clerk & Lindsell on Torts, 211, 
 note c. Accord: Keleher v. Putnam (1880) €0 N. H. .30, 49 Am. Rep. 304: "The 
 plaintiff was mildly insane, and the defendant without process arrested and 
 detained her." 
 
 On the limits of the excuse, see Colby v. Jackson (1842) 12 N. H. 526 (no one 
 has a right to confine an insane person for an indefinite' time, until he shall 
 bo restored to reason, but upon compliance with the formalities of the law) ; 
 I'aetz V. Dain (1872) Wils. (Ind.) 148.
 
 Ch. 1) TRESPASSES 277 
 
 HOFFMAN V. EPPERS. 
 (Supreme Court of Wisconsin, 1876. 41 Wis. 251.) 
 
 The action was to recover damages for an assault and battery al- 
 leged to have been committed by the defendant upon the plaintiff. 
 The evidence, admitted under a general denial, tended to show that 
 the parties came from a neighboring town to the city of Kenosha 
 to attend a lawsuit as witnesses ; that they were together there, and 
 drank with each other several times, and both became intoxicated; 
 that the friends of the plaintiff took him to a hotel and put him to 
 bed ; that when the time for the suit to be called had nearly arrived, 
 the defendant went to the room where the plaintiff was, aroused him, 
 took him down stairs and into the street, and started with him in the 
 direction of the court. After the defendant got the plaintiff into the 
 street, the latter was arrested and locked up in jail until the next morn- 
 ing, when he was taken before a magistrate and fined for being drunk 
 and disorderly in the streets of the city. 
 
 The jury found for the defendant; a new trial was denied; and 
 from a judgment entered pursuant to the verdict, the plaintiff ap- 
 pealed. 
 
 Wiesmann and Ouarles, for the appellant ; * * * The statute 
 does not punish the act of intoxication, but the act of being found 
 in a public place in such a state of intoxication as to disturb others. 
 To speak of the plaintiff, therefore, as having been arrested for be- 
 ing intoxicated, was to misstate the law and mislead the jury. The 
 arrest, imprisonment and fine of the plaintiff" were the direct and im- 
 mediate result of the defendant's unlawful acts. Plaintiff was sleep- 
 ing soundly when defendant intruded upon him, and would not of his 
 own accord have violated the law. He was punished for being where 
 the defendant carried him against his will. * * * 
 
 Lyon, J. * * * It was certainly lawful for the defendant to 
 arouse the plaintiff from his drunken stupor, and to endeavor to as- 
 sist him to the court where he was required as a witness ; and if the 
 defendant did this as a friendly act, in a gentle and friendly manner, 
 with an honest purpose to do the plaintiff no injury, but only to aid 
 him to feach the court, he is not liable to respond in damages for 
 such acts. As we understand the charge of the learned circuit judge, 
 he substantially so stated the law to the jury; and there is sufficient 
 testimony tending to show that such was the motive and purpose of 
 the defendant's conduct, to render the instructions applicable to the 
 case. * * * 
 
 Judgment affirmed. '^^ 
 
 ~3 The statement of the case is abridged, and only so much of the opinion 
 is given as relates to the one point. 
 
 On the principle involved, compare Richmond v. Fisk (lSt).'>) 100 Mass. l^A. 
 35 X. E. 10.3, given ante, p. 77; and see in general, ante, Section 2 — Elements 
 of a Prima Facie Cause in Trespass.
 
 278 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 LUKA V. LOWRIE. 
 
 (Supreme Court of Michigan, 1912. 171 Mich. 122, 136 N. W. 1106, 41 L. R. A. 
 
 [N. S.] 290.) 
 
 Action by Charles Luka, by next friend, against Lowrie and others. 
 Judgment for defendants. Plaintiff brings error. 
 
 The plaintiff', a boy 15 years of age, while crossing the Michigan 
 Central Railroad track, was knocked down by an engine and in some 
 manner, not clearly shown, was thrown under the wheels of a car. 
 His left foot was mangled and crushed. Shortly after his injury, 
 plaintiff was removed to Harper Hospital in an ambulance. He was 
 partially conscious upon his arrival and was able to communicate his 
 name and the name of the street upon which he lived to the attending 
 surgeons. Within 10 or 15 minutes after his arrival, he lapsed into a 
 comatose condition, and later into complete unconsciousness. Efforts 
 to revive him by injections of strychnine and infusion of a saline solu- 
 tion were made, but he remained unconscious until after the opera- 
 tion. Soon after his arrival at the hospital, at 10:15 a. m., plaintiff's 
 foot was examined by four house physicians connected with the hospi- 
 tal. They concluded that prompt surgical treatment was necessary and 
 telephoned to defendant, who is assistant surgeon of the Michigan 
 Central Railroad. Defendant arrived at the hospital at 10:45 a. m. 
 Upon examining the plaintiff, he found him unconscious, with a weak 
 pulse and dilated pupils. The foot was found to be cold and dead, the 
 circulation having been interrupted. Defendant testified that he 
 learned from the house surgeon the boy's name and residence street. 
 With reference to the residence, he knew the distance from Harper 
 Hospital and the time it would take to get from there to the hospital ; 
 that he inquired of the house surgeon if any one, any relatives, were 
 present, and was informed that no person was present whatever. After 
 a consultation with the four house physicians, it was agreed by all 
 that an immediate amputation was necessary to save the plaintiff's 
 life. The foot was amputated, and the plaintiff recovered. It is the 
 plaintiff's claim that his foot should not have been amputated at all. 
 and particularly that it should not have been amputated without first 
 obtaining his consent or the consent of his parents, who went to the 
 hospital as soon as possible after learning of the accident. A verdict 
 having been directed in favor of defendant, the case is brought here 
 for review upon writ of error. 
 
 Brooke, j. * * * There is nothing in this record to indicate 
 that, had the parents of plaintiff been present at the operating table, 
 they would have refused their consent to the operation. Indeed, it is 
 inconceivable that such consent would have been withheld in the face 
 of the determination of five duly qualified physicians and surgeons 
 that it was necessary to save the plaintiff's life. But defendant tes- 
 tifies, and in this he is not contradicted, that he made inquiry for
 
 Ch. 1) TRESPASSES 279 
 
 relatives of the plaintiff and was told that none were in the hospital. 
 Suppose that his informant was in error (which is not certain), the 
 defendant had a right to rely upon the information and to act in the 
 emergency upon the theory that to obtain consent was impracticable. 
 In Pratt v. Davis, 224 111. 309, 79 N. E. 565, 7 L. R. A. (N. S.) 609, 
 8 Ann. Cas. 197, it was said : "In such event a surgeon may lawfully, 
 and it is his duty to, perform such operation as good surgery demands 
 without such consent." UiXDn the question involved in this case a 
 valuable collection of authorities will be found in Gillette v. Tucker, 
 93 Am. St. Rep. 657, note. See, also, 6 Cyc. 675 ; 30 Cyc. 1587. 
 
 The fact that surgeons are called upon daily, in all our large cities, 
 to operate instantly in emergency cases in order that life may be 
 preserved, should be considered. Many small children are injured 
 upon the streets in large cities. To hold that a surgeon must wait un- 
 til perhaps he may be able to secure the consent of the parents be- 
 fore giving to the injured one the benefit of his skill and learning, to 
 the end that life may be preserved, would, we believe, result in the 
 loss of many lives which might otherwise be saved. It is not to be pre- 
 sumed that competent surgeons will wantonly operate, nor that they 
 will fail to obtain the consent of parents to operations where such 
 consent may be reasonably obtained in view of the exigency. Their 
 work, however, is highly humane and very largely charitable in char 
 acter, and no rule should be announced which would tend in the slight- 
 est degree to deprive sufferers of the benefit of their services. 
 
 The judgment is affirmed. ''* 
 
 7 4 Compare Rolater v. Strain (191.3) 39 OM. 572. 1.37 Pac. 96, 50 L. R. A. 
 (N. S.) 8S0: P. stepped on a nail which penetrated the great toe of her right 
 foot. The wound did not heal, and D., a surgeon, was consulted. He advised 
 an operation, to drain the wound. P. consented, but on condition that no 
 bone should be removed. P. was placed under an anaisthetic, but in performing 
 the operation D. removed a sesamoid bone. Contending that she did not con- 
 sent to the removal of this bone, P. sued for assault and battery. It was not 
 claimed that the operation was unskillfully performed. D. contended that 
 even if the contract was made, still the removal of the bone, under the circum- 
 stances, was not a violation of it, since the facts show this to be an emergency 
 case, as this bone was found in an unusual place, and was unexpected, and 
 when it was discovered, tlie patient being under the inlluence of the anaesthetic, 
 it was unsafe to stop the operation at the time and allow her come out from 
 under the influence of the ana?sthetic so as to have obtained her consent to its 
 removal, and that he was justified under the circumstances in removing the 
 bone. Held. P. may recover. 
 
 For the principle, see ante, Mohr v. "Williams (190.5) 95 Miim. 261, 104 N. 
 W. 12, 1 L. R. A. (N. S.) 439, 111 Am. St. Rep. 462, 5 Ann. Cas. .303.
 
 / 
 
 280 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 SECTION 4.— TRESPASS AB INITIO 
 THE SIX CARPENTERS' CASE. 
 
 (Court of King's Bench, 1610, 8 Co. Rep. 146 a, 77 Reprint, 695.) 
 
 In trespass brought by John Vaux against Thomas Newman, car- 
 penter, and five other carpenters, for breaking his house, and for an 
 assault and battery, 1 Sept. 7 Jac. in London, in the parish of St. 
 Giles extra Cripplegate, in the ward of Cripplegate, etc., and upon 
 the new assignment, the plaintiff assigned the trespass in a house call- 
 ed the Queen's Head. The defendants to all the trespass prccter f rac- 
 tionem domus pleaded not guilty; and as to the breaking of the house 
 said, that the house prjed' tempore quo, etc., et diu antea et postea, 
 was a common wine tavern, of the said John Vaux, with a common 
 sign at the door of the said house fixed, etc., by force whereof the 
 defendants, praid' tempore quo, etc., viz. hora quarta post meridiem 
 into the said house, the door thereof being open, did enter, and did 
 there buy and drink a quart of wine, and there paid for the same, etc. 
 The plaintiff, by way of replication, did confess, that the said house 
 was a common tavern, and that they entered into it, and bought and 
 drank a quart of wine, and paid for it: but further said, that one 
 John Ridding, servant of the said John Vaux, at the request of the 
 said defendants, did there then deliver them another quart of wine, 
 and a pennyworth of bread, amounting to 8d. and then they there did 
 drink the said wine, and eat the bread, and upon request did refuse 
 to pay for the same : upon which the defendants did demur in law : 
 and the only point in this case was, if the denying to pay for the 
 wine, or the nonpayment, which is all one (for every nonpayment up- 
 on request, is a denying in law) makes the entry into the tavern tor- 
 tious. 
 
 And first it was resolved when an entry, authority, or license, is giv- 
 en to any one by the law, and he doth abuse it, he shall be a trespasser 
 ab initio : ^^ but where an entry, authority, or license is given by 
 
 7 5 On tiiis distinction between nonfeasance and misfeasance in the law of 
 trespass ab initio, see the remarks of Coke, C. J., in Isaack v. Clark (1615) 2 
 Bulstrode, 306, 312: "If a man hndes goods, an action upon the case lieth. for 
 his ill and negligent keeping of them, but no trover and conversion, because it 
 is but a non feasans, and so in the Six Caipenters Case, he shall not be pun- 
 ished in trespass, for not paying for his wine, being but non feasans ; but if a 
 distress taken be abused, he sliall then be piuiishcd in tx'espass, and so the 
 difference is, that mis-fesans but not non-fosans, shall make one a trespasser." 
 
 See, also, the remark of Mr. Justice Holmes in Commonwealth v. Rubin 
 (18!)G) 165 Mass. 453, 43 N. E. 200: "The lule that if a man abuse an authority 
 given him by the law, he becomes a trespasscM* ab initio, although now it looks 
 like a rule of substantive law and is limited to a certain class of cases, in its 
 origin was only a rule of evidence by wbicli. when sucli rules wore low and 
 rude, the original intent was presumed coudusivolv from the subsequent con- 
 duct." 
 
 Compare the remarks of Professor Amos on "the origin of the familiar dis- 
 tinction in the law of trespass ab initio between the abuse of an authority given
 
 Ch. 1) TRESPASSES 281 
 
 the party, and he abuses it, there he must be punished for his abuse, 
 but. shall not be a trespasser ab initio. And the reason of this dift'er- 
 ence is, that in the case of a general authority or license of law, the 
 law adjudges by the subsequent act, quo animo, or to what intent, he 
 entered; for acta exteriora indicant interiora secreta. Vide 11 H. 4, 
 75 b. But when the party gives an authority or license himself to do 
 anything, he cannot, for any subsequent cause, punish that which is 
 done by his own authority or license, and therefore the law gives au- 
 thority to enter into a common inn, or tavern, so to the lord to dis- 
 train ; to the owner of the ground to distrain damage-f easant ; to 
 him in reversion to see if waste be done; to the commoner to enter 
 upon the land to see his cattle, and such like. Vide 12 E. 4, 8 b. 21 
 E. 4, 19 b. 5 H. 7, 11 a. 9 H. 6, 29 b. 11 H. 4, 75 b. 3 H. 7, 15 b. 
 28 H. 6, 5 b. But if he who enters into the inn or tavern doth a tres- 
 pass, as if he carries away any thing ; or if the lord who distrains for 
 rent, or the owner for damage-f easant, works or kills the distress ; 
 or if he who enters to see waste breaks the house, or stays there all 
 night; or if the commoner cuts down a tree, in these and the like 
 cases, the law adjudges that he entered for that purpose; and because 
 the act which demonstrates it is a trespass, he shall be trespasser ab 
 initio as it appears in the said books. So if a purveyor takes my cattle 
 by force of a commission, for the King's house, it is lawful ; but if 
 he sells them in the market, now the first taking is wrongful; and 
 therewith agrees 18 H. 6, 19 b. Et sic de similibus. 
 
 It was resolved per totam Curiam, that not doing cannot make the 
 party who has authority or license by the law a trespasser ab initio, 
 because not doing is no trespass, and, therefore, if the lessor distrains 
 for his rent, and thereupon the lessee tenders him the rent and ar- 
 rears, etc., and requires his beasts again, and he will not deliver them, 
 this not ^oing cannot make him a trespasser ab initio; and therewith 
 agrees 33 H. 6, 47 a.. So if a man takes cattle damage-f easant, and 
 the other offers sufficient amends and he refuses to redeliver them, 
 now if he sues a replevin, he shall recover damages only for the de- 
 taining of them, and not for the taking, for that was lawful; and 
 therewith agrees F. N. B. 69, g. temp. E. 1. Replevin 27. 27 E. 3. 
 88. 45 E. 3, 9. So in the case at Bar, for not paying for the wine, 
 the defendants shall not be trespassers, for the denying to pay for 
 it is no trespass, and therefore they cannot he trespassers ab initio; 
 and therewith agrees directly in the point 12 Edw. 4, 9 b. For there 
 Pigot, Serjeant, puts this very case, if one comes into a tavern to 
 drink, and when he has drunk he goes away, and will not pay the 
 taverner, the taverner shall have an action of trespass against him 
 
 by the law and the abuse of an authority given by the party, the abuse malting 
 one a trespasser ab initio in the one case, but not in the otlier." 11 llarv. Law 
 Review 276, 287-2b9 ; 3 Legal Essays 418, 428-430; Lectures on Legal His- 
 tory, 61. 
 
 See, further, Professor Beale's article on "Trespass" in 38 Cyc. 1000, notes, 
 and cases there given, and Key No., Dec. Dig,, "Trespass," § 13.
 
 282 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 for his entry. To which Brian, Chief Justice, said, the said case 
 which Pigot has put, is not law, for it is no trespass, but the taverner 
 shall have an action of debt. * * * to 
 
 GARGRAVE v. SMITH. 
 
 (Court of Common Pleas, 1691. Salk. 221. 91 Reprint, 196.) 
 
 Trespass for breaking his house, and taking and carrying away his 
 goods; the defendant justified the taking and carrying away nomine 
 districtionis for damage-feasant; plaintiff replied quod post distne- 
 tionem prsed. viz. eodem die, etc., he converted them to his own use. 
 On demurrer it was urged, that the replication was a departure, for 
 it does not make good the plaintiff's declaration in trespass, but shews 
 rather that the plaintiff's should have brought trover and conversion : 
 Sed non allocatur; he that abuses a distress, is a trespasser ab initio, 
 and therefore if in trespass the defendant justifies nomine districtionis, 
 the plaintiff" may shew an abuse, and it is no departure, but makes 
 good his declaration ; and so it does in this case, for the converting 
 is a trespass or trover at election, and the matter disclosed in the 
 replication makes good his election, for it proves it a trespass as well 
 as a trover. 
 
 ALLEN V. CROFOOT. 
 
 (Supreme Court of Judicature of New York, 1830. 5 Wend. 506.) 
 
 Crofoot sued Allen in a justice's court, and declared against him 
 in trespass for entering his house in his absence and obtaining copies 
 of papers for the purpose of commencing a suit against him. The 
 defendant pleaded the general issue and license to enter the house. 
 The cause was tried by a jury, who found a verdict for the plaintiff 
 for $50, for which sum the justice gave judgment. The defendant ap- 
 pealed to the Cortland Common Pleas, where the court charged the 
 yjury that if they should be of the opinion that the defendant had 
 acted unfairly or improperly in obtaining copies of the papers, and 
 had gone to the plaintift"'s house with the intention of fraudulently 
 obtaining such copies, though he had leave to enter the house, they 
 should find for the plaintiff' ; but if he acted correctly and openly, and 
 had leave to enter the house, they should find for the defendant. The 
 defendant excepted to this charge, and the jury found a verdict for 
 
 ■?c A portion of tlie opinion, dealing' with analogous cases, is omitted. After 
 reviewing many autliorities. Lord Coke is clear that in the doctrines of the 
 Six Carpenters" Case "all the books which i)rima facie seem to disagree are 
 upon full and pregnant reason well reconciled and agreed."
 
 Ch. 1) TRESPASSES 283 
 
 the plaintiff, with $75 damages. The defendant sued out a writ of 
 error."^ 
 
 Savage;, C. J. * * * It is also urged by the plaintiff in error 
 that the court below erred in charging the jury that the action was 
 sustainable, if they should find the defendant entered the plaintiff's 
 house fraudulently, to obtain improperly copies of papers in the ab- 
 sence of the plaintiff. It was decided in the Six Carpenters' Case 
 that where an authority to enter upon the premises of another is given 
 by law, and it is subsequently abused, the party becomes a trespasser 
 ab initio; but where such authority or license is given by the party, 
 and it is subsequently abused, the party guilty of the abuse may be pun- 
 ished, but he is not a trespasser ; ^^ and the reason of the difference 
 is said to be that in case of a license by law the subsequent tortious 
 act shows quo animo he entered; and having entered with an intent 
 to abuse the authority given by law, the entry is unlawful ; but where 
 the authority or license is given by the party, he cannot punish for 
 that which was done by his own authority. 
 
 Whether this is not a distinction without a difference of principle, 
 is not necessary to inquire. A better reason is given for it in Bac. 
 Abr. tit. "Trespass," B. Where the law has given an authority, it 
 is reasonable that it should make void everything done by the abuse of 
 that authority, and leave the abuser as if he had done everything 
 without authority. But where a man who was under no necessity to 
 give an authority does so, and the person receiving the authority 
 abuses it, there is no reason why the law should interpose to make 
 void everything done by such abuse, because it was the man's folly 
 to trust another with an authority who was not fit to be trusted there- 
 with. It is contended that the license, being obtained by fraud, was 
 void. The defendant knocked on the door and was told to walk in; ^' 
 he was found copying certain papers ; but how he obtained them, on 
 what representation, or from whom, the evidence does not disclose. 
 One witness does indeed testify that he said he would not have got 
 
 7 7 The statement is abridged. A part of ttie opinion on another point is 
 omitted. 
 
 7 8 On the oricrin of this distinction in the law of trespass ab initio, see Pro- 
 fessor Ames' Article on "The History of Trover," 11 Harv. Law Rev. 276, 
 287-2S9 ; 3 Legal Essays, 418, 428-4:^0. 
 
 79 Compare: Moore v. Dnke (191]) 84 Vt. 401, 80 Atl. 194: Dnke, a con- 
 stable with a writ of replevin for a chattel in the possession of Moore, entered 
 Moore's lot and knocked at the door of his dwelling. Moore opened the door 
 and invited Duke to enter. "This," said Powers, J., delivering the opinion, "is 
 said to have amounted to a license in fact. But the breaking of the close 
 described in the second count preceded this. It was complete when the officer 
 stepped across the imaginaiy line which divided the lot from the street. 
 * * "■ As evidence that r»uke did not come upon the premises under a 
 license from the plaintiff, either express or implied, it was permissible to 
 show that he came there for the sole purpose of serving this writ." In this 
 case, Moore's declaration against Duke was framed in two counts, one ch.'irg- 
 Ing a trespass to the plaintiffs dwelling house, the other a trespass to the lot 
 on which the dwelling stood.
 
 284 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 the copies, if he had not practiced a deception on the wife and broth- 
 er-in-law of the plaintiff. If this declaration should be considered 
 evidence of his having made improper representations to obtain the 
 papers, then the question arises : Does he thereby become a trespass- 
 er ab initio? 
 
 It has been decided that to enter a dwelling-house without license is 
 in law a trespass, Adams v. Freeman, 12 Johns. 408, 7 Am. Dec. 327, 
 and that possession of property obtained fraudulently confers no 
 title. Under such circumstances no change of property takes place, 
 Woodworth v. Kissani, 15 Johns. 186; and it is argued that, as fraud 
 vitiates everything into which it enters, a license to enter the house 
 fraudulently obtained is void, and is no license. The principle of 
 relation has never been applied to such a case, nor is it necessary for 
 the purposes of justice to extend it further than to cases where the 
 person enters under a license given him by law. In such cases, as 
 the party injured had not the power to prevent the injury, it seems 
 reasonable that he should be restored to all his remedies. 
 
 The judgment must be reversed without costs, and a venire de novo 
 awarded by Cortland, C. P. 
 
 ADAMS V. RIVERS. 
 (Supreme Court of New York, 1851. 11 Barb. 390.) 
 
 This action was brought in a justice's court. The plaintiff de- 
 clared, for that he was in possession of premises bounded by streets 
 on two sides, and also in constructive possession to the center of each 
 street, subject only to a public easement; that the defendant wrong- 
 fully came upon the sidewalk of the plaintiff, and there remained, us- 
 ing offensive, vulgar and vile language towards the plaintiff and re- 
 fusing to depart. The answer pleaded a license to be upon the side- 
 walk. There was a verdict for the plaintiff for $20 damages, and 
 judgment thereon. The defendant appealed to the county court, which 
 ^/ reversed the judgment, upon the ground that evidence was admitted 
 of the language of the defendant while on the sidewalk of a public 
 street, and that no action for such a cause could be maintained. The 
 plaintiff appealed to the Supreme Court.^° 
 
 WiLLARD, P, J. * * * This brings us to the main question in 
 the case, whether the defendant, by using abusive and insulting lan- 
 guage to the plaintiff, became a trespasser from the beginning. The 
 testimony authorized the jury to find that the defendant came on to 
 the premises of the plaintiff, covered by the street, not in the legitimate 
 use of the highway as a place of travel, but for the express purpose 
 of abusing him. The opprobrious language used by the defendant was 
 not actionable as slanderous. It was highly provoking and tended 
 directly to a breach of the peace. It was received in evidence merely 
 
 80 The statement of the case has been abridf^ed. Only so much of the opinion 
 is given as relates to the one point.
 
 Ch. 1) . TRESPASSES 285 
 
 to show that the defendant was a trespasser, having forfeited his 
 privilege by a gross abuse of it; and not indirectly to recover dam- 
 ages before the justice, for actionable words. It is conceded that the 
 justice had no jurisdiction of an action of slander. 
 
 The general doctrine as laid down in the Six Carpenters' Case, 8 
 Co. 146, a, is that when an entry, authority or license is given to any 
 one by the law, and he doth abuse it, he shall be a trespasser ab initio ; 
 but when an entry, authority or license is given by the party, and he 
 abuses it, then he must be punished for the abuse, but shall not be a 
 trespasser ab initio. * * * j^ all the cases put by Coke, the acts 
 complained of as abuses of the power were distinct acts of trespass. 
 And it seems to be the better opinion that a man cannot become a 
 trespasser ab initio, by any act of omission, which would not itself, 
 if not protected by a license, be the subject of trespass. * * * No 
 case has been cited showing that a man will forfeit a license granted 
 by law, by the use of vituperative language ; and none such has fallen 
 under my notice. In all the cases, except Adams v. Adams, and Bond 
 v. Wilder,^^ some positive act, such as if done without authority would 
 be a trespass, has been held essential to make the party a trespasser 
 ab initio. These cases may have been decided upon local statutes. It 
 is quite clear that uttering abusive language was not an act for which 
 the plaintiff could maintain trespass against the defendant. * * * 
 
 "A highway," says Swift, Justice, in Peck v. Smith, 1 Conn. 132, 
 6 Am. Dec. 216, "is nothing but an easement, comprehending merely 
 the right of all the individuals in the community to pass and repass, 
 with the incidental right in the public to do all the acts necessary to 
 keep it in repair. This easement does not comprehend any interest 
 in the soil, nor give the public the legal possession of it." In this state, 
 since the adoption of the Revised Statutes, the public under certain 
 circumstances, may have a qualified right of pasturage, by certain ani- 
 mals at certain seasons. Griffin v. Martin, 7 Barb. 297. The use of 
 the highway, by any person for any purpose other than to pass and 
 repass, is a trespass upon the person who owns the fee of the road. V 
 Makepeace v. Worden, 1 N. H. 16; Babcock v. Lamb, 1 Cow. 238; 
 Jackson v. Hathaway, 15 Johns. 447, 8 Am. Dec. 263. But no act 
 will amount to a trespass unless the same act would be a trespass if 
 committed on any other land of the plaintiff. Language, however li- 
 centious and abusive, is not a trespass, within the appropriate mean- 
 ing of that term. Nor can a party be made a trespasser upon the free- 
 hold of the adjoining owners of the soil, by the uttering of abusive 
 language as he passes along the road. A person who disturbs the 
 
 81 Adams v. Adams (1832) 13 Pick. (Mass.) 384, was to the effect that the 
 omission of a distrainor to afford proper food and water to distrained cattle 
 made the distrainor a trespasser from the beginning. In Bond v. Wilder 
 (1844), 16 Vt. 394, it was held that if an officer levy upon property by virtue 
 of an execution, and advertise the same for sale, and neglect to sell it upon 
 execution, he becomes a trespasser ab initio.
 
 286 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 public peace as he passes along the road, by singing obscene songs 
 and using boisterous and obscene language, may be liable to be pun- 
 ished at the suit of the public, for a breach of the peace, but he is 
 not liable in trespass at the suit of the adjoining owners. These acts, 
 however censurable, are not acts of trespass. 
 
 The foregoing remarks show that if the action was sought to be 
 maintained on the ground that the defendant became, while passing 
 on the road, a trespasser from the beginning, by reason of his abusive 
 language to the plaintiff, the action cannot be maintained. The county 
 judge must have taken this view of the case; for one of the reasons 
 for the reversal is that evidence was received by the justice, under 
 objections, of the language and conversation of the defendant on the 
 sidewalks of the public streets, and in his judgment no action could 
 be maintained for that cause. It is presumed that the county judge 
 supposed that the abusive language was proved, not as a substantive 
 cause of action, but as showdng that the defendant had forfeited his 
 right to be in the highway on the plaintiff's premises ; in short that 
 he was a trespasser ab initio, by reason of his abusive conduct. 
 
 But there was another view of the case which seems to have been 
 overlooked. * * * The defendant committed a trespass while 
 standing on the sidewalk by the plaintiff's lot where he lived, and us- 
 ing towards him abusive language. While so engaged he was not us- 
 ing the highway for the purpose for which it was designed,®- but was 
 a trespasser. He stood there but about five minutes. It was not 
 shewn that he stopped on the side walk for a justifiable cause; on 
 the contrary it was rendered probable that it was for a base and wicked 
 purpose. It was, therefore, a trespass. Suppose a strolling musician 
 stops in front of a gentleman's house, and plays a tune or sings an 
 obscene song under his window, can there be a doubt that he is lia- 
 ble in trespass? The tendency of the act is to disturb the peace, to 
 draw together a crowd, and to obstruct the street. It would be no 
 justification that the act was done in a public street. The public have 
 no need of the highway but to pass and repass. If it is used for any 
 other purpose not justified by law, the owners of the adjoining land 
 are remitted to the same rights they possessed before the highway was 
 made. They can protect themselves against such annoyances, by treat- 
 ing the intruders as trespassers.** 
 
 82 Compare Moore v. Duke (1911) 84 Vt. 401, 80 Atl. 194: D. had entered 
 P.'s dwelling to serve a writ of replevin. The question was whether D. had 
 entered on P.'s implied invitation. It appeared that the dwelling was used in 
 part as a village clerk's office. "But," said tlie court, "a public office like this 
 is not public for all purposes or to all persons. It is only open to such as have 
 legitimate business iliero. and this includes only such i)cvsons as have busi- 
 ness to transact there of the kind for which the office is maintained and other 
 matters reasonably incident thereto and in some cireumstances per.sons whose 
 business is merely social." 
 
 «3 Accord: 
 
 Harrison v. Duke of Rutland (189.3) 1 Q. R. 142: D. owned a grouse moor 
 crossed by a public highway. While D. was shooting on this moor, P. went
 
 Ch. !)■ TRESPASSES 287 
 
 The action therefore was strictly supported by the evidence. The 
 jury were not limited to mere compensatory damages, and the court 
 could not have interfered, had the recovery been five times as much 
 as it was. Merest v. Harvey, 5 Taunt. 442; Cook v. Ellis, 6 Hill, 
 466, 41 Am. Dec. 757; Whitney v. Hitchcock, 4 Denio, 461. 
 
 The judgment of the county court must be reversed, and that of 
 the justice affirmed. 
 
 COLE V. DREW et v.x. 
 
 (Supreme Court of Vermont, 1871. 44 Vt. 49, 8 Am. Rep. 36.3.) 
 
 Trespass, q. c. f. The defendant's wife, under the direction of the 
 highway surveyor, cut the grass growing in the highway over the 
 land of the plaintiff, that her children might go and come from school, 
 without getting their clothes wet. She cut about fifteen or twenty 
 pounds and carried it away and fed it to her husband's horse. The 
 court ruled, at the trial, that the defendant was justified in cutting the 
 grass in the highway, but that in carrying it away and feeding it to 
 the horse, she became a trespasser ab initio; and that the rule "de 
 minimis non curat lex" did not apply. Verdict for plaintiff for one 
 cent damages. Defendants excepted. 
 
 Ross, J* * * Xhe owner of the soil over which a highway 
 is located is entitled to the emblements growing thereon, and to the 
 entire use of the land, except the right which the public have to use 
 the land and the materials thereon for the purpose of building and 
 maintaining a highway, suitable for the safe passage of travelers. 
 This doctrine has been long established by numerous authorities. 
 Goodtitle v. Alker, 1 Burr. 133; Holden v. Shattuck, 34 Vt. 336, 80 
 Am. Dec. 684; Perley v. Chandler, 6 Mass. 454, 4 Am. Dec. 159; 
 Stackpole v. Healey, 16 Mass. 33, 8 Am. Dec. 121 ; Jackson v. Hath- 
 away, 15 Johns. (N. Y.) 447, 8 Am. Dec. 263. These authorities fully 
 establish that he may maintain trespass, or ejectment, for injuries to 
 his rights as such owner of the soil. The public acquire only an ease- 
 ment in the land taken, consisting of the right to use the materials, 
 in and upon the land taken, for building and maintaining a suitable 
 way, and of using the way, when constructed, for passing and repass- 
 
 upon the highway solely for the purpose of interfering with D.'s shooting, and 
 (lid there so, interfere, by waving his handkerchief and opening and shutting 
 his umbrella, and thus preventing grouse from flying toward D. On P.'s refusal 
 to desist, D.'s servants held him down, using no more force than was necessary, 
 until the shooting was over. P. sued for battery. D. pleaded that r. was a 
 trespasser on his land. 
 
 Hickman v. INInisey (1900) 1 Q. B. 752: P. owned land crossed by a highway. 
 S., a trainer of race horses, obtained from P. the right to use some of his land 
 for the training and trial of race horses. D., the prttprietor of a publication 
 which gave accounts of the doings of race horses in training, si)ent an hour 
 and a half walking backwards and forwards over a portion of the highway on 
 l'."s land, observing with glasses and tiiking notes of the trials of the race 
 horses. P. sued for a trespass on his laud.
 
 288 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 ing. The public and the highway surveyor, who is the agent of the 
 public for certain purposes, have no right to appropriate any of the 
 materials or emblements of the land taken to any other purpose. The 
 defendant wife could exercise, under the authority of the highway 
 surveyor, no greater right than those which the law has conferred on 
 the surveyor. 
 
 The grass, though properly cut by Mrs. Drew, under the direction 
 of the highway surveyor, because it interfered with the use of the 
 land for the purposes of a highway, was, when cut, the property of 
 the plaintiff. Mrs. Drew had no right to use it for feeding her hus- 
 band's horse. By so doing she overstepped the license and authority 
 which the law conferred upon the highway surveyor, and through him 
 upon her, and made herself a trespasser ab initio. If a man abuse 
 an authority or license given by the law he renders himself a tres- 
 passer ab initio, as it was resolved in the Six Carpenters' Case, 8 Coke, 
 146. She, under the authority and license given by the law to cut the 
 grass, by feeding the grass to the horse clearly invaded a right still 
 belonging to the plaintiff as owner of the soil. Such cutting and ap- 
 propriation of the grass, under the claim of a right by the defendant 
 for fifteen consecutive years, would furnish very strong, if not con- 
 clusive, evidence of the acquisition of the ownership of the soil, by 
 the defendant, by adverse use. The right to take the herbage, or em- 
 blements, is about all that is left to the owner of soil burdened with 
 the easement of a public highway. When one takes this right from 
 him he appropriates generally the only remaining right of the owner 
 of the soil. Such an invasion of a right, we think, always imports 
 some damage, though no pecuniary loss results therefrom. We think 
 Fullam V. Stearns, 30 Vt. 443, fully establishes that the maxim, "de 
 minimis non curat lex," is never properly applied to an injury for the 
 invasion of a right, and it does not apply to this case. The defend- 
 ants insist that, under the pleadings, if the plaintiff would recover for 
 the appropriation of the grass he should have new assigned. No such 
 question appears to have been raised in the court below. 
 
 Judgment of the county court is affirmed.*^* 
 
 BOSTON & M. R. CO. v. SMALL. 
 
 (Supreme Judicial Court of Maine, ISa*?. 85 Me. 462, 27 Atl. 349, 35 Am. St 
 
 Rep. 379.) 
 
 The Boston & Maine Railroad Company brought an action of tres- 
 pass against James W. Small, deputy sheriff, for breaking and en- 
 tering one of the plaintift''s freight cars. 
 
 Emery, J. The plaintiff corporation, as a common carrier, had in 
 its possession, on one of its side tracks, in Biddeford, a box freight 
 
 8* The statement of facts is abridged and part of ttie opinion is omitted.
 
 Ch. 1) TRESPASSES 289 
 
 car laden with merchandise for various parties, and locked and sealed. 
 While the car was in this situation and condition, the defendant, 
 a deputy sheriff for York county, armed with a search warrant from 
 the Biddeford municipal court under Rev. St. c. 27, § 40, broke the 
 lock and door, and entered the car, in the nighttime — soon after mid- 
 night. His warrant commanded him to "therein search for intoxi- 
 cating liquors, and if there found, to seize and safely keep the same, 
 with the vessels in which they are contained, until final action and 
 decision be had thereon." He did find in the car one barrel of intox- 
 icating liquor, viz. a barrel of alcohol, but did not seize it, being of 
 the opinion that it was not intended for unlawful sale. He, however, 
 made upon the warrant the erroneous return that he searched the 
 car, and found no intoxicating liquor. The plaintiff thereupon brought 
 this action of trespass for the breaking into its car through the lock 
 and door. The defendant has pleaded a justification under the war- 
 rant above described. 
 
 Assuming the complaint and warrant, and the search under them, 
 to have been in other respects legal and regular, the question arises 
 whether the intentional omission "to seize and safely keep," etc., the 
 intoxicating liquors found in the car by the officer, invalidates his 
 authority under the warrant, and leaves him a trespasser. 
 
 Though often obscured in earlier and ruder times, it is a distinctive 
 feature of our common-law system of jurisprudence that it so jealous- 
 ly guards the liberty and property of the citizen against the capri- 
 cious, arbitrary, or extra-legal acts of government officers, and at the 
 same time insists upon the full performance of their legal duty. Eng- 
 lish history abounds with instances of the assertion of this principle. 
 Two conspicuous instances are the beheading of one king for over- 
 stepping the law, and the expulsion some 50 years later of another 
 king, partly for refusing to execute certain laws. The principle is 
 now imbedded in the fundamental law of our republic. 
 
 Imbued with this spirit, our law requires of every ministerial offi- 
 cer, assuming to execute a statute or legal process against the per- 
 son or property of the citizen, a strict observance of every provision 
 of the statute, and of every lawful command in the process. The law 
 permits to such an officer no discretion in this respect. If he once be- 
 gin, he must execute the process, the whole process, and nothing but 
 the process. Alany extracts from judicial opinions could be quoted, 
 stating this rule as strongly and comprehensively. One distinguished 
 jurist has used judicially the following language: "A man who seizes 
 the property or arrests the person of another, by legal process, or 
 other equivalent authority conferred upon him by law, can only jus- 
 tify himself by a strict compliance with the requirements of such 
 process or authority. If he fails to execute or return the process as 
 thereby required, he may not, perhaps, in the strictest sense, be said 
 to become a trespasser ab initio ; but he is often called such, for his 
 Hepb.Tobts — 19
 
 290 TOUTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 whole justification fails, and he stands as if he never had any author- 
 ity to take the property, and therefore appears to have been a trespass- 
 er from the beginning." Gray, J., in Brock v. Stimson, 108 Mass. 521, 
 11 Am. Rep. 390. By substituting the w^ord "injure" for the word 
 "seize" in the above quotation, the language of Justice Gray would be 
 literally applicable to this case. 
 
 There would seem to be no difference in principle between civil and 
 criminal processes in this respect, and hence illustrations may properly 
 be taken from either class of cases. In Blanchard v. Dow, Z2 Me. 
 557, a tax collector regularly sold cattle of the plaintiff upon a tax 
 warrant. He omitted afterwards to render "an account in writing 
 of the sale and charges," as required by the statute and his warrant. 
 It was held that this omission deprived him of the protection of his 
 warrant. In Carter v. Allen, 59 Me. 296, 8 Am. Rep. 420, a tax col- 
 lector, under the same circumstances, did render the account in writ- 
 ing, and tender the surplus, but the statement of account proved to 
 be incorrect. It was held that this error vitiated the officer's immunity. 
 In Ross v. Philbrick, 39 Me. 29 ; Brackett v. Vining, 49 Me. 356 ; 
 and Smith v. Gates, 21 Pick. (Mass.) 55 — it was held that an omission 
 by an officer to execute a command in the precept, at the precise time 
 named therein, invalidated his authority, and made him liable as a 
 trespasser to those with whose property he had interfered under his 
 precept. In the last-named case (Smith v. Gates) there was a varia- 
 tion of only 20 minutes. In Tubbs v. Tukey, 3 Gush. (Mass.) 438, 50 
 Am. Dec. 744, an officer arrested the plaintiff on a criminal process 
 on Sunday, and committed him to jail. On the following Monday 
 morning, instead of taking the plaintiff before the police court, as re- 
 quired by law to do, the officer assumed to discharge the plaintiff from 
 arrest. It was held that the omission to take the plaintiff before the 
 court took away from the officer all justification for the arrest. In 
 Russell V. Hanscomb, 15 Gray (Mass.) 166, a fish warden, as author- 
 ized by statute, took a seine which was illegally set. He did not, 
 however, as required by statute, begin a legal proceeding for the for- 
 feiture. In the words of Shaw, C. J., the court held that the warden's 
 "failure to prosecute was a departure from his authority, and, in 
 legal effect, deprived him of his justification." In Brock v. Stmison, 
 108 Mass. 520, 11 Am. Rep. 390, a police officer, by authority of a 
 statute, arrested the plaintiff for being drunk and disorderly in a pub- 
 lic place; but instead of taking him before the court for trial, as fur- 
 ther required by statute, he released the plaintiff from arrest as soon 
 as he recovered from his intoxication. It was held that this disobedi- 
 ence of the statute took away all protection under the statute. In 
 Phillips V. Fadden, 125 Mass. 198, upon a similar state of facts, the 
 proposition was again asserted that, if an officer fails to do all that 
 the law requires him to do. his whole justification fails. It has also 
 been held, and is a familiar principle, that the omission by the officer 
 to obey the final and formal command to make return of the precept
 
 Ch. 1) TRESPASSES 291 
 
 under which he assumes to act invalidates his authority under the 
 precept, and renders him Hable to an action for anything done under 
 it. WilHams v. Babbitt, 14 Gray (Mass.) 141, 74 Am. Dec. 670; Wil- 
 liams V. Ives, 25 Conn. 568; Dehm v. Hinman, 56 Conn. 320, 15 Atl. 
 741, 1 L. R. A. 374. 
 
 In the Six Carpenters' Case, 8 Coke, 146, in which the doctrine of 
 trespass ab initio seems to have been first formally expounded, it was 
 said that the reason for holding a person acting under authority of 
 law to be a trespasser ab initio by any subsequent abuse of such au- 
 thority, was that his subsequent illegality showed that he began with 
 an unlawful intent. This dictum has been often repeated in various 
 forms. It seems, however, to be artificial, and even fictitious. An 
 officer may often, in fact, begin with the best and most lawful intent, 
 and yet forfeit his protection by subsequent misconduct. The more 
 solid and sure foundation for such a rule would seem to be public 
 policy. It is inconsistent with both private security and public or- 
 der that ministerial officers should assume to determine for themselves 
 how far, and in what manner, they will enforce a statute, or execute 
 a process. If the safety of the citizen requires that such officers shall 
 do no act not authorized, the safety of the people equally requires 
 that such officers shall omit no act that is commanded. 
 
 It was further resolved in the Six Carpenters' Case that "not doing 
 cannot make the party who has authority or license by law a tres- 
 passer ab initio, because not doing is no trespass." This dictum, also, 
 has been often repeated, and has at times influenced judicial decisions. 
 The reasoning may seem plausible, but in reality it is a bit of sterile, 
 verbal syllogization. It has borne no good fruit. 
 
 It is difficult to see any difference in principle between misfeasance 
 and nonfeasance in a ministerial officer. In either case, he is for- 
 sworn ; has disobeyed the statute or process he has sworn to execute 
 faithfully. It is the disobedience, not the act, that deprives him of 
 his authority. The disobedience is the fatal poison which paralyzes 
 the protecting arm of the law, and this disobedience can come as well 
 from acts of omission as commission. 
 
 The learned editor of the American Decisions, in the notes to Bar- 
 rett V. White, 3 N. H. 210, 14 Am. Dec. 365, criticises this dictum of 
 the Six Carpenters' Case. He says the distinction seems to be mere- 
 ly artificial, and should not be allowed to protect a disobedient officer. 
 He cites many cases in which, he says, the distinction has been prac- 
 tically disregarded. Reference is made to those notes and citations, 
 without further quotations from them here. 
 
 The courts of Maine and Massachusetts, while sometimes alluding 
 to or quoting this dictum, have practically ignored it when dealing 
 with cases like this one before us. Every case above cited from the 
 decisions of those courts were cases of nonfeasance or omission. The 
 tax collector simply omitted to do some particular thing, either en- 
 tirely or at the specified time. The police officers simply omitted to
 
 292 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 do some act required. The failure to make return of the process is 
 a simple omission. The New Hampshire court seems to uphold the 
 distinction drawn in the Six Carpenters' Case, for in Ordway v. Fer- 
 rin, 3 N. H. 69, it held precisely the contrary of our decision in 
 Brackett v. Vining, 49 Me. 356. Our stricter rule is firmly established 
 in our law, and we think, upon grounds of public policy, it is the 
 better and more reasonable rule. While, of course, in a given case, 
 an officer may have a sufficient, lawful excuse for his omission, the 
 general, plain, reasonable, and necessary proposition is that a minis- 
 terial officer must faithfully obey every lawful command in the stat- 
 ute or process, or he will be left without its protection in any suit 
 against him for any acts done by him under color of such statute or 
 process. The case of Hinks v. Hinks, 46 Me. 423, in no way con- 
 flicts with this proposition, for there the defendant was not an officer, 
 and was only exercising a private right. 
 
 Referring now to the case before us, it is evident that the principal 
 purpose of the statute (Rev. St. 1883, c. 27, § 40), and of the process 
 issued under it was the seizure of whatever intoxicating liquors were 
 found, and the bringing them before the court for determination 
 whether they were intended for unlawful sale. The authority to en- 
 ter the car, and there search, was given for that express purpose. The 
 defendant officer exercised the authority to search, but he willfully 
 and deliberately refused to seize the intoxicating liquors he found, 
 and made a false return that he found none. He assumed to nullify 
 the main command of the statute and of his process. He willfully 
 defeated the very purpose of the search he assumed to make. Such 
 a flagrant disobedience should, and we think does, destroy the pro- 
 tection he might otherwise have justly enjoyed. 
 
 The good faith of the defendant — his strong belief that the intoxi- 
 cating liquor he found was not intended for unlawful sale — is no ex- 
 cuse, and does not mitigate the penalty. As said in Guptill v. Richard- 
 son, 62 Me. 262, the fact "that it [the liquor] was not liable to for- 
 feiture would not excuse the officer for disobedience to his precept." 
 The command to seize the liquors was plain. His duty was plain. 
 He was given no discretion, no power to determine what intoxicating 
 liquors he would or would not seize. He should not have arrogated 
 to himself any such power. 
 
 It is urged that it may at times work a great hardship upon an in- 
 nocent owner, if an officer must in every case seize whatever intoxicat- 
 hig liquors he finds under a search warrant, however evident it is 
 they are not intended for unlawful sale. The policy of the law is that 
 every owner or keeper of intoxicating liquors shall be prepared to 
 defend them before the courts, and not before the officer, against the 
 accusation that they are intended for unlawful sale. The convenience 
 of such owner or keeper must give way to the good of the people, 
 and to their undoubted right to protect themselves in this way against
 
 Ch. 1) TRESPASSES 293 
 
 the consequences of the traffic in such articles. At any rate, the officer 
 must obey the law and his lawful process. 
 
 It is urged that the omission to seize the liquors in this case caused 
 this plaintiff no special injury, however much the public may have been 
 harmed. The search, however, did the plaintiff an injury. The lock 
 and door of its car were broken by the defendant. He might have 
 made that breaking official and lawful by doing his whole official duty. 
 He saw fit, however, to disregard his precept and abandon his duty. 
 This abandonment of duty was also an abandonment of his authority, 
 and left him amenable for all the damage done by him to the plaintiff 
 corporation. 
 
 Defendant defaulted. Damages assessed at $10.*' 
 
 8 5 Compare Moore v. Duke fl911) 84 Vt 401, 80 Atl. 194: The plaintiff was 
 clerlv of the incorporated ^illase of Plainfield. and as such had the custody 
 of its books of record, including one which contained, among other things, the 
 record of building permits granted by the village. These records were kept 
 by the plaintiff at his dwelling in a certain room which he used for an office. 
 The defendant Duke was constable of the town of Plainfield. The other de- 
 fendants, Evan and Bruffee, were, respectively, bailiff and trustee of the 
 village. Ryan was also street commissioner. Some controversy having arisen 
 over the building operations of one Fortney, and it being claimed by the offi- 
 cials that he had violated the terms of his permit, it became necessary, for 
 Ryan and Bruffee to have the record of this permit or a copy of the same. 
 On the morning of March 8, 1910, Bruffee called at the clerk's office, and asked 
 the clerk to loan him the book containing this record. This the clerk refused 
 to do. A little later, Bruffee and Ryan called at the office, and asked for and 
 examined the book, but the clerk declined to allow them to take it away from 
 the office. Thereupon, after some spirited discussion regarding the matter, 
 Ryan went to Montpelier and arranged with an attorney to have the book 
 replevied. Before leaving Plainfield, he notified the constable of his inten- 
 tions, and asked him to be ready to serve the writ, which was to be sent him 
 by mail. The writ came in due time, a bond was executed and taken, and 
 the constable went to the plaintiff's house to serve the wi-it. He did .serve the 
 writ, took the book thereunder, and delivered it to the plaintiffs therein — Ryan 
 and Bruft'ee. He indorsed his return on the back of the writ, and sent it by 
 mail to the attorney who made it, but it was never entered in court. Said Pow- 
 ers, J., delivering the opinion: "Duke's entry, when made, was for a justifiable 
 purpose, for his process was fair and his entry without actual force ; nor did 
 anything occur while he was upon the premises to change his situation. He 
 proceeded according to the commands of the process in all respects but one. 
 The one thing which remained for him to do — and which was absolutely essen- 
 tial to make all his previous acts regular and valid — he omitted."
 
 -V 
 
 294 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 CHAPTER II 
 ABSOLUTE TORTS OTHER THAN TRESPASSES 
 
 SECTION 1.— BEFORE THE STATUTE OF WESTAHNSTER 
 
 THE SECOND^ 
 
 I. Historical 
 
 Meanwhile ^ the actions which came to be known as personal make 
 their appearance. The oldest seems to be "Debt-Detinue," which ap- 
 pears already in Glanvill. I say "Debt-Detinue" — originally men see 
 little distinction between the demand for a specific chattel and the de- 
 mand for a certain sum of money. Gradually this action divides it- 
 self into two, Detinue for a specific chattel, Debt for a sum of money 
 — this differentiation takes place early in the thirteenth century. As 
 in Detinue the judgment given for the plaintiff awards him either the 
 chattel itself, or its value; and, as the defendant thus has the option 
 of giving back the chattel or paying its value, Bracton is led to make 
 the important remark, that .there is no real action for chattels — an 
 important remark, for it is the foundation of all our talk about real 
 and personal property. To Debt and Detinue we must now add Re- 
 plevin, the action for goods unlawfully taken in distress. This action 
 we are told was invented in John's reign — another tradition ascribed 
 its invention to Glanvill. Covenant also has appeared, though during 
 the first half of the thirteenth century it is seldom used except in cases 
 of what we should call leases of land for terms of years. Gradually 
 the judges came to the opinion that the only acceptable evidence of a 
 covenant is a sealed writing, and one of the foundations of our law 
 of contract is thus laid. Account appears in Henry Ill's reign ; but 
 it is very rare and seems only used against bailiffs of manors. 
 
 But the most important phenomenon is the appearance of Trespass 
 — that fertile mother of actions. Instances of what we can not but 
 call actions of trespass are found even in John's reign, but I think it 
 clear that the writ of trespass did not become a writ of course until 
 
 1 13 Edw. I, ch. 24 (1285). Its translation, In part, Is given infra. 
 
 2 The reference is to the development of English law after the death of 
 Henry the Second, in 1189, uud before the accession of Edward the First, 
 in 1272.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 295 
 
 very late in Henry Ill's reign. Xow trespass is to start with a semi- 
 criminal action. It has its roots in criminal law, and criminal proce- 
 dure. 
 
 F. W. J\Iaitland, Equity and Forms of Actions, 342 (1909). 
 
 In the reign of Edward the First the scope of the law of tort as 
 administered in the royal courts was narrow. * * * There were 
 remedies against personal violence, there were remedies against forci- 
 ble seizure of property, there were remedies against various frauds and 
 other offences which might come under the notice of a court which 
 was trying a case. It is not till these frauds and other offences have 
 become generally actionable wherever committed that we shall see 
 clearly the outlines of our modern law of tort. 
 
 Of other personal actions brought in the royal courts the most com- 
 mon were detinue, debt, covenant, and account. The writ of detinue 
 lay for the wrongful detention of a chattel which belonged to the plain- v/ 
 tiff". It was generally brought against a bailee. Possibly at this period 
 it could not be brought against any other person. A person who had 
 parted with his goods involuntarily (i. e. otherwise than by a bail- 
 ment) must sue either by the appeal of larceny or, omitting the words 
 of felony, by an action for a res adirata. It is probably not till later 
 that the action of detinue was gradually extended to such a case. The 
 writ of debt was originally almost one with the writ of detinue. To 
 the end their wording was almost identical. The plaintiff' seeks the 
 restoration of money. "It was in fact a general form in which any 
 money claim was collected, except unliquidated claims for damages by >^ 
 
 force, for which there was established the equally general remedy of 
 trespass." 
 
 Holdsworth's Hist. Eng. Law (1909) vol. 2, p. 309/ 
 
 II. Detinue — Replevin 
 
 (A) Nature of the Cause in General 
 
 The appeal, trespass, and replevin were actions ex delicto. Detinue, 
 on the other hand, in its original form, was an action ex contractu, in 
 the same sense that debt was a contractual action. It was founded on 
 a bailment; that is, upon a delivery of a chattel to be redelivered. 
 
 3 "Adirata"' means gone from his hand again.st hi^^ will — adextratus. r. & 
 M. ii, 1«;0, n. 2; cp. Bracton's Note Book, case 284; Y. li. 21, 22 Edw. I (R. S.» 
 4t;.s ; Holmes, Common Law, 108, 161) ; vol. iii, Api). I, B (2». 
 
 4 The cases which follow under Detinue and Replevin develop its doctrine 
 only so far as its differentiation from Trespass and Conversion appears to be 
 important.
 
 296 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 The bailment might be at will or for a fixed term, or upon condition, 
 as in the case of a pledge. The contractual nature of the action is 
 shown in several ways. * * * 
 
 In all the cases of detinue thus far considered the action was brought 
 by a bailor, either against the bailee or some subsequent possessor. 
 We have now to consider the extension of detinue to cases where 
 there was no bailment. Legal proceedings for the recovery of chattels 
 lost were taken, in the earliest reported cases, in the popular courts. 
 The common case was doubtless that of an animal taken as an estray 
 by the lord of a franchise. If the lord made due proclamation of the 
 estray, and no one claimed it for a year and a day, the lord was enti- 
 tled to it. But within the year and day the loser might claim it, and 
 if he produced a sufficient secta, or body of witnesses, to swear to his 
 ownership or loss of the animal, it was customary for the lord to give 
 it up, upon the owner's paying him for its keep, and giving pledges 
 to restore it in case of any claim for the same animal being made with- 
 in the year and day. There is an interesting case of the year 1234, 
 ' in which after the estray had been delivered to the claimant upon his 
 making proof and giving pledges, another claimant appeared. It is to 
 be inferred from the report that the second claimant finally won, as he 
 produced the better secta. If the lord, or other person in whose hands 
 the estray or other lost chattel was found, refused to give it up to the 
 claimant, the latter might count against the possessor for his res adi- 
 rata, or chose adirree, that is, his chattel gone from his hand without 
 his consent ; or he might bring an appeal of larceny. 
 
 James Barr Ames, "The History of Trover." '^ 
 
 We must not be wise above what is written or more precise than the 
 lawyers of the age. Here is an elementary question that was debated 
 in the year 1292 : I bail a charter for safe custody to a married wo- 
 man ; her husband dies ; can I bring an action of detinue against her, 
 it being clear law that a married woman can not bind herself by con- 
 tract ? This is the way in which that question is discussed : 
 
 Huntingdon. Sir, our plaint is of a tortious detinue of a charter 
 which this lady is now detaining from us. We crave judgment that 
 she ought to answer for her tort. 
 
 Lowther. The cause of your action is the bailment ; and at that 
 time she could not bind herself. We crave judgment if she must now 
 answer for a thing about which she could not bind herself. 
 
 Spigurnel. If you had bailed to the lady thirty marks for safe cus- 
 tody while she was coverte for return to you when you should demand 
 them, would she be now bound to answer? I trow not. And so in 
 this case. 
 
 B First imltlished in 11 ITarv. Law Rev. 375, 379 (189S) ; reprinted in 3 
 Anglo-Aiuericau Legal Essays, 4o2, 437.
 
 Ch.2) 
 
 ABSOLUTE TORTS OTHER THAN TRESPASSES 297 
 
 Howard. The cases are not similar ; for in a writ of debt you shall 
 say debet, while here you shall say iniuste detinet. And again, in this 
 case an action arises from a tortious detainer and not from the bail- 
 ment. We crave judgment. 
 
 Pollock and ]\Iaitland, Hist, of Eng. Law, vol. 2, p. 180.® 
 
 6 "The nature of the action of Detinue has often been the subject of discus- 
 sion by tlie courts. And even Parliament has at different times talien differ- 
 ent views on the subject. But the truth appears to be that Detinue was a 
 variety of the ancient action of Debt, which was itself originally in the nature 
 of a real action, to recover specific chattels, but, owing partly to historical, 
 partly to economic, causes, came early to be treated as a personal action, gen- 
 erally founded on contract. As a natural consequence of this origin, various 
 anomalies attached to it ; one being that, until 1833, a claim in Detinue could 
 generally be met by the primitive defence known as 'wager of law,' a defence 
 not available against the action of Trespass, or the more modem actions 
 founded on the Statute of Westminster the Second ('Case')- Hence Detinue 
 tended at one time to be superseded by Trover (ante, title II), which, in many 
 cases, is equally applicable to the facts. But after the defence of 'wager of 
 law' had been abolished by section 13 of the Civil Procedure Act, 1833, there 
 was a revival of Detinue, and, naturally, with some misunderstanding as to 
 its nature. The action is, in fact, useful in cases in which the defendant sets 
 up no claim of ownership, and has not been guilty of trespass ; for, on the 
 latter point especially, it is clear that it was never necessary in Detinue to 
 allege that the defendant's original acquisition was unlawful. The typical 
 case was that in which a bailor sued his bailee to recover the goods bailed 
 (detinue sur bailment), there being then no action founded on simple con- 
 tract ; and this long remained the formal assumption in every action of Det- 
 inue; though at an early date the allegation of bailment became a mere mat- 
 ter of form, which could not be denied or 'traversed.' (See Gledstane v. Hew- 
 itt, ubi sup.) But allegations of finding, and even of trespass, were also ad- 
 mitted (detinue sur trover, etc.) ; and thus, as was natural, the plea of 'not 
 guilty' was recognized, in addition to the more correct plea of 'non detinet.' 
 * * * The action of Detinue is now^ apparently treated as an action of Tort. 
 Trotter v. Windham & Co. (1907) 23 T. L. R. 676." J. C. Miles, in Jenks' Digest 
 of Eng. Civ. Law% § 882. 
 
 See also 3 Holdsworth's Hist, of Eng. Law, 274: 
 
 "The action of Detinue, it is thought, lay originally only against a bailee, 
 i. e. it was available only to an owner who had voluntarily parted with the 
 possession of his goods to another. Some words of Littleton in 1455, describ- 
 ing a count in trover as a 'new found haliday,' are taken to mean that the ac- 
 tion of detinue was practically confined before that date to actions against 
 bailees. 
 
 "It is, however, difficult to believe that the rights of owners of goods were 
 so curtailed during the fourteenth century. No doubt the action of detinue 
 was an action which was used chiefly against bailees ; and some dicta per- 
 haps would seem to imply that the action lay only against a bailee. But such 
 dicta, if spoken in course of an action of detinue sur bailment, would not nega- 
 tive a possibility of bringing such an action against some one other than a 
 bailee. We want a precise statement to the effect that the action lies against 
 a bailee and no one else. To borrow the precise language of the pleaders, we 
 must have, not only an averment that an action of detinue lies only against a 
 bailee, but also an averment that it lies only against a bailee 'sans ceo que' 
 it lies against any one else. It is just this averment which it would i)robably 
 be diflicult to find." 
 
 And see especially Professor Ames' article on the History of Trover, 11 
 Han% Law Rev. 375-383 ; 3 Anglo-American Legal Essays, 432-442. As late 
 as 1861 detinue was classed as an action of contract. See Danby v. Lamb, 11 
 C. B. N. S. 423, and the opinion of Byles, J., p. 427: "According to all the au- 
 thorities from Brooke's Abridgment, Joinder in Accion, pi. 97, down to the 
 case of Walker v. Xeedham, 4 Scott, N. R. 222, 1 Dowl. N. S. 220 (1841), det- 
 inue has always been considered to an action ex contractu." But in 1878, and
 
 298 TORTS THROUGH ACTS OP ABSOLUTE LIABILITY (Part 1 
 
 KETTLE V. BROAISALL. 
 
 (Common Pleas, 173S. Willes, 118, 125 Reprint, 10S7.) 
 
 WiLLEs, Lord Chief Justice, gave the opinion of the Court as fol- 
 lows : 
 
 Detinue. The plaintiff declares in the first count that he was pos- 
 sessed of a handle of a knife with an old English inscription purport- 
 ing it to be a deed of gift to the monastery of St. Albans, a ring with 
 an antique stone with one of the Caesars' heads upon it in basso re- 
 lievo, and of several other things of the like nature, particularly speci- 
 fied in the declaration, and laid together to be of the value of i500. as 
 of his own proper goods ; and that being so possessed he casually lost 
 the same, and that afterwards by finding they came unto the hands and 
 possession of the defendant, by reason whereof an action accrued to 
 the plaintiff to demand the same of the defendant. 
 
 In the second count he declares that he delivered to the defendant 
 the same things, specifying them again, of the value together of £500. 
 to be safely kept and to be delivered to the plaintiff when required ; 
 that nevertheless the defendant, though often requested, has not deliv- 
 ered the same or any part thereof to the plaintiff', but refused and 
 still doth refuse to deliver the same and unjustly detains them; to the 
 plaintiff's damage of £1000. * * * 7 
 
 Serjt. Comyns for the defendant took three objections, two to the 
 declaration and one to the replication. * * * [The second was:] 
 That the first count is in trover, and the second in detinue ; and that 
 trover and detinue cannot be joined. That if the first be taken to be 
 in trover, there is no conversion ; and if in detinue, there is no de- 
 mand ; and consequently that it cannot be good in either. To shew 
 that trover and detinue cannot be joined he cited 8 Co. 87b, Buck- 
 mere's case ; because they require dift'erent pleas. ^ 
 
 But we are all of opinion that this objection will not hold ; for that 
 both counts are in detinue. Detinue will lie for things lost and found 
 as well as for things delivered; so it is expressly laid down in Fitz. 
 
 apiiareutly since then, in England, detinue is recognized as a cau.«!e in tort. 
 See Bryant v. Herbert (1S7S) 3 C. P. D. 389, C. A. ; Du Pasqnier v. Cadhurv 
 Jone.s & Co. (1903) 1 K. B. 104, C. A.; Keates v. Woodward (1902) 1 K. B. 
 ;332, 330. 
 
 For tlie American doctrine see 14 Cyc. 241, and note 4 ; 16 Cent Dig. "Det- 
 inue," § 1 ; Key-No. "Detinue," § 1. 
 
 ' The pleadings terminated in a demurrer to the replication, and joinder 
 therein. Only so much of the case is given as relates to the objection to the 
 declaration. 
 
 8 "Not only the pleas, but the judgments also, are different ; in trover only 
 damages can be reoovei-ed. but in detinue the things themselves, or their Aalue, 
 may be recovered. And two counts cannot be joined in the same declaration 
 unless the same judgment may be given on both. P.rown v. Di.xon, D. »& E. 27G. 
 See also (Jilb. Hist. C. B. ti, 7." 
 
 In the princii)al case, the court takes it as established law that trover and 
 detinue cannot be joined. — l±Jd.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 299 
 
 X. B. tit. "Detinue" (E), a book of the greatest authority. * * * 
 And it would be very absurd if it were otherwise ; for if so, a person 
 might be greatly injured, and have no adequate remedy. For in tro- 
 ver only damages can be recovered ; but the things lost may be of that 
 sort, as medals, pictures, or other pieces of antiquity, (and this seems 
 to be the present case,) that no damages can be an adequate satisfac- 
 tion, but the party may desire to recover the things themselves, which 
 can only be done in detinue. * * * 9 
 
 As therefore we are of opinion that the objections would not hold 
 either to the declaration or the replication, judgment was given for 
 the plaintiff. 1° 
 
 9 " 'Detinue,' this is a very old action. The defendant is charged with an 
 unjust detainer (not, be it noted, an unjust taking) — injuste detinet. This ac- 
 tion looks very like a real action. The writ originating it bears a close sim- 
 ilarity with the writ of right (praecipe in capite), but in the first place the 
 mesne process is not in rem, and in the second (and this is very important) 
 the defendant when worsted is always allowed the option of surrendering the 
 goods or paying assessed damages. The reason of this may perhaps be found 
 partly in the perishable character of medieval movables, and the consequent 
 feeling that the court could not accept the task of restoring them to their 
 owners, and partly in the idea that all things had a 'legal price' which, if the 
 plaintiff gets, is enough for him." F. W. Maitland, "Equity and Forms of 
 Action," 355. 
 
 See also Phillips v. Jones (1S50) 15 Q. B. 859, 867, and Somerset v. Cookson 
 (1735) 3 P. Wms. 390: (P. brought an injunction to compel the delivery of an 
 old altar-piece made of silver and remarkable for a Greek inscription and dedi- 
 cation to Hercules. The altar piece had been sold without right by S. to D., a 
 goldsmith, who had notice of D.'s claim to it. D. insisted that P. could have 
 adequate relief without detinue. P. insisted that "nothing can be more rea- 
 sonable than that the man, who by wrong detains my property, shall be com- 
 pelled to restore it to me again in specie : and the law being defective in this 
 particular such defect is properly supplied in equity." Held, that an injunc- 
 tion might be granted.) 
 
 10 "Detinue by a loser against a finder would probably have come into use 
 much earlier but for the fact * * * ^jj^t the loser might bring trespass 
 against a finder who refused to restore the chattel on request. Indeed, in 
 1455, where a bailiff alleged simply his possession, and that the charters came 
 to the defendant by finding, Prisot, C. J., while admitting that a bailor might 
 have detinue against any possessor- of goods lost by the bailee, expressed the 
 opinion that where there was no bailment the loser should not bring detinue, 
 but trespass, if, on demand, the finder refused to give up the goods. Littleton 
 insisted that detinue would lie, and his view afterwards prevailed. It was in 
 this case that Littletim, in an aside, said: 'This declaration per inveutionem 
 is a new-found Halliday ; for the ancient declaration and entry has always 
 been that the charters ad manus et possessionem deveuerunt generally with- 
 out .showing how.' Littleton was quite right on this point. But the new 
 fashion persisted, and detinue sur trover came to be the common mode of de- 
 claring wherever the plaintiff' did not found the action upon a baihnent to the 
 defendant." Ames, History of Trover, 11 Harv. Law Rev. 375, 3S1 ; 3 Anglo- 
 Am. Legal Essays, 439. 
 
 And see the note, 3 Anglo-Am. Leg. Essays, p. 440: "Littleton's remark 
 seems to have been misapprehended in 2 Pollock & Maitland, 174. The in- 
 novation was not in allowing detinue where there was no bailment, but in de- 
 scribing the defendant as a finder."
 
 300 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 MILLS V. GRAHAM. 
 (Common Pleas, 1804. 1 Bos. & Pul. [N. R.] 141, 127 Reprint, 413, S R. R. 7G7.) 
 
 The declaration was as follows: 
 
 The defendant was summoned to answer unto a plea, that he, the said de- 
 fendant, render unto the said plaintiff certain goods and chattels, to the value 
 of £300 of lawful money of Great Britain, which the defendant unjustly de- 
 tains from the plaintiff ; and thereupon the plaintiff, by R. 11. his attorney, 
 complains for that whereas the plaintiff, heretofore, to wit, on, etc., at, etc., 
 delivered to the defendant the goods and chattels following, that is to say, 
 75 dozen of skins of the said plaintiff of a large value, to wit, of the value of 
 £300, of lawful money of Oreat Britain, to he redelivered by the said defend- 
 ant to the said plaintiff when he should be thereto requested ; and neverthe- 
 less the said defendant, although thereto often requested, hath not yet deliver- 
 ed the said goods and chattels, or any of them, or any part thereof, to the 
 said plaintiff, but hath hitherto refused and still doth refuse to deliver the 
 same to tlie said plaintiff, to wit, at, etc. And whereas the said plaintiff" 
 heretofore, to wit, on, etc., at, etc., was lawfully possessed of divers other 
 goods and chattels, to wit, 75 dozen of other skins of a large value, to wit, of 
 the value of £300 of like la^^'ful money, and being so thereof possessed, the 
 said plaintiff" afterwards, to wit, on, etc., at, etc., casually lost the said last- 
 mentioned goods and chattels out of his hands and possession, and the same 
 then and there came to the hands and possession of tlie said defendant, who 
 found the same: nevertheless the said defendant, well kno\\ing the said 
 last-mentioned goods and chattels to be the goods and chattels of the said 
 plaintiff", and to him of right to belong and appertain, had not as yet de- 
 livered the said last-mentioned goods and chattels, or any of them, or any 
 part thereof, to the said plaintiff, although often requested so to do, but 
 hath hitherto refused, and still doth refuse to deliver the same to the said 
 plaintiff, and now unjustly detains the same from the said plaintiff', to wit, 
 at, etc., whereupon the said plaintiff saith he is injured, and hath sustained 
 damage to the amount of £300 and therefore he brings his suit, etc. 
 
 On the trial, before Sir James Mansfield, C. J., after a plea of non 
 detinet, it appeared that the defendant, being desirous of purchasing 
 some skins, applied to the plaintiff to sell him some, which the latter 
 declined, but agreed to let him have skins to the amount of £275. to 
 finish, for the finishing of which the plaintiff was to pay ; that the 
 skins having been delivered accordingly, the plaintiff afterwards ap- 
 plied to the defendant to return them, offering to pay anything that 
 might be due; that the defendant refused to return them, and again 
 wished to purchase them, oft'ering to pay the price by instalments of 
 £5. a month ; that the plaintiff still refusing to sell them, the defend- 
 ant declared that he would contest the matter at law, as he was under 
 age, which was the case. 
 
 His Lordship was of opinion that the first count of the declaration, 
 which stated a bailment of goods to be redelivered upon request, was 
 not supported by evidence of a bailment for a special purpose, but 
 held, that notwithstanding this infancy of the defendant, and an ob- 
 jection to the allegation on the second count, that the goods came to 
 his hands by finding, the plaintiff was entitled to recover upon that 
 count. Accordingly a verdict was found for the plaintiff, subject to 
 the opinion of the Court. Afterwards a rule nisi for a nonsuit was 
 obtained. * * *
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 301 
 
 Chambri;, J. The action of detinue is as old as any action known 
 to the law, and yet it is rather extraordinary that the subject of objec- 
 tion in the present case has never been brought into question. Many 
 cases might be put to which an action of detinue could not apply, un- 
 less this general mode of declaring were allowed. Only three modes 
 of stating the inducement appear by the entries to have been used. 
 One is on a bailment, another on finding, and a third on purchase. 
 But the precedents do not comprehend half the cases which might 
 arise. Suppose a bailment were made to A., and that the goods, after 
 passing through several hands, come into the hands of B. Could it 
 be necessary to trace the progress of the goods through all the hands 
 into which they had passed? In this case, I believe that the practice 
 has been to declare upon a finding, as has been done in the present 
 case. I am not certain that the finding has not been literally proved 
 in this case; for it is not clear that the word "finding" is to be con- 
 fined to the sense of picking up a thing which has been casually lost. 
 The form of proceeding in trover is very material on this point, and 
 seems to warrant us in considering the finding merely as inducement. 
 To the present day, no case has ever arisen in which it has been 
 thought necessary, upon the plea of non detinet, to prove precisely the 
 finding alleged. * * * ^^ I entirely concur in thinking that suffi- 
 cient proof has been given to entitle the plaintiff to recover. 
 
 Rule discharged. 
 
 REEVE V. PALMER. 
 
 (Court of Common Pleas, 1858. 5 O. B. [N. S.] 84, 141 Reprint, 33, 116 R. 
 
 R. 578. Exchequer Chamber, 1859. 5 C. B. [N. S.] 91, 141 
 
 Reprint, 36, 116 R. R. 577.) 
 
 Detinue for title-deeds, with a count for money received. To the 
 first count the defendant pleaded, amongst other pleas, non detinet, 
 and that the deeds were not the plaintiff's ; and to the second, never 
 indebted and a set off. The facts appearing on the trial were as fol- 
 lows : 
 
 The defendant was an attorney at Cambridge. The deeds in respect of 
 which the action was brought had been left in the defendant's custody as 
 attorney for the plaintiff. At the trial, there was only one deed in contest 
 
 11 The argument of counsel, part of the opinion of Chambre, J., and the 
 concurring opinions of Sir James Mansfield, C. J., and Heath and Rooke, JJ., 
 are omitted. The statement is slightly abridged. 
 
 Compare Walker v. Jones (1834) 2 Cr. & M. 672: In an action of detinue 
 "the defendant pleaded a plea traversing the delivery ; to wbich there was 
 a demurrer." On tlie argument Comyn, for the defendant, stated tliat the 
 plea had been drawn from a precedent in Chitty (3 Chitty Pi. [4th Ed.] 1028), 
 but that, after the case of Gledstone v. Hewitt (1831) 1 C. & J. 565, from 
 which it appeared that the bailment in detinue was immaterial, he could not 
 support the plea. 
 
 See also Junes v. Littlefield (1S32) 3 Yerg. (Tenn.) 133 ; Rucker v. Hamilton 
 (1835) 3 Daua (Ky.) 36.
 
 302 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 between the parties, the rest having been delivered up to the plaintiff after 
 the coiumencenient of the action. There was no evidence as to what had 
 become of the missing deed, or how it was lost, except that the defendant 
 stated that he had not seen it since the date of its execution in 1853. When 
 the demand was made in 1857, the defendant claimed a certain sum for costs, 
 which the plaintiff paid under protest. 
 
 The jury returned a verdict for the plaintiff on the second count, with 
 £85. damages, and for the defendant upon the first count, the jury 
 leaving it in doubt whether the loss of the deed occurred before or 
 after the demand. 
 
 David Keane, for the plaintiff, obtained a rule calling upon the de- 
 fendant to show cause why a verdict should not be entered for the 
 plaintiff' on the issues on the first count, for £15. damages, pursuant 
 to leave reserved to him at the trial, on the grounds, — first, that the 
 defendant, as the immediate bailee of the deed, was answerable in det- 
 inue though he had lost the deed. 
 
 Williams, j, * * * All the authorities, from the most ancient 
 time, show that it is no answer to an action of detinue, when a demand 
 is made for the re-delivery of the chattel, to say that the defendant is 
 unable to comply with the demand by reason of his own breach of 
 duty.^- In the present case, the deed which is the subject of the de- 
 mand in the first count was delivered to the defendant und^r cir- 
 cumstances which made it his duty to use ordinary care that it should 
 be forthcoming when wanted. By the defendant's omission to per- 
 form that duty, the deed was not forthcoming when demanded. It 
 clearly is no answer for the defendant to say he has lost it. The rule 
 must be made absolute to enter the verdict for the plaintiff. 
 
 The defendant appealed against this decision, and the case came on 
 for argument in the Exchequer Chamber, before Pollock, C. B., 
 Crompton, J., Martin, B., Bramwell, B., Watson, B., and Hill, J.^^ 
 
 12 "Inability to redeliver was indeed urged in one case as an objection to 
 the action, although the inability was due to the active misconduct of the 
 defendant : 'Brown. If you bail to me a thing which is wastable, as a tun 
 of wine, and I perchance drink it up with other good fellows, you cannot have 
 detinue, inasmuch as the wine is no longer in rerum natura, but you may 
 have account before auditors, and the value shall be found.' This, Newton, 
 C. J., denied, saying detinue was tbe proper remedy. It may be urged that 
 tlie detinue in this case was founded upon a tort. But in truth the gist of the 
 action was the refusal to deliver on request." Ames, History of Trover, 11 
 Harv. Law liev. 375; 3 Anglo- Am. Legal Essays, 433. 
 
 13 The arguments of counsel and the opinion of Cockburn, C. J., with whom 
 Williams and Willis, JJ., in the Common Pleas concurred, are omitted. In 
 the Exchequer Chamber, the opinions of Pollock, C. B., Crompton, J., and 
 Watson, B.. are omitted. 
 
 Compare Williams v. Gesse (1837) 3 Bing. N. C. 849, 43 R. R. 822, given infra. 
 
 And see Wilkinson v. Verity (1871) L. R. G C. I'. 20<! : P. delivered to D. 
 certain goods for safe-keeping. D. wrongfully sold them. More than six 
 years after the date of the sale, P., being still in ignorance of this sale, de- 
 manded the goods of D., who refused to return them. Held, in an action of 
 detinue fi»r the goods, that tJte statute of limitations ran frt>ni the date (^f the 
 deniMiid and refusal, and not from the date of the sale. For the historical 
 explanation of this, see Ames' History of Trover, 11 Ilarv. Law Rev. 370 ; 
 3 Anglo-Am. Leg. Essays, 433.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 303 
 
 BramwELL, B. If there had been anything more important in dis- 
 pute here than a mere question of costs, I should have hked to look 
 into it a little more before deciding it. If the defendant has by his 
 own default become dispossessed of or lost the deed, it may be that 
 he may be considered as having wrongfully detained it. I am not pre- 
 pared to say tliat there was sufhcient evidence of negligence on the 
 part of the defendant. All that appears, is, that the deed was depos- 
 ited with him by his client, and that it is lost. I must confess I have 
 not information enough about the matter to say whether the judgment 
 of the Court below was right or not. 
 
 Hill, J. It is conceded that detinue will lie against one who has 
 parted with a deed which has been intrusted to him for safe custody. 
 I am utterly at a loss to discover any difference between the case of 
 an attorney who has lost a deed intrusted to him for safe custody, 
 without any explanation as to the circumstances under which it was 
 lost, and an attorney who has voluntarily parted with the deed to a 
 third person. In Comyns's Digest, Pleader (2 X, 12), speaking of this 
 form of action, where the deed has been lost, the Chief Baron says : 
 "If detinue be for charters, the verdict must find some damages if the 
 
 charters be lost," citing Fisher v. , Saville, 29. I think the 
 
 judgment of the Court below should be affirmed. 
 
 Judgment affirmed. 
 
 NYBERG v. HAXDELAAR. 
 
 (In the Court of Appeal [1S92] 2 Q. B. 202.) 
 
 The action was brought to recover the value of a half-share in a 
 gold enamel box jointly owmed by the plaintiff and one Frankenheim, 
 or a return of the box and damages for its detention. The plaintiff" 
 in the year 1889 purchased the box, and afterwards sold a half-share 
 in it to Frankenheim, and it was agreed between them that the plaintiff' 
 should retain possession of the box until it should be sold. At a later 
 period the box was entrusted by the plaintiff to Frankenheim for the 
 purpose of being taken to Christie's Auction Rooms, where it was to 
 be sold. Frankenheim owed the defendant money, and delivered the 
 box to the defendant by way of security for the debt. On the trial, 
 the jury found that Frankenheim pledged his half -share in the box 
 with the defendant for value, and the learned judge on further con- 
 sideration gave judgment for the defendant, on the ground that the 
 plaintiff was not entitled to succeed in trover or detinue, and that the 
 special agreement that the plaintiff" and not Frankenheim was to have 
 possession of the box did not do away with the right of property 
 which the latter passed to the defendant. The plaintiff" appealed. 
 
 Lopes, L. J. The law of detinue, in my opinion, is that a person en- 
 titled to possession of a personal chattel can maintain the action when 
 he has a right to immediate possession arising out of an absolute or
 
 304 TORTS THROUGH ACTS OP ABSOLUTE LIABILITY (Part 1 
 
 special property in the chattel. I have great difficulty in seeing how a 
 person can have a right to the immedfate possession of a chattel with- 
 out having some special property in it. A joint owner of goods can- 
 not maintain an action for the conversion of the goods against his 
 co-owner in respect of any act of the latter consistent with his owner- 
 ship. It follows that the plaintiff could not, in the absence of any 
 agreement as to possession of the box, have recovered it from the de- 
 fendant. But there w^as an agreement that he should be entitled to 
 the possession of the box until such time as it might be sold. What 
 happened was that the plaintiff" entrusted Frankenheim with the box 
 to take it to Christie's, where it was to have been sold. This Frank- 
 enheim did not do, but handed the box to the defendant as security 
 for a debt of his own. This transaction amounted to a bailment to 
 Frankenheim for a special purpose, which he did not carry out, and 
 on failure of the trust the plaintiff's right to immediate possession ac- 
 crued at once. I dissent, therefore, from the judgment of the Court 
 below, and think the appeal should be allowed. 
 Appeal allowed.^* 
 
 ANDERSON v. GOULDBERG. 
 
 (Supreme Court of Minnesota, 1S02. 51 Minn. 294, 53 N. W. 636.) 
 
 Replevin to recover certain logs. Verdict for plaintiff. The de- 
 fendants appeal from an order denying a new trial. 
 
 Mitchell, J. It is settled by the verdict of the jury that the logs 
 in controversy were not cut upon the land of the defendants, and con- 
 sequently that they were entire strangers to the property. For the 
 purposes of this appeal, we must also assume the fact to be (as there 
 was evidence from which the jury might have so found) that the plain- 
 tiffs obtained possession of the logs in the first instance by trespassing 
 upon the land of some third party. Therefore the only question is 
 whether bare possession of property, though wrongfully obtained, is 
 sufficient title to enable the party enjoying it to maintain replevin 
 against a mere stranger, who takes it from him. We had supposed 
 that this was settled in the affirmative as long ago, at least, as the early 
 case of Armory v. Delamirie,^^ so often cited on that point. When 
 it is said that to maintain replevin the plaintiff's possession must have 
 been lawful, it means merely that it must have been lawful as against 
 the person who deprived him of it ; and possession is good title against 
 all the world except those having a better title. Counsel says that pos- 
 session only raises a presumption of title, which, however, may be re- 
 butted. Rightly understood, this is correct ; but counsel misapplies it. 
 
 14 The arsunients of counsel are omitted. The concurring opinion of Fry, 
 L. J., is omitted. 
 
 V6 1 Strange, 504 (1722). As to the facts in this case, see infra, under 
 Trover and Conversion,
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 305 
 
 One who takes property from the possession of another can only rebut 
 this presumption by showing a superior title in himself, or in some way 
 connecting himself with one who has. One who has acquired the pos- 
 session of property, whether by finding, bailment, or by mere tort, 
 has a right to retain that possession as against a mere wrongdoer who 
 is a stranger to the property. Any other rule would lead to an endless 
 series of unlawful seizures and reprisals in every case where property 
 had once passed out of the possession of the rightful owner. 
 Order affirmed. 
 
 (B) Limits of Detinue and Replevin 
 COUPLEDIKE V. COUPLEDIKE. 
 
 (King's Bench, 1604. Cro. Jae. 39, 79 Reprint, SI.) 
 
 Error of a judgment in detinue in the Common Pleas. * * * 
 A second error assigned was, for that the writ supposeth deteiner 
 
 de una domo vocat. a bee-house, which cannot be, that detinue should 
 
 lie of a house. 
 
 Wherefore it was reversed.^" 
 
 NIBLET V. SMITH. 
 
 (Court of King's Bench, 1792, 4 T. R. 504, 100 Reprint, 1144.) 
 
 This was a replevin for taking the goods and chattels, to wit, one 
 lime-kiln, etc., of the plaintiff; to which there was an avowry for rent 
 in arrear. The plaintiff, in his plea in bar, said, that the lime-kiln 
 before and at the said time when, etc., was affixed to the freehold of 
 the piece or parcel of ground on which, etc., and as such was by law 
 exempt from any distress for the arrears of rent in the avowry men- 
 tioned, and ought not to have been distrained for the same, etc. To 
 this plea the defendant demurred generally. 
 
 Holroyd in support of the demurrer. The lime-kiln being affixed 
 to the freehold, no replevin will lie for it ; for if the defendant should 
 succeed, it could not be delivered to him under the writ of retorno ha- 
 bendo. In Co. Lit. 145b, it is said, that a replevin lies for goods and 
 chattels only; and a lime-kiln is as much affixed to the freehold as 
 doors, windows, or a furnace which are always considered as belonging 
 to the freehold. Bro. Abr. "Chattels," pi. 7. 
 
 Thd Court were of opinion that the plea in bar could not be sup- 
 ported, because it was a departure from the declaration. That tlie dec- 
 laration, treating the lime-kiln as a chattel, might possibly have been 
 true, because lime may be burnt in a portable oven, and the kiln need 
 
 1 6 The first error was not sustained. On the second objection, see Co. 
 Lit 286. 
 
 Hepb. Torts — 20
 
 306 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 not therefore necessarily be affixed to the freehold : but that, as the 
 plea in bar stated it to be affixed to the freehold, it was inconsistent 
 with the declaration. 
 
 Judgment for the defendant.^' 
 
 MENNIE V. BLAKE. 
 
 (Court of Queen's Bench, 1856. 6 El. & Bl. S42, 119 Reprint, 1078, 
 
 lOG R. R. 822.) 
 
 Replevin. Plea: non cepit. Issue thereon. 
 
 The cause came on to be tried before Crowder, J., at the last Spring 
 Assizes for Devon. The following account of the facts which then 
 appeared in evidence is taken from the judgment of this Court. 
 
 "One Facey was indebted to the plaintiff. He brought him £15. towards 
 I payment of the debt, but requested and obtained i^rmission to lay the 
 money out in the purchase of a horso and cart, which were to lie the prop- 
 erty of the plaintiff, but of which Facey was to have the possession and the 
 use, subject to such occasional use as plaintiff jnight require to have of tliem, 
 and to their being given up to plaintiff when he should demand them. Ac- 
 cordingly Facey made the purchase: the possession and the use were sub- 
 stantially with him; he fed, stabled and took care of the horse; there was 
 some evidence that his name was on the front of the cart; certainly plain- 
 tiff's was on the side ; under what circumstances placed there the evidence 
 was contradictory, the plaintiff alleging it to have been placed in the ordinary 
 way as an evidence of property, the defendant insinuating that it was so 
 placed in order to protect it from Facey's other creditors. It is not however 
 material, because on the one hand the plaintiff's property we take to be 
 indisputable, and on the other we do not think there is evidence enough to 
 charge the defendant with fraud or collusion in the circumstances under 
 which he obtained possession, and which we now proceed to state. 
 
 "Facey determined to emigrate ; and the defendant knew of his intention ; 
 but the plaintiff did not. The horse and cart were used in transporting 
 Facey's effects to the pier at which he was to embark ; and the defendant, 
 to whom he owed money for fodder supplied to tlie horse went with him to 
 procure payment if he could; at parting Facey delivered the horse and 
 cart to him, telling him to take them for the debt, but adding that he owed 
 the plaintiff' money also, and that, if he would discharge the debt due to tlie 
 defendant, which was much less than their value, he was to give tliem up to 
 him. In this manner the defendant acquired his possession. The plaintiff" for 
 some time remained in ignorance of what had passed ; and afterwards, com- 
 ing to the knowledge of it, demanded them; but the defendant refused to 
 deliver them unless his debt ^^■ere paid ; whereupon the plaintiff proceeded to 
 replevy the goods, and brought the present action," 
 
 Upon these facts the learned Judge directed a verdict for the plain- 
 tiff, with leave to move to enter a verdict for the defendant or a non- 
 suit, if under such circumstances replevin did not lie. 
 
 17 Accord: Ricketts v. Dorrel (1876) 55 Ind. 470: (Replevin to recover 
 fence rails which D. has unlawfully taken from the possession of P. and 
 used in the construction of a fence on U.'s land.) 
 
 Compare Silsbury v. McCoon (1850) 3 N. Y. 379, 53 Am. Dec. 307: (A quan- 
 tity of (Drn was taken from the owner by a willful trespasser and by him 
 converted into whisky,)
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 307 
 
 Montague Smith, in the ensuing term, obtained a rule nisi accord- 
 ingly. 
 
 Coleridge:, j. * * * The question raised is, whether there 
 was any taking of the horse and cart from the plaintiff by the defend- 
 ant? And we are of opinion, looking to the nature and purpose of 
 the action of replevin, that there was no taking in the sense in which 
 that word must be understood in this issue. The whole proceeding 
 of replevin, at common law, is distinguished from that in trespass in 
 this, among other things : tliat, while the latter is intended to procure 
 a compensation in damages for goods wrongfully taken out of the ac- 
 tual or constructive possession of the plaintiff, the object of the for- 
 mer is to procure the restitution of the goods themselves ; and this it 
 eft'ects by preliminary ex parte interference by the officer of the law 
 with the possession. This being done, the action of replevin, apart 
 from the replevin itself, is again distinguished from trespass by this, 
 that, at the time of declaring, the supposed wrongful possession has 
 been put an end to, and the litigation proceeds for the purpose of de- 
 ciding whether he, who by the supposition was originally possessed, 
 and out of whose possession the goods were taken, and to whom they 
 have been restored, ought to retain that possession, or whether it ought 
 to be restored to the defendant. Blackstone (3 Comm. 146), after ob- 
 serving that the Mirror ascribes the invention of this proceeding to 
 Glanvil, says that it "obtains only in one instance of an unlawful tak- 
 ing, that of a wrongful distress." If by this expression he only meant 
 that in practice it was not usual to have recourse to replevin except in 
 the case of a distress alleged to be wrongful, he was probably justi- 
 fied by the fact. But there are not wanting authorities to shew that 
 the remedy by replevin was not so confined ; and in the case of Shan- 
 non V. Shannon, 1 Sch. & Lef. 324, 327, Lord Redesdale finds fault 
 with this passage, saying that the definition is "too narrow," and that 
 "many old authorities will be found in the books of replevin being 
 brought where there was no distress." * * * 
 
 From a review of these and other authorities which might be added, 
 it may appear not settled whether originally a replevy lay in case of 
 other takings than by distress. Nor is it necessary to decide that ques- 
 tion now; for, at all events, it seems clear that replevin is not main- 
 tainable unless in a case in which there has been first a taking out of 
 the possession of the owner. This stands upon authority and the rea- 
 son of the thing. We have referred already to a dictum of Lord 
 Redesdale. Three cases are to be found — Ex parte Chamberlain, 1 
 Sch. & Lef. 320, In re Wilson's, 1 Sch. & Lef. 320, note fa), and Shan- 
 non V. Shannon, 1 Sch. & Lef. 32-1 — in which the law is so laid down 
 by Lord Redesdale. And these are cases of great authority ; for that 
 very learned Judge found the practice in Ireland the other way. He 
 felt the inconvenience and injustice of it: he consulted with the I^ord 
 Chief Justice and obtained the opinion of the other Judges, and then
 
 308 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 pronounced the true rule, which, in one of these cases. In re Wilson's, 
 1 Sch. & Lef. 320, note (a), he thus states : The writ of replevin "is 
 merely meant to apply to this case, viz. where A. takes goods wrong- 
 fully from B. and B. applies to have them redelivered to him upon 
 giving security until it shall appear whether A. has taken them right- 
 fully. But if A. be in possession of goods, in which B. claims a prop- 
 erty, this is not the writ to try that right." In the course of these 
 cases his Lordship points out how replevin proceeds against the gen- 
 eral presumption of law in favour of possession ; how it casts upon 
 him who was in possession the burthen of first proving his right ; and 
 he puts (Ex parte Chamberlain, 1 Sch. & Lef. 322), as a reductio ad 
 absurdum, a case not unlike the present. "Suppose," says he, "the 
 case of a person having a lien on goods in his possession, and who in- 
 sists on being paid before he delivers them up : I do not see on the 
 principles insisted on, why a writ of replevin may not issue in that 
 case." The reason of the thing is equally decisive : as a general rule 
 it is just that a party in the peaceable possession of land or goods 
 should remain undisturbed, either by the party claiming adversely or 
 by the officers of the law, until the right be determined and the pos- 
 session shewn to be unlawful. But, where, either by distress or mere- 
 ly by a strong hand, the peaceable possession has been disturbed, an 
 exceptional case arises ; and it may be just that, even before any deter- 
 mination of the right, the law should interpose to replace the parties 
 in the condition in which they were before the act done, security being 
 taken that the right shall be tried, and the goods be forthcoming to 
 abide the decision. Whatever may be thought of Lord Coke's etymol- 
 ogy, what he says of replegiare, while it shews his understanding of 
 the law, gives a true account of what replevin is, a redelivery to the 
 former possessor on pledges found. But this is applicable clearly to 
 exceptional cases only. If, wherever a party asserts a right to goods 
 in the peaceable possession of another, he has an election to take them 
 from him by a replevin, it is obvious that the most crying injustice 
 might not infrequently result. Now, in the present case, Facey was 
 not the servant of the plaintiff; nor was his possession merely the pos- 
 session of the plaintiff; he was the bailee of the plaintiff, and had a 
 lawful possession from the delivery of the owner, which conferred on 
 him a special property. This did not authorize him to transfer his pos- 
 session to the defendant ; nor could he give him a lien for his debt 
 against the paramount right of the true owner the bailor : after a de- 
 mand and refusal, upon the admitted facts in this case, the plaintiff 
 could clearly have maintained trover against the defendant ; but yet 
 there was nothing wrongful in his accepting the possession from Fa- 
 cey ; he acquired that possession neither by fraud nor violence ; at 
 least none is found, and we cannot presume either; and he retained 
 the possession on a ground which might justify the retainer until the 
 alleged ownership was proved. This therefore, in our opinion, was a
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 309 
 
 case in which the plaintiff could not proceed by replevin, but should 
 have proved his prior right in trover or detinue. * * * 
 
 The rule should be absolute, not to enter a verdict, but a nonsuit.^^ 
 
 ]\IAXHA^I v. DAY. 
 
 (Supreme Judicial Court of Massachusetts, 1860. 16 Gray, 213, 
 
 77 Am. Dec. 409.) 
 
 Action of tort against a deputy sheriff for refusing to serve a writ 
 of replevin, sued out by the plaintiff' against George Spring, to recover 
 possession of a diamond pin with gold settings. 
 
 At the trial in the superior court, it appeared that, when the officer 
 was asked to serve the writ of replevin. Spring was wearing the pin 
 as a personal ornament in the bosom of his shirt, with his coat but- 
 toned over it so as to conceal it from sight, and threatened resistance 
 if the officer should attempt to take it from him. Lord, J., ruled that 
 these facts did not excuse the officer, and he alleged exceptions. 
 
 BiGELOW, C. J. Replevin at common law is founded on the wrong- 
 ful taking of personal property ; and is a remedy, by w^hich the per- 
 son, from whom goods or chattels are taken, may be restored to the 
 possession of them until the question of title can be judicially tried 
 and determined. * * * 
 
 In our practice it is often resorted to, instead of an action of tres- 
 pass or trover, as a simple and convenient method of trying the title 
 to goods and chattels. It is a purely personal action, which any party 
 may commence, as of right, by suing out a writ, without preliminary 
 oath or other formality, in like manner as other civil suits are brought. 
 Its peculiar and distinguishing characteristic is, that it takes the prop- 
 erty in controversy from him who by his possession of it is prima 
 facie its owner, and places it in the hands of the plaintiff', substituting 
 in its stead a personal security in the form of a bond to the defendant 
 for its return if such shall be the final judgment of the court. 
 
 But although replevin is at common law a general remedy to recover 
 property wrongfully taken, it does not follov/ that it is of universal ap- 
 plication, so that it can be eff'ectively used in all cases, whatever may 
 be the condition or situation of the property. Remedies are always to 
 be used and applied in subordination to the great principles of right, 
 which it is the object of the law primarily to secure and protect. Re- 
 
 18 Part of the opinion is omitted. See Ames, The History of Trover, 11 
 Harv. Law Rev. 374 ; 3 Anglo-Am. Legal Ivssays, 431. See also 34 Cyc. 1352- 
 13.54, 1359, notes 14 and 16. to the general effect that in many states of the 
 Union, either with or without the aid of a statute, replevin has become 
 concurrent with detinue. 
 
 That replevin now lies where trespass or trover can be maintained, see 
 34 Cyc. i::;o5. And, in general, 42 Cent. Dig. § 1, and 17 Dec. Dig. § 1; 
 Key-No. "Replevin," § 1.
 
 310 TOKTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 dress is not to be obtained by doing a wrong. A person cannot use 
 the process of law in vindication of his own rights in such way as to 
 invade those of another. To illustrate : A creditor can in certain cas- 
 es arrest the body of his debtor; this is a clear legal right; but it can- 
 not be exercised by a forcible entry of the debtor's dwelling, because 
 such an act would infringe on another right equally clear, by which 
 a man's house is made a place of shelter and repose, which no one 
 armed only with civil process can break into or disturb. So a criminal 
 is liable to arrest and to have his person and premises searched ; the 
 good order and safety of the community require that this right should 
 be enforced ; but it cannot be done without warrant under oath, spe- 
 cially designating the person and object of search and arrest, because 
 that would be contrary to the right of every person to be secure against 
 unreasonable searches and seizures. The truth is, that in determining 
 whether a particular remedy is applicable or appropriate in any case, 
 it is not sufficient to consider whether it will be effectual to redress the 
 grievance or vindicate the right of one party. An equally essential and 
 necessary inquiry is to ascertain whether it can be employed without 
 an infringement of the rights and privileges of the other party. If it can- 
 not be, then it follows that the law will not sanction it. There are 
 cases, no doubt, in which legal process, lawfully used, may cause in- 
 convenience and hardship, and even operate oppressively on those 
 against whom it is directed ; but we know of no case in which it can 
 be legitimately made the instrument of wrong, or the means by which 
 private rights can be invaded or taken away. 
 
 It seems to us, on careful consideration, that this action cannot be 
 maintained without coming in conflict with this plain and elementary 
 principle. The proposition on which the plaintiff" must rest his case 
 amounts, when examined, to this : that on a process in its nature pure- 
 ly civil an officer is bound to seize and search the person of the de- 
 fendant. The statement of such a proposition carries with it a suffi- 
 cient refutation. Its practical recognition would lead to a palpable in- 
 fraction of the cardinal principle by which, under our constitution and 
 laws, the sanctity of the person is guarded from unfounded and 
 groundless searches and arrests. There is nothing in the nature of a 
 writ of replevin, which gives to it any efficiency or power over the 
 person, superior to other civil process. It may be sued out at the will 
 of any person who sees fit to assert a title to property in the possession 
 of another ; no oath or other sanction is required to prevent its mis- 
 use or abuse ; even the right of property, which it seeks to establish, 
 may on investigation prove to be wholly without foundation. How 
 then can it be contended that it confers on an officer an authority, 
 which cannot be exercised even under a criminal process, except when 
 it is verified by oath and issued with the formalities required by the 
 constitution and laws ? 
 
 Certainly no precedent or authority has been cited, and none, we 
 believe, can be found, that sustains the doctrine which the plaintiff
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 311 
 
 must establish in order to maintain this action. In England, as we 
 have already said, the process of replevin is used only in cases where 
 property has been distrained, for the purpose of trying the legality of 
 the seizure, and is confined chiefly, if not entirely, to beasts of the 
 field and of the plough, implements of husbandry, household goods, 
 and other chattels, not found or used on the person ; and in Ireland, 
 where the writ of replevin at common law is still a common remedy 
 to try the title of goods and chattels in any way wrongfully taken, no 
 case is found in which it has been used for the purpose of taking ar- 
 ticles of clothing, or of personal use or adornment, from the person 
 of the defendant. In a matter of this sort, relating, as it does, to the 
 extent of the power conferred on an officer in the service of a process 
 known to the common law from the earliest period, we regard the en- 
 tire absence of authority in support of the right claimed by the plain- 
 tiff to be a strong argument against its existence. =i= * * 
 
 The exercise of such a power is not only contrary to right and un- 
 supported by authority, but it is also inconsistent with sound policy. 
 Practical jurisprudence looks, in the application of remedies, to the 
 peace, good order and decorum of society. The evils which would flow 
 from the unrestricted use of a civil process to search the person and to 
 seize from it articles of dress or use or ornament are obvious and mani- 
 fold. It would bring the officer of law in direct contact with the citi- 
 zen, under circumstances well calculated to excite irritation and anger, 
 and lead directly to breaches of the peace. It would place in the hands 
 of wicked and evil disposed persons the means of annoyance and in- 
 jury, and the power to interfere wantonly and without just cause with 
 the most sacred rights of the person. If the right exists at all, it can- 
 not be limited to particular articles of use or adornment, but must ex- 
 tend to every article of apparel worn by persons of either sex, and 
 might be lawfully exercised at the sacrifice of decency and the propri- 
 eties of life. The reasons on which the restraint upon the power of 
 taking articles from the person by distress or by attachment and exe- 
 cution is founded apply with equal force to the right to take them by 
 replevin. Sunbolf v. Alford, 3 M. & W. 248 ; Mack v. Parks, 8 Gray, 
 517,69 Am. Dec. 267. 
 
 Nor is there any necessity for giving such a remedy to recover prop- 
 erty of this nature. A bill in equity under Rev. Sts. c. 81, § 8 (Gen. 
 Sts. c. 113, § 2), to compel the redelivery of goods or chattels taken or 
 detained from the owner and withheld so that the same cannot be re- 
 plevied, would afford ample redress in all cases where the property is 
 so situated that it cannot be taken without an interference with the 
 person. 
 
 Exceptions sustained. 
 
 At a second trial in the sui5erior court, the plaintiff conceded that, 
 when the defenflant was askerl to serve the rei)levin writ, the pin was 
 affixed to the bosom of Spring's shirt, in the manner in which breast-
 
 312 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 pins are usually worn; but offered to prove that Spring had placed 
 it there, not as an article of wearing apparel or personal ornament, but 
 for the sole purpose of keeping it out of the reach of legal process, 
 knowing that he had no valid title to it; and that the defendant might 
 have seized it. But IMorton, J., excluded the evidence, and ruled that, 
 under the circumstances conceded and offered to be proved, the de- 
 fendant was excused from serving the writ of replevin. The plaintiff 
 submitted to a verdict for the defendant, and alleged exceptions, which 
 were argued at October term, 1861. 
 
 Hoar, for the plaintiff'. The plaintiff refers to the authorities and 
 suggestions at the first argument. The question now presented is 
 whether any article small enough to be kept by a defendant on his per- 
 son is irrepleviable. Can a landlord distrain his tenant's watch for 
 rent, and by keeping it on his person prevent the legality of the distress 
 from being tested? If a child, too young to be punished for larceny, 
 seizes in a jeweller's shop a valuable diamond, is there no legal process 
 by which the possession can be restored to the proper owner? 
 
 BiGELOW, C. J. The facts now offered to be proved in support of 
 this action do not change the result at which we arrived in considering 
 the case as presented at the former hearing. It was then determined 
 that replevin did not lie at common law for articles of dress or per- 
 sonal adornment, alleged to have been unlawfully taken, and which 
 were actually worn on the person at the time when the service of the 
 writ of replevin was attempted. The necessity of securing immunity 
 to the person from unreasonable searches and seizures, and the impol- 
 icy of allowing an unlimited power to an officer to take on civil pro- 
 cess articles worn on the person, forbid the extension of the remedy by 
 replevin to property so used and situated. A bill in equity for prop- 
 erty unlawfully withheld affords an ample remedy to recover posses- 
 sion of property of such a nature.^^ 
 
 Exceptions overruled. 
 
 SAGER V. BLAIN. 
 
 (Court of Appeals of New York, 1S71. 44 N. Y. 445.) 
 
 Appeal from an order of the General Term of the Supreme Court, 
 in the second district, granting a new trial and reversing an order of 
 the City Court of Brooklyn, denying a new trial. 
 
 The action was replevin, to recover possession of certain United 
 States treasury notes, particularly described in the complaint, "and 
 also the sum of $9,112.19, delivered by Charles Meigs & Son to the 
 defendant, with damages for the withholding thereof." 
 
 The testimony being closed, the court charged the jury that the 
 
 IP Part of the opinion is omittod. Compare SibecU v. McTieruan (1010) 94 
 Arlc. 1, 125 S. W. 136 ; and see 34 Cyc. 1302, notes 74, 75.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 313 
 
 plaintiff was not entitled to recover in this action the $9,112.19 claimed 
 in the complaint, and directed the jury to find a verdict for the dt- 
 fendant, Rhoda E. Blain, for that amount; to which charge and di- 
 rection the plaintiff's counsel excepted. -° 
 
 Hunt, C. The embarrassments of this case have arisen, chiefly, 
 from the selection of an improper form of action. The plaintiff, 
 claiming to have purchased from the defendant, Isaac W. Blain, sev- 
 eral government bonds, and a balance of money theretofore paid by 
 Messrs. Meigs & Co. to his wife, upon his order, commences an action 
 of replevin, to obtain this property from Mrs. Blain. The government 
 bonds are specific articles, distinguishable from all others of a like 
 character by dates and numbers. As to these, an action of replevin 
 for their recovery was well enough. The plaintiff desired to avail 
 himself of the advantages which the law gives when the defendant 
 improperly withholds property belonging to the plaintiff". One of these 
 was the right of seizing the property in advance, and retaining it until 
 the defendant shall give security for its return. The other is the right 
 of imprisonment, in the event of not paying the judgment recovered. 
 For the purpose of recovering the money, the remedy proposed and 
 the advantages sought were entirely inapplicable. On the order of 
 her husband, Meigs & Co. had given to Airs. Blain their check for 
 $9,000, on which she had drawn the money from the bank. Whether 
 she obtained the bills of the bank, the notes of the government, or 
 specie, does not appear. Whatever she obtained, she kept herself, and 
 it was never under the control or in the possession of the plaintiff or 
 his assignor, ]\Ir. Blain. 
 
 The claim against Mrs. B., under such circumstances, was simply 
 for money had and received. It was to be pursued in the ordinary 
 manner for the collection of a debt. The extraordinary remedies giv- 
 en in prosecuting for a tort could not be invoked. If by attempting 
 to use them the plaintiff has involved himself in difficulty, he must 
 suffer the consequences. 
 
 When the proper action is brought, the rights of the parties will be 
 determined without difficulty. If this money was given to Mrs. Blain 
 by her husband, he being free from debt, I see no reason why she 
 cannot hold it. If it was in her hands as the mere depositary of her 
 husband, it was subject to his order and passed by the transfer to the 
 plaintiff. This question has not been, and could not be, decided in this 
 action. The action of replevin or trover is based upon an improper 
 detention or conversion of the plaintiff's property. Proof of owner- 
 ship will not of itself authorize a recovery. The plaintiff may prove 
 undoubted ownership ; but, unless he proves a conversion also, or 
 a refusal to deliver, he cannot recover. There are many cases to this 
 effect in the books. Packard v. Getman, 4 Wend. 613, 21 Am. Dec. 
 
 20 The statement of facts is abridged. The concurring opinion of Leonard, 
 CJ., is omitted.
 
 314 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 166; Hallenbake v. Fish, 8 Wend. 547, 24 Am. Dec. 88. His action 
 for the recovery of a specific $9,000, alleged to be detained from him, 
 is no bar to an action for $9,000 of debt generally due to him from the 
 defendant. As a debt merely it cannot be recovered in the present ac- 
 tion. The record cannot, therefore, be a bar to an action for the re- 
 covery of the debts simply. Spalding v. Spalding, 3 How. Prac. 297 ; 
 Seymour v. \'an Curen, 18 How. Prac. 94. 
 
 The record does not show whether, in the present case, the plaintiff 
 exercised the right of preliminary seizure, which the law authorizes in 
 an action of replevin. It will illustrate the case if we assume that he 
 did. Let us assume that Mrs. Blain drew this $9,000, upon the check 
 of Meigs & Co., in legal tender notes. Assume, further, that she re- 
 tained the notes in her possession, and that, by the aid of a friend 
 within the garrison, the sheriff was able to take the notes into his pos- 
 session upon the replevin papers in the suit.- The defendant, Mrs. 
 Blain, not being able to give security for their return, they remain in 
 the plaintiff's possession at the time of the trial. Upon the trial it is 
 held that, as to this money, an action of replevin will not lie ; that, as 
 to that portion of the demand, judgment must go against him. He 
 has quite mistaken his remedy. Both parties must be restored to the 
 statu quo ante helium. The plaintiff must give back the money. Mrs. 
 Blain is entitled to receive it. This is precisely what was done at the 
 trial. In my judgment, the direction was right in form as well as in 
 substance. It stated the rights of the parties in this suit and nothing 
 more. If an ordinary action for money assigned to him shall here- 
 after be brought by the plaintiff against Mrs. Blain, there will be found 
 nothing in this record to prevent its decision upon the merits. Should 
 there be any doubt about the effect of this verdict, which I do not my- 
 self anticipate, the record is still open to amendment. No judgment 
 has been entered upon the verdict, and it would be within the author- 
 ity of the Special Term to direct the insertion of a statement of the 
 ground of the judgment, viz., the improper form of action, or that the 
 judgment be simply that the plaintiff' cannot recover the $9,000. 
 
 Several questions of evidence were presented, but I see no error 
 that requires our consideration. 
 
 The order of the General Term should be reversed, and judgment 
 entered upon the verdict of the City Court.^^ 
 
 21 Compare Graves v. Dudley (ISnn) 20 N. Y. 76, 79: "This action is bronuht 
 to refover the possession of the liills, and it is insisted that such an action will 
 not lie where the subject-nintter is money. The authorities relied upon by the 
 counsel, arose in the action of detinue, when that was the remedy provided by 
 law for the recovery of personal property unlawfully detained. The cases are 
 analogous to the action given by the Code to recover the possession of like 
 property similarly detained, and the same principle should be applied to the 
 latter action. Coke upon FJltleton (I'SC.b), speaking of the writ of detinue, 
 says: 'In this writ the plainlirt shall recover the thing detained, iuid there- 
 fore it must be so certain as it may be known, and for that cause it lyeth not 
 for money out of a bag or chest ; and so of corn out of a sack, and the like ; 
 these cannot be known from other.' This shows that money could be recov-
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 315 
 
 WARTEN V. STRANE. 
 
 (Supreme Court of Alabama, 1SS6. 82 Ala. 311, 8 South. 2.31.) 
 
 Detinue for '"one lot of corn in the shuck, to wit, 76 bushels in de- 
 fendant's crib nearest his dwelling, lately bought by plaintifit' from de- 
 fendant." On the trial the plaintiff testified that, the defendant being 
 indebted to him, a settlement was made by his clerk, George Gray, 
 by which the account "was paid by a credit for a gin, two mules, one 
 horse, and 100 bushels of corn in the shuck at defendant's crib, at the 
 rate of 60 cents per bushel, leaving a balance of $25 due the defend- 
 ant, which he afterwards took out in plaintifif's store. * * * The 
 corn at the crib was to be his property. He had never seen the corn. 
 The trade was made by his clerk, who died last fall, but he and the 
 defendant, in January, 1885, talked over the trade thus made with said 
 Gray." The evidence as to the trade being made by said Gray was 
 excluded. The plaintiff was then asked "whether the corn he bought 
 of the defendant was 100 bushels to itself, or part of a large quantity." 
 He replied that he did not personally know whether the corn was in 
 a lot by itself ; that the defendant told him, in January, 1885, that the 
 corn was in his west crib, separated from his other corn, and that said 
 Gray told him when he returned from making the trade that he 
 bought the lot of corn in the west crib, and showed him the dimensions 
 thereof. The court excluded what Gray said to the plaintiff. * * * 
 There was a verdict for the defendant and the plaintiff appealed. 
 
 SoMERViLLE, J. 1. The principle is familiar that where there is a 
 contract of sale of personal property, and anything remains to be done 
 to individualize and identify the particular property intended to be 
 sold, such as counting, weighing, measuring, or separating from a lar- 
 ger mass or bulk, no title passes to the purchaser, such as will main- 
 tain in his favor an action of detinue or trover. This is for the simple 
 reason that the particular part of the property or chattels contracted 
 to be sold and delivered cannot be ascertained by precise identification. 
 Bank v. Fry, 69 Ala. 348, s. c, 75 Ala. 473 ; Shealy v. Edwards, 73 
 Ala. 175, 180, 49 Am. Rep. 43. The charge of the court, in reference 
 to this phase of the case, was in harmony with this well-settled rule 
 governing sales of personal property, and was free from error. 
 
 ered In the action of detinue, the same as corn ; that is where it could be 
 identified. The same rule applies to all personal property, and to maintain an 
 action for its recovery it must be identified so tliat delivery of the specific 
 goods to which the party is entitled may be made." Per Grover, J. 
 
 22 Only so nnich of the case is sivcn as relates to the one point. The case 
 was reversed on another point, and remanded.
 
 316 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 SECTION 2.— AFTER THE STATUTE OF WESTMINSTER 
 
 THE SECOND 
 
 I. Historical 
 
 Apparently, the inventiveness of the Chancellor and judges in the 
 matter of making new writs had come to an end in the latter half of 
 the thirteenth century. At any rate, there were complaints in Parlia- 
 ment of suitors being turned away empty-handed because there was no 
 writ to suit their cases. Accordingly, the great Statute of Westmin- 
 ster the Second sought to provide a remedy by enacting that "when- 
 soever from henceforth it shall fortune in the Chancery, that in one 
 case a writ is found, and in like case falling under like law, and re- 
 quiring like remedy, is found none, the Clerks of the Chancery shall 
 / agree in making a writ" (and, if they do not there is to be an appeal 
 ^ to Parliament).-^ 
 
 This enactment, though it appears only at the end of a chapter on 
 special cases, seems to have been taken as a general authority for the 
 expansion of legal remedies ; and under it were formed many new 
 writs on the analogy of the older writs found in the Register. These 
 new writs were all grouped together under the name of "Case" ; ap- 
 parently from the words used in the Statute of Westminster the Sec- 
 
 23 The Statute of Westmiuster the Second, made Anno 13 Edw. I, Stat. 1, 
 and Anno. Dom. 12S5. 
 
 "Whereas of late our Lord the King, in the Quiuzim of Saint John Baptist, 
 the Sixth Year of his Reign, calling together the Prelates, Earls, Barons, and 
 his Council at Gloucester, and considering that divers of this Realm were dis- 
 herited, by Reason that in many Cases, where Remedy should have been had, 
 there was none provided by him nor his Predecessors, ordained certain Stat- 
 utes right necessary and profitable for his Realm, whereby the People of Eng- 
 land and Ireland, being Subjects unto his Power, have obtained more speedy 
 Justice in their Oppressions, than they had before ; and certain Cases, wherein 
 the Law failed, did remain undetermined, and some remained to be enacted, 
 that were for the Reformation of the Oppressions of the People: Our liord the 
 King in his Parliament, after the Feast of Easter, holden the Thirteenth Year 
 of his Reign at Westminster, caused many Oppressions of the People, and 
 Defaults of the Laws, for the accomplishment of the said Statutes of Glouces- 
 ter, to be rehearsed, and thereupon did provide certain Acts, as shall appear 
 here following: * * * 
 
 "Chap. xxiv. * * * 2. And whensoever from henceforth it shall happen 
 in the Chancery that in one case a writ is foinid and in a like case [in con- 
 simili casu] falling under the .same right and requiring a similar remedy 
 [siuuli romedio] a writ is lacking, the clerks of the Chancery shall agree in 
 making a writ, or adjourn the complainants to the next parliament, and they 
 .shall write out the ca.ses in which they cannot agree and refer them to the 
 next parliament, and let a writ be made with the consent of the learned in 
 the law, lest it happen thereafter that the King's Court [Curia] be long de- 
 ficient in doing justice to the comi)lainants." 
 
 Stats, at Large (Pickering's Ed.) 17(>2, vol. 1, pp. 1G3, 197, with a few varia- 
 tions from the translation in Pickering.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 317 
 
 end — "in consimili casu." Another feature common to them all was 
 that each was framed on the model of a specific older writ ; enlarging 
 its scope by omitting one or more of the technical requirements of the 
 older document.-^ 
 
 Jenks, Short Hist. Eng. Law, 136. 
 
 2 4 The Statute of Westminster the Second contains, in its twenty-fourth 
 chapter, a clause of which lawyers have long recognized the importance, but 
 which lay historians are too apt to regard as mere technical jargon. Carefully 
 concealed under the guise of an administrative regulation, the Statute lays it 
 down, that the chancery officials, through whose hands must pass every royal 
 writ, which was then, and still is, the normal beginning of every action in the 
 royal courts, need no longer be guided by a strict adherence to precedent in 
 the issue of these documents. It is sufficient if the remedy sought and the 
 circumstances of the case are like those for which writs have previously been 
 issued. In other words, principle, not precedent, is henceforth to guide the 
 Chancellor and his officials in the issue of writs. 
 
 To a layman, impatient of the intricacies of legal history, such a direction 
 may seem the most obvious piece of official platitude. In truth, it covered a 
 daring attempt at completing, by a master stroke, a revolution which had been 
 gradually proceeding during the twelfth and thirteenth centuries. Once more 
 it is necessary to remind the reader, that the conception of the Crown, as the 
 sole fountain of justice, is a very modern conception in legal history. The 
 Crown in the later Middle Ages was but one of many competitors for the prof- 
 itable business of judicature. The Church, the feudal nobles, the chartered 
 boi'oughs, the merchant guilds, the shire and hundred moots, were all rivals, 
 more or less formidable. And any premature attempt on the part of the Crown 
 to claim universal and exclusive jurisdiction would assuredly have led to the 
 fiercest opposition, even if it had not resulted in the dissolution of the State. 
 Time was on the side of the Crown ; but the King had to walk warily, and 
 to be content for a long time with small things. Bit by bit, as chances offered, 
 the royal officials filched the business of their rivals ; and, as each claim was 
 established, it was carefully enshrined as a precedent in that Register of Writs, 
 which was one of the most precious possessions of the royal chancery. If an 
 intending litigant could bring his case within the terms of a registered writ, 
 well and good. If not, the King's courts could do nothing for him. He might 
 have the best case in the world from a moral, or even from a legal point of 
 view. But his remedy, if any, lay elsewhere. With sorrowful hearts, for they 
 disliked "turning away business," the chancery officials regretted that they 
 could not supply the desired article. The officials knew that their path was 
 beset with dangers. The bold assertion of Henry II, that no lawsuit touching 
 the title to freehold could be commenced without a royal writ, had played no 
 mean part in stirring the baronial rising under John ; and the claim had been 
 solemnly renounced in the Great Charter. Now, perhaps, we are in a position 
 to understand something of the audacity of the consimilis casus clause of the 
 Statute of Westminster the Second, which, if acted upon to its full extent, 
 would have left it open to ingenious chancery officials to discover analogies of 
 existing precedents in the case of every intending litigant. But its compara- 
 tive failure is another signal proof that sound legislation is little more than 
 the official consecration of enlightened public opinion, and that "fancy" or pre- 
 mature reforms are mere waste of words. The opposition to the full use of 
 the clause came, not merely from feudal and clerical tribunals, but from the 
 King's own judges, who refused to recognise as valid writs which, in their 
 view, departed too widely from precedent, no less than from the Parliaments 
 of the fourteenth century, profoundly jealous of a power which, under the 
 form of mere official documents, was really a power to declare the law of the 
 land. The final victory of the royal jurisdiction was won. by the skilful use 
 of fictions, by the rise of the Court of Chancery, and, finally, by the Reforma- 
 tion, which crushed the independence of the Church courts. It could not be 
 achieved by a .single clause in the Statute of Westminster the Second. 
 
 Jenks, "Edward I: The English Justinian," 1 Anglo-Am. Legal Essays, 
 151-152.
 
 318 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 As is well known, the Action on the Case was stretched to cover a 
 large number of oft'ences. It thus, in common speech, became the par- 
 ent of many special actions ; though these differed from the older ac- 
 tions in this important point, that, as they were all commenced by the 
 same writ, the plaintiff' could not, even before the abolition of forms 
 of action, be non-suited for confusing one with the other. Thus we 
 get the so-called "actions" of Trover, Nuisance, Assumpsit, Malicious 
 Prosecution, Seduction, Defamation, and Deceit ; some of which (e. g. 
 Nuisance, ]\Ialicious Prosecution, and Deceit) have to be rather care- 
 fully distinguished from older remedies for similar off'ences, which 
 had, for one reason or another, become obsolete or inconven- 
 ient. * * * 
 
 But elasticity was of the essence of the Action on the Case ; and, all 
 through its history, that action has been made to serve, very usefully, 
 as a general formula under which any grievance for which no special 
 definition existed, but which it was deemed desirable by the Courts to 
 recognize, could be smuggled in. 
 
 Jenks, Negligence and Deceit in the Law of Torts.- ^ 
 
 ^^^ 
 ^ 
 
 II. Nuisance 20 
 (A) Nature of the Tort 
 L'^.'P'' (^) The Different Kinds of Nuisance 
 
 FINEUX V. HOA^NDEN. 
 
 (Court of Queen's Bench, 1599. Cro. Eliz. 664, 7S Reprint. 902.) 
 
 Action on the case. Whereas there had been a way within the City 
 of Canterbury leading from St. Peter's street unto a street called Rush- 
 market; and that all the inhabitants of the city had used, time where- 
 of, &c. to pass that way; and that the plaintiff was an inhabitant 
 
 25 Piil)iished in 26 Law Quarterly Review (1910) 162, 164, 
 
 26 "The explanation of this threefold meaninsr and application of the 
 term nuisance [that is, nuisance as a species of criiuinnl offense, nuisance as 
 a disturbance of servitudes, and nuisance as the act of causins: or allowing 
 the escape of deleterious things into another's land] is that in its origin the 
 term was merely a generic expression meaning wrongful harm, and that 
 although it has now lost this wide signification it has failed to attain instead 
 any single specific application. The term is derived, through the French, 
 from the late Latin 'uocentia.' See TertuU. Apol. cap. 40: "Deus inuocentiae 
 magister nocentire judex.' Chaucer used it in this generic sense: 'IleliJe me 
 for to weye ageyne the feende. ♦ * * Keepe us from his nusance.' 
 (Mother of God, I, 21.) Nuisance appears in the old Latin pleadings as 
 "uocumentum,' i. e., harm. The terms trespass and tort, though similarly 
 generic in their original use, have been more successful in the process of 
 specification." Salmond, Law of Torts (2d Ed.) 184. 
 
 On the comuiun-law remedies for laiisance before the statute of Westmiusiter 
 11, see 3 Bl. Com. 221, and Jeuks' Short Hist. Eng. Law, 144 (1912).
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 319 
 
 there; that the defendant had made a ditch and erected a pale cross 
 that way, whereby he had lost his passage, &c. The defendant pleaded 
 not guilty; and * * * [i was found for the plaintiff; and now 
 moved, in arrest of judgment, ^'^ by Coke, Attorney General, that this 
 action lies not for a private person ; because it is a common nuisance, 
 and is punishable in a court leet only, unless he can shew some special 
 prejudice, as 27 Hen. 8, pi. 27, is; and so it was adjudged in this 
 Court, in Serjeani Bendlows v. Kemp, that he might maintain an ac- 
 tion upon some special prejudice. And at St. Alban's Term, in Wil- 
 liam V. Johns, it was adjudged, that where a chapel was within a 
 manor, and the parson of the adjoining church used to read divine 
 service every Sunday, for the lord and his tenants in the said chapel ; 
 and for that the parson had failed therein, the lord brought an action 
 upon the case; and adjudged that it lay not; for so every one of the 
 tenants might bring the like action, which would be inconvenient, that 
 he should be hable to all their actions ; but he ought to be punished by 
 the Ordinary in this case. But, peradventure, where there is not any 
 other remedy to be had than by action, there every one may have his 
 action who is grieved. And therefore, in Westbury v. Powel, where 
 the inhabitants of Southwark had a common watering place, and the 
 defendant had stopped it, and the plaintiff', being an inhabitant there, 
 brought his action upon the case, it was adjudged maintainable. But 
 it is here punishable in the leet. Wherefore, &c. — And of that opinion 
 were Popham, Gawdy. and Fenner, that without a special grief 
 shewn by the plaintiff, the action lies not. — But Clench e contra ; for 
 the stopping of itself is a special prejudice to the plaintiff, that he can- 
 not go that way. Wherefore it is reason he should maintain the ac- 
 tion.-^ Sed adjournatur. 
 
 27 A part of the ease, on a question of venue, is omitted. Tlie statement 
 is sliglitly abridged. 
 
 2 8 On the reason for the rule, see Coke, First Institute, 56a: "For if the 
 way be a common way, if any man be disturbed to goe that way, or if a 
 ditch be made overthwart the way so as he cannot goe, yet shall he not have 
 an action upon liis case; and this the law provided for avoyding of mul- 
 tiplicity of suites, for if any one man might have an action, all men might 
 have the like. But the law for this common nuisance hath provided an apt 
 remedy, and that is by presentment in the leete or in the torne, unlesse 
 any man hath a particular damage." 
 
 See also Professor Jeremiah Smith's remark in 15 Columbia r>aw Review. 
 2 (1915) : "It is now generally admitted that no private action can be main- 
 tained at common law, unless the plaintiff has sustained actual damage; 
 meaning damage which involves appreciable pecuniary loss to him individu- 
 ally. The controversy is whether tJiis goes far enough ; or whether the law 
 ought to further insist upon certain particular kinds of actual damage (upon 
 certain exceptional classes of actual damage). Those who advocate the more 
 stringent rule contend that, in the absence of these requirements, there is great 
 danger of such a multiplicity of suits as would constitute an intolerable evil. 
 The apprehension of such a result has exerted much influence u])on courts: 
 sometimes inducing a denial of recovery to a plaintiff who has suffered very 
 substantial damage, but whose damage does not fall within certain excep- 
 tional classes."
 
 320 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 FOWLER V. SANDERS. 
 
 (Court of King's Bench, 1617. Cro. Jac. 446, 79 Reprint, 3S2.) 
 
 Action upon the case, for laying in the highway in Coggeshall, lead- 
 ing from Coggeshall to Braintree, divers loads of logs, whereby they 
 much straitened the highway; so as the plaintiff, upon the evening 
 of such a day, riding on the said way ; his horse stumbled upon those 
 blocks, and much hurt him ; for which, &c. 
 
 The defendant confesses it to be a highway; but he saith, that the 
 town of Coggeshall is an ancient vill, wherein all the inhabitants there, 
 having ancient houses, used time whereof, &c., to lay logs in waste 
 places of the said way before their doors for their fuel, leaving suffi- 
 cient passage for chariots, horsemen, and footmen; and that he was 
 seised in fee of an ancient house, and laid logs for his fuel in the waste 
 places of the highway, leaving sufficient for passage of chariots, horse- 
 men, and footmen, &c., and the plaintiff riding by the highway impro- 
 vide turned his horse upon the blocks and fell, &c. 
 
 Whereupon the plaintiff demurred : and without much argument it 
 was adjudged — • 
 
 First, that the action well lay for the plaintiff; because he having 
 special damage had cause to bring that action, although the nuisance 
 be a public nuisance. 27 Hen. 8, pi. 27. 5 Co. "JZ, a. Williams' 
 case.^^ 
 
 Secondly, that the prescription to make a nuisance is not good ; for 
 it is against law to prescribe in such manner. 
 
 Thirdly, this prescription for the inhabitants is not good. Where- 
 fore it was adjudged accordingly. 
 
 2 9 Y. B. 27 Hen. viii, 27, pi. 10. Action on the case for stopping a highway 
 whereby the plaintiff was unable to reach his close. Fitz Herbert: "I fully 
 agree that every nuisance clone in the King's highway is punishable in the 
 Leet, and not by action unless it be where a man has a greater hurt, or 
 annoyance, than anyone has, and there he who has greater inconvenience 
 or hurt, can have an action to recover his damages which he has by reason 
 of his special hurt. For example, if one digs a ditch across the highway 
 and I come riding along the way in the night and I and my horse are thrown 
 into the ditch so that I am greatly damaged and inconvenienced therein, I 
 shall have an action in this case against him who made this ditch across 
 the way because I am more damaged thereby than anyone else." 
 
 The light to a private action when the plaintiff, without fault on his 
 part, has suffered damage through i^hysical contact with the unlawful ob- 
 .structiou, appears to have been umiuestioned since the days of the Year 
 Book.s, "altliough, if such questions wore to arise now for the first time, 
 they might perhaps, be disputed by some courts." See Professor Jeremiah 
 Smith's article on "Private Action for Obstruction to Public Eight of Pas- 
 sage," 15 Columbia Law Rev. 147 (1915).
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 321 
 
 HART V. BASSET. 
 
 (Court of King's Bench, 16S2. T. Jones, 156, 84 Reprint, 1194.) 
 
 The plaintiff declared that whereas he had the tithes of the parish 
 of B. for such a year, and was possessed of a barn into which intende- 
 bat portare & ponere the tithes, and that the alta via Regia in B. was 
 the direct way for the carrying of the tithes to tlie barn. The defend- 
 ant had obstructed and stopped up the said way by a ditch and gate 
 erected ex transverso vise, whereby he could not carry his tithes by 
 the said way, but was forced to carry them by a longer and more dif- 
 ficult way. Upon non cul' verdict was given for the plaintiff', and 
 £5. damages. In arrest of judgment it was moved, that this way be- 
 ing a high way (as was alledged by the plaintiff himself) the obstruc- 
 tion was a common nusance. And this damage is not such for which 
 an action will lie, for then every one who had occasion to go this way 
 might have his action, which the law will not suft'er for the multiplic- 
 ity. And \\'illiams's case, 1 Inst. 59, was cited for it. But resolved 
 by the whole Court that the action lay. And it was said that the com- 
 mon rule, that no one shall have an action for that which every one 
 suffers, ought not to be taken too largely.^** But in this case the 
 plaintiff' had particular damage, for the labour and pains he was forced 
 to take with his cattle and servants, by reason of this obstruction, may 
 well be of more value than the loss of a horse, or such damage as is 
 allowed to maintain an action in such a case. Judgment was given for 
 the plaintiff.^ ^ 
 
 30 In support of the plaintiff's right to recover see also Maynell v. Salt- 
 marsh (166.5) 1 Keb. 847; Jeveson v. Moor (1697) 12 :\Iod. 262; Chicester 
 V. Lethbridge (1738) Willes, 71 ; Rose v. Miles (1815) 4 M. & S. 101 ; Greaslj^ 
 V. Codling (1824) 2 Ring. 263. 
 
 31 Compare Burrows v. Pixley (1792) 1 Root (Conn.) 362, 1 Am. Dec. 56: 
 (P. declared that D. had erected a dam across a navigable river below P.'s 
 house, by which the navigation of the river was effectually obstructed, "and 
 showed "that the river had been in use for a long time by him and others 
 for the transportation of produce, and that the obstniction was particularly 
 detrimental to him, because he had for many years owned a shipj-ard, where 
 he carried on the business of shipbuilding, which was made profitable to 
 him because of the navigableness of said river.'") 
 
 Hughes V. Heiser (1808) 1 Bin. (Pa.) 463, 2 Am. Dec. 459: (P. declared that 
 he had procured a large quantity of boards and timber and made them into 
 rafts to bring down the Big Schujikill river, which was a public highway 
 for the passage of rafts, that he seized the opportunity of a flood and came 
 down as far as a dam unlawfully erected by D., and was there stopped by 
 this obstruction.) 
 
 And see 29 Cyc. 1213, notes 65 and 66 ; 37 Cent. Dig. "Nuisance," §§ 164- 
 169; 15 Dec. Dig. "Nuisance," § 72; and Judge Smith's article on "Private 
 Action for Obstruction of Public Right of Passage," 15 Columbia Law Rev. 
 1-23, 142-165 (1915). 
 
 Hepb.Tobts — 21
 
 322 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 WILLARD V. CITY OF CAMBRIDGE. 
 (Supreme Judicial Court of Massachusetts, 1862. 3 Allen, 574.) 
 
 Tort. The declaration alleged, in substance, that the city of Cam- 
 bridge raised the draw and took up the planks of a drawbridge, which 
 formed a part of a public highway which they were bound to keep in 
 repair, and obstructed the travel over the same for sixteen days, 
 whereby the plaintiff, who was a dealer in lumber, wood and coal at 
 a wharf adjacent to the bridge, was injured in his business, and his 
 customers were unable to come to his wharf, and he lost the sale of 
 lumber, wood and coal, and was subjected to increased trouble and 
 expense in delivering what he had already sold and promised to de- 
 liver, and in getting in his crops, and his houses occupied by tenants 
 were rendered less desirable, and he was obliged to abate from his 
 rents in order to keep his tenants. The defendants filed a demurrer, 
 assigning for cause that no legal cause of action was set forth ; and 
 the case was reserved, by Dewey, J., for the determination of the 
 whole court. 
 
 BiGELOw, C. J. We cannot distinguish this case from those in 
 which it has been determined by this court that no action at law can be 
 maintained to recover damages for the obstruction of a highway, un- 
 less a party can prove that he has sustained some special and peculiar 
 damage thereby, different in kind, and not merely in degree, from that 
 which is occasioned to other persons by the alleged nuisance. ^^ 
 
 No doubt the annoyance and injury to the plaintiff by the acts al- 
 leged in the declaration were much greater in amount than those which 
 were caused to any other person having occasion to use the same high- 
 way. But it was a similar sort or species of damage. His near prox- 
 imity to the bridge and the nature of the business in which he was en- 
 gaged did not change the kind of damage to which he was subjected, 
 
 32 The Chief Justice here referred to Quincy Canal v. Newcomb (1843) 7 
 Mete. (Mass.) 276, 39 Am. Dec. 778; Brainard v. Coiuiecticut River R. (1851) 
 7 Cush. (Mass.) 511; Blood v. Nashua & Lowell R. (1854) 2 Gray (Mass.) 
 140, 61 Am. Dec. 444; Brightman v. Fairhaven (18.16) 7 Gray (Mass.) 271; 
 Harvard Collose v. Stearns (1860) 15 Gray (Mass.) 1; Hartshorn v. Inhab- 
 itants of South Reading (1862) 3 Allen (Mass.) 504. 
 
 See also, as bearing on the same doctrine, Smith v. Boston (18.51) 7 Cush. 
 (Mass.) 254; Blackwell v. Old Colony R. (1877) 122 Mass. 1; Stanwood v. 
 Maiden (1892) 157 Mass. 17, 31 N. E. 702, 16 L. R. A. 591 ; Nichols v. Rich- 
 mond (1894) 162 Mass. 170, 38 N. E. 501; Robinson v. Brown (1902) 182 
 Mass. 266, 65 N. E. 377; Crook v. Pitcher (1884) 61 Md. 510; Painter v. 
 Gunderson (1913) 123 Minn. .323, 143 N. W. 910. 
 
 Compare the remark of Brown, D. J., in Piscataqua Nav. Co. v. New York, 
 etc., R. Co. (D. C. 1S9S) 89 Fed. 362, 363: "In each of these cases, there 
 was only detention, and not physical injury, to person or goods. In each of 
 these cases, as in the present case, the plaintiffs were in the actual use of 
 the way, and were subjected to actual obstruction, and to actual loss addi- 
 tional to that which, by presumption of law, attaches to each moinl)or of the 
 public. This actual loss, proved as a matter of fact, is the gist of the 
 private action."
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 323 
 
 but only increased the extent of the injury.^^ Every traveller having 
 occasion to pass the bridge or to transport goods or merchandise across 
 it incurred in some degree additional trouble and expense, as well as 
 loss of time, by being compelled to seek another and more circuitous 
 route. These elements of damage are the same as those claimed by the 
 plaintiff, and are not special or peculiar to him so as to furnish a good 
 cause of action. The same is true of the alleged loss of rents. Every 
 person owning property on the highway leading to the bridge, near to 
 or remote from the place of the alleged obstruction, sustained a similar 
 injury. Smith v. Boston, 7 Cush. 257. The case of Stetson v. Faxon, 
 19 Pick. 147, 31 Am. Dec. 123, is distinguishable from the case at bar 
 by the leading fact that there the nuisance causing the obstruction to 
 the plaintiff's premises was erected directly against and abutting on the 
 estate of the plaintiff, and diverted travel therefrom, and it did not 
 appear that any other person sustained a similar injury.^* 
 Demurrer sustained. 
 
 33 Compare Chancellor Walworth's dictum in Lansing v. Smith (1S29) 4 
 Wend. (N. Y.) 25, 21 Am. Dec. S9: "If the defendants had erected these tem- 
 porary bridges, and were not authorized to do so, they might be indicted for 
 a common nuisance. But the bridges might also be more injurious to some 
 persons than to others. In such a case, if a person has sustained actual dam- 
 age by the erection of the nuisance, whether direct or consequential, I am 
 not prepared to say he cannot maintain an action against the wrongdoer. 
 If he sustains no damage but that which the law presumes every citizen to 
 sustain, because it is a common nuisance, no action will lie. But the opinion 
 I have formed on this point is that every individual who receives actual 
 damage from a nuisance may maintain a private suit for his own injury, al- 
 though there may be many others in the same situation. The punishment 
 of the wrong-doer by a criminal prosecution will not compensate for the 
 individual injury ; and a party who has done a criminal act cannot defend 
 himself against a private suit by alleging that he has injured many others 
 in the same way, and that he will be ruined if he is compelled to make 
 compensation to all." 
 
 34 Stetson V. Faxon (1837) 19 Pick. (Mass.) 147, 31 Am. Dec. 123: A ware- 
 house erected by D. projected several feet into a public street, and beyond 
 P.'s warehouse, standing on the street line ; because of this P.'s warehouse 
 was obscured from the view of passers-by, and travel was diverted so that 
 P.'s warehouse became less eligible as a place of business, his tenants left, 
 and he was obliged to reduce his rents. Walker v. Shepardson (1853) 2 Wis. 
 384, 60 Am. Dec. 423: D. drives piles into the bed of a navigable river in 
 front of P.'s property on the river. Brayton v. City of Fall River (1S73) 113 
 Mass. 218, 18 Am. Rep. 470: A city constructed a system of sewers which 
 carried the dirt of unpaved streets into a tidal creek, and obstructed its 
 navigation. "If the effect of the defendant's acts had been merely to create 
 a bar across the mouth of the creek, so as to destroy or injure its navigabil- 
 ity, the plaintiff could not maintain an action because it was thereby ren- 
 dered more difficult and expensive to reach his wharf, or because his wharf 
 was rendered less valuable. Those would be injuries of the same kind 
 sustained by all other persons who have occasion to use the creek, or who 
 owned land bordering upon it. But in this case the evidence tended to show 
 that the effect of the sewers had l)e(m to fill up the creek directly in fr<Mit of 
 and adjoining the plaintiff's wharf, so that his vessels which he was accus- 
 tomed to employ to bring grain to his wharf and elevator could not lie at 
 the wharf on account of the diminished depth of water." Per INIorton, J. 
 
 Compare the remarks of Winslow, J., in Tilly v. Mitchell & Lewis Co. 
 (1901) 121 Wis. 1, 98 N. W. 969, 105 Am. St. Rep. 1007: "A person whose lot 
 abuts upon the particular piece of street which is unlawfully closed or ob-
 
 324 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 WILKES V. HUNGERFORD IMARKET CO. 
 
 (Court of Common Pleas, 1835. 2 Bing. N. C. 281, 132 Reprint, 110.) 
 
 Action on the case for the obstruction of a right of way. The decla- 
 ration alleged that at the time of the committing the grievance by the 
 defendants there was a thoroughfare leading from the Adelphi along 
 divers streets and courts into Craven Court, and thence along other 
 streets and courts into Whitehall, and thence back again, for all per- 
 sons at all times ; that the plaintiff was possessed of a messuage ad- 
 joining the said thoroughfare, in which he carried on the business of 
 a bookseller, and made great gains by the sale of books to persons 
 passing along the thoroughfare ; that the defendants wrongfully kept 
 the thoroughfare closed an unreasonable length of time, and during 
 that time thereby prevented the plaintiff from carrying on his business 
 in as beneficial a manner as he otherwise wovtld have done, whereby 
 the plaintiff' was deprived of divers gains which would otherwise have 
 accrued to him. The jury have found that the defendants did con- 
 tinue the obstruction to the plaintiff's right of way an unnecessary 
 length of time.^^ 
 
 TiNDAL, C. J. * * * The next question is, whether this is such 
 a peculiar and private damage to the plaintiff beyond that suffered by 
 the rest of his Alajesty's subjects, as to enable him to sustain an action 
 against the defendants. And I think, in conformity with the greater 
 number of decisions, that it was. The injury to the subjects in gen- 
 eral, is, that they cannot walk in the same track as before ; and for 
 that cause alone an action on the case would not lie: but the injury 
 to the plaintiff is, the loss of a trade, which but for this obstruction 
 to the general right of way he would have enjoyed; and the law has 
 
 structed is universally held to be specially and peculiarly injured, thougti 
 he may have other access to his lot ; but many of the cases draw an arbi- 
 trary line at this point, and maintain that when the plaintiff's lot fronts 
 upon another part of the street no such injury is shown. Certainly the 
 distinction is illogical. The man whose lot fronts upon the next block may 
 be fully as deeply injured in the decreased value, rentability, and desirabil- 
 ity of his lot as the man whose lot fronts on the block which is closed. 
 One may suffer as great damage in his estate as the other. True, there may 
 be many such individual owners, but that cannot affect individual rights. 
 Tliere may be 20 or there may be 50 of them, but, if each has suffered great 
 damage to his estate by the unlawful closing of a street, why shall not each 
 have his action? Neither 20 men nor HO men constitute the general ])ublic. 
 The general public is composed of the groat mass of individuals who own no 
 property in the vicinity, and who may wish to pass over the street or not, 
 and who, if they do, simply suffer the trifling inconvenience of being obliged 
 to make a circuitous trip. The man who owns a lot in the next block, and 
 whose lot has lost a great part of its value by reason of the closing of the 
 street, manifestly suffers some injury different in its nature from the mere 
 inconvenience suffered by the general public." 
 
 See also 15 Columbia Law Review, 1.54-157 (1915). 
 
 35 This statement, slightly abridged from Chief Justice Tindal's opinion, is 
 substituted for the reporter's stateinout. The arguments, a portion of the 
 opinion by Tindal, C. J., and the opinions of Park, Gaselee, and Posanquet, 
 J J., are omitted.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 325 
 
 said, from the Year Books downwards, that if a party has sustained 
 any peculiar injury, beyond that which affects the pubUc at large, an 
 action will lie for redress. Is the injury in the present case of that 
 character or not? The plaintiff, in addition to a right of way which 
 he enjoyed in common with others, had a shop on the roadside, the 
 business of which was supported by those who passed : all who passed 
 had the right of way; but all had not shops; that is the observation 
 made in Baker v. ^loore, cited in Ivison v. jMoore, 1 Ld. Raymd. 486, 
 which was an action for stopping a w^ay and preventing the carriage of 
 coals. In Baker v. Moore the refusal of the plaintiff's tenants to re- 
 main on the premises was considered a damage sufficiently peculiar 
 and private to entitle the plaintiff to sue the defendant for having 
 erected a wall across a common way used by the tenants. Indeed, for 
 the most part the only question is, whether the injury to the individual 
 is such as to be the direct, necessary, natural, and immediate conse- 
 quence of the wrongful act. Hubert v. Groves, 1 Esp. 148, has been 
 relied on on the part of the defendants : but the gravamen there was 
 one which applied equally to all his Majesty's subjects, namely, that 
 they were obliged to go in a more circuitous track, and not one which 
 affected the plaintiff above others : unless that be a sufficient distinc- 
 tion between Hubert v. Groves and the present case,^*' I must yield to 
 the greater authority of the other decisions. 
 Discharged as to entering a nonsuit. 
 
 36 The case of Wilkes v. Hungerford Market Co. "is commonly considered 
 as having been overruled by the House of Lords in Ricket v. Metropolitan 
 Rly. Co. ri867) 2 H. L. 175. It is to be remarked, however, that there is 
 nothing in the decision of the House of Lords in this case which is incon- 
 sistent with the Hungerford ^larket Case, and that the observntions made 
 upon the latter case are dicta unnecessary to the matter in hand. Rickefs 
 Case decides merely that on the true interpretation of the Lands Clauses 
 Act and the Railways Clauses Act claims to compensation under these acts 
 are limited to damage done to the property affected and do not extend to 
 damage done to the goodwill of a business. It is submitted, therefore, 
 that the question still remains open, and that it is worthy of serious con- 
 sideration whether damage done to the plaintiff in his trade by the illegal 
 obstruction of a highway is not an actionable wrong." Salmond, Torts (2d 
 Ld.) 2S0 (1910). And see Judge Smith's remarks on these cases in 15 
 Columbia Law Rev. 163, KM (1915). 
 
 Compare Duy v. Alabama Western R. Co. (1911) 175 Ala. 162, 57 South. 
 724, Ann. Cas. 1914C, 1119, and note: (P. claims damages because D.'s 
 freight depot, obstructing a public street in a block different from the block 
 in which P.'s property was situated, has rendered P.'s property "less acces- 
 sible to customers and intending customers, and the trade of the general 
 public has been deflected or diminished.")
 
 326 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 SOLTAU V. DE HELD. 
 
 (High Court of Chancery, 1851. 2 Sim. [N. S.] 133, 61 Reprint, 291.) 
 
 The plaintiff sought an injunction to restrain the ringing of the bells 
 of a church near the plaintiff's house. 
 
 The bill alleged, among other things, that when a peal of the church 
 bells was rung, the noise was so great that it was impossible for the 
 plaintiff, or the members of his family, to read, write or converse in 
 his house ; that the ringing of the chapel bell and church bells was 
 an intolerable nuisance to the plaintiff, and, if the said bell or bells was 
 or were permitted to be rung in the manner in which the same were 
 so rung as aforesaid, it would be impossible for the plaintiff to reside 
 any longer in his house ; that, in consequence of the before-mentioned 
 grievance, the plaintiff" applied to the defendant to desist from the 
 ringing the said bells or any of them, so as to occasion any annoyance 
 to the plaintiff, and, the defendant having refused to comply with that 
 application, the plaintiff, in June 1851, commenced an action against 
 the defendant to recover damages for the nuisance committed to him 
 by means or in consequence of the before-mentioned ringing of the 
 said bell or bells; that the action was tried on the 13th of August, 
 1851, when a verdict was found for the plaintiff', with forty shillings 
 damages and costs; that, on the lOfh November, 1851, judgment in 
 the action was signed, and it remained unreversed. 
 
 The defendants put in a general demurrer to the bill. 
 
 The Vice-Chancellor (Sir R. T. Kindersley). * * * 37 
 The demurrer is a general demurrer for want of equity ; and, of 
 course, by that demurrer, the defendant undertakes to shew that, upon 
 the statements contained in the bill, the plaintiff would not be entitled 
 to any relief at the hearing of the cause. 
 
 The first ground of demurrer to this bill is that the nuisance com- 
 plained of is a public nuisance; and, therefore, the suit should have 
 been instituted by the Attorney-General ; and that it is not competent 
 to the plaintiff to file a bill respecting jt. * * * ss 
 
 37 The statement of the case is abridged ; only so much of the opinion is 
 given as relates to the one point. 
 
 8 8 In an omitted portion of his opinion, the Vice Chancellor suggested 
 this as the test of a public nuisance: "I conceive that, to constitute a pub- 
 lic nuisance, the thing must be such as, in its nature or its consequences, is 
 a nuisance — an injury or a damage, to all persons who come within the 
 sphere of its operation, though it may be so in a greater degree to some than 
 it is to others. For example, take the case of the operations of a manu- 
 factory, in the course of which operations volumes of noxious smol^e, or of 
 poisonous effluvia, are emitted. To all persons who are at all within the 
 roach of those operations it is more or less objectionable, more or Irss a 
 nui.sauce in the popular sense of the term. It is true that to those who are 
 nearer to it it may be a greater nuisance, a greater inconvenience tJian it 
 is to those who are more remote from it; but, still, to all who are at all 
 witliin the reach of it, it is more or less a nuisance or an inconvenience. 
 Take another ordinary case, perhaps the most ordinary case of a public
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 327 
 
 In my further observations on this ground of -demurrer, I will pro- 
 ceed on the assumption that it is a public nuisance; that is to say, 
 that the defendant is right in his contention that it is a public nui- 
 sance, and let us see what the consequence will be if it be so. Now, 
 in the case of a public nuisance, the remedy at law is indictment ; the 
 remedy in equity is information at the suit of the Attorney-General. 
 In the case of private nuisance the remedy at law is action ; the rem- 
 edy in equity is bill. And this is the distinction which is pointed out 
 in those passages cited by Mr. Campbell from the third volume of 
 Blackstone's Commentaries and from Alitford's Treatise on Pleading. 
 But it is clear that that which is a public nuisance may be also a pri- 
 vate nuisance to a particular individual, by inflicting on him some spe- 
 cial or particular damage; and, if it be both, that is, if it be in its 
 nature a public nuisance, and, at the same time, does inflict on a par- 
 ticular individual a special and particular damage, may not that indi- 
 vidual have his private remedy at law by action, or in equity by bill? 
 That is the question which is to be determined with respect to this 
 ground of demurrer. The defendant's counsel insist that he cannot; 
 and several cases were cited in support of that proposition. But, on 
 referring to those cases, it appears to me that they do not support 
 that proposition. * * * 
 
 Several cases have been referred to on the part of the plaintiflf ; 
 such as Spencer v. The London and Birmingham Railway Company, 
 8 Sim. 193, Sampson v. Smith. 8 Sim. 272, Haines v. Taylor, 2 Beav. 
 75, and Walter v. Selfe, 15 Jurist, 416, in all of which it was held that, 
 
 nuisance, the stopping of the king's highwas'; that is a nuisance to all who 
 may have occasion to travel that highway. It may be a much greater nui- 
 sance to a person who has to travel it every day of his life than it is to a 
 person who has to travel it only once a year, or once in five years ; but 
 it is more or less a nuisance to everyone who has occasion to use it. If, 
 however, the thing complained of is such that it is a great nuisance to those 
 who are more immediately within the sphere of its operations, but is no 
 nuisance or inconvenience whatever, or is even advantageous or pleasurable 
 to those who are more removed from it, there, I conceive, it does not come 
 within the meaning of the term public nuisance. The case before me is a 
 case in point. A peal of bells may be, and no doubt is, an extreme nuisance, 
 and, perhaps, an intolerable nuisance to a person who lives within a very few 
 feet or yards of them ; but, to a person who lives at a distance from them, 
 although he is within the reach of their sound, so far from its being a 
 nuisance or an inconvenience, it may be a positive pleasure ; for I cannot 
 assent to the proposition of the plaintiff's counsel that, in all circumstances 
 and under all conditions, the sound of bells must be a nuisance. And it 
 is rather curious that one of the witnesses who was examined on the trial 
 on the part of the plaintiff, and who deposed strongly to the bells being an 
 intolerable nuisance when he was in Mr. Soltau's house, says: "But where 
 I live at Clapham, which is about a furlong from the bells and with the in- 
 tervention of trees, so far from their being a nuisance to me, they are a 
 positive gratification ; and I confess I should be extremely sorry if they 
 were done away with." I mention that only by way of illustrating that, in 
 this case, to some persons who live within the sound of these bells they may 
 be no nuisance at all; and, no doubt, are none; and, therefore, I very 
 ranch doubt, indeed, my opiinon is, that the nuisaiu-e complained of in this 
 case could not be indicted as a public nuisance." 2 8im. (N. S.) 142-144.
 
 .328 TORTS TnUOUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 if an individual sustains a special and particular damage from an act, 
 he may have the interference of the Court on a bill, although the act 
 complained of be, in its nature, a public nuisance. Two other cases 
 were cited : The Attorney-General v. Forbes, 2 Myl. & C. 123, and 
 the Attorney-General v. Johnson, 2 Wills. C. C. S7. Those cases shew 
 only that there may be both an information and bill ; that is, that the 
 Attorney-General may file an information to restrain the act com- 
 plained of as a public nuisance, and that an individual who sustains 
 a particular injury may join as plaintiff as well as relator, and have 
 the remedy for himself also in the same suit. I am of opinion, there- 
 fore, that the first ground of demurrer is not tenable. * * * 
 
 WESSON V. WASHBURN IRON CO. 
 
 (Supreme Judicial Court of Massachusetts, 1866. 13 Allen, 95, 
 
 90 Am. Dec. 181.) 
 
 Tort. The first count of the declaration alleged that the plaintiff 
 was owner of a freehold estate in a messuage and dwelling-house in 
 Worcester, contiguous to the land and buildings of the defendants, 
 and occupied as a dwelling-house for the plaintiff's tenants ; and the 
 defendants wrongfully kept and continued certain buildings, called 
 and used for a rolling mill and foundry, next easterly from the land 
 of the plaintiff", and occupied by the defendants for the manufacture 
 of railroad iron, and other articles made from iron and steel, and kept 
 and used large stationary steam engines, trip-hammers, rolling mills, 
 and other machinery and furnaces for the melting of iron, etc., by 
 night as well as by day, and made large quantities of railroad iron, 
 and other articles made from iron and steel, and thereby, and by the 
 action and motion of the said engines, mills and machinery, the ground 
 and dwelling-house of the plaintiff were greatly shaken and jarred, so 
 that the house was greatly shaken to pieces and rendered uncomforta- 
 ble and unfit for habitation and of no value. 
 
 The second count contained similar allegations in regard to another 
 messuage and dwelling-house, known as the Wesson Tavern House, 
 with additional averments that the defendants consumed large quan- 
 tities of coal, by means of which large quantities of coal-dust, smoke 
 and ashes, noisome and offensive, rose and issued from the defend- 
 ants' buildings and entered into and diff'used themselves over and 
 through the plaintiff's' premises, rendering the same uncomfortable 
 and unfit for habitation, and depriving her of the gains which she 
 otherwise would have made. 
 
 The answer denied all wrongful acts on the part of the defendants, 
 and all injury to the plaintiff. 
 
 At the trial * * ^h ^i^g plaintiff requested the court to instruct 
 the jury that if her dwelling-house was injured by jarring and shak-
 
 Ch. 2) ABSOLUTE TOiiTS OTIIEK THAN TRESPASSES 329 
 
 ing, and rendered unfit for habitation by smoke, cinders, dust and gas 
 from the defendants" works, it was no defence to the action that many 
 other houses in the neighborhood were affected in a similar way. 
 But the judge decHned so to rule, and instructed the jury, in accord- 
 ance with the request of the defendants, that the plaintiff could not 
 maintain this action if it appeared that the damage which the plaintiff" 
 had sustained in her estate was common to all others in the vicinity ; 
 but it must appear that she had sustained some special damage, differ- 
 ing in kind and degree from that common to all others in the neigh- 
 borhood. 
 
 The jury returned a verdict for the defendants, and the plaintiff 
 alleged exceptions. 
 
 BiGELOw, C. J. * * * There can be no doubt of the truth of 
 the general principle stated by the court, that a nuisance may exist 
 which occasions an injury to an individual, for which an action can- 
 not be maintained in his favor, unless he can show some special damage 
 in his person or property, dift'ering in kind and degree from that which 
 is sustained by other persons who are subjected to inconvenience and 
 injury from the same cause. The difficulty lies in the application of 
 this principle. The true limit, as we understand it, within which its 
 operation is allowed, is to be found in the nature of the nuisance 
 which is the subject of complaint. If the right invaded or impaired is 
 a common and public one, which every subject of the state inay exer- 
 cise and enjoy, such as the use of a highway, or canal, or public land- 
 ing place, or a common watering place on a stream or pond of water, 
 in all such cases a mere deprivation or obstruction of the use which 
 excludes or hinders all persons alike from the enjoyment of the com- 
 mon right, and which does not cause any special or peculiar damage 
 to any one, furnishes no valid cause of action in favor of an individ- 
 ual, although he may suft"er inconvenience or delay greater in degree 
 than others from the alleged obstruction or hinderance. The private 
 injury, in this class of cases, is said to be merged in the common nui- 
 sance and injury to all citizens, and the right is to be vindicated and 
 the wrong punished by a public prosecution, and not by a multiplicity 
 of separate actions in favor of private individuals. Several instances 
 of the application of this rule are to be found in our own reports. 
 Stetson v. Faxon, 19 Pick. 147, 31 Am. Dec. 123; Thayer v. Boston, 
 19 Pick. 511, 514, 31 Am. Dec. 157; Ouincy Canal v. Newcomb, 7 
 Mete. 276, 283, 39 Am. Dec. 778; HoTman v. Townsend, 13 Mete. 
 297, 299 ; Smith v. Boston, 7 Cush. 254 ; Brainard v. Connecticut 
 River Railroad, 7 Cush. 506; Blood v. Nashua & L. R. Corp., 2 Gray, 
 140, 61 Am. Dec. 444; Brightman v. Fairhaven, 7 Gray, 271; 
 Harvard College v. Stearns, 15 Gray, 1 ; W'illard v. Cambridge, 3 
 Allen, 574; Hartshorn v. South Reading, Id. 501; Fall River Iron 
 Works Co. V. Old Colony & Fall River Railroad, 5 Allen, 224. 
 
 But it will be found that, in all these cases, and in others in which 
 the same principle has been laid down, it has been applied to that class
 
 3.30 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 of nuisances which have caused a hindrance or obstruction in the ex- 
 ercise of a right which is common to every person in the community, 
 and that it has never been extended to cases where the alleged wrong 
 is done to private property, or the health of individuals is injured, or 
 their peace and comfort in their dwellings is impaired by the carrying 
 on of offensive trades and occupations which create noisome smells 
 or disturbing noises, or cause other annoyances and injuries to persons 
 and property in the vicinity, however numerous or extensive may be 
 the instances of discomfort, inconvenience and injury to persons and 
 property thereby occasioned. Where a public right or privilege com- 
 mon to every person in the community is interrupted or interfered 
 with, a nuisance is created by the very act of interruption or interfer- 
 ence, which subjects the party thi^ough whose agency it is done to a 
 public prosecution, although no actual injury or damage may be there- 
 by caused to any one. If, for example, a public way is obstructed, 
 the existence of the obstruction is a nuisance, and punishable as such, 
 even if no inconvenience or delay to public travel actually takes place. 
 It would not be necessary, in a prosecution for such a nuisance, to 
 show that any one had been delayed or turned aside. The offence 
 would be complete, although during the continuance of the obstruction 
 no one had had occasion to pass over the way. The wrong consists 
 in doing an act inconsistent with and in derogation of the public or 
 common right. It is in cases of this character that the law does not 
 permit private actions to be maintained on proof merely of a disturb- 
 ance in the enjoyment of the common right, unless special damage is 
 also shown, distinct not only in degree but in kind from that which 
 is done to the whole public by the nuisance. 
 
 But there is another class of cases in which the essence of the wrong 
 consists in an invasion of private right, and in which the public of- 
 fence is committed, not merely by doing an act which causes injury, 
 annoyance and discomfort to one or several persons who may come 
 within the sphere of its operation or influence, but by doing it in such 
 place and in such manner that the aggregation of private injuries be- 
 comes so great and extensive as to constitute a public annoyance and 
 inconvenience, and a wrong against the community, which may be 
 properly the subject of a public prosecution. But it has never been held, 
 so far as we know, that in cases of this character the injury to private 
 property, or to the health and comfort of individuals, becomes merged 
 in the public wrong, so as to take away from the persons injured the 
 right which they would otherwise have to maintain actions to recover 
 damages which each may have sustained in his person or estate from 
 the wrongful act. 
 
 Nor would such a doctrine be consistent with sound principle. Car- 
 ried out practically, it would deprive persons of all redress for injury 
 to property or health, or for personal annoyance and discomfort, in 
 all cases where the nuisance was so general and extensive as to be a 
 legitimate subject of a public prosecution; so that in effect a wrong-
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 331 
 
 doer would escape all liability to make indemnity for private injuries 
 by carrying on an otlensive trade or occupation in such place and man- 
 ner as to cause injury and annoyance to a sufficient number of persons 
 to create a common nuisance. 
 
 The real distinction would seem to be this : that when the wrongful 
 act is of itself a disturbance or obstruction only to the exercise of a 
 common and public right, the sole remedy is by public prosecution, 
 unless special damage is caused to individuals. In such case the act 
 of itself does no wrong to individuals distinct from that done to the 
 whole community. But when the alleged nuisance would constitute 
 a private wrong by injuring property or health, or creating personal 
 inconvenience and annoyance, for which an action might be main- 
 tained in favor of a person injured, it is none the less actionable be- 
 cause the wrong is committed in a manner and under circumstances 
 which would render the guilty party liable to indictment for a common 
 nuisance. This we think is substantially the conclusion to be derived 
 from a careful examination of the adjudged cases. The apparent con- 
 flict between them can be reconciled on the ground that an injury to 
 private property, or to the health and comfort of an individual, is in its 
 nature special and peculiar, and does not cause a damage which can 
 properly be said to be common or public, however numerous may be 
 the cases of similar damage arising from the same cause. Certainly 
 multiplicity of actions affords no good reason for denying a person 
 all remedy for actual loss and injury which he may sustain in his per- 
 son or property by the unlawful acts of another, although it may be 
 a valid ground for refusing redress to individuals for a mere invasion 
 of a common and public right. 
 
 The rule of law is well settled and familiar, that every man is bound 
 to use his own property in such manner as not to injure the property 
 of another, or the reasonable and proper enjoyment of it; and that 
 the carrying on of an offensive trade or business, which creates noi- 
 some smells and noxious vapors, or causes great and disturbing noises, 
 or which otherwise renders the occupation of property in the vicinity 
 inconvenient and uncomfortable, is a nuisance for which any person 
 whose property is damaged or whose health is injured or whose rea- 
 sonable enjoyment of his estate as a place of residence is impaired or 
 destroyed thereby may well maintain an action to recover compensa- 
 tion for the injury. The limitations proper to be made in the applica- 
 tion of this rule are accurately stated in Bamford v. Turnley, 3 Best 
 & Smith, 66, and in Tipping v. St. Helen's Smelting Co., 6 Best & 
 Smith, 608-616, s. c. 11 H. L. Cas. 642, and cases there cited. See, 
 also, in addition to cases cited by the counsel for the plaintiff, Spencer 
 V. London & Birmingham Railway, 8 Sim. 193 ; Soltau v. De Held, 
 9 Sim. (N. S.) 133. 
 
 The instructions given to the jury were stated in such form as to 
 lead them to infer that this action could not be maintained, if it ap-
 
 332 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 peared tliat other owners of property in the neighborhood suffered in- 
 jury and damage similar to that which was sustained by the plaintiff 
 in her estate by the acts of the defendants. This, as applied to the 
 facts in proof, was an error, and renders it necessary that the case 
 should be tried anew. 
 Exceptions sustained.^® 
 
 39 A portion of the statement of facts, and of the opinion, on a point of 
 evidence, is omitted. 
 
 See King v. Morris & Essex Railroad (1867) 18 N. J. Eq. 397. The defend- 
 ant had placed upon its road sixteen new coal-burning engines, which threw 
 out burning coals. The increase of fires along the line had been so great, 
 since the use of the coal-burning locomotives, that some insurance companies 
 had refused to take risks along the road at the usual rates, and some had 
 refused altogether. The complainant, a manufacturer, sought to enjoin the 
 use of such locomotives. Said the Chancellor: "The case is a proper one 
 for the interference of this court by injunction. The defendants must be 
 restrained from running any coal engines on their road, if the consequences are 
 necessarily such as are shown by the proof in this case. * * * Nor is it 
 necessary that the injunction or relief in this case should be applied for in 
 the name of the state, or the Attorney General. This is not a public nui- 
 sance, although it may injure a great many pei'sons. The injury is to the 
 individual property of each. The nuisance is public when it affects the 
 rights enjoyed by citizens as part of the public ; as the right of navigating 
 a river, or traveling on a public highway ; rights to which every citizen is 
 entitled." 
 
 See also the remarks of Brett, J., in Benjamin v. Storr (1874) L. R. 9 
 C. P. 400, 40<5: "Thei'e are three things which the plaintiff must substantiate, 
 beyond the existence of the mere public nuisance, before he can be entitled 
 to recover. In the first place, he must shew a particular injury to himself 
 beyond that which is suffered by the rest of the public. It; is not enough 
 for him to shew that he suffers the same inconvenience in the use of the 
 highway as other people do, if the alleged nuisance be the obstruction of a 
 highway. The case of Hubert v. Groves, 1 Esp. 148, seems to me to prove 
 that proposition. There the plaintiff's business was injured by the obstruc- 
 tion of a highway, but no greater injury resulted to him therefrom than to 
 any one else, and therefore it was held that the action would not lie. Win- 
 terbottom v. Lord Derby, Law Rep. 2 Ex. 310, was decided upon the same 
 ground ; the plaintiff failed because he was unable to shew that he had 
 sustained any injury other and different from that which was common to all 
 the rest of the public. Other cases shew that the injury to the individual 
 must be direct, and not a mere consequential injury, as, where one is ob- 
 structed, but another (though possibly a less convenient one) is left open ; 
 in such a case the private and particular injury has been held not to be 
 sufficiently direct to give a cause of action. Further, the injury nmst be 
 shewn to be of a substantial character, not fleeting or evanescent. If these 
 propositions be correct, in order to entitle a person to maintain an action for 
 <laniage caused by that which is a public nuisance, the damage must be partic- 
 ular, direct, and substantial. The question then is, whether the plaintiff here 
 has brought himself within the rule so laid down. The evidence on the part of 
 the plaintiff' shewed that from the too long standing of horses and wagons 
 of the defendants in the higlnvay opposite his house, the free passage of light 
 and air to his prennses was obstructed, and the plaintiff was in consequence 
 oi)liged to burn gas nearly all day, and so to incur expense. I think that 
 brings the case within all the requirements I have pointed out; it was a 
 particular, a direct, and a substantial damage. As to the bad smell, that 
 also was a particular injury to the plaintiff, and a direct and sulistantial one. 
 So, if by reason of the access to his ])remiscs being obstructeil for an un- 
 rea.sonable time and in an unreasonal)le manner, the plaintiff's customers 
 were prevented from coming to his coffee-shop, and he suffered a material
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 333 
 
 COOK V. MAYOR AND CORPORATION OF BATH. 
 
 (Equity Cases before the Yice-Cliancellors, 1S6S. L. R. 6 Eq. 177.) 
 
 This was a motion for an injunction to restrain the defendants from 
 building in such a way as to obstruct a lane called Cross Back Lane, 
 and later, White Hart Lane, in the city of Bath. 
 
 The plaintiff was the owner in fee of a messuage, No. 14, Bath 
 Street, which was bounded at the back by Cross Back Lane, leading 
 into Stall Street, and it appeared that from 1793, when this house was 
 erected, there had been a back-door leading into Cross Back Lane, 
 through which the plaintiff had access through Cross Back Lane to 
 Stall Street. About forty years ago the then occupier of the house 
 closed and bricked up this back-door, leaving the jambs in the wall, 
 and keeping the old door in his cellar, but in the spring of 1864 the 
 present plaintiff re-opened the door, and restored it as much as possible 
 to its former position. 
 
 In 1867 the defendants, having purchased the house at the corner of 
 the lane and Stall Street, were proceeding to erect buildings in such a 
 way as, it was admitted, would permanently block up all access from 
 White Hart Lane into Stall Street, and thereupon the plaintiff filed his 
 bill for an injunction to restrain them from so doing. * * * 
 
 Sir R. Malins, V. C. * * ^= Thus far I have dealt with the 
 case on the assumption of the lane being subject to a private right of 
 way ; but, in truth, the evidence goes far to shew that White Hart 
 Lane was a public way. On this view the defendants have contended 
 that the Attorney-General must sue. But the cases cited are conclu- 
 sive as to the plaintiff's remedy. In Spencer v. London and Birming- 
 ham Railway Company, 8 Sim. 193, s. c. 1 Railw. Cas. 159, a very 
 similar case to the present, Vice-Chancellor Shadwell laid down the 
 rule to be, that where there was a public nuisance by obstructing a 
 highway which caused a particular private injury, a bill would lie for 
 
 dimicution of trade, that might be a particular, a direct, and a substantial 
 damage." 
 
 Compare Baltzeger v. Carolina Midland Ry. Co. (1S99) 54 S. C. 242, 32 S. 
 E. 3oS, 71 Am. St. Rep. 7S9: A railway company had created a public nui- 
 sance by obstructing the flow of surface water and causing its accuuuilation. 
 This nuisance rendered the plaintiff's dwelling unhealthy and dangerous to 
 live in, and caused sickness and suffering in his family. A demurrer to the 
 complaint showing these facts was sustained by the trial court. "The in- 
 jury," said the Supreme Court, "must be particular — as some of the cases 
 express it, special or peculiar ; must result directly from the obstruction, 
 and not as a .secondary consequence thereof ; and must differ in kind, and 
 not merely in extent or degree, from that which the general public sustains. 
 The plaintiff relies upon the allegations contained in the fourth paragraph 
 of his complaint to show that his injury was special or peculiar. One of the 
 requirements of the rule is that the damages must differ in kind as well 
 as degree from those which, it may reasonably be expected, will be sus- 
 tained by the public generally. The allegations of the complaint show that 
 the causes which led to the plaintiff's injury might reasonably be expected 
 to affect others in the neighborhood, and therefore bis injury was not special."
 
 334 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 the private injury, and granted an injunction; and on the appeal Lord 
 Cottenham did not dissent from this view. 
 
 In this case I am of opinion that there has been a wholly unjustifi- 
 able stopping- up of a public or private way, it matters not which ; if 
 it is a public way the Attorney-General might have sued in respect of 
 the public nuisance, and the plaintiff may also sue in respect of his 
 individual injury; and therefore, on any view of the evidence, the 
 laintiff is entitled to an injunction. * * * 40 
 
 ^ 
 
 (b) Nuisance Distinguished from Other Torts 
 
 WESHBOURN AND MORDANT'S CASE. 
 (Court of King's Bench, 1589. 2 Leon. 103, 74 Reprint, 394.) 
 
 In an action upon the case, the plaintiff declared, that whereas he 
 was possessed of a parcel of land called the Parsonage, lying adjoyn- 
 ing to a certain river, from the 29 of May, 29 Eliz. untill the day of 
 the bringing of this writ, the defendant had the said twentieth day 
 of May stopt the said river with certain loads of earth, and so it con- 
 tinued untill the fourteenth day of February, by which his land was 
 drowned, and so he had lost the profit of it by that time. 
 
 And it was moved in arrest of judgment, that upon the declaration 
 there doth not appear any cause of action, for the plaintiff hath made 
 title to the land drowned from the twentieth of May, so as that day 
 is excluded, and the nusance is said to be made the twentieth day, and 
 so it appeareth the nusance was before the possession of the plaintiff ; 
 and if it were so, then cannot he complain of any wrong done before 
 his time : to which it was answered, that although the stopping was 
 made before his possession, yet the continuance of the same is after, 
 and a new wrong, for which an action lieth : as 5 H. 7, 4. It was pre- 
 sented, that an abbat had not cleansed his ditch, &c. by reason of 
 which the highway is stopt : the successor shall be put to answer the 
 said indictment, by reason of the continuance of it : and see, that con- 
 tinuation of a nusance is as it were a new nusance, 14 and 15 Eliz. 
 320. And it may be that the plaintiff was not damnified untill long 
 time after the twentieth day of May (scil.) after the stopping: and 
 the words of the writ here are satisfied and true: and afterwards 
 judgment was given for the plaintiff.'*^ 
 
 ■to Part of tlie statement of facts and part of tlie opinion are omitted. 
 
 41 Compare tlie Case of ttie Farmers of Hamp.stead-Water (1701) 12 Mod. 
 519: Trespass for digging a tiole in tlie plaintiff's soil, whereby his land 
 was overflown, continnaudo transgressionem for nine months: "And it was 
 insisted, that they might give evidence of a consequential damage after the 
 nine months, as well as in a nusance which continues for nine months." 
 Hut Holt, C. J., said "he was not satisfied that the parity would hold, for 
 tlie git of the action in a nusance is the damage; an<l therefore .is long 
 as there are damages there is ground for an action; but trespass is one 
 entire act, and the verj- tort is the git of the action."
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 335 
 
 CODjMAN V. EVANS. 
 (Supreme Judicial Court of Massachusetts, 1S63. 7 Allen, 431.) 
 
 Tort. The declaration was as follows : 
 
 "And the plaintiffs say that whereas they before and at the time of the 
 committing of the grievance hereinafter mentioned, were and from thence 
 hitherto have been and still are lawfully possessed of a certain close, abut- 
 ting on Tremout Street, so called, in said Boston, situate between the mes- 
 suages now numbered 175 and 176 on said street, and bounded westerly by 
 said street ; northerly by land of the defendant, to him conveyed by one 
 Rice ; easterly by a passage way running northerly, and leading to Mason 
 Street, so called ; and southerly by the northerly wall of the said mes- 
 suage now numbered 176, on said Tremont Street, yet the said defendant, well 
 knowing the premises, wrongfully and injuriously kept and continued, from 
 and upon the southerly wall of his messuage numljered 175 as aforesaid, 
 a certain building projecting and overhanging the plaintiff's said close, and 
 before then wrongfully erected and built, projecting as aforesaid, for a 
 long space of time, to wit, from the first of May last past hitherto." 
 
 After it had been determined that the plaintiffs should prevail in 
 this action, 5 Allen, 308, 81 Am. Dec. 748, they moved in the superior 
 court for judgment that the building mentioned in the declaration be 
 abated and removed, in so far as it overhangs their land described 
 therein, and that a w^arrant be issued to the proper officer requiring 
 him to abate and remove the same at the expense of the defendant, in 
 like manner as public and common nuisances are removed ; and it 
 was thereupon considered and adjudged by the court that the building 
 or bay-windows, overhanging the plaintiff's close, be abated and re- 
 moved.*^ The defendant appealed. 
 
 Bigelow, C. J. The only question open on this appeal is, wheth- 
 er there is anything on the record from which it appears that the judg- 
 ment for an abatement of the nuisance rendered by the court below 
 is erroneous in law. * * * 
 
 On reference to the declaration in the present case, it is clear that 
 it may properly be regarded as in the nature of an action on the case 
 for consequential injuries to the plaintiff's estate. It has not the pe- 
 culiar characteristics of an action of trespass to real property, either' 
 at common law or under the forms appended to the practice act. Gen. 
 St. c. 129. There is no allegation that the wrong or injury was com- 
 
 4 2 Part of the opinion is omitted. 
 
 Compare Pollock's remark, Indian Civil Wrongs Bill, § 55, note (g): "It 
 will not escape observation that to some extent the definition of nuisance 
 overlaps that of trespass (e. g. the overhanging eaves in Illustration 2 seem 
 to constitute a continuing trespass). This is so in England and all common- 
 law jurisdictions, and it does not produce any difiiculty or inconvenience that 
 I know of." Illustration 2 is as follows: "If Z. has a house whose eaves 
 overhang A.'s land, or if the branches of a tree growing on Z.'s land project 
 over A.'s land, this is a nuisance to A., inasmuch as it interferes with his 
 lK>wers of control and enjoyment ou his own property, and also tends to 
 discharge rain-water on A.'s laud."
 
 336 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 mitted "with force and arms" or "forcibly." 1 Chit. PI. (6th Amer. 
 Ed.) 144. It may be that an action .of trespass might have been 
 brought for the erection and continuance of the structure described in 
 the declaration, and that, on proof of the plaintiffs' title, and of the 
 facts and circumstances connected with the alleged wrongful act of 
 the defendant, such action would be the only appropriate and proper 
 remedy. But that is not the question before us on this record. We 
 are not called on to decide a question of variance between allegations 
 and proofs, but only to determine the nature of the action in which the 
 judgment appealed from was rendered. It seems to us that on this 
 point there can be no doubt. According to the strictness of the ancient 
 forms of pleading, the declaration in this action would have been a 
 good count in an action on the case. This clearly appears by reference 
 to Baten's Case, 9 Co. 53b, in which it will be found that the declara- 
 tion, mutatis mutandis, is almost identical with that in the case at bar. 
 The same is true of the declaration in the recent case of Fay v. Pren- 
 tice, 1 C. B. 828. It is true that in this last case there was an allegation 
 of special damage in its nature consequential, but it was expressly 
 held that the action might be maintained for other damage which was 
 not alleged, x^nd in Baten's Case, ubi supra, it was adjudged that the 
 plaintiff need not assign in a count in case for a nuisance any special 
 nuisance. It is sufficient if it appears from the declaration that the 
 nature of the structure is such that consequential damage would be 
 occasioned by the flow or dropping of water therefrom, and that other 
 similar injuries might ensue to the plaintiffs' property. 
 
 The error of the defendant consists in supposing that we can travel 
 out of the record, and that, by reference to the proceedings in the for- 
 mer action between these parties, and to the questions heretofore de- 
 termined in this suit, we can judicially ascertain that this action can 
 be supported by the plaintiff's only as an action of trespass.*^ But 
 this we cannot do. The objection that the facts did not supi)ort the 
 
 4 3 On the distinction between trespass and nuisance see also 21 Halsbury's 
 Laws of Enalaud, 506, note "k": "The following acts have been held to be 
 trespass: The actual pouring of water on to a neighbor's land (Prej^tou v. 
 Mercer [16.j61 Hard. 60, as explained in Reynolds v. Clarke, supra) ; injuring 
 a person on the highway by throwing logs at him (Reynolds v. Clarke, supra). 
 On the other hand the following acts were held or considered to be nuisance 
 and not trespass: Overburdening a floor, whereby it fell and did damage to 
 the goods of another in his cellar beneath (Edwards v. Halinder [ir)94] Poph. 
 46) ; diverting the water of a river by digging trenches in the defendant's 
 own ground (Levridge v. Hoskins [1709] 11 Mod. Rep. 257) ; fixing a spout to 
 defendant's house whereby water was poured on to the plaintiffs land (Reyn- 
 olds V. Clarke [1725] 1 Stra. 6.31) ; so working a mine as to cause water to 
 flow through other mines into those of the plaintiff (Ilawaixl v. Bankes [1760] 
 2 Burr. 1113) ; logs left by one party to lie in the highway to the personal 
 injury of another (Reynolds v. Clarke, supra, per Fortescue, J., at p. 635)." 
 
 And see Frazier v. Pennypack Trap Rock Co. (1901) 17 Montg. Co. (Pa.) 
 105, where the throwing of rocks upon adjoining premises by the discharge 
 of a blast, Iteing an actual physical invasion, was declared to be a trespass, 
 while concussions, produced at the same time, were declared to be a nuisance.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 337 
 
 declaration should have been taken at an earlier stage of the case. It 
 is now too late to raise it. It is sufficient to warrant the judgment for 
 abatement, that the declaration is in form an action of tort for a nui- 
 sance. 
 
 Judgment affirmed. 
 
 WILLIAMS V. PO^IEROY COAL CO. 
 (Supreme Court of Ohio, 1S82. 37 Ohio St. 583.) 
 
 Prior to January 30, 1868, one Xahum Ward owned in fee lot 1223, 
 on the Ohio river, in Meigs county, and at the same time one Philip 
 Hondesheldt was the owner in fee of lot 1222, and V. B. Horton was 
 the owner in fee of lot 301, and the latter had a lease from Honde- 
 sheldt granting the right to mine all the coal under the south half of 
 lot 1222. On August 10, 1858, Mr. Horton conveyed to the Pomeroy 
 Coal Company, by his lease of that date duly executed, his right to 
 mine and take away the coal under said two tracts of land. By the 
 terms of said lease the Pomeroy Coal Company bound itself to "quit 
 and surrender the premises" at the end of ten years, to wit, by August 
 10, 1868. The defendant entered upon the premises, and as early as 
 1862 had mined all the available coal thereon, and did, in that year, 
 abandon the said lease, with the consent of said Horton, and turned 
 over to him the abandoned mines on said premises. The defendants, 
 while excavating the coal on lot 1222, mined over on the adjoining lot 
 1223, from thirty-six to thirty-nine feet. In 1864 the plaintiff bought 
 lot 1223 of said Xahum Ward, and began operating the mines there- 
 on. In June, 1868, the workmen engaged in said plaintiff's mine tap- 
 ped the water which had accumulated in the abandoned mine, and it 
 flooded the mine of plaintiff'. The working over on lot 1223 was done 
 as early as 1861, but was not known to the plaintiff until the water 
 flowed into his mine as above stated. 
 
 A judgment in the common pleas, on a verdict for the defendant, 
 was affirmed, on error, by the district court. A petition in error is 
 prosecuted to reverse these judgments. 
 
 White, J. The decision of this case depends upon what constituted 
 the cause of action against the defendant, and when it accrued. 
 The claim of the plaintiff is that the cause of action consists of a 
 private nuisance caused by the excavation made by the defendant on 
 lot 1223 when removing the coal under his lease from the south half 
 of lot 1222, and that the cause of action is a continuing one and first 
 accrued when the water from the abandoned mine flowed over into the 
 mine of the plaintiff. On the other hand, the claim of the defendant 
 is that the cause of action consisted of the trespass committed in mak- 
 ing the excavation, and was completed when the work was done and 
 the mine abandoned. In the first place, it may be observed that this 
 Hepb.Tobts — 22
 
 338 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 is not a case where the defendant has wrongfully entered upon the 
 lands of the plaintiff and erected and maintained structures thereon. 
 Xor is it a case where structures have been erected and maintained on 
 the lands of the defendant or of another, to the nuisance or injury 
 of the plaintiff's premises. In these cases the wrong may, by the lapse 
 of time, ripen into a right under the statute of limitations or by pre- 
 scription. In speaking to this point in Clegg v. Dearden, 12 Ad. & 
 Ellis (N. S.) 601, Lord Denman uses the following language: "The 
 gist of the action, as stated in the declaration, is the keeping open and 
 unfilled up an aperture and excavation made by the defendant into the 
 plaintift''s mine. By the custom, the defendant was entitled to exca- 
 vate up to the boundary of his mine, without leaving any barrier, and 
 the cause of action, therefore, is the not filling up the excavation made 
 by him on the plaintiff's side of the boundary and within their mine. 
 It is not, as in the case of Holmes v. Wilson, 10 A. & E. 503, a contin- 
 uing of something wrongfully placed by the defendant upon the prem- 
 ises of the plaintiff'; nor is it a continuing of something placed upon 
 the land of a third person to the nuisance of the plaintiff, as in the 
 case of Thompson v. Gibson, 7 Mees. & W. 456. There is a legal obli- 
 gation to discontinue a trespass or remove a nuisance ; but no such 
 obligation upon a trespasser to replace what he has pulled down or 
 destroyed upon the land of another, though he is liable in an action of 
 trespass to compensate in damage for the loss sustained. The defend- 
 ant, having made an excavation and aperture in the plaintiff's land, 
 was liable to an action of trespass ; but no cause of action arises from 
 his omitting to reenter the plaintift"'s land and fill up the excavation. 
 Such an omission is neither a continuation of a trespass, nor a nui- 
 sance ; nor is it a breach of any legal duty." 
 
 The defendant in the present case had no estate or interest in lot 
 1222 further than the right to mine the coal therefrom. This he ac- 
 complished in 1862, and surrendered the premises. He had no author- 
 ity from the owner of the fee, nor from Horton, his immediate lessor, 
 to mine over into lot 1223 ; and at the time of the flowage of water 
 from the abandoned mine into the mine of the plaintiff, he had for 
 more than five years ceased to have any interest in lot 1222 or any 
 right of entry thereon. 
 
 If the claim of the defendant as to what constituted the cause of 
 action is correct, the action clearly cannot be maintained. 1. For the 
 reason that at the time of the commission of the trespass, the plaintiff 
 was not the owner of the land upon which the trespass was committed ; 
 and, 2, if he had been such owner, the action would be barred by 
 the statute of limitations. 
 
 There is no distinction in the application of the statute of limitations 
 between trespasses under ground and upon the surface; nor whether 
 the cause of action is known or unknown to the plaintiff within the 
 time limited by the statute. Hawk v, Minnich, 19 c3hio St. 466, 2 Am. 
 Rep. 413; Hunter v. Gibbons, 1 Hurl. & Nor. 459.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 339 
 
 The question therefore is, whether the defendant, in addition to 
 the Habihty for the trespass, is also liable for creating and continuing a 
 nuisance. If he is so liable a recovery for the trespass would be no 
 bar to subsequent actions for continuing the nuisance. 
 
 In Stephen's Commentaries (vol. 3, 499), a private nuisance is de- 
 fined to be "anything done to the hurt or annoyance of the lands, tene- 
 ments, or hereditaments of another, and not amounting to a trespass." 
 
 Here the only thing done by the defendant was the making of the 
 excavation upon the plaintiff's land, which did amount to a trespass. 
 
 Plaintiff's counsel claim that the action is brought to recover con- 
 sequential damages resulting from the wrongful acts of the defendant. 
 Be it so. But with what wrongful acts is the defendant chargeable 
 except those constituting the trespass ? We see none. And a recovery 
 for the trespass or the bar of an action brought for it, is a bar to a 
 recovery for the consequences resulting from such trespass. True, 
 this is not the ground upon which the jury were charged, but the error 
 in the charge was in favor of the plaintiff, and is no ground for re- 
 versal.** 
 
 Judgment affirmed. 
 
 HAYES v. BROOKLYN HEIGHTS R. CO. 
 
 (Court of Appeals of New York, 1910. 200 N. T. 183, 93 N. E. 469.) 
 
 Appeal, by permission, from an order of the Appellate Division of 
 the Supreme Court in the second judicial department, which affirmed 
 an interlocutory judgment of Special Term sustaining a demurrer to a 
 separate defense set forth in the answer. The following questions 
 were certified : 
 
 "1. Does the complaint herein state a cause of action for the maintenance 
 of a nuisance? 
 
 "2. Does the complaint herein state a cause of action for negligence? 
 
 "3. Should the demurrer to that part of the defendant's answer setting 
 up the three years' Statute of Limitations be sustained?" 
 
 44 Accord: National Copper Co. v. Minnesota Min. Co. (1S8.5) 57 Mich. S3, 
 96, 23 N. W. 781, 787 (58 Am. Rep. 33-3): "Neither party was under obliga- 
 tion to keep its mine pumped out for the benefit of its neighbor. Either was 
 at liberty to discontinue its operations and abandon its mine whenever its 
 interest should seem to require it. And had the plaintiff brought an action 
 within two years from the time of trespass, its recovery would necessarily 
 have been had with this undoubted right of abandonment in view. But a 
 jury could not have awarded damages for any exercise of a right, and they 
 could not, therefore, have given damages for a possible injury to flow from 
 such an abandonment. This is on the plain principle that the mere exercise 
 of a right cannot be a legal wrong to another, and if damage shall happen, 
 it is damnum absque injuria." Per Cooley, C. J. 
 
 Compare Lemmon v. Webb (1894) 3 Ch. 1: For more than twenty years 
 the branches of a number of large old oaks and elms on D.'s land have over- 
 hung P.'s boundary. Smith v. Giddy {im4) 2 K. B. 448: P. claims damages 
 because certain elm and ash trees on D.'s land overhang P.'s premises and 
 interfere with the growth of his fruit trees.
 
 340 TORTS THKOUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 HaiGht, J. This action was brought by the plaintiff to recover 
 damages for a personal injury alleged to have occurred on the 12th 
 day of March, 1902, on Second avenue, in the borough of Brooklyn, 
 by reason of his stepping into a hole or rut while crossing the avenue. 
 The complaint alleges that the defendant was operating a street sur- 
 face railroad upon the avenue in question and that it was its duty to 
 keep in repair that portion thereof between the rails of its tracks and 
 two feet in width outside of its tracks and that for a long time prior 
 thereto the defendant suffered that portion of Second avenue to be- 
 come and continue out of repair and a rut or hole to be formed therein 
 and to become rough and uneven ; and further that the suft"ering and 
 loss of earning power arid income of the plaintiff by reason of his in- 
 jury "were due solely to the wrongful and unlawful conduct of the 
 defendant, its agents and servants, in suffering said hole or rut to be 
 and remain in the street near its tracks." The separate defense in- 
 terposed by the defendant to which the plaintiff demurred is "that the 
 cause of action upon which a recovery is herein sought did not accrue 
 within three years next before the commencement thereof." The 
 Special Term sustained the demurrer and from the interlocutory judg- 
 ment entered thereon an appeal was taken to the Appellate Division, 
 which affirmed the same by a divided court. This action was com- 
 menced on the 11th day of March, 1908. 
 
 The C[uestion presented is as to whether the action is based upon a 
 nuisance or negligence. It will be observed that the complaint fails to 
 allege that there existed a nuisance or that the defendant was negli- 
 gent. Under the statute of limitations it is provided that an action to 
 recover damages for a personal injury, "except in a case where a dif- 
 ferent period is expressly prescribed in this chapter," shall be brought 
 within six years ; and it is further provided that an action to recover 
 damages for a personal injury resulting from negligence shall be 
 brought within three years. Code Civ. Proc. §§ 382, 383. If, there- 
 fore, the action alleged in the complaint resulted from negligence, the 
 separate defense set forth in the answer was good, and the demurrer 
 should not have been sustained. If, however, it did not result from 
 negligence, then the demurrer was properly sustained. 
 
 A public nuisance, in so far as it applies to the case under considera- 
 tion, consists in unlawfully doing an act or omitting to perform a duty, 
 which act or omission endangers the safety of any considerable number 
 of persons, or unlawfully interferes with, or tends to render dangerous, 
 a public park, square, street, or highway. Under the railroad law the 
 duty is imposed upon street surface railroads of keeping the space be- 
 tween their tracks and two feet on either side thereof in good and safe 
 condition. Consol. Laws, c. 49, § 178. The duty, therefore, of mu- 
 nicipalities of keeping their streets and highways in good and safe con- 
 dition, is, to the extent specified by the statute, also devolved upon the 
 railroad corporations, whose duty with reference thereto becomes the 
 same as that which rests upon the municipality.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 341 
 
 It will be observed that, tinder section 382, above referred to. the 
 six-year statute of limitations has no application in a case where a 
 different period is expressly prescribed, and under section 383 a differ- 
 ent period is prescribed where the injury results from negligence. The 
 question, therefore, arises as to whether the alleged injury in this case 
 was the result of negligence on the part of the defendant. If a mu- 
 nicipality or a railroad company should dig a pit or place a dangerous 
 obstruction in or upon a public street, which it was obligated to keep 
 in repair, it would be the creation of a public nuisance, and unques- 
 tionably the party creating the nuisance would be liable to a person 
 suffering injuries by reason thereof. So, also, an individual main- 
 taining a coal hole in the sidewalk in front of his premises with an in- 
 sufficient cover, or who constructs a water pipe which receives the 
 water collected from the roof of his building, and discharges it on the 
 surface of the sidewalk, from which ice forms as the water flows 
 across it to the gutter, becomes liable therefor as the creator of the 
 nuisance irrespective of any question of negligence. Clifford v. Dam. 
 81 N. Y. 52; Tremblay v. Harmony Mills, 171 N. Y. 598, 64 N. E. 
 501. 
 
 But where the obstruction to a public street has resulted from other 
 causes, or from the acts of others than that of the municipality, a dif- 
 ferent rule obtains with reference to its liability. In such cases the mu- 
 nicipality is not the creator of the nuisance; but it becomes its duty to 
 abate and remove the same, to the end that the public may pass safely 
 over the public street. It is not called upon to abate and remove 
 until it has notice of the existence of the obstruction, or such time has 
 elapsed after the existence of the obstruction as will raise a presump- 
 tion that the municipality or its officers had notice, or in the exercise 
 of due diligence should have had such notice. In such cases the fail- 
 ure to abate or remove the obstacle involves a question of negligence; 
 for, if it proceeds with reasonable diligence to remove the same, no re- 
 covery can be had against the municipality. But if it unreasonably 
 suffers the nuisance to exist, it does so by reason of its negligence, and 
 such becomes the basis of its liability.* 
 
 * Accord: McCluskey v. Wile (1911) 144 App. Div. 470, 129 N. T. Supp. 455: 
 The complaint alleged that the defendant, the owner of an apartment house in 
 which the plaintiff resided, "unlawfully, negligently, and carelessly permitted 
 a certain dog, the property of one of the tenants in said premises, to lie and 
 remain about the liallways, lobbies and staircases of said premises, so as to 
 be dangerous to the life and limb of persons traversing the said hallways, 
 lobbies, and staircases, and to become a nuisance, as the defendant well 
 knew." that the defendant omitted to light the hallway, and that the plaintiff, 
 without fault on her part, tripi)ed on the said dog, which she could not see 
 because of the defendant's failure to light the stairway, and was thereby in- 
 jured. If the cause asserted is for negligence, it is liarn^l by the statute; if 
 it is for nuisance it is not barred. "The plaintiff undertakes to distinguish the 
 case from Hayes v. Brooklyn Heights R. Co., 200 N. Y. 183, 93 N. E. 4G9, by 
 the distinction between the words 'suffer' and 'permit.' " 
 
 And see McXulty v. I.udwig & Co. (1912) 153 App. Div. 206, 138 N. Y. Supp. 
 84 ; Bailey v. Kelly (1915) 93 Kan. 723, 145 Pao. 556.
 
 342 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 Accordingly, in the case of Dickinson v. Mayor, etc., of N. Y., 92 
 N. Y. 584, where ice or snow had been suffered to remain upon a 
 crosswalk of a street, and that by reason thereof the plaintiff sustained 
 injuries for which he sought damages, it was held that the action was 
 one for negligence, and not for a positive wrong committed by the de- 
 fendant, and, therefore, the three-year statute of limitations ran 
 against it. 
 
 We do not understand the case of Robinson v. Chamberlain, 34 N. 
 Y. 389, 90 Am. Dec. 713, to be in conflict with our views as above ex- 
 pressed. True, it was held that a failure to keep a public highway in 
 repair by those who have assumed that duty from the state, so that it is 
 unsafe to travel over, is a public nuisance, making the party bound 
 to repair liable in an action by a person who has sustained special 
 damages by reason thereof ; but that action was for negligence. It 
 was prosecuted by the plaintiff against Chamberlain, a contractor who 
 had undertaken to keep the state canal in repair. An injury was sus- 
 tained ,by the plaintiff's canal boat in consequence of the defendant's 
 neglect to perform his duties, and he was held liable for the injury by 
 reason of his careless and negligent omission to perform his duties. 
 
 Our attention has been called to numerous other decisions bearing 
 upon the question but we do not deem it necessary to specifically refer 
 to fhem. We do not understand them to be in conflict with the dis- 
 tinction which we have made with reference to the two classes of cases 
 discussed. We have referred to the liability of municipal corpora- 
 tions for the reason that such cases are more numerous and have been 
 more generally under consideration in this court. In view of the fact, 
 however, that the liability of a railroad company is the same as that 
 of the municipality they become our guide in determining the ques- 
 tions involved in this case. 
 
 We entertain the view that the complaint alleges a cause of action 
 based upon negligence, and consequently the demurrer to the separate 
 defense set forth in the answer should be overruled. It follows that 
 the interlocutory judgment of the Appellate Division and Special Term 
 should be reversed and judgment ordered for defendant on demurrer, 
 with costs in all courts, with leave to plaintiff to withdraw demurrer 
 within twenty days on payment of such costs, and the second question 
 certified answered in the affirmative, and the third question certified 
 answered in the negative ; the first question not answered. Judgment 
 accordingly.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 3i3 
 
 HALL et ux. v. GALLOWAY et al. 
 
 (Supreme Court of Washington, 1913. 76 Wash. 42, 135 Pac. 478.) 
 
 This was an action for damages, brought by Hall and his wife. The 
 
 complaint set forth the following facts : 
 
 That the plaintiffs were husband and wife; that at the times mentioned 
 in the complaint they were the owners and proprietors of a certain hotel 
 which, at all the times mentioned, was a public house for the entertain- 
 ment of travelers; that the plaintiffs were compelled to receive all travel- 
 ers who properly apply for admission so long as there was room for them ; 
 that the plaintiffs conducted their house in an orderly manner and that 
 they and their hotel bore a good reputation in the community ; that about 
 9 o'clock p. m. on July 13, 1911, defendant Bannerman entered the hotel, 
 placed upon the register the names of J. E. Henderson and wife and George 
 H. Holmes and wife and asked for rooms, which were furnished to them ; 
 that the defendants and two females, imknown to the plaintiffs, entered the 
 rooms, remained there for about two hours until expelled by the plaintiffs ; 
 that the defendants falsely represented themselves to be husbands of the 
 females in question for the purpose of gaining admittance to the hotel and 
 were unknown to the plaintiffs; that, soon after gaining admission to the 
 hotel, the defendants and their consorts indulged in such lewd and disorderly 
 conduct that the plaintiffs forcibly ejected them, the other guests being 
 disturbed thereby; that by reason of this episode many guests of the hotel 
 were led to believe it a place of ill repute ; and that the plaintiffs were 
 brought into public scorn and disgrace, whereby the patronage of their hotel 
 was decreased, and as a consequence plaintiffs and each of them claimed to 
 have been damaged in the sum of $5,000. 
 
 On motion the trial court ordered the plaintiffs to state as separate 
 causes of action the alleged injury to Mr. Hall and the alleged injury 
 to Mrs. Hall. The court also ordered, on a motion to make specific, 
 that the plaintiffs set out the names of the guests and the names of 
 others who were led to believe that the house was of ill repute, and 
 also the amount of damages actually sustained by reason thereof. The 
 court based this order on the ground that the alleged misconduct was 
 not actionable per se, and that in order to be actionable it must result 
 in actual loss to the plaintiffs, and that the rule in slander cases deny- 
 ing damages for repetitions of slander apply here, and that the guests 
 at that time must be the ones who withdraw their patronage to the ex- 
 tent of causing loss, and that their names must be set forth. Attempt- 
 ing compliance with these orders, the plaintiffs filed their amended 
 complaint, which was ordered stricken out for the reason that it did 
 not set forth the names of the guests and others whose patronage was 
 lost by reason of the alleged actions of the defendants. Thereupon 
 the plaintiffs filed a second amended complaint to which a demurrer 
 was sustained on the ground that it did not state facts sufficient to con- 
 stitute a cause of action and that several causes of action were im- 
 properly united. The plaintiff's appeal from a judgment of dismiss- 
 al.*^ 
 
 Ellis, J. * * * The trial court, in sustaining the demurrer, 
 held, in effect, that the law making certain words actionable per se is 
 
 *6 The statement of the case is abridged, and part of the opinion is omitted.
 
 344 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 an exception to the general principles of the law of torts, and that such 
 an exception should not prevail where the action is founded on slan- 
 derous conduct rather than slanderous words. 
 
 The trial court, in granting the several motions above referred to 
 and in sustaining the demurrer to the complaint in its final form, drop- 
 ped into a fundamental error which seems to have colored his view of 
 the case throughout. This error consisted in a confusion of the law 
 as to acts illegal in their nature, constituting a private nuisance inju- 
 rious to the property of the plaintiffs as a community, with the rules 
 of law relating to words spoken of individuals constituting slander, 
 which is essentially a wrong personal to the individual slandered. 
 While it is true that the two things in their nature partake somewhat 
 of the same character, they are different in that the ultimate ground 
 of recovery in the one case is for an injury to the property right alone, 
 while in the other damages allowed are for an injury to personal char- 
 acter and the injury to the sensibilities resulting from the slanderous 
 words. The one is, of course, an injury to all persons interested in 
 the property affected by the illegal acts. The other is an injury only 
 to the person of whom the slanderous words are spoken. As we view 
 the original complaint, it stated every fact necessary to the allegation 
 of the perpetration by the defendants of a private nuisance actionable 
 per se in favor of the person whose property was injuriously affected. 
 The statute (Rem. & Bal. Code, § 943), in defining actionable nuisanc- 
 es, included whatever is injurious to health, or indecent, or offen- 
 sive to the senses, or an obstruction to the free use of property, so as 
 to essentially interfere with the comfortable enjoyment of life and 
 property, and declares the same the subject of an action for damages 
 and also for other and further relief. Section 944 specifically declares 
 that any person whose property is injuriously affected or whose per- 
 sonal enjoyment is lessened by the nuisance may maintain the action. 
 While the original complaint was inartificial in form, it stated every 
 fact essential to a cause of action for a private nuisance so de- 
 fined. * * * 
 
 Judgment reversed. 
 
 (B) Elements of a Prima Pacie Cause in Nuisance 
 
 (a) The Facts to be Pleaded, in an Action foe Damages ^o 
 
 "Nuisance" is a good word to beg a question with. It is so compre- 
 hensive a term, and its content is so heterogeneous, that it scarcely 
 does more than state a legal conclusion that for one or another of 
 
 4 Until a comparatively recent day, the standard declaration in trespass 
 on the case in nuisance, like the standard d(>clarati<)n in trespass on the 
 case in trover, beclouded the doctrine with immaterial matter. The follow- 
 ing precedent, from 3 Chitty on l'k'a(liIl^^ 433 (181G), is of this class: 
 
 "For that whereas the said A. B. on, etc., and long before was and con-
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 345 
 
 widely varying reasons the thing stigmatized as a nuisance violates the 
 rights of others. 
 
 Ezra Riplev Thayer, "Public Wrong and Private Action," 27 Harv. 
 Law Rev. 326 (1914). 
 
 LAFLIN & RAND POWDER CO. v. TEARNEY. 
 
 (Supreme Court of Illinois, 1890. 131 111. 322, 23 N. E. 390, 7 L. R. A. 262, 
 
 19 Am. St. Rep. 34.) 
 
 This was an action on the case, brought against the powder com- 
 pany, to recover for damage to buildings on the premises of the plain- 
 tiff, caused by the explosion of a powder magazine on the premises of 
 the defendant. The declaration was not demurred to. Motions by the 
 defendant for a verdict in its favor, for a new trial, and in arrest of 
 judgment were all denied; and verdict and judgment were entered for 
 the plaintiff. This judgment being affirmed in the Appellate Court, the 
 defendant appeals. 
 
 Magrude;r, j_ * * * Ji [^ claimed by the appellant that the 
 declaration does not set out a cause of action. 
 
 The first objection made to the declaration is that it does not charge 
 the defendant with negligence. The objection is not well taken. The 
 powder magazine kept by the defendant upon its premises was so sit- 
 uated with reference to the dwelling house of the plaintiff, that it was 
 liable to inflict serious injury upon her person or her property in case 
 of an explosion. It was a private nuisance, and, therefore, the defend- 
 ant was liable whether the powder was carefully kept or not. As a 
 
 tinually from thence hitherto hath been, and still is, lawfully possessed of 
 and in a certain messuage or dwelling-house, with the appurtenances, sit- 
 uate and being at the parish of , in the county of , and by reason 
 
 thereof, during all the time aforesaid, was and still is lawfully entitled to 
 the use and enjoyment of a certain coach-walk or avenue, and of a certain 
 footwalk or avenue there near adjoining and leading to the said messuage 
 or dwelling-house, and to the shade, shelter, i^rotection, and ornament of 
 
 divers trees, to wit, elm trees and lime trees, during all the 
 
 tim.e aforesaid, growing and being in the said walks or avenues ; yet the 
 said C. D. well knowing the premises, but contriving and wrongfully intend- 
 ing to hurt, injure, and prejudice the said A. B. in this behalf, and to obstruct 
 him in the use and enjoyment of the said walks and avenues, and to deprive 
 him of the shade, shelter, protection, and ornament of the said trees there, 
 whilst the said A. B. was so possessed and entitled as aforesaid, to wit, on 
 the same day and year aforesaid, and on divers other days and times between 
 that day and the day of exhibiting the bill of the said A. B. at, etc., afore- 
 said, wrongfully and injuriously cut, lopped, and topped the said trees, to 
 
 wit, of the said elm trees, and of the said lime trees. By 
 
 means whereof the said A. B. hath been greatly obstructed and prejudiced 
 in the use and enjoyment of the said walks and avenues, and hath been and 
 is greatly deprived of the shade, shelter, protection, and ornament of the 
 said trees so lopped, topped, and cut as aforesaid, to wit, at, etc., aforesaid." 
 
 By the middle of the last century, however, the following form was recog- 
 nized as a suflk'ient count in trespass on the case in nuisance: 
 
 "That the plaintiff was possessed of a dwelling-house in which he dwelt, 
 and the defendant wrongfully built a brick kiln near thereto, and caused 
 noxious and unwholesome smells, wliereby the j)lainlifT's dwelling-house be- 
 came unfit to live in." See 2 Chitty on Pleading (lUth Am. h.d.) oHi.
 
 346 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 general rule, the question of care or want of care is not involved in 
 an action for injuries resulting from a nuisance. If actual injury re- 
 sult from the keeping of gunpowder, the person keeping it will be liable 
 therefor, even though the explosion is not chargeable to his personal 
 negligence. Wood's Law of Nuisance (1st Ed.) §§ Th, 115, 130, 142; 
 Heeg V. Licht, 80 N. Y. 579, 36 Am. Rep. 654 ; Cheatham v. Shearon, 
 1 Swan (Tenn.) 213, 55 Am. Dec. 734; Stout v. IMcAdams, 2 Scam. 
 (111.) 67, 33 Am. Dec. 441 ; Ottawa Gas Co. v. Thompson, 39 111. 600; 
 Nevins v. City of Peoria, 41 111. 502, 89 Am. Dec. 392 ; Cooper v. Ran- 
 dall, 53 111. 24; Elvers v. Malcolm, 6 Hill (N. Y.) 292, 41 Am. Dec. 
 744; Hay v. Cohoes Co., 2 N. Y. 159, 51 Am. Dec. 279; Phinizy v. 
 Augusta, 47 Ga. 263; Burton v. McClellan, 2 Scam. (111.) 434; Wier's 
 Appeal, 74 Pa. 230. 
 
 The second objection to the declaration is that it does not specifically 
 aver the powder magazine to be a nuisance. It was not necessary to 
 use the word "nuisance," if the facts alleged constituted a nuisance. 
 The declaration avers, that it was the duty of the defendant to so use 
 Its premises as not to jeopardize the buildings of the plaintiff, and not 
 to store upon its premises any dangerous substance whereby plain- 
 tiff's property might be destroyed in case of an explosion ; 
 
 that the defendant did keep upon its premises a magazine of gunpowder, 
 dynamite, etc., and stored therein a large amount of gunpowder, dynamite, 
 etc.. that the guniiowder, dynamite, etc., so liept upon said premises, ex- 
 ploded, and that, by means of such explosion, "the material of which such 
 magazine was constructed was then and there driven with great force and 
 violence upon and against the property of the plaintiff hereinbefore de- 
 scribed," and that "the following property of the plaintiff was, by means of 
 such explosion, struck by flying missiles, rocks, and stones, and was wrecked 
 and torn by means of the concussion of the air, then and there caused by 
 said explosion, and was totally destroyed and lost, and was of great value — 
 to wit: One two-story frame dwelling," etc. 
 
 "A private nuisance is defined to be anything done to the hurt or 
 annoyance of the lands, tenements or hereditaments of another. 3 Bl. 
 Com. 216. Any unwarrantable, unreasonable or unlawful use by a 
 person of his own property, real or personal, to the injury of another, 
 comes within the definition stated, and renders the owner or possessor 
 liable for all damages arising from such use." Pleeg v. Licht, 80 N. Y. 
 579. The averments of the declaration bring the present case within 
 the definition thus quoted. The fact that the magazine exploded shows 
 that it was dangerous. The fact, that the explosion destroyed plain- 
 tiff's buildings, shows, that the keeping of gunpowder in the magazine, 
 considered with reference to "the locality, the quantity and the sur- 
 rounding circumstances," constituted a nuisance per se. Heeg v. 
 Licht, supra ; Wood's Law of Nuisance, § 142, supra. * * * 
 
 The judgment of the Appellate Court is affirmed.*^ 
 
 <7 The statement of facts is abridged and part of the opinion is omitted. 
 
 See also Sullivan v. Waterman (1808) 20 R. I. 372, 375, 3'J Atl. 24;!, .39 L. 
 R. A. 773 (the declaration did not in terms allege that the acts complained 
 of constituted a nuisance). 
 
 Magaru Oil Co. v. Ogle (1912) 177 Ind. 292, 294, 98 N. E. 60, 02, 42 L,
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 347 
 
 HOLMES V. CORTHELL. 
 
 (Supreme Judicial Court of Maine, ISSS. 80 Me. 31, 12 Atl. 730.) 
 
 The action was for obstructing a public way by building a stone wall 
 across it, whereby the plaintiff claimed to have suffered special dam- 
 age. 
 
 Haskell, J. * * * it is settled in this state that one who suf- 
 fers special injury, no matter how inconsiderable, from a common nui- 
 sance, may recover damages in an action at law from the person creat- 
 ing it, (Rev. St. 1883, c. 17, § 12; Brown v. Watson, 47 Me. 161, 74 
 Am. Dec. 482 ; Dudley v. Kennedy, 63 Me. 465 ;) and from the per- 
 son maintaining it after request to abate it, (Pillsbury v. Moore, 44 
 Me. 154, 69 Am. Dec. 91.) Three demurrers to the declaration have 
 been filed, and two amendments of it have been allowed. To the sus- 
 taining of the last demurrer to the declaration, as finally amended, the 
 plaintiff' has taken exception. The declaration avers the existence of 
 a public way, and the obstruction of it by the defendant in erecting a 
 stone wall across it, whereby, on a given day and on divers other days 
 and times, etc., the plaintiff in attempting to travel upon such way, was 
 "hindered, obstructed, and prevented from passing" along it, and "in- 
 curred great danger and suffered great pain and inconvenience, in at- 
 tempting to climb and pass over said wall," and thereby was injured in 
 his comfort, property, and the enjoyment of his estate. The plaintiff 
 avers that he was "hindered," etc., from passing along the way. Be 
 it so. No averment shows any specific damage from this hindrance. 
 It does not appear that upon any special occasion he was thereby com- 
 pelled to make a longer detour to reach a particular place where he had 
 need to go ; nor that he lost any time or was put to any expense there- 
 by. He may have incurred danger and suffered pain in trying to climb 
 the wall, both of which may have resulted from his own careless or 
 rash conduct, for which the defendant is not responsible. The plain- 
 tiff avers that certain of the work-people in his sardine factory "were 
 hindered and prevented from going to and attending to their work, 
 whereby he lost and was deprived of their services." Suppose this to . 
 
 R. A. (N. S.) 714, Ann. Cas. 1914D, 67: "It is insisted that the complaint is 
 defective because it contains no averment that the plaintiff was free from 
 contributory negligence, and no averment of facts showing that plaintiff could 
 not have protected his property by exercising ordinary care. This theory is 
 untenable. This is not an action for damages for negligence, but for damages 
 for the maintenance of a nuisance, and to enjoin or abate it. Sections 291- 
 293, Burns 190S ; sections 289-291, R. S. 18S1. In cases of this character, 
 the rules governing the sufficiency of complaints for negligence have no 
 application." Per Morris, C. J. 
 
 Hall V. Galloway (1913) 76 Wash. 42, 50, 135 Pac. 478, 481: "This case 
 being an action for damages for the perpetration of a private nuisance in- 
 jurious to the plaiutilf's property, the complaint was not deiuurrahle l)ecause 
 of its failure to allege the specific items of damage claimed as would have 
 been the case had the action been by a private person for special damages 
 sustained by reason of the perpetration of a public nuisance."
 
 348 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 be true, where is the injury to the plaintiff? He does not aver the 
 loss of their service to be at his cost, nor that their services, if ren- 
 dered, would have been of any value to him. Upon this score the 
 plaintiff does not appear to have suft'ered any damage. 
 Exceptions overruled.** 
 
 (b) Nature of the Plaintiff's Interest 
 
 WARREN V. WEBB. 
 (Court of Common Pleas, 1808. 1 Taunt. 379, 127 Eeprint, 880.) 
 
 The plaintiff declared that he was possessed of a dwelling house in 
 the parish of St. George the Martyr, in the county of Surrey, and 
 that the defendant possessed a shop contiguous, and a wooden spout 
 affixed thereon, for carrying off the rain water from the roof, which 
 spout it belonged to the defendant to keep in such repair, that no in- 
 jury should happen to the plaintiff's dwelling house; and alleged that 
 the defendant suffered the spout to be out of repair, to wit, at West- 
 minster, in the county of Middlesex aforesaid, whereby the rain water 
 soaked through the spout, and penetrated and injured the plaintiff's 
 wall, to wit, at Westminster, in the said county. The premises were 
 proved to be in Surrey. At the trial of this cause at the Westminster 
 sittings after last Easter term, before Mansfield, Ch. J., a verdict was 
 found for the plaintiff', with liberty for the defendant to move to enter 
 a nonsuit, upon the ground that this was a local action, and that the 
 venue ought to have been laid in Svirrey, where the nuisance v;as com- 
 mitted, whereas it was alleged to have happened in Middlesex. Ac- 
 cordingly, Cockell, Serjt., in Trinity term last, obtained a rule nisi 
 to enter a nonsuit. 
 
 Mansfield, C. J. The objection taken in this case was that the 
 plaintiff did not at the trial support his declaration. The defendant's 
 counsel supposed that in the declaration the defendant's house was 
 
 4 8 The statement of facts is abridged and part of tlie opinion is omitted. 
 
 Accord: Stone v. Wakeuian (1608) Noy, 120: "Yet for another cause by 
 the Couit the plaintiff shall not have .iudu'meiit (on a motion in arrest of 
 judtrment) ; becuuse he hath not shewn how he hath suft'ered any pariicuiar 
 damage or loss by that stopper." The action was in case "for stopping of 
 a way." Sohn v. Cambern (1SS5) 106 Ind. 302, 6 N. E. 813: "The utmost 
 that can be said of the facts stated in the special finding is, that they show 
 that the appellee's route to her market town is interfered with by the ob- 
 struction placed in the highway, and this is not sutlicient to entitle her to 
 maintain this action. * * * It is true that the special finding states in 
 general terms that the appellee has suffered special injury, but this is a mere 
 statement of a legal conclusion, and is not the statement of a fact. Special 
 fiiulings, like special verdicts, must state facts, and not simply conclusions 
 of law." Per Elliott, J. Van Buskirk v. Bond (11)08) 52 Or. 2.34, \)(i l»ac. 
 1103: Suit by private parties to enjoin an alleged pulilic nuisance. The 
 statement of the plaintiff's damage was merely "that they are peculiarly 
 and particularly injured by reason of the attempted closing of said roads 
 by the defendant."
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 349 
 
 alleged to be in ^Middlesex, and the evidence was that the house was 
 in Surrey. On reading the declaration it at first appeared to me that the 
 videlicet in the county of Middlesex, as applied to a house or anything 
 else in Surrey, in its nature local, is nonsense, and a contradiction in 
 terms. And upon consideration the true sense appears to be this : It 
 is a description of the house, a local object, which it states to be in 
 Middlesex, and consequently the objection must prevail. If this is not 
 a description of the place where the defendant's house is situated there 
 is no description of it, and if no place is alleged in the declaration, it 
 must be intended that the house lies in the county in which the nui- 
 sance is alleged to be committed, which is Middlesex. Therefore 
 quacunque via data the declaration is not supported.'*'^ 
 Rule absolute. 
 
 M ALONE V. LASKEY. 
 
 (In the Court of Appeal. [1907] 2 K. B. 141.) 
 
 Sir Gore;ll Barnes, President. °° In this case the plaintiff sues the 
 defendants for damages for injuries sustained by her under circum- 
 stances which I will state sufficiently fully to indicate the point that 
 we have to decide. The premises on which the accident happened be- 
 
 4 9 Compare Fitz. Ab. Accion sur le Cas, pi. 24, where it is said by Mark- 
 ham: '"Si home leve un fosse ou molin a travers de mou chymin, j'avera 
 assise de nusans et mil aiiter brief." 
 
 For the nature of the Assize of Nuisance, as a real action, see 3 Bl. Com. 
 221; Jenks' Short Hist. Eng. Law, 94; 2 Pollock and Maitland, Hist. Eng. 
 Law, 53: "To meet that troubling of possession which is caused by nuisances 
 as distinguished from trespasses, that is, by things that are erected, made, 
 or done, not on the soil possessed by the complainant but on neighbouring 
 soil, there has all along been an 'assize of nuisance" which- is a supplement 
 for the novel disseisin. Law endeavours to protect the person who is seised 
 of land, not merely in the possession, of the land, but in the enjoyment of 
 those rights against his neighbours which he would be entitled to were he 
 seised under a good title." The scope of the assize was slightly extended by 
 the Statute of Westminster II. "Indeed, the narrow scope of the assize is 
 given as an illustration of the kind of evil the statute was meant to remedy." 
 And so popular did the action in the case become that the older remedy of 
 the assize, even where it was available, soon tended to disappear." 3 Holds- 
 worth's Hist. Eng. Law, 8; Jenks' Shorter Hist. 94. 
 
 On the continuance of the local character of the cause for a private nui- 
 sance notwithstanding its development into a possible cause for damages 
 merely, compare 40 Cyc. 20, 21, "Actions with a Ix)cal Source," and Waits 
 V. Kinney (184.3) 6 Hill (N. T.) 82, 91. An analogous limitation appears in the 
 doctrine as to the character of the cause to recover damages merely for a 
 trespass to land. See 40 Cyc. 31, 72 ; but see Little v. Chicago, etc., R. Co. 
 (1896) 65 Minn. 48, 53, 67 N. W. 846, 33 L. R. A. 423, 60 Am. St. Rep. 421. 
 
 On both principle and authority an action to abate a nuisance .should re- 
 main local. Compare 40 Cyc. 73; Northern Indiana R. Co. v. Miehican 
 Cent. R. Co. (18.~).3) 15 How. (U. S.) 233, 244, 14 L. Ed. 674. And see Simmons v. 
 Liliystone (1853) 8 Exch. 441. 
 
 50 The reporter's statement of the case, the arguments of counsel, the con- 
 curring opinions of Fletcher Moulton and Kennedy, L. .TJ., and so nnich of 
 Sir Gorell Barnes' opinion as relates to the question of negligence, are omit- 
 ted. As respects negligence in such a case, see infra.
 
 350 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 long to the Birkbeck Building Society, and the defendants are the trus- 
 tees for that society. A house which belonged to them was let by the 
 defendants in 1899 to Witherby & Co., who in 1901 sub-let a portion 
 to the Script Shorthand Company. Malone, the plaintiff's husband, was 
 in that company's employ and occupied a part of the premises, ap- 
 parently as part of the consideration for his services to his employers. 
 There was a lavatory in the house, of which Malone and his family 
 had the use and apparently the exclusive use; and in the lavatory 
 there was flush cistern, which was fixed against the wall. About the 
 end of 1904 the cistern was said to be in an unsafe condition, and a 
 communication was made by the plaintiff or her husband to Wither- 
 by & Co. on the subject. On December 26 Witherby & Co. wrote to 
 Priest, who was one of the staff employed by the defendants, saying 
 that the cistern required to be replaced and was then in a dangerous 
 condition. On January 6, 1905, the plaintiff wrote another letter of 
 complaint to the representative of Witherby & Co., in which vibration 
 was alluded to as a cause of the dangerous state of the cistern. The 
 vibration to which that letter referred arose from the working of an 
 electric light engine which was worked by the defendants on their 
 premises close to this building, and its constant working is said to have 
 affected the security of the cistern or tank. Some time in the same 
 month the defendants, to whom the complaints had been handed on by 
 Witherby & Co. sent two plumbers, who were the servants of the 
 defendants and part of their permanent staff, to rectify the defect in 
 the condition of the cistern. The plumbers placed an iron bracket un- 
 der the cistern to support it, and were then apparently satisfied that 
 they had left it secure. This unfortunately turned out not to be the 
 fact. In May, 1905, while the plaintiff was in the lavatory, she was 
 injured by the bracket falling on her and inflicting injuries, to recover 
 damages for which she brought the present action. At the trial Dar- 
 ling, J., left certain questions to the jury, in answer to which they 
 found that the bracket fell by reason of the working of the engine ; 
 that the working of the engine amounted to a nuisance; that the plain- 
 tiff's injuries were the consequence thereof ; that the defendants put 
 up the bracket in an improper and negligent manner, and left the ap- 
 paratus in a dangerous condition, and that the plaintiff was injured in 
 consequence; and they assessed the damages at £400. We are now 
 asked to set aside the judgment for the plaintiff and enter judgment 
 for the defendants, or to send the case back for a new trial, but the 
 substantial point argued has been whether judgment should be entered 
 for the defendants. There is one further fact which I ought perhaps 
 to mention. The plaintiff said in cross-examination that she remem- 
 bered that when the new bracket was put up she did not think it was 
 safe, and that she wrote again about it. There is also some evidence 
 given by the husband and daughter that the tank shook after the brack- 
 et was put up. No cjuestion, indeed, was put to the jury as to the 
 knowledge of the plaintiff that the cistern was still unsafe, possibly
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 351 
 
 because the plaintiff had been considerably injured by the accident, 
 and her evidence was therefore kept as short as possible. Therefore 
 any discussion of the question whether the plaintiff knew the risk, and 
 accepted the position of acting as though the cistern were safe, must 
 be conducted independently of any finding of the jury on the point. 
 
 The two main questions argued before us were (1) whether the plain- 
 tiff had a cause of action arising from the nuisance alleged, which 
 question involves the consideration of the first three questions left to 
 the jury; and (2) whether there was a cause of action based on the 
 negligence of the defendants in undertaking to do the work and doing 
 it in such an improper manner that injury resulted to the plaintiff. As 
 to the first question, I must confess to feeling some doubt whether 
 there was any substantial evidence that the fall of the bracket was due 
 to the alleged vibration, but that would only aft'ect the question of 
 whether there should be a new trial. I doubt whether the findings of 
 the jury can be correct; the plaintiff contended that the use of oil in 
 the engine had made a change, but the defendants reverted from Jan- 
 uary to May to the use of coal ; and further, as the engine had been 
 working for years, it is not likely to have done this damage in three 
 months. The main question, however, on this part of the case is 
 whether the plaintiff can maintain this action on the ground of vibra- 
 tion causing the damage complained of, and in my opinion the plain- 
 tiff has no cause of action upon that ground. Many cases were cited 
 in the course of the argument in which it had been held that actions 
 for nuisance could be maintained where a person's rights of property 
 had been aft'ected by the nuisance, but no authority was cited, nor 
 in my opinion can any principle of law be formulated, to the effect 
 that a person who has no interest in property, no right of occupation 
 in the proper sense of the term, can maintain an action for a nuisance 
 arising from the vibration caused by the working of an engine in an 
 adjoining house. On that point, therefore, I think that the plaintiff 
 fails, and that she has no cause of action in respect of the alleged 
 nuisance. * * * ^^ 
 
 Judgment for defendants. 
 
 HOSMER v. REPUBLIC IRON & STEEL CO. 
 
 (Supreme Court of Alabama, 1913. 179 Ala. 415, 60 South. SOI, 
 43 L. R. A. [N. S.] 871.) 
 
 Action against the Steel Company. Judgment for defendant on de- 
 murrer, and plaintiff appeals. 
 
 The facts made by the complaint are that, for a long time previous 
 to the grievances herein complained of, plaintiff occupied and resided 
 
 51 Compare Hogle v. Franklin Mfg. Co. (1910) 199 N. Y. 388, 92 N. E. 794, 
 32 L. R. A. (N. S.) 1038, whore the successful plaintiff resided with her hns- 
 baud in a house the lease of which from the owuer was "in the husbund's 
 name as lessee."
 
 352 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 with his family, including intestate, who was his son, upon land near 
 Greeley, Ala., and that, after plaintiff's residence and occupation upon 
 said land had commenced, the defendant dammed up certain water, 
 and thereby created a pond near plaintiff's residence; that defendant 
 was engaged in the development of iron and other minerals, and had 
 caused said pond to remain there for a long time, and had placed in 
 said pond various substances, which caused said pond to give off foul 
 and unwholesome and noxious air, and caused said premises on which 
 plaintiff resided to become unhealthy, causing plaintiff's boy to be- 
 come sick, so that he died. The demurrers were that the cause of ac- 
 tion did not survive to the personal representative, and that the dam- 
 ages claimed did not survive; that there was nothing to show that 
 plaintiff's intestate was the owner of the land, or had any possessory 
 or leasehold interest therein ; that the damages claimed are purely con- 
 sequential ; and that no right of action was shown. 
 
 Sayre, J. The eft'ect of the complaint is to aver that the death of 
 plaintiff's intestate, on account of which he sues, was caused by an 
 issue of foul, unwholesome, and noxious air from a pond which de- 
 fendant corporation constructed in the neighborhood of his residence, 
 where intestate, his minor child, lived with him. We are not required 
 to know how plaintiff' will prove the causation alleged ; but, accepting 
 the allegation as true and provable on demurrer, there will be no ques- 
 tion but that it shows damage peculiar to intestate, not merely in de- 
 gree but in kind. The only factor of the case presented which it is 
 conceived may possibly be effective in denial of the cause of action as- 
 serted is that plaintiff's intestate owned no legal interest or estate in 
 the land upon which he lived. To sustain his contention that the com- 
 plaint is defective in this respect, appellee quotes Blackstone's defini- 
 tion of nuisance as "anything done to the hurt or annoyance of the 
 lands, tenements, or hereditaments of another." We have made ap- 
 proving use of that definition in several cases. On this occasion it is 
 necessary to note that the hurt or annoyance of the definition is not 
 necessarily a physical injury to the lands, tenements, or hereditaments, 
 but may be an injury to the owner or possessor thereof in respect of 
 his dealing with, possessing, or enjoying them. Cooley on Torts (3d 
 Ed.) 1174. 
 
 At the old common law, a declaration in a suit brought for the 
 physical abatement of a nuisance by the writ of nuisance was required 
 to allege a freehold estate in the premises affected, but that was be- 
 cause the action was a real action. One modern way of abating a nui- 
 sance is by an action on the case for damages merely, in which case 
 the declaration need only show that the plaintiff was rightfully in ])os- 
 session of the premises affected. 14 Ency. PI. «& Pr. 1113. This rem- 
 edy, however, is not permitted to those who suffer only in common 
 with the public ; for otherwise, in the language of Chief Justice Shaw 
 in Quincy Canal v. Newcomb, 7 Mete. (Mass.) 276, 39 Am. Dec. 778, 
 where he was speaking of a public nuisance which had not become a
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 3^3 
 
 private nuisance by reason of special damage to the plaintiff, that 
 '"would lead to such a multiplication of suits as to be itself an intol- 
 erable evil." But that is as far as the best considered cases have gone 
 in the policy of repressing litigation on account of wrongs done and 
 suffered through nuisances, and we apprehend it is as far as the 
 courts ought to go or will. This court, in common with all others, has 
 held that the fact that a nuisance may have deleteriously affected the 
 property or personal well-being of others in the neighborhood does not 
 alleviate any material and special injury done to the plaintiff, nor 
 merge it in the public wrong for which the public may have a remedy 
 in one way or another. Richards v. Daugherty, 133 Ala. 569, 31 
 South. 934. It is obvious that to maintain an action for an injury af- 
 fecting the value of the freehold the plaintiff must have a legal estate. 
 But if noxious vapors and the like cause sickness and death to one 
 who has a lawful habitation in the neighborhood, no sufficient reason 
 is to be found in the accepted definitions of nuisance, nor in that pol- 
 icy of the courts which would discourage vexatious litigation, nor in 
 the inherent justice of the situation, as we see it, why the person in- 
 jured, or his personal representative in case of death, should not have 
 reparation in damages for any special injury he may have suffered, 
 although he has no legal estate in the soil.°- Certainly a child has the 
 right to live under his father's roof — is a lawful occupant of his fa- 
 ther's home — and in our opinion he should be accorded the same meas- 
 ure of protection against the construction of nuisances in the neigh- 
 borhood which are so noxious and long-continued as to materially af- 
 fect his physical well-being. Ft. Worth & Rio Grande Ry. v. Glenn, 
 
 52 On the widening theory of Nuisance compare the following: 
 
 (I) "Private nuisance is the using or authorizing the use of one's property, 
 or of anything under one's control, so as to injuriously affect an owner or 
 occupier of property (a) by diminishing the value of that property; (b) 
 by continuously interfering with his power of control or enjoyment of that 
 property ; (c) by causing material disturbance or annoyance to him in his 
 use or occupation of that property." Pollock's Draft of a Civil Wrongs Bill, 
 for the Government of India (1886) § 55. 
 
 (II) "A nuisance consists in unlawfully doing an act or omitting to per- 
 form a duty, which act or omission either: (1) Annoys, injures or endangers 
 the comfort, repose, health or safety of others; or (2) offends decency; or 
 (3) unlawfully interferes with, or obstructs or tends to obstruct or renders 
 dangerous for passage any lake or navigable river, bay, stream, canal or 
 basin, or any public park, square, street, or highway ; or (4) in any way 
 renders other persons insecure in life or in the use of property." Civ. Code 
 N. D. (1877) § 2(^7; Rev. Codes (190.5) § 6641; Comp. Laws Okl. (1909; § 
 4751; Rev. Codes S. D. (1903) § 2393. 
 
 (III) "Whatever is injurious to health, or indecent or offensive to the 
 senses, or an obstruction to the free use of property, so as essentially to in- 
 terfere with the comfortable enjoyment of life or property, is a nuisance, and 
 the subject of an action." Rev. St. Ind. (1852) vol. 2, pt. 2, § 628; Burns' Ann. 
 St. (1914) § 291. 
 
 The same or a similar enactment, sometimes with further clau.ses, appears 
 in Civ. Code Cal. (1906) § 3479: Rev. Codes Idaho (1909)' § .3656; Code 
 Iowa (1897) § 4.302; Rev. Laws Minn. (1905) § 4446: Rev. Codes Mont. (1907) 
 § 6162 : Comp. Laws Utah (1907) § 3506 ; Pierce's Code Wash. (1905) § 1265. 
 
 Hepb.Toets — 23
 
 354 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 97 Tex. 586, 80 S. W. 992, 65 L. R. A. 818, 104 Am. St. Rep. 894, 1 
 Ann. Cas. 2/0. In that case may be found a discussion of most of the 
 cases upon which appellee relies, and, while they have had due consid- 
 eration by us, we have not felt obliged by duty or expediency to repeat 
 what was there said. We have stated our concurring conclusion, and, 
 in a general way, the reasons upon which we proceed. This must suf- 
 fice. 
 
 The court erred in sustaining the demurrer as for any ground as- 
 signed, and the judgment will be reversed.^^ 
 
 ^\ (c) The Defendant's Act 
 
 ROBERTS et al. v. HARRISON. 
 
 (Supreme Court of Georgia, 1897. 101 Ga. 773, 28 S. E. 995, 
 
 65 Am. St. Rep. 342.) 
 
 Simmons, C. J. A petition was filed by Roberts and five others, 
 under section 4760 of the Civil Code, for the removal of a pond of 
 water, which had collected upon the lands of W. O. Harrison. The 
 jury returned a verdict finding the pond a nuisance, and the justices 
 
 6 3 Accord: Ft. Wortli & Rio Grande Ry. Co. v. Glenn (1909) 97 Tex. 586, 
 80 S. W. 992, 65 L. R. A. 818, 104 Am. St. Rep. 894, 1 Ann. Cas. 270: (D., 
 a railway company, permitted an old well upon its right of way, near laud 
 owned and occupied by P.'s fattier and his family, to become a nuisance. 
 P., an infant three years old, was made sick by noxious gases from this 
 nuisance. P. at the time was on the premises as a member of his father's 
 family, but had no property right in the land.) 
 vi^ But see Ellis v. Kansas Citv, etc., R. R. (1876) 63 Mo. 131, 21 Am. Rep. 
 436; Kavanagh v. Barber (1892) 131 N. Y. 211, 30 N. E. 235, 15 L. R. A. 0S9 ; 
 Hughes v. City of Auburn (1899) 161 N. Y. 96, 55 N. E. 389, 46 L. R. A. 
 636. Compare "Nuisance," 29 Cyc. 1257, 1258, notes 44, 45; 21 Harv. Law 
 Rev. 633. 
 
 Compare the remark of Powell. J., delivering the opinion in Towaliga 
 Falls Power Co. v. Sims (1909) 6 Ga. App. 749, 65 S. E. 844: "At common 
 law a nuisance was regarded only as in injury to some interest in land. 
 Blackstone's definition of a private nuisance is 'anything done to the hurt 
 or annoyance of the lands, tenements or hereditaments of another.' The 
 definition adopted in our Code is broader: 'A nuisance is anything that 
 worketh hurt, inconvenience, or damage to another.' Civ. Code 1895, § 3S61. 
 An examination of the authorities will show that the modern tendency of the 
 American courts is to break away from so much of the common-law rule as 
 confined redress on account of nuisances to the damage done to some interest 
 in real property, and as gave remedy only to persons having interests in 
 lands. An interesting case on the subject is that of Ft. Worth & Rio Grande 
 Ry. Co. V. Glenn, 97 Tex. 586, 80 S. W. 992, 65 L. R. A. 818, 104 Am. St. Rep. 
 894 [1 Ann. Cas. 270]. It is hardly consistent with the modern idea ol' legal 
 rights, wrongs, and remedies that a husband living in a house, the title to 
 which is in his wife, should not have a cause of action against one who erects 
 near by a nuisance which sickens him, and causes him other great losses — 
 and yet some courts go to this extent. Under our Code we think the rule is 
 not so rigid; but that one who has been specially endamaged by a nuisance 
 can recover from the wrongdoer, though his damage consists in an injury to 
 his pur.se or person, irrespective of wliether he has had an interest in real 
 estate damaged or not."
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 355 
 
 of the peace directed the sheriff or his deputy to enter upon the lands, 
 "and abate the nuisance complained of by removing said pond in the 
 most feasible manner." The defendant carried the case by certiorari 
 to the superior court. There the certiorari was sustained, and the 
 judgment of the justices set aside, on the ground that while, in a sense, 
 the pond complained of is a nuisance, it is not such a legal nuisance as 
 the justices of the peace have jurisdiction to abate. The area of the 
 pond in question varied from time to time, and the water, partially 
 receding, would leave exposed to the sun portions of the land which 
 had been submerged. In the processes of evaporation, and by the de- 
 cay of large masses of vegetable matter, noxious and deleterious gases 
 were emitted, which were injurious to the public health, and to the 
 health of persons residing in the community. The accumulation of 
 the water was due solely to natural causes, and the defendant did not, 
 by his own act or negligence, contribute to bring about the alleged nui- 
 sance. At one time the land had been drained by a ditch which emp- 
 tied into a creek, but in consequence of the filling in and choking up 
 of either the ditch or the creek, or both, the water accumulated, and 
 formed the pond. The defendant had done nothing to interfere with 
 the natural drainage, and the pond was formed by the overflow of the 
 creek, due entirely to causes over which the defendant had no control. 
 The presence of the pond and the attendant evils were doubtless 
 annoying, and even injurious, to persons residing in the neighborhood, 
 but we think that they do not constitute a nuisance for which the de- 
 fendant can be held answerable, or which he can be compelled, under 
 section 4760 of the Civil Code, to abate. This court has held that a 
 person is not guilty of an actionable nuisance unless the injurious con- 
 sequences complained of are the natural and proximate results of his 
 own acts or failure of duty. Brimberry v. Railway Co., 78 Ga. 641, 
 3 S. E. 274, and the cases there cited and discussed. This doctrine, 
 we think, is the true one, and it is recognized as such by all of the 
 authorities on this point which we have examined. In 1 Wood, Nuis. 
 116, we find the rule thus stated: "Where water collects in low, 
 marshy places, and, by reason of becoming stagnant, emits gases that 
 are destructive to the health, and lives even, of the community, this is 
 not a nuisance in the legal sense ; and the owner of the land is not 
 bound to drain it, nor can he be subjected to action or indictment there- 
 for. The reason is that, in order to create a legal nuisance, the act 
 of man must have contributed to its existence. Ill results, however 
 extensive or serious, that flow from natural causes, cannot become a 
 nuisance, even though the person upon whose premises the cause ex- 
 ists could remove it with little trouble and expense. * * * Thus 
 it will be seen that a nuisance cannot arise from the neglect of one to 
 remove that which exists or arises from purely natural causes." See, 
 also, Giles v. Walker, 24 O. B. Div. 656; Mohr v. Gault, 10 Wis. 513, 
 78 Am. Dec. 687; Hartwell v. Armstrong, 19 Barb. (N. Y.) 166; 
 State \. Rankin, 3 S. C. 438, 16 Am. Rep. 7Z7 \ Peck v. Herrington,
 
 35G TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 109 111. 611, 50 Am. Rep. 62'7; Woodruff v. Fisher, 17 Barb. (N. Y.) 
 224. The facts of the present case place it within the principles an- 
 nounced in the cases above cited, and the judgment of the justices of 
 the peace was erroneous. The certiorari of the defendant was prop- 
 erly sustained, and the judgment of the justices set aside. Judgment 
 affirmed.^* 
 
 MYERS V. MALCOLM et al. 
 (Supreme Court of New York, 1844. 6 Hill, 292, 41 Am. Dec. 74 i.) 
 
 Case. The action was brought to recover damages for an injury 
 occasioned to the plaintiff by the explosion of a quantity of gunpow- 
 der belonging to the defendants. On the trial it appeared, among 
 other things, that the defendants received about 600 pounds of powder 
 in kegs, and placed it in the loft of a store in the village of Syracuse ; 
 that they were soon afterwards notified to remove it by the trustees 
 of the village, and did so by depositing it in the upper story of a car- 
 penter's shop ; that the shop was built of wood, and was situated on 
 the canal, within the limits of the corporation ; that there was a lum- 
 ber yard near the shop, and several wooden buildings, some of which 
 were inhabited dwellings, and others were used as stables, etc. ; and 
 that the lower part of the shop was occupied during the day by a car- 
 penter, but no fire was allowed in it, and it was locked up each night. 
 It further appeared that the shop took fire on the night of August 20, 
 1841, about five days after the powder had been deposited in it, and 
 that during the progress of the fire the powder exploded, killing sev- 
 eral persons, and seriously wounding and injuring others, among 
 whom was the plaintiff. * * * 
 
 Nelson, C. J. The charge of the circuit judge, as detailed in the 
 bill of exceptions, is not very explicit, but we may fairly assume, I 
 think, that the case was put to the jury on the question whether the 
 conduct of the defendants, in regard to the manner of depositing the 
 powder, was such as to render them guilty of a public nuisance ; and 
 if that point has been properly determined in favor of the plaintiff, 
 then I apprehend his right to private dam.ages must follow as a corol- 
 lary. In this view, the question of negligence on the part of the de- 
 
 5 4 Accord: Mohr v. Gault (1S60) 10 Wis. 51.'?, 78 Am. Dec. 687; Barring 
 V. Commonwealth (1865) 2 Duv. (Ky.) 95. Compare Giles v. Walker (1890) 
 24 Q. B. 656: (The seeds of thistles growing naturally on D.'s land are 
 blown by the wind upon the land of P.) 
 
 See also Adams v. Popham (1879) 76 N. Y. 410: (D. erected on his own 
 premises a dam across a small stream, a sliort distance from P.'s house ; the 
 water of the pond made by this dam was stagnant, and became filled with 
 unwholesome matter, which poisoned the atmosphere, rendered the use of 
 P.'s premises dangerous to life and health, and depreciated its value. Held, 
 a nuisance which D, might be restrained from continuing.) Richards v. 
 Daugheity (1902) 1.3.3 Ala. 569, 31 South. 9.34: (Action to abate a nuisance 
 caused by D.'s building a dam across a stream.)
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 357 
 
 fendants, except so far as it may be necessarily involved in the ques- 
 tion of nuisance, has very little, if anything, to do with the case. But, 
 on the other hand, if the defendants' conduct was not sufficient to ren- 
 der them chargeable with the offense mentioned, then the whole gist 
 of the action lies in negligence, and the inquiry might arise whether 
 this was so connected with the injury as to render the defendants lia- 
 ble. Perhaps evidence enough was given at the trial to have justified 
 the judge in putting the case to the jury in either aspect; though the 
 most satisfactory position for the plaintiff, I am inclined to think, and 
 the one most difficult to be answered by the defendants, is the ground 
 that the depositing and keeping of the powder in the exposed situation 
 described by the witnesses, amounted to a public nuisance, and that 
 any individual sustaining a special injury from the act, was entitled to 
 his private damages. 
 
 It was not doubted in the case of People v. Sands, 1 Johns. 78, 3 
 Am. Dec. 296, that the act of carelessly keeping fifty barrels of gun- 
 powder in a house in the village of Brooklyn was a nuisance at com- 
 mon law. The allegation in the indictment there was, that the defend- 
 ants kept the barrels in a certain house near the dwelling houses of 
 divers good citizens, and near a certain public street, without other- 
 wise characterizing the manner of keeping the article; and upon the 
 principle that nothing will be intended or inferred to support an in- 
 dictment, the court said, for aught they could see, the house might 
 have been one built and secured for the very purpose of keeping pow- 
 der in such a way as not to expose the neighborhood. Spencer, J., 
 dissented, holding that enough appeared to make the question one for 
 the jury to settle, who could inquire into the various circumstances 
 of place, quantity, exposed situation of the neighborhood, etc. In a 
 case before Lord Holt, Anonymous, 12 Mod. 342, the defendant was 
 indicted and convicted for keeping several barrels of gunpowder in 
 a house in Brentford Town, sometimes two days and sometimes a 
 week, till he could conveniently send them to London. And it was 
 there resolved, "that though gunpowder be a necessary thing, and for 
 defense of the kingdom, yet if it be kept in such a place as it is dan- 
 gerous to the inhabitants, or passengers, it will be a nuisance." In 
 Rex V. Taylor, 2 Str. 1167, the King's Bench granted an information 
 against the defendant, for a nuisance, upon "affidavits of his keeping 
 great quantities of gunpowder, to the endangering: of the church and 
 houses where he lived," or, as it should have been expressed, accord- 
 ing to Burns, "to the endangering of the lives of His Majesty's sub- 
 jects." 2 Burns, Just. 667, 668; 1 Russ. Cr. 297, and note "o." 
 
 I think the jury would have been well warranted in finding the de- 
 fendants guilty of the offense, upon the facts disclosed in this case, 
 as it cannot be doubted that the gunpowder was deposited in a build- 
 ing insufficiently secured and protected, and altogether unfit for the 
 safe-keeping of so large a quantity of the article. The situation of 
 the building in other respects, moreover, was such as to render the
 
 358 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 gunpowder dangerous to the lives of the citizens ; for an explosion, 
 either by accident or design, at any period of time after the deposit, 
 would in all human probability have proved destructive to more or 
 less of the inhabitants residing in the neighborhood. 
 
 Assuming that the jury were justified in coming to this conclusion, 
 the authorities are abundant to show that the defendants were answer- 
 able to the plaintiff for the personal injury occasioned by the explo- 
 sion. The principle is stated by Abbott, C. J., in Duncan v. Thwaites, 
 3 Barn. & C. 556. He there said : "I take it to be a general rule, 
 that a party who sustains a special and particular injury by an act 
 which is unlawful on the ground of public injury, may maintain an 
 action for his own special injury." The following cases exemplify 
 and apply the principle, viz.: Rose v. Miles, 4 Maule & S. 101 ; Hen- 
 ly V. j\Iayor, etc., of Lyme Regis, 5 Bing. 91 ; 3 Barn. & Ad. 77 ; s. c. 
 in error, 1 Bing. N. C. 222; Pierce v. Dart, 7 Cow. 609; Lansing 
 V. Smith, 8 Cow. 146; s. c. in error, 4 Wend. 25, 21 Am. Dec. 89, per 
 Walworth, Chancellor; Mills v. Hall, 9 Wend. 315, 24 Am. Dec. 160. 
 See, .also, Mayor, etc., of N. Y. v. Furze, 3 Hill, 612. * * * en 
 
 HUBBARD V. PRESTON. 
 
 (Supreme Court of Michigan, 1892. 90 Mich. 221, 51 N. W. 209, 
 15 L. R. A. 249, 30 Am. St. Rep. 426.) 
 
 The defendant shot and killed the plaintiff's dog. In an action in 
 
 a justice's court, the defendant had judgment. The only question sub- 
 
 / mitted to the jury on the trial in the circuit court was as to the value 
 
 of the dog, which the jury found to be $25, and verdict and judgment 
 
 were entered for that amount. Defendant brings error. ^^ 
 
 Long, J. On the trial the defendant introduced testimony tending 
 to show justification for the killing. The court permitted the testi- 
 
 5 5 Only so much of the case is given as relates to the one point. A new 
 trial was granted for error in the admission of evidence. 
 
 See Cheatham v. Shearon (1851) 1 Swan (Tenn.) 213, 55 Am. Dec. 734: 
 (D. stored 500 kegs of powder in a powder house in a populous part of a city ; 
 the powder house was struck by lightning and the powder was thereby ex- 
 ploded, causing damage to P.) 
 
 Prussak v. Hutton (1898) 30 App. Div. 66, 51 N. Y. Supp. 761: (A powder 
 house owned by A., leased by him as a powder house to B., and used as such 
 by C, was exploded by lightning. Held, that if the powder house was a nui- 
 sance, A., B., and C. were all liable.) 
 
 Kleebauer v. Western Fuse & Explosives Co. (1902) 69 Pac. 246 ; Id. (1903) 
 138 Cal. 497, 71 Pac. 617, 60 L. R. A. 377, M Am. St. Rep. 62: (D. kejpt 
 5,000 pounds of gunpowder stored in a powder magazine within 250 yards 
 of numerous dwellings ; an employe whom the police were seeking to ar- 
 rest for murder intentionally exploded the powder ; P.'s house near by was 
 damaged.) 
 
 See also Heeg v. Licht (1880) 80 N. Y. 579, 36 Am. Rep. 654, 8 Abb. N. C 
 355 ; McAndrews v. Collerd (1880) 42 N. J. T.aw, 189, 36 Am. Rep. 508. 
 
 6«The statement of the case is slightly abridged.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 359 
 
 mony to be introduced, but held that it did not amount to a justifica- 
 tion. The only question raised in this court is whether the court 
 should have submitted that branch of the case for the determination 
 of the jury. 
 
 We think the court was in error in not so doing. It appeared that 
 the defendant did not keep a dog; that he lived on Bagg street, city 
 of Detroit, and for eight clays prior to the shooting he and his family 
 had been greatly annoyed by the congregation of a large number of 
 dogs about his premises, barking, quarreling, and fighting there ; that 
 they came every night upon his lawn, about his house, when it became 
 dark (on two occasions he counted 12 dogs), and that they kept up 
 their cries all night at intervals ; that he complained to the police on 
 three different days prior to the killing, but without any relief, and 
 he had driven them away on several nights; that the noise made by 
 them kept the members of his family awake, and seriously annoyed 
 them; that he did not know the owners; that on the night he killed 
 plaintiff's dog he drove them away twice, but they returned ; that he 
 could not get near them, but they would return ; that they became an 
 intolerable nuisance, and finally, about 8 o'clock in the evening, he 
 went out with his revolver, and shot among them, while on his lawn. 
 He did not know who owned any of them, and did not shoot at any 
 particular dog. 
 
 The defendant had a right to protect his family from such nuisance ; 
 and it was a question for the jury whether he used such means as 
 were reasonable and necessary, under the circumstances, to rid him- 
 self of it." 
 
 The judgment must be reversed, with costs, and a new trial ordered. 
 
 MOORE v. DAME BROWNE. 
 
 (Court of Queen's Bench, 1573. 3 Dyer, 319b, 73 Reprint, 723.) 
 
 Trespass on the case for the malicious turning aside of part of a 
 course of water of a conduit, which ran from a fountain in Clerken- 
 well to the house of the plaintiff, which was the site of the late house 
 of the friars preachers s. the Black-fryars London. The defendant 
 pleaded not guilty ; and in evidence at Guildhall at nisi prius, it ap- 
 peared that Sir Humphrey Browne in his life upon finding an old pipe 
 near the main pipe lying in his yard, where he had built his new house 
 in Cow Lane in the parish of Saint Sepulchre (which was a house be- 
 
 07 Compare Bowers v. Horen (1892) 93 Mich. 420, 53 N. W. 535, 17 L. R. 
 A. 773, 32 Am. St. Rep. 513, where tlie dog was liilled while trespassing, 
 but there was no nuisance shown. 
 
 See also Brill v. Flagler (1840) 23 Wend. (N. Y.) 357; Herring v. Wilton 
 (1906) 106 Va. 171, 55 S. E. 546. 7 L. R. A. (N. S.) 349, 117 Am. St. Rep. 997, 
 10 Ann. Cas. 66, injunction against the maintenance of a kennel of barking 
 dogs.
 
 360 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 longing to the late monastery of Watton in the county of York) made 
 a little pipe and a cock out of the main pipe, drawing thereby water 
 to serve his house, and to stop it again at his pleasure ; which the said 
 Dame since the death of her husband, when she lived there had used 
 and occupied: — and whether she by that shall be adjudged guilty, and 
 a trespasser upon this diversion, because she was not the first who di- 
 verted, but her husband was, and the wife only a continuer of the di- 
 version, was doubted. But because the portion of the water turned 
 aside had not continual course or running, but was oftentimes stopped 
 by the cock, and opened again at the pleasure of the wife toties quoties, 
 that mav be called in her a new diversion &:c. And so she was found 
 guilty, and damages ilO. And so was the opinion of the justices in 
 banc. 
 
 HUGHES et al. v. MUNG. 
 
 (General Court of Maryland, 1796. Court of Appeals, 1797. 
 3 Har. & McH. 441.) 
 
 This was an action on the case for diverting an ancient watercourse. 
 
 By the bill of exceptions taken at the trial it appears 
 
 the plaintiffs made title to the land in the declaration mentioned, called 
 Penny Pack Pond, under a patent granted to Peter Rench in March, 17o3, 
 and by him conveyed by deed of bargain and sale, duly executed and recorded, 
 bearing date on the 13th November, 1781. And to support their action the 
 plaintiffs offered evidence to prove that the water, for the diversion of which 
 this action is brought, formerly ran through the laud above mentioned. 
 That about 27 or 28 years ago, George Nicholas Mung, the father of the 
 defendant, diverted the said stream of water from its ancient course, as 
 located by the plaintiffs upon the plats returned, in the cause, and turned it 
 into the course in which it now runs, as located upon the said plats. The 
 plaintiffs also offered evidence to prove that the said stream of water has, 
 ever since the said diversion by George Nicholas Mung, run where it now 
 runs as located on the plats returned, and still runs there; that the land 
 through which the said stream now runs, is held and claimed by the de- 
 fendant, Jacob Mung, and has been so held and claimed by him ever since 
 the 1st of Jaiuiary, 1792; that the defendant ever since that time has con- 
 tinued, and still does continue, to use the said stream of water in the chan- 
 nel in which it now runs, by watering his stock therein, by enclosing it within 
 his fences, and by throwing the water thereout occasionally upon his meadow. 
 
 The defendant's counsel prayed the opinion of the court, that this 
 evidence was not sufficient in law to enable the plaintiffs to sustain 
 their action. 
 
 Thd Court (Chase and Duvall, JJ.) were of opinion, and so di- 
 rected the jury, that an action will lie for the diversion of the water- 
 course against the person who diverted it, and against any person who 
 keeps up the obstruction which changed the watercourse; but no ad- 
 ventitious accidental advantages, derived from the use of the water 
 running in its present course, will amount to a continuance of the nui- 
 sance, without some act done by the defendant to keep up the obstruc- 
 tions occasioning the diverting of the course of the stream, and that
 
 Ch. 2) ABSOLL'TE TORTS OTHER THAN TRESPASSES 361 
 
 the present action cannot be supported without showing those acts 
 were done since the title of the plaintiffs accrued to the lands called 
 Penny Pack Pond. 
 
 To this opinion the plaintiffs excepted, and appealed to the Court 
 of Appeals. 
 
 The Court of Appeals, at June term, 1797, affirmed the judgment. 
 
 LEAHAN V. COCHRAN. 
 
 (Supreme Judicial Court of Massachusetts, 1901. 178 Mass. 566, 
 60 N. E. 382, 53 L. R. A. 891, 86 Am. St. Rep. 506.) 
 
 The evidence tended to show the following facts : 
 
 Affixed to the house of the defendant was a conductor, constructed and 
 used for the purpose of carrying water from the roof to the public sidewalk 
 adjoining ; there was a groove in the sidewalk, extending from the end of 
 the conductor to the outer edge of the sidewalk ; the water from the con- 
 ductor had frozen in and about the groove upon the sidewalk ; and the plain- 
 tiff while traveling, in the exercise of due care, over the ice, was injured. 
 The evidence warranted a finding that in the winter the natural and probable 
 result of the situation would be the formation of ice upon the sidewalk, 
 which would be dangerous to public travel, and therefore a public nuisance. 
 At the time of the accident the defendant had been the owner of the house 
 for several years, and there was no evidence that the defendant constructed 
 the building, the conductor, the groove, or the sidewalk ; and it appeared 
 that the condition of the conductor at the time of the purchase was, and ever 
 since had been, the same as at the time of the accident. There was no evi- 
 dence that the defendant ever had been requested by the plaintiff, or by any 
 other person, to reform the nuisance, or that the plaintiff ever complained 
 of it to the defendant. 
 
 There was a judgment for the plaintiff and the defendant brought 
 exceptions. 
 
 Hammond, J. The action is at common law and the question wheth- 
 er the notice requisite to the maintenance of an action, under Pub. 
 St. c. 52, § 19, was given, is immaterial. It is not argued that the evi- 
 dence did not warrant a finding that this conductor in its natural op- 
 eration did create a nuisance in the highway. The only question pre- 
 sented is whether the court erred in declining to give the second and 
 third rulings requested by the defendant. These requests raise the 
 question whether, the situation being the same as at the time of the 
 purchase by the defendant, she can be held answerable to the plaintiff, 
 in the absence of any request made to her to reform the nuisance. 
 There can be no doubt that in the case of a private nuisance the gen- 
 eral doctrine in this country, following Penruddock's Case, 5 Coke, 
 100, is that the grantee of land upon which, at the time of the grant, 
 there exists a nuisance created by his predecessors in title, is not re- 
 sponsible merely because he has become the owner of the land. His 
 liability arises from his knowingly continuing the nuisance in its orig- 
 inal state unless he has had notice to abate, or, at least, until he has 
 had knowledge that it is a nuisance, and injurious to the rights of
 
 3G2 TOllTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 Others ; and, while there is some dissent from this doctrine (see opin- 
 ion of Denio, J., in Brown v. Railroad Co., 12 N. Y. 486 ; of Strong, 
 J., in Hubbard v. Russell, 24 Barb. [N. Y.] 404; and of Manning, J., 
 in Caldwell v. Gale, 11 Mich. 77), still it must be regarded as the law 
 of this commonwealth (McDonough v. Oilman, 3 Allen, 264, 80 Am. 
 Dec. 72 and cases cited). The cases are numerous in which this doc- 
 trine has been applied to private nuisances, but with the exception of 
 Woram v. Noble, 41 Hun (N. Y.) 398, we have seen no case where 
 the doctrine has been directly applied to the case of a public nuisance, 
 although in Wenzlick v. McCotter, 87 N. Y. 122, 41 Am. Rep. 358, 
 and Dodge v. Stacy, 39 Vt. 558, the court seems to have failed to no- 
 tice any difference in this respect between private and public nui- 
 sances. 
 
 We think the rule should not be extended to a public nuisance like 
 that in this case. The reason generally given for the rule is that, in 
 the absence of any notice to the contrary, the grantee has the right to 
 assume that the structures upon the land are rightfully there, and that, 
 even where they may seem to interfere with the usual rights appurte- 
 nant to other estates, he may properly assume that the right thus to 
 interfere has been lawfully obtained, and it is said that it would be 
 inequitable to subject him to damages until he has had notice that in 
 maintaining the structure or work complained of he is infringing upon 
 the rights of others. The reason of the rule is not applicable to a case 
 like this. The conductor, in its natural and intended use, caused ice 
 to form upon the sidewalk, which, being dangerous to public travel, 
 was a public nuisance. No matter how often the ice was formed, the 
 right thus to incumber the street could not be lawful. The right to 
 create such a nuisance was not a matter of grant, nor could it have 
 been acquired by prescription. City of Holyoke v. Hadley Water- 
 Power Co., 174 Mass. 424, 426, 54 N. E. 889; Inhabitants of New 
 Salem v. Eagle Mill Co., 138 Mass. 8. In so far as the conductor, 
 by its natural operation, caused the formation of such ice, it created a 
 nuisance. The defendant, as owner, must have known this, or must be 
 presumed to have known it. In such a case, the reason for the re- 
 quirement of notice does not exist, and we see no reason why the rule 
 should be applied. See Matthews v. Railway Co., 26 Mo. App. 7h. 
 Exceptions overruled. 
 
 ROSEWELL V. PRIOR. 
 
 (Court of King's Bench, 1701. 2 Salk. 460, 91 Reprint, 397.) ns 
 
 In an action upon the case, for that the plaintiff being seised of an 
 ancient house and lights, the defendant had erected, etc., whereby they 
 were stopped. There was a former recovery for this erection, and 
 this action was for the continuance ; and the case was, tenant for years 
 
 B8 S. C, elaborately reported, in 12 Mod. 6.3.'>, 88 Reprint, 1570.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 363 
 
 erected a nuisance, and afterwards made an under-lease to J. S. The 
 question was, whether, after a recovery against the first tenant for 
 years for the erection, an action would lie against him for the contin- 
 uance after he had made an under-lease? 
 
 Et PER Cur. It lies ; for he transferred it with the original wrong, 
 and his demise affirms the continuance of it : he hath also rent as a 
 consideration for the continuance, and therefore ought to answer the 
 damage it occasions. Vide Jones, 272. Receipt of rent is upholding 
 2 Cro. 372, 555. The action lies against either at the plaintiff's elec- 
 tion. ^^ 
 
 LAMBTON V. MELLISH. 
 
 LAMBTON V. COX. 
 
 (Chancery Division. [1894] 3 Ch. 163.) 
 
 The plaintiflf moved against the defendant in each action for an 
 injunction restraining him from playing any organ so as to cause a 
 nuisance or injury to the plaintiff or his family or other occupiers of 
 the plaintiff's property. The following facts were shown : V 
 
 The plaintiff was the lessee and occupier of a house adjoining Ash- 
 stead Common in Surrey. The premises of the defendant Mellish 
 were about 60 yards from the plaintiff's premises ; those of the de- 
 fendant Cox were about 120 yards from the plaintiff's premises and 
 about 100 yards from those of the defendant Mellish, and were sep- 
 arated from both by a line of railway. During the summer months 
 a large number of school treats and assemblages of that description 
 took place on Ashstead Common. The defendants Mellish and Cox 
 were rival refreshment contractors who catered for visitors and ex- 
 cursionists to the common, and both the defendants had merry-go- 
 rounds on their premises, and were in the habit of using organs as an 
 
 69 See also Todd v. Flight (1860) 9 C. B. (N. S.) 377, 389. 
 
 In Plumer v. Harper (1824) 3 N. H. 88, 14 Am. Dec. 333, where the original 
 creator of the nuisance had conveyed the property in fee, Richardson, C. J., 
 remarks: "If the question which this case presents were now to be decided 
 for the first time, it seems to us that it would be very difficult to find a 
 good reason why the original wrongdoer should be discharged by conveying 
 the land. The injury has no connection with the ownership of the land. If 
 A. enter into the land of B., and there erect a dam, which causes the water 
 to overflow B.'s land, there can be no doubt that he will be liable for any 
 damage resulting from such overflowing. So if A. enters B.'s land and there 
 erects a nuisance to the prejudice of C, it is clear that A. will be liable to 
 C. When he who erects the nuisance conveys the land, he docs not transfer 
 the liability to his grantee. For it is agreed in all the books that the 
 grantee is not liable until, upon request, he refuses to remove the nuisance. 
 It does not make the original act less injurious because the grantee adopts 
 it ; and we are not aware that in any action against an individual for a turt 
 it can be a good defense to show that a third person has assented to the 
 wrong, and thus become liable." 
 
 Compare Mansfield v Teuney (1909) 202 Mass. 312, 88 N. E. 892, 25 L. R. 
 A. (N. S.) 731, and note. 
 
 /
 
 364 TOUTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 accompaniment to the amusements. These organs for three months 
 or more in the summer were played continuously together from about 
 10 a. m. till 6 p. m. and the noise caused by the two organs was 
 "maddening." 
 
 The organ used by Mellish had been changed and it was alleged by 
 him that the organ in use when the motion was made was a small 
 portable hand-organ making comparatively little noise. That used by 
 Cox was a much larger one provided with trumpet stops and emitting 
 sounds which could be heard at the distance of one mile. 
 
 Whitehorne, Q. C, and Butcher, for the defendant Mellish: What 
 Mellish is doing is in itself lawful, and no injunction will be granted 
 to restrain a man from doing that which is lawful, and which if taken 
 by itself is no nuisance. To obtain an injunction the plaintiff must 
 shew that Mellish is acting in concert with Cox. It does not follow 
 that if an injunction will lie against Cox it will necessarily lie against 
 Mellish. Thorpe v. Brumfitt, Law Rep. 8 Ch. 650, has no applica- 
 tion, as there the acts complained of were in themselves unlawful. 
 
 Chitty, J. * * * ®° A man may tolerate a nuisance for a short 
 period. A passer-by or a by-stander would not find any nuisance 
 in these organs; but the case is very different when the noise has to 
 be continuously endured : under such circumstances it is scarcely an 
 exaggeration to term it "maddening," going on, as it does, hour after 
 hour, day after day, and month after month. I consider that the 
 noise made by each defendant, taken separately, amounts to a nui- 
 sance. But I go further. It was said for the defendant Mellish that 
 two rights cannot make a wrong — by that it was meant that if one 
 man makes a noise not of a kind, duration, or degree sufficient to 
 constitute a nuisance, and another man, not acting in concert with 
 the first, makes a similar noise at the same time, each is responsible 
 only for the noise made by himself, and not also for that made by 
 the other. If the two agreed and acted in combination each would 
 be a wrongdoer. If a man shouts outside a house for most of the 
 day, and another man, who is his rival (for it is to be remembered 
 that these defendants are rivals), does the same, has the inhabiiant of 
 the house no remedy? It is said that that is only so much the worse 
 for the inhabitant. On the ground of common sense it must be the 
 other way. Each of the men is making a noise and each is adding 
 his quantum until the whole constitutes a nuisance. Each hears the 
 other, and is adding to the sum which makes up the nuisance. In 
 my opinion each is separately liable, and I think it would be contrary 
 to good sense, and, indeed, contrary to law, to hold otherwise. It 
 would be contrary to common sense that the inhabitants of the house 
 should be left without remedy at law. I think the point falls within 
 the principle laid down by Lord Justice James in Thorpe v. Brumfitt, 
 Law Rep. 8 Ch. 650. That was a case of obstructing a right of way, 
 
 60 The statement of the case is abridged, and a part of the opinion is 
 omitted.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 365 
 
 but such obstruction was a nuisance in the old phraseology of the 
 law. * * * 61 There is in my opinion no distinction in these re- 
 spects between the case of a right of way and the case, such as this 
 is, of a nuisance by noise. If the acts of two persons, each being 
 aware of what the other is doing, amount in the aggregate to what 
 is an actionable wrong, each is amenable to the remedy against the 
 aggregate cause of complaint. The defendants here are both re- 
 sponsible for the noise as a whole so- far as it constitutes a nuisance 
 affecting the plaintiff, and each must be restrained in respect of his 
 own share in making the noise. I therefore grant an interim in- 
 junction in both the actions in the terms of the notices of motion. 
 
 RICH V. BASTERFIELD. 
 
 (Court of Common Pleas, 1847. 4 C. B. 783, 136 Reprint, 715, 72 R. R. 716.) 
 
 Cresswell, J.^" This was an action on the case, in which the dec- 
 laration alleged that the plaintiff had been and was possessed of a 
 messuage, etc., which he and his family occupied; that the defend- 
 ant was possessed of two messuages and yards near to the plaintiff's 
 messuage; and that the defendant, contriving to injure the plaintiff 
 and his family in their occupation etc., on, etc., erected certain shops 
 and chimneys on the defendant's said yards, near to the plaintiff's 
 house, and continued the same there, and lighted fires in the said 
 shop, and caused smoke, etc., to issue from the said chimneys ; where- 
 by the plaintiff's messuage was rendered unhealthy, and he was com- 
 pelled to keep his windows closed, to exclude the smoke, and was 
 prevented obtaining fresh air, and the plaintiff and his family were 
 annoyed and prejudiced in the occupation of his messuage, etc. The 
 defendant pleaded — first, not guilty — secondly, that he, the defendant, 
 was not possessed of the said yards and shops. 
 
 At the trial before my Brother Erie, at the sittings in Middlesex 
 after Hilary term, 1846, it appeared in evidence that the plaintiff was 
 possessed of a house, No. 10, and the defendant of two other houses, 
 being Nos. 12 and 13, in the New Road, east of Tottenham Court 
 Road ; that the houses stand a considerable distance back from the 
 road; that, in front of the defendant's houses, the defendant some 
 time since erected two low buildings, which were let as shops ; that 
 he afterwards put a stove into one of the shops, from which the smoke 
 was at first carried under ground into one of the chimneys of the 
 
 61 Mr. Justice Chitty here quoted the remark of Lord Justice James in 
 Thorpe v. Brumfitt (1873) L. R. 8 Ch. G50, 656, which is given infra, p. 406, 
 in note to Delaware & Hudson Canal Co. v. Torrey. 
 
 c2The reporter's statement, the arguments of counsel, and a portion of 
 the opinion are omitted.
 
 366 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 house behind it; but, that plan not answering, that he afterwards 
 erected a chimney; and that the shop, with the stove and chimney, 
 was subsequently let to a tenant from week to week, who occupied it 
 at the time when the nuisance to the plaintiff's house was said to have 
 been committed, and by whom the fires complained of were made. 
 
 A former occupier stated that he used to make fires in the stove, 
 principally of coke, and that no smoke which could be at all injurious 
 then issued from the chimney. The fires made by the present oc- 
 cupier caused a good deal of smoke to issue, which, when the wind 
 blew towards the plaintiff's house, was driven to it, and compelled 
 him to keep his windows shut. 
 
 Upon this evidence, it was contended, for the defendant, that he 
 was entitled to a verdict on both issues ; for, that the act of his ten- 
 ant in making fires, could not be considered as his act, and therefore 
 he was not guilty ; and that, the tenant being in possession at the time 
 when the nuisance was said to have been committed, the defendant 
 was entitled to a verdict on the issue of not possessed, also. 
 
 The learned judge reserved to the defendant leave to move to en- 
 ter a verdict in his favour, and left to the jury the question whether 
 the defendant made a reasonable use of his rights in respect of the 
 property in question in a reasonable place; and they found for the 
 plaintiff. * * * 
 
 It was not contended, either at nisi prius, or on the argument, that 
 the chimney erected by the defendant was itself a nuisance ; and, un- 
 less used in a manner which caused smoke to issue, so as to prejudice 
 the plaintiff in the occupation of his own premises, no complaint could 
 have been made against it. The landlord, therefore, did not let the 
 premises with any existing nuisance upon them ; if he had, by letting 
 and receiving rent for them in that condition, he would have been 
 liable for continuing and upholding the nuisance, as in Rosewell v. 
 Prior. Nor had he entered into any contract, express or implied, with 
 the tenant, to mal<e fires of any kind. The latter might have wholly 
 abstained from making fires, without being subjected to any complaint 
 by the landlord ; or he might have made fires so that no inconvenience 
 to the plaintiff would have ensued, by using coke, which was the course 
 adopted by the former occupier. Shearman ; or he might have ab- 
 stained from making fires at all, when the wind was in such a direc- 
 tion as to carry the smoke to the plaintiff's house. 
 
 It being, therefore, quite possible for the tenant to occupy the shop 
 without making fires, and quite optional on his part to make them or 
 not, or to make them with certain times excepted, so as not to annoy 
 the plaintiff, or in such a manner as not to create any quantity of 
 smoke that could be deemed a nuisance, — it seems impossible to say 
 that the tenant was, in any sense, the servant or agent of the defend- 
 ant, in doing the acts complained of. The utmost that can be imputed 
 to the defendant, is, that he enabled the tenant to make fires, if he 
 pleased.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 367 
 
 The case, then, resting, not upon the erection of the chimney, but 
 upon the subsequent use of it by tenant, can the defendant, his land- 
 lord, be held to be guilty of the nuisance? 
 
 Several cases have occurred in which the owners of fixed property 
 have been held liable for the consequences of acts done upon it by 
 persons not strictly their servants or agents. But the principle on 
 which those cases proceeded, and the limits within which they should 
 be restrained, are clearly laid down by Littledale, J., in Laugher v. 
 Pointer, 5 B. & C. 547, 8 D. & R. 556; which judgment is cited with 
 much just approbation, and adopted by the Court of Exchequer, in 
 Quarman v. Burnett, 6 M. & W. 499. The principle stated by Mr. 
 Justice Littledale is that, where a man is in possession of fixed prop- 
 erty, he must take care that his property is so used and managed that 
 other persons are not injured; and that, whether his property be 
 managed by his own immediate servants, or by contractors or their 
 servants. =;= * * 
 
 For the reasons already given, we think that the verdict must be 
 entered for the defendant on the plea of not guilty, as well as on the 
 issue of not possessed, which refers to the time when the nuisance 
 was created. 
 
 Rule accorded.^* 
 
 HOGLE v. H. H. FRAXKLIN MFG. CO. 
 
 (Court of Appeals of NeAv York, 1910. 199 N. Y. 3S8, 92 N. E. 794, 
 
 32 L. R. A. [N. S.] 1038.) 
 
 For several years prior to the 21st of August, 1906, the plaintiff 
 resided with her husband in a house on West Marcellus street in the 
 city of Syracuse, the lease from James Doheny, the owrier, being in 
 the husband's name as lessee. The lot upon which the house stands 
 
 6 3 See Harris v. James (1876) 45 L. J. Q. B. 545, and Rex v. Pedley (1834) 
 1 Ad. & El. 822, for a different application of the principle when the occupa- 
 tion reasonably contemplated by a landlord is likely to produce a nuisance, 
 or the landlord "lets a building which requires particular care to prevent 
 the occupation from being a nuisance, and the nuisance occurs for want of 
 such care on the part of the tenant." 
 
 Compare Barker v. Herbert, [1911] 2 K. B. 633, C. A.: (The defendant was 
 the owner in possession of a vacant house in a street, with an area which 
 adjoined the highway. One of the rails of the area railings had been broken 
 away by boys playing football in the street, and, consequently, a gap had been 
 created in the railings. The plaintiff, a child, got through this gap from 
 the street, and was clambering along inside the railings, when he fell into 
 the area, and sustained injuries through the fall. In an action brought on 
 his l>ehalf to recover damages from the defendant in respect of his injuries, 
 the jury found, in answer to questions left to yiem, that the area was, 
 when the accident happened, a nuisance, but that the defendant did not 
 know, at the time of the accident, that the rail had been removed, that 
 such a time had not elapsed after its removal that he would have known 
 of it at the time of the accident, if he had used reasonable oaro. and that he 
 had used reasonable care to prevent the premises from becoming dangerous 
 to persons using the highway.)
 
 368 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 is 34 by 100 feet, and the rear thereof adjoins the land of the defend- 
 ant, upon which there is a large building several hundred feet long 
 used for the manufacture of automobiles. Between the lot on which 
 the defendant's factory stands and the lot occupied by the plaintiff 
 and her husband, which for convenience will be called the plaintiff's 
 lot, there is a vacant space ten feet wide which is not used for storage 
 or dumping purposes, or for any purpose except the admission of 
 light and air. At the rear of the plaintiff's lot is a tight board fence 
 six feet high, and the space between the fence and her house, 20 by 
 34 feet, is used as a garden. Each floor of the factory has windows 
 overlooking the plaintiff's premises, and on each of said floors are 
 many mechanics and laborers in the employ of the defendant. 
 
 For eighteen months prior to the 21st of August, 1906, the employes 
 of the defendant had habitually thrown small pieces of iron, such as 
 nuts, the ends of bolts and the like, from the upper windows of its 
 factory upon the rear of the plaintiff's lot. Mr. Hogle, who was not 
 at home much in the daytime, saw such objects thrown from the third 
 story of the factory at least a dozen times, some of w^hich struck his 
 house and others fell in the yard at the rear. This was after 6 o'clock 
 in the evening, but when the men w^ere still at work in the factory. 
 He took a handful of the nuts and bolts collected from the garden 
 to Mr. Franklin, the president of the defendant, stated the facts to 
 him, and said he wanted the practice stopped, for he was afraid some 
 one w'ould get hurt. Mr. Franklin replied that he was glad to learn 
 what had happened and would see that it was stopped. Mr. Doheny, 
 the lessor of the plaintiff, complained on several occasions to the as- 
 sistant manager of the defendant, who said he would do all he could 
 to stop the annoyance. 
 
 The practice, however, continued and increased, although Mr, 
 Franklin and his foreman forbade it and threatened to discharge any 
 one who w'as seen to throw anything upon the plaintiff's lot. A little 
 son of the plaintiff was hit by a nut when playing in the backyard. 
 On another occasion a pail of dirty water was thrown upon him, and 
 on still another tobacco spittle hit him on the head. Mrs. Hogle tes- 
 tified that she saw nuts, pieces of bolts, etc., thrown on her lot and at 
 the children playing there on the average once a day from the spring 
 of 1905 until in August, 1906. Once she saw a rattail file thrown from 
 the window on the third floor and saw it pass over her little boy and 
 strike the ground behind him. These objects, which for convenience 
 counsel called missiles, came from the windows of defendant's factory 
 and mainly from those on the third floor. She saw many of them 
 when they were thrown by defendant's workmen from the windows of 
 its factory. 
 
 On the 21st of August, 1906, she went out into her garden and 
 looking up saw men at work and heard them talking by the windows 
 of the third floor, which were open. As she was kneeling on one knee 
 about ten feet from the rear of her lot to pull some radishes, she
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 369 
 
 caught a side glance of some object coming from the direction of the 
 third floor and at once was hit by a piece of iron upon her arm just 
 below the shoulder. She produced the iron in court and the injury 
 inflicted by it was somewhat severe. 
 
 Upon the first trial, when the complaint was based wholly on negli- 
 gence, she had a verdict, which was set aside by the trial justice upon 
 the ground that, as the acts of the defendant's workmen were not done 
 within the scope of their employment, an action for negligence would 
 not lie, but it was pointedly suggested in the opinion that an action for 
 nuisance was the proper remedy. The com.plaint was thereupon so 
 amended as to rest both on negligence and nuisance. Upon the second 
 trial also the plaintiff had a verdict and the judgment entered thereon 
 was affirmed by the Appellate Division, one of the justices dissenting. 
 The defendant now appeals to this court. 
 
 Van'N, J. * * * ^Ys the Appellate Division held, and as we 
 think, the evidence warranted the jury in finding that the piece of iron 
 which injured the plaintiff was maliciously thrown from a window 
 of the defendant's factory by one of its workmen, and that for more 
 than a year it had been the practice of its workmen, maliciously, or in 
 a spirit of mischief, to throw similar objects from the windows of its 
 factory upon the premises adjoining where plaintiff lived, with the 
 knowledge of the defendant, but without its consent and in violation 
 of its orders. 
 
 The defendant contends — and its motion for a nonsuit was based 
 on the ground — "that there can be no recovery in this case unless the 
 jury should find that this piece of iron was thrown upon plaintiff's 
 premises as a necessary consequence of the work being carried on there 
 or as an incident to it." The refusal to so hold is the main assignment 
 of error on this appeal. 
 
 While we all think that the recovery should be sustained we differ 
 somewhat as to the exact theory upon which it should be based. No 
 request that the plaintiff should elect between the theory of nuisance 
 and that of negligence was made at the trial, and the complaint was 
 adapted to either. The trial judge did not name the action, but treat- 
 ed it as an action on the case. If the evidence established a cause of 
 action for negligence in failing to take reasonable precautions to sup- 
 press the evil practice, such as closing the windows or screening them 
 with wire netting or setting a watch upon the men or some other of 
 like character, the defendant cannot complain. Such negligence would 
 rest, not on the throwing of the missiles, as they were not thrown in 
 furtherance of the master's business, but on not using reasonable care 
 to prevent them from being thrown. In other words, it would rest on 
 a relative, and not on an absolute, duty. If, on the other hand, the 
 evidence established an action for nuisance, the rulings of the court 
 were more favorable to the defendant than it was entitled to, because 
 the liability for injury from a nuisance is not relative, but absolute, 
 Hepb. Torts — 24
 
 370 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 and proof of negligence on the one hand and the absence thereof on 
 the other is not required. 
 
 The line between protracted and habitual negligence and nuisance is 
 not easily drawn, and facts may exist which call for damages on either 
 theory when the pleadings are appropriate, as in this case, to either 
 kind of relief. High authority is not wanting to sustain the judgment 
 below on the ground of negligence pure and simple. Thus, in an im- 
 portant case, the plaintiff was a workman employed by the defendant 
 railroad at its workshop in the city of Washington. When returning 
 from his day's labor, he stopped at the intersection of two streets to 
 enable a repair train to pass him. For a long time prior it had been 
 the custom of the defendant to allow its workmen, who went out on 
 a repair train in the morning, to bring back with them on their return 
 in the evening sticks of refuse timber for their individual use as fire- 
 wood, and these men were in the habit of throwing the sticks off the 
 train while in motion at the points nearest their own homes ; but they 
 had been cautioned by the company not to injure any one in doing so. 
 As the defendant's train passed the plaintiff, such a piece of refuse 
 wood was thrown from it by one of the men and, striking the ground, 
 rebounded, struck the plaintiff, and injured him seriously. Upon the 
 trial of an action to recover damages, after proving these facts, the 
 plaintiff rested, and defendant moved for a verdict in its favor, and 
 the motion was granted. Upon appeal to the Court of Appeals of the 
 District of Columbia the judgment was affirmed; but upon further 
 appeal to the Supreme Court of the United States it was reversed, on 
 the ground that the jury could have found the defendant guilty of 
 negligence. Fletcher v. Baltimore & Potomac R. R. Co., 168 U. S. 
 135, 18 Sup. Ct. 35, 42 L. Ed. 411. Mr. Justice Peckham, writing for 
 all the judges, said: "Negligence on the part of the company is the 
 basis of its liability, and the mere failure to prevent a single and dan- 
 gerous act, as above stated, would not prove its existence. * * * 
 If the act on the car were such as to permit the jury to find that it 
 was one from which, as a result, injury to a person on the street 
 might reasonably be feared, and if acts of a like nature had been and 
 were habitually performed by those upon the car to the knowledge 
 of the agents or servants of the defendant, who with such knowledge 
 permitted their continuance, then in such case the jury might find 
 the defendant guilty of negligence in having permitted the act and 
 liable for the injury resulting therefrom, notwithstanding the act was 
 that of an employe and beyond the scope of his employment and to- 
 tally disconnected therewith. * * * It is not a question of scope 
 of employment or that the act of the individual is performed by one 
 who has ceased for the time being to be in the employment of the 
 company. The question is : Does the company owe any duty wliat- 
 ever to the general public, or, in other words, to individuals who may 
 be in the streets through which its railroad tracks arc laid, to use 
 reasonable diligence to see to it that those who are on its trains shall
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 371 
 
 not be guilty of any act which might reasonably be called dangerous 
 and liable to result in injuries to persons on the street, where such 
 act could by the exercise of reasonable diligence on the part of the 
 company have been prevented ? We think the company does owe such 
 a duty and if through and in consequence of its neglect of that duty 
 an act is performed by a passenger or employe which is one of a 
 series of the same kind of acts and which the company had knowledge 
 of and had acquiesced in, and if the act be in its nature a dangerous 
 one, and a person lawfully on the street is injured as a result of such 
 an act, the company is liable. Any other rule would in our opinion be 
 most disastrous, and would be founded upon no sound principle." 
 See, also, Swinarton v. Le Boutillier, 7 Misc. Rep. 639, 28 N. Y. 
 Supp. 53, affirmed 148 N. Y. 752, 43 N. E. 990; Dwyer v. D. & H. 
 Canal Co., 17 App. Div. 623, 47 N. Y. Supp. 1135. 
 
 The defendant had reason to believe that missiles would be thrown 
 from its premises upon those of the plaintiff in the future, as they 
 had been continuously in the past, and that they might hurt some one. 
 It took some precautions to prevent the evil ; but they were not ef- 
 fective, and the defendant knew they were not. It could not remain 
 quiet and let the practice go on. The jury could properly say that 
 in the exercise of reasonable care in the management of its own prop- 
 erty, so as to prevent an injury reasonably to be expected to its neigh- 
 bor's property and person, it should have taken further precautions, 
 and that it was negligent in not having done so. This would lead to 
 an affirmance on the ground of negligence, the real ground upon which 
 the case was sent to the jury. I am personally of the opinion, how- 
 ever, that the practice complained of was a nuisance as matter of 
 fact, if the jury so found. "Sic utere tuo ut ahenum non laedas," is 
 an old maxim of the law, which applies both to the use made and the 
 use knowingly suffered to be made of one's own property while he 
 is in full control thereof. It is a trespass for the owner of one lot to 
 throw anything upon the adjoining lot of his neighbor. The defend- 
 ant furnished the place from which and the means with which habitual 
 trespasses, calculated to inflict personal injury, were committed on the 
 adjoining premises of the plaintiff. The defendant knew of the prac- 
 tice and knew that it had existed a long time, and, while some efforts 
 were made to prevent it, the evil continued and even grew worse. 
 An occasional trespass of this kind committed by the defendant's 
 workmen would not warrant a jury in finding it guilty of suffering 
 or maintaining a nuisance; but, when the practice became habitual 
 and the injury was direct, substantial, and well known, I think the 
 duty of the defendant became absolute, and that it was guilty of 
 suft'ering a nuisance to continue on its land if it did not prevent the 
 evil. 
 
 In a recent case, without attempting a general definition of a 
 nuisance, we said that : "If the natural tendency of the act complain- 
 ed of is to create danger and inflict injury upon person or property.
 
 372 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 it may properly be found a nuisance as matter of fact; but, if the act 
 in its inherent nature is so hazardous as to make the danger extreme 
 and serious injury so probable as to be almost a certainty, it should 
 be held a nuisance as matter of law." Melker v. City of New York, 
 190 N. Y. 481, 488, 83 N. E. 565, 567, 16 L. R. A. (N. S.) 621, 13 
 Ann. Cas. 544. See, also, Sullivan v. Dunham, 161 N. Y. 290, 55 
 N. E. 923, 47 L. R. A. 715, 76 Am. St. Rep. 274; McCarty v. 
 Natural Carbonic Gas Co., 189 N. Y. 40, 81 N. E. 549, 13 L. R. A. 
 (N. S.) 465, 12 Ann. Cas. 840. While that definition implies that the 
 act is that of the defendant, I think the same rule should apply when 
 a series of acts extending over many months is committed by men in 
 the employment of the defendant, to its knowledge, with its personal 
 property and while standing on its premises, even if the acts are with- 
 out the line of its business. Although the defendant did not com- 
 mit the injuries nor sanction them, it suffered them to continue for so 
 long a period as to make them its own, or so at least the jury could 
 find. It is a nuisance for one to permit a crowd to habitually gather 
 on his land and by boisterous singing, obscene language, and other 
 disorderly conduct to seriously annoy his next-door neighbor. It is 
 immaterial whether the acts are committed by his own workmen or 
 by strangers, so long as they are committed on his land, constantly 
 and with his knowledge. 
 
 It is the duty of the owner of premises to prevent them from being 
 made a constant source of injury to others, and it is upon this prin- 
 ciple that suffering a foul water closet to exist in a crowded neigh- 
 borhood is held a nuisance. The decaying carcasses of animals, 
 whether placed on his land by the owner or not, hogpens, cesspools, 
 dangerous structures, explosives and the like, while all are depend- 
 ent on the surrounding circumstances and on the degree of danger or 
 annoyance, may be found nuisances in fact. Although the mere own- 
 ership of land may impose no liability for a nuisance thereon, or com- 
 mitted therefrom, still if the owner suffers his premises to become 
 the stand point for the habitual infliction of injuries upon his neigh- 
 bor, and such injuries could not be inflicted without standing on such 
 land, he may be held liable by the jury as a principal. He suffers 
 the evil to exist on his land, if, while in the full possession and con- 
 trol thereof, he knows that it exists thereon and he does not abate it 
 within a reasonalDle time and under reasonable circumstances, both 
 time and circumstances ordinarily being for the jury. 
 
 I think that upon the facts as they are presumed to have been found 
 by the jury the defendant was guilty of suffering a nuisance to exist 
 and continue on its premises, and that it is liable for the injury re- 
 sulting therefrom to the plaintiff without proof of negligence or its 
 incidents. 
 
 The judgment should be affirmed, with costs,®* 
 
 «* Part of the opinion is omitted.
 
 Ch, 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 373 
 
 (d) Kinds and Degrees of the Annoyance es 
 
 WALTER V. SELFE. 
 
 (High Court of Chancery, ISul. 4 De Gex. & Sm. 315, 64 Reprint, 849.) 
 
 This was a motion for an injunction to restrain the defendant from 
 SO burning bricks on a strip of ground belonging to the defendant 
 as to occasion annoyance to the plaintiffs or damage to the buildings 
 or the trees and shrubbery on the plaintiffs' premises. ^^"^ 
 
 The Vice-Chancellor (Sir J. h. Knight Bruce). * * * 
 One of the plaintiffs sues as the owner, and the other as his tenant 
 and the occupier, of a parcel of land at Surbiton, in Surrey, of which 
 a dwelling-house, with outbuildings appurtenant to it, stands on part, 
 and other part consists of a garden or pleasure-ground or both, also 
 belonging to the house. 
 
 It is admitted that the house was built before the year 1829, and has 
 been used and occupied as a dwelling-house from a time preceding 
 that year. The land on its northwestern part adjoins a portion of a 
 parcel of land, containing more than an acre, but less than two acres 
 in the whole, which belongs to the defendant, and on which, in the 
 spring or early in the summer of the year 1850, he began to manufac- 
 ture bricks of the clay of the earth of the same land by burning, in 
 what is, I believe, a common mode of manufacturing them, — by means 
 of a clamp, that is to say, not a kiln. It does not appear that, before 
 the year 1850, any manufacture or process of that sort, or of any of- 
 fensive, objectionable or disagreeable kind, had been begun upon any 
 portion of this parcel of land, or carried on there. * * * 
 
 The first point, disputed or not conceded, is the question whether, as 
 between the defendant in his character of a person owning, using and 
 occupying his parcel of land that has been mentioned on the one hand, 
 and the plaintiffs in their characters of owner and occupier of the 
 house, offices and garden occupied by the plaintiff', Mr. Pressly, on the 
 other hand, Mr. Pressly is entitled to an untainted and unpolluted 
 stream of air for the necessary supply and reasonable use of himself 
 and his family there, or, in other words, to have there for the ordi- 
 nary purposes of breath and life an unpolluted and untainted atmos- 
 
 6 5 "It would be dangerous to attempt any exhaustive list of specific nui- 
 sances ; for it is to be expected that, with changes in social and industrial 
 habits, new examples will continually arise, and, possibly, old ones disappear 
 from the list." Jenks' Digest of Eng. Civil Law, bk. II, pt. 3, p. 401 (1907), 
 where 12 classes of well-known instances are mentioned. See also the 
 14 classes of "Nuisances in Respect of Particular Matters," in Halsbury's 
 Laws of England, vol. 21, pp. 513-546, the 10 classes in Salmond, Torts 
 184, 185, note (1910), and the 125 heads of nuisance in 29 Cyc. 1165-1184. 
 A valuable collection of specific nuisances, within the doctrine of one state, 
 can be found in Popper & Lewis' Pennsylvania Digest, cc. 2.3938-24026. 
 
 c! The .statement of the case is abridged, and portions of the opinion are 
 omitted.
 
 374 TORTS THROUGH ACTS OP ABSOLUTE LIABILITY (Part 1 
 
 phere ; and there can, I think, be no doubt upon the facts and law 
 but that this question must be answered in the affirmative, meaning, 
 by "untainted" and "unpolkited," not necessarily air as fresh, free 
 and pure as at the time of building the plaintiffs' house the atmos- 
 phere there was, but air not rendered to an important degree less com- 
 patible, or at least not rendered incompatible, with the physical com- 
 fort of human existence, a phrase to be understood of course with 
 reference to the climate and habits of England. 
 
 It is next to be considered whether the defendant has interfered or 
 purposes to interfere materially with this right of the plaintiff's, or of 
 the plaintiff, Mr. Pressly. 
 
 That the process of manufacturing bricks by burning them on the 
 defendant's land, in the manner begun and now intended by him, must 
 communicate smoke, vapours and floating substances of some kinds 
 to the air is certain. I think it plain also, from the relative positions 
 of the two properties, that this smoke and these vapours and floating 
 substances, the burning being to the westward of the defendant's own 
 house, must wholly or to a great extent enter and become mixed with 
 the air supplying the plaintiffs' house, and part at least of the garden 
 or pleasure-ground belonging to it, and this without being previously 
 so dispersed or attenuated as to become imperceptible, or be materially 
 impaired or diminished in force. I conceive that the plaintiff's' house, 
 and at least part of its pleasure-ground or garden, must generally or 
 often, if the manufacture shall proceed, be subjected substantially, as 
 far as the quality of the atmosphere is concerned, to the original and 
 full strength of the mixture and dose thus produced. I speak without 
 forgetting the trees that stand along the line of the boundary, and 
 without assuming their continuance, or the contrary. 
 
 The question then arises whether this is or will be an inconvenience 
 to the occupier of the plaintiffs' house as occupier of it, a question 
 which must, I think, be answered in the affirmative; though, whether 
 to the extent of being noxious to human health, to animal health, in 
 any sense, or to vegetable health, I do not say nor deem it necessary 
 to intimate an opinion ; ^^ for it is with a private not a public nui- 
 
 6 7 Compare Campbell v. Seaman (1876) 63 N. Y. 568, 20 Am. Rep. 567: 
 (D., a large manfacturer of bricks from clay upon his own land, used a 
 process which caused each kiln to give out. for at least two days of its 
 burning, a volume of sulphurous acid gas. While D. was thus making bricks, 
 P. built a handsome residence on the adjoining property. The residence 
 stood in some 40 acres of ornamental grounds. The gas from D.'s kilns de- 
 stroys P.'s white and yellow pines and Norway spruces and damages his 
 grape vines. P. seeks an injunction. Said Earl, J., delivering the opinion: 
 "Tlie plaintiffs had built a costly mansion and had laid out their grounds 
 and planted them with ornamental and useful trees and vines, for their com- 
 fort and enjoyment. How can one be compensated in damages for the de- 
 struction of his ornamental trees, and the flowers and vines which sxir- 
 rounded his home? How can a jury estimate their value in dollars and centsV 
 Tlie fact that trees and vines are for ornament or luxury entitles them no loss 
 to the protection of the law. Every one has the right to surround himself 
 with articles of luxury, and he will be no less protected than one who pro-
 
 Ch, 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 375 
 
 sance that the defendant is charged. And both on principle and au- 
 thority the important point next for decision may properly, I conceive, 
 be thus put : Ought this inconvenience to be considered in fact as 
 more than fanciful, more than one of mere delicacy or fastidiousness, 
 as an inconvenience materially interfering with the ordinary comfort 
 physically of human existence, not merely according to elegant or 
 dainty modes and habits of living, but according to plain and sober 
 and simple notions among the English people? 
 
 And I am of opinion that this point is against the defendant. As 
 far as the human frame in an average state of health at least is con- 
 cerned, mere insalubrity, mere unwholesomeness, may possibly, as I 
 have said, be out of the case, but the same may perhaps be asserted 
 of stied hogs, melting tallow, and other such inventions less sweet 
 than useful. That does not decide the dispute ; a smell may be sick- 
 ening though not in a medical sense. Ingredients may, I believe, be 
 mixed with air of such a nature as to affect the palate disagreeably 
 and oft'ensively, though not unwholesomely. A man's body may be 
 in a state of chronic discomfort, still retaining its health, and perhaps 
 even suft'er more annoyance from nauseous or fetid air for being in 
 a hale condition. Nor, I repeat, do I think it incumbent on the plain- 
 tiff's to establish that vegetable life or vegetable health, either univer- 
 sally or in particular instances, is noxiously affected by the contact of 
 vapours and floating substances proceeding from burning bricks ; for, 
 as I said, they have I think established that the defendant's intended 
 proceedings will, if prosecuted, abridge and diminish seriously and 
 materially the ordinary comfort of existence to the occupier and in- 
 mates of the plaintiff's' house (whatever their rank or station, what- 
 ever their age, whatever their state of health). * * * es 
 
 vides himself only with .articles of necessity. The law will protect a llowei- 
 or a vine as well as an oak. Cook v. Forbes [1867] L. R. 5 Eq. Ca. 166 ; 
 Broatlbent v. Imperial Gas Co. [1856] 7 De G., McN. & G. 436. These dam- 
 ages are irreparable, too, because the trees and vines cannot be replaced, 
 and the law will not compel a person to take money rather than the objects 
 of beauty and utility which he places around his dwelling to gratify his taste 
 or to promote his comfort and his health.") 
 
 6 8 Compare the remarks of the Chancellor (Zabriskie) in Cleveland v. 
 Citizens' Gas Light Co. (1869) 20 N. J. Eq. 201, 205: "To live comfortably is 
 the chief and most reasonable object of men in acquiring property as the 
 means of attaining it; and any interference with our neighbor in the com- 
 fortable enjoyment of life, is a wrong which the law will redress. The only 
 question is what amounts to that discomfort from which the law will pro- 
 tect. The discomforts must be physical, not such as depend upon taste or 
 imagination. But whatever is offensive physically to the senses, and by such 
 offensiveness makes life uncomfortable, is a nuisance ; and it is not the less 
 so, because there may be persons whose habits and occupations have brought 
 them to endure the same annoyances without discomfort. Other persons or 
 classes of persons whose senses have not been so hardened, and who, by their 
 education and habits of life, retain the sensitiveness of their natural organ- 
 ization, are entitled to enjoy life in comfort as they are constituted. The 
 law knows no distinction of classes, and will protect any citizen or class of 
 citizens, from wrongs and grievances that might perhaps be borne by others 
 without suffering or much inconvenience. The complainants have houses
 
 376 TORTS THROUGH ACTS OP ABSOLUTE LIABILITY (Part 1 
 
 It appears to me that in the present instance, the defendant as well 
 as the plaintiffs declining to go before a jury and asking a court of 
 chancery to decide between them without assistance in any shape from 
 a court of law I ought to grant an injunction.* 
 
 EVERETT et ux. v. PASCHALL. 
 
 (Supreme Court of Wasbingtou, 1910. 61 Wash. 47, 111 Pac. 879, 
 31 L, R. A. [N. S.] 827, Ann. Cas. 1912B, 1128.) 
 
 This action was brought to enjoin the defendant from maintaining 
 a tuberculosis sanitarium, with a capacity of ten patients, in a resi- 
 dential portion of the city of Seattle, on a lot separated from plain- 
 tiff's lot by an alleyway. The lower court denied an injunction, and 
 the plaintiffs appealed. 
 
 Chadwick, j, * * * i^g text of our decision has been aptly 
 stated by counsel for appellant: "Can a tuberculosis hospital be main- 
 l tained in a residential portion of a city where its maintenance depre- 
 ciates the value of contiguous property from 33% to 50 per cent., and 
 where its existence detracts from the comfortable use of such residen- 
 tial property?" 
 
 In the evolution of the law of nuisance there has grown an element 
 not clearly recognized at common law. Blackstone, 3 Com. 216, has 
 defined a nuisance to be "anything that worketh hurt, inconvenience, 
 or damage," reducing the nuisances which affect a man's dwelling to 
 three: (1) Overhanging it; (2) stopping ancient lights; and (3) cor- 
 rupting the air with smells. It will be seen that within these defini- 
 tions the maintenance of a sanitarium conducted with due attention 
 to sanitation is not a nuisance, for it creates no physical inconvenience 
 whatever. But a new element in the law of nuisance has been devel- 
 oped, first, by judicial decisions, and, later, by declaratory statutes; 
 
 built and held for the purpose of residences, by families of means and re- 
 spectability, and anything that by producing physical discomfort would ren- 
 der them unfit for such residence, or drive such families from them, is a nui- 
 sance which the law will restrain. This, then, is the question before me: 
 Whether the proposed works of the defendants would produce such annoyance 
 as would render such families, composed of women and children, as well as 
 men, uncomfortable ; not whether men accustomed to follow their occupa- 
 tions in places where they are surrounded, and unavoidably, by much that 
 is offensive, may not be so accustomed to odors of like nature as not to be an- 
 noyed by these." 
 
 Compare Adams v. Ursell, [1913] 1 Ch. 2G9: (Action to restrain an alleged 
 nuisance caused by a fried fish shop, in promises adjoining the plaintiff's 
 residence. "The frying of fish went on daily betwoen 11:30 a. m. and 1:30 
 p. m., and between G:.30 and 10:.30 p. m. The plaintitl' gave evidence that the 
 odour caused by frying the fish pervaded every room of his house and 
 affected the flavour of butter in his larder ; and that the vapour from the 
 defendant's cooking stove appeared in the plaintiff's house like a fog or mist." 
 But it appeared tliat this was not injurious to health.) 
 
 *An appual from that decision was heard by the Lord Chancellor (Lord St. 
 Leonards) and was dismissed, with costs.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 377 
 
 that is, the comfortable enjoyment of one's property. It is written in 
 the statutes of this state: "Nuisance consists in unlawfully doing an 
 act or omitting to perform a duty, which act or omission either an- 
 noys, injures or endangers the comfort, repose, health or safety of 
 others, ottends decency * * * or in any way renders other per- 
 sons insecure in life, or in the use of property." Rem. & Bal. Code, 
 § 8309. Respondent contends, and the court has found, that the prop- 
 erty of respondent is not a nuisance per se, and that it is so conducted 
 that it is not, and cannot be, a nuisance by reason of its use ; that there 
 is no real danger; that the fear or dread of the disease is, in the hght 
 of scientific investigation, unfounded, imaginary, and fanciful; and 
 that the injury, if any, is damnum absque injuria. On the other hand, 
 the appellants insist that the location of a sanitarium for the treat- 
 ment of a disease, of which there is a positive dread which science has 
 so far failed to combat, so robs them of that pleasure in, and com- 
 fortable enjoyment of, their home as to make it an actionable nuisance 
 under the statute ; and, furthermore, under the findings of the court, 
 that the presence of the sanitarium in a district given over to resi- 
 dences, and which has depreciated property from 33 to 50 per cent., 
 is such a deprivation of property as will warrant a decree in their fa- 
 vor under the maxim, "Sic utere tuo ut alienum non Ifedas." 
 
 Waiving for the present the substantial pecuniary damage which the 
 court found to exist, and addressing ourselves to the principle under- 
 lying the lower court's decree — that is, that the danger being only in 
 the apprehension of it, a fear unfounded and unsustained by science, 
 a demon of the imagination — the courts will take no account of it: If 
 dread of the disease and fear induced by the proximity of the sani- 
 tarium, in fact, disturb the comfortable enjoyment of the property of 
 the appellants, we question our right to say that the fear is unfounded 
 or unreasonable, when it is shared by the whole public to such an ex- 
 tent that property values are diminished. The question is, not whether 
 the fear is founded in science, but whether it exists ; not whether it 
 is imaginary, but whether it is real, in that it afifects the movements 
 and conduct of men. Such fears are actual, and must be recognized 
 by the courts as other emotions of the human mind. That fear is real 
 in the sense indicated, and is the most essentially human of all emo- 
 tions, there can be no doubt. * * * 
 
 Nuisance is a question of degree, depending upon varying circum- 
 stances. There must be more than a tendency to injury. There must 
 be something appreciable. The cases generally say, "tangible, actual, 
 measurable, or subsisting." But in all cases, in determining whether 
 the injury charged comes within these general terms, resort should be 
 had to sound common sense. Each case must be judged by itself. 
 Joyce on Nuisances, 19. Regard should be had for the notions of 
 comfort and convenience entertained by persons generally of ordinary 
 tastes and susceptibilities. Columbus Gaslight & Coke Co. v. Free- 
 land, 12 Ohio St. 392 ; Barnes v, Hathorn, 54 ]\le. 124. The nuisance
 
 378 TOUTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 and discomfort must atlect the ordinary comfort of human existence 
 as understood by the American people in their present state of en- 
 Hghtenment. Joyce on Nuisances, § 20. The theories and dogmas 
 of scientific men, though provable by scientific reference, cannot be 
 held to be controlling unless shared bv the people generally. In Gro- 
 ver y. Zook, 44 Wash. 494, 87 Pac. 639, 7 L. ^. A. (N. S.) 582, 120 
 jVm. St. Rep. 1012, 12 Ann. Cas. 192, this court said: "That pulmo- 
 nary tuberculosis is both contagious and hereditary, as these terms 
 are understood (although not in a strictly technical and professional 
 sense), as well as infectious, admits of little, if any, doubt." This 
 principle applies with peculiar force in this case ; for aside from the 
 general dread of the disease, as found by the court, it is also shown 
 that the security of the public depends upon proper precautions and 
 sanitation, which may at any time be relaxed by incautious nurses or 
 careless or ignorant patients. 
 
 Furthermore, the court found that the bacilla of the disease may 
 be carried by house flies. Thus every house fly that might drone a 
 summer afternoon in the drawing room or nursery is a constant re- 
 minder to plaintiffs of their neighbor, tending to disquiet the mind 
 and render the enjoyment of their home uncomfortable. The only 
 case we find holding that fear alone will not support a decree in this 
 class of cases is Anonymous, 3 Atk. 750, where Lord Hardwicke said : 
 "And the fears of mankind, though they may be reasonable ones, will 
 not create a nuisance." Our statute modifies, if indeed it was not de- 
 signed to change, this rule. Under the facts, we cannot say that the 
 dread which is the disquieting element upon which plaintiffs' com- 
 plaint is made to rest is unreal, imaginary, or fanciful. In so doing, 
 we are not violating the settled principles of the law, but affirming 
 them. 
 
 We conceive the case of Stotler v. Rochelle, 83 Kan. 86, 109 Pac. 
 788, 29 L. R. A. (N. S.) 49, to be directly in point. There we find 
 the same contentions made as here. The question was whether the 
 fear of cancer was sustained in the light of medical authority. The 
 court said : "In the present state of accurate knowledge on the sub- 
 ject, it is quite within bounds to say that, whether or not there is 
 actual danger of the transmission of the disease under the conditions 
 stated, the fear of it is not entirely unreasonable." The unusual fea- 
 ture of that case, in that judicial notice is taken of the fact that fear 
 may be urged as a ground for injunctive relief, challenged the interest 
 of the Honorable John D. Lawson, the learned editor of the American 
 Law Review. He takes no issue with the rule. He says : "A hospi- 
 tal, said the court, is not a nuisance per se, or even prima facie, but 
 it may be so located and conducted as to be a nuisance to people living 
 close to it. The question was not whether the establishment of the 
 hospital would place the occupants of the adjacent dwellings in actual 
 danger of infection, but whether they would have reasonable ground 
 to fear such a result, and whether, in view of the general dread in-
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 379 
 
 spired by the disease, the reasonable enjoyment of their property 
 would not be materially interfered with by the bringing together of a 
 considerable number of cancer patients in this place. However care- 
 fully the hospital might be conducted, and however worthy the institu- 
 tion might be, its mere presence, which would necessarily be mani- 
 fested in various ways, would make the neighborhood less desirable 
 for residence purposes, not to the oversensitive alone, but to persons 
 of normal sensibilities. The court concluded that upon these consid- 
 erations the injunction was rightfully granted. The plaintiff, as the 
 owner and occupant of adjacent property, had such a peculiar interest 
 in the relief sought as to enable him to maintain the action." 40 Am. 
 Law Review, No. 5, p. 759. 
 
 In the case of Baltimore v. Fairfield Imp. Co., 87 IMd. 352, 39 Atl. 
 1081, 40 L. R. A. 494, 67 Am. St. Rep. 344, an injunction against plac- 
 ing a leper in a residence neighborhood for care and restraint was jus- 
 tified upon the ground that the disease produced a terror and dread in 
 the minds of the ordinary individual. In that case, the court said : 
 "Leprosy is, and always has been, universally regarded with horror and 
 loathing. * * * f he horror of its contagion is as deep-seated to- 
 day as it was more than 2,000 years ago in Palestine. There are mod- 
 ern theories and opinions of medical experts that the contagion is 
 remote and by no means dangerous ; but the popular belief of its perils 
 founded on the Biblical narrative, on the stringent provisions of the 
 Mosaic law that show how dreadful were its ravages and how great 
 the terror which it excited, and an almost universal sentiment, the 
 result of a common concurrence of thought for centuries, cannot in 
 this day be shaken or dispelled by mere scientific asservation or con- 
 jecture. It is not, in this case, so much a mere academic inquiry as to 
 whether the disease is in fact highly or remotely contagious ; but the 
 question is whether, viewed as it is by the people generally, its intro- 
 duction into a neighborhood is calculated to do a serious injury to the 
 property of the plaintiff there located." In Cherry v. Williams, 147 
 N. C. 452, 61 S. E. 267, 125 Am. St. Rep. 566, 15 Ann. Cas. 715, a 
 temporary restraining order was granted against the maintenance of 
 a tuberculosis hospital, notwithstanding evidence was introduced, as 
 in this case, tending to show that the establishment of such a hospital, 
 if properly maintained and conducted, would not be a menace to the 
 health of the community, but in fact a benefit. We have no cases in 
 this state directly in point, yet a case not without bearing is that of 
 Shepard v. City of Seattle, 59 Wash. 363, 109 Pac. 1067, 40 L. R. A. 
 (N. S.) 647. Judge Rudkin, delivering the opinion of the court, said : 
 "The presence of a private insane asylum, with its barred windows, 
 and irresponsible inmates, would annoy, injure, and endanger the com- 
 fort, safety, and repose of any person of average sensibilities if lo- 
 cated within 200 feet of his place of abode. In other words, it is a 
 matter of common knowledge that the presence of such an institution
 
 380 TORTS THROUGH ACTS OP ABSOLUTE LIABILITY (Part 1 
 
 in a residential portion of a city would practically destroy the value of 
 all property within its immediate vicinity for residence purposes." 
 
 We therefore conclude that the lower court erred in denying an in- 
 junction. The case is remanded with instructions to enter a decree 
 upon the findings in favor of appellant.*^® 
 
 6 The statement of facts is abridged and part of the opinion is omitted. 
 
 But see Board of Health v. North American Home (1910) 77 N. J. Eq. 
 464, 78 Atl. 677: ("Notwithstanding the great public good which will neces- 
 sarily result from the work of an institution of this nature [a sanitarium de- 
 A'oted exclusively to the treatment of children afflicted with bone tuber- 
 culosis], it is manifest that if the health of the residents of Ventnor City 
 is jeopardized by its maintenance, a court of equity may grant such relief 
 as will afford adequate protection to the residents of that city from the 
 threatened danger; but if no real danger of that nature exists, the mere 
 fact that uninformed people who are unacquainted with the true conditions 
 may or probably will assume such a danger to exist cannot be made the 
 basis of equitable relief." Per Leaming, V. C.) 
 
 In Tod-Heatley v. Benham (1888) 40 Ch, D. SO, 98, Bowen, L. J., remarked: 
 "I will assume as a matter of argument only that 'nuisance' in this covenant 
 (in a building lease against doing any act which shall or may be or grow to 
 the annoyance, nuisance, grievance or damage of the lessor, his heirs or as- 
 signs) means only a nuisance at common law ; that is, in the language of 
 Vice-chancellor Knight Bnice in Walter v. Selfe (1851) 4 De G. & Sm. .322, 
 'an inconvenience materially interfering with the ordinary comfort physi- 
 cally of human existence, not merely according to elegant or daintj' modes 
 and habits of living, but according to plain and sober and simple notions 
 among the English people.' Any material interference with the ordinary 
 comfort of existence: that would be a nuisance. The law, in thus deflning 
 'nuisance' has stopped short, I will not say of protecting the fancies of 
 people, because the mere fancies of people I do not think can in any view be 
 an element in the definition, but has stopped short, according to what is said 
 in Aldred's Case (IGIO) 9 Rep. .5Sb, of giving an action in respect of that 
 which is a matter only of delight, and not of necessity. 'Annoyance' is a 
 wider term than 'nuisance,' and if you find a thing which reasonably troubles 
 the mind and pleasure, not of a fanciful person or of a skilled person who 
 knows the truth, but of the ordinary sensible English inhabitant of a house — 
 if you find there is anything which disturbs his reasonable peace of mind, 
 that seems to me to be an annoyance, although it may not appear to amount 
 to physical detriment to comfort. You must take sensible people, you must 
 not take fanciful people on the one side or skilled people on the other ; that 
 is the key as it seems to me of this case. Doctors may be able to say, and, 
 for anything I know, to say with certainty, that there is no sort of danger 
 from this hospital to the surrounding neighbourhood. But the fact that 
 some doctors think there is makes it evident at all events that it is not a 
 very unreasonable thing for persons of ordinary apprehension to be troubled 
 in their minds about it. And if it is not an unreasonable thing for an ordi- 
 nary person who lives in the neighbourhood to be troubled in his mind by the 
 apprehension of such risk, it seems to me there is danger of annoyance, 
 though there may not be a nuisance. * * * " 
 
 See further Kestner v. Homeopathic M. & S. Hospital (1914) 245 Pa. .326, 
 91 Atl. 659, 52 L. R. A. (N. S.) 1032.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 381 
 
 DAVIS V. SAWYER. 
 
 (Supreme Judicial Court of Massachusetts, 1882. 133 Mass. 289, 
 
 43 Am. Rep. 519.) 
 
 W. Alle;n, J. This is a bill in equity praying for an injunction to 
 restrain the defendants from ringing a bell. The case comes here on 
 appeal by the defendants from a decree entered by a single judge, en- 
 joining them from ringing the bell earlier than half after 6 o'clock 
 in the morning. The plaintiffs for many years have owned and occu- 
 pied dwelling-houses situated, one about one thousand feet, and the 
 other about three hundred feet, from a woollen mill of the defend- 
 ants. The defendants began to run their mill, which had been before 
 that occupied by other persons, in December, 1879, and about January 
 1, 1880, placed the bell upon the mill, and caused it to be rimg every 
 working day at 5 o'clock, and twice between 6 and 6 :30 o'clock, in 
 the morning, and at other times during the day, except that the 5 
 o'clock bell was discontinued during the summer months. 
 
 The plaintiff's allege that the bell as rung is a private nuisance to 
 them, and injures their property, and disturbs the quiet and comfort 
 of their homes; that it is not necessary for any purpose of trade or 
 manufacture; that it is unnecessarily large, and rung at unseasonable 
 hours, and unreasonably long. The defendants in their answer deny 
 that the bell is a nuisance to the plaintiff's, and say that it is used by 
 the defendants to summon the operatives in their mill to work; that 
 it is necessary and customary to adopt some method to summon oper- 
 atives in such a manufactory to their work ; that the bell is of suita- 
 ble size, and rung at suitable hours, and in a proper manner, for that 
 purpose. 
 
 Two questions are presented: whether the plaintiffs have proved 
 that the ringing of the bell is a nuisance to them ; and whether it is 
 such a nuisance that this court will interfere to restrain it by injunc- 
 tion.^ ° 
 
 Noise which constitutes an annoyance to a person of ordinary sensi- 
 bility to sound, such as materially to interfere with the ordinary com- 
 fort of life, and impair the reasonable enjoyment of his habitation, is 
 a nuisance to him. Crump v. Lambert, L. R. 3 Eq. 409; Wesson v. 
 Washburn Iron Co., 13 Allen, 95, 90 -\m. Dec. 181 ; Fay v. Whitman, 
 100 Mass. 76. Upon a careful examination of the evidence reported, 
 it seems fully to sustain the finding of the judge who heard the case, 
 that the ringing of the bell was a nuisance to the plaintiffs. The bell 
 weighs about two thousand pounds, and is set in an open tower about 
 forty feet from the ground, and was rung for a long time at 5 o'clock, 
 as many as ninety strokes having been repeatedly counted. The resi- 
 
 7 The second question, whether it was such a nuisance that the court will 
 interfere to restrain it bv injunction was answered in the affirmative. 
 See Sawyer v. Davis (1883) 13G Mass. 239, 49 Am. Rep. 27.
 
 7 
 
 382 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 dences of the plaintiffs are so situated with respect to the bell, par- 
 ticularly that of the plaintiff Davis, being higher than the bell and upon 
 a hill-side, with no obstruction between, that they receive the full 
 force of the sound, and they are in a village in which, at that hour, 
 there is no other ringing of bells, or other disturbing noise. Without 
 referring to the evidence in detail, or reviewing the particular circum- 
 stances affecting the question, it is enough to say that the evidence 
 sustains what must have been found by the judge, namely, that the 
 plaintiffs were deprived of sleep during the hours usually devoted to 
 repose, and were personally annoyed, and disturbed in their homes, 
 and the quiet and comfort of their dwellings were impaired, as the 
 natural consequence of the acts of the defendants which are conv 
 plained of. Nor is the fact that a large majority of the persons living 
 nearer to the bell than the plaintiffs were not annoyed by it, at all con- 
 clusive that it would not, and did not, awaken and annoy persons of 
 ordinary- sensibility to noise situated as the plaintiffs were. Besides 
 the consideration that nearness to the bell would not alone determine 
 the effect produced by its sound, it is obvious that the bell was suffi- 
 cient and effective to awaken persons ordinarily sensitive to sound, 
 who were no more exposed to its effects than the plaintiffs were. 
 That was the effect it was intended to produce, and, if it had not in 
 fact produced the effect, its use would not have been continued. The 
 fact that some persons may have had such associations connected with 
 the sound that it may have been to them a pleasure rather than an an- 
 noyance, or that the sensibility of others to the sound may have be- 
 come so deadened that it ceased to disturb them, shows that the noise 
 was not a nuisance to them, but does not change its character as to 
 others. Many persons can, by habit, lose, to some extent, their sensi- 
 bility to a disturbing noise, as they can to a disagreeable taste or odor 
 or sight, or their susceptibility to a particular poison, but it is because 
 they become less than ordinarily susceptible to the particular impres- 
 sion. In this case, the evidence shows that persons were awakened 
 and disturbed by the bell until they had lost ordinary sensibility to its 
 sound. * * * 
 Decree affirmed. 
 
 ROGERS v. ELLIOTT. 
 
 (Supreme Judicial Court of Massachusetts, 1888. 146 Mass. 349, 
 15 N. E. 768, 4 Am. St. Rep. 316.) 
 
 Tort for a nuisance, namely, the ringing of a church bell. At the 
 
 trial there was evidence tending to prove 
 
 that the plaintiff, who lived with his father in a thickly settled portion of 
 Proviiicotowu, had received a sun-stroke, and was carried home and a 
 physician called to attend him ; that directly opposite his father's house 
 across a street but twenty feet in width was a Koman Catholic Church of 
 which the defendant was the clergyman in charge ; that one of the incidents
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 383 
 
 of the plaintiff's illness was that loud noises might throw him into convul- 
 sions ; that the defendant was informed by the physician and the plaintiff's 
 father of the probable consequences to the plaintiff of the ringing of the bell 
 upon his church, and was requested not to ring it ; that the defendant re- 
 fused to refrain from ringing the bell, but caused it to be rung eiglit times 
 upon the next Sunday, as usual, twice before each of the four services held 
 upon that day ; that the plaintiff, the windows of whose room were shut, 
 was thrown into violent and painful convulsions at each time that the bell 
 on the church was rung, as well as when other bells in the town were rung, 
 or a whistle on a steamboat in the harbor was blown, and once when the 
 town clock struck ; and that the convulsions increased the illness and re- 
 tarded the recovery of the plaintiff. 
 
 The judge ruled that the plaintiff was not entitled to recover, and 
 ordered a verdict for the defendant; and reported the case for the 
 determination of this court. If the ruling w^as v^rong, the verdict was 
 to be set aside and a new trial granted ; otherwise, judgment was to 
 be rendered on the verdict. 
 
 Knowlton, J. The defendant was the custodian and authorized 
 manager of property of the Roman Catholic Church used for religious 
 worship. The acts for which the plaintiff seeks to hold him responsi- 
 ble were done in the use of this property, and the sole question before 
 us is whether or not that use was unlawful. The plaintiff's case rests 
 upon the proposition that the ringing of the bell was a nuisance. The 
 consideration of this proposition involves an inquiry into what the de- 
 fendant could properly do in the use of the real estate which he had 
 in charge, and what was the standard by which his rights were to be 
 measured. 
 
 It appears that the church was built upon a public street in a thickly 
 settled part of the town, and if the ringing of the bell on Sundays had 
 materially affected the health or comfort of all in the vicinity, wdi eth- 
 er residing or passing there, this use of the property would have been 
 a public nuisance, for which there would have been a remedy by in- 
 dictment. Individuals suffering from it in their persons or their prop- 
 erty could have recovered damages for a private nuisance. Wesson 
 v. Washburn Iron Co., 13 Allen, 95, 90 Am. Dec. 181. 
 
 In an action of this kind, a fundamental question is, by what stand- 
 ard, as against the interests of a neighbor, is one's right to use his real 
 estate to be measured. In densely populated communities the use of 
 property in many ways which are legitimate and proper necessarily 
 aft'ects in greater or less degree the property or persons of others in 
 the vicinity. In such case the inquiry always is, when rights are called 
 in question, what is reasonable under the circumstances. If a use of 
 property is objectionable solely on account of the noise which it makes, 
 it is a nuisance, if at all, by reason of its effect upon the health or com- 
 fort of those who are within hearing. The right to make a noise for 
 a proper purpose must be measured in reference to the degree of an- 
 noyance which others may reasonably be required to submit to. In 
 connection with the importance of the business from which it pro- 
 ceeds, that must be determined by the effect of noise upon people gen-
 
 384 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 erally, and not upon those, on the one hand, who are peculiarly sus- 
 ceptible to it, or those, on the other, who by long experience have 
 learned to endure it without inconvenience ; not upon those whose 
 strong nerves and robust ' health enable them to endure the greatest 
 disturbances without suffering, nor upon those whose mental or physi- 
 cal condition makes them painfully sensitive to everything about them. 
 
 That this must be the rule in regard to public nuisances is obvious. 
 It is the rule as well, and for reasons nearly, if not quite as satisfac- 
 tory, in relation to private nuisances. Upon a question whether one 
 can lawfully ring his factory bell, or run his noisy machinery, or 
 whether the noise will be a private nuisance to the occupant of a house 
 near by, it is necessary to ascertain the natural and probable effect 
 of the sound upon ordinary persons in that house, — not how it will 
 affect a particular person, who happens to be there to-day, or who may 
 chance to come to-morrow. Fay v. Whitman, 100 Mass. 76; Davis 
 V. Sawyer, 133 Mass. 289, 43 Am. Rep. 519; Walter v. Selfe, 4 De G. 
 & Sm. 315, 323; Soltau v. De Held, 2 Sim. (N. S.) 133; St. Helen's 
 Smelting Co. v. Tipping, 11 H. L. Cas. 642. * * * 
 
 If one's right to use his property were to depend upon the effect of 
 the use upon a person of peculiar temperament or disposition, or upon 
 one suffering from an uncommon disease, the standard for measuring 
 it would be so uncertain and fluctuating as to paralyze industrial en- 
 terprises. The owner of a factory containing noisy machinery, with 
 dwelling-houses all about it, might find his business lawful as to all 
 but one of the tenants of the houses, and as to that one, who dwelt 
 no nearer than the others, it might be a nuisance. The character of 
 his business might change from legal to illegal, or illegal to legal, with 
 every change of tenants of an adjacent estate; or with an arrival or 
 departure of a guest or boarder at a house near by ; or even with the 
 wakefulness or the tranquil repose of an invalid neighbor on a par- 
 ticular night. Legal rights to the use of property cannot be left to 
 such uncertainty. When an act is of such a nature as to extend its 
 influence to those in the vicinity, and its legal quality depends upon 
 the eff"ect of that influence, it is as important that the rightfulness of 
 it should be tried by the experience of ordinary people, as it is, in 
 determining a question as to negligence, that the test should be the 
 common care of persons of ordinary prudence, without regard to the 
 peculiarities of him whose conduct is on trial. 
 
 In the case at bar it is not contended that the ringing of the bell for 
 church services in the manner shown by the evidence materially af- 
 fected the health or comfort of ordinary people in the vicinity, but 
 the plaintiff's claim rests upon the injury done him on account of his 
 peculiar condition. However his request should have been treated 
 by the defendant upon considerations of humanity, we think he could 
 not put himself in a place of exposure to noise, and demand as of legal 
 riglit that the bell should not be used. 
 
 The plaintiff, in his brief, concedes that there was no evidence of
 
 Ch. 2) ABSOLUTE TOUTS OTHER THAN TRESPASSES 385 
 
 express malice on the part of the defendant, but contends that malice 
 was implied in his acts. In the absence of evidence that he acted 
 wantonly, or with express malice, this implication could not come 
 from his exercise of his legal rights. How far and under what cir- 
 cumstances malice may be material in cases of this kind, it is unneces- 
 sary to consider. 
 Judgment on the verdict.''^ 
 
 (e) Whetheb Actual Damage, is Essential 
 
 TAYLOR V. BENNETT. 
 (At Nisi Prius, Swansea Assizes, 1836, 7 Car. & P. 329.) 
 
 Case. The first count of the declaration was for disturbing the 
 plaintiff in the use of a well which she claimed as appurtenant to "a 
 certain dwelling-house called Caivatre," by filling up the well with rub- 
 bish, and rendering the water muddy. 
 
 It appeared that the rubbish had been thrown into the well, but that 
 the well had not been filled up thereby. 
 
 71 Part of the opinion is omitted. 
 
 Accord: Lord v. De Witt (1902 C. C.) 116 Fed. 713: (P. is suffering from 
 disease and an operation wtiicti have left him so sensitive to jar, and with 
 so weak a heart, that if D. goes on with certain blasting which D. has begun 
 on his own lot, with a view to building a house, the necessary jar from the 
 blast will probably cause P.'s death. P. seeks to enjoin the blasting.) 
 
 Compare the analogous principle adopted by the Judicial Committee of the 
 Privy Council in Eastern & South African Telegraph Company v. Cape Town 
 Tramways Companies, [1902] A. C. 381. Tlie action was for damages because 
 of disturbances in the working of the plaintiffs' submarine cable, caused by 
 an escape of electricity stored by the defendants for the working of their 
 tramway system. Said Lord Robertson, delivering the judgment of their 
 Lordships: ' "If the instrument (tlie plaintiffs' telegraphic cable) be taken as 
 it was when the injury occurred, its nature is such that to insure its im- 
 munity from disturbance is a somewhat serious liability to cast on neigh- 
 bours.' To describe this as a delicate instrument might be inaccurate, if 
 the term were used in relation to other electrical instruments of extreme 
 sensibility. But in the present discussion this is not the true comparison at 
 all. The true comparison is with things used in the ordinary enjoyment of 
 property, and this instrument differs from such things in its peculiar lia- 
 bility to be affected by even minute currents of electricity. Now, having 
 regard to the assumptions of the appellants' argument, it seems necessary 
 to point out that the appellants, as licensees to lay their cable in the sea 
 and as owners of the premises in Cape Town where the signals are received, 
 cannot claim higher privileges than other owners of land, and cannot create 
 for themselves, by reason of the peculiarity of their trade apparatus, a 
 higher right to limit the operations of their neighbours than belongs to ordi- 
 nary owners of land who do not trade with telegraphic cables. If the ap- 
 paratus of such concerns requires special protection against the operations 
 of their neighbours, that must be found in legislation ; the remedy at present 
 invoked is an appeal to a connnon law principle which applies to much 
 more usual and less special conditions. A man cannot increase the liabilities 
 of his neighbour by applying his own property to special uses, whether for 
 business or pleasure." 
 
 Hepb.Tobts — 25
 
 386 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part J 
 
 Coleridge;, J. (in summing up). If the effect of throwing in this 
 rubbish was merely to make the water temporarily muddy, that would 
 be too minute a damage to justify you in finding for the plaintiff; but 
 if you think that the defendant has shallowed the water of the well, 
 and has thereby rendered it less convenient to the plaintiff' to obtain 
 water, the plaintiff' is entitled to a verdict.''* 
 
 Verdict for the plaintiff' on the first count of the declaration. Dam- 
 ages Is. 
 
 FAY V. PRENTICE et al. 
 (Court of Common Pleas, 1845. 1 C. B. S28, 135 Reprint, 769, 6S R. R. S2:J.) 
 
 Case, for erecting a cornice at the side of the house of the defend- 
 ant Prentice, projecting over the garden of the plaintiff. 
 
 On the trial, after a plea of not guilty, it appeared that the defend- 
 ant Prentice was possessed of a messuage adjoining the messuage and 
 garden of the plaintiff, and built up to the extreme boundary of his 
 own land, and that, in May, 1844, he caused to be erected thereon (by 
 the other defendant, a builder), an ornamental cornice, which pro- 
 jected about fourteen inches over the plaintiff's garden. The case at- 
 tempted to be made out on the part of the plaintiff was, that the plants 
 and gravel-walk in his garden were injured by the dripping of rain 
 from this cornice ; and some of his witnesses stated, that, in the event 
 of the cornice being permitted to remain up so long as to give the 
 owner of the house a right to keep it there, the value of the plaintiff's 
 premises would be thereby diminished to the extent of £100., inasmuch 
 as he would be prevented from building to the extremity of his land. 
 Upon cross-examination, none of the witnesses would undertake to 
 state that any rain had fallen upon the plaintiff's garden from the time 
 of the erection of the cornice down to the commencement of the ac- 
 tion, the 2d of July, 1844. 
 
 It was thereupon insisted, on the part of the defendants, that, as the 
 grievance of which the plaintiff complained in his declaration was the 
 causing the rain-water to flow from the cornice on to the plaintiff's 
 garden, the evidence did not sustain it, no such inconvenience as that 
 complained of having, in fact, been sustained by the plaintiff', down 
 to the time of the commencement of the action. 
 
 72 "But even should you think it proved that the defendants committed the 
 act complained of, and that they have also not succeeded in making out 
 their justiflcation, before you can find for the plaintiff, you must be also sat- 
 isfied that the plaintiff has sustained some substantial damage; it is not 
 every unpleasantness or inconvenience that will be a good ground for an ac- 
 tion like the present. There are many nuisances which the law will not 
 recognize; as, by building so as slightly to obstruct another's light, or to 
 shut out his view of a fine prospect, and the like. You must be satisfied 
 that the plaintiff has sustained some substantial damage." Lord Denman, 
 summing up in Evans v. Lisle (1836) 7 Car. & P. 503, 565.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 387 
 
 His Lordship refused to nonsuit the plaintiff, but reserved the point ; 
 and he left it to the jury to say whether or not the plaintiff had been 
 injured by the dripping of rain from the defendant's cornice, upon his 
 garden, or by reason of the projection itself; which latter he inclined 
 to think gave a cause of action, inasmuch as the plaintiff would be 
 thereby prevented from building to the extremity of his own land, if 
 so minded. The jury returned a verdict for the plaintiff, damages 40s. 
 
 A rule nisi having been obtained to enter a nonsuit, 
 
 Shee, Serjt., urged the doctrine of Holt, C. J., in Ashby v. White 
 (1703) 2 Ld. Raym. 938, that "every injury to a right imports a dam- 
 age, in the nature of it, though there be no pecuniary loss." 
 
 (Maule, J. I think there is no doubt that trespass would lie here : 
 but, can the plaintiff maintain case without showing some consequen- 
 tial damage?) 
 
 Talfourd, Serjt., in support of the rule: It is not disputed that case 
 will lie for a permanent injury to the plaintiff's right, upon a declara- 
 tion aptly framed. But the question here is, whether any such injury 
 (apart from the falling of rain) is suggested upon this record as will 
 entitle the plaintiff to maintain this action. Striking out the allegation 
 as to the dripping of rain upon the plaintift''s garden, that which 
 remains is a mere allegation of a trespass. You cannot disengage 
 the damage resulting from the trespass, from the trespass itself, so 
 as to make it the subject of another form of action. Suppose the de- 
 fendants had put up a pipe over their own land, in such a manner that 
 it would only in very wet weather incommode the plaintiff ; the plain- 
 tiff, clearly, could not have brought an action until some actual dam- 
 age had occurred.'^ ^ 
 
 CoLTMAN, J* * * Let us strike out of the declaration the al- 
 legation as to the dripping of rain ; and then there remains simply 
 an allegation that the defendants wrongfully and injuriously built, and 
 caused and procured to be built, a certain cornice and projection, near 
 to, and projecting over, the plaintiff's garden-ground, and that, by rea- 
 son of the premises, the plaintiff had been greatly annoyed and incom- 
 moded in the use, possession, and enjoyment of his messuage, garden- 
 ground, etc., and the same thereby became and was greatly deterio- 
 rated and lessened in value. Now, my brother Talfourd contends that 
 evidence as to damage resulting to the plaintiff from the projection of 
 the cornice, apart from rain, w^as not admissible, there being no alle- 
 gation in the declaration to warrant it; for, that the statement as to 
 the erection of the cornice must be considered as a mere allegation 
 of a trespass, for which the plaintiff could not recover any damages 
 in this form of action. It was not contended at the trial that that 
 amounted to a trespass ; nor was it so put by Sir T. Wilde, on moving 
 
 7 3 The statement of the case is abridged. A part of the opinion of Coltniau, 
 J., and the concurring opinions of Maule and Cresswell, JJ., are omitted.
 
 388 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 for the rule. Supposing it, however, to be conceded that that would 
 amount to an act of trespass — which is opposed to the opinion of 
 Lord Ellenborough, Pickering v. Rudd, 1 Stark. N. P. C. 56, by reason 
 of the presumption of law, cujus est solum, ejus est usque ad coehun, 
 there is nothing to show that the plaintiff had, or claimed, a right so 
 extensive as that: and it is mere matter of fact. There is nothing, 
 therefore, in this declaration that necessarily shows that the building 
 of the cornice amounted to a trespass ; and, consequently, I see no 
 ground for saying that the evidence that was received was improperly 
 admitted, or that the case was improperly left to the jury. Baten's 
 Case, 9 Co. Rep. 53b, has considerable bearing on the present. It was 
 there alleged that the defendant erected a house at the extremity of 
 his land so as to project or jut over the house of the plaintiffs, ad 
 nocumentum liberi tenement! ipsorum : and the court resolved that 
 the plaintiffs need not assign any special nuisance; for, it appeared 
 to the court that it was to their nuisance. So, here, the mere fact of the 
 defendants' cornice overhanging the plaintiff's land, may be considered 
 as a nuisance to him, importing a damage which the law can estimate. 
 And, if so, it is quite unnecessary, as I apprehend, to lay special dam- 
 age in the declaration. For these reasons, I am of opinion that there 
 is no ground for disturbing the verdict.'^* 
 Rule discharged. 
 
 STURGES v. BRIDGMAN. 
 
 (Chancery Division, 1S7S. Court of Appeal, 1879. 11 Ch. Div. 852.) 
 
 The plaintiff was a physician. In the year 1865 he purchased the 
 lease of a house in Wimpole Street, London, which he occupied as 
 his professional residence. Wimpole Street runs north and south, 
 and is crossed at right angles by Wigmore Street. The plaintiff's 
 house was on the west side of Wimpole Street, and was the second 
 house from the north side of Wigmore Street. Behind the house was 
 
 74 See the remarks of Kelly, C. B., in Harrop v. Hirst (1868) L. R. 4 Ex. 
 43, 46: "The plaintili's claim, with other persons, inhabitants of the same 
 district as themselves, a right to a continuous flow of water for domestic 
 purposes from a spout situated in the street of Tamewater, in the parish of 
 Saddleworth, in the West Riding of Yorkshire. The defendant is the oc- 
 cupier and owner of certain land through which the stream on which the 
 spout is dependent for its supply of water, flows ; and he has from time 
 to time abstracted water from the stream, to such an extent as to render the 
 amount which reaches the spout to be sometimes insullicient for the supply 
 of the whole district entitled to make use of it. It did not appear, however, 
 at the trial that the plaintiffs themselves had ever suffered any actual per- 
 sonal inconvenience from the want of water, and the question is, whctlier, 
 under these circumstances, an action is maintainable at their suit — in other 
 words, does such an action lie without proof of any actual personal and 
 particular damage? I think it is clear on the authorities, and especially ou 
 the case of Westhury v. Towel, cited in Fineux v. Hovendeu (151)9) Cro. 
 Eliz. 664, that such an action is maintainable."
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 389 
 
 a garden, and in 1873 the plaintiff erected a consulting-room at the 
 end of his garden. 
 
 The defendant was a confectioner in large business in Wigmore 
 Street. His house was on the north side of Wigmore Street and hi's 
 kitchen was at the back of his house, and stood on ground which was 
 formerly a garden and abutted on the portion of the plaintiff's garden 
 on which he built the consulting-room. So that there was nothing be- 
 tween the plaintiff's consulting-room and the defendant's kitchen but 
 the party-wall. The defendant had in his kitchen two large marble 
 mortars set in brickwork built up to and against the party-wall which 
 separated his kitchen from the plaintiff's consulting-room, and worked 
 by two large wooden pestles held in an upright position by horizontal 
 bearers fixed into the party-wall. These mortars were used for break- 
 ing up and pounding loaf-sugar and other hard substances, and for 
 pounding meat. 
 
 The plaintiff alleged that when the defendant's pestles and mortars 
 were being used the noise and vibration thereby caused were very 
 great, and were heard and felt in the plaintiff's consulting-room, and 
 such noise and vibration seriously annoyed and disturbed the plaintiff, 
 and materially interfered with him in the practice of his profession. 
 In particular the plaintiff stated that the noise prevented him from 
 examining his patients by auscultation for diseases of the chest. He 
 also found it impossible to engage with effect in any occupation which 
 required thought and attention. The use of the pestles and mortars 
 varied with the pressure of the defendant's business, but they were 
 generally used between the hours of 10 a. m. and 1 p. m. 
 
 The plaintiff made several complaints of the annoyance, and ulti- 
 mately brought this action, in which he claimed an injunction to re- 
 strain the defendant from using the pestles and mortars in such man- 
 ner as to cause him annoyance. 
 
 The defendant stated in his defence that he and his father had. 
 used one of the pestles and mortars in the same place and to the same 
 extent as now for more than sixt}^ years, and that he had used the 
 second pestle and mortar in the same place and to the same extent 
 as now for more than twenty-six years. He alleged that if the 
 plaintiff had built his consulting-room with a separate wall, and not 
 against the wall of the defendant's kitchen, he would not have ex- 
 perienced any noise or vibration; and he denied that the plaintiff 
 suffered any serious annoyance, and pleaded a prescriptive right to 
 use the pestles and mortars under the 2 & 3 Will. IV, c. 71. 
 
 Issue was joined, and both parties went into evidence. The result 
 of the evidence was that the existence of the nuisance was, in the opin- 
 ion of the court, sufficiently proved ; and it also appeared that no 
 material inconvenience had been felt by the plaintiff until he built his 
 consulting-room. 
 
 The action came on for trial before the Master of the Rolls.
 
 390 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 JESSEL, M. R.'^" I think this is a clear case for the plaintiff. There 
 is really no dispute as to this being a nuisance ; in fact, the evidence 
 is all one way, and, as has been often said in these cases, the plaintiff 
 is not bound to go on bringing actions for damages every day, when 
 he is entitled to an injunction. 
 
 The only serious point which has been argued for the defendant is 
 that by virtue of the statute, or by prescription, he was entitled as 
 against the plaintiff" to make this noise and commit a nuisance. Now 
 the facts seem to be that until a very recent period it was not a 
 nuisance at all. There was an open garden at the back of and attach- 
 ed to the plaintiff's house, and the noise, it seems, if it went anywhere, 
 went over the garden, and, of course, was rapidly dispersed; as far 
 as I can see upon the evidence before me, there was until a recent 
 period no nuisance to anybody — no actionable nuisance at all. The 
 actionable nuisance began when the plaintiff did what he had a right 
 to do, namely, built a consulting-room in his garden, and when, on 
 attempting to use the consulting room for a proper purpose, he found 
 this noise too great for anything like comfort. That was the time 
 to bring an action for nuisance. 
 
 Now, under those circumstances, it appears to me that neither the 
 defence of the statute, nor the defence of the right by prescription, 
 can possibly avail. * * * 
 
 It seems to me that, neither on the theory of lost grant nor on the 
 statute, can the defendant claim to do what he has done, and therefore 
 the plaintiff is entitled to an injunction; but as it would be somewhat 
 hard upon a confectioner to alter his mode of business at the height 
 of the London season, I will give him a reasonable time, say until 
 the 1st of August, to alter the position of his mortars/^ 
 
 7 5 Part of the opinion is omitted. 
 
 Compare Dana v. Valentine (1S42) 5 Mete. (Mass.) 8: P. sought an injunc- 
 tion to restrain D. from carrying on the business of slaughtei'ing cattle on 
 his land adjoining P.'s property. The defense was that D. had been carrying 
 on this business at this place for more than twenty years without molesta- 
 tion. But to this it was objected that P.'s property had been vacant during 
 this period, that he had suffered no annoyance until recently, and therefore 
 that he could not interpose to prevent its continuance. "But," said Wilde, J., 
 "it is very clear that where a party's right of property is invaded, he may 
 maintain an action for the invasion of his right, without proof of actual 
 damage." 
 
 76 From this decision the defendant appealed. After argument the Court 
 of Appeal (James, Baggallay, and Thesiger, L. J J.) dismissed the appeal: "The 
 Master of the Rolls in the Court below took substantially the same view of 
 the matter as ourselves, and granted the relief which the plaintiff prayed for 
 and we are of opinion that his order is right and should be affirmed." The 
 opinion in the Court of Appeal, by Thesiger, L. J., is omitted.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 391 
 
 ROBERTS V. GWYRFAI DISTRICT COUNCIL. 
 (Chancery Division. [1899] 1 Ch. 583.) 
 
 The plaintiff was the owner and occupier of an ancient water-mill, 
 with lands belonging thereto, and he claimed, as riparian owner and 
 occupier of the same, to be entitled to the natural flow of a stream 
 that ran past his mill from a lake at the foot of a mountain some dis- 
 tance above the mill, the stream being utilized for driving the mill. 
 The plaintiff also claimed that, whenever necessary for the purposes 
 of his mill, he was entitled, in times of drought and scarcity of water 
 in the stream, to dam up the water of the lake as a reservoir so as 
 to ensure a sufficient supply of water to the mill. In 1893, the defend- 
 ants, who had obtained a lease of the lake from the Crown and also 
 a lease of adjoining land for the purpose of increasing the size of 
 the lake, informed the plaintiff of their intention to take water from 
 the lake for the purpose of supplying certain villages in their district 
 with water, and applied to him for his written consent thereto under 
 section 332 of the Public Health Act, 1875 (38 & 39 Vict. c. 55), but 
 he refused to give such consent. Thereupon the defendants, with- 
 out any further notice, laid down pipes, and under, it was said, a 
 license granted by the Crown in 1896, constructed a dam across the 
 end of the lake, of which the stream in question formed the natural 
 outlet, so as to increase the water storage, a sluice being placed in 
 the dam to regulate the outflow from the lake. The area of the lake 
 was considerably increased by the defendants' works. 
 
 The plaintiff, in 1898, issued the writ in this action for an injunc- 
 tion to restrain the defendants from taking any of the water from 
 the lake, and from doing any act whereby the flow of water in the 
 stream through and by the plaintiff's mill and lands would be diminish- 
 ed. The defendants, as lessees and occupiers of land adjoining the 
 lake, claimed riparian and other rights in the lake, including the right 
 to take water therefrom for supplying their district, so far as they 
 could do so without causing damage to other riparian owners. They 
 denied that they had done or were intending to do anything whereby 
 the flow of water in the stream past the plaintiff's mill had been or 
 would be diminished or so as to cause any damage to the plaintiff. 
 
 The action now came on for trial with witnesses. It was admitted 
 at the trial that the plaintiff had not yet suffered any actual damage, 
 and that the defendants' dam had been properly constructed for the 
 purpose they had in view ; also, that an arrangement had been made 
 by means of the sluice for providing a regulated flow of water down 
 the stream. This, the defendants' witnesses said, would give the plain- 
 tiff a constant supply instead of an intermittent one, which the plain- 
 tiff admitted sometimes occurred in dry seasons. The plaintiff, how- 
 ever, insisted that he was entitled, as of right, to the flow of water 
 past his mill unimpeded and uncontrolled in any way by the defend- 
 ants.
 
 392 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 KekEwich, J, * * * The defendants, in the exercise of what 
 they conceive to be their duty and within their powers, utihsed the 
 waters of this lake by constructing certain works which are admit- 
 ted at present to be properly constructed with a view of supplying the 
 district with water. It is not suggested that the plaintiff will be any 
 worse off now than he was before ; probably he will be better off in 
 the future than he has been in the past. The supply may not be the 
 same, but it will be sufficient, and will be apparently more constant 
 than it has been before, since the evidence shews it to have been of an 
 intermittent character and sometimes very much less than was re- 
 quired for the purposes of the mill. But the plaintiff says: "I am 
 entitled to insist upon having what I had before. It is immaterial 
 whether the supply of water I had before is better or worse than 
 what is now proposed to be given to me. It is for me to consider 
 whether I shall derive any benefit from the alteration. I protest against 
 any alteration at all." 
 
 Several cases have been referred to, but I intend to refer only to 
 one of them in which occurs a passage to which Mr. Renshaw called 
 my attention. The law on this subject has been threshed out again 
 and again, and I do not think any advantage would be gained by my 
 going through the authorities. A riparian proprietor or owner is en- 
 titled to say that the water which flows by his property and which 
 is used by him for ordinary, or it may be for extraordinary, purposes 
 shall flow in the future as it has done in the past — debet currere ut 
 currere solebat. That seems to me to be the common law right; and 
 unless that common law right has been affected by statute he is en- 
 titled to insist upon it. But there is one passage in Lord Cairns's 
 speech in the House of Lords in the case of Swindon Waterworks Co. 
 V. Wilts and Berks Canal Navigation Co., L. R. 7 H. L. 697, which, 
 Mr. Renshaw says, instead of being in the plaintiff's favour is against 
 him. I do not so read it. What Lord Cairns says is this (L. R. 7 
 H. L. 705) : "Therefore, my Lords, so far as regards the position of 
 the respondents as riparian owners, it appears to me that they clearly 
 have a right to complain of that which is done by the appellants, if 
 what is so done by them is insisted upon as a thing which they have 
 a right to do." That is the qualification. "I put this qualification 
 because, if, when the attention of the appellants had been called to 
 what they were doing, they had not insisted upon doing it as a matter 
 of right, I can well understand that if the Court of Chancery found 
 * * * that no sensible damage had occurred to them, it might 
 not have thought it necessary to interfere with them by an injunc- 
 tion or declaration." 
 
 What I understand Lord Cairns to mean is that, there being no 
 sensible damage, an injunction or declaration would not have been 
 granted unless the appellants had insisted upon what they were doing 
 as a thing they were entitled to do as a matter of right. From which 
 I should conclude also that, as they did insist upon it as a matter of
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 393 
 
 right, whether damage was incurred or not, the respondents were 
 entitled to an injunction or declaration. That, as I understand, is 
 the meaning of his Lordship's observations, and what he means by the 
 qualification, and what he deduces from it. Therefore it seems to me 
 that, unless the defendants have some higher authority by statute (pre- 
 scription being out of the question) to interfere with the flow of water, 
 they have no right to alter the flow even although the alteration may 
 cause no sensible damage to the plaintiff. He is entitled to have his 
 water flowing as it did before, and so far I am entirely in his fa- 
 vour. * * * 
 
 The defendants are seeking to interfere with the plaintiff's common 
 law right, and there is no statutory power enabling them to do that. 
 The common law right seems to me to be unaffected by the statute. 
 
 The result is that, in my opinion, the plaintiff is entitled to an in- 
 junction. The injunction will be a perpetual injunction to restrain 
 the defendants, their servants, agents, and workmen, from taking any 
 water from the lake for the purpose of supplying their district with 
 water, and from doing any other act for that purpose whereby the 
 flow of water in the stream and through and by the plaintiff's mill 
 and lands shall be diminished.''^ 
 
 DOWNING V. ELLIOTT. 
 
 (Supreme Judicial Court of Massachusetts, 1902. 182 Mass. 28, 64 N. E. 201.) 
 
 This case was reserved from the Supreme Judicial Court, Suffolk 
 County, for the full court, on the pleadings, master's report, and com- 
 plainant's exceptions. y 
 
 Morton, J. The plaintiff is engaged in the ice business, and is the 
 owner of a pond in Brighton, from which he cuts ice for family and 
 wholesale trade. The defendant is the owner of a greenhouse near the 
 pond, and heated by steam. Prior to the bringing of the bill he had 
 used soft coal ; and the bill alleges that smoke, dust, soot, and cinders 
 were thereby deposited in the plaintiff's pond, and the ice rendered 
 unfit for use. The prayer of the bill is that the defendant may be 
 restrained from using soft coal or other fuel that will interfere with 
 or injure the property or business of the plaintiff, and for the assess- 
 ment of damages. * * * 
 
 The defendant's business is a lawful business, and he has a right to 
 use his premises in any manner that will not interfere with the legal 
 rights of others or violate the law. It cannot be said, we think, that 
 the use of soft coal for the purpose of generating steam of itself 
 constitutes a nuisance, and there is nothing to show that the business 
 is not a proper one to be carried on in that locality, or that it is not 
 carried on in a proper manner. Indeed, there would seem to be few 
 
 7 7 Only so much of the case is given as relates to the one point.
 
 394 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 businesses less objectionable than that of growing plants and flowers 
 for sale. But, though the locality is a suitable one, and the business 
 is lawful, and carried on in a proper manner, the defendant has no 
 right to materially contaminate the air that comes to the plaintiff's 
 premises, and injure his business and property, by the presence and 
 deposit of smoke, soot, dust, and cinders. Every one has a right to 
 have the air that comes to his premises come as pure and uncontam- 
 inated as can reasonably be expected. In thickly-settled communities 
 absolute purity is out of the question; and the more thickly-settled 
 the community is, and the more varied are the kinds of business, the 
 more will the atmosphere be unavoidably impregnated with impurities. 
 This is one of the inconveniences, if it is an inconvenience, which 
 every one who lives in a populous neighborhood must sufifer. But 
 the fact that the atmosphere is already impure does not justify or 
 excuse a party in adding to the impurity, so as thereby to cause still 
 further discomfort to others, or still further injury to their business 
 or property; and conduct which leads to such a result will constitute 
 an invasion of the rights of the parties injuriously affected thereby. 
 But in these as in other cases an independent wrongdoer is responsible 
 only for the consequences of his own wrongdoing, and not for the 
 acts or conduct of others. The burden of proof is upon the party 
 complaining, and each case must stand on its own facts. No general 
 rules can be laid down that will furnish an infallible guide in all 
 cases. The most that can be done is to indicate the lines along which 
 the decision must proceed. To entitle the plaintiff to relief, the 
 injury of which he complains must be certain and substantial, and 
 not slight or theoretical. The right, as already observed, is not a 
 right to absolute purity, any invasion Of which would give a right of 
 action, but it is a right to such a degree of purity as, taking all the 
 circumstances into account, the plaintiff is reasonably entitled to. See 
 Ferrule Co. v. Hills, 159 Mass. 147, 34 N. E. 85, 20 L. R. A. 844; 
 Rogers v. Elliott, 146 Mass. 349, 15 N. E. 768, 4 Am. St. Rep. 316; 
 Smelting Co. v. Tipping, 11 H. L. Cas. 642; Crump v. Lambert, L. 
 R. 3 Eq. 409; Walter v. Selfe, 4 De Gex & S. 315; Fleming v. His- 
 lop (1886) 11 App. Cas. 686; Wood, Nuis. (1st Ed.) 429 et seq. 
 
 In the present case the master finds that the ice was unfit and un- 
 suitable for the plamtiff's family trade by reason of black spots 
 resembling soot and cinders embedded in it, and that the black specks 
 referred to had been deposited on the surface, and had sunk into 
 the ice in the process of alternate freezing and thawing ; and he says, 
 what is obvious, that the main question in the case is to determine 
 from what source these specks came. Upon that question he finds as 
 follows : "I cannot find that no ])articles of soot or carbon from the 
 defendant's chimney are deposited on the plaintiff's pond or upon his 
 ice, but I find and report that soot and cinders from the defendant's 
 chimney, caused by the burning of soft coal by him, are only one 
 cause contributing to the specks resembling soot and cinders in the
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 395 
 
 plaintiff's ice, rendering it unfit and unsuitable to be used and dis- 
 posed of in his family trade. I further find and report, if it is 
 material, that the portion of soot and cinders coming from the de- 
 fendant's chimney is of small importance in comparison with other 
 causes contributing to injure the plaintiff's ice and render it unfit 
 and unsuitable as aforesaid." These findings are warranted by other 
 facts found by the master, — such, for instance, as the general con- 
 siderations affecting the locality, the precautions taken by the defend- 
 ant to prevent the escape of soot and cinders, the distance from the 
 fire to the chimney and the distance from them to the pond, the fact 
 that the prevailing wind was not in a direction from the greenhouse 
 towards the pond, and the experiments and other circumstances tend- 
 ing to show that the atmosphere abounded in impurities from other 
 causes. There is no finding that any unusual or extraordinary vol- 
 umes of smoke issued at any time from the defendant's chimney ; 
 and the fair import of the master's findings is, it seems to us, that 
 while he cannot say that no soot and cinders from the defendant's 
 chimney were deposited on the plaintiff's ice, if any were deposited 
 they contributed only slightly, if at all, to the injury to the ice, and 
 the damage done by them was insignificant as compared with that 
 resulting from other causes. He further finds that, while the use of 
 soft coal is not a necessity in carrying out the defendant's business, 
 it is more economical, and saves him between $400 and $500 a year. 
 If, therefore, an injunction should issue as prayed for, it not only 
 will not afford the plaintiff the relief which he seeks, but will inflict 
 great and unnecessary injury on the defendant. As the case stands, 
 we do not think that the plaintiff is entitled to an injunction. Neither 
 do we think that he is entitled to damages. If the alleged injuries 
 are too slight and uncertain to be ground for an injunction, we do not 
 see how they can be made the basis for an assessment of damages. '^^ 
 The result is that we think that the bill should be dismissed. So 
 ordered. 
 
 7 8 Part of the opinion is omitted. 
 
 "In all these cases of nuisance, one has to consider what must be proved 
 by the plaintiff in order to support his action. It seems to me that the 
 House of Lords went upon the principle that, whether the plaintiff was rel.y- 
 ing upon his common law rights, or upon his prescriptive rights, or his riglits 
 of property of any sort or kind, tlie conditions precedent to constitute a cause 
 of action were really identical. Tlie courts have always been unwilling in 
 these cases of nuisance to hold that every nuisance, apart from the rule 
 de minimis non curat lex, should be a cause of action. On the contrary, in 
 all these cases of nuisance which involve a limitation of a man's right to 
 use his own land, the courts will not enforce the alleged rights of the plain- 
 tiff, unless that which has occurred is a substantial interference with his 
 comfortable or profitable occupation of his dwelling-house, or warehouse, 
 or house of business, as the case may be." Vaughan Williams, L. J., in 
 Kine V. Jolly, [1905] 1 Ch. 480, 488.
 
 ■J 
 
 J 
 
 396 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 (C) The Remedies in Nuisance 
 
 There was an old Assise of Nuisance; but this, as a real action, 
 could only be used by and against freeholders, while the action of Case 
 framed upon the analogy of it was open to all persons having an in- 
 terest in possession, against all persons causing a physical injury to 
 their land. A curious and not altogether commendable survival of the 
 right of self-help marks the transition. Under the old Assise of Nui- 
 sance, and the still older Writ of Quod Permittat, the successful plain- 
 tiff was entitled to have the nuisance "abated," or taken away by the 
 sheriff and the power of the county. The judgment in the action of 
 Case in the Nature of Nuisance was merely for damages; but the 
 complainant was, apparently, permitted to abate the nuisance himself, 
 and the right survives to the present day, though the exercise of it 
 has been largely superseded by the issue of mandatory injunctions. 
 
 Jenks, Short" History of Eng. Law, 144 (1912). 
 
 GATES v. BLINCOE. 
 
 (Court of Appeals of Kentucky, 1834. 2 Dana, 158, 26 Am. Dec. 440.) 
 
 Robertson, C. J. The plaintiff sued the defendants, in case, for 
 diverting the water from his mill, by cutting a ditch. They attempted 
 to justify on the ground that the mill dam was a nuisance, which they 
 had a legal right to abate. 
 
 On the trial, the court instructed the jury that 
 
 "if the water occasioned (by the dam) was a nuisance, or had been a nuisance, 
 and was like to become so again, the defendants had a right to cut a ditch, 
 and draw off the water," 
 
 and thereupon the jury found a verdict for the defendants, on which 
 the court rendered a judgment in bar of the action. * * * 
 
 In the opinion of this court, the instruction is erroneous in three 
 particulars : 
 
 First. It is not strictly true, that "if the dam had been a nuisance, 
 and was like to become so again," the defendants had a right to abate 
 it. Unless it was a nuisance at the time when the ditch was cut, no 
 person had a right to stop or obstruct the mill without the owner's 
 consent. It is not now material whether the evidence tended to prove 
 that the dam was a nuisance when the ditch was cut ; for the instruc- 
 tion clearly implies that, though it may not have been then a nuisance, 
 the defendants had a right to abate it, if it had been, and would prob- 
 ably again become a nuisance ; and it is evident that, even though it 
 may have been once a nuisance, and might again become so, it may 
 not have been a nuisance when the ditch was cut by the defendants. 
 A probability that a thing may become a nuisance, or, in other words,
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 397 
 
 an actual and substantial annoyance, public or private, does not make 
 a nuisance wbich can be lawfully abated; and therefore, Lord Hard- 
 wicke, in an anonymous case in 3 Atk. said that "the fears of man- 
 kind, though they may be reasonable, will not create a nuisance." 
 
 In a proper case, when the danger is imminent, a nuisance may be 
 prevented by injunction; and for that which had been a common nui- 
 sance, an indictment would be an effectual and appropriate remedy. 
 
 A nuisance must be actually subsisting, to the injury of the public, 
 or of some individual, before any person should be suffered to resort 
 to a remedy so critical, perilous and extraordinary, as that of his own 
 will and power, which necessity alone indulges, in cases of extremity 
 or of great emergency, in which no ordinary remedy will be altogether 
 effectual. The public peace should not be jeoparded, by permitting 
 individuals to redress their own wrongs, when they might obtain ade- 
 quate security and indemnity by a resort to any of the ordinary rem- 
 edies in courts of justice. 
 
 Prima facie, a mill dam which was once a nuisance will continue 
 to be so as long as it exists ; but it may not ; and, therefore, as the 
 dam may not in this case have been a nuisance when the ditch was cut, 
 the instruction was erroneous. 
 
 Second. Even though the dam may have been a nuisance when the 
 ditch was cut, the defendants had not, as the court instructed the jury 
 that they had, a right, as a matter of course, to abate the nuisance; 
 because it may have been, in the opinion of the jury, a private nui- 
 sance only, and, if so, no person who was not injured by it had a right 
 to abate it ; and therefore, as the jury, and not the court, had the right 
 to decide whether the nuisance was public or private and whether, if 
 private, it annoyed the defendants, or any of them, the court erred 
 in instructing the jury, that if they believed that the dam was a nui- 
 sance, the defendants had a right to abate it. 
 
 Third. If the defendants had a right to cut a ditch for abating a nui- 
 sance, their right was limited to that which was a nuisance ; they had 
 no right to draw off more water than so much as would abate the nui- 
 sance. If they transcended that limit, they did an injury to the plain- 
 tiff for which he might have an action. Rex v. Rippineau, 1 Strange, 
 686, and Russell on Crimes, 306. The ditch may have been deeper 
 than the end to be legitimately effected by it, required. There was no 
 proof as to that point, and the instruction is, in that particular, un- 
 qualified, and, therefore, is erroneous ; because it imports that the de- 
 fendants were justifiable, even if, in abating a nuisance, they wantonly 
 or recklessly destroyed, without necessity, the total value of the plain- 
 tiff's mill. 
 
 Wherefore, it is considered by this court that the judgment be re- 
 versed, and the cause remanded for a new trial.''® 
 
 7 9 Part of the opinion Is omitted. 
 
 See Baton's Case (1611) 9 Co. Rep. 53 b, 54 b: ("Nota reader, there are 
 two ways to address a uusance, one by action, and in that he shall recover
 
 398 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 STATE V. MOFFETT et al. 
 
 (Supreme Court of Iowa, 1848. 1 G. Greene, 247.) 
 
 The defendants were indicted for damaging a mill-dam. It appears 
 from the bill of exceptions 
 
 that jMoffett built and possessed a mill and dam on Skunk River in 1834 or 
 1835; that at the time of the alleged injury he was in possession; that in 
 1840 Peter Brener, built a mill and dam on the same river, about a mile 
 and half below Moffett's mill, the effect of which was to throw back-water 
 to an injurious extent on the wheels of Moffett's Mills, but not so as to stop 
 them entirely ; that both mills are public mills ; and on the 23d of March, 
 1848, ^loffett and the other defendants tore down Brener's dam to a con- 
 siderable degree — a space from fifty to eighty feet wide, and from one to 
 three feet deep — with intent to remove the alleged nuisance ; and justified 
 In their defense on the ground that Brener's dam was a nuisance injurious to 
 Moffett, and that he had a right to abate it by his own act. 
 
 The prosecution asked the court to instruct the jury, that, by the 
 15th section of the criminal law of Iowa, entitled an "Act Defining 
 Crimes and Punishments," the right of Moffett to abate a mill-dam 
 as a nuisance, by his own act, was taken away ; which instruction was 
 refused. The court also refused to instruct the jury, that the act of 
 the legislative assembly authorizing Peter Brener to build a dam did 
 not take away Moffett's right to abate the dam as a nuisance. The 
 court then instructed the jury, that if Brener's dam caused water to 
 flow back upon the wheel of Moffett's mill to his serious injury, it was 
 a private nuisance, and Moffett might pull it down so as to remove the 
 back-water. These instructions, refused and given, are assigned for 
 error. 
 
 KiNNKY, J. The only question in this case is, whether the statute 
 making it a penal offense to "injure a mill-dam," took away Moffett's 
 right to abate it for a nuisance. That a person at common law has 
 a right to abate a nuisance cannot be denied. It is one of those rights 
 which secure to him the uninterrupted enjoyment of his person and 
 property. When properly exercised, it may be as essential to his hap- 
 piness as the right of self defense. But like other summary rights of 
 
 damages, and have judgment that the nusance shall be removed, cast down, 
 or abated, as the case requires ; or the party grieved may enter and abate 
 the nusance himself, as appears by 17 E. 3, 44, 9 E. 4, 35, and in Penrud- 
 dock's Case, but then he shall not have an action, nor recover damages, for 
 in an assize of nusance, or quod permittat prostornore, etc., it is a good 
 plea, that the plaintiff himself either before the writ brought, or pending the 
 writ, has abated the nusance: for in an assise or quod permittat, he shall 
 have judgment of two things, sc. to have the nusance abated, and to re- 
 cover damages, and he has disabled himself by his own act to have judgment 
 for one of them, s. to have a nusance abated, and therefore the action doth 
 not lie.") James v. Ilayward (1631) Cro. Car. 184, 78 Reprint. 701. Raikes 
 V. Townsend (1804) 2 Smith, 9, 7 R. R. 77G, when Serjeant Williams urged 
 unsuccessfully that the right of abatement l)y self help was confined to the 
 cases mentioned in 2 Rolle's Abridgement, 144, pis. 2 and 3, nuisances to a 
 house, to a mill, or to land. 
 
 See also 29 Cvc. 1214 et seq. ; 37 Cent. Dig. "Nuisance," §§ 51-54 ; Key-No. 
 "Nuisance," §§ 20, 74.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 399 
 
 this nature, it is confined within certain Uniits. No more injury to 
 the property of another must be inliicted than is absolutely necessary 
 to accomplish the object. A salutary check is thrown around an im- 
 proper exercise of this right, as the individual is always under the 
 peril of being deemed a trespasser, unless the existence of the nuisance 
 is established. Thus, while a person can be the judge, in the first in- 
 stance, as to the existence of the nuisance, if it should turn out other- 
 wise he is responsible, and can be made to answer to the party in- 
 jured, and may subject himself to criminal prosecution. But at com- 
 mon law, his right to abate a nuisance, when it really is such, is un- 
 controverted. And we think our statute has not impaired this right 
 by making it penal to injure a mill-dam, if the mill-dam becomes a 
 nuisance. The injury to the dam, to come within the purview of the 
 statute, must be "willful or malicious." The summary abatement of 
 a dam as a nuisance, is not necessarily attended with malicious or will- 
 ful motives. It may be an act necessary for the protection and en- 
 joyment of property. * * * so 
 Judgment afiirmed. 
 
 SMITH V. CxIDDY. 
 (High Court of Justice, King's Bench Division. [1904] 2 K. B. 448.) 
 
 The plaintiff and the defendant were the occupiers of adjoining 
 premises. The plaintiff alleged that he had sustained damage to the 
 extent of i60. by reason of certain elm and ash trees growing on the 
 defendant's premises overhanging the plaintiff's premises and interfer- 
 ing with the growth of his fruit trees. The plaintiff claimed damages 
 iuid an injunction. 
 
 The county court judge held that the plaintiff's only remedy was to 
 abate the nuisance by cutting back the overhanging trees himself, and 
 he directed a nonsuit. The plaintiff appealed.®^ 
 
 Wills, J. I am of opinion that the judgment of the county court 
 judge in this case was erroneous, and that there must be a new trial. 
 It is no doubt quite true that there is no case to be found in the books 
 in which the action has been held to lie against an adjoining owner 
 for allowing his trees to project over the boundary where the only 
 damage resulting from the projection has been a damage to the plain- 
 tift"s crops. It was pointed out by Kelly, C. B., in Crowhurst v. Amer- 
 sham Burial Board [1878] 4 Ex. D. 5, that there was no precedent 
 for such an action, and it was thei'e suggested that there was much to 
 be said on the grounds of general convenience in favour of such an 
 action not being maintainable. But I am of opinion that the principle 
 upon which that case was decided is enough to enable us to decide 
 
 80 Part of the opinion, disrussing the scope of the statute, is omitted. 
 
 81 See Lemmon v. Webb, [lSi)4] 3 Ch. 1.
 
 400 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 the present case in favour of the plaintiff. There the action was 
 brought against the owners of a yew tree which they or their prede- 
 cessors in title had planted on their land and which they allowed to 
 overhang their boundary, whereby the plaintiff's horse in the adjoin- 
 ing meadow feeding on the projecting branches was poisoned; and it 
 was held that the action lay. The court treated the case as an illus- 
 tration of the rule in Rylands v. Fletcher [1868] L. R. 3 H. L. 330, 
 that a person who brings on his land something that is likely to do 
 damage if it escapes is responsible if that damage occurs. ^^ It seems 
 to me that there is no distinction in principle between the damage oc- 
 casioned in that case and the damage in the present. The injury to 
 the plaintiff's fruit trees was the natural consequence of the defend- 
 ant's trees being allowed to overhang. 
 
 I have come to this conclusion with considerable reluctance, for I 
 have a strong feeling that it is highly desirable not to establish new 
 causes of action if it can possibly be avoided, but I do not see how 
 we can refuse to hold that this action lies without departing from the 
 principle of Crowhurst's Case. Moreover, we are fortified in this view 
 by the dictum of Kay, L. J., in the case of Lemmon v. Webb [1894] 
 3 Ch. 1, where, although it was not necessary to the decision, he dis- 
 tinctly states it as his opinion that for any damage occasioned by over- 
 hanging boughs an action on the case would lie. It has been con- 
 tended that the remedy which the plaintiff has of cutting the trees back 
 himself is all sufficient, and that under those circumstances it is un- 
 necessary to invent a new cause of action. But that, in my opinion, 
 is no answer to the action, 
 
 Kennedy, J. I am of the same opinion. The county court judge 
 has nonsuited the plaintiff; therefore we must assume, for the pur- 
 poses of the present argument, that the damage alleged in the par- 
 ticulars has actually been suffered. If that be so, the damage was sub- 
 stantial. And under those circumstances I fail to see any reason in 
 principle why the action should not lie as for a nuisance. I cannot 
 differentiate the present case in principle from Crowhurst v. Amer- 
 sham Burial Board. If trees although projecting over the boundary 
 are not in fact doing any damage, it may be that the plaintiff's only 
 right is to cut back the overhanging portions ; but where they are ac- 
 tually doing damage, I think there must be a right of action. In such 
 a case I do not think that the owner of the offending trees can compel 
 the plaintiff to seek his remedy in cutting them. He has no right to 
 put the plaintiff to the trouble and expense which that remedy might 
 involve. The case must go back for a new trial. 
 
 Judgment for the appellant.^* 
 
 82 See infra. 
 
 83 As to the effect if it had appeared in this case that the trees were a 
 natural growth, see Giles v. Walker (1890) 24 Q. B. D. 656.
 
 Ch. 2) ABSOLUTE TOUTS OTHER THAN TRESPASSES 401 
 
 COULSON V. WHITE. 
 
 (High Court of Chancery, 1743, 3 Atk. 21, 26 Eeprint, 816.) 
 
 The Lord Chancellor. Every common trespass is not a founda- 
 tion for an injunction in this court, where it is only contingent and 
 temporary ; but if it continues so long as to become a nuisance, in such y^ 
 a case the court will interfere and grant an injunction to restrain the 
 person from committing it.®* 
 
 CRUMP V. LAMBERT. 
 
 (In Chancery, 1S67. L. R. a Eq. 409.) 
 
 Lord Romilly, M. R. The plaintiff in this cause is the occupier 
 and owner of a house in Walsall, in Staffordshire, and complains that 
 the defendants have recently erected an iron factory adjoining his 
 grounds, the smoke, noise, and effluvia proceeding from which occa- 
 sion a nuisance which he applies to this court to abate. The defence 
 is, in substance, twofold ; first, one of law, and secondly, one of fact. 
 The defendants say that smoke alone does not entitle a person to come 
 here for an injunction; that a disagreeable smell alone does not en- 
 title a plaintiff' to ask for an injunction ; that noise alone does not en- 
 title a plaintiff to ask for an injunction. * * * 
 
 With respect to the question of law, I consider it to be established 
 by numerous decisions that smoke, unaccompanied with noise or nox- 
 ious vapour, that noise alone, that off'ensive vapours alone, although 
 not injurious to health, may severally constitute a nuisance to the own- 
 er of adjoining or neighbouring property; that if they do so, substan- 
 tial damages may be recovered at law, and that this court, if applied 
 to, will restrain the continuance of the nuisance by injunction in all 
 
 84 As late as 1S34, Lord Chancellor Brougham remarked, in Earl of Ripon 
 V. Hobart, 3 My. & K. 1G9, ISO: "It is always to be borne in mind that 
 the jui-isdiction of this court over nuisance by injunction at all is of recent 
 growth, has not till very lately been much exercised, and has at various times 
 found great reluctance on the part of the learned judges to use it, even in 
 cases where the thing or the act complained of was admitted to be directly 
 and immediately hurtful to the complainant. All that has been said in the 
 cases where this unwillingness has appeared, may be referred to in support 
 of the proposition which I have stated ; as in The Attorney-General v. 
 Nichol [3809] 16 Ves. 338, The Attorney-General v. Cleaver [1811] 18 Ves. 
 211, an Anonymous case [1790] 1 Ves. Jun. 140, before Lord Thurlow, and 
 others. It is also very material to observe, what is indeed strong authority 
 of a negative kind, that no instance can be produced of the interposition 
 by injunction in the case of what we have been regarding as eventual or 
 contingent nuisance." 
 
 On the present extent and variety of this equitable jurisdiction, see 29 Cyc. 
 1219 et seq., and 21 Halsbury's Laws of Lngland, 560. 
 
 The principles followed in granting or refusing an injunction for a nui- 
 sance are in the main those which apply generally to this branch of equity. 
 
 Hepb.Toets— 26
 
 402 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 cases where substantial damages could be recovered at law. Elliot- 
 son V. Feetham [1835] 2 Bing. N. C. 134, and Soltau v. De Held 
 [1851] 2 Sim. N. S. 133, are instances relating to noise alone. In the 
 former, damages were recovered in an action at law ; and in the sec- 
 ond, an injunction was granted on account of sound alone. 
 
 What constitutes a nuisance is thus defined by Lord Justice Knight 
 Bruce, when Vice-Chancellor, in Walter v. Selfe, 4 De G. & Sm. 322 : 
 "Both on principle and authority the important point next for decision 
 may properly, I conceive, be thus put : Ought this inconvenience to be 
 considered in fact as more than fanciful, more than one of mere deli- 
 cacy or fastidiousness, as an inconvenience materially interfering with 
 the ordinary comfort, physically, of human existence, not merely ac- 
 cording to elegant or dainty modes and habits of living, but according 
 to plain and sober and simple notions among the English people?" 
 This definition is adopted in Soltau v. De Held by Vice-Chancellor 
 Kindersley, and is, I apprehend, strictly correct ; and it agrees with 
 the principle of all the cases referred to at common law and approved 
 of in the case of St. Helen's Smelting Company v. Tipping, 11 H. L. 
 C. 642, which settled the law as regards another part of this case, to 
 which I shall presently have occasion, when citing Hole v. Barlow, 4 
 C. B. N. S. 334 (E. C. L. R. vol. 93), to refer. The law on this sub- 
 ject is, I apprehend, the same, whether it be enforced by action at 
 law or by bill in equity. In any case where a plaintiff could obtain 
 substantial damages at law, he is entitled to an injunction to restrain 
 the nuisance in this court. ^^ 
 
 RIDER V. CLARKSON. 
 
 (Court of Chancery of New Jersey, 1910. 77 N. J. Eq. 469, 78 Atl. 676, 
 
 140 Am. St. Rep. 614.) 
 
 Suit for injunction by Susie B. Rider and others against Mary E. 
 Clarkson and others. 
 
 LUAMiNG, V. C. * * * It is lawful for a person to keep a vi- 
 cious dog. De Gray v. Murray, 69 N. J. Law, 458, 55 Atl. 237. But 
 it is not lawful for a person to keep a vicious dog in such manner 
 that neighbors are unnecessarily exposed to danger. It is no less a 
 nuisance for a neighbor to keep a vicious dog without appropriate 
 restraint and in such manner that the dog can and will escape and 
 inflict bodily harm than it is for such neighbor to conduct a lawful 
 business in such negligent manner as to endanger the health of resi- 
 dents in the vicinity. The undisputed facts are that the dog in ques- 
 tion is vicious, and is only restrained by a fence over which he can 
 jump at will; and that the owner of the dog refuses to adopt suitable 
 
 85 Only i5o much of the case is given as relates to the one point. 
 On the liuntations attaching to equity jurisdiction in such causes, see 29 
 Cyc. 1:^22 et seq.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 403 
 
 measures to prevent the escape of the dog ; aiid that complainants are 
 in danger of being attacked by the dog at such times as they leave 
 their homes. The dog Eas been ordered by the municipality to be 
 killed, pursuant to the provisions of a local ordinance, but the execu- 
 tion of that order had been prevented by a writ of certiorari; in the 
 meantime the unlawful conduct of defendants renders it unsafe for 
 complainants to pass to and from their homes. I think it the un- 
 doubted duty of a court of equity to extend immediate relief against 
 the continuance of such conditions. 
 
 I see no reason why complainants may not appropriately join in the 
 bill. They suffer special injury by reason of the proximity of their 
 properties to the property occupied by defendants, and the wrongful 
 conduct of defendants affects them in a similar way and at the same 
 time. See Rowbotham v. Jones, 47 N. J. Eq. 337, 20 Atl. 731, 19 
 L. R. A. 663. 
 
 I will advise a preliminary injunction restraining defendants from 
 longer keeping the dog on the premises in question without the adop- 
 tion of suitable measures to prevent the escape of the dog from the 
 premises.®^ 
 
 COOMBS et al. v. LENOX REALTY CO. 
 
 (Supreme Judicial Court of Maine, 1913. Ill Me. 178, 88 Atl. 477, 
 
 47 L. R. A. [X. S.] 1085.) 
 
 Spear, J. This is a bill in equity in which the plaintiffs allege that 
 the brick wall of the defendant's building, 18 feet from the ground, 
 and between the second and third floor continuing to the roof, shows 
 a maximum overhang upon the plaintiff's' premises of about 11/2 inches, 
 and prays that the encroachment upon the plaintiff's land occasioned 
 thereby may be adjudged a nuisance and that the defendant may be 
 ordered and required to remove it forthwith. 
 
 The case comes up on appeal from the decree of the sitting justice. 
 In this decree the law and the facts are so fully stated that the court 
 feels fully justified in adopting it as a proper declaration of the law. 
 If we were to write an opinion, it would necessarily be but a restate- 
 ment of the law found in the decree, as we fully indorse both the 
 reasoning and the result therein announced. The decree is as fol- 
 lows : 
 
 "The case came on to be heard on bill, answer, and proof, and 
 was argued by counsel. And now, after mature deliberation, I make 
 the following findings of fact and rulings in law : 
 
 "The defendant in the winter of 1911-12 erected a four-story brick 
 apartment building on Turner street, Auburn, on land adjoining the 
 plaintiff's land. At the bottom, the wall next to the plaintiff's land 
 
 86 Part of the opinion is omitted.
 
 404 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 was built about one inch in from the division hne, and was so con- 
 tinued up to the second story. At a point between the second and 
 third stories, owing it is said to the freezing of the mortar nights in 
 extreme cold weather, the wall gradually bulged out as it was built 
 up, until it was in a place or places two inches over the line. The 
 trouble was then noticed by the contractor, and the wall was grad- 
 ually drawn in until at the top it projected over the line about a 
 quarter of an inch. The result was that when the wall was completed 
 there was an area on its side, towards the easterly end, 20 to 30 feet 
 high and 30 to 40 feet long, which overhung the plaintiff's land, and 
 the overhang was 2 inches at the most, and from that down to a point 
 at the bottom, and a quarter of an inch at the top. 
 
 "It is not shown that any of the defendant's ofificers or agents knew 
 of the bulging until after the building was completed. The contractor 
 testified, and I find, that, although he knew of the bulging before 
 the wall was completed, he did not think it was over the line. The 
 plaintiffs have not been guilty of laches, and have in no sense ac- 
 quiesced. 
 
 "It is not disputed that the plaintiffs, owning the soil in fee, owned 
 also ad usque coelum, and the overhang of the wall is an invasion of 
 their rights. They have already brought two successive actions of 
 trespass quare clausum fregit for the trespass, and have recovered 
 judgment in each. The plaintiffs now bring this bill for a mandatory 
 injunction to compel the defendant to remove the overhang of the wall 
 which is over their line. 
 
 "The plaintiffs have a three-story wooden tenement building on their 
 lot, standing so near the offending brick wall of the defendant that 
 it will be impossible to remedy a very considerable portion of the 
 overhang by working on the outside. The wall will have to be torn 
 out from the inside and rebuilt, if abatement is ordered. The plain- 
 tiffs are sustaining no pecuniary damage at the present time, and 
 will not so long as their present use of their property is unchanged. 
 
 "It is not disputed that equity has jurisdiction to order the invasion 
 of the plaintift''s premises to be abated. The grounds of such juris- 
 diction, as usually stated, are the want of a complete remedy at law, 
 since full compensation for the entire wrong cannot be obtained in 
 an action at law for damages (see 4 Pomeroy's Eq. Juris. § 1357, and 
 note) and to prevent a multiplicity of actions, since a plaintiff might 
 be compelled to bring a succession of actions in order to obtain re- 
 lief. See 1 Pomeroy's Eq. Juris. § 252, and 5 Pomeroy's Eq. Juris. 
 §§ 496, 516. 
 
 "But it does not follow that a writ of mandatory injunction should 
 be granted in all cases. It is a discretionary writ. The discretion, how- 
 ever, is not an arbitrary one, but is to be exercised in accordance 
 with settled rules of law. The rules by which I think this case must 
 be tested are stated in Lynch v. Union Institution for Savings, 159 
 Mass. at page 308, 34 N. E. at page 364, 20 L. R. A. 842, in these
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 405 
 
 words : 'In general, where a defendant has gone on without right 
 and without excuse in an attempt to appropriate the plaintiff's prop- 
 erty, or to interfere with his rights, and has changed the condition 
 of his real estate, he is compelled to undo, so far as possible, what 
 he had wrongfully done affecting the plaintiff, and to pay the dam- 
 ages. In such a case a plaintiff' is not compelled to part with his prop- 
 erty at a valuation, even though it would be much cheaper for the de- 
 fendant to pay the damages in money than to restore the property. 
 * * * On the other hand, where, by an innocent mistake, erec- 
 tions have been placed a little upon the plaintiff's land, and the dam- 
 ages caused to the defendant by removal of them would be greatly 
 disproportionate to the injury of which the plaintiff complains, the 
 court will not order their removal, but will leave the plaintiff to his 
 remedy at law. * * * 'pj^g doctrines applied by the court of equi- 
 ty in cases of this kind call for a consideration of all the facts and 
 circumstances which help to show what is just and right between the 
 parties.' 
 
 "I think the case at bar falls within the second class of cases men- 
 tioned in the Massachusetts case. Here there was no intention nor 
 attempt to appropriate the plaintiff's property. The contractor made 
 a mistake. The injury to the plaintiffs is now trivial, and at no time 
 can it be so great that it would not be many times outweighed by the 
 expense, damage, and loss which would necessarily be occasioned to 
 the defendant if it should be compelled to remove the overhang of 
 its wall. I do not think that equity requires or permits the court to 
 use its strongest arm to produce a result so inequitable. I think the 
 bill should be dismissed, but, under the circumstances, without costs. 
 For further discussion, see Methodist Epis. Soc. v. Akers, 167 Mass. 
 560, 46 N. E. 381 ; Harrington v. McCarthy, 169 Mass. 492, 48 N. E. 
 278, 61 /\m. St. Rep. 298; Levi v. Worcester Consolidated St. Ry., 
 193 Mass. 116, 78 N. E. 853; Kendall v. Hardy, 208 Mass. 20, 94 
 N. E. 254; Kershishian v. Johnson, 210 Mass. 135, 96 N. E. 56, 36 
 L. R. A. (N. S.) 402; Hunter v. Carroll, 64 N. H. 572, 15 Atl. 17. 
 
 "It is therefore ordered, adjudged, and decreed that the bill be dis- 
 missed." 
 
 Appeal denied.®^ 
 
 87 See Pile v. Pedrick (1895) 167 Pa. 296, 31 Atl. 646, 647, 46 Am. St. Rep. 
 677; Huber v. Stark (1905) 124 Wis. 359, 102 N. W. 12, 109 Am. St. Rep. 
 937. 4 Ann. Cas. 340; Baugh v. Bergdoll (1910) 227 Pa. 420, 76 Atl. 207; 
 Kershishian v. Johnson (1911) 210 Mass. 135, 96 N. E. 56, 36 L. R. A. (X. S.) 
 402. 
 
 And see "Adjoining Landowners," 1 Cyc. 773, 1 C. J. 120S; "Injunction," 
 22 Cyc. 834, note 42.
 
 y 
 
 406 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 (D) Bxciisahle Nuisances ^^ 
 
 DELAWARE & HUDSON CANAL CO. v. TORREY. 
 (Supreme Court of Pennsylvania, 1S59. 33 Pa. 143.) 
 
 This was an action on the case by the canal company for obstruct- 
 ing the navigation of its canal, by the discharge of saw-dust from 
 the defendant's mill into the Lackawaxen river, a public highway, in 
 such a manner as to allow the saw-dust to enter the feeder of the 
 company's canal and basin. 
 
 It appeared that the defendant had built a saw-mill on the south 
 side of the Lackawaxen, in such a way that the tail-race terminated 
 at the head of the company's feeder, and the saw-dust from the mill 
 entered the feeder, and passed down to the basin, where it settled 
 and obstructed the navigation. The defendant offered evidence to 
 prove that it was impossible for him to use and enjoy his saw-mill, 
 without letting the saw-dust fall into, and pass off with the stream. 
 The court admitted this evidence, notwithstanding an objection by 
 the plaintiff, and sealed a bill of exceptions. Verdict and judgment 
 for the defendant.®'' 
 
 Strong, J. The court was requested to instruct the jury, "that if 
 the whole or any part of the saw-dust made at the defendant's mill, 
 came into the company's basin and there intermingled with other 
 matter, obstructing the navigation, and making it necessary for the 
 company to remove it, then the verdict should be for the plaintiffs." 
 
 8 8 "In an action on tlie case, under the plea of not guilty, the defendant 
 may not only put the plaintifi: upon proof of the whole charge, contained 
 in the declaration, but may give in evidence any justification or excuse of 
 it, or shew a former recovery, release, or satisfaction. * * * So in case for 
 obstructing ancient lights, a custom of London to build on an ancient founda- 
 tion to any height, may be given in evidence by the defendant ; and though 
 a license must be pleaded in trespass, yet it is the practice to admit it in 
 evidence in an action on the case." 1 Chitty, PI. 4S8 (1828). 
 
 Rules in Hilary Term (1833): "Pleadings in Particular Actions: IV. In 
 Case: 1. In actions on the case, the plea of not giiilty shall operate as a 
 denial only of the breach of duty or wrongful act alleged to have been 
 committed by the defendant, and not of the facts stated in the inducement, 
 and no other defence than such denial shall be admissible under that plea: 
 all other pleas in denial shall take issue on some particular matter of fact 
 alleged in the declaration. In an action on the case for a nuisance to the 
 occupation of a house by carrying on an offensive trade, the plea of not guilty 
 will operate as a denial only that the defendant carried on the alleged trade 
 in such a way as to be a nuisance to the occupation of the house, and will 
 not operate as a denial of the plaintiff's occupation of the house. 
 
 In an action on the case, for obstructing a right of way, such plea will 
 operate as a denial of the obstruction only, and not of the plaintiff's right 
 of way. 
 
 2. All matters in confession and avoidance shall be pleaded specially." 
 
 See Chitty, Pi. (10th Am. Ed.) 755. 
 
 s» The statement of the case is abridged and part of the opinion is omitted.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 407 
 
 This proposition the court refused to affirm, but on the contrary 
 charged the jury that, if they beHeved the saw-dust from the defend- 
 ant's mill alone, unaccompanied and unmixed with saw-dust from 
 other mills, would not inconvenience the plaintiffs, they could not re- 
 cover. Thus the jury were led to believe that the deposit of saw- 
 dust by the defendant in their basin was not sufficient to enable the 
 plaintiffs to maintain an action, unless it alone caused a practical in- 
 convenience and obstruction to the navigation. This we hold to have 
 been erroneous, and the error was a radical one underlying the whole 
 charge."" It was repeated in various forms, and covered nearly the- 
 whole ground of contest in the case. The facts, as developed by the 
 evidence, seem to leave no doubt, that the dust from the defendant's 
 mill, falling into the stream, was carried by the current through the 
 feeder of the canal into the basin, and there deposited. The defence 
 consisted mainly, not in a denial of this fact, but in the assertion, 
 that if there had not been intermingled with it saw-dust, culm, and 
 other substances from other mills, no obstruction of the navigation 
 would have been caused. In the way in which the learned judge put 
 the case to the jury, they must have understood that, if the facts 
 were as contended by the defendant, there could be no recovery — 
 that the dust from Mr. Torrey's mill alone must have been, of itself, 
 an obstruction. If this be so, then the basin of the plaintiffs might 
 have been filled without any legal injury to them, for the contributors 
 to the deposit might have been so numerous that the share contributed 
 by each would be inappreciable. Or suppose there had been no other 
 saw-mill on the stream than that of the defendant. In a course of 
 years that might have filled the basin with its dust, and yet the quan- 
 tity deposited during any period of six years might not, of itself, 
 have caused any obstruction. If the doctrine avowed by the learned 
 judge be correct, the wrong would be remediless. The court con- 
 founded the degree with the existence of the injury, or perhaps failed 
 to distinquish between a wrong to the present enjoyment and an in- 
 jury to the right of enjoyment. The defendant cannot justify him- 
 self by showing that others were guilty of similar and concurrent 
 wrongs. He had no right to cause any saw-dust to be deposited in the 
 plaintiff's basin. His first deposit therefore was an actionable injury, 
 though it caused no practical inconvenience, because it was a viola- 
 tion of the plaintiffs' right, and because continued deposition for 
 twenty-one years would have given to him an easement, a right to 
 continue it, as was ruled in Wright v. Williams, 1 M. & W. 77 , and 
 as we held in Jones v. Crow, 32 Pa. 398, a case decided at this term. 
 The commencement of the acquisition of such an easement is with 
 
 9 The charge on this point, notwithstanding the admission of this testi- 
 mony, was as follows: "It is argued here, that a water saw-mill cannot be 
 so constructed as to avoid the diliiculty complained of. The only answer we 
 need make to it is, that it must be so constructed as not to create a nuisance 
 to the injury of others."
 
 408 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 the first user, and of course the first user is an invasion of the rights 
 of the owner of the servient tenement. * * * oi 
 
 The evidence, the admission of which is the subject of the sixth 
 assignment of error, was doubtless inadvertently received. The court 
 subsequently charged the jury, that if the defendant could not enjoy 
 a water-power on his own premises without depriving others above 
 or below him of vested rights, he must cease to enjoy it, or answer in 
 damages for injury done. This ruling, undoubtedly correct, if ap- 
 plied to the evidence, would have excluded it. 
 
 The judgment is reversed, and a venire de novo awarded.' 
 
 92 
 
 91 "Then it was said that the plaintiff alleges an obstruction caused by 
 several persons acting indej^endently of each other, and does not shew what 
 share each had in causing it. It is probably impossible for a person in the 
 plaintiff's position to shew this. Nor do I think it necessary that he should 
 shew it. The amount of obstruction caused by any one of them might not, 
 
 / if it stood alone, be sufficient to give any ground of complaint, though the 
 » amount caused by them all may be a serious injury. Suppose one person 
 leaves a wheelbarrow standing on a way, that may cause no appreciable 
 inconvenience, but if a hundred do so, that may cause a serious incon- 
 venience, which a person entitled to the use of the way has a right to pre- 
 vent ; and it is no defence to any one person among the hundred to say 
 that what he does causes of itself no damage to the complainant." Per 
 James, L. J., in Thorpe v. Brumtitt (1S73) L. R. S Ch. 650, 656. 
 
 Compare the opinion of Chitty, J., in Lambton v. Mellish, [1894] 3 Ch. 163, 
 where it was submitted by counsel that the independent act of one of the 
 defendants, in using a gentle hand organ, was a lawful act, and therefore 
 could not be enjoined. 
 
 92 See also Richards v. Daughertj^ (1902) 133 Ala. 569, 31 South. 934; 
 West Munice Strawboard Co. v. Slack (1909) 164 Ind. 21, 27, 72 N. E. 879; 
 United States v. Luce (1905 C. C.) 141 Fed. 385, 411: (The factory of the 
 defendants and the factory of Brown & Co. "are so situated with respect to 
 each other that when the wind is in such direction as to carry the odors 
 from one of them to the quarantine station it will carry the odors from the 
 other there, and the odors from one cannot be distinguished from the otlors 
 from the other. There is no evidence of co-operation, privity or business 
 relationship of any kind between the defendants and Brown & Co. in the 
 erection and operation of their respective factories, or between the defendants 
 and the succeeding owners or managers, if such there be, of the factory 
 erected by Brown & Co. ; nor is there any evidence to the point that the 
 odors from either of the factories alone would or would not so contaminate 
 the air at the quarantine station as to create a nuisance there within 
 the definition of the authorities. But the combined odors from both factories 
 unquestionably have that effect, and in producing it the two establishments 
 in fact co-operate in and contribute to the creation of the nuisance. Under 
 these circumstances, in the absence of a plain, adequate and complete remedy 
 at law, the owners or managers of both or either of the factories can be 
 enjoined from maintaining or contributing to the maintenance of the nui- 
 sance." Per Bradford, D. J.) 
 
 For other cases in point see "Nuisance," 37 Cent. Dig. § 8 ; 15 Dec. Dig. § 8. 
 
 Compare Chipman v. Palmer (1879) 77 N. Y. 51, 33 Am. Rep. 566: (D. 
 and other persons polluted a stream by the discharge of sewage therein, each 
 from his own premises, and each acting separately and independently of the 
 others: Held, that D. was not liable for all the damage caused P. by the 
 nuisance thus created, but was liable only to the extent of the damage cre- 
 ated by D.) Simmons v. Everson (1891) 124 N. Y. 319, 26 N. E. 911, 21 Am. 
 St. Rep. 676: (One action, to recover damages for the death of S., was 
 brought against three defendants, B., P., and L. These three defendants 
 owned in severalty three adjoining lots upon a city street. Upon these lots 
 stood three brick stores, separated from each other by brick partition walls
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 409 
 
 RAPIER V. LONDON TRAMWAYS CO. 
 
 (High Court of Justice, Chancery Division, [1893] 2 Ch. 588. 
 In the Court of Appeal, [1893] 2 Ch. 597.) 
 
 The defendants, the London Tramways Company, were empow- 
 ered by Act of ParHament to construct three lines of tramway ac- 
 cording to certain plans, "with all proper rails, plates, works, and 
 conveniences connected therewith." The act gave no compulsory pow- 
 er for taking land and made no special mention of building stables. 
 The defendants constructed the lines, and built large blocks of stables 
 near the plaintiff's house for the horses employed in drawing the 
 cars. The plaintiff complained of the smell caused by the stables, 
 and brought an action for an injunction to restrain the defendants 
 from using the stables so as to cause a nuisance. 
 
 The action came on for hearing before Mr. Justice Kekewich, who 
 granted the injunction asked as regards the smell. The defendants 
 appealed.^^ 
 
 LiNDLE^Y, L. J. I think it is impossible to disturb the judgment or 
 order which is appealed from. The case is one of very considerable 
 importance both to the plaintiff and to the defendants, and it is also 
 of importance from a public point of view. 
 
 The first point which we have to consider is the Act of Parliament 
 under which, if at all, the defendants can justify what they have 
 done. Now, what they have done is this. Being a company formed 
 for making tramways, they have bought a piece of land near the 
 plaintiff's house, about five acres in extent. They have erected, at 
 very considerable expense, very excellent stables upon this land, capa- 
 ble of holding more than 400 horses, but used apparently up to the 
 present time for 200, more or less. All that is perfectly lawful. 
 There is no reason why people should not have stables, and large 
 stables too, provided only they carry on their stable business in such 
 a way as not to occasion a nuisance to their neighbours. The x^ct of 
 Parliament to which Mr. Willis has referred does not appear to me 
 
 extending from the foundations to the roofs. The fronts of the stores made 
 a continuous brick wall of uniform height and thickness. The partition 
 walls and the front wall were interlocked or built together. On October 
 17, 1887, the three stores were destroyed by fire. Nothing was left standing 
 except the front wall and parts of the partition walls. Soon after the fire 
 the front wall began to incline towards the street, and continued to incline 
 more and more in that direction until November 17, 1887, when it gave 
 way, near the partition wall between the buildings of L. and P., and the 
 whole front fell into the street. Material from a part of the front wall 
 standing on the lots of E. and P., and from their partition wall, fell upon 
 and killed S., who was lawfully upon the sidewalk near the boundary be- 
 tween their lots. No part of L.'s wall touched him. It was contended that, 
 if E., P., and L. were liable at all, they were not liable jointly, within the 
 rule of Chipman v. Palmer (1879) 77 N. Y. 51, 33 Am. Rep. 56G. Held, tliat 
 they were jointly liable.) 
 
 93 Only so much of the case is given as relates to the one point.
 
 410 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 to do more than authorize them to create and make a certain tram- 
 way; it proceeds on the assumption that they may use animal power; 
 I do not think it otherwise authorizes such use. Animal power for 
 such a purpose in this country means horse-power, and as a matter 
 of course the defendants must have horses. That involves, as a 
 natural consequence, stables to put them in. To that extent the Act 
 of Parliament authorizes the defendants to have stables and horses. 
 
 I agree with Mr. Willis that it is for the directors to say, within the 
 limits which I will discuss presently, where they shall have stables, 
 how many horses they will have, and where they will locate them. 
 What are the limits of that discretion? Mr. Willis says this Act of 
 Parliament, which does not say anything expressly about stables or 
 horses, gives the directors power to do whatever in the exercise of 
 their discretion they may think reasonable and proper in their own 
 interests, provided they take all reasonable care not to commit a 
 nuisance. 
 
 Is that the true construction of the Act of Parliament? or is it 
 that they may do what they may think right in the exercise of their 
 own discretion provided they do not commit a nuisance? Which is 
 it? The whole case up to a certain point turns on that. An Act of 
 Parliament might be so worded as to cast upon them no greater duty 
 than the duty to take reasonable care. Unless the Act of Parliament 
 IS so worded as to limit their duty to that extent, I think the common 
 law must prevail, that they must exercise their power so as not to 
 commit a nuisance. At common law, if I am sued for a nuisance, 
 and the nuisance is proved, it is no defence on my part to say, and 
 to prove, that I have taken all reasonable care to prevent it.^* The 
 
 84 Compare Bohan v. Port Jervis Gas Light Co. (1890) 122 N. Y. 18, 25 N. 
 E. 246, 9 L. R. A. 711: (P. sued to recover damages for an alleged miisauce 
 caused by D. in making gas from naphtha. There was no evidence of neg- 
 ligence on the part of D. The trial court was asked to charge: "That unless 
 the jury should find that the works of the defendant were defective, or that 
 they were out of repair, or that the persons in charge of manufacturing gas 
 at these works were unskillful and incapable, their verdict should be for the 
 defendant;" and "that if the odors which affect the plaintiff are those that 
 are inseparable from the manufacture of gas with the most approved ap- 
 paratus and with the utmost skill and care, and do not result from any defects 
 in the works, or from want of care in their management, the defendant is 
 not liable." This charge the court refused to give.) 
 
 Whittemore v. Baxter Laundry Co. (1914 Mich.) 148 N. W. 437, 52 L. R. 
 A. (N. S.) 930, and note: (In his business of dry cleaning D. uses 15.000 gal- 
 lons of gasoline annually. He is about to place on his propei'ty, and within 
 
 II feet of P.'s dwelling, two steel tanks for the storage of gasoline. The tanks 
 have a capacity of 10,000 gallons each. P. seeks to enjoin D. from storing 
 gasoline in the tanks. Said Kuhn, J., delivering the opinion: "We may 
 grant that the storage of gasoline on the premises adjacent to or adjoining 
 the premises of another is not a private nuisance per se. It might, however, 
 become such considering the locality, the quantity, and the surrounding cir- 
 cumstances, and would not necessarily depend upon tlie degree of care used 
 in its storage. Heeg v. Licht, 80 N. Y. 579, 36 Am. Rep. 654, 29 Cyc. 1177. 
 We may also concede that in the instant case every precaution that human 
 ingenuity has conceived has been made use of in the construction of the 
 tanks as testified to by the defendant's experts. Considering, however, the
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 411 
 
 Act of Parliament may be an answer. It was an answer in the case 
 of London, Brighton and South Coast Railway Company v. Truman, 
 29 Ch. D. 89, 11 App. Cas. 45, and it might be an answer here if the 
 Act of Parliament went further than it did. I cannot find that the 
 Act of Parliament contains any clause which warrants us in saying 
 that no limit is set to the exercise of the discretion of the directors 
 except the duty to take reasonable care not to create a nuisance. The 
 only limit I can find is the limit which is set by the general law of the 
 country that they do not commit a nuisance. Within that limit they 
 may have what stables they like, they may have what number of 
 horses they like, and they may conduct them how they like. * * * 
 
 dangerous character of the substance and its power as an explosive, of which 
 in this age of its wonderful development as a power to propel automobiles, 
 traction engines, and airships, we can well take judicial notice, and also 
 considering human fallibility, that accidents in the operation of the most per- 
 fect mechanism will occur, and all that it needs to change what is, when 
 properly protected, a harmless agency to a most dangerous explosive is a 
 careless person, can it be said that to have 20,000 gallons of such an agency 
 stored within but a few feet of one's dwelling house is not sufficient to be 
 an unreasonable interference with the comfortable enjoyment of that home?" 
 
 West V. Bristol Tramways Co., [190S] 2 K. B. 14: (D., a tramway company 
 which was required, by a special Act of Parliament, to pave between and 
 on either side of its rails with wood, used for that purpose wood blocks 
 coated with creosote. The fumes given off by this creosoted wood pavement 
 caused damage to plants and shrubs belonging to P., a market gardener whose 
 premises abutted on a road thus paved by D. There was another kind of 
 wood paving, in use for several years, which D. might have used, and which, 
 if used, would have caused no damage to P.'s plants and shrubs. The jury 
 found "that it was not absolutely necessary for the defendants to pave the 
 road as they did, and at the time they did ; and that it was reasonably neces- 
 sary for them to pave the road as they did, and at the time they did, ac- 
 cording to the knowledge of the defendants at the time, but that in the light 
 of the evidence given at the hearing it was not reasonably necessary." Said 
 Lord Alverstone, C. .!.: "In my opinion the proposition of law applicable 
 to this case is correctly stated in Garrett on Nuisances (2d Ed.) p. 129 ; and 
 I will read that statement as part of my judgment, as, in my opinion, the 
 law on the subject could not be more clearly expressed. It is as follows: 
 'Where the owner of land uses his land for any purpose for which it may 
 in the ordinary course of enjoyment of land be used, he will not, in the ab- 
 sence of negligence on his part, be liable, though damage result to his neigh- 
 bour in the ordinary enjoyment by the latter of his property ; for it lies 
 with the latter to protect himself from the operation of natural laws. But, if 
 the owner of land uses it for any purpose which from its character may 
 be called non-natural or extraordinary user, such as, for example, the intro- 
 duction on to the land of something which in the natural condition of the 
 land is not upon it, he does so at his peril, and is liable if sensible damage re- 
 sults to his neighbour's land from its escape, or if the latter's legitimate en- 
 joyment of his land is thereby materially curtailed.' If the contention of 
 the defendant's counsel in this case is correct, this last proposition is stated 
 much too widely ; for they contend that the owner of hind who has so acted 
 has not done so at his peril, and is not liable, unless the plaintiff shews that 
 the thing introduced on the land was, to the knowledge of the defendant, 
 likely to escape and cause damage. The authorities do not, in my opinion, 
 support the suggestion that this onus is cast on the party injured." 
 
 And see the principle of Fletcher v. Rylands (1866) L. It. 1 Kx. 265; (186S) 
 L. R. 3 H. L. 330, infra.
 
 412 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 VILE V. PENNSYLVANIA R. CO. 
 
 (Supreme Court of Pennsylvania, 1914. 246 Pa. 35, 91 Atl. 1049.) 
 
 The action was against the raih-oad company for damages to the 
 plaintiff's land from the discharge of cinders, smoke, etc., from the 
 defendant's locomotives. Verdict for the plaintiff with judgment for 
 the defendant non obstante veredicto. The plaintiff appeals. 
 
 Brown, J. In 1889 the plaintiff below leased several acres of 
 land, in the city of Philadelphia, for the purpose of carrying on his 
 business as a truck gardener. He raised all kinds of vegetables, some 
 under sash for the early market. In 1904 the Pennsylvania Railroad 
 Company established a place about 400 yards from his truck garden, 
 for the purpose of cleaning its locomotives. These were cleaned by 
 the use of compressed air driven through the boiler tubes. As a con- 
 sequence of this process of cleaning, smoke, soot, ashes, cinders and 
 ^ greasy substances were blown out of the stacks of the locomotives and 
 settled on appellant's premises, ruining his plants and vegetables and 
 destroying his business. In this action he recovered a verdict of $5,500 
 for the injuries which he sustained, but defendant's motion for judg- 
 ment non obstante veredicto was allowed on the ground that the 
 testimony of the witness called by the plaintiff as an expert to show 
 that the locomotives of the defendant could have been cleaned without 
 any resultant injury to the plaintiff was insufficient to sustain his 
 charge of negligence. On this appeal the narrow question is whether 
 the court below correctly so held in denying plaintiff judgment on the 
 verdict. * * * 
 
 In support of the judgment of the court below it is argued that the 
 defendant cannot be held liable to the plaintiff, because it appeared that 
 the means which it had adopted to clean the boiler tubes were those 
 in general use by other railroad companies. In view of the testimony 
 as to the practicability of adopting other means for cleaning the boilers 
 by which such injuries as were sustained by the appellant may be avoid- 
 ed, the doctrine of general usage, contended for by counsel for ap- 
 pellee, is not to be applied. To apply it in the present case would mean 
 that though the defendant could have adopted means for the prevention 
 of injuries to others in cleaning its locomotives in its yard, it was not 
 bound to adopt them until they had been adopted by other railroad 
 companies. It is to be remembered that the complaint of the appel- 
 lant does not grow out of the actual operation of the locomotives, but 
 out of what resulted from preparing them for operation — on property 
 owned by the defendant company. It had a right to use the property 
 for that purpose, but, under the competent testimony in the case, be- 
 lieved by the jury, only in obedience to the rule, "Sic utere tuo ut 
 alienum non laedas;" and not to have so used it was found by the
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 413 
 
 jury to have been negligence, for the consequences of which the de- 
 fendant must answer to the plaintiff. * * * 
 
 The judgment entered for the defendant is therefore reversed, and 
 the record remitted, that plaintiff may have judgment.* 
 
 PILE et al. v. PEDRICK et al. 
 
 (Supreme Court of Pennsylvania, 1S95. 167 Pa. 296, 31 Atl. 646, 647, 
 
 46 Am. St. Rep. 677.) 
 
 Bill in equity against Pedrick and another to compel the removal 
 of a wall. From this decree below both the plaintiff's and the de- 
 fendants appeal. 
 
 Williams, J. The learned judge of the court below was right in 
 holding that the wall in controversy was not a party wall. It w^as not 
 intended to be. The defendants were building a factory and under 
 the advice of their architect decided to build w-ithin their own lines 
 in order to avoid the danger of injury to others from vibration w^hich 
 might result from the use of their machinery. They called upon the 
 district surveyor to locate their line and built within it as so ascer- 
 tained. Subsequent surveys by city surveyors have determined that 
 the line w^as not accurately located at first but w^as about one and a 
 half inches over on the plaintiffs. This leaves the ends of the stones 
 used in the foundation wall projecting into the plaintiffs' land below 
 the surface one and three-eighths inches. This unintentional intru- 
 sion into the plaintiffs' close is the narrow foundation on which this 
 bill in equity rests. 
 
 The wall resting on the stone foundation is conceded to be wnthin 
 the defendants' line. The defendants offered nevertheless to make 
 it a party wall by agreement and to give to plaintiff's free use of it, 
 as such, on condition that the windows on the third and fourth floors 
 should remain open until the plaintiff should desire to use the wall. 
 This off'er was declined. The trespass was then to be remedied in 
 one of two ways. It could be treated with the plaintiff's' consent as 
 a permanent trespass and compensated for in damages, or the defend- 
 ants could be compelled to remove the offending ends of the stones 
 to the other side of the line. The plaintiffs insisted upon the latter 
 course, and the court below has by its decree ordered that this should 
 be done. The defendants then sought permission to go on the plain- 
 tiffs' side of the line and chip off the projecting ends, oft'ering to pay 
 for all inconvenience or injury the plaintiffs or their tenants might 
 suft'er by their so doing. This they refused.^'' Nothing remained 
 
 ♦Only so much of the case is given as relates to the one point. 
 
 9 5 Compare Thompson v. Gibson (1S41) 7 M. & W. 456, 56 R. R. 762: (The 
 defendants had erected a building, on the land of S., which excluded the 
 public from a part of the space on which a market was lawfully held. They 
 cannot now remove the nuisance without committing a trespass ou S.'s laud.
 
 414 TORTS THROUGH ACTS OP ABSOLUTE LIABILITY (Part 1 
 
 but to take down and rebuild the entire wall from the defendants' 
 side and with their building resting on it. This the decree requires, 
 but in view of the course of the litigation the learned judge divided 
 the costs. * * * 
 
 It is not denied that the foundation wall on which the appellant 
 (Pedrick) has built was located under a mistake made by the district 
 surveyor, and does in fact project slightly into the plaintiffs' land. 
 For one inch and three-eighths the ends of the stones in the wall are 
 said to project beyond the division line. The defendants have no 
 right at law or in equity to occupy land that does not belong to them 
 and we do not see how the court below could have done otherwise 
 than recognize and act upon this principle. They must remove their 
 wall so that it shall be upon their land. This the court directed should 
 be done within a reasonable time. To avoid further controversy over 
 this subject we will so far modify the decree as to permit such re- 
 moval to be made within one year from the date of filing hereof. 
 In all other respects the decree is affirmed.®' 
 
 BLISS V. HALL. 
 
 (Court of Common Pleas, 1S38. 4 Bing. N. C. 183, 132 Reprint, 758, 
 
 44 R. R. 697.) 
 
 In an action of nuisance for carrying on the business of a tallow 
 
 chandler in a messuage adjoining the messuage of the plaintiff, the 
 
 defendant pleaded as follows : 
 
 That the defendant was possessed of his said messuages for a long space 
 of time, to wit, for the space of three years next before the plaintiff became 
 possessed of his said messuage in the declaration mentioned, and before the 
 plaintiff occupied, inhabited, and dwelt in the same ; and that before and 
 at the time when the defendant first became and was possessed of his said 
 messuages, the said furnaces and stoves in the introductory part of this plea 
 mentioned had been and then were erected, set up, and placed in and 
 upon the same: that the defendant always, to wit, from the time at which 
 he became so possessed of his said messuages, until and at and after the 
 plaintiff so became possessed of his said messuage as in the declaration 
 mentioned, and thence hitherto, had used, exercised, and carried on the said 
 trade and business of a candlemaker, and had occasioned — the phenomena 
 described in the declaration (enumerating them as above) — in the same man- 
 ner and form, and degree, and to the same extent, and at the same hours, 
 and times, and seasons, as at the said time when, etc., in the declaration 
 and in the introductory part of this plea mentioned ; and the same during 
 
 "But," said Baron Parke, "that Is a consequence of their own original wrong, 
 and they cannot be permitted to excuse themselves from paying damages for 
 the injury it causes, by showing their Inability to remove it, without expos- 
 ing themselves to another action.") Smith v. Elliot (1848) 9 Pa. 315: (D. 
 cut llio bank of a stream and thus diverted water from P.'s mill. The 
 break in the bank was on the land of a stranger, and D. cannot abate the 
 nuisance without committing a trespass.) 
 
 "« Part of the opinion of Pile's Appeal, as to dividing the costs, is omitted. 
 
 Compare Coombs v. Jjenox Realty Co. (1913) 111 Me. 178, SS Atl. 477, 
 47 L. R. A. (N. S.) 1085.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 415 
 
 all that time, and at the said time when, etc., were and still are requisite 
 and necessarj- to enable the defendant to carry on his said trade and business, 
 in. and upon his said premises, in the same manner and form, and to the 
 same extent, as the defendant carried ou the same at tlie time when the 
 plaintiff came to his said premises in the declaration mentioned, near and 
 adjoining to the premises and business of the defendant, so carried on as 
 aforesaid : that the defendant lawfully enjoyed his said premises, manu- 
 factory, and business, before the plaintiff came to, occupied, or was pos- 
 sessed of his said premises in the declaration mentioned, in the same, condi- 
 tion, extent, manner, and form, as he enjoyed and possessed tlie same at the 
 said time when, etc., in the declaration mentioned, and of right ought 
 still lawfully to enjoy the same without interruption or suit of the plaintiff; 
 and that, the defendant was ready to verify. 
 
 Demurrer and joinder. 
 
 Hoggins, against the demurrer. Even if it be a nuisance, a party 
 who comes to it is not entitled to complain. It was his own election 
 to approach so near.^^ 
 
 TiNDAL, C. J, In this case the declaration alleges that the defend- 
 ant injuriously carried on, in messuages contiguous to the messuage 
 of the plaintiff, the trade and business of a candlemaker, by which 
 noxious vapours and smells proceeded from the messuage of the de- 
 fendant and dift'used themselves over the messuage of the plaintiff; 
 and all that the defendant says in answer, is, that he carried on the 
 business for three years before the plaintiff became possessed of the 
 messuage he inhabits. That is no answer to the complaint in the 
 declaration ; for the plaintiff" came to the house he occupies with all 
 the rights which the common law aff'ords, and one of them is, a right 
 to wholesome air. Unless the defendant shows a prescriptive right 
 to carry on his business in the particular place, the plaintiff' is entitled 
 to judgment. 
 
 Vaughan, J. The smells and noises of which the plaintiff" com- 
 plains are not hallowed by prescription, and under this plea the de- 
 fendant cannot justify their continuance. 
 
 BosAXOuET, J. I am of the same opinion. The defendant has, 
 prima facie, a right to enjoy his property in a way not injurious to 
 his neighbour; but here on his own showing the business he carries 
 on is offensive, and he makes out no title to persist in the annoyance. 
 
 Judgment for the plaintiff'.^ 
 
 98 
 
 8 7 Compare Blackstone's remark: "If my neighbor makes a tan-yard, so as 
 to annoy and render less salubrius the air of my house or garden, the law 
 will furnish me with a remedy; but if he is first in possession of the air, 
 and I fix my habitation near him, the nuisance is of my own seeking, and 
 may continue." 2 Bl. Com. 403 (1765). 
 
 8 8 The concurring opinion of Park, J., is omitted.
 
 416 TORTS THROUGH ACTS OP ABSOLUTE LIABILITY (Part 1 
 
 BAMFORD V. TURNLEY. 
 
 (Court of Queen's Bench, 1S60. In the Exchequer Chamber, 1SC2. 3 Best 
 & S. 62, 66, 129 R. R. 235, 238, 122 Reprint, 25, 27.) 
 
 Action for a nuisance arising from the burning of bricks on the 
 defendant's land near to the plaintiff's house. The declaration was in 
 two counts; the only material plea to both counts was "Not Guilty." 
 On the trial it appeared: 
 
 That some land, part of the Beulah Spa Estate, was offered for sale in lots 
 by public auction, in accordance with certain printed particulars of sale. 
 These were headed "Particulars of the first section of the Beulah Spa Es- 
 tate, consisting of about fifty acres of Freehold Building Land, etc., in nine- 
 teen lots," and stated, among other things, that the property presented 
 "splendid sites for the erection of first class villas;" and that "there is 
 abundance of brick earth and gravel, which, combined with all tlie other 
 advantages appertaining to this exceedingly beautiful property, present an 
 unusually advantageous opportunity of carrying out safe and profitable 
 building operations." The brother-in-law of the plaintiff, in the year 1S57, 
 purchased lot 11 of this property, containing about two acres, and built 
 a residence on it. The house was finished in the year 1858, and shortly 
 afterwards the plaintiff became the tenant of the house and property. The 
 defendant was a solicitor in London, and in the year 1858, he bought some 
 other lots of the same property under the same particulars and conditions, 
 being respectively lots 1, 10, 14, and 16. It was proved that building was 
 going on in the neighbourhood, the plaintiff's house being within ten minutes' 
 walk of the new railway station; that, during the preceding year, bricks 
 had been burnt at certain spots in lots 13 and 15, and at a spot adjoining to 
 lot 15 ; that during the last seventeen years, bricks had from time to time 
 been burnt at various parts of the field, of which the site of the clamp in 
 question then formed part, such field having been divided at the time of 
 the sale into various lots; and that bricks had previously been made on 
 the spot where the plaintiff's house stood. 
 
 In June, 1860, the defendant, with the view of burning bricks made out 
 of the brick earth found upon his land and thereby obtaining bricks to 
 build upon it, erected a clamp of bricks on lot 16, at a distance of 180 yards 
 from the plaintiff's house. It was proved that there was an annoyance to 
 the plaintiff arising from the erection and use of the clamp as complained ol 
 in the first count suHicient prima facie to constitute a cause of action; but 
 it was also proved that the erection and use of the clamp by the defendant 
 as complained of was temporary only, and for the sole purpose of making 
 bricks on his own land and from the clay found there, with a view to the 
 erection of dwelling-houses on his own land; and that the clamp for burning 
 the bricks was placed on that part of the defendant's land most distant 
 from the plaintiff's house, and so as to create no further annoyance than 
 necessarily resulted from the burning of bricks. 
 
 The question was whether, under the circumstances so proved, an 
 action could be maintained in respect of such annoyance. 
 
 Lord Chief Justice Cockburn, before whom the case was tried, in- 
 timated that the case came within the principle laid down in Hole v. 
 Barlow [1858] 4 C. B. N. S. 334, and directed the jury, upon the au- 
 thority of that case, that if they thought that the spot was convenient 
 and proper, and the burning of the bricks was, under the circ.nn- 
 .«;tances, a reasonable use by the defendant of his own land, the de- 
 fendant would be entitled to a verdict upon the first count, independ- 
 ent of the small matter of whether there was an interference with the
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 417 
 
 plaintiff's comfort thereby. Upon this ruling a verdict was by ar- 
 rangement entered for the defendant on the first count, leave being 
 reserved to the plaintiff to move to set it aside, if the Court should be 
 of opinion that the above ruling of the Lord Chief Justice was erro- 
 neous.^ 
 
 In the following Alichaelmas Term, Petersdorff, Sergt., moved for 
 a rule calling upon the defendant to show cause why a verdict should 
 not be entered for the plaintiff on the first count for 40s. damages. 
 
 Pe;r Curiam (Cockburn, C. J., and Wightman, Hill, and Black- 
 burn, JJ.). Rule refused with leave to appeal. 
 
 In the Exchequer Chamber. 
 
 The plaintiff having appealed against the above decision, a case set- 
 ting forth the facts was stated, and concluded as follows: 
 
 "If the court should be of opinion that, upon the facts as stated, the ruling 
 of the Lord Chief Justice, founded upon the decision of Hole v. Barlow, was 
 erroneous, the verdict found for the defendant on the fii'st count is to be set 
 aside, and a iverdict entered for the plaintiff instead thereof with 40s. 
 damages. 
 
 "If the court should be of a contrary opinion, the verdict entered for the 
 defendant upon the first count is to stand." 
 
 The case was argued, in Easter V'acation, before Erie, C. J., Pol- 
 lock, C. B., Williams and Keating, ]]., and Bramwell and Wilde, BB. 
 
 Williams, J., delivered the judgment of Erle, C. J., Ke:ating, J., 
 WiLDB, B., and himself : 
 
 On the argument of this case, there was some contest as to what the 
 true question was which the court had to consider. On the part of 
 the plaintiff' it was said to have been proved at the trial, beyond dis- 
 pute, that the burning of the bricks in the kilns of the defendant was 
 a nuisance, and that the point reserved was, whether it was legalized 
 by the other facts which the jury must be taken to have found to exist. 
 On the part of the defendant it was said that the true point was, 
 whether, under all the circmnstances of the case, the burning of the 
 bricks amounted to an actionable nuisance. 
 
 It is not, perhaps, material which of these contentions is correct. 
 For the Lord Chief Justice, at the trial, directed the jury, on the au- 
 thority of Hole V. Barlow, 4 C. B. N. S. 334, to find for the defendant, 
 notwithstanding his burning the bricks had interfered with the plain- 
 tiff's comfort, if they were of opinion that the spot where the bricks 
 were burnt was a proper and convenient spot, and the burning of them 
 was, under the circumstances, a reasonable use by the defendant of 
 his own land. The jury, consequently, if they were of that opinion, 
 would have been bound to find their verdict for the defendant, not- 
 
 1 The statement of the case is abridged. Upon the second count, a verdict 
 was by arrangement entered for the plaintiff, with Is. damages, but no ques- 
 tion arose on that count. Part of the opinion of Bramwell, B,, and the dis- 
 senting opinion of Pollock, C. B., are omitted. 
 
 Hepb.Tokts — 27
 
 418 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 withstanding they were also of opinion that the brick-kilns of the de- 
 fendant, by immitting corrupted air upon the plaintiff's house, had 
 rendered it unfit for healthy or comfortable occupation. 
 
 It was therefore treated as a doctrine of law that, if the spot should 
 be found by the jury to be proper or convenient, and the burning of 
 the bricks a reasonable use of the land, these circumstances would con- 
 stitute a bar to the action ; and if there is, in truth, no such doctrine, 
 there was a misdirection : it is the same thing as if there had been a 
 plea averring the existence of these circumstances, and a demurrer 
 to the plea. Such a plea, though it would admit all the allegations of 
 the declaration, would be a good plea by way of avoidance, if the di- 
 rection of the Chief Justice was right. And it is not material to in- 
 quire whether it would be good as averring facts which amount to a 
 legalization of the nuisance stated in the declaration, or as superad- 
 ding facts which, taken together with those stated in the declaration, 
 show that the alleged annoyance was not an actionable nuisance. In 
 either point of view the question for our consideration appears to be, 
 whether the case of Hole v. Barlow, 4 C. B. N. S. 334, was well de- 
 cided. And we are of opinion that it was not. 
 
 That decision was plainly founded on a passage in Comyns' Digest, 
 Action upon the Case for a Nuisance (C), which is in the following 
 words : "So an action does not lie for a reasonable use of my right, 
 though it be to the annoyance of another; as, if a butcher, brewer, 
 &c., use his trade in a convenient place, though it be to the annoyance 
 of his neighbour." It may be observed that, in the language of this 
 dictum (for which no authority is cited by Comyns), there is a want 
 of precision, especially in the words "reasonable" and "convenient," 
 which renders its meaning by no means clear. And it may be doubted 
 whether the court, in Hole v. Barlow, did not misunderstand it. What 
 is a "convenient place"? Does this expression mean, as the court 
 understood it in that case, that the place is proper and convenient for 
 the purpose of carrying on the trade, or does it mean that it is a place 
 where a nuisance will not be caused to another? It has been pointed 
 out by Mr. W. H. Willes, in his valuable edition of Gale on Ease- 
 ments, p. 410, note, that this latter sense of the word "convenient" 
 is the one adopted by Hide, C. J., in Jones v. Powell, Palm. 536, 539, 
 s. c. Hutt. 135, where he says, "A tan-house is necessary, for all men 
 wear shoes, and nevertheless it may be pulled down if it be erected 
 to the nuisance of another : in like manner of a glass-house ; and they 
 ought to be erected in places convenient for them." In the original 
 Norman-French it is "Un tan house est necessary, car touts wear 
 shoes ; et uncore ceo poit estre pull down, etc., si est erect al nusance 
 d'auter: et issint de glass house; Et pur ceux doient estre erect in 
 places convenient pur eux." The term appears to be used in the same 
 sense when applied to questions as to public nuisances. Thus it is said 
 in Hawkins, P. C, book 1, c. 75 (2 Hawk. P. C, by Leach, p. 146, § 
 10), "It seems to be agreed, that a brew house, erected in such an in-
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 419 
 
 convenient place wherein the business cannot be carried on without 
 greatly incommoding the neighbourhood, may be indicted as a common 
 nuisance." It should seem, therefore, that just as the use of an offensive 
 trade will be indictable as a public nuisance if it be carried on in an 
 inconvenient place, i. e., a place where it greatly incommodes a multi- 
 tude of persons, so it will be actionable as a private nuisance if it be 
 carried on in an inconvenient place, i. e., a place where it greatly in- 
 commodes an individual. 
 
 If this be the true construction of the expression "convenient" in 
 the passage from Comyns' Digest, the doctrine contained in it amounts 
 to no more than what has long been settled law, viz., that a man may, 
 without being liable to an action, exercise a lawful trade, as that of a 
 butcher or brewer and the like, notwithstanding it be carried on so 
 near the house of another as to be an annoyance to him, in rendering 
 his residence there less delectable or agreeable, provided the trade be 
 so conducted that it does not cause what amounts, in point of law, to 
 a nuisance to the neighbouring house. 
 
 In Hole V. Barlow, 4 C. B. N. S. 334, however, the court appear to 
 have read the passage as containing a doctrine that a place may be 
 "proper and convenient" for the carrying on of a trade, notwithstand- 
 ing it is a place where the trade cannot be carried on without causing 
 a nuisance to a neighbour. This is a doctrine which has certainly 
 never been judicially adopted in any case before that of Hole v. Bar- 
 low, and moreover the adoption of it would be inconsistent with the 
 judgments pronounced in some of the cases cited at the bar during the 
 argument, and more especially with the case of Walter v. Selfe, 4 De 
 Gex & Sm. 315. And the introduction of such a doctrine into our 
 law would we think lead to great inconvenience and hardship, because, 
 as was forcibly urged by Mr. Mellish in arguing for the plaintiff, if 
 the doctrine is to be maintained at all, it must be maintained to the 
 extent that, however ruinous may be the amount of nuisance caused 
 to a neighbour's property by carrying on an offensive trade, he is with- 
 out redress if a jury shall deem it right to find that the place where 
 the trade is carried on is a proper and convenient place for the pur- 
 pose. 
 
 It should be observed that the direction of the judge to the jury in 
 Hole V. Barlow, which was upheld by the Court of Common Pleas, 
 was simply that the verdict ought to be for the defendant if the place 
 where the bricks were burnt was a convenient and proper place for the 
 purpose. But in the present case, the Lord Chief Justice's direction to 
 the jury pointed at a further condition, viz., if the burning of the 
 bricks was under the circumstances a reasonable use by the defendant 
 of his own land. It remains, therefore, to consider whether the doc- 
 trine adopted in Hole v. Barlow, if accompanied with this addition, 
 is maintainable. 
 
 If it be good law, that the fitness of the locality prevents the carry- 
 ing on of an offensive trade from being an actionable nuisance, it ap-
 
 420 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 pears necessary to follow that this must be a reasonable use of the 
 land. But if it is not good law, and if the true doctrine is, that when- 
 ever, taking all the circumstances into consideration, including the na- 
 ture and extent of the plaintiff's enjoyment before the acts complained 
 of, the annoyance is sufficiently great to amount to a nuisance accord- 
 ing to the ordinary rule of law, an action will lie, whatever the locality 
 may be, then surely the jury cannot properly be asked whether the 
 causing of the nuisance was a reasonable use of the land. 
 
 If such a question is proper for their consideration in an action such 
 as the present, for a nuisance by immitting corrupted air into the plain- 
 tiff's house, we can see no reason why a similar question should not 
 be submitted to the jury in actions for other violations of the ordi- 
 nary rights of property ; e. g. the transmission by a neighbour of wa- 
 ter in a polluted condition. But certainly it would be difficult to main- 
 tain, as the law now stands, that the jury, in such an action, ought to 
 be told to find for the defendant if they thought that the manufactory 
 which caused the impurity of the water was built on a proper and 
 convenient spot, and that the working of it was a reasonable use by 
 the defendant of his own land. Again, where an easement has been 
 gained in addition to the ordinary rights of property, e. g. where a 
 right has been gained to the lateral passage of light and air, no one 
 has ever suggested that the jury might be told, in an action for ob- 
 structing the free passage of the light and air, to find for the defend- 
 ant if they were of opinion that the building which caused the obstruc- 
 tion was erected in a proper and convenient place, and in the reason- 
 able enjoyment by the defendant of his own land. And yet, on prin- 
 ciple, it is difficult to see why such a question should not be left to the 
 jury if Hole v. Barlow was well decided. 
 
 We are, however, of opinion that the decision in that case was 
 wrong, and, consequently, that the direction of the Lord Chief Jus- 
 tice which was founded on it, was erroneous, that the verdict for the 
 defendant ought to be set aside, and a verdict entered for the plaintiff. 
 
 Bramwkll, b. * * * The question seems to me to be, Is this 
 a justification in law, — and, in order not to make a verbal mistake, I 
 will say, — a justification for what is done, or a matter which makes 
 what is done no nuisance? It is to be borne in mind, however, that, 
 in fact, the act of the defendant is a nuisance such that it would be 
 actionable if done wantonly or maliciously. The plaintiff, then, has 
 a prima facie case. The defendant has infringed the maxim, Sic 
 utere tuo ut alicnum non Ijedas. Then, what principle or rule of law 
 can he rely on to defend himself? It is clear to my mind that there 
 is some exception to the general application of the maxim mentioned. 
 The instances put during the argument, of burning weeds, emptying 
 cesspools, making noises during repairs, and other instances which 
 would be nuisances if done wantonly or maliciously, nevertheless may 
 be lawfully done. It cannot be said that such acts are not nuisances, 
 because, by the hypothesis, they are; and it cannot be doubted that,
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 421 
 
 if a person maliciously and without cause made close to a dwelling- 
 house the same offensive smells as may be made in emptying a cess- 
 pool, an action would lie. Nor can these cases be got rid of as ex- 
 treme cases, because such cases properly test a principle. Nor can it 
 be said that the jury settle such questions by finding there is no nui- 
 sance, though there is. For that is to suppose they violate their duty, 
 and that, if they discharged their duty, such matters would be action- 
 able, which I think they could not and ought not to be. There must 
 be, then, some principle on which such cases must be excepted. It 
 seems to me that that principle may be deduced from the character of 
 these cases, and is this, viz., that those acts necessary for the common 
 and ordinary use and occupation of land and houses may be done, if 
 conveniently done, without subjecting those who do them to an action. 
 This principle would comprehend all the cases I have mentioned, but 
 would not comprehend the present, where what has been done was not 
 the using of land in a common and ordinary way, but in an excep- 
 tional manner — not unnatural nor unusual, but not the common and 
 ordinary use of land. There is an obvious necessity for such a prin- 
 ciple as I have mentioned. It is as much for the advantage of one 
 owner as of another ; for the very nuisance the one complains of, as 
 the result of the ordinary use of his neighbour's land, he himself will 
 create in the ordinary use of his own, and the reciprocal nuisances 
 are of a comparatively trifling character. The convenience of such a 
 rule may be indicated by calling it a rule of give and take, live and let 
 live.^ 
 
 ST. HELEN'S SMELTING CO. v. TIPPING. 
 
 (House of Lords, 1865. 11 H. L. C. 642, 11 Eeprint, 1483.) 
 
 This was an action to recover damages for injuries done to the 
 plaintiff's trees and crops, by the defendants' works. The defendants 
 are the directors and shareholders of the St. Helen's Copper Smelting 
 Company (Limited). The plaintiff, in 1860, purchased a large portion 
 of the Bold Hall estate, consisting of the manor house and about 1300 
 acres of land, within a short distance of which stood the works of 
 the defendants. The declaration alleged that: 
 
 "The defendants erected, used, and continued to use, certain smelting 
 works upon land near to the said dwelling house and lands of the plaintiff, 
 and caused large quantities of noxious gases, vapours, and other noxious 
 matter, to issue from the said worljs, and diffuse themselves over the land 
 and premises of the plaiutifl', whereby the hedges, trees, shrubs, fruit, and 
 herbage, were greatly injured ; the cattle were rendered unhealthy, and the 
 
 2 "For instance, annoyance may be caused to my neighbor by what is done 
 in repairing my house in one year, and he in turn will cause me similar an- 
 noyance in another year. But the same considerations do not apply to a 
 noil natural or extraordinary user of land." I'er Farwell, L. J., in West 
 V. Bristol Tramways Company [1908J 2 K. B. 14, 23.
 
 422 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 plaintiff was prevented from liaving so beneficial a use of the said land and 
 premises as he would otherwise have enjoyed, and also the reversionary 
 lands and premises were depreciated in value."' 
 
 The Lord Chancellor (Lord Westbury). * * * j\iy Lords, 
 I think your Lordships will be satisfied with the answer we have re- 
 ceived from the learned judges to the questions put by this House.^ 
 
 My Lords, in matters of this description it appears to me that it 
 is a very desirable thing to mark the difference between an action 
 brought for a nuisance upon the ground that the alleged nuisance pro- 
 duces material injury to the property, and an action brought for a 
 nuisance on the ground that the thing alleged to be a nuisance is pro- 
 ductive of sensible personal discomfort. With regard to the latter, 
 
 3 The history of the case to this point was as follows: The cause, under 
 a plea of Not Guilty, was tried before Mr. Justice Mellor, at Liverpool in 
 August, 1S63. The defendants offered evidence to show that the whole 
 neighborhood was studded with manufactories and tall chimneys, that 
 there were some alkali works close by the defendants' works, that the smoke 
 from one was quite as injurious as the smoke from the other, that the smoke 
 of both sometimes united, and that it was impossible to say to which of the 
 two any particular injury was attributable. The fact that the defendants' 
 works existed before the plaintiff bought the property was also relied on. 
 
 The defendants' counsel submitted that the three questions which ought 
 to be left to the jury were, "whether it was a necessary trade, whether the 
 place was a suitable place for such a trade, and whether it was carried on 
 in a reasonable manner." The learned judge did not put the questions in this 
 form, but did ask the jury whether the enjoyment of the plaintiff's property 
 was sensibly diminished, and the answer was in the affirmative. Whether 
 the business there carried on was an ordinary business for smelting copper, 
 and the answer was, "We consider it an ordinary business, and conducted in a 
 proper manner, in as good a manner as possible." But to the question 
 whether the jurors thought that it was carried on in a proper place, the an- 
 swer was, "We do not." The verdict was therefore entered for the plaintiff. 
 A motion was made for a new trial, on the ground of misdirection, but the 
 rule was refused. 4 Best & S. 60S. Leave was however given to appeal, 
 and the case was carried to the Exchequer Chamber, where the judgment 
 was affirmed; Lord Chief Baron Pollock there observing: "My opinion has 
 not always been that which it is now. Acting upon what has been decided 
 in this court, my Brother JNIellor's direction is not open to a bill of ex- 
 ception." 4 Best & S. 616. This appeal was then brought. 
 
 The judges were summoned, and Mr. Baron Martin, Mr. Justice Willes, 
 Mr. Justice Blackburn, Mr. Justice Keating, Mr. Baron Pigott, and Mr. Jus- 
 tice Shee, attended. For the appellants, who were the defendants in the court 
 below, there was an argument by the Attorney General (Sir R. Palmer) and 
 Mr. Webster, to the effect that the dissent in Bamford v. Turnley, in the 
 Excheqiier Chamber, from tlie doctrine of Hole v. Barlow, was not war- 
 ranted by principle or authority. "Our material question," said the counsel 
 for the appellants, "is the convenience or fitness of the place where the busi- 
 ness is carried on." 
 
 These two questions were thereupon proposed by the Lord Chancellor to 
 the judges: "Whether directions given by the learned judge at Nisi Prius 
 to the jury were correct? or, Whether a new trial ought to be granted in 
 this case?" 
 
 Mr. Baron Martin. My Lords, in answer to the questions proposed by your 
 lordships to the judges, I have to state their unanimous opinion that the 
 directions given by the learned judge to the jury were correct, and that 
 a new trial ought not to be granted. As far as the experience of all of us 
 goes, the directions are such as we have given in these cases for the last 
 twenty years.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 423 
 
 namely, the personal inconvenience and interference with one's enjoy- 
 ment, one's quiet, one's personal freedom, anything that discomposes 
 or injuriously affects the senses or the nerves, whether that may or 
 may not be denominated a nuisance, must undoubtedly depend greatly 
 on the circumstances of the place where the thing complained of ac- 
 tually occurs. If a man lives in a town, it is necessary that he should 
 subject himself to the consequences of those operations of trade which 
 may be carried on in his immediate locality, which are actually neces- 
 sary for trade and commerce, and also for the enjoyment of property, 
 and for the benefit of the inhabitants of the town and of the public at 
 large. If a man lives in a street where there are numerous shops, and 
 a shop is opened next door to him, which is carried on in a fair and 
 reasonable way, he has no ground for complaint, because to himself 
 individually there may arise much discomfort from the trade carried 
 on in that shop. But when an occupation is carried on by one person 
 in the neighbourhood of another, and the result of that trade, or occu- 
 pation, or business, is a material injury to property, then there un- 
 questionably arises a very different consideration. I think, my Lords, 
 that in a case of that description, the submission which is required 
 from persons living in society to that amount of discomfort which 
 may be necessary for the legitimate and free exercise of the trade of 
 their neighbours, would not apply to circumstances the immediate re- 
 sult of which is sensible injury to the value of the property. 
 
 Now, in the present case, it appears that the plaintiff purchased a 
 very valuable estate, which lies within a mile and a half from certain 
 large smelting works. What the occupation of these copper smelting 
 premises was anterior to the year 1860 does not clearly appear. The 
 plaintiff became the proprietor of an estate of great value in the month 
 of June 1860. In the month of September 1860 very extensive smelt- 
 ing operations began on the property of the present appellants, in their 
 works at St. Helen's. Of the effect of the vapours exhaling from 
 those works upon the plaintiff's property, and the injury done to his 
 trees and shrubs, there is abundance of evidence in the case. 
 
 My Lords, the action has been brought upon that, and the jurors 
 have found the existence of the injury ; and the only ground upon 
 which your Lordships are asked to set aside that verdict, and to direct 
 a new trial, is this, that the whole neighbourhood where these copper 
 smelting works were carried on, is a neighbourhood more or less de- 
 voted to manufacturing purposes of a similar kind, and therefore it 
 is said, that inasmuch as this copper smelting is carried on in what 
 the appellant contends is a fit place, it may be carried on with im- 
 punity, although the result may be the utter destruction, or the very 
 considerable diminution, of the value of the plaintift''s property. My 
 Lords, I apprehend that that is not the meaning of the word "suita- 
 ble," or the meaning of the word "convenient," which has been used 
 as applicable to the subject. The word "suitable" unciuestionably can- 
 not carry with it this consequence, that a trade may be carried on in
 
 424 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 a particular locality, the consequence of which trade may be injury 
 and destruction to the neighbouring property. Of course, my Lords, 
 I except cases where any prescriptive right has been acquired by a 
 lengthened user of the place. 
 
 On these grounds, therefore, shortly, without dilating farther upon 
 them (and they are sufificiently unfolded by the judgment of the learn- 
 ed judges in the court below), I advise your Lordships to affirm the 
 decision of the Court below, and to refuse the new trial, and to dis- 
 miss the appeal with costs.* 
 
 Judgment of the Exchequer Chamber, affirming the judgment of the 
 Court of Queen's Bench, affirmed ; and appeal dismissed with costs. 
 
 RUSHMER V. POLSUE & ALFIERI, Limited. 
 (In the Court of Appeal. [1906] 1 Ch. 234.) 
 
 POLSUE & ALFIERI, Limited, v. RUSHMER. 
 (In the House of Lords. [1907] A. C. 121.) 
 
 Appeal from the judgment of Warrington, J., granting a perpetual 
 injunction to restrain a nuisance arising from noise. The facts of 
 the case, as shown by the evidence, were as follows : 
 
 For the last seventeen or eighteen years the plaintiff had been, and 
 he still was, the occupier, and was also the present lessee, of a house. 
 No. 8 Gough Square, Fleet Street, in the City of London, in which he 
 was residing with his family. In a shop on the ground floor he car- 
 ried on the business of a dairyman. 
 
 Gough Square was a small oblong space situate in a district bounded 
 on the east by Shoe Lane, on the south by Fleet Street, on the west 
 by Fetter Lane, and on the north by Holborn. It was a district 
 specially devoted to the printing and allied trades. There was no 
 thoroughfare for wheeled traffic in Gough Square, the only access for 
 such traffic being under an archway in the north-west corner. The 
 plaintiff's house, No. 8, was in the north-east corner. For a house in 
 the heart of the City of London the plaintiff's was, it appeared, in 
 a quiet situation, except for such noises as inevitably arose from neigh- 
 bouring business establishments. No. 7, Gough Square, the house ad- 
 joining the plaintiff's house on the west side, had for some time been 
 occupied by persons maintaining and working machinery, but it ap- 
 peared from the evidence that although in the day time the plaintiff 
 must have been subjected to noise from that source, yet no noisy ma- 
 chinery had been worked at night in that house. Nearly opposite to 
 the plaintiff's house was a large printing establishment, Messrs. Par- 
 don's, in which work on certain days of the week proceeded at night, 
 
 * The concurring oi>juious of Lord Cranworth and Lord Wensleydale are 
 omitted.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 425 
 
 and some distance further away were the printing works of the Daily 
 Telegraph newspaper, which were run regularly at night. The evi- 
 dence, however, shewed that no disturbance at night was caused by 
 noise arising from either of those sources. 
 
 The defendants, Polsue & Alfieri, Limited, were a company carrying 
 on business as printers and publishers at Xos. 4 and 5, Gough Square, 
 and at No. 10, Wine Office Court, which latter house immediately ad- 
 joined the plaintiff's house, being separated therefrom only by a party- 
 wall. No. 10, Wine Office Court, was taken by the defendants in 1904. 
 A printing business had been previously carried on there, though with- 
 out causing the plaintiff any nuisance from noise ; but in September of 
 that year the defendants set up in that house and began to work cer- 
 tain machinery, including a cutter on the ground floor and a printing 
 machine in the basement. The noise of which the plaintiff complained 
 mainly arose from this printing machine, the evidence shewing that 
 no real nuisance arose from the cutter. The printing machine was of 
 an improved type, quieter, it was said, than most machines of the 
 kind, and was properly fixed upon a concrete bed. It was driven by 
 an electric motor, and was usually run at a speed throwing off 1,440 
 impressions per hour; but under exceptional circumstances it might 
 be, and in fact had been, run at a rate of 1,560 impressions. It had 
 always been carefully and properly worked. When first set up it was 
 driven through the medium of a shafting fixed to the ceiling of the 
 room ; but after a complaint by the plaintiff this was altered and the 
 machine was driven by a belt passing directly to it from the motor. 
 In October, 1904, the plaintiff again complained, and on October 21 
 caused a formal letter of complaint to be written by his solicitor. To 
 this no reply was made, and on November 1 the plaintiff issued the 
 writ in this action against the defendants for an injunction to restrain 
 them from so w^orking their machinery and carrying on their printing 
 works at No. 10, Wine Office Court, as, by reason of noise or other- 
 wise, to cause a nuisance or annoyance to the plaintiff as lessee and 
 occupier of the house No. 8, Gough Sc}uare, or to his family, or to the 
 persons inhabiting or resorting to that house. Notice of motion for 
 an injunction was given, but the motion was never heard, the action 
 being by arrangement at once set down for a speedy trial. g 
 
 In their defence to the plaintiff's statement of claim, the defendants 
 denied that their printing machine was being so worked as to cause a 
 nuisance to the plaintiff, and they insisted that, as his premises were 
 situated in the heart of a district almost entirely devoted to the print- 
 ing and allied trades, he was not entitled to an injunction. At the trial 
 oral evidence was given on both sides by several engineering experts 
 as to the general nature and effect of the noises arising from printing 
 and other machines in the neighbourhood. As to the noise caused by 
 the defendants' machine and to the alleged nuisance arising therefrom 
 to the plaintiff and his family, particularly at night, evidence was given 
 by several persons, including, in addition to the plaintiff, his two daugh-
 
 426 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 ters and his son. At the conclusion of the trial, before Warrington, 
 J., which occupied five days of the Michaelmas Sittings, 1904, his 
 Lordship reserved judgment. On January 12, 1905, he delivered his 
 judgment, in which he commenced with the following statement of 
 the legal principles which, in his opinion, were applicable to the case: 
 
 "The question I have to answer is whether the defendants, by working the 
 machine in question, seriously interfei'e with the comfort, physically, of the 
 plaintiff and his family in the occupation of his house according to the 
 ordinary notions prevalent among reasonable English men and women: Wal- 
 ter V. Selfe (1S51) 4 De G. & Sm. 315, 322 ; and for the purpose of answering 
 this question I am not to look at the defendants' operations in the ab.stract 
 and by themselves, but in connection with all the circumstances of the 
 locality, and in particular in reference to the nature of the trades usually 
 carried on there, and the noises and disturbance existing prior to the com- 
 mencement of the defendants' operations: Sturges v. Bridgman, 11 Ch. D. 
 852, 865; St. Helen's Smelting Co. v. Tipping, 11 H. L. C. 642. But if, after 
 taking these circumstances into consideration, I find a serious and not merely 
 a slight additional interference with the plaintiff's comfort as above defined, 
 I think it is the duty of the Court to interfere: Crump v. Lambert, L. R. 
 3 Eq. 409. Tliis seems to me to be the true result of the authorities." 
 
 His Lordship then proceeded to deal with the evidence, and stated 
 the three following definite findings of fact : 
 
 First, that although in the day time the plaintiff must have been subject 
 to some noise from printing works in the immediate neighbourhood, no dis- 
 turbance at night had been caused by noise arising from any of these sources. 
 Secondly, that as regarded the ordinary working hours in the day time, the 
 plaintiff had not proved such a substantial addition to pre-exis"tin.<!; noises 
 as would amount to a legal nuisance. And, thirdly, that the night working 
 of the defendants' machine caused a serious disturbance to the plaintiff and 
 his family such as had not previously been experienced by them. 
 
 His Lordship held this to be a legal nuisance entitling the plaintiff 
 to an injunction. Accordingly he granted a perpetual injunction re- 
 straining the defendants, their workmen, servants and agents from 
 so working their machinery, and so carrying on their printing works, 
 at No. 10, Wine Office Court, as by reason of noise to cause a nuisance 
 to the plaintiff as lessee and occupier of the adjoining house, No. 8, 
 Gough Square, or to his family, or to the persons inhabiting or re- 
 sorting to such house. 
 
 The defendants appealed.*^ 
 
 ' In the Court of Appeal. 
 
 Cozens-Hardy, L. J. This is an appeal from the judgment of 
 Warrington, J., who has granted an injunction restraining the defend- 
 ants from so working a printing machine as to occasion a nuisance to 
 the plaintiff. The plaintiff' has for seventeen years been residing with 
 his family at No. 8, Gough Square, Fleet Street. In the lower part 
 of the house he carries on a milk business. The defendants' machine 
 is next door to the plaintiff's house. The plaintiff's house is situate in 
 a district specially devoted to the printing and allied trades, most of 
 
 5 The arguments of counsel and the opinions of Vaughan Williams and 
 Stirling, L. JJ., both concurring in the dismissal of the appeal, are omitted.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 427 
 
 which are noisy, though not all equally noisy. The district is one in 
 which it is not reasonable to expect the same quiet and freedom from 
 noise as might be looked for in more purely residential neighbour- 
 hoods. Warrington, J., has stated the legal principles which it was his 
 duty to apply as follows. (His Lordship then read from the learned 
 judge's judgment the passage above quoted and proceeded :) In my 
 opinion that is a statement of the law which is not only accurate, but 
 adequate. He then proceeds to deal with the evidence. He does not 
 leave us to infer the conclusions at which he has arrived, for he states 
 certain definite findings of fact. (His Lordship then read the three 
 findings above stated, and proceeded :) In my opinion, it is not right for 
 the Court of Appeal in a case like this to overrule the decision on is- 
 sues of fact of a judge who has seen and heard the witnesses ; and, 
 this being so, I think the appeal must fail. I cannot doubt that the 
 learned judge did apply the legal principles he himself enunciated, and 
 I do not think we ought to embark upon the consideration of the ques- 
 tion whether his mind may not have been influenced by some other 
 legal view than that expressed by him. But some arguments were 
 raised by counsel for the appellants and for the respondent to which 
 I desire shortly to refer. It was strenuously contended by Mr. Duke 
 that a person living in a district specially devoted to a particular trade 
 cannot complain of any nuisance by noise caused by the carrying on 
 of any branch of that trade without carelessness and in a reasonable 
 manner.^ I cannot assent to this argument. A resident in such a 
 
 « In his argniment for the defendant, Duke, K. C, cited the following cases 
 in support of his contention: St. Helen's Smelting Co. v. Tipping (1S65) 11 
 H. L. C. 642; Gaunt v. Fynney (1872) L. R. 8 Ch. 8, 10, 13; Sturges v. 
 Bridgman (1879) 11 Ch. D. 8-52, 86-5; Christie v. Davey, [1893] 1 Ch. 316; 
 Saunders-Clark v. Grosveuor Mansions Co., [1900] 2 Ch. 373; Attorney Gen- 
 eral V. Cole & Son, [1901] 1 Ch. 205; Bamford v. Turnley (1860) 3 B. & S. 
 62. The following cases were distinguished from the case at bar: Crump v. 
 Lambert (1867) L. R. 3 Eq. 409, 414 ; Heather v. Pardon (1877) 37 L. T. 393 ; 
 Bartlett v. Marshall, [1S95] 44 W. R. 251; Crossley & Sons v. Lightowler 
 (1867) L. R. 2 Ch. 478, 481. 
 
 On the local standard of comfort as a test in Nuisance, see also 21 Hals- 
 bury's Laws of England, 531, 532 (1912) ; 29 Cyc. 1157, 1159, and especially 
 notes 33, 47, 48, 49; and the annotations to Rushmer v. Polsue (1906) in 4 
 A. & E. Ann. Cas. 373, 377. 
 
 Compare Gilbert v. Showerman (1871) 23 Mich. 448: (P., the owner of a 
 four-story business building in Detroit, in a part of that city which was 
 chiefly given over to business, occupied the upper part of his building as his 
 dwelling. D. used his adjoining four-story building as a steam-flouring 
 mill. P. sought to enjoin D. from operating his mill, claiming a nuisance. 
 Said Corley, J., in dismissing the bill: "The complainant, having taken up 
 his residence in a portion of the city mainly appropriated to business par- 
 pose.s, cannot complain of any new busine.ss near him, provided such new 
 business is not in itself objectionable as compared with those already estab- 
 lished, and is carried on in a proper manner.") 
 
 EUer V. Koehler (190.3) 68 Ohio St. 51, 67 N. E. 89: (P. sued to recover 
 damages for alleged injuries to her health and her property resulting from 
 the noise and vibrations occasioned by D.'s drop-hammers, in use on his 
 adjoining lot. D. averred that his "said manufacturing plant is situate in a 
 part of the city which is and has been devoted to like business purposes, and 
 was so at the time said plant was constructed." This was not denied by P.
 
 428 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 neighbourhood must put up with a certain amount of noise. The 
 standard of comfort differs according to the situation of the property 
 and the class of people who inhabit it. This idea is expressed by The- 
 siger, L. J., in Sturges v. Bridgman, 11 Ch. D. 852, when he said 
 that what might be a nuisance in Belgrave Square would not be a nui- 
 sance in Bermondsey. But whatever the standard of comfort in a par- 
 ticular district may be, I think the addition of a fresh noise caused by 
 the defendant's works may be so substantial as to create a legal nui- 
 sance. It does not follow that because I live, say, in the manufactur- 
 ing part of Sheffield I cannot complain if a steam hammer is intro- 
 duced next door, and so worked as to render sleep at night almost im- 
 possible, although previously to its introduction my house was a rea- 
 sonably comfortable abode, having regard to the local standard; and 
 it would be no answer to say that the steam hammer is of the most 
 modern approved pattern and is reasonably worked. In short, if a 
 substantial addition is found as a fact in any particular case, it is no 
 answer to say that the neighbourhood is noisy, and that the defendant's 
 machinery is of first-class character.'^ 
 
 It was, on the other hand, urged by Mr. Terrell that any kind of 
 noise occasioning discomfort is actionable unless the defendant can 
 prove a prescriptive right to create a noise. I do not think this argu- 
 ment can be supported, and I see no ground for supposing that War- 
 rington, J., was influenced by it. The lower standard of comfort 
 
 The court was asked by D. to charge the jui'y thus: "In determining the 
 question whether tlie plaintiff has suffered actual, substantial, and material 
 injuries, you may consider the locality of her property and that of the de- 
 fendant, the nature of the business that is being conducted by the defendant, 
 the character of the machinery that he is using, the manner of using the 
 property producing the alleged injuries ; and you may also consider the 
 kinds of business, if any, which are being conducted and carried on in the 
 vicinity of these properties. * * * if you find from the evidence that the 
 plaintiff's property is situated in a populous city, and in the vicinity of otlior 
 shops of the same, or substantially the same, character and kind, then you 
 may consider this fact in determining whether the plaintiff has suffered 
 injuries of the kind named. A party dwelling in a populous city, and in the 
 vicinity of shops and factories, cannot have the same quiet and freedom from 
 annoyances that he would have in the country or in other districts. If these 
 annoyances, should you find them to be such, are either trifling in th<nr 
 nature, or are such as under the particular circumstances of this case do 
 not cause real, substantial, and material injuries, then, so finding, the plain- 
 tiff could not recover." The court refused to so instruct. There was a judg- 
 ment for plaintiff. The refusal of this instruction was held reversible error.) 
 7 Compare Ross v. Butler (1S6S) 4 C. E. Green (19 N. J. Eq.) 294, 307, 97 
 Am. Dec. 654: (P. sought to enjoin D. from operating a pottery on his city 
 lot, in the same block with P.'s dwelling houses; D. answered that this part 
 of the city "is inhabited principally by mechanics and laborers, many of 
 whom use their houses and lots for business punxjses, and that the com- 
 plainants so use their premises." An injunction was granted, Cliancellor 
 Zabriskie remarking: "Here tlie question is whether a dense smoke laden 
 with cinders, caused by the burning of pine wood, and continued for twelve 
 hours, twice in each month falling upon and penetrating the houses and prem- 
 ises of the complainants, at distances varying from forty to two hundred feet, 
 would cause such injury, annoyance, and discomfort, as would constitute a 
 legal nuisance. 1 am of opinion that it would.")
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 429 
 
 existing, say, in Whitechapel would equally exist in one of the numer- 
 ous districts which have sprung up in late years on the outskirts of 
 the City, and which are occupied by persons of the same class as those 
 who occupy the older houses in Whitechapel. In short, prescription 
 has nothing to do with the case. 
 
 In the result I accept Warrington, J.'s findings of fact, and his 
 enunciation of the legal principles applicable to the case, and I think 
 that this appeal must be dismissed. 
 
 The Court of Appeal (Vaughan Williams, Stirling, and Cozens- 
 Hardy, L. JJ.) having affirmed the decision of Warrington, J., the de- 
 fendants appealed. 
 
 In the House of Lords. 
 
 Lord LorEburn, L. C. My Lords, this appeal has been pre- 
 sented to your Lordships with great fairness and propriety ; but to 
 my mind it is a hopeless appeal. There is no question of law that I 
 can see in the case. Warrington, J., laid down the law quite soundly ; 
 nor is it disputed that he did so. 
 
 The law of nuisance undoubtedly is elastic, as was stated by Lord 
 Halsbury in the case of Colls v. Home and Colonial Stores, [1904] A. 
 C. 179, at p. 185. He said: "What may be called the uncertainty 
 of the test may also be described as its elasticity. A dweller in towns 
 cannot expect to have as pure air, as free from smoke, smell, and noise 
 as if he lived in the country, and distant from other dwellings, and 
 yet an excess of smoke, smell, and noise may give a cause of action, 
 but in each of such cases it becomes a question of degree, and the 
 question is in each case whether it amounts to a nuisance which will 
 give a right of action." This is a question of fact. 
 
 It is said, indeed, by the learned counsel for the appellants that 
 Warrington, J., did not carry out his law in the way in which he ap- 
 proached the facts. I cannot see that it is so. There was evidence 
 sufficient to shew that, taking into consideration the character of the 
 locality and the noises there prevailing, yet a serious addition had been 
 caused by the defendants. In my opinion that was quite sufficient to 
 warrant the conclusion arrived at by the learned judge and the Court 
 of Appeal. 
 
 I agree with Cozens-Hardy, L. J., when he says : "It does not fol- 
 low that because I live, say, in the manufacturing part of Sheffield I 
 cannot complain if a steam hammer is introduced next door, and so 
 worked as to render sleep at night almost impossible, although previ- 
 ously to its introduction my house was a reasonably comfortable abode, 
 having regard to the local standard ; and it would be no answer to say 
 that the steam hammer is of the most modern approved pattern and 
 is reasonably worked." 
 
 My Lords, I think that this appeal wholly fails and that it ought 
 to be dismissed with costs.
 
 430 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 PIERSON V. GLEAN. 
 
 (Supreme Court of Judicature of New Jersey, 1833. 2 Green [14 N. J. Law] 36, 
 
 25 Am. Dec. 497.) 
 
 The declaration alleged that the plaintiff was lawfully seized and 
 possessed, on the first day of April, 1831, of certain lands, through 
 which a stream of water had always been accustomed to flow ; that the 
 defendant on the said first day of April, 1831, and from that time con- 
 tinually afterwards, maintained a mill dam across the said stream and 
 thereby caused the waters of the said stream to overflow and drown 
 the plaintiff's land. 
 
 To this declaration the defendant put in three pleas — 1st, the general 
 issue. 2dly, protesting that he never erected or unlawfully maintained 
 the dam, the defendant says that prior to the 26th of July, 1830, he 
 had no title or possession; that on that day he became seized and 
 possessed of the said dam; since which neither the plaintiff or any 
 other person, for him or in his behalf, ever requested the defendant 
 to reform or remove the said dam ; and concludes with a verification, 
 3dly, that the mill-dam was erected, kept up and maintained before 
 the 26th July, 1830, previous to which day the defendant had no title, 
 possession or interest in the said dam — that on that day the defendant 
 became seized and possessed in fee, and has never since been requested, 
 etc. 
 
 To the second and third pleas there is a general demurrer and join- 
 der. 
 
 HoRNBLOWER, C. J. * * * The only question presented to the 
 court upon the pleadings in this case, is, whether an action for con- 
 tinuing a nuisance, will lie against him, who did not erect it, before 
 any request made to him to remove or abate the injury. 
 
 The plaintift''s declaration is not for erecting, but for maintaining 
 and keeping up the dam. 
 
 The defendant says, the dam was erected before he became seized 
 or possessed of the premises, and that the plaintiff did not at any time 
 before the commencement of the action, request him to reform or re- 
 move the injury complained of. This allegation is fully admitted by 
 the general demurrer. 
 
 The law as settled in Penruddock's Case, 5 Co. 101, has never, I 
 believe, been seriously questioned since. In that case it was resolved, 
 that though the continuance of a nuisance by the feofee was a new 
 wrong, yet a quod permittat would not lie against him, without a 
 request made, etc. Ld. Ch. Just. Willes, in Winsmore v. Greenljank, 
 Willes Rep. 583, speaking of the distinction between the beginning and 
 the continuance of a nuisance, by building a house that hangs over or 
 damages another, refers to Penruddock's case ; says the law is cer- 
 tainly so, and the reason obvious. Mr. Chitty, in his treatise on Plead- 
 ing, vol. 1, p. 376, says it is necessary to state a request in declaration.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 431 
 
 for continuing a nuisance erected by another. See 2 Chit, on PI. 334, 
 note c. In the case of Sahiion v. Bensley, Ryan and Moody, 195, 21 
 Engl. Com. L. R. 414, 2 Saund. on Evid. and Plead. 690, the same 
 doctrine is admitted by Abbott, Ld. Ch. Just., though he held that a 
 person who takes premises upon which a nuisance exists, and contin- 
 ues it, takes them subject to all the restrictions imposed upon his pred- 
 ecessors, by the receipt of such a notice, as had in that case been 
 served upon the preceding occupant. 
 
 As well then upon the good sense and common justice of the case, 
 as upon the ground of venerable and unquestioned authorities, I am 
 of opinion, that the demurrer ought to be overruled. 
 
 Judgment for defendant on demurrer.^ 
 
 BONNER v. VvELBORN. 
 (Supreme Court of Georgia, 1849. 7 Ga. 296.) 
 
 In 1843 Alfred Welborn erected a mill-dam on his own land, ad- 
 joining the property known as the Meriwether Warm Springs, then 
 the property of Seymour R. Bonner. In 1845. Seymour R. Bonner 
 sold and conveyed this property to the plaintiff in error, Robert Bon- 
 ner. 
 
 In 1847, Robert Bonner brought an action against Alfred Welborn, 
 alleging that he had been damaged $20,000, because the defendant on 
 November 1, 1843, and on divers other days and times between that 
 date and the commencement of this suit had erected a mill-dam with- 
 in 400 yards of certain medicinal springs and a hotel of which the 
 plaintiff was possessed and thus had caused the water to stagnate and 
 plaintiff's premises to become unhealthy, with the result that plaintiff's 
 hotel business fell oft'. At the trial, no request by the plaintiff to the 
 defendant to abate the nuisance was proven. 
 
 The court charged the jury, that the erection of the mill-pond by the 
 defendant, on his own land, being a lawful act, it was necessary that 
 the plaintiff should request the defendant to abate it, or give notice to 
 that effect, before he could maintain this action ; and the mill-dam, as 
 shown by the proof, having been erected before the plaintiff purchased 
 the land, or went into possession of the springs, he could not maintain 
 this action for its erection or continuance, until he had requested the 
 defendant to take it down. 
 
 NiSBET, J* * * The circuit judge ruled, that the defendant 
 was not liable in this case, but upon request, or notice to abate the nui- 
 sance. That decision is also excepted to, and is the only other question 
 made. The plaintiff is the grantee of the property, holding title of 
 Seymour Bonner, who was the owner at the time the mill-dam was 
 
 8 The statement of the case is abridged, and pait of the opinion is omitted.
 
 432 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 built. The defendant, Welborn, erected the mill-dam, and is still 
 the owner. The mill-pond did not prove a nuisance, until after the 
 plaintiff bought and went into possession of the springs. At this bar, 
 it is insisted, that an action for damages does not lie in favor of him 
 who is the feofee or assignee of the owner, at the time the nuisance 
 was erected, against him who erected it, without request. This prop- 
 osition, I do not think, is sustainable, either upon principle or au- 
 thority. 
 
 A private nuisance, is anything done to the hurt or annoyance of 
 the lands, tenements, or hereditaments of another. 3 Black. 170. If, 
 for example a person keeps his hogs or other noisome animals so near 
 the house of another, that the stench of them incommodes him, and 
 makes the air unwholesome, this is an injurious nuisance, as it tends 
 to deprive him of the use and benefit of his house. 9 Coke, 58 ; 1 Bur- 
 row, 337 ; 3 Black. Com. 217, If one does any other act, in itself law- 
 ful, which yet being done in that place, necessarily tends to the dam- 
 age of another's property, it is also a nuisance. So closely, says Black- 
 stone, does the law of England enforce that excellent rule of gospel 
 morality, of "doing to others, as we would that they should do unto 
 ourselves." Let this suffice to show what a nuisance is, and that the 
 act complained of in this instance is a nuisance. The obligation of 
 each citizen is, to use his own property in such a way as not to do 
 hurt or damage to the property of another. If he does not, he creates 
 a nuisance, and is liable to respond in damages ; and this, although the 
 use to which he applies his property is, in itself, lawful. The condi- 
 tion upon which he uses his property is, that no one shall be injured 
 thereby. The rule is of universal application ; no one is exempt from 
 its operation ; nor does the obligation depend upon the time when, or 
 the manner in which, he becomes owner. Eo instanti in which the 
 use of his property becomes injurious to another, it is a nuisance, and 
 he is liable in damages. This liability depends upon no other fact or 
 circumstance — if the nuisance exists, if the damage is proven, the law, 
 without more, attaches to him the liability. The law devolves upon 
 him the burden of seeing to it, that in the use of his property, he does 
 no injury to his neighbor. There is, therefore, no condition precedent 
 to the recovery of the person injured in his property, or the use of it. 
 The conclusion from these principles, is irresistible, that he who does 
 hurt or damage to another, in the use of his own property, is liable, 
 without notice or request. * * * » 
 
 The statement of facts is abridged, part of the opinion of Nishet, J., 
 and the concurring opinion of Lumpkin, J., and the dissenting opinion of 
 Warner, J., are omitted.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 433 
 
 MURTHA V. LOVEWELL. 
 
 (Supreme Judicial Court of Massachusetts, 1S96. 166 Mass. 391, 
 44 N. B. 347, 55 Am. St. Rep. 410.) 
 
 Report from Supreme Judicial Court, Suffolk County ; Oliver Wen- 
 dell Holmes, Judge. The case was reported to the full court for 
 decision. 
 
 Lathrop, J. The defendants do not now contend that their fur- 
 nace for melting iron was not properly found by the justice of this 
 court who heard the case to be a nuisance at common law, but they 
 seek to justify their acts on the ground of certain so-called "licenses," 
 issued by the mayor and aldermen of Chelsea, under Pub. St. c. 
 102, §§ 40-48. The first of these appears to be merely a street per- 
 mit to use a portion of the street in front of the premises for the de- 
 posit of building materials. On March 5, 1895, a license to erect a 
 furnace for melting iron was granted to the defendants, with the 
 provision that they build a stack 25 feet in height above the roof of 
 the building, with a suitable spark arrester placed upon the top there- 
 of. Due notice was given of the application for such a license, in 
 accordance with section 41 of chapter 102 of the Public Statutes. A 
 copy of this order was served upon the defendants, but, through some 
 mistake, the height of the stack above the roof was stated to be 20 
 feet, instead of 25 feet. Thereupon the defendants proceeded to 
 erect their stack only 20 feet high above the roof. Subsequently, this 
 mistake was discovered, and the defendants filed a petition that 
 the board of aldermen should revise the order by striking out the 
 word "five" after the word "twenty" ; and on May 4, 1895, the for- 
 mer action of the board was rescinded, and a new license was issued, 
 to maintain a steam engine and boiler, also to melt iron, etc., on 
 condition that the chimney on said building be 20 feet high, and capped 
 with a suitable spark arrester. No notice, however, was given to 
 any one on this petition. 
 
 We are of opinion that the defendants show no ground of defense. 
 They did not comply with the license of March 5, 1895, although 
 perhaps through no fault of theirs ; and the license of May 14, 1895, 
 cannot avail them, because no notice was given, as provided in section 
 41, above referred to. If the case stopped here, the plaintiff would 
 be entitled to an injunction to restrain the defendants from continuing 
 the nuisance, and to the damages which had been assessed for the 
 injury already done to the plaintiff's premises. But it was stated by 
 counsel on both sides at the argument that, since the case was reported 
 to this court, the defendants had obtained a license, in proper form, 
 after due notice, to continue their business ; and we have been re- 
 quested to consider the question whether, under the sections above 
 referred to, a license is any defense to this bill in equity for a private 
 Hepb.Tobts — 28
 
 434 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 nuisance. If it is a defense, it is obvious that an injunction should 
 not be granted; and the plaintiff will be entitled only to the damages 
 which he has sustained, and which, by agreement of parties made 
 at the argument, is to be the sum found by the justice who heard 
 the case. We are of opinion that it is well settled in this common- 
 wealth that, under statutes similar to the one before us, where a 
 license is granted by a local board, and the licensees are complying 
 with the license, what they do cannot be considered as a nuisance or 
 be restrained by this court. 
 
 In Com. V. Parks, 155 Mass. 531, 30 N. E. 174, it is said by Mr. 
 Justice Holmes : "It is settled that, within constitutional limits not 
 exactly determined, the legislature may change the common law as 
 to nuisances, and may move the line either way, so as to make things 
 nuisances which were not so, or to make things lawful which were 
 nuisances, although, by so doing, it affects the use or value of prop- 
 erty." Under St. 1845, c. 197, § 1, which is similar in its language to 
 Pub. St. c. 102, § 40, it was said in Call v. Allen, 1 Allen, 137, 142, 
 143, that, the power being vested in the ofificers named in the statute 
 to grant licenses, "it is an inevitable implication from its exercise in 
 making and recording an order prescribing rules, restrictions, and 
 alterations as to the building in which the furnace or engine is con- 
 structed, and other provisions for the safety of the neighborhood, that 
 the owner may thereafter, by conforming to and observing all the 
 terms and requirements of the order, lawfully continue to maintain, 
 use, and work them." And again : "The further prosecution of his 
 business by the defendant, by the use of his engine, was lawful; and 
 his mills and works could afterwards be justly complained of only 
 when he should fail in any respect to comply with the requirements 
 of the order, or should act contrary to or in violation of its provi- 
 sions." 
 
 This question was considered at length in Sawyer v. Davis, 136 
 Mass. 239, 241, 242, 245, 49 Am. Rep. 27. In that case, after this 
 court had determined on a bill in equity that the ringing of a bell on 
 a mill was a private nuisance to the plaintiff, and after a final injunc- 
 tion was issued restraining such ringing, the legislature passed a stat- 
 ute authorizing manufacturers, for the purpose of giving notice to 
 employes, to ring bells and use whistles and gongs of such size and 
 weight, and in such manner, and at such hours, as the board of alder- 
 men of cities and selectmen of towns might designate. The select- 
 men of the town where the mill was situated granted a license to the 
 owner to ring the bell on the mill at the hour at which he was pre- 
 vented from ringing it by the injunction. It was held on a bill of re- 
 view brought by the millowner, seeking to have the injunction dis- 
 solved, that the statute was constitutional, and that the bill could be 
 maintained. It was said in the opinion: "And, when the legislature 
 directs or allows that to be done which would otherwise be a nuisance,
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 435 
 
 it will be valid, upon the ground that the legislature is ordinarily the 
 proper judge of what the public good requires, unless carried to such 
 an extent that it can fairly be said to be an unwholesome and un- 
 reasonable law." See, also, Com. v. Rum ford Chemical Works, 16 
 Gray, 231; Alter v. Dodge, 140 Mass. 594, 5 N. E. 504; White v. 
 Kenney, 157 Mass. 13, 31 N. E. 654. The case of Ouinn v. Light Co., 
 140 Alass. 106, 3 N, E. 200, upon which the plaintiff relies, was de- 
 cided upon the ground that a license under Pub. St. c. 102, § 40, to 
 run a steam engine, if it included authority to run any kind of ma- 
 chinery, was broader than the statute; that the machinery, therefore, 
 might, by its noise, be a nuisance, for which an action for damages 
 would lie. 
 
 In the case at bar, the nuisance appears to have been caused by the 
 spark arrester not preventing sparks and small pieces of red-hot iron 
 from falling upon the vacant lot of the plaintiff, but "the authority 
 to do an act must be held to carry with it whatever is naturally inci- 
 dental to the ordinary and reasonable performance of that act." Saw- 
 yer V. Davis, 136 Mass. 245, 49 Am. Rep. 27. The presiding justice 
 has stated that he was satisfied that, on the evidence, this spark ar- 
 rester was the best one known for the purpose, and so found it to be 
 suitable, and that the furnace and chimney were managed with all 
 the precaution practicable for the business. Under the statutes above 
 referred to, which apply to this case, we are of opinion that there is 
 enough to show that the legislature intended the license to cover the 
 whole question, and to authorize the doing of the business with rea- 
 sonable care. We are also of the opinion that the finding of the 
 single justice shows that the business was conducted with such care. 
 Assuming that there was a proper license, w-e are therefore of opin- 
 ion that the plaintiff is not entitled to an injunction, but is only en- 
 titled to recover the damages which have been assessed. Decree ac- 
 cordingly. 
 
 BRANAHAN v. HOTEL CO. 
 (Supreme Court of Ohio, 1883. 39 Ohio St. 333, 48 Am. Rep. 457.) 
 
 The Cincinnati Hotel Company had obtained a judgment in the 
 District Court against Branahan and others, owners and drivers of 
 hackney coaches, perpetually enjoining them from using the street 
 in front of the plaintiff's property as a hackney coach stand. It ap- 
 peared that this use of the street was under the authority of a city ^ 
 ordinance. The defendants move to file a petition in error to the 
 District Court. 
 
 Johnson, C. j. * + * fhe City is clothed with power over the 
 streets, and is charged with the duty of keeping them open for public 
 use and free from nuisance. It may enlarge these general public uses
 
 436 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 without infringing the rights of the adjacent owner, but where addi- 
 tional burdens are imposed even for a public purpose, which materially 
 impair the incidental property right of the lot owner, equity will en- 
 join, until compensation is made. Railway v. Lawrence, 38 Ohio St. 
 41, 43 Am. Rep. 419; Street Railway v. Cumminsville, 14 Ohio St. 
 524; Crawford v. Village of Delaware, 7 Ohio St. 459. This ordi- 
 nance granted a permanent use of the street for mere private uses. 
 As well might the city authorize permanent booths or structures for 
 the use of dealers in various articles of trade. Having no rent to pay, 
 the occupants could accommodate the public at better rates. 
 
 The supervision and control of the public highways of a city is a 
 public trust, and while additional uses may be imposed, not subversive 
 of, or impairing the original use, such as laying down gas and water 
 mains; yet the rights of the public to use it as a street, and of tha 
 adjacent lot owner to enjoy it as the means of access to his property, 
 cannot be materially impaired. 
 
 The city has the right to regulate hackney coaches (R. S. § 1692), 
 and also the right to appropriate private property for the use of the 
 corporation, but it has no power to appropriate the easement of an 
 adjacent owner to a mere private use. This permanent occupancy of 
 the streets cutting off access to the plaintiff's store rooms, for the 
 convenience and benefit of a private business, cannot be justified on 
 the plea that the public who use hacks are accommodated more readily 
 and on better terms. 
 
 The same would, doubtless, be the case with other kinds of business 
 located in the streets. The finding of the court is, that the use com- 
 plained of deprives the owner of all access to his premises. 
 
 Even if, as is suggested, this is in the nature of a public use, like 
 a market, the city could not appropriate it to such use without pro- 
 ceeding according to law as settled in the cases already cited.^° 
 
 Motion overruled. 
 
 10 A portion of the case Is omitted. 
 
 Compare Bacon v. Boston (1S91) 154 INIass. 100, 28 N. E. 9, and the remark 
 of C. Allen, J.: "The general rule is that the legislature may authorize 
 small nuisances without compensation, but not great ones. Sawyer v. Davis, 
 136 IMass. 239, 243 [49 Am. Rep. 27]. But it will not be assumed that the 
 legislature intended to authorize a nuisance unless this is the necessary 
 result of the powers granted." 
 
 And see 29 Cyc. 1196 et seq.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 437 
 
 III. Trover and Conversion " 
 
 (A) Nature of the Tort 
 
 (a) Trover and Conversion Distinguished from Other Torts. 
 
 PUT and HARDY v. RAWSTERNE et al. 
 
 (Court of King's Bench, 1GS2. Sir T. Eaym. 472, S3 Reprint, 246.) 
 
 Trover of divers goods. The defendant pleads an action of trespass 
 vi & armis brought against them formerly, for taking and disposing of 
 the same goods ; and upon not guilty pleaded, a verdict for the de- 
 fendants : judgment si actio. The plaintiff demurs; and adjudged 
 for the plaintiff in this action of trover, because trover and trespass 
 are actions sometimes of a different nature; for trover will some- 
 times lie where trespass vi & armis will not lie ; as if a man hath 
 my goods by my delivery to keep for me, and I afterwards demand 
 them, and he refuses to deliver them, I may have an action of trover, 
 but not trespass vi & armis because here was no tortious taking: and 
 sometimes the case may be such, that either the one or the other will 
 
 11 A Declaration in Trover and Conversion, in tlie Case of Bancks v. 
 Jeans (1735), the Pleader's Assistant (1795) 509: 
 
 "To wit. Robert Bancks, Esq., complains of Thomas Jeans, in custody, 
 &c, for this, that whereas the said Robert upon the first day of May in the 
 year of our Lord one thousand seven hundred and thirty-five, at Basiustoke, 
 in the county of Southampton, was possessed of divers goods and chattels, 
 that is to say, of thirty ton weight of paving stones, thirty ton weight of 
 other stone for building, three thousand bricks, and ten cart loads of timber, 
 of the value of sixty pounds, as of his own proper goods and chattels, and be- 
 ing so possessed thereof, the said Robert afterwards, that is to say, en the 
 same day and year abovesaid, at Basinstoke aforesaid, casually lost the said 
 goods and chattels out of his hands and possession, which said goods and 
 chattels afterwards, to wit, on the same day and year abovementioned, at 
 Basinstoke aforesaid, came to the hands and possession of the said Thomas 
 by finding the same, yet the said Thomas well knowing the said goods and 
 chattels to be the proper goods of him the said Robert, and of right to belong 
 and appertain to him, but devising and fraudulently intending, craftilly 
 and subtilly to deceive and defraud the said Robert of the said goods and 
 chattels, hath not delivered the said goods and chattels, nor any of them 
 to the said Robert (although often requested so to do) but afterwards, that 
 is to say, upon the second day of May. in the year aforesaid, at Basingstoke 
 aforesaid, converted and disposed of the said goods and chattels to his own 
 use, to the damage of the said Robert sixty pounds, and thereupon he brings 
 his suit." 
 
 See also the form of the declaration in Stephen on Pleading (Williston's 
 Ed. 1895) 44, and in Whittier's Cases on Pleading, 195. 
 
 Under the Judicature Acts (1875), the following is a sufficient statement 
 of claim in Trover and Conversion : 
 
 "The plaintifl; has suffered damage by the defendant wrongfully depriving 
 him of a gold watch belonging to the plaintiff, and converting the same to his 
 own use after a demand from the plaintiff for its delivery. The plaintilf 
 claims £40. damages." Cunningham and Mattinson, Precedents 509 (1SS4). 
 
 For the different uses of the term "Consersion"' see Black's Dictionary, 
 "Conversion in Law" and "Conversion in Equity," and 9 Cyc. 824.
 
 438 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 lie; as where there is a tortious taking away of goods, and detaining 
 them, the party may have either trover or trespass, and in such case 
 judgment in one action is a bar in the other. And the rule for this 
 purpose is, that wheresoever the same evidence will maintain both the 
 actions, there the recover}'- or judgment in one may be pleaded in bar 
 of the other; but otherwise not; and so this judgment will not clash 
 with Ferrer's Case,^- which is good in law; for here it is to be pre- 
 sumed that the plaintiffs in the first action had mistaken their action; 
 for that they had brought a trespass vi & armis, whereas they had no 
 evidence to prove a wrongful taking, but only a demand and denial, 
 and therefore the verdict passed against them in that action, and so 
 were forced to begin in this new action of trover. This judgment was 
 given positively by Pkmberton, Jonjes and myself, Dolbj^n hsesitante. 
 
 LACON V. BARNARD, Attorney. 
 (Court of Common Pleas, 20 Jac. I. Cro. Car. 35, 79 Reprint, 635.) 
 
 Trover and conversion of one hundred sheep, shewing that the plain- 
 tiff upon the twenty-fifth day of March, 19 Jac. I, was possessed of 
 those goods and lost them, and that upon the last day of April they 
 came to the defendant's hands, who the same day sold and converted 
 them to his proper use. 
 
 The defendant for eleven of them pleaded not guilty; and as to the 
 eighty-nine, the residue, he pleaded, that the plaintiff at another time, 
 viz. on the eighteenth day of September, 19 Jac. I, prosecuted an orig- 
 inal writ out of the Chancery, returnable in this Court, against the 
 defendant and one Brian Smith, quare ceperunt et abduxerunt 100 
 oves; and thereto they appeared, and the plaintiff counted against 
 them of their taking of a hundred sheep upon the fourteenth day of 
 April, 19 Jac. I ; and thereto they pleaded not guilty for the eleven 
 sheep, and for the eighty-nine residue they pleaded a recovery in debt 
 by the defendant against Edward Hatcliff of a debt of sixty pounds ; 
 and that the said Edward Hatcliff was then possessed of the said eighty- 
 nine sheep, and that by virtue of a fieri facias those goods were sold 
 to him, whereupon he took them into his custody. The plaintiff' there- 
 to replied, and took issue, and found for him, and damages assessed 
 to twopence: and thereupon the plaintiff had judgment of the said 
 twopence damages, and had six pounds for costs ; and avers, that the 
 said taking and driving, for which the recovery in trespass was had, 
 and the conversion of the said eighty-nine sheep in this action be all 
 one, and that the said judgment is yet in force. 
 
 To this plea the plaintiff replies, that true it is he brought such an 
 action, and recovered the twopence for the taking and driving of the 
 
 12 Ferrer's Case (1509) 6 Co. 7a. And see Ferrers v. Arden (159S) Cro. 
 Eliz. 008, 78 Reprint, 906.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 439 
 
 said eighty-nine sheep, and six pounds for costs ; but he farther saith, 
 that the twopence damages was not assessed for the value of the said 
 sheep and the conversion of them, and that the said defendant, at the 
 day and year in the bill, sold the said eighty-nine sheep and converted 
 them to his own use : the which conversion is the same conversion 
 whereof he now complaineth ; and traverseth, that the said taking and 
 driving in the said action, whereupon the judgment was given, is the 
 same trespass as to the conversion of those goods whereof the plain- 
 tiff now declareth. 
 
 Upon this replication the defendant demurred generally : and it 
 was now argued at the Bar by Serjeant Crew, for the defendant, and 
 by Serjeant Henden, for the plaintiff; and after the said arguments 
 at the Bar, it was resolved 
 
 By HuTTON, Harvey, and myself, that this replication is good, and 
 that the plaintiff ought to recover; for the damages of twopence given 
 for the eighty-nine sheep being so small, is in itself an implication (and 
 the Court shall so intend it) that it was given only for the taking and 
 driving of them, and that the plaintiff had them again, and not in lieu 
 of the value of them; for if it should be given for the value of them, 
 then the plaintiff should thereby lose the property in them and have 
 nothing for his sheep but twopence, and the defendant should have 
 the sheep : but the law will rather intend (and so it may be averred) 
 that those damages were given only for the taking and driving, and 
 that the plaintiff had them again, and afterwards lost them, and that 
 the defendant found and after converted them, &c. : and this demur- 
 rer is a confession that he converted them after the said taking and 
 driving; for the action of trespass is supposed to be upon the 14th 
 April, 19 Jac. I, and the trover and conversion in this action is sup- 
 posed to be upon the 30th April, 19 Jac. I, which well stands with the 
 former action ; for the defendant may take and chase them one day, 
 and the plaintiff recover damages for the chasing, and after lose them, 
 &c. And this first action is brought for the first taking and chasing, 
 and the second for the conversion, so both may stand together, which 
 is now confessed by the demurrer, and that the damages were given 
 for the first taking and driving and not for the conversion ; therefore 
 they conceived the plaintiff should recover. 
 
 But Yelverton held, because the action of trespass is cepit et ab- 
 duxit, therefore it includes that the defendant had them, and ousted 
 the plaintiff of the possession : and although the damages be small, it 
 shall be intended to be given for the sheep ; and if so, then he cannot 
 have an action for converting them afterward. 
 
 But judgment was given for the plaintiff.
 
 440 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 AMERICAN UNION TELEGRAPH CO. v. MIDDLETON. 
 
 (Court of Appeals of New York, ISSO. SO N. Y. 408.) 
 
 Miller, J. This action was brought to recover damages for wrong- 
 fully and maliciously cutting down, and unlawfully carrying away and 
 converting twenty-three telegraph poles, wires, and insulators attached 
 thereto, located in the State of New Jersey, and forming a part of a 
 continuous line of telegraph in operation in that State. An order of 
 arrest was granted, the defendant held to bail, and a motion to vacate 
 the order was denied. The defendant appealed to the General Term, 
 where the order was affirmed and an appeal was taken to this court. 
 
 The question presented is whether an order of arrest can be law- 
 fully granted in such a case. The telegraph poles, with the wires 
 and attachments thereto, which, it is alleged, were cut down by the 
 defendant, were affixed to the soil of a highway, and constituted a 
 part of the freehold. The Electric Tel. Co. v. Overseers, 24 L. J. (N. 
 S.) 146. As they could not be cut down without an entry on the realty, 
 and this constitutes a material part of the damages, the only action 
 which can properly be brought is an action of trespass quare clausum 
 f regit. This is clearly manifest ; and as such action is local in its 
 character, by the statute as well as by the common-law, it will not lie 
 in this State, where the land is located in another State. Watts' 
 Adm'rs v. Kinney, 23 Wend. 484. In the case last cited it was held 
 that although the courts will entertain actions which are in their nature 
 transitory, notwithstanding they arise abroad, actions for trespass quare 
 clausum f regit, ejectment, etc., where the land lies in a foreign coun- 
 try, cannot be tried here. 
 
 It is claimed that the damage to the real estate is not the cause of 
 action ; and as the tortious acts were committed upon the highway 
 where the defendant had a right to be, there could be no trespass on 
 the close. The answer to this position is that the plaintiff had af- 
 fixed their poles to the realty, and the cutting away of the same was 
 a trespass for which damages could only be recovered by an action 
 quare clausum fregit. 
 
 It is also insisted that the gravamen of the complaint was for carry- 
 ing away and converting the poles which were severed, and were per- 
 sonal property after the cutting, even if they were a part of the realty 
 previously. It is quite obvious that the cutting of the poles and the 
 removal of them was one continuous and uninterrupted transaction, 
 inseparably connected together, which constituted a single cause of ac- 
 tion which cannot be divided into two actions, one for the cutting and 
 another for the conversion. The one was a part of the other, and the 
 conversion so coupled with the cutting that they were the same, and 
 both of them are thus made local. Howe v. Willson, 1 Denio, 181. 
 
 Conceding, however, that the poles and wires could have been made
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 441 
 
 the subject of a conversion after they had been severed from the soil, 
 we think that the affidavits estabhsh that no such separate conversion 
 actually took place. The defendant only carried them from the place 
 where they were cut and from the highway to the ditches and side 
 fences of the road, and left them there or placed them on the side 
 fences by the road-side. There was no assumption of possession, no 
 attempt to exercise control, or to convert them to his own use. But 
 even if there was, the only damages which could be recovered in such 
 a case would be the actual value of the poles and wires, which would 
 be merely nominal when compared with the amount of damages ($5,- 
 000) which the plaintiff claims to recover, and for which sum the de- 
 fendant was held to bail in this action. It is very evident from the 
 plaintiff's affidavits that there was no legal conversion, and that it 
 could not take place without a removal of the poles and wires for the 
 purpose of taking them away from the plaintiff, or by the exercise of 
 some dominion over them by the defendant for the benefit of himself 
 or of some other person. The mere act of removal, of itself, inde- 
 pendent of any claim over them in favor of the defendant, or any one 
 else, does not am.ount to the conversion of the poles, wires and insula- 
 tors : Addison on Torts (3d Ed.), 309. * * * 
 
 It follows that the order of the Special and General Terms must be 
 reversed. * * * is 
 
 WILLIAMS V. GESSE. 
 
 (Court of Common Pleas, 18.37. 3 Bing. [N. C] 849, 132 Reprint, 637, 
 
 43 R. R. 822.) i* 
 
 Trover for a coat and pantaloons. Plea, not guilty. The defendant 
 kept a public house at Oxford, frequented by farmers. The plain- 
 tiff's clothes, packed in a box, were deposited in the defendant's 
 kitchen, behind the settle, by a person who said the box was to stay 
 till called for. The box was never seen again by the plaintiff, but 
 when he enquired for it, the defendant said, "I suppose it's behind 
 the settle." 
 
 Verdict for the plaintiff, with leave for the defendant to move to 
 enter a nonsuit instead, on the ground that there was no evidence of 
 any conversion. 
 
 13 Part of the opinion is omitted. 
 
 Compare: Radway v. Duffy (1903) 79 App. Div. 116, SO N. T. Supp. 334: 
 (D. entered without right upon the laud of P., and dug up and carried 
 away 6,000 cubic yards of earth, and used it in grading a public street, for 
 which D. had a contract.) 
 
 McGonigle v. Atchison (1885) 33 Kan. 726, 7 Pac. 550: (P. sued to recover 
 for 200,000 bushels of sand dug out of his land in Missouri by D., and by 
 him taken into Kansas and there converted to his own use.) 
 
 14 For the report of this case at nisi prius, see Williams v. Gessey (1837) 
 7 Car. & P. 777.
 
 442 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 Ludlow, Scrjt., having obtained a rule nisi accordingly, 
 
 V. Lee appeared for the plaintiff; but upon reading the learned 
 Judge's report, as above. 
 
 The rule was made absolute. 
 
 In a similar action by a sister of the plaintiff against the same de- 
 fendant, it was proved that the defendant received parcels for car- 
 riers; that the parcels were accustomed to be placed behind the set- 
 tle; and when application was made for the parcel in question, the 
 defendant's wife said, "My husband has sent it, no doubt, by Croft, 
 the carrier: he has a bad memory; it's a pity you did not speak to 
 me." Verdict for the defendant. 
 
 V. Lee, in Easter Term, moved for a new trial, on the ground that 
 the language of the wife showed that the defendant had interfered 
 by giving directions, which would amount to a conversion. 
 
 Sed PER Curiam: What was there to go to the jury? Was there 
 anything but negligence? That will not support the action.^^ 
 
 Rule refused. 
 
 15 Accord: Mulgrave v. Ogden (1591), Cro. Eliz. 219, 78 Reprint 475: 
 (Action sur trover of twenty barrels of butter; and counts that be tarn 
 negligenter custodivit that they became of little value. Upon this it was 
 demurred, and held by all the justices, that no action upon the case lieth 
 in this case ; "for no law compelleth him that finds a thing to keep it safely ; 
 as if a man finds a garment, and suffers it to be moth-eaten ; or if one finds 
 a horse, and giveth it no sustenance: but if a man finds a thing and useth 
 it, he is answerable, for it is conversion: so if he of purpose misuseth it; 
 as if one finds paper, and puts it into the water, &c. but for negligent keep- 
 ing no law punisheth him.") Owen v. Lewyn (1672) 1 Ventr. 22?j, 86 Re- 
 print, 150; Ross V. Johnson (1772) 5 Burr. 2S25; Bowlin v. Nye (1852) 10 
 Gush. (Mass.) 416; Wamsley v. Atlas S. S. Co. (1901) 168 N. Y. 533, 61 N. E. 
 896, 85 Am. St. Rep. 699. 
 
 Compare Central Railroad & Banking Co. v. Lampley (1884) 76 Ala. 357, 52 
 Am. Rep. 334: (Action against a railroad company to recover damages for 
 the alleged conversion of money which the plaintiff sent in a registered 
 letter addressed to L., at a station on the defendant's line. The defendant 
 was engaged in transporting the mail, and in this capacity received the 
 letter' in question. The letter never reached its address. The complaint 
 contained only one count, in trover for conversion of the money, not stating 
 any other facts. Plea, not guilty. The trial court charged that "it is no 
 answer to this complaint that the money was lost through the defendant's 
 want of proper care." Said Clopton, J., delivering tlie opinion of the re- 
 viewing court: "The essential element of a conversion is malfeasance. 
 The action will lie against a common carrier, for a misdelivery, or an ap- 
 propriation of the property to his own use, or for any act of dominion or 
 ownership antagonistic to, and inconsistent with tlie plaintiff's claim or 
 right. But trover will not lie against a carrier, for goods lost by accident 
 or stolen, or for non-delivery, unless there be a refusal to deliver while having 
 possession ; nor for any act or omission, which amounts to negligence merely, 
 and not to an actual wrong. Packard v. (ietman, 4 "Wend. [N. Y.] 613, 21 
 Am. Dec. 166; Magnin v. I>insmore, 70 N. Y. 410, 26 Am. Rep. 608. So also 
 a bailee is not liable for a conver.sion, who deals negligently with goods 
 intrusted to him. Heald v. Carey (1852) 11 C. B. 977. On like principles, 
 trover will not lie against a mail-contractor, for money lost by negligence, 
 or stolen, unless the theft was authorized by him. We do not understand, as 
 is insisted on, that the evidence shows, or tends to show, that the defendant 
 is guilty of any wrongful disposition, or appropriation, or withholding of tlie 
 letter containing the money, other than a failure to deliver on the com-
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 443 
 
 OLIVAXT V. BERING. 
 (Court of King's Bench, 1743. 1 Wils. 23, 95 Reprint, 471.) 
 
 In trover for some pictures it was moved, that plaintiff should be 
 obliged to take the pictures and costs upon an aftidavit that they are all 
 the goods that the defendant has of the plaintiff, and that not denied. 
 
 But PER Cur: This action is for damages; and you cannot oblige 
 the plaintiff to accept the thing itself,^^ 
 
 ALLEN V. FOX. 
 
 (Court of Appeals of New Yorli, 1873. 51 N. T. 562, 10 Am. Rep. &41.) 
 
 This action was brought to recover the possession of a horse. The 
 horse had been taken in the action, and delivered to the plaintiff and 
 retained by him to the time of the trial. There was conflicting evi- 
 dence as to the title of the horse, but the jury found the title to be 
 
 mencement of the suit. It appears that the letter was stolen by some one; 
 but whether by a third person, or a servant of the defendant, the defendant 
 is not liable as for a conversion. In Conner & Johnson v. Allen & Reynolds, 
 33 Ala. 515. it was said: 'Trover is one of the actions, the boundaries of 
 which are distinctly marked, and carefully preserved by the Code. A con- 
 version is now, as it has ever been, the gist of that action, and without 
 proof of it the plaintiff can not recover, whatever else he may prove, or 
 whatever may be his right of recovery in another form of action.' On the 
 facts shown by the record, the defendant is not liable as for a conversion 
 of the money. Reversed and remanded. "j 
 
 See, on the general bearings of this question, the article by Professor 
 Emliu MeClain in 14 Columbia Law Rev. 632, 639 (1914). 
 
 16 "Note: In Buxton and Gabell, Trin. 9 G. I, trover for a ring; and 
 Pas. 9 or 10 G. II, in trover for goods, this Court refused the like motion." 
 
 See also Harding v. Wilkin (1754) Sayer, 120 (motion that upon bringing 
 into court a gold watch and a diamond ring, for the conversion of which 
 the action was brought, the proceedings in trover might be stayed). But see 
 Fisher v. Prince (1762) 3 Burr. 1364, where Lord Mansfield aud Mr. Justice 
 Wilmot both concurred in the follo\\'ing distinction : "That where trover 
 is brought for a specific chattel, of an ascertained quantity and quality, 
 and unattended with any circumstances that can enhance the damages 
 above the real value, but that its real and ascertained Aalue must be the 
 sole measure of the damages, there the si>ecific thing demanded may be 
 brought into court; (and Mr. Justice Wilmot said this was the more rea- 
 sonable, as this action of trover comes in the place of the old action of 
 detinue :) where there is an uncertainty either as to the quantity or quality 
 of the thing demanded, or that there is any tort accompanying it that 
 may enhance the damages above the real value of the thing, and there is 
 no rule whereby to estimate the additional value, there it shall not be 
 brought in." The rule thus announced has been followed in England. 
 Pickering v. Truste (1796) 7 T. R. 531 ; Tucker v. Wright (1826) 3 Ring. 601 ; 
 Gibson v. Humphrey (1S33) 1 Cr. & M. 544. And see 27 Halsbury's Laws 
 of Eng. 911, 912 (1913). 
 
 On the American rule, see Carpenter v. Manhattan Life Ins. Co. (1880) 
 22 Hun (N. Y.) 47 ("A i>arty whose goods are converted, cannot be forced to 
 receive them back"); Livermore v. Northrup (1870) 44 N. Y. 107; Railroad 
 Co. V. O'Donnell (1S92) 49 Ohio St. 489, 32 N. E. 476; Cernahan v. Chrisler 
 (1900) 107 Wis. 045, 83 N. W. 778 ; 38 Cyc. 2102 ; 47 Cent. Dig. "Trover aud 
 Conversion," § 277; Key-No. "Trover and Conversion," § 58.
 
 444 TORTS THROUGH ACTS OP ABSOLUTE LIABILITY (Part 1 
 
 in the defendant, and assessed its value at $175, and damages for 
 its detention by the plaintiff at ^7S. The defendant, for the purpose 
 of proving his damages for the detention, gave evidence of the value 
 of the use of the horse. The plaintiff' objected to this evidence, claim- 
 ing that the value of the use was not the proper measure or rule of 
 damage. This objection being overruled raised the only question con- 
 sidered upon this appeal. 
 
 Earl, c. * * * In actions of trover, in cases where there has 
 been no increase in the value of the property converted intermediate 
 the conversion and the time of the trial, the measure of damages is 
 the value at the time of the conversion, and interest thereon to the 
 time of the trial, and it would have to be a very special case that 
 would authorize greater damages. The claim here is, that the same 
 rule applies in an action of replevin, and I shall endeavor to show 
 that it does not apply in all cases, and that this case is one of a class 
 to which it cannot be applied. 
 
 The very nature of the two kinds of action shows that the same 
 rule of damages should not be inflexibly applied in each. 
 
 In the action of trover, the plaintiff does not seek to recover his 
 property, but its value as a substitute for the property. He abandons 
 the property to the defendant, preferring to pursue him for its value. 
 He makes a kind of forced sale of it, without any expectation or 
 intention of retaking it. Hence, in such cases, he can be expected 
 at once to go into the market and supply himself with the same prop- 
 erty at its market value if he desires it. But in the action of replevin, 
 the plaintiff seeks to recover the property and is, in all stages of the 
 case to final judgment, in pursuit of that, and not its value. And 
 during the whole time the defendant may have the possession and the 
 use (if it can be used) of his property. At the termination of the 
 suit it is not optional with him to take the property or its value. If 
 the defendant has the property, and will permit him to take it, he is 
 obliged to take it. Code, § 277; Dwight v. Enos, 9 N. Y. 470; 
 Fitzhugh V. Wiman, 9 N. Y. 559. Hence the plaintiff cannot always 
 be expected or required, in such cases, to go into the market and 
 supply himself with the same kind of property at its market value. 
 Suppose the controversy be about a canal boat or a carriage, or an 
 expensive machine. If the plaintiff should go into market and buy 
 another, at the end of the litigation, in case of success, he would have 
 on hand duplicates of the article, and would thus be subjected to 
 further loss and inconvenience. These observations are made simply 
 to show that there is nothing in the nature of the two actions requir- 
 ing the application of the same rule of damages. * * * 
 
 In the action of replevin, under the Code, the jury are required to 
 assess the value of the property, and damages for its detention. The 
 value here intended is the value at the time of the trial. In case the 
 prevailing party can obtain a delivery of the property, he must take 
 it as it then is; if he cannot obtain such delivery, then the value is
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 445 
 
 intended as a substitute and precise equivalent of the property. The 
 damages for detention are the same, whether the party recover the 
 property or its value. * * * 
 
 Suppose the plaintiff had taken defendant's boat, worth $2,000, and 
 kept it a whole year before it was ordered, as the result of the action, 
 to be returned to the defendant, would the interest be a fair com- 
 pensation to the defendant for the loss of the use of his boat? In- 
 stead of a boat, suppose it had been a carriage, worth $1,000, would 
 the interest be a sufficient allowance for the use of the carriage a 
 whole year? The same supposition may be made as to any article 
 of personal property having a usable value. There v/ould be very 
 few cases where the interest would give the owner a fair or adequate 
 indemnity, and thus two of the fundamental rules of damages would 
 be violated : The owner would not be completely or fully indemnified 
 for the loss of the use of his property, and the wrong-doer who had 
 had the use of it would make a profit out of his own wrong, which the 
 law does not tolerate. 
 
 This case illustrates the injustice of the rule contended for by the 
 plaintiff as well as any. The jury found the value of the horse to be 
 $175 and the value of the use to be $75 for one year and three months. 
 For the same period the interest would have been $15.31, and if that 
 had been taken as the measure of damages, the owner would have 
 lost about sixty dollars and the wrong-doer would have made that 
 much profit out of his wrong. A rule of damage which works out 
 such a result, cannot have a basis of principle or justice to stand 
 upon. * * * -"^^ 
 
 It follows that the rule of damages adopted below was right, and 
 that the judgment must be affirmed with costs. 
 
 (b) Subject- Matter of Trover and Conversion 
 MACKINTOSH v. TROTTER et al. 
 
 (Court of Exchequer, 1838. 3 Mees. & W. 184, 49 R. R. 565.) 
 
 Trover for fixtures, furniture, &c. Plea, that the goods and chat- 
 tels in the declaration mentioned were not, nor were any of them, the 
 property of the plaintiff. At the trial, it appeared that the action was 
 brought by the plaintiff, an innkeeper at Liverpool, to recover from 
 the defendants, his assignees under a fiat in bankruptcy, which he 
 alleged to be void, the value of certain tenant's fixtures and house- 
 hold furniture, which they, as his assignees, had put up to sale by auc- 
 tion, together with the lease of his house and the goodwill of his 
 
 17 Tart of the opinion, discussing and limiting Tw-inam v. Swart, 4 Lans. 
 (N. Y.) 2G3, is omitted.
 
 446 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 business. The fixtures and furniture were sold in one lot, for £19. 
 8s. 8d., and it was proved that the former still remained affixed to 
 the freehold, not having been removed by the purchaser. It was con- 
 tended, for the defendants, that the fixtures were not recoverable in 
 trover. The learned Judge was disposed to think that the defendants, 
 by selling them, had, as between themselves and the plaintiffs, treated 
 them as goods and chattels: he however desired the jury to assess 
 the value of the fixtures separately; and they having stated their 
 value at £55., a verdict passed for the plaintiff for £79. 8s. 8d., leave 
 being reserved to the defendants to move to reduce the damages by 
 the sum of £55. 
 
 In Michaelmas Term, Cowling obtained a rule accordingly. 
 
 Cresswell, Wightman, and Addison now showed cause: These 
 were fixtures which the plaintiff, being tenant, might have removed; 
 and for such fixtures, if the tenant be dispossessed of them during his 
 term, he may maintain trover, * * * jf trespass was maintainable 
 for the wrongful taking, so trover would lie for the wrongful conver- 
 sion and detention of them. (Parke:, B. Would trover lie for a crop 
 of standing corn? Your argument amounts to this, that the plaintiff 
 may maintain trover for preventing him from exercising his right 
 of removal.) 
 
 Alexander and Cowling, in support of the rule, were stopped by 
 the Court. 
 
 Parke, B. Minshall v. Lloyd, 2 M. & W. 450, is a direct authority 
 on this point. I gave my opinion in that case, not on my mere im- 
 pression at the time, but after much consideration of this point, that 
 the principle of law is, that whatsoever is planted in the soil belongs 
 to the soil, quicquid plantatur solo, solo cedit; that the tenant has the 
 right to remove fixtures of this nature during his term, or during 
 what may, for this purpose, be considered as an excrescence on the 
 term; but that they are not goods and chattels at all, but parcel of 
 the freehold, and as such not recoverable in trover. That case is a 
 direct authority, so far as my opinion and that of my brother Alderson 
 go; and I think it was a correct decision. 
 
 BoLLAND and Gurnejy, BB., concurred. 
 
 Rule absolute.^® 
 
 18 Compare Rogers v. Gilinger (1S5S) 00 Pa. 185, 72 Am. Dec. G94, where 
 the question of the subject-matter of conversion relates to fragments of a 
 large frame building blown down by a wind, "leaving the foundation and 
 floors nearly entire, but breaking the superstructure, so that its materials 
 could not be replaced, or used in the construction of a similar building."
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 447 
 
 WOOD V. SMITH. 
 (Court of King's Bench, 1606. Cro. Jac. 129, 79 Reprint, 112.) 
 
 Action of trover of divers goods (naming them particularly), and 
 converting of them. The defendant pleaded not guilty; and it v^^ai 
 found against him, and damages assessed to i40. And it was now 
 moved in arrest of judgment, 
 
 First, the action is brought of divers things by an administrator, of 
 goods of the intestate's found and converted ; and it appears that par- 
 cel of those goods are things fixed to the freehold, and as parcel there- 
 of, for which this action lies not, for the declaration is, that he was 
 possessed de duobus articulis vocat. portal, cum suspensis vocat. 
 hinges, et de uno molendino vocat. an hand-mill, et de uno plumbo 
 vocat. a lead, et de una alveola vocat. a washing-fat, and lost them, 
 &c. which things appear to be fixed to the house, and are as parcel 
 thereof, and are not accounted as goods ; so the action lies not for 
 them; for the portal is a door of the house, and the hand-mill and 
 the lead (which is a brewing lead), and the washing-fat (which is 
 parcel of the brewing vessels), are always fixed things, and go to the 
 heir and not to the executor, as 20 Hen. VH is. 
 
 Sed non allocatur; for it is alleged in the declaration, that he 
 was possessed of them ut de bonis propriis ; and it may be that those 
 things were severed from the freehold, and things lying by; and it 
 shall be so intended, when the plaintiff so declares ; and the contrary 
 appears not to the Court by any matters shewn to them by the de- 
 fendant's plea. * * * 
 
 Adjudged for the plaintiff'.^* 
 
 GRYMES v. SHACK. 
 
 (Court of King's Bencli, 1610, Cro. Jac. 262, 79 Reprint, 226.) 
 
 Action of trover and conversion of one hundred muskcats and sixty 
 monkies. The defendant pleads not guilty ; and it was found against 
 him : and it was moved in arrest of judgment, that an action lay not, 
 because he doth not shew that they were tame or reclaimed; as 12 
 Hen. Vni and 14 EHz. Dyer, for a hawk. 
 
 Sed non allocatur; for they are merchandise, and valuable. And 
 so it is of an action for a parrot. Wherefore it was adjudged for 
 the plaintiff. 
 
 le Only so much of the case is given as relates to the one point
 
 448 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Parti 
 
 KINASTON V. MOOR. 
 (Court of Common Pleas, 1627. Cro. Car. 89, 79 Reprint, G7S.) 
 
 Error in the Exchequer Chamber of a judgment in the King's Bench 
 in action of trover and conversion of divers goods, and among other 
 things of £190 in pecuniis numeratis. Upon not guilty pleaded, a ver- 
 dict was found for the plaintiff, and entire damages given. The error 
 was assigned, because trover and conversion cannot be of money out of 
 a bag. 
 
 But all the Justices and Barons agreed, that it well lies : for al- 
 though it was alleged that money lost cannot be known; and so 
 whether it was the plaintiff's money, whereof the trover and conver- 
 sion was, as is the charge of this action, yet the Court said, it being 
 found by a jury that he converted the plaintiff's money (for the losing 
 is but a surmise and not material, for the defendant may take it in the 
 presence of the plaintiff, or any other who may give sufficient evi- 
 dence; and although he take it as a trespass, yet the other may 
 charge him in an action upon the case in a trover, if he will), the plain- 
 tiff had good cause of action. Wherefore the judgment before well 
 given was now affinned. 
 
 The Justices and Barons said, that this action lies as well for money 
 out of a bag, as of corn which cannot be known. 
 
 ORTON v. BUTLER. 
 
 (Court of King's Bench, 1822. 5 Barn. & Aid. 652, 106 Reprint, 1.329.) 
 
 The declaration in this case contained three counts ; the third count 
 was as follows : 
 
 And, whereas also the said defendant afterwards, to wit, on, etc. at, etc. 
 had and received for the use of the plaintiff, a certain sum of money; to 
 wit, the sum of ten sliillings to be paid by the defendant to the plaintiff 
 upon request. Yet the defendant, not regarding his duty in that behalf, but 
 contriving, etc. hath not, although often requested, paid to the plaintiff 
 the last mentioned sum of money, or any part thereof, but hath wholly 
 omitted so to do; and on the contrary thereof, afterwards, to wit, on, 
 etc. at, etc. con^•erted and disposed thereof to his own use. 
 
 The defendant pleaded to the first two counts the general issue, and 
 demurred specially to the last count. 
 
 Abbott, C. J. The law has provided certain specific forms of ac- 
 tion for particular cases, and it is of great importance that they should 
 be preserved; we ought therefore to look with great jealousy to an 
 innovation of this sort. The present count states, that the defendant 
 had and received to the use of the plaintiff, a certain sum of money, 
 to wit, ten shillings to be paid to the plaintiff, but which the defend- 
 ant converted to his own use. It is contended, that this is a count in
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 449 
 
 trover. Now, the action of trover is only maintainable for specific 
 property ; it will lie for so many pieces of gold or silver, and in that 
 case a defendant can only redeem himself by tendering to the plaintiff 
 the same specific pieces. But in this case he clearly might do so by 
 returning an equal sum of money. There is, therefore, not merely a 
 want of certainty in the count, but it states that which is not the sub- 
 ject of an action of trover at all. The demurrer therefore must be al- 
 lowed. 
 
 Best, J. This is an innovation upon the old forms established by 
 law, and therefore ought not to be allowed. There is a broad distinc- 
 tion between actions ex contractu and ex delicto. Here, it arises out 
 of a breach of contract, and the party ought not to be allowed to pro- 
 ceed in the present mode of framing his count ex delicto, which would 
 be attended by the inconveniences pointed out in argument. The de- 
 fendant might be deprived of his set off, and if he lived within the 
 jurisdiction of an inferior Court, of his costs, and in addition to that, 
 would not be able to pay money into Court. The action of trover is 
 clearly not maintainable in a case like the present : there a party re- 
 covers damages for the detention of specific goods. But it would 
 be inconsistent with justice, if wliere a sum of money was delivered 
 generally to a defendant, the Court were to hold, that he could not de- 
 fend himself unless he could prove that he had restored the same 
 specific money delivered to him. But this would be the case if we 
 were to allow the action of trover to be maintainable. 
 
 Judgment for the defendant. 
 
 ROYCE, ALLEN & CO. v. OAKES. 
 
 (Appellate Division, Supreme Court of Rhode Island, 1S97. 20 E,. I. 252, 
 
 38 Atl. 371.) 
 
 Action of trespass on the case. Certified from the Common Pleas 
 Division and heard on demurrer to each count in the declaration. 
 
 TiLLiNGHAST, J. The plaintiffs set out in the first count of their 
 declaration that on January 15, 1894, they delivered to the defendant 
 the sum of $1,714.60 in money together with three gross of napkin 
 rings of the value of $49.26, said money and goods being the property 
 of the plaintiffs, for safe keeping, and to be redelivered by the de- 
 fendant to the plaintiff's thereafterwards on the same day ; that the 
 defendant received said money and merchandise for the purpose 
 aforesaid, yet, not regarding his duty in that behalf, afterwards on 
 the same day, intending and contriving to injure the plaintiff's, fraud- 
 ulently and unlawfully converted said money and goods to his own use, 
 and, although thereafterwards duly requested, he neglected and re- 
 fused to deliver said money and goods, or any part thereof, to the 
 plaintiffs. 
 
 IlEPB.TOKTS— 29
 
 450 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 To the first count of the declaration the defendant demurs, on the 
 
 grounds : 
 
 (1) That the matters therein stated do not set forth a cause of action 
 against the defendant. (2) That, whereas said action is trespass on the case, 
 said count states no cause of action against the defendant unless the same 
 be an action for breach of contract. (3) Tliat said count does not state 
 facts constituting an action of trespass on tlie case against tlie defendant, 
 but if any cause of action sounding in tort is therein stated, tlie same is 
 an action of trover, and not a trespass on the case. And (4) that said jjlain- 
 tiiis Join a cause of action for breach of contract with a cause of action 
 sounding in tort. 
 
 We think the demurrer to the first count should be overruled ; for, 
 while it is somewhat inartificially drawn, yet it sufficiently states a 
 case in trover, which is a species of action on the case. It sets out 
 property in the plaintiffs, alleging a value thereof, together with the 
 conversion thereof by the defendant at a certain time and place; and 
 we think this is sufficient. For, while it is customary to incorporate 
 into the declaration the legal fiction that the plaintiff casually lost 
 the goods and chattels described, and that the same thereafterwards 
 came to the defendant's hands by finding, yet we think it is suiificient 
 to allege that they came to his hands generally, the conversion being 
 the gist of the action. See Oliv. Prec. (3d Ed.) 467 ; Gen. Laws R. I. 
 c. 235, §§ 4, 5. 
 
 But the defendant contends that trover lies only for the conversion 
 of personal chattels, and does not lie for the failure to deliver to the 
 plaintiffs money, as such; -° and that the proper form of action as to 
 that is assumpsit, for money had and received. It is true that the 
 obligation to pay money to another is primarily within the confines of 
 assumpsit, or debt ; but the cause stated in said first count shows 
 something more than a debt. It shows a trust coupled with a specific 
 duty, together with a breach of the trust and a fraudulent violation of 
 the duty. It shows that the defendant received the money in question 
 simply for safe keeping, the same to be delivered to the plaintiffs on 
 demand, and that instead of discharging the duty thus devolved upon 
 him he wrongfully converted the money to his own use. Having re- 
 ceived the money in specie, simply for safe 'keeping, it was his duty 
 to deliver the same specific money to the plaintiffs on demand. See 
 Donohue v. Henry, 4 E. D. Smith (N. Y.) 162; Worley v. Moore, 97 
 Ind. 15; Richmond v. Soportos (City Ct. N. Y.) 18 N. Y. Supp. 433; 
 
 20 " 'Tis pity that reporters sometimes catch at quaint expressions that 
 may happen to be dropped at the bar or bench ; and mistake their meaning. 
 It has been quaintly said 'that tlie reason wliy money cannot be followed 
 is, because it has no ear mark': but this is not true. The true reason is, upon 
 account of the currency of it: it cannot be recovered after it has passed in 
 currency. So in case of money stolen, the true owner cannot recover it; 
 after it has been paid away fairly and houestly upon a valuable and bona 
 fide consideration: but Ix^fore money has passed in currency, an action may 
 be hromiht toy the money itself." Per Lord Mauslield, in Miller v. liace 
 (175S> 1 Burr. 452, 457.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 451 
 
 26 Am. & Eng. Ency. L. 7(i(>\ Coffin v. Anderson, 4 Blackf. (Ind.) 
 395 ; Govett v. Radnidge, 3 East, 62-70. 
 
 As to the napkin rings, of course no question is made that they 
 are the subject of trover and conversion. 
 
 But the defendant contends that the plaintiffs have joined in the 
 same count a cause of action ex contractu with a cause of action ex 
 dehcto, and hence that it is demurrable. As we construe the count 
 there is no such misjoinder. It simply sets out the manner in which 
 the defendant became possessed of the property in question, his duty 
 regarding the same, and his wrongful conversion thereof to his own 
 use. In short, it states a case wholly sounding in tort and not in as- 
 sumpsit. * * * 
 
 The demurrer to the first count is overruled. ^^ 
 
 (c) Effect of a Judgment for Plaintiff 
 ADAMS v. BROUGHTON. 
 
 (Court of King's Bench, 1737. Andrew.?, IS, 95 Eeprint, 27S.) 
 
 An action of trover was brought by the present plaintiff against one 
 Mason, wherein he obtained judgment by default, and afterwards had 
 final judgment; whereupon a writ of error was brought. And an- 
 other action of trover was now brought by the same plaintiff, and for 
 the same goods for which the first action was brought, against Brough- 
 ton. It was thereupon moved by Solicitor General Strange, on an af- 
 fidavit that the goods converted amounted to more than £10 that the 
 defendant may be held to special bail. And he compared this to the 
 case of an indorsee of a bill of exchange, who may bring an action both 
 
 21 Part of the opinion, relating to a second count, is omitted. 
 
 Compare Larson v. Dawson (1902) 24 R. I. 317, 53 Atl. 93, 96 Am. St. Rep. 
 716: (The declaration set out that on July 19, 1901, the plaintiff was possess- 
 ed of $900 lawful money of the United States, and that on said day he in- 
 trusted said money to the defendant with the request that he should purchase 
 for the plaintiff out of said money a certain lot of land situate on Greene 
 street in Pawtucket, the defendant to pay for said lot the sum of $050, 
 and that with the remaining $250 he was to commence the erection of a 
 house on said lot for the plaintiff ; that the defendant received said money 
 in pursuance of said request, and afterwards, to wit, ou October 23, 1901. 
 he informed the plaintiff that he would not purchase said lot of hmd 
 with said money, nor would he return the money to the plaintiff; that the 
 plaintiff thereupon demanded of the defendant the said $900, which the 
 defendant refused to deliver, and, not minding or regarding his duty in this 
 behalf, but intending and contriving to injure and defraud the plaintiff, 
 fraudulently and unlawfully converted said money to his own use by ex- 
 pending or dissipating the same, or otlievwise disposing thereof contrary 
 to law. And the plaintiff' avers that criminal proceedings were instil uted 
 against the defendant, for embezzling said money, before tlie commencement 
 of this action. To this declaration the defendant demurred, on the ground, 
 among others, tliat the action of trover will not lie for money delivered to 
 the defendant under tiie circumstances above sot forth.) 
 
 And see Clark and Liudsell on Torts (IOCS) 25S, and 38 Cyc. 2011 et seq.
 
 452 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 against the drawer and the indorser, and hold them both to bail : and 
 he cited the cases of Wyndham and Wither, and Wyndham and Trull, 
 East, 8 Geo. I, where upon a motion to stay proceedings it was held, 
 that an indorsee of a bill of exchange may bring an action thereon, 
 both against the indorser and drawer; and the Court is only to see 
 that the plaintiff hath but one satisfaction. So here the plaintiff may 
 sue both Alason and the present defendant, and is entitled to the same 
 process against the last, as i-f the action had been brought against him 
 only. And he urged, in answer to an objection made by P&ge, J., that 
 by a judgment obtained by the plaintiff in trover, the goods are be- 
 come the defendant's ; that a special property only is thereby vested 
 in him : and in the present case, it is evidence only of a property as 
 between the plaintiff and Mason, but not as between the present par- 
 ties. 
 
 But PER Cur' (Liit, C. J., absente) : The property of the goods is 
 intirely altered by the judgment obtained against Mason, and the dam- 
 ages recovered in the first action are the price thereof ; so that he 
 hath now the same property therein as the original plaintiff had ; and 
 this against all the world. And therefore the motion was denied.-- 
 
 22 See the remarks of Willes, J., in Brinsmead v. Harrison (1S71) L. R. 
 6 C. P. 584, 588: "This question whether the property is changed by the 
 mere recovery in trover appears to have led to much difference of opinion. 
 The authority mainly relied upon by ^Ir. Powell was the dictum of Jervis, 
 C. J., in Buckland v. Johnson (1854) 15 C. B. 145, 157, in which that very 
 learned and accurate judge did lay it down, upon the authonty of a case 
 in Strange, Adams v. Broughton (17o7) 2 Str. 1078, that the proi>erty is 
 changed by the mere recovery, without any satisfaction. I would observe, 
 however, that the case, as reported in Strange, is far from satisfactory. It 
 is also reported in Andrews, 18, where the case is thus stated. * * * The 
 loose expressions of the Court, — that 'the property of the goods is entirely 
 altered by the judgment obtained against Mason, and the damages recovered 
 in the first action are the price thereof; so that he hath now the same 
 property therein as the original plaintiff had; and this against all the 
 world,' — were quite unnecessary. The same may be said as to the dictum of 
 Jervis, C. J., in Buckland v. Johnson (1854) 15 C. B. 145. * * * On the 
 other hand, there is a series of decisions shomng that a mere recoverj% with- 
 out satisfaction, has not the effect of changing the property. * * * " 
 
 A like result was reached by the majority of the bench in Miller v. Hyde 
 (1894) IGl Mass. 472, 37 N. E. 760, 25 Ta II. A. 42, 42 Am. St. Kep. 424. but 
 with Field, C. J., and Holmes and Knowlton, JJ., dissenting. "I am of 
 opinion," said Mr. Justice Holmes in his dissenting opinion, "that the plaintiff 
 ought to be barred in this action by her recovery of judgment in trover 
 for the same horse. I am aware that the doctrine that title passes by 
 judgment without satisfaction is not in fashion, but I never have been 
 able to understand any other. It always has seemed to me that one whose 
 property has been converted has an election l)etween two courses, that he 
 may have the thing back or may have its value in damages, but tnat he 
 cannot have both ; that when he chooses one he necessarily gives up the 
 other, and that by taking a judgment for the value he does choose one 
 conclusively. He cannot have a right to the value of the thing, effectual 
 or ineffectual, and a right to the thing at the same time. The defendant is 
 estopped by the judgment to deny the plaintiff's right to the value to the 
 tbiug. Usually estoppels by judgment are mutual. It would seem to 
 follow that the plaintiff also is estopped to deny his right to the value of 
 the thing, and therefore is estopped to set up an inconsistent claim. In 
 general an election is determined by judgment. Butler v. Uildreth (1842) 5
 
 Ch. 2) 
 
 ABSOLUTE TORTS OTHER THAN TRESPASSES 453 
 
 Mete. (Mass.) 49; Bailey v. Hervey (18S3) 135 Mass. 172, 174; Goodyear 
 Dental ^'ulcanite Co. v. Caduc (1887) 144 Mass. 85, 86, 10 N. E. 483 ; Raphael 
 V. Reinstein (1891) 154 Mass. 178, 179, 28 N. E. 141. I know of no reason 
 why a judgment should be less conclusive in this case than any other. Of 
 course. I am speaking of a judgment for the value of the chattel, not of 
 one giving nominal damages for the taking. The argument from election 
 is adopted in White v. Philbrick (1827) 5 Greenl. 147, 150, 17 Am. Dec. 214, 
 which so far as I know is still the law of Maine, notwithstandins the re- 
 mark in Murray v. Lovejoy (1863) 2 Cliflf. 191, 198. Fed. Cas. No. 9963. See 
 also Shaw. C. J., in Butler v. Ilildreth (1842) 5 Mete. (Mass.) 49, 53. The 
 most conspicuous cases which have taken a different view speak of the 
 hardship of a man's losing his property without being paid for it, and 
 sometimes cite the dictum in Jenkins, 4tli Cent., Case 88, 'Solutio pretii 
 emptionis loco habetur,' which is dogma, not reasoning, or if reasoning, is 
 based on the false analogy of a sale : but they leave the argument which I 
 have stated unanswered, not, as I think, because the judges deemed it un- 
 worthy of answer or met by paramount considerations of policy, but because 
 they did not have either that or a clue to the early cases before their mind. 
 Lovejoy v. Murray (1865) 3 Wall. 1, 17, 18 L. Ed. 129: Brinsmead v. Harrison 
 (1871) L. R. 6 C. P. 584, 587; s. c., L. R. 7 C. V. 547, 554. It is not the 
 practice of the English judges to overrule the common law because they 
 disapprove it. and to do so without discussion. In Brinsmead v. Harrison, 
 Mr. Justice Willes thought he was proving that the common law always had 
 been in accord v\-ith his position. So far as the question of policy goes, it 
 does not seem to me that the possibility — it is only the possibility — of an 
 election turning out to have been unwise, is a sufficient reason for breaking 
 in upon a principle which must be admitted to be sound on the whole, and 
 for overthrowing the doctrine of tlie common law by a judicial fiat. I am 
 not informed of any statistics which establish that judgiuents for money 
 usually give the judgment creditor only an empty right. That the view which 
 I hold is the view of the common law I think may be proved by considering 
 what was the theory on which the remedies of trespass and replevin were 
 given. In T. B. 19 Hen. VI, 65, pi. 5, Newton says : 'If you had taken my 
 chattels it is at my choice to sue replevin, which shows that the property 
 is in me, or to sue a writ of trespass, which shows that the property is in 
 the taker ; and so it is at my will to waive the property or not.' In 6 Hen. 
 VII, 8, pi. 4, Vavisor uses similar language, and adds, 'And so it is of goods 
 taken, one may devest the property out of himself, if he will, by proceedings 
 in trespass, or demand property by replevin or writ of detinue,' if he prefers. 
 There is no doubt that the old law was that replevin affirms property in 
 the plaintiff and trespass disaffirms it, and that the plaintiff has election. 
 Bro. Abr. Trespass, pi. 134 ; IS Vin. Abr. 69 (B) ; Anderson and Warberton, 
 JJ., in Bishop v. Montague (1601) Cro. Eliz. 824. The proposition is made 
 clearer when it is remembered that a tortious possession, at least if not 
 felonious, carried with it a title by wrong in the case of chattels as well as 
 in the case of a disseisin of land, as appears from the page of Viner just 
 cited, and as has been shown more fully by the learned researches of Mr. 
 Ames and Mr. Maitland, 3 Harv, Law Rev. 23, 326. See 1 Law Quarterly 
 Bev. 324. I do not regard that as a necessary doctrine, or as the law of 
 Massachusetts, but it was the common law, and it fixed the relations of 
 tre.spass and replevin to each other. Trespass, and on the same principle 
 trover, proceed on the footing of alhrming property in the defendant, and of 
 ratifying the act of the defeud.'int which already has afllrmed it. I do not 
 see on what other ground a judgment for the value can be justified. If the 
 title still is in doubt, or remains in the plaintiff, the defendant ought not to 
 be charged for anything but the tortious taking. Again, cannot the plaintifiC 
 take the converted chattel on execution"/ And on what principle can he do 
 so if it does not yet belong to the defendant? I say but a word as to tlie 
 practical difficulties of the prevailing rule. No doubt they can be met in 
 one way or another. Suppose the plaintiff after judgment were to retake 
 the chattel by his own act, it would strike me as odd to .say that this satisfied 
 the judgment, and as impossible to say tliat it .satisfied the whole judgment, 
 which was for the tort, as well as for the value of the property. Yet on the
 
 454 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 HEPBURN V. SEWELL. 
 
 (Court of Appeals of MaiTland, 1821. 5 Har. & J. 211, 9 Am. Dec. 512.) 
 
 Trover for negro slaves, brought by the appellant against the ap- 
 pellee. 
 
 DoRSi^Y, J. The appellant in this cause, as administrator of Jane 
 Fishwich, instituted an action of trover against the appellee, to recover 
 the value of certain negroes, among whom were Sail, Patt and Phillis, 
 the property of the appellant's intestate, and obtained a verdict for 
 the sum of $7,153.50, on which judgment was rendered. The appel- 
 lee appealed from that judgment to the court of appeals, and the same 
 was affirmed at June term, 1818; and the amount of the judgment, 
 with costs, was paid by the appellant to the appellee before the trial 
 but after the issue was joined in the present suit. After the com- 
 mencement of the action of trover, in which the verdict was rendered, 
 the slaves, Sail, Patt and Phillis, each had a child, and the present 
 action of trover was instituted by the appellant to recover the value of 
 the said children. The court below decided that the action could not 
 be maintained, and this court concur in that decision. The British 
 authorities lay down the general proposition, that if the plaintiff in 
 an action of trover has recovered damages for the conversion of the 
 goods, the property thereof vests in the defendant, who, as damages 
 to the value have been recovered against him, is to be considered as a 
 purchaser. Adams v. Broughton, 2 Str. 1078; 6 Bacon's Abr. tit. 
 Trover, A, p. 679. This court are of an opinion, that the judgment 
 per se doth not clothe the defendant with the legal character of a pur- 
 chaser; but that the judgment and its fruit, to wit, the payment of 
 
 view which I oppose I presume that the judgment could not be collected. 
 See Coombe v. Sansom (1S22) 1 Dowl. & Ry. 201. It seems to me tliat the 
 opinion which I hold was the prevailing one in England until Brinsraead 
 V. Harrison. Bishop v. Montague (KJOl) Cro. Eliz. 824; Fenner, J., in 
 Brown v. Wootton (lOOS) Cro. Jac. 73, 74 ; s. c, Yelv. 67 ; Moore, 762 ; Adams 
 V. Broughton (1737) 2 Strange, 1078; s. c, Andrews, 18, 19; Buokland v. 
 Johnson (1854) 15 C. B. 145, 157, 162, 163 ; Sergt. Manning's note to 6 Man. 
 & Gr. 040. See Lamine v. Dorrell (1705) 2 Ld. Raym. 1216, 1217. And I 
 should add that I see a relic of the ancient and true doctrine in the otherwise 
 unexplained notion that when execution is satisfied the title of the defendant 
 relates bacli to the date of the conversion. Ileiiburn v. Sewell (1821) 5 liar. 
 & J. 211, 9 Am. Dec. 512; Smith v. Smith (1872) 51 N. H. 571, and (1870) 
 50 N. H. 212. Compare Atwater v. Tupper (1877) 45 Conn. 144, 147. 148, 29 
 Am. Eep. 674. The only authorities binding upon us are the ancient evi- 
 dences of the common law as it was before the Revolution and our own 
 decisions. I have shown what I think was the common law. Our own deci- 
 sions leave the question open to be decided in accordance with it. Campbell 
 V. Phelps (1822) 1 Pick. (Mass.) 62, 65, 70, 11 Am. Dec. 139; Bennett v. 
 Hood (1861) 1 Allen (Mass.) 47, 79 Am. Dec. 705. Many cases in other 
 states are collected in Freem. Judgments (4th I'^d.) § 237." 
 
 For other cases on the jioint see 38 Cyc. 2112. notes 24, 25, and 26; 47 
 Cent. Dig. "Trover and Conversion," § 314; 19 Dec. Dig. "Trover and 
 Conversion," § 70.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 455 
 
 the amount thereof, must both concur, to vest the right of property in 
 the defendant. But the question occurs, to what epoch shall the title 
 of the defendant relate on his satisfying the amount of the judgment? 
 And we think his title relates back to the time of the conversion. If 
 the thing converted should from any cause, whether natural or arti- 
 ficial, be destroyed during the interval intervening between the period 
 of conversion and the payment of the judgment, the loss must be sus- 
 tained by the defendant ; and it would seem to follow, that if the 
 thing should improve in value during that period, the benefit ought to 
 inure to the defendant, on the principle qui sentit onus, sentire debet et 
 commodum. 
 
 It must be borne in mind that the plaintiff in an action of trover com- 
 pels the defendant to become a purchaser against his will ; and from 
 what period does he elect to consider the defendant as a purchaser, or 
 as answerable to him for the value of the thing converted? He selects 
 the date of conversion as the epoch of the defendant's responsibility, 
 and claims from him the value of the property at that period, with m- 
 terest, to the time of taking the verdict. The inchoate right of the de- 
 fendant as a purchaser must, therefore, be considered as coeval with 
 the period of conversion, and his right being consummated by the judg- 
 ment and its discharge, must, on equal and equitable principles, relate 
 back to its commencement. The generality of our expressions must 
 not be misunderstood ; we do not mean to decide that in all cases of 
 trover the payment of the damages assessed vests the right of property 
 in the defendant. Thus, if property converted is returned and re- 
 ceived by the owner before the institution of an action of trover, as 
 damages could only be given for a partial conversion, the payment 
 thereof would not divest the right of property out of the plaintiff and 
 vest it in the defendant. 
 
 Judgment affirmed. 
 
 (B) Elements of the Prima Facie Cause in Trover anid Conversion 
 
 It is an action of trover. * * * jj^ form it is a fiction; in sub- 
 stance, a remedy to recover the value of personal chattels wrongfully 
 converted by another to his own use. The form supposes the de- 
 fendant may have come lawfully by the possession of the goods. 
 This action lies, and has been brought in many cases where, in truth, 
 the defendant has got the possession lawfully. Where the defendant 
 takes them wrongfully, and by trespass, the plaintiflf, if he thinks fit 
 to bring this action, waives the trespass, and admits the possession to 
 have been lawfully gotten. Hence, if the defendant delivers the thing 
 upon demand, no damages can be recovered in this action, for having 
 taken it. 
 
 This is an action of tort ; and the whole tort consists in the wrong- 
 ful conversion. Two things are necessary to be proved, to entitle the
 
 456 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 plaintiff to recover in this kind of action : First, property in the 
 plaintiff ; and secondly, a wrongful conversion by the defendant. 
 Lord Mansfield, in Cooper v. Chitty (1756) 1 Burr. 20, 31. 
 
 (a) The Pi,AiNTrFF's Eight in Conversion 23 
 
 WILBRAHAM v. SNOW. 
 
 (Court of King's Bench, 1670. 2 Wms. Saund. 47, 85 Reprint, 624.) 
 
 Trover, upon special verdict, the case was this : the plaintiff, being 
 sheriff", seized goods in execution by virtue of the writ of fieri facias ; 
 and afterwards, and before they were sold, the defendant took and 
 carried them away, and converted them to his own use ; for which the 
 plaintiff brought his action. And on the first argument it was ad- 
 judged that the action well lies ; and that the plaintiff, being sheriff, 
 has such a property in the goods, by seizing them in execution, that 
 he may maintain an action of trespass or trover at his election ; and 
 judgment was given for the plaintiff nisi, &c. but it was not moved 
 afterwards.^* 
 
 ARMORY V. DELAMIRIE. 
 
 (Court of King's Bench, at Nisi Prius, in Middlesex, Coram Pratt, C. J., 1722. 
 
 1 Str. 505, 93 Reprint, 664.) 
 
 The plaintiff being a chimney sweeper's boy found a jewel and car- 
 ried it to the defendant's shop (who was a goldsmith) to know what it 
 was, and delivered it into the hands of the apprentice, who under pre- 
 tence of weighing it, took out the stones, and calling to the master to 
 let him know it came to three halfpence, the master offered the boy 
 the money, who refused to take it, and insisted to have the thing again ; 
 whereupon the apprentice delivered him back the socket without the 
 stones. And now in trover against the master these points were ruled : 
 
 1. That the finder of a jewel, though he does not by such finding 
 
 23 "The 'right to possession' which is necessary to found an action of 
 trover is often described as a 'special property' in the goods. This is a most 
 unfortunate expression ; for in one of the best known cases it is expressly 
 laid down that the term 'special property' includes interests which do not 
 carry the right to possession, and which, therefore, are not suflicient to 
 found actions of trover. See Webb v. Lawrence (1797) 7 T. R. at p. 398, 
 per Lawrence, J. On the other hand, a i)erson whose goods have been 
 distrained for rent can sue a third party in trover. Turner v. Ford (184G) 
 15 M. & W. 212." J. C. Miles, in Dig. Eng. Civ. Law, Bk. II, Part III, 414. 
 
 ■24 Elaborate notes to this case, by Serjeant Williams in 1S02. and by 
 later hands, touching many points in the doctrine of trover, will be found 
 in the reports named.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 457 
 
 acquire an absolute property or ownership, yet he has such a property 
 as will enable him to keep it against all but the rightful owner, and 
 consequently may maintain trover. ^^ 
 
 2. That the action well lay against the master, who gives a credit to 
 his apprentice, and is answerable for his neglect. 
 
 BUCKLEY V. GROSS et al. 
 
 (Coiirt of Queen's Bench, 1863. 3 Best & S. 566, 122 Reprint, 213, 
 
 129 R. R. 457.) 
 
 This was an action for the conversion of certain goods and chattels 
 of the plaintiff, that is to say, a quantity of fat and tallow mixed to- 
 gether : to which the defendants pleaded Not guilty, and a traverse 
 of the goods and chattels in the declaration being the goods and chat- 
 tels of the plaintiff: on both of which pleas issue was joined. 
 
 25 Accord: Bridges v. Hawkeswortli (1S51) 21 L. J. Q. B. 75, 91 R. R. 850: 
 (P. liad called at D.'s shop on business. As P. was leaving he noticed and 
 picked up a small parcel which was lying on the floor. He immediately 
 showed it to one of the shopmen and on opening it found that it contained 
 bank notes to the value of £55. P. told D. that he had found a parcel of 
 notes and requested D. to keep them to deliver to the owner. D. advertised 
 for the o'mier, but ^^^thout response. Three years having elapsed, and no 
 owner appearing, P. applied to D. for the notes, offering to pay the expense of 
 the advertisements and to indemnify D. against any claim. The latter re- 
 fused to deliver the notes. P. sues for conversion.) 
 
 Compare McAvoy v. Medina (1866) 11 Allen (Mass.) 548, 87 Am. Dec. 
 733: (P., being a customer in D.'s barber shop, saw and took up a pocket- 
 book which was lying upon a table there, and said, "See what I have 
 found." D. came to the table and asked where P. found it. P. laid it back 
 in the same place and said, "I found it right there." D. then took it and 
 counted the money, and P. told him to keep it, and if the o^\■ner came to 
 give it to him ; otherwise to advertise it, which D. promised to do. Sub- 
 sequently P. made three demands for the money, and D„ never claimed 
 to hold the same till the last demand. It was agreed that the pocketbook 
 was placed upon the table by a transient customer of D. and accidentally 
 left there, and was first seen and taken up by P., and that the owner had 
 not been found. Said Dewey, J., delivering the opinion: "It seems to be 
 the settled law that the finder of lost property has a valid claim to the 
 same against all the world except tJie true owaier, and generally that the 
 Dlace in which it is found creates no excejition to this rule. 2 Parsons on 
 Cont. 97; Bridges v. Hawkesworth (1851) 7 Eng. Law & Eq. R. 424. But 
 this property is not, under tlie circumstances, to be treated as last property 
 in that sense in which a finder has a valid claim to hold the same until 
 called for by the true owner. This property was voluntarily placed upon 
 a tiible in the defendant's shop by a customer of his who accidentally left 
 the same there and has never called for it. The plaintiff also came tliero 
 as a customer, and first saw the same and took it up from the table. The 
 plaintiff did not by this acquire the right to take the property from tho 
 shop, but it was rather the duty of the defendant when the fact became tlms 
 known to him, to use reasonable care for the safe keeping of the same until 
 the owner should call for it. In the case of Bridges v. HawUesworth tlie 
 property, although found in a shop, was found on the floor of the same, 
 and had not been placed there voluntarily by the owner, and the court 
 held that the finder was entitled to the possession of the same except as 
 to the owner.")
 
 458 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 On the trial, it appeared that, in June, 1861, a severe fire broke out 
 among some wharves and warehouses on the Surrey side of the river 
 Thames below London Bridge. In those warehouses were deposited 
 large quantities of fat and tallow, the property of different persons, 
 which, being melted by the fire, flowed down into the main sewers, and 
 was by them conveyed into the river, from both of which large por- 
 tions of it were unwarrantably taken by different persons. Among 
 these was one B., a servant in the employ of the Metropolitan Board 
 of Works, who, having obtained some of the tallow, whether from 
 the sewer or river did not appear, sold it to the plaintiff. Early on 
 the morning of the 1st July, a policeman in one of the streets of the 
 metropolis stopped a cart with the plaintiff and a boy in it conveying 
 this tallow, which the plaintiff, on being questioned, said belonged to 
 one M. The policeman took possession of the tallow, and charged the 
 plaintiff and the boy before a magistrate with the possession of tallow 
 supposed to have been stolen or unlawfully obtained, who dismissed 
 the charge, but ordered the tallow to be detained under 2 & 3 Vict, 
 c. 71, § 29, for regulating the police courts in the metropolis. The 
 tallow was accordingly detained, and deposited in a yard with other 
 portions of tallow which had been seized by the police from other 
 persons, until, the whole becoming a nuisance, it was, in the course of 
 a few days, taken away and sold by direction of Sir Richard Mayne, 
 the Commissioner of the Police of tlie metropolis. The defendants 
 were the purchasers of the tallow in question, and, having refused to 
 deliver it up to the plaintiff on demand, this action was brought. 
 
 On this evidence a verdict was, under the direction of the learned 
 Judge, entered for the defendants, with leave reserved to move to 
 enter a verdict for the plaintiff" for £12., the value of the tallow, if 
 the Court should be of opinion that he had a sufficient property in it 
 to maintain the action, it being agreed that the Court should be at 
 liberty to draw any inferences of fact from the evidence that a jury 
 might properly draw. 
 
 A rule nisi was accordingly obtained and argued. 
 
 Crompton, J. It is clearly established that possession alone is suf- 
 ficient to maintain trover or trespass against a wrong-doer who takes 
 property from a person having possession of it. It is not clear, how- 
 ever, that the plaintiff, or the person from whom he purchased this 
 tallow, was a finder of it within the principle of Armory v. Delamirie, 
 1 Str. 505, and other cases. I think, on the evidence and the infer- 
 ences to be fairly drawn from it, that he is more in the position of 
 a person who has unlawfully or feloniously, perhaps the latter, ob- 
 tained possession of it, whereas I look on the term "finder" in those 
 cases to mean an innocent finder. This action must be founded on 
 possession ; here the possession was divested out of the plaintiff, and 
 lie cannot revert to a rigiit of property to re-establish it. I agree with 
 my Lord Chief Justice that where possession is lawfully divested 
 out of a man, and the property is ultimately converted by a person
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 459 
 
 who does not claim through an original wrong-doer, the party whose 
 possession was so divested had no property at the time of the conver- 
 sion. Here, in my mind, the plaintiff's possession was gone. The 
 goods were properly taken from him, and there is no such doctrine as 
 that it will reinvest in him in the manner contended for; otherwise 
 every person who was possessor of goods for any time, however short, 
 might bring an action against any person afterwards found in pos- 
 session of them, however he may have come by it. That would be 
 pressing too far the doctrine of sufficient title against a wrong-doer. 
 But here the plaintiff obtained the goods under circumstances which 
 show that he knew they came from these burning warehouses. I can- 
 not think that when property of different persons is mixed together, 
 any third person does not commit a crime in taking it — I think he 
 does. Neither is this a derelict — it is, as my brother Blackburn says, 
 more like property seized by wreckers ; and if I were obliged to draw 
 an inference, I should say that the plaintiff came by it feloniously. I 
 consider that it was the duty of the constable to take the tallow and 
 the plaintiff into the custody of the law, and that even without refer- 
 ence to Stat. 2 & 3 Vict. c. 71. The defendants here do not claim un- 
 der the constable, and, supposing they did, the constable did nothing 
 
 wrong 
 
 26 
 
 Rule discharged. 
 
 AVERILL V. CHADWICK. 
 
 (Supreme Judicial Court of Massachusetts, 1891, 153 Mass. 171, 26 N. E. 441). 
 
 Tort for the conversion of two rabbits. At the trial there was evi- 
 dence tending to show the following facts: 
 
 The plaintiff kept a provision store in Salem, and on March 2, 18S9, ex- 
 posed therein a pair of rabbits for sale. The defendant came to the store, 
 and, after looking at the rabbits, told the plaintiff that he was an officer 
 and should have to take them away. The plaintiff supposed from his state- 
 ment that he was an officer, and, as he testified, let the defendant "take 
 them; I did not give them to him or sell them; he (the defendant) said he 
 should take them away, and he took them away." The defendant was a 
 deputy of the board of game commissioners, and had no further authority 
 either as a constable or otherwise. He acted upon the occasion in question 
 under a direction of the game commissioners, to seize and remove all game 
 unlawfully offered for sale. He had no warrant, and had received no order 
 from any court to make the seizure, and his purpose was, as he testified, 
 "to enforce the law as I understood the statute." 
 
 The judge ruled that there was no question of fact for the jury, 
 and ordered a verdict for the plaintiff; the defendant alleged ex- 
 ceptions. 
 
 26 The arguments of counsel are omitted, and the opinions of Lord Chief 
 Justice Cockbum and Blackburn, J., with whom Crompton, J., concurred.
 
 460 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 By the Court.^^ The following opinion was prepared by Mr. Jus- 
 tice Devens, and was adopted as the opinion of the court after his 
 death by the Justices who sat with him at the argument. 
 
 We have no occasion to consider whether the rabbits, for the con- 
 version of which this action is brought, were unlawfully exposed for 
 sale in violation of the St. of 1886, c. 276, § 5, nor whether, upon 
 proper proceedings had, they might have been adjudged to be forfeit- 
 ed. Without so deciding, we assume these positions in favor of the 
 defendant's contentions. His own statement, which in the present pos- 
 ture of the case must be taken as correct, does not show him to have 
 been either a constable or police officer, even if these officers could 
 have made a seizure of the property without a warrant, which again 
 we do not intend to decide. He was a deputy of the board of inland 
 fisheries and game commissioners, and he stated that he had orders 
 from them to seize and remove whatever of this nature was offered 
 for sale unlawfully. He did not pretend that he had orders from 
 any court, or any warrant, but took the rabbits to destroy them. It 
 is quite clear that neither the commissioners nor their deputy could, 
 v;ithout power, seize, remove, and destroy property, even though the 
 same was unlawfully exposed for sale. No right to do this is given 
 by the statute, nor is any authority cited to us which justifies it. 
 
 Even if the taking of the rabbits was unlawful, yet, the possession 
 of them being illegal, it is the contention of the defendant that the 
 plaintiff cannot avail himself of this illegal possession to maintain the 
 action. In Commonwealth v. Rourke, 10 Cush. 397, it is held to be 
 well established at common law that property unlawfully acquired 
 may, nevertheless, be the subject of larceny; and it is said that "even 
 he, who larceniously takes the stolen object from a thief whose hands 
 have but just closed upon it, may himself be convicted therefor, in 
 spite of the criminality of the possession of his immediate predecessor 
 in crime." In Commonwealth v. Coft"ee, 9 Gray, 139, where the ar- 
 ticle stolen was intoxicating liquor, purchased in violation of the 
 statute of Alassachusetts, and intended to be sold in violation of the 
 act, it was held to be the subject of larceny. Even, therefore, if, as 
 we have assumed in the case at bar, the plaintiff might have forfeited 
 and lost his property if it had been seized upon proper legal process, 
 and it had appeared that it was kept for an illegal purpose, he* was 
 only to be deprived of it upon such proof, and by the methods which 
 the law points out. In the plaintiff's hands the rabbits were still prop- 
 erty, even if unlawfully kept for sale. If deprived of them by a 
 wrongful seizure, the party taking them should be made responsible 
 to him for their value. * * * 
 
 Exceptions overruled. 
 
 27 A part of tlie opinion, on a question of defense, Is omitted. 
 On the general principle involved coiupaie the opinion of Mitchell, J., 
 in Andeijsou v. Gouldberg (1S92J 51 Minn. 294, 53 N. W. 636.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 461 
 
 JONES V. WINSOR. 
 (Supreme Court of South Dakota, 190S. 22 S. D. 480, 118 N. W. 716.) 
 
 CoRSOX, J. This is an appeal by the defendant from an order over- 
 ruling his demurrer to the complaint. It is alleged in the complaint, 
 in substance: 
 
 That on or about the Ist of Api-il. 1907, the plaintiffs, bein.2r desirous of 
 securing- a francliise for a city railway system in the city of Sioux Falls, 
 employed the defendant to act as an attorney for them in securing or at- 
 tempting to secure an ordinance from the city council granting the plaintiffs 
 such license; that carrying out their purpose, or attempting to cari-y out 
 the same, it became necessary for tlie plamtiffs to make a deposit -with the 
 city treasurer, and on said day the plaintiffs delivered to the defendant the 
 sum of $2,500 to be by him deposited with the said treasurer of the city, 
 and which money was so deposited, as appears by the receipt of the treasurer 
 of said city copied in tlie said complaint; that on or about the 4th day of 
 April the defendant received a further sum of ?130, which was to be used 
 by the defendant for these plaintiffs in securing or attempting to secure the 
 said franchise; that the said franchise which plaintiffs were attempting to 
 secure from said city was not granted to these plaintiffs, and thereupon, 
 about the 17th day of April, the city treasurer returned to the defendant 
 the said sum of $2,500 "as money belonging to these plaintiffs and for their 
 use and benefit" : that on or about the same day the said defendant rendered 
 to these plaintiffs an account of all moneys received by him for and on 
 account of these plaintiffs, with an itemized statement of all disbursements, 
 and in connection therewith a pretended charge for his seiwices or fee of 
 $1,250, and with said account was a draft drawn iu favor of the plaintiffs 
 for $1,012.25 ; that the pretended charge of the defendant of the sum of 
 $1,250 as shown upon said account and alleged to be for services rendered 
 by him is unjust, unlawful, and fraudulent, and the reasonable value of the 
 services rendered by the defendant was not and is not of the value of more 
 than $250; that of the moneys so received by the defendant for and on 
 behalf of these plaintiffs and for their use and benefit there remains in his 
 hands the sum of $1,000, which he has refused and still refuses to pay over 
 to these plaintiffs, although frequently requested so to do, and "he has 
 wrongfully and fraudulently converted to his own use the said sum of 
 $1,000" ; that on or about the 10th day of September, 1907, the plaintiffs 
 demanded of the said defendant payment of the aforesaid sum of money, 
 being "the amomit wrongfully and fraudulently retained by the said de- 
 fendant at the time he made to the plaintiff's his accounting as aforesaid," 
 and remitted to them by draft the sum of $1,012.25, with interest upon the 
 said sum from April 17th, "but the said defendant then and there refused 
 and still refuses to pay the same or any part thereof to the plaintiffs and 
 has wrongfully converted the same to his own use." Wherefore "plaintiffs 
 demand judgment against the said defendant for the sum of $1,000 and 
 interest thereon from the 17th day of April, 1907, for the wrongful conver- 
 sion of said property and for the costs of this action." 
 
 To this complaint the defendant interposed a demurrer on the 
 ground that "said complaint does not state facts sufficient to constitute 
 a cause of action." 
 
 It is contended by the appellant that the complaint does not state 
 facts sufficient to constitute a cause of action in trover or conversion, 
 for the reason that the complaint nowhere alleges ownership by the 
 plaintiffs of the property alleged to have been converted at the time 
 the action was brought ; nor does it allege ownership or possession of 
 the property in the plaintiffs at the time it is alleged to have been
 
 462 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 converted which is absohitely essential in the form of action. Assum- 
 ing that the complaint in this case was intended to state an action 
 for the conversion of this money by the defendant, it is clearly in- 
 sufificient in not alleging that the plaintiffs, at the time the defendant 
 is charged with having converted it, were the owners or in posses- 
 sion of the money so alleged to have been converted. In Irving v. 
 Hubbard et al, 12 S. D. 67, 80 N. W. 156, this court, in discussing 
 a similar question, uses the following language: "In actions for con- 
 version the pleader must, of course, allege ownership or possession 
 of the property in the plaintiff at the time it is alleged to have been 
 taken." Smith v. Force, 31 Minn. 119, 16 N. W. 704; Sawyer v. 
 Robertson, 11 Mont. 416, 28 Pac. 456; Kennett v, Peters, 54 Kan. 119, 
 Z7 Pac. 999, 45 Am. St. Rep. 274. * * * 
 
 The order of the circuit court overruling the demurrer is reversed.^^ 
 
 NICHOLS & SHEPARD CO. v. MINNESOTA THRESHING 
 
 MFG. CO. 
 
 (Supreme Court of Minnesota, 1897. 70 Minn. 528, 73 N. W. 415.) 
 
 Action of trover against the Minnesota Threshing Manufacturing 
 Company. Finding for defendant. The plaintiff appeals from an 
 order denying a new trial. 
 
 Canty, J. The complaint alleges in substance, that in June, 1892, 
 one Kenitzer was the owner of a threshing machine and engine, which 
 was then in South Dakota, where Kenitzer then resided ; that on that 
 day he mortgaged the same to the plaintiff corporation to secure the 
 payment of $325 then due by him to it, and that the mortgage was 
 then duly recorded in the proper office in the county of his residence ; 
 that thereafter, in 1893, while said mortgage was in full force and 
 effect, and after the conditions thereof were broken, and when plain- 
 tiff was entitled to the immediate possession of the mortgaged prop- 
 erty, the defendant corporation obtained possession of all of the 
 property, and "wrongfully converted the same to its own use." The 
 answer is a general denial. On the trial before the court without 
 a jury, the court found for defendant, and from an order denying 
 a new trial plaintiff appeals. * * * '^ 
 
 2. The trial court found all of the facts hereinbefore stated, and 
 found as a conclusion of law that plaintiff is not entitled to recover. 
 The court seemed to be of opinion that these facts do not show a 
 conversion. We are of the opinion that they do. True, the mortgage 
 
 2« In an omitted portion of the opinion, tlie question whether, under the 
 principle of the one form of action, the complaint could he construed as 
 scttiii;^ up a cause for money had and received, was considered at length, 
 and answered in the ne^'ative. 
 
 29 Part of the opinion is here omitted.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 463 
 
 did not pass the title of the mortgaged property to the mortgagee, but 
 is a mere Hen. It is also true that the mortgagor had a vendible in- 
 terest in the property. Defendant could not be held guilty of con- 
 version if nothing more appeared than that it purchased the property 
 from the mortgagor for an adequate consideration, which implies good 
 faith. Kellogg v. Olson, 34 Minn. 103, 24 N. W. 364; Sanford v. 
 Elevator Co., 2 N. D. 6, 48 N. W. 434. But something more does 
 appear. Defendant sold the property to Hayden. The sale implies a 
 warranty against incumbrances, including this lien (Benj. Sales [6th 
 Ed.] 632), unless the contract of sale expressly provided to the con- 
 trary ; and it does not appear that it did so provide. Then the finding 
 that defendant sold the property to Hayden amounts to a finding that 
 it "exercised dominion over the property in exclusion and defiance 
 of the rights" of plaintiff, which will, in a case where the mortgage 
 passes the legal title, amount to a conversion. See 4 Am. & Eng. Enc. 
 Law, 108; Bish. Noncont. Law, 406. The same is true where the 
 plaintiff has but a mere lien, if it entitled him to the immediate pos- 
 session. 1 Jones, Liens (2d Ed.) 1035 ; Sanford v. Elevator Co., supra. 
 The fact that it was not in the power of defendant to deprive plain- 
 tiff of its rights in the property is not the test of whether trover will 
 lie. The defendant, being in possession, may be taken at its word; 
 and, if it exercises a dominion over the property hostile to and in- 
 consistent with the rights of plaintiff, the latter may maintain an 
 action for conversion. 
 
 This disposes of the case. The order appealed from is reversed, 
 and a new trial granted. 
 
 RAYMOND SYNDICATE v. GUTTENTAG. 
 (Supreme Judicial Court of Massachusetts, 1901. 177 Mass. 562, 59 N. E. 446.) 
 
 The superior court gave judgment for the plaintiff; the defendant 
 brings exceptions. It appeared that the plaintiff's chattels were at- 
 tached by the defendant while they were in the possession of one Wy- 
 man under a contract that he should have the use of them for a term 
 not yet expired and then either purchase or return them. 
 
 Barker, J. The declaration alleges "that the defendant has con- 
 verted to his own use the property of the plaintiff." The bill of ex- 
 ceptions purports to state the facts of the case, and that the defend- 
 ant requested rulings that the plaintiff' could not recover upon the evi- 
 dence, and that upon the evidence the plaintiff was not entitled to the 
 possession of the goods, and consequently could not maintain the ac- 
 tion. Both briefs are addressed to the question whether, upon the 
 facts stated, the action would lie upon the declaration, and we there- 
 fore consider that question. 
 
 The declaration follows a statute form first given in St. 1851, c. 
 233, and which is also found in St. 1852, c. 312, Gen. St. c. 129, and
 
 464 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 Pub. St. c. 167. None of these statutes abolished the action of trover. 
 Each of them enacted that there should be only three divisions of per- 
 sonal actions, one of which divisions, actions of tort, has always in- 
 cluded the action of trover by that name, the two first statutes desig- 
 nating it as the action "now known as trover," and the two last as the 
 action "heretofore known as trover." St. 1851, c. 233, § 1; St. 1852, 
 c. 312, § 1 ; Gen. St. c. 129, § 1 ; Pub. St. c. 167, § 1. Under the old 
 practice, the owner of chattels could not maintain trover for their con- 
 version, unless when the acts complained of were done he had pos- 
 session or the right to immediate possession. Fairbank v. Phelps, 22 
 Pick. 535, and cases cited. The owner's remedy for damage to his re- 
 versionary interest in chattels, done when he had neither possession 
 nor the right to immediate possession, was an action on the case. 
 Ayer v. Bartlett, 9 Pick. 156; Forbes v. Parker, 16 Pick. 462. After 
 the adoption of the practice acts, it was held that they made no change 
 in the rules of evidence applicable to the causes of action compre- 
 hended under the designation of actions of tort, and that it was still 
 necessary, under the statute form given for trover, that the evidence 
 should be such as would have proved a conversion in an action of tro- 
 ver at common law. Robinson v. Austin, 2 Gray, 564; W'inship v. 
 Neale, 10 Gray, 382. 
 
 It is settled that to maintain tort under a declaration like the present 
 one the plaintiff must show possession or the right to immediate pos- 
 session. Winship v. Neale, 10 Gray, 382 ; Landon v. Emmons, 97 
 Mass. 37; Ring v. Neale, 114 Mass. Ill, 19 Am. Rep. 316; Clapp v. 
 Campbell, 124 Mass. 50; Baker v. Seavey, 163 Mass. 522, 526, 40 
 N. E. 863, 47 Am. St. Rep. 475; Field v. Early, 167 Mass. 449, 451, 
 45 N. E. 917. The ground of action of one not in possession, or hav- 
 ing the right to immediate possession should be set forth in a different 
 form. Baker v. Seavey, supra. 
 
 The facts stated show that, when the plaintiff's chattels were at- 
 tached by the defendant, the plaintiff had neither possession nor the 
 right to possession. There is nothing to show that the attachment of 
 the goods worked a forfeiture of Wyman's right to retain and use 
 them under his contract with the plaintiff, or gave the latter a right 
 to retake them. See Ayer v. Bartlett, 9 Pick. 156, 160. Therefore 
 the plaintiff could not recover in the action upon the facts, and the 
 jury should have been instructed to that eft'ect, in accordance with the 
 defendant's requests. * * * so 
 
 Exceptions sustained. 
 
 30 A portion of the opinion, on a question of the proper evidence of damage 
 in coiiver.siou, is omitted 
 
 Compare Gordon v. Harper (1790) 7 T. R. 10: (Goods leased by P. to B. 
 as furniture with a house were taken on execution by D., a slieriff, under 
 an execution against S. The levy is wrongful. P. brings trover. The lease 
 is still in force.)
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 465 
 
 (b) The Defendant's Act 
 (aa) As Part of the Plaintiff's Case 
 
 ATTERSOL v. BRIANT. 
 
 (At Nisi Prius, Adjourned Sittings in London, ISOS. 1 Camp. 409.) 
 
 Trover for 5000 bricks. The case opened on the part of the plam- 
 tiff was, that the bricks in question had been sent to the defendant, to 
 be carried by him as a common carrier, and dehvered to one Stiles ; 
 that he had asserted to the plaintiff he had delivered them to Stiles 
 accordingly ; but that in truth he had not done so, and they had never 
 reached Stiles's hands. Under these circumstances, it was contended, 
 the defendant must be taken to have converted the bricks to his own 
 use. 
 
 Lord EllEnborough, however, said, that the facts stated were not 
 sufficient evidence of a conversion to support an action of trover. Al- 
 though the defendant might have been guilty of a tort respecting the 
 bricks, it did not appear that he was guilty of the specific tort men- 
 tioned in the declaration. The action was therefore misconceived. 
 
 Plaintiff nonsuited. 
 
 DRUDE v. CURTIS. 
 
 (Supreme Judicial Court of Massachusetts, 1903. 183 Mass. 317, 67 N. E. 317, 
 
 62 L. R. A. 755.) 
 
 ■ The plaintiff, an infant, made a contract of purchase from the de- 
 fendant, also an infant, and paid the consideration. After the seller 
 had spent the money so paid him, the plaintiff' elected to avoid the con- 
 tract, and brought trover for the consideration. The superior court 
 ruled in favor of the plaintiff', and the defendant brought exceptions. 
 Hammond, J. Both parties being infants at the time of the con- 
 tract, either could avoid it without a return of the consideration. But 
 neither could avoid it in part. He must avoid it wholly, if at all. And 
 if the infant, when avoiding the contract, has in his hands any of the 
 specific fruits, the act of avoiding the contract by which he acquired 
 such property will divest him of all right to retain the same, and the 
 other party may reclaim it. Chandler v. Simmons, 97 Mass. 508, 514, 
 93 Am. Rep. 117. The plaintiff', who was the buyer, sought first to ex- 
 ercise his right to avoid, and brought this action to recover the money ; 
 and, if the defendant also had not been an infant, he would have had 
 no defense, upon the count in contract, because the law would have 
 implied a contract upon his part to refund the money. But the difii- 
 culty with the plaintiff's case is that the defendant is meeting the plain- 
 Hepb.Torts — 30
 
 4CG TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 tiff with a weapon like that used by him, to wit, avoidance of a con- 
 tract on the ground of infancy. And while the infancy of the plaintiff' 
 is a shield to him, it does not prevent the defendant from relying upon 
 his own infancy in turn as a shield to him. So far as respects the right 
 of the defendant to take advantage of his own infancy, it is immate- 
 rial whether the plaintiff' be an infant or an adult. Can the plaintiff 
 recover in this action the money paid by him to the defendant? The 
 defendant spent it before the plaintiff avoided the contract. His plea 
 of infancy is a complete defense to the counts in contract. So the 
 court ruled, and we do not understand that the correctness of this rul- 
 ing is contested by the plaintiff". If at the time the plaintiff elected to 
 avoid the contract the defendant had in his possession the same money 
 which he received from the plaintiff', then since, by reason of the avoid- 
 ance, the defendant had no right further to hold it, the plaintiff per- 
 haps might have maintained replevin, or, upon proper proceedings 
 taken, have maintained trover as for a subsequent conversion. 
 
 The plaintiff" contends that trover will lie even if, at the time he 
 avoided the contract, the money had been spent. But one great diffi- 
 culty upon the facts in this case is to find any conversion, any tortious 
 dealing with the money. There was no tortious act on the part of the 
 defendant in obtaining it. It was paid to him to be held and used by 
 him as his own money, in accordance with the terms of a contract 
 which is not claimed to have had in it any element of fraud. Tliere 
 was nothing tortious in that. Having received it as his own money, 
 he spent it as such, and all this the plaintiff, not yet having avoided 
 the contract, must be held to have expected and consented to. There 
 was, therefore, nothing tortious in any act of the defendant, with 
 reference to the money, before the contract was avoided. Nor has the 
 defendant been guilty of any tortious act since, unless it be his failure 
 to refund an equal sum to the plaintiff; but that failure at the most 
 can be considered only as a breach of an implied contract, and this 
 the law permits him to avoid. To hold that, while for this failure to 
 pay over under these circumstances he cannot be held in contract, but 
 still can be held in tort, is to convert that which arises out of a con- 
 tract into a tort, and to take away the shield which the law throws 
 around the infant for his protection. Upon this theory money lent to 
 an infant might be recovered. The plaintiff finds himself where any 
 one is likely to be who places money into the hands of an infant with 
 the right to spend it as his own money, and the right has been exer- 
 cised. Upon this general subject see Slayton v. Barry, 175 Mass. 513, 
 56 N. E. 574, 49 L. R. A. 560, 78 Am. St. Rep. 510, and cases cited; 
 Carr v. Clough, 26 N. H. 280, 59 Am. Dec. 345. 
 
 The plaintiff relies upon Walker v. Davis, 1 Gray, 506, as decisive 
 in favor of the right to maintain this action, but an examination of the 
 case will show that the ground upon which the decision was based 
 in no way conflicts with the conclusion to which we have come. In 
 that case, which was trover for the conversion of a cow, it appeared
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 467 
 
 that the defendant, an infant, pHed the plaintiff, who was an old man, 
 with liquor until he became drunk, and then took advantage of the 
 plaintiff's incompetent condition to trade for a cow. The defendant 
 took the cow, and gave his note in payment. When the note became 
 due, the plaintiff brought a suit upon it, in which the defendant pre- 
 vailed upon the plea of infancy. The plaintiff then brought the suit 
 in trover. The defense was that the plaintiff had waived the tort, and 
 affirmed the contract, and also that, when the note fell due, the defend- 
 ant had sold the cow, and parted with all control over her. The court 
 held the action maintainable, disposing of the first ground of the de- 
 fense by saying that, since the defendant also had avoided the con- 
 tract, the plaintiff"s attempted affirmance did not become operative, 
 and, as to the second ground, that there had been a conversion, and 
 consequently trover would lie. But the conversion relied upon was 
 not the sale of the cow, but the taking at the time of the contract. The 
 contract was voidable by the plaintiff upon the ground of fraud. 
 Upon coming to his senses, the plaintiff might have rescinded the con- 
 tract, and, without any demand, have brought trover for the cow upon 
 the ground that she had been tortiously taken from him under a fraud- 
 ulent contract (Thurston v. Blanchard, 22 Pick. 18, 33 Am. Dec. 700) ; 
 and since, at the time of this suit, his right to rescind still existed, the 
 remedy still existed. And the plea of infancy was no defense, be- 
 cause, in the language of Thomas, J. : "The defendant obtained the 
 possession of * * * the cow by fraud, a fraud to which infancy 
 would constitute no defense." It is thus seen that the action was sus- 
 tained upon the ground that the original taking, being fraudulent, was 
 tortious. No question seems to have been made as to whether infancy 
 would have been a defense to such a fraud. The court assumed that 
 it would not be a defense, and, having so assumed, held that the taking 
 of the cow at the time of the contract was tortious. Walker v. Davis 
 is therefore no authority for the contention that the subsequent spend- 
 ing of the money by the defendant in this case was tortious. 
 Exceptions sustained. 
 
 McCarthy et al. v. HEISELMAN et al. 
 
 (Supreme Court of New York, Appellate Divisiou, 1910. 140 App. Div. 240, 
 
 125 N. Y. Supp. 13.) 
 
 The action was against three defendants, for an alleged conversion. 
 Two of the defendants moved for judgment on the pleadings, and ap- 
 peal from an order refusing this judgment. 
 
 Carr, J. This action is to recover for an unlawful conversion of 
 moneys belonging to the plaintiffs. There are three defendants. One 
 is a boy, under age, and the other two are his parents. The complaint 
 alleges that the boy was hired by the plaintiffs to work in their store 
 with the consent of the parents, and that during the employment he
 
 468 TORTS THROUGH ACTS OP ABSOLUTE LIABILITY (Part 1 
 
 turned over his wages to them. It then alleges that the boy from time 
 to time 
 
 "in the due course and line of his employment and without the knowledge 
 or consent of the plaintiffs, * * * ^^^^^j^^ fi-cm the possession of the plain- 
 tiffs and unlawfully and illegally retained and kept, and converted to the 
 use of the defendants, various small sums of money, aggregating, however, 
 to about $1,000." 
 
 The defendant parents have moved for judgment on the pleadings, 
 claiming that, as against them, the complaint states no cause of action. 
 On a motion of this character the complaint is to be searched as on 
 demurrer. A demurrer cannot be sustained simply because the facts 
 in a complaint are averred imperfectly or informally, but the pleading 
 will be deemed to allege whatever can be implied from its statements 
 by fair and reasonable intendment. Kain v, Larkin, 141 N. Y. 144, 
 36 N. E. 9. 
 
 It will be noted that the complaint does not state that the parents 
 have received from the boy the moneys which he stole, nor aver that 
 the stealing was done at their suggestion or with their consent. The 
 pleading does state that the boy gave his wages to the parents, and the 
 pleaders contend that there is a fair implication that he likewise turned 
 over his stealings to them. To hold this would push the doctrine of 
 fair intendment or implication to an absurd length. It is clearly not 
 permissible here. It is true that the essence of a conversion is not 
 an evil intent, and that the exercise of an unlawful dominion over the 
 chattel or personal property, even in good faith, may constitute a 
 conversion. Boyce v. Brockway, 31 N. Y. 490. And, where a com- 
 plaint sets forth the receipt or possession of the chattel by the defend- 
 ant in order to charge conversion, it is not necessary to specify in de- 
 tail the tortious acts of dominion exercised by the defendant, and a 
 mere statement that he "converted it to his own use" will be held suffi- 
 cient. Decker v. Mathews, 12 N. Y. 313. 
 
 Yet, in this pleading, the charge is that the boy converted the mon- 
 eys, not simply to his own use, but "to the use of the defendants," 
 including himself and his parents. As to them, there is no allegation 
 of a taking or possession on their part on which can be based any im- 
 plication of the exercise by them of a dominion over the chattels. If, 
 however, the action be treated as one for money had and received, 
 there is likewise no sufficient allegation in the complaint that the par- 
 ents ever received and had the moneys in question. The complaint 
 states a good cause of action for conversion by the boy, but none as 
 against the parents, unless they are to be held liable for the boy's tort. 
 The general rule of the common law is that a parent is not liable for 
 the torts of a child without some participation on his part in the un- 
 lawful act. Tifft V. Tifft, 4 Denio, 175; 29 Cyc. 1665. Such partici- 
 pation is to be alleged and proved. It is not presumed, as a matter 
 of law, from the simple relation of parent and child. 
 
 The facts of the case as developed on a trial may give rise to a pre-
 
 Ch. 2) ABSOLUTE TOUTS OTHER THAN TRESPASSES 409 
 
 sumption of fact, as in Beedy v. Reding, 16 Me. 362, and Hower v. 
 Ulrich, 156 Pa. 410, 27 Atl. 37. In both these cases the parent was 
 held Hable for the trover of minor children who carried away wood 
 and corn from third persons, and the parent kept and used the articles. 
 These cases were decided, however, on the theory that the parent by 
 his acts had either constituted the child as his agent or had subsequent- 
 ly ratified an implied agency. The liability arose clearly not from the 
 relation of parent, but from the principles of agency. In the pleading 
 before us, there is no fact alleged to indicate any agency of the boy 
 for the parents in the conversion or the disposition of the proceeds of 
 the conversion. Was the boy in this case, while employed by the 
 plaintiffs, the agent of his parents in any aspect? It is true he went 
 into the plaintiffs' service with the consent of his parents, and turned 
 over his wages to them. This fact alone does not make him the serv- 
 ant of his parents while engaged in the service of another. To hold 
 otherwise would enlarge the scope of a parent's liability for the torts 
 of a child beyond reasonable limits, and lead to a result not only most 
 inconvenient, but contrary to the common understanding. 
 
 The order should be reversed with $10 costs and disbursements, and 
 the motion for judgment granted, unless within 20 days the plaintiffs 
 apply at Special Term and obtain leave to serve an amended complaint. 
 All concur. 
 
 (bh) Conversion through Demand and Refusal 
 
 MAGEE v. SCOTT. 
 (Supreme Judicial Court of Massachusetts, 1851. Cusli. 148, 55 Am. Dec. 49.) 
 
 Shaw, C. J. This is an action of trover for furniture, in which 
 a verdict was found for the plaintiff, and the case comes before us on 
 the defendant's exceptions. This cause has been very elaborately 
 argued, but, when understood, it appears to us to be governed by a 
 few plain principles. It turns upon the directions of the judge, who 
 tried the cause, in matter of law. 
 
 It is to be regretted that the facts appearing on the trial, showing 
 the relations of the parties, and the circumstances under which the 
 goods, admitted to be the property of the plaintiff', came into the pos- 
 session of the defendant, are not stated, in order to show the appli- 
 cation of the rule of law laid down by the court. Such circumstances 
 will usually indicate what was the nature and character of such change 
 of possession, whether in consequence of a sale or temporary loan, 
 or how. 
 
 The plaintiff is proved to be the owner of the property, and that 
 right of property will continue until a change proved as by sale, lien, 
 or voluntary loan. Whoever relies on such change must prove it; 
 the proof lies on him. All that appears in the present case is, that the
 
 470 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 property came into the possession of the defendant, with the plain- 
 tiff's consent. 
 
 How ? On what trust or contract ? This does not appear. Demand 
 of the goods was made, and a refusal to deliver them by the defendant 
 to the plaintiff, on such demand, before action brought, and this is 
 evidence of a conversion, conclusive, if not rebutted.^ ^ We are then 
 called on to consider the directions given by the judge on the trial. 
 
 The first was, that presumption of ownership continues until some 
 alienation is shown. This is correct. A party having this ownership 
 does not lose it, by permitting another to be in possession. The or- 
 dinary mode of proving property is, proving that it was purchased and 
 ]iaid for, and it will be deemed in law to be the purchasers' until some- 
 thing is shown to change the title, and merely parting with the pos- 
 session affords no conclusive evidence of such change. Possession 
 is prima facie evidence of title, good against everybody but one prov- 
 ing property ; that is, against any one but the right owner. Armory 
 V. Delamirie, 1 Stra. 505. This case of the chimney sweeper's boy, 
 from Strange, well illustrates these principles. A chimney sweeper's 
 boy, having found a jewel, carried it to a goldsmith, to ascertain its 
 value, but the goldsmith, by his apprentice, detained it, and refused 
 to restore it. The boy having brought trover, it was held that his pos- 
 session was some evidence of property, good against any one but 
 the true owner, and that he could maintain trover for it, on such 
 prima facie proof of title ; and that refusal to restore it to him, on 
 demand, was evidence of a conversion. 
 
 The defendant's possession was prima facie evidence of title in him, 
 but it was rebutted by proof of prior possession, and actual ownership, 
 on the part of the plaintiff. The burden of proof was on her, and 
 she sustained it by proof of title. 
 
 Exceptions overruled and judgment on the verdict for the plain- 
 tiff. 
 
 SEVERIN V. KEPPEL. 
 
 (At Nisi Prius, Sittings after Term, at Westminster, 1803. 4 Esp. 1.56.) 
 
 This was an action of trover, for several articles of plate and plat- 
 ed goods, staled in the declaration. 
 
 The defendant was a silversmith ; and they had been delivered to 
 him for the purpose of putting glasses into them. He had been ap- 
 
 81 Compare the remark of Coke, C. J., in Isaack v. Clark (161.3) 2 Rnlst. 
 306, 314: "In tliis case we do all of us agree in this, that prima facie, 
 a denj-er upon a demand is a good evidence to a jury of a conversion; but 
 if the contrary be shewed, then the same is no conversion." 
 
 And see the remark of Holt, C. J., in Baldwin v. Cole (1704) 6 Mod. 212: 
 "The very denial of goods, to him that has a right to demand them, is an 
 actual conversion, and not only evidence of it, as has been holden," On 
 the point see also Salniond, Torts (2d Ed.) 297, 298.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 471 
 
 plied to, on many occasions, for the articles so delivered to him ; he 
 made excuses, and said, the glass was not come from the glass- 
 blower's; there was no denial at any time to deliver the goods, but 
 rather excuses for not delivering them : however, in one instance, the 
 defendant admitted that the glass was come home ; but he then said, 
 his wife was out, and he could not deliver them. He afterwards de- 
 livered the plated goods, and said he had sent the silver ones home, 
 which was not true. 
 
 It was objected by the defendant's counsel, that on the evidence 
 given, there was no conversion sufficient to support the action of 
 trover. 
 
 Erskine, for the plaintifif, contended. That the defendant having, 
 in the last instance, admitted his possession of the goods, and having 
 made a frivolous and false pretence for not delivering the articles, 
 after his repeated excuses before made, that it was evidence of con- 
 version sufficient to go to the jury; particularly from the circumstance 
 of his having returned the plated goods, and pretended to have sent 
 home the other ; which was not the case. 
 
 Lord Ellsnbo rough said, he thought the plaintiff should be non- 
 suited, as there was no evidence to sustain the action in its present 
 form : that what begins in contract, a non-performance of what the 
 party so undertakes to do ; or a bare non-delivery of what he under- 
 takes to deliver, is not to be considered as of itself amounting to a 
 tortious conversion. There was a case in the Court of King's Bench 
 some time ago, in which that principle was recognized. It was an 
 action of trover against a carrier, for not delivering goods. If a 
 carrier sa3's he has the goods in the warehouse, and refuses to de- 
 liver them, that will be evidence of conversion, and trover may be 
 maintained; but not for a bare non-delivery, without any such re- 
 fusal. So in this case, the goods were delivered to the Defendant to 
 work upon. There was no evidence of any refusal by him to deliver 
 them; but, on the contrary, he makes excuses for not doing it. 
 The plaintiff must be called.^^ 
 
 32 Compare Whiting v. Wliiting (1913) 111 Me. 13, 87 Atl. 381 : D. held 
 eight $1,000 bonds for his brother, who assigned them to his wife, P. She 
 made a demand upon D. at liis residence in his last illness, shortly before his 
 death. D. kept the bonds in a safe deposit box away from his residence, 
 and when the demand was made said that he could not deliver the bonds 
 Ijecause the gi-andfather of his brother's children by his first wife had 
 requested him not to do so. Held that, as there w-as no evidence of a negation 
 of the owner's right, there was no conversion. And see. in general, as to what 
 amounts to a refusjil, 38 Cyc. 2039-2040. notes 18-24 ; 47 Cent. Dig. "Trover 
 and Conversion," § 78; 19 Dec. Dig. "Trover and Conversion," § 9(12); 27 
 Halsbury's Laws of England, "Trover and Detinue," 894-897.
 
 472 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 RUSHWORTH v. TAYLOR. 
 
 (Court of Queen's Bench, 1842. 3 Q. B. 699, 114 Reprint, 674, 61 B. B. 358.) 
 
 Trover for a gun. Plea, not guilty. On the trial before Lord 
 
 Dennian, C. J., it appeared that the plaintiff, in July or August, 1839, 
 
 put the gun into the possession of one Cross, to be sold. Cross, with 
 
 the view of obtaining a purchaser, lent it to one Todd; and Todd 
 
 lent it to the defendant to try. Defendant overcharged the gun, and 
 
 burst it. Plaintiff afterwards wrote to the defendant as follows : 
 
 "Mr. George Taylor : I hereby give you notice that the double-barrelled 
 gun you received from Bobert Todd, which he received from Thomas Cross, 
 who had previously received the same from me for the purpose of making 
 sale thereof, is my property ; and I hereby demand the same of you, and 
 require you forthwith to deliver the same to me in the same plight and con- 
 dition as the said gun was in at the time you received the same from the 
 hands of the said Bobert Todd. Dated this 11th day of March, 1840. 
 
 "John Bushworth." 
 
 Defendant said that he would not pay for the repair of the gun. 
 He afterwards redelivered it to Todd, for the purpose, as he said, of 
 his taking it to a gunmaker's ; and it was then taken (but by whom it 
 did not distinctly appear) to a gunsmith at Hull, and remained in 
 the possession of the gunsmith or of the defendant, never having been 
 restored to the plaintiff, when this action was brought. 
 
 The Lord Chief Justice thought it difficult to say that the qualified 
 demand contained in the letter (that the gun should be delivered up 
 "in the same good plight," &c.), and the refusal which followed, were, 
 of themselves, proof of a conversion; and he directed the jury to find 
 for the defendant on the first count, if, in their opinion, there had 
 been no denial of the plaintiff's right. Verdict for defendant on all 
 the issues. 
 
 W. H. Watson now moved for a new trial on the ground of mis- 
 direction, and contended that the demand and refusal, if not of them- 
 selves evidence of a conversion, fully proved it when coupled with the 
 other facts of the case, to which the jury's attention had not been 
 sufficiently directed in the suirmiing up. (Lord D^nman, C. J. The 
 claim in trover was founded on a demand and refusal; and the de- 
 mand was that the gun should be delivered in the same good plight 
 as when the defendant received it. Refusal of such a demand is 
 different from refusing altogether to restore.) 
 
 Williams, J. The case was properly put to the jury as to the de- 
 mand and the refusal. A demand of the article in statu quo was not 
 a demand on which, in case of refusal, a charge of conversion could 
 be founded. The rest of the evidence did not bear out the declaration. 
 
 Coleridge, J. I am of the same opinion. The qualified demand 
 could not be complied with; and the rest of the evidence was not 
 clear enough to entitle the plaintiff to recover. 
 
 Lord Denman, C. J., and Wightman, J., concurred. 
 
 Rule refused.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 473 
 
 SMITH V. YOUNG. 
 (At Nisi Prius, 1S08. 1 Camp. 439.) 
 
 Trover by Smith, as assignee of a bankrupt, for a lease assigned 
 by the bankrupt to the defendant after an act of bankruptcy. * * * 
 
 When the lease was demanded the defendant said "he would not 
 deliver it up; but it was then in the hands of his attorney, who had 
 a lien upon it for a small sum of money due to him." 
 
 Garrow, for the plaintiff, contended that the attorney's possession 
 of the lease was in law the possession of the defendant, who must be 
 considered as having a complete control over it, and that the lien did 
 not, under these circumstances, prevent the refusal to deliver up the 
 deed from amounting to a conversion. 
 
 Lord Elle;nborough. The defendant would have been guilty of a 
 conversion if it had been in his power; but the intention is not 
 enough. There must be an actual tort. To make a demand and re- 
 fusal sufficient evidence of a conversion, the party when he refuses 
 must have it in his power to deliver up or to detain the article de- 
 manded. ^^ 
 
 Plaintiff nonsuited. 
 
 WRIGHT V. FRANK A. ANDREWS CO. 
 
 (Supreme Judicial Court of Massactiusetts, 1912. 212 Mass. 1S6, 98 N. B. 798.) 
 
 This was an action by Wright, in tort or contract, for the conversion 
 of a diamond ring or for breach of contract in failure to deliver the 
 ring. The court refused the following request presented by the de- 
 fendant : 
 
 "Eightli. If at the time of the demand upon the defendant by the plaintiff 
 for the delivery of the ring, the ring was not then in the possession of the 
 defendant, the refusal of the defejndant to deliver the ring would not con- 
 stitute conversion." 
 
 There was a judgment for plaintiff, and defendant brings excep- 
 tions. 
 
 Sheldon, J. The jury could find that the plaintiff purchased a par- 
 ticular diamond of the defendant, the title to which at once passed to 
 
 3 3 Part of the case, raising a question of evidence, is omitted. Reporter's 
 query: "If the defendant had said he had delivered the deed to his attorney, 
 would this have amounted to evidence of a conversion?" 
 
 Accord: De Young v. Frank A. Andrews Co. (191.*'.) 214 Mass. 47, 100 N. 
 E. lOSO : "When the plaintiff relies upon demand and refusal as independent 
 and basic evidence of conversion, it must appear that at the time of the 
 demand and refusal the defendant has the control of the article so as to be 
 able to couii)ly with the demand; and the burden of proving all this is upon 
 the plaintiff'. Lord Ellenborough in Sn)ith v. Young (180S) 1 Camp. 4o9, 
 441 ; 2 Greeul. on Ev. (J44, and cases cited. See also, Johnson v. Couillard 
 (1862) 4 Allen (Mass.) 446; GiUnore v. Newton (1864) 9 Allen (Mass.) 171, 
 85 Am. Dec. 749." Per Hammond, J. 
 
 See, also, 38 Cyc. 2034, and notes 85, 86.
 
 474 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 the plaintiff, but that he left it with the defendant to be set in a ring, 
 for the whole price of $500, of which he paid down the sum of $100. 
 They also could find that the stone was set in the ring to his satisfac- 
 tion and acceptance, and that the defendant then retained it until he 
 should make full payment therefor. The plaintiff, as it could be 
 found, could not then pay the residue of the price, and after a con- 
 siderable delay made an offer to the defendant to rescind the purchase 
 and take back what he had paid ; but the defendant did not accept this 
 oft'er. After still further delay he tendered the balance due to the 
 defendant and demanded the ring, and the defendant merely answered 
 that it did not then have the ring but could get it. By the tender any 
 lien which the defendant had upon the ring was ended, and the plain- 
 tiff was entitled to immediate possession thereof, as could be found, 
 but the defendant refused to give it to him. If so, he was entitled to 
 maintain an action for its conversion. Gilmore v. Newton, 9 Allen, 
 171, 85 Am. Dec. 749; ^lilliken v. Hathaway, 148 Mass. 69, 19 N. E. 
 16, 1 L. R. A. 510. The jury need not believe the defendant's testi- 
 mony that it was not then in possession of the ring. * * * 
 
 The eighth request contained a correct statement of the law so far 
 as it went. Johnson v. Couillard, 4 Allen, 446. But it ought not to 
 have been given without leaving it also to the jury to say whether 
 before the demand and refusal the defendant had parted with or con- 
 verted the ring, or otherwise by its merely wrongful act had disabled 
 itself from delivering it to the plaintiff (Gilmore v. Newton, 9 Allen, 
 171, 85 Am. Dec. 749; Milliken v. Hathaway, 148 Mass. 69, 19 N. E. 
 16, 1 L. R. A. 510), or whether the ring, even if not in the immediate 
 possession of the defendant, was yet not within its full control, as the 
 statement of its president testified to by the plaintiff' indicated. 
 
 Exceptions overruled ^^ 
 
 DUNLAP V. HUNTING. 
 
 (Supreme Court of New York, 1S4G. 2 Denio, 64.3, 43 Am. Dec. 763.) 
 
 Dunlap sued Hunting before a justice in trover for two law books ; 
 
 and the case was as follows : 
 
 The plaintiff was a constable of Ovid, Seneca Co., and had a warrant 
 from the president of a tourt-martial to collect a fine from the defendant. 
 The plaintiff went to the defendanf.s othce in Furmerville, and levied upon 
 two of his law books, which were left in the defendant's possession on hi.s 
 agreeing to deliver them to the plaintiff at some future time. The plaintiff 
 afterwards saw the defendant at Ovid, and demanded the books. Tlie de- 
 fendant replied, either that he had not got the books, or that he would not 
 give them up; the impression of the witness was, that he said he had not 
 got the books. 
 
 Bronson, C. J. The proof leaves it somewhat uncertain where and 
 when the books were to be delivered. But assuming that they were 
 
 34 A part of the case, on another point, is omitted. Compare De Young 
 V, Frank A. Andrews Co. (1913) 214 Mass. 47, 100 N. El 1080.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 475 
 
 to be delivered at the defendant's office in Farmen-ille on demand, it 
 was not indispensable to a right of action that the demand should be 
 made at that place. Property may be demanded of a bailee wherever 
 he may be at the time, and although he is not bound to deliver it at 
 that place. And then if the bailee answer that he is ready to de- 
 liver at the proper place, there will be no breach of his duty. But if 
 he deny the right of the bailor and refuse to deliver the property at 
 all, there could be no use in making another demand, and the bailee 
 will be answerable in the proper action. Scott v. Crane, 1 Conn. 255 ; 
 Higgins V. Emmons, 5 Id. 76, 13 Am. Dec. 41 ; Slingerland v. Morse, 
 8 Johns. 474; Mason v. Briggs. 16 Mass. 453; 2 Kent, 508. Now 
 here, although the demand was made at Ovid, if the defendant's an- 
 swer was that he would not give up the books, that was a full denial 
 of the plaintiflf's right, and no further demand could be necessary. If 
 the answer was that he had not got the books, that would make a 
 more doubtful case. But as the defendant did not intimate that he had 
 lost the books, or that anything had happened to discharge his obliga- 
 tion as a bailee, the answer involved a denial of the bailment and 
 amounted to a refusal to deliver the property. At least, the answer 
 may have been so understood by the jury. A bailee is not at liberty 
 to be silent when a reasonable demand is made, though not at the place 
 for delivery. Higgins v. Emmons, 5 Conn. 76, 13 Am. Dec. 41. Here, 
 there was nothing like a satisfactory answer, and I think the evidence 
 was sufficient to carry the cause to the jury, * * * ^^ 
 
 (ccj Conversion without Demand and Refusal 
 (1) In General 
 
 BRUEN V. ROE. 
 
 (Court of King's Bench. 1665. 1 Sid. 2&i, 82 Reprint, 1095.) 
 
 On a special verdict in trover and conversion. * * * 
 3. It was held by the court on the verdict that if in trover and con- 
 version an actual taking of goods is given in evidence, this is suffi- 
 ciently good without proving a demand and denial, as the taking of my 
 cap from my head ; for that is actual conversion ; but when the thing 
 comes by trover, there ought to be an actual demand, etc. 
 
 36 
 
 3 5 Part of the opinion is omitted. 
 
 Compare Richards v. Pitts Agricultural Works (1885) 37 Hun (N. Y.) 1: 
 (P.'s tlireshing machine is in the posses.sion of D. It is demanded by P. 
 No reply is made by D. "The cases where silence of the person havinj; i)os- 
 session of property, on demand being made on him by the owner, is held to 
 constitue evidence of refusal, are distinguishable from the one at bar." 
 Per Bradley, J., reviewing the authorities.) 
 
 3 6 The te.xt is a translation from the report in Siderfln. In Fowler v. 
 Hollius (1872) L. R. 7 Q. B. 616, 627, 628, Mr. Justice Brett makes the fol-
 
 476 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 IRISH V. CLOYES et al. 
 (Supreme Court of Vermont, 1S3G. 8 Vt. 30, 30 Am. Dec. 446.) 
 
 Trover. Verdict for the defendants. The plaintiff excepted to the 
 charge to the jury. 
 
 Re;dkiELd, J. In relation to the first point decided by the court 
 here, the question arose in reference to certain "mill logs," which were 
 on the land, conveyed by plaintiff to defendants. There was evidence 
 in the case, that the plaintiff had also sold this lumber to defendants. 
 But this point being controverted, it became necessary to inquire 
 whether any sufficient evidence of a conversion by defendants had 
 been given. The only evidence relied upon was, that after the con- 
 veyance of the land, some stranger wishing to purchase the logs, ap- 
 plied to defendants for permission to purchase them of plaintiff. The 
 defendants refused to give any such permission or consent, on the 
 alleged ground that they had already bought the logs of plaintiff. The 
 case finds that the defendants had not in any other way whatever in- 
 terfered with the property in question. 
 
 For the purposes of the consideration of this question it is to be 
 conceded that the "logs" were the property of the plaintiff. And we 
 have no doubt that the mere assertion by defendants, that the proper- 
 ty belonged to them, is not in any sense evidence of a conversion, or 
 from which a conversion can be inferred. If this assertion had been 
 made in plaintiff's presence, and at a time when he claimed to take 
 possession of the logs, and for the purpose of deterring him therefrom, 
 it might merit a difTerent consideration. But made as it was to a 
 stranger, and not in the presence of plaintiff, or within view of the 
 logs, it would be too much to say this is evidence from which the 
 jury could be permitted to infer a conversion of the property by de- 
 fendants. 
 
 This is in accordance with the decisions which have been had upon 
 analogous cases. Any mere assertion of the right of dominion is never 
 permitted to go to the jury, in cases of trover, as evidence of a con- 
 version, unless the assertion is made in view of the property, and in 
 presence of the owner, and in order to deter him from exercising his 
 just control over it. A demand and refusal are evidence of a conver- 
 sion only when the defendant had, at the time of the demand, the ac- 
 tual custody of the property, so that he might have delivered it if he 
 would. Hence in the case of title deeds, which had been wrongfully 
 pledged to an attorney, but were in the custody of the attorney, it was 
 held at nisi prius, and the decision has always been acquiesced in, that 
 a demand upon the defendant and a refusal, under the circumstances, 
 
 lowing comment on tliis case: "The actual taking there described is a taking 
 intentionally without or against the consent of the person in p(xssession. The 
 trover imiilios an actual possession, hut is held to he insuflicient to consti- 
 tute a conversion, because consistently with it the defendant may not be claim- 
 ing anything more than the mere custody of the goods."
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 477 
 
 was not evidence of a conversion. Smith v. Young, 1 Com. 439, 1 
 Camp. 439. And a false assertion by a carrier that he had delivered 
 the goods, does not amount to a conversion. Attersol v. Briant, Id. 
 409, 1 Camp. 409. And in every case where a demand and refusal is 
 permitted to go to the jury as evidence of a conversion, it must be 
 preceded by evidence that the goods are in defendant's possession, or 
 what is equivalent, in the possession of his servant, with his knowl- 
 edge or by his consent, either express or implied. Bull. N. P. 44, cited 
 3 Stark. Ev. 1497, and also 2 Salk. 441, Jones v. Hart. 
 
 ELDRED v. OCONTO CO. 
 (Supreme Court of Wisconsin, 1873. 33 Wis. 133.) 
 
 This is an action to recover the possession of 1,446 pine saw logs, 
 which the complaint alleges were unlawfully detained by the defend- 
 ant from the plaintiff. The complaint is in the usual form, alleging 
 that the plaintiff is the owner and entitled to the possession of the logs. 
 The answer is the general denial. The plaintiff had a verdict and 
 judgment, and the defendant appealed. 
 
 Lyon, j, * * * q^j^g court refused to give the following in- 
 structions prayed for on behalf of the defendant : 
 
 "If the logs, taken from the land of the plaintiff, were taken by a party 
 or parties other than the defendant, and tlie defendant purchased said logs 
 in good faith, without knowletlge how they cauie into the possession of said 
 third pnrty or parties, then the defendant is not liable in this action witliout 
 a previous demand." 
 
 * * * The testimony tends to show that the logs in controversy 
 were purchased in good faith by the defendant, of parties who wrong- 
 fully took the same from the lands of the plaintiff * * * ^l-^Q. ^q. 
 f endant supposing and believing that their vendors owned the logs ; 
 and no demand therefor was made before this action was commenced. 
 The question is, whether, under these circumstances, a demand is nec- 
 essary before an action to recover the logs can be maintained against 
 the defendant. 
 
 It must be conceded that in New York the courts have uniformly 
 held, that where property which has been wrongfully taken from the 
 owner, comes into the hands of an innocent third party, an action to 
 recover it cannot be maintained by the owner against such bona fide 
 holder thereof, until after demand. But we find a decided weight of 
 authority the other way, and we are satisfied that the New York rule 
 is not sound in principle. 
 
 The subject is fully discussed and numerous authorities cited, in 
 the cases of Stanley v. Gaylord, 1 Cush. (Mass.) 536, 48 Am. Dec. 643; 
 Galvin v. Bacon, 11 Me. 28, 25 Am. Dec. 258; and Smith v. McLean, 
 24 Iowa, 322. The head note to the latter case is as follows: "De- 
 mand of possession before commencing an action of replevin need be
 
 478 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 made only in those cases where it is necessary to terminate the right 
 of possession in the defendant and confer it upon the plaintiff. Where 
 both parties claim title and the right of possession incident thereto, no 
 demand is necessary." This is precisely such a case. Both parties 
 here "claim title and the right of possession incident thereto." In the 
 IMaine and Massachusetts cases above cited it was held that if the bailee 
 of a chattel, without authority to retain or sell it, does sell or mort- 
 gage such a chattel, even to a person who believes that he may law- 
 fully do so, and the purchaser or mortgagee takes possession of the 
 same, trover or replevin can be maintained therefor against such in- 
 nocent purchaser or mortgagee, by the owner, without previous de- 
 mand. These are not as strong cases for the plaintiff as this, because 
 in this case there was never any bailment of the logs. It is not deemed 
 necessary to enter into a full discussion of the question. It is suffi- 
 cient to say that we approve of the doctrine of the above cases, 
 and adopt the same as the law of this case. 
 
 But it is said that this doctrine is only applicable where the com- 
 plaint charges a wrongful taking. We do not think that this position 
 can be maintained. By omitting to allege in his complaint that the 
 original taking was tortious, the plaintiff does not admit that the 
 taking was lawful, or preclude himself from showing that it was, in 
 fact, a wrongful taking. And by proving its tortious character he 
 demonstrates that the detention of the logs by the defendant is unlaw- 
 ful. In other words, by proving a state of facts which renders a de- 
 mand unnecessary, he proves the gravamen of his action, to wit, the 
 unlawful detention of the logs. * * * ai 
 
 Judgment affirmed. 
 
 (2) Different Forms of Such Conversion 
 
 BENCH V. WALKER. 
 (Supreme Judicial Court of Massachusetts, 1780. 14 Mass. 500.) 
 
 Trover for four hogsheads of rum. On the trial, the evidence 
 appeared thus : Walker undertook to transport from Boston to 
 Springfield the four hogsheads of rum for the plaintiff. At the time 
 of the delivery to Walker, the rum was good; but on its arrival at 
 Springfield, it was much adulterated and greatly lessened in value; 
 and whetlier it was thus adulterated by the defendant himself, or by 
 his servant, the teamster, did not appear. It was objected that trover 
 did not lie in this case. 
 
 But Gushing, C. J., with the rest of the Court, held that it will lie 
 For the alteration of the quality of the liquor undertaken to be trans- 
 ported, whether it was done by the defendant or his servant, was 
 an unlawful conversion. Vide Holt, 528. 
 
 3 7 Only so much of the case is given as relates to the one point
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 479 
 
 KEYWORTH v. HILL et ux. 
 
 (Court of King's Bench, 1820. 3 Bam. & Aid. 684, 100 Reprint. 811.) 
 
 Trover against husband and wife, for a bond and two promissory 
 notes. The declaration stated that the defendants converted and 
 disposed of the same to their own use, plea, not guilty. After verdict 
 for the plaintiff, a rule was obtained in last Easter term for arresting 
 the judgment, on the ground that no action could be supported against 
 the husband and wife for converting goods to their own use, inasmuch 
 as the wife could acquire no property, and the conversion must be 
 by the husband only, and Berry v. Nevys, Cro. Jac. 661, was cited. 
 
 Abbott, C. J. The question, in this case, arises upon a motion in 
 arrest of judgment. The ground of the objection is, that inasmuch 
 as a married woman cannot acquire property, the conversion of the 
 property can only be the act of the husband, and must be so charged. 
 If the allegation in the declaration, that the defendants converted the 
 property to their own use, necessarily imported an acquisition of 
 property by them, there would be considerable weight in the objection. 
 It seems to me, however, that that is not the necessary import of the 
 expression, for a conversion may be by an actual destruction of the 
 property. And if the allegation does not necessarily import that the 
 defendants acquired a property, we are bound, after the verdict, to 
 consider the conversion to have taken place by other means than by 
 the acquisition of property. I am, therefore, of opinion that the dec- 
 laration is sufficient, and that this rule should be discharged. 
 
 Bayley, J. It is quite clear that in trespass the husband and wife 
 might be jointly sued. The reason of which is, that the action is 
 founded on the wrongful act of the defendants. Now, it seems to me, 
 that the action of trover is founded on the tort also. The cases cited 
 on the part of the defendant proceed upon the supposition that the 
 conversion could only take place by the defendants acquiring a prop- 
 erty. It seems to me, however, that in trover the foundation of the 
 action is not the acquisition of property by the defendants, but the 
 deprivation of property to the plaintiffs. If the wife were to take up 
 a book, and her husband desired her to put it in the fire and burn it 
 and she did burn it, that would be a conversion, and yet the husband 
 and wife would acquire no property; so, if a man takes my horse 
 and rides it, I may bring trover for the temporary conversion. And 
 if there can be any case of a conversion without an ultimate change 
 of property, we are bound, after verdict, to imply that it was such 
 a conversion as the wife might be guilty of. 
 
 Rule discharged.^^ 
 
 38 The arguments of counsel and the concurring oiiinions of ITolroyd niid 
 and Best, .TJ., are omitted. Best, J., remarked: "Tliere may be a distinction 
 between detinue and trover: in tlie former, the plaintiff seelvs to recover 
 the goods in specie; in the latter he only asks for damages." And see
 
 480 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 CROSSIER V. OGLEBY. 
 
 (Court of King's Bench, 1717. 1 Str. 60, 93 Reprint, 3S5.) 
 
 Trover by an administrator for rum taken and converted in the 
 intestate's life. Upon evidence it appeared, that the rum was taken 
 in the intestate's life, but not used till after his death. And the ques- 
 tion was, whether this evidence of not vising it till the administrator's 
 time would not overthrow the declaration of a conversion in the in- 
 testate's life. 
 
 Sed PER Curiam. The time of using the rum lay in the breast of 
 the defendant, who ought to have disclosed that matter by his plea: 
 and the taking in the life of the intestate, and keeping it till his death, 
 is a trover and conversion sufificient to maintain this declaration. 
 Wherefore the plaintiff had judgment, this being a point reserved at 
 nisi prius.^" 
 
 TINKLER V. POOLE et al. 
 (Court of King's Bencti, 1770. 5 Burrows, 2657, 98 Reprint, 39G.) 
 
 This was an action of trover for goods seized by a Custom-House 
 officer. It was a parcel of herrings seized by him for not having 
 satisfied the salt-duty, and carried by him to the King's warehouse. 
 It was agreed that they were not seizable : and the only question was 
 "whether this species of action lay against the officer, for seizing them 
 and carrying them away." 
 
 Serjeant Glynn, for the plaintiff, argued that it did. The conver- 
 sion, he said, was the substantial part of the action : the trover is ficti- 
 tious. The defendant had no authority to take them. He took them 
 wrongfully. He was a wrong-doer. He acquired a tortious property 
 of them in himself. ****(> 
 
 Isaac V, Clarke (1613) 2 Bulstr. 30S, per Doddridge, J. : "If goods are delivered 
 to husband tind wife, no action of detinue lies against them both for these, 
 but against the husband alone." 
 
 39 "Trover also became concurrent with trespass. In 1601 the Court of 
 King's Bench decided, that trover would lie for a taking. In the same year 
 the Court of Common Pleas was equally divided on the question, but in 
 1604, in the same case, it was decided, one judge dissenting, that the plaintiff 
 might have his election to bring trespass or case. The Exchequer gave a 
 similar decision in 1610, Leverson v. Kirk, 1 Roll. Ab. 105, (M), 10. Iii 
 1627, in Kinaston v. Moore, Cro. Car. 89, 'semble per all the Justices and 
 Barons, * * * although he take it as a trespass, j'et the other may 
 charge him in an action ujion the case in a trover if he will.' In all these 
 cases the original taking was adverse." James Barr Ames, in "History of 
 Trover," 11 Harv. Law Rev. 384, 3 Anglo-Amor. Leg. Essays, 442. See also 
 the opinion of Parke, J., in Norman v. Ball (1831) 2 B. & Ad. 190. 
 
 *o In the omitted portion of the argument two nisi prius cases of half 
 a century before were discussed by counsel and Judges : Etriche v. An OfTicer 
 of the Bevenue (1720) Bunbury, 67, and Israel v. Ktheridge (1721) P.unbury, 
 80. In the former, "upon an infornmtion of seizure of goods, there had been
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 481 
 
 Lord IMansFiEld, who tried the present cause, said he saved this 
 point, upon the cases cited out of Bunbury, by the counsel for the 
 defendants. But nothing is clearer, than "that trover lies." It is a 
 wrongful conversion ; let the property be in whom it will. 
 
 The case of Chapman v. Lamb, in 2 Strange, 943, was mentioned by 
 Mr. \\'allace ; which was subsequent to the others, being in [Michael- 
 mas term 6 G. IL It was trover against a Custom-House officer for 
 14 shirts, a nightgown, and cap, seized for non-payment of duty; 
 which were stated, negatively, and "not to be imported as merchan- 
 dize." The plaintiff had judgment; without any objection to its being 
 an action of trover. 
 
 The court ordered the postea to be delivered to the plaintiff. 
 
 a verdict for the defendant, who afterwards brou2:ht trover against the 
 officer, for the goods. The Attorney General objected, that trover did not 
 lie for these goods, for that the seizure of them and putting them into the 
 Custom-House warehouse could not be said to be any conversion to its 
 own use, but trespass, or trespass upon the case; and Mr. Attorney insist- 
 ing upon a siJecial verdict, and the Chief Baron inclining to be of that 
 opinion, 'that trover would not lie,' the plaintiff chose to be nonsuited." 
 Lord Mansfield said : "Mr. Bunbury never meant that those cases should 
 have been published : they are very loose notes." 
 
 In the latter case Baron Price is reported as saying "that trover did not 
 lie against an officer, for seizure absque probabili causa; but trespass would." 
 Baron Montague was of opinion "that neith&r trover nor trespass would lie, 
 because the seizure is not contra pacem ; but that trespass upon the case, 
 setting forth that the seizure was absque probabili causa, would lie." 
 
 See also Professor Ames' remark : "Trespass, as the learned reader will 
 remember, would not lie, originally, for a wrongful distress; the taking in 
 such a case not being in the nature of a disseisin. In time, however, tres- 
 pass became concurrent with replevin. History repeats itself in this respect, 
 in the development of trover. In Dee v. Bacon (1595) Cro. El. 4.35, the de- 
 fendant pleaded to an action of trover that he took the goods damage 
 feasant. The plea was adjudged bad as being an argumentative denial of 
 the conversion. Salter v. Butler, Noy, 46, and Agars v. Lisle (161.3) Hutt. 
 10, were similar decisions, bec-ause, as was said in the last case, 'a distress 
 is no conversion.' The same doctrine was held a century later in two cases 
 in Bunbury. But in 1770, in Tinkler v. Poole, 5 Burr. 2657, these two cases, 
 which simply followed the earlier precedents, were characterized by Lord 
 Mansfield as 'very loose notes,' and ever since that case it has been generally 
 agi'eed that a wrongful distress is a conversion. This last step being taken, 
 trover became theoretically concurrent with all of our four actions, appeal 
 of larceny, trespass, detinue, and replevin, and in practice the common 
 remedy in all cases of asportation or detention of chattels or of their misuse 
 or destruction by a defendant in possession. The career of trover in the field 
 of torts is matched only by that of assumpsit, the other specialized form of 
 action on the case, in the domain of contract." History of Trover (1S9S) 11 
 Harv. Law Rev. 385, 3 Anglo-Am. Leg. Essays, 444. 
 
 Hepb.Tobts — 31
 
 482 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 RAMSBY V. BEEZLEY. 
 
 (Supreme Court of Oregon, 1S83. 11 Or. 49, 8 Pac. 288.) 
 
 Lord, J. This was an action of trover, and the only question in- 
 volved in the case is, what will constitute a conversion? It originated 
 in the refusal of the court to give certain instructions asked by the 
 defendant, and an exception to an instruction given, based upon evi- 
 dence tending to show about this state of facts : That the plaintiff 
 was the owner of the cattle in controversy by purchase from one Smith, 
 which were running at large on the range; that the defendant sold 
 them to Strickland, and received therefor the sum of $500, and that 
 the plaintiff has never seen nor had possession of the cattle since. The 
 defendant admitted that he sold the cattle to Strickland, received the 
 money for them, and "believed and supposed that Strickland had took 
 them," but there was no evidence that the defendant ever exercised 
 any other actual control or dominion over the cattle than such sale to 
 Strickland, or that he actually delivered them to him, or that Strick- 
 land ever gathered the cattle in pursuance of such sale, except what 
 may be inferred from the fact that the plaintiff has never seen, nor 
 had possession of his cattle, since the sale, and the payment for the 
 cattle, and the admission of the defendant that he believed and sup- 
 posed that Strickland had taken the cattle. 
 
 Upon this state of facts the court gave the following instruction to 
 the jury, to which the defendant excepted: 
 
 "Any assertion of title to or any act of dominion over personal property 
 inconsistent with the rights of the owner is a conversion. A sale of the 
 property of one person by another is a conversion. Therefore, if you find 
 the plaintiff was the owner of the cattle at the time of the alleged taking, 
 and that the defendant sold them without the plaintiff's consent, or in any 
 way appropriated them to his own use without plaintiff's consent, you should 
 find for the plaintiff in such sum as he was damaged thereby. But if you 
 find that the plaintiff was not the owner of the cattle, or that the defendant 
 did not so convert them, you should find for the defendant." 
 
 The effect of the instruction asked and the point raised is that, to 
 maintain an action of trover, the defendant must have actual or vir- 
 tual possession of the property. A conversion is defined to be "any 
 distinct act of dominion wrongfully exerted over one's property in 
 denial of his right, or inconsistent with it." Cooley, Torts, 448. "It 
 may be laid down as a general princi])le," says Mr. Bigelow, "that 
 the assertion of a title to or an act of dominion over personal property 
 inconsistent with the right of the owner is a conversion." Bigelow, 
 Torts, 428; 2 Hil. Torts, § 3, p. 97. Of the different ways by which 
 a conversion of personal property may be effected, one is, where a par- 
 ty sells the property of another without his authority or consent. 
 Such sale is the assumption of ownership, of dominion over, or 
 right to control the property, inconsistent with, and in denial of the 
 rights of the true owner. Hence, it is said, "Every assuming by 
 one to dispose of the goods of another is a conversion." "Trover,"
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 483 
 
 Bac. Abr. 631. Or "the assumption of authority over property, and 
 actual sale, constitutes a conversion." Gilman v. Hill, 36 N. H. 324. 
 No actual force need be used, (Gibbs v. Chase, 10 Mass. 128,) nor 
 any manual taking or removal of the property, (Reynolds v. Shuler, 
 5 Cow. [N. Y.] 326; Connah v. Hale, 23 Wend. [N. Y.] 465,) nor 
 proof that the defendant had actual possession of the property, (Fer- 
 nald V. Chase, 37 Me. 289,) for, in the language of Shepley, C. J. : 
 "The exercise of such a claim of right or dominion over the property 
 as assumes that he is entitled to the possession, or to deprive the 
 other party of it, is a conversion." See, also, Anonymous, 6 Mod. 
 212; McCombie v. Davies, 6 East, 540; Reid v. Colcock, 1 Nott & 
 AIcC. (S. C.) 601, 9 Am. Dec. 729; Dickey v. Franklin, 32 Me. 572. 
 As applied to the facts, the instruction was not objectionable. The 
 defendant had assumed to himself the property and the right of dis- 
 posing of the plaintiff's cattle. He sold them, received the money for 
 them, authorized the purchaser to take them, and swears he believed 
 and supposed the cattle were taken. The gist of conversion is the 
 owner's deprivation of his rightful dominion and control over his 
 property. Under this state of facts, the sale of the defendant was 
 a wrongful assumption of authority and dominion, subversive of the 
 rightful dominion and control of the plaintiff over his property. The 
 judgment must be affirmed.*^ 
 
 THURSTON et al. v. BLANCHARD. 
 
 (Supreme Judicial Court of Massachusetts, 1S;]9. 22 Pick. 18, 
 
 33 Am. Dec. 700.) 
 
 Trover, to recover the value of certain goods alleged to have been 
 obtained by the defendant, from the plaintiff's, by means of false and 
 fraudulent pretences. 
 
 It appeared on the trial that the goods were purchased of the plain- 
 tiffs by the defendant, by means of false representations, for the sum 
 of %(i77 .77 ; that the defendant gave his negotiable promissory note 
 for the amount, payable in six months ; that this note had been in 
 the possession of the plaintiff's ever since it was given ; that they had 
 never offered to give it up to the defendant; and that they had not 
 made a demand upon him, for the goods, before commencing this suit. 
 The plaintiff's, however, produced the note in court, at the trial, and 
 
 41 Compai-e Mead v. Thompson (1875), 78 111. 62: (D. brought an attach- 
 ment against T., an absconding debtor, and levied on T.'s corn. At the time, 
 P., the landlord of T., had a lien on this corn for rent. Judgment was ob- 
 tained by D. in his attachment suit, and the corn so levied on being sold 
 at public sale by a constable, D. bid it off and transferred his bid to E., 
 who paid for the property and took it away. There was no further possession 
 or intei-metldling by D. In P.'s suit for conversion, it is contended that, 
 however it may be as to E., there is no liability for conversion on the part 
 of D.) See also Geneva Wagon Company v. Smith (1905) 1S8 Mass. 202, 74 
 N. E. 299.
 
 484 TORTS THROUGH ACTS OP ABSOLUTE LIABILITY (Part 1 
 
 there offered to give it up, or to put it on the files of the court; but 
 the defendant declined taking it, and it was placed on the files. 
 
 The defendant offered no evidence in his defence, but relied upon 
 the facts, that the note had not been given up or tendered to him by the 
 plaintiff's, and that no demand had been made upon him for a return 
 of the goods. A verdict was taken for the plaintiffs, by consent. 
 
 If the Court should be of opinion, that the action could be main- 
 tained, judgment was to be rendered on the verdict; otherwise, the 
 plaintiffs were to be nonsuited. 
 
 Choate and S. Parker, for the defendant. * * * a demand of 
 the goods was necessary on the part of the plaintiffs. The sale was 
 voidable and not void, even if the evidence proved that the goods were 
 obtained under false pretences. The title therefore passed, voidable 
 only at the election of the vendor. 
 
 Shaw, C. J. We are now to take it as proved in point of fact, to 
 the satisfaction of the jury, that the goods, for which this action of 
 trover is brought, were obtained from the plaintiffs by a sale, but that 
 this sale was influenced and effected by the false and fraudulent repre- 
 sentations of the defendant. Such being the case, we think the plain- 
 tiffs were entitled to maintain their action, without a previous demand. 
 Such demand, and a refusal to deliver, are evidence of conversion 
 when the possession of the defendant is not tortious ; but when the 
 goods have been tortiously obtained, the fact is sufficient evidence of 
 conversion. Such a sale, obtained under false and fraudulent repre- 
 sentations, may be avoided by the vendor, and he may insist that no 
 title passed to the vendee, or any person taking under him, other than 
 a bona fide purchaser for value and without notice, and in such case 
 the seller may maintain replevin or trover for his goods. Buffington 
 V. Gerrish, 15 Mass. 156, 8 Am. Dec. 97. * * * 42 
 
 Judgment on the verdict for the plaintiffs. 
 
 PIIORT V. BOTT. 
 
 (Court of Exchequer, 1S74. L. R. 9 Exch. 8G.) 
 
 Action of trover for barley, tried before Archibald, J., at the Staf- 
 fordshire Summer Assizes, 1873. The facts were as follows : The 
 plaintiff's, who were corn merchants, trading under the name of Broch- 
 ner & Co., at Hull, had been in the habit of employing one Grimmett 
 as their broker. In consequence of a telegram from Grimmett, they, 
 on the 8th of June, 1872, fowardcd to the London & North Western 
 Railway station at Birmingham 83 quarters of barley, and at the same 
 
 42 A portion of the case, on the effect of bringing suit without a previous 
 tender of the note given by the fraudulent vendee, is omitted. 
 
 .See the concluding remarks of Professor Ames' "History of Trover," 11 
 Harr. Law Rev. 38G, 3 Anglo-Am. Legal Essays, 445.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 485 
 
 time sent to the defendant, who was a licensed victualler carrying on 
 business at Deritend, Birmingham, a letter, inclosing an invoice for 
 the barley, in which it was stated to be "sold by Mr. Grimmett as 
 broker between buyer and seller," and a delivery order, which made 
 the barley deliverable "to the order of consignor or consignee." The 
 barley had in fact never been ordered by the defendant, who had had 
 no previous dealings with either the plaintiffs or Grimmett. A day or 
 two after the receipt of these documents by the defendant, Grimmett 
 called ; the defendant produced the documents, and said, "What does 
 this mean? I never bought any barley through you off Brochner & 
 Co." Grimmett said : "It was a mistake of Brochner & Co. ; they had 
 no doubt confused the defendant's name and some other name ; they 
 were doing a large business, and might have made a mistake." Grim- 
 mett then asked the defendant to indorse the order, telling him that 
 he could not get the barley without, and that by not sending the order 
 back expense would be saved. Thereupon the defendant indorsed the 
 delivery order to Grimmett, who took it to the railway station, ob- 
 tained delivery of the barley, disposed of it, and absconded. 
 
 In answer to a question by the learned judge, the jury found that 
 the defendant, in signing the order, had no intention of appropriating 
 the barley to his own use, but was anxious to correct what he believed 
 to be an error; and, on the learned judge adding, "and with a view 
 of -returning the barley to the plaintiffs," they assented. The learned 
 judge then directed the verdict to be entered for the defendant, with 
 leave to the plaintiffs to move to enter the verdict for them for £180, 
 the value of the barley. A rule nisi was obtained accordingly. 
 
 BramwELL, B.*^ I think the plaintiff's are entitled to recover; 
 though, so far as concerns the defendant, whose act was well meant, I 
 regret the result. Mr. Bosanquet gave a good description of what 
 constitutes a conversion when he said that it is where a man does an 
 unauthorized act which deprives another of his property permanently 
 or for an indefinite time. The expression used in the declaration is 
 "converted to his own use"; but that does not mean that the defend- 
 ant consumed the goods himself ; for, if a man gave a quantity of 
 another person's wine to a friend to drink, and the friend drank it, 
 that would no doubt be as much a conversion of the wine as if he 
 drank it himself. Now here the defendant did an act that was un- 
 authorized. There was no occasion for him to do it ; for the delivery 
 order made the barley deliverable to the order of the consignor or 
 consignee, and if the defendant had done nothing at all it would have 
 been delivered to the plaintiffs. And there is no doubt that by what 
 he did he deprived the plaintiffs of their property; because, by means 
 of this order so indorsed, Grimmett got the barley and made away 
 with it, leaving the plaintiffs without any remedy against the railway 
 
 48 riie ars^nments are omitted, and a concurring opinion by Cleasl»y, B. 
 Compare Mead v. Thompson (1870) 7S 111. 02, 64.
 
 486 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 company, who had acted according to the instructions of the plaintiffs 
 in delivering the barley to the order of the consignee. The case, there- 
 fore, stands thus : that by an unauthorized act on the part of the 
 defendant, the plaintiff's have lost their barley, without any remedy 
 except against Grimmett, and that is worthless. It seems to me there- 
 fore, that this was assuming a control over the disposition of these 
 goods, and a causing them to be delivered to a person who deprived 
 the plaintiffs of them. The conversion is therefore made out. 
 
 Various ingenious cases were put as to what would happen if, for 
 instance, a parcel were left at your house by mistake, and you gave it 
 to your servant to take back to the person who left it there, and the 
 servant misappropriated it. Probably the safest way of dealing with 
 that case is to wait until it arises ; but I may observe that there is 
 this difference between such a case and the present one, that where 
 a man delivers a parcel to you by mistake, it is contemplated that if 
 there is a mistake, you will do something with it. What are you to 
 do with it? Warehouse it? No. Are you to turn it into the street? 
 That would be an unreasonable thing to do. Does he not impliedly 
 authorize you to take reasonable steps with regard to it — that is, to 
 send it back by a trustworthy person? And when you say, "Go and 
 deliver it to the person who sent it," are you in any manner convert- 
 ing it to your own use? That may be a question. But here the 
 defendant did not send the order back ; but at Grimmett's request in- 
 dorsed it to him, though, no doubt, as the jury have found, with a 
 view to the barley being returned to the plaintiffs. There is therefore 
 a distinction between the case put and the present one. And there 
 is also a distinction between the case of Heugh v. London & North 
 Western Ry. Co., Law Rep. 5 Ex. 51, which was cited for the defend- 
 ant, and the present case ; because there it was taken that the plaintiff 
 authorized the defendants to deliver the goods to a person applying 
 for them, if they had reasonable grounds for believing him to be the 
 right person. 
 
 On these considerations I think the plaintiff's are entitled to recover. 
 But I must add one word. This is an action for conversion, and I 
 lament that such a word should appear in our proceedings, which 
 does not represent the real facts, and which always gives rise to a 
 discussion as to what is, and what is not, a conversion. But supposing 
 the case were stated according to a nonartificial system of pleading, 
 thus : "We, the plaintiffs, had at the London & North Western Rail- 
 way station certain barley. We had sent the delivery order to you, 
 the defendant. You might have got it, if you were minded to be the 
 buyer of it ; you were not so minded, and therefore should have done 
 nothing with it. Nevertheless, you ordered the London & North 
 Western Railway Company to deliver it, without any authority, to 
 Grimmett, who took it away." Would not that have been a logical 
 and precise statement of a tortious act on the part of the defendant,
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 487 
 
 causing loss to the plaintiffs? It seems to me that it would. I think, 
 but not without some regret, that this rule should be made absolute, 
 to enter the verdict for the plaintiffs. 
 Rule absolute. 
 
 MULTERER v. DALLENDORFER. 
 
 (Supreme Court of Wisconsin, 1914. 158 Wis. 268, 148 N. W. 1084.) 
 
 Action to recover the value of a quantity of lumber claimed to have 
 been wrongfully taken from plaintiff by defendants and converted 
 by the latter to their own use. 
 
 The major question at issue was whether the lumber passed to de- 
 fendants under a bill of sale made to them by Theresa Multerer, 
 October 4, 1912, when they purchased a farm of her and some per- 
 sonal property, located on and used in connection with it. The lumber 
 was then on the place. Her grantor had piled it there in 1906 for 
 farm building purposes. He sold her farm and the lumber some six 
 years later. The bill of sale made by her in 1912 to defendants de- 
 scribed the personal property intended to be conveyed with the place, 
 as follows: "Seven cows, four calves, 30 chickens, 3 pigs, 114 sacks 
 of oats, 18 sacks of barley, 5 tons of hay, one Deering binder, one 
 Deering mower, one rake, one tedder, one Monitor seeder, 2 drags, 
 1 plow, 1 cultivator, 1 wagon, 3 buggies, one double harness, one single 
 harness, all corn and 30 bushels of potatoes, all small tools such as 
 sacks, forks, etc., including everything but household furniture." 
 
 Without taking possession of the farm defendants sold it and the 
 personalty they supposed they obtained with it to one Felton. There- 
 after he took possession of the property he supposed to be included 
 in his purchase. There was evidence tending to show that defendants 
 claimed to own the lumber and authorized Felton to take possession 
 of it; that he did so and was in such possession claiming as owner 
 under a conveyance from such defendants when the action was com- 
 menced. There was some controversy as to whether the lumber was 
 spoken of, particularly, at the time of the sale to defendants, and 
 some as to whether the bill of sale was changed after its execution. 
 
 The cause was submitted to the jury for a special verdict without 
 any question as to whether the lumber was part of the land at the 
 time of the sale to defendants. The jury found as follows: Plaintiff 
 and defendants did not agree, in making the bargain and sale as to 
 the farm and personalty, that the lumber was part of the latter. The 
 bill of sale was not changed after it was signed by plaintiff. 
 
 The court decided that the lumber, at the time of the sale to defend- 
 ants, was not a fixture; that the assertion of right thereto by de- 
 fendants and taking possession thereof by their grantee by their au- 
 thority was a wrongful conversion of the property and that the de- 
 scription contained in the bill of sale did not include such property.
 
 488 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 Judgment was rendered in plaintiff's favor. 
 
 Marshall, J. The objections to the judgment are efficiently an- 
 swered by the following: 
 
 1. Whether the lumber at the date of the deed to defendants, was 
 a fixture and so part of the realty, in the most favorable view for 
 respondent, was a mixed question of law and fact, and no request 
 having been made for a finding by the jury in respect thereto, it is 
 presumed that the decision of the matter was left to the court and 
 the result cannot be disturbed, since it is not clearly contrary to the 
 evidence. 
 
 2. The verdict of the jury is broad enough to negative there having 
 been any occurrence characterizing the sale of the land to defendants 
 constituting an express or implied agreement that the lumber should 
 pass as part of the subject of the sale transaction, or in the light of 
 which either the bill of sale or the deed should be read as including 
 such property, and the decision in that regard is fairly supported by 
 the evidence. 
 
 3. The meaning of the language of the bill of sale to defendants, as 
 regards whether the parties intended thereby to include the lumber, 
 so far as not covered in plaintiff's favor by the verdict, was a matter 
 for the court to determine, and it seems that its construction of the 
 paper is the most reasonable one which can be given. The words "etc., 
 including everything but household furniture" following the long 
 schedule of articles such as, generally, characterize a farm property, 
 in the absence of pretty clear circumstantial indications to the con- 
 trary, or express explanation in the writing, should be read as refer- 
 ring to articles of like nature as regards being for and in use as part 
 of the farm property. As said by the trial court, the rule of "noscitur 
 a sociis" ; the meaning of a word may be discovered by looking to the 
 plain meaning of the words associated with it, applies. That is very 
 familiar doctrine. 
 
 4. The consummated intention of defendants of placing their gran- 
 tee in possession of the lumber as owner, was a sufficient appropri- 
 ation of the property to their own use to render them liable in con- 
 version, though there was no manual interference by them with such 
 property. 
 
 The judgment is affirmed. 
 
 WHEELOCK v. WHEELWRIGHT. 
 (Supreme Judicial Court of Massachusetts, ISOO. 5 -Arass. 104.) 
 
 The declaration was in case, and alleged that the defendant, on the 
 15th of January, 1806, hired a horse and sleigh of the plaintiff to 
 ride from Boston into the country four miles, and to return at 7 
 o'clock in the evening; yet the defendant so carelessly and immoder- 
 ately drove and rode the said horse and sleigh, and neglected to
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 489 
 
 take proper care of said horse, and exposed him after said immoderate 
 driving and riding for so long a time to the extreme coldness of the 
 weather, that by means thereof the said horse died, and the said 
 sleigh was broken, &c. 
 
 The defendant pleaded the general issue of not guilty, and the 
 cause was tried on the review at the last November term in this coun- 
 ty, before the Chief Justice, when a verdict was found for the plain- 
 tiff, subject to the opinion of the Court, upon the following case 
 agreed by the parties, viz. : 
 
 On the 15th of January, 1S06, between 3 and 4 o'clock in the afternoon, 
 the weather being extremely cold, the defendant hired of the plaintiff in 
 Boston the horse mentioned in the declaration, with a slei.irh, to ride to the 
 Punch Bowl in Bi-ookline, distaiit about 4^^ miles, the defendant saying that 
 he should retiirn by 7 o'clock in the evening. No express price for the hire 
 was agreed upon. After the defendant had rode to the Bunch Bowl, and tar- 
 ried there about 15 minutes, he rode on about 414 miles further to Water- 
 town. After staying there until past 9 o'clock in the evening, he returned 
 with the horse and sleigh to Gen. W.'s door in Boston, one of the general's 
 family being in the sleigh, after 10 o'clock. Having remained at the general's 
 about five minutes, he took the horse and sleigh to return them to Wheelock ; 
 and having rode about two rods, the horse, after rearing up. fell dead on 
 one of the shafts of the sleigh, which was broken by the fall. The sleigh 
 was returned to Wheelock, and notice given by Wheelwright that the horse 
 was dead. It was agreed that the defendant did not ride the horse immoder- 
 ately, or neglect to feed or cover him properly with cloths. 
 
 If the Court should be of opinion that on this evidence the plaintiff 
 can, in this action, recover damages on account of the horse it was 
 agreed the verdict should stand ; otherwise it should be set aside, and 
 a general verdict entered for the defendant, and judgment be ren- 
 dered accordingly. 
 
 Parsoxs, C. J. Upon comparing the evidence with the declaration, 
 we are satisfied that the case agreed has negatived the gravamen al- 
 leged by the plaintiff in his declaration, and that in this action the 
 plaintiff cannot recover. 
 
 The defendant, by riding the horse beyond the place for which he 
 had liberty, is answerable to the plaintiff in trover. For thus riding 
 the horse is an unlawful conversion; and if the horse had been re- 
 turned to the plaintiff, the defendant might have given it in evidence 
 in mitigation of damages. As the horse was not returned, the de- 
 fendant might have recovered the value of the horse in damages. 
 What that value was, must be settled by a jury. If the horse in fact 
 labored under a mortal distemper, although unknown before his death, 
 the damages would have been the value of a horse so diseased. But 
 it would have been incumbent on the defendant to have proved that 
 from any causes the horse was not worth the apparent value; and 
 if he failed to satisfy the jury of the reduced value, the plaintiff ought 
 to recover the apparent value. 
 
 According to the facts, the plaintiff's action is misconceived. It 
 should have been trover, and not case for improperly using the horse. 
 And if this verdict should stand, it would not be a bar to an action of
 
 490 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 trover for a conversion by riding the horse to a place without the 
 contract. 
 
 The verdict must be set aside, and a general verdict entered for the 
 defendant/* 
 
 DAUGHERTY v. REVEAL. 
 
 (Appellate Court of Indiana, 1913. 54 Tnd. App. 71, 102 N. E. .381.) 
 
 Action by Daugherty, a livery stable keeper, to recover damages 
 for the death of a horse which the plaintiff had hired to the defendant. 
 The complaint was in four paragraphs or counts. The first charged 
 a conversion ; the second, a breach of contract ; the third negligence ; 
 the fourth, willful injury. The evidence revealed the following facts: 
 
 On June 18, 1910, defendant came to plaintiff's livery barn and 
 asked whether he could get a horse early the next morning to drive 
 to a Mr. Sullivan's. Defendant stated that he would put the horse in 
 the barn at Sullivan's and leave it there until he was ready to return. 
 He was informed that the cost of such hiring would be $2. On the 
 morning of Sunday, June 19, accordingly, defendant procured the 
 
 44 "In the ease of Wheelock v. Wheelwright (1809) 5 IMass. 104, which in 
 the facts, as well as the principles, is similar to this, it was decided, not 
 only that case for improperly using the horse would not, but that trover 
 was the only action which would lie." Per Morton, J., in Homer v. Thwing 
 (1826) 3 Pick. (Mass.) 492, 494. In this case a recovery in trover was permit- 
 ted against an infant who, having hired a horse to drive to the Punch 
 Bowl in Brookline, drove in a different direction and without leave, to Fresh 
 Pond in Cambridge, and then to the Punch Bowl. "The driving of the horse 
 beyond the place to which the defendant had permission to go, was a con- 
 version, and trover is the proper remedy." 
 
 See also the remarks of Perley, J., in Woodman v. Hubbard (18.52) 2.5 N. 
 H. 67, 57 Am. Dec. 310: "When the defendant voluntarily drove the horse 
 beyond the limits for which he was hired, he acted wholly \^^thout right. 
 He then took the horse into his own control, without any authority or license 
 from the owner. The conversion was in law as complete, the wrongful in- 
 vasion of the plaintiff's right of property was as absolute, as if, instead 
 of driving the horse a few miles beyond the place for which he had hired 
 him, he had detained and used him for a year, or any other indefinite time, 
 or had driven him to market and sold him. If taking the wrongful control of 
 the horse, and driATug him ten miles, was not a substantial conversion, how 
 far must the defendant have driven him? How long must he have det^iined 
 him? And what other and further wrongful acts was it necessary that he 
 should do in order to make himself a substantial and real wrong-doer? 
 It would .seem to be quite clear that if the original act, assuming control over 
 the hor.se, was not a substantial invasion of the plaintiff's right of property, 
 no .subsequent use or abuse of the horse by the defendant could make it so; 
 and that if the defendant can not on the facts of this case be charged for the 
 conversion of the horse, he could not have been if he had sold or willfully 
 destroyed him. In other wortis, the plaiutiO: having delivered the horse 
 into the defendant's hands on a contract that was illegal, but which never- 
 theless left the general property in the plaintiff the defendant may do what 
 he will with the horse, and tlie i»lainti£f can have no remedy, because what- 
 ever he does can be no more than a breach of his unlawful contract to re- 
 turn the horse. This does not apiear to be a reasonable conclusion."
 
 Ch. 3, ABSOLUTE TORTS OTHER THAN TRESPASSES 491 
 
 horse and drove to Sullivan's. The plaintiff knew at the time that 
 the defendant was under age. 
 
 The evidence further showed that in the forenoon of June 19, the 
 defendant, in company with the daughter of Mr. Sullivan, drove to 
 and from Sunday school a mile and a half or two miles from Sul- 
 livan's residence; that between 2 and 3 o'clock in the afternoon he 
 went out driving and returned to Mr. Sullivan's between 5 and 6 
 o'clock ; that on his return the horses were hitched in front of the 
 house for a time and then the horse driven by appellee was again put 
 in the barn about 7 o'clock p. m. ; that the horse v/as driven slowly 
 and was not in any way injured or affected by such use; that later 
 in the evening, when defendant went to turn the horse around, to 
 start home, the horse fell and broke his neck. The defendant there- 
 upon telephoned plaintiff of the accident. 
 
 On these facts, there was a directed verdict for the defendant, with 
 judgment accordingly. The plaintiff appeals. 
 
 Felt, J. (after stating the facts and holding that there was a failure 
 of proof under the paragraphs of complaint which charged negligence 
 and willful injury and that there was no valid claim for breach of 
 contract). If liable at all, appellee must be held liable on the theory 
 of a conversion by driving the horse beyond the destination fixed by 
 the contract of hiring. * * * 45 
 
 Where there is a bailment the law implies a duty on the part of the 
 bailee to use ordinary care and diligence to protect the property from 
 injury and to return it at the time and place agreed upon. A mere 
 neglect to perform such duty would not subject either a minor or an 
 adult to a suit for conversion of the property. But if the bailee does 
 any willful and positive act in violation of such duty or in repudiation 
 of the contract of bailment, to the injury or loss of the property, the 
 bailor is entitled to the immediate possession thereof and may have 
 his right of action for damages for any tort so committed. Rice v. 
 Boyer, 108 Ind. 472^79, 9 N. E. 420, 58 Am. Rep. 53 ; Campbell v. 
 Stakes, 2 Wend. (N. Y.) 137, 19 Am. Dec. 561 ; Eaton v. Hill, 50 
 N. H. 235, 9 Am. Rep. 189-193; Humphrey v. Douglass, 33 Am. 
 Dec. 177, notes; Lowery v. Gate, 108 Tenn. 54, 64 S. W. 1068, 57 
 L. R. A. 673, and notes page 680, 91 Am. St. Rep. 744; Collins v. 
 Gifford, 203 N. Y. 465, 96 N. E. 721, 38 L. R. A. (N. S.) 202, Ann. 
 Gas. 1913A, 969-974. 
 
 The facts of this case do not tend to show any intention on the 
 part of appellee to repudiate the contract of hiring or to willfully 
 and intentionally injure the horse. They at most only show a devia- 
 tion from the terms of the bailment of a character insufficient to bring 
 the case within the rule applicable where a tort has been committed 
 in connection with the property bailed of a character independent of 
 and beyond the contract to such an extent as to show repudiation 
 
 4 5 Portions of the opinion are omitted.
 
 492 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 thereof or a negligent or willful injury of the property. Appellee did 
 put the horse in the barn at the place agreed upon, and it was at Sulli- 
 van's residence when the accident occurred. Appellant knew appellee 
 was a minor and understood the purpose of his visit to Mr. Sullivan's 
 when he dealt with him. Viewed in this light, the deviation from the 
 strict terms of the bailment was not sufficient to enable appellant to 
 assert a liability for conversion of the property. Schouler's Bailments 
 (3d Ed.) §§ 139-141 ; 2 Kent Com. (12th Ed.) § 241 ; Churchill v. 
 White, 58 Neb. 22, 78 N. W. 369, 76 Am. St. Rep. 64; Caswell v. 
 Parker, 96 Me. 39, 51 Atl. 238; Towne v. Wiley, 23 Vt. 355, 56 
 Am. Dec. 85; Gilson v. Spear, 38 Vt. 311, 88 Am. Dec. 659; Lowery 
 V. Cate, supra. 
 
 In Young v. Muhling, 48 App. Div. 617, on page 619, 63 N. Y. 
 Supp. 181, on page 183, the court said: "The doctrine that a person 
 who hires a horse for a specified journey is liable for conversion if 
 he drives the horse further than the stipulated journey, or on an- 
 other and different trip, cannot be pressed so far as to make the hirer 
 chargeable as for a tort merely by reason of slight and immaterial de- 
 partures from the general course of the direction outlined in the con- 
 tract." 
 
 It is generally held to be the law that a bailor may sue in tort for 
 damages to the property bailed, resulting from a violation of the con- 
 tract of bailment or from a negligent or willful injury to the same. 
 The great weight of authority limits such recovery to loss or injury 
 resulting from such violation of the contract or to cases where the 
 act or omission evinces an intent to convert the property and destroy 
 or defeat the interest of the bailor therein. 
 
 Schouler's Bailments (3d Ed.) § 139, states that the suit for the tort 
 is permitted, "not, we may say, on the ground that the hirer has, in 
 the ancient sense of the word, converted the thing let to him, but 
 because the bailee's gross, willful, or wanton violation of his bailor's 
 rights makes it reasonable to treat the bailment as virtually ended." 
 The same author in section 140 states : "On the other hand, it is 
 not difficult to conceive that technical misuse might occur without on 
 actual abuse of the terms of hire and where it would be harsh to 
 visit deviation with such disastrous penalties. A conclusion is reached 
 in one case, after a searching review of the authorities, that in a bail- 
 ment for hire upon a certain term, and not merely during pleasure, 
 the hirer's use of the property differently in purpose or manner from 
 what had been mutually intended will not amount to a conversion jus- 
 tifying trover, unless the chattel's destruction was thereby occasioned, 
 or, at least, unless the act was done with intent to convert. * * * 
 In truth, the leaven of common sense, which keeps our law in con- 
 stant ferment, is here at work, recalling the injustice of visiting blame- 
 worthy and blameless deviation with the same penalties of absolute 
 or insurance accountability."
 
 Ch. 2) ABSOLUTE TORTS OTUEB THAN TRESPASSES 493 
 
 In Harvey v. Epes, 53 Va. 153, pages 176, 178, 182, we have a 
 long and exhaustive discussion of the question and a review of the 
 EngHsh and American decisions. Among other things it is said : 
 "Upon the whole, I am of opinion that in the case of a bailment upon 
 hire for a certain term, * * * the use of the property by the 
 hirer during the term, for a different purpose or in a different man- 
 ner from that which was intended by the parties, will not amount to a 
 conversion for which trover will lie, unless the destruction of the prop- 
 erty be thereby occasioned, or at least unless the act be done with 
 intent to convert the property, and thus to destroy or defeat the 
 interest of the bailor therein. * * * 'phg act of misuser, to be 
 a conversion, must occasion the loss of the property or be done with 
 the actual intent to convert it. * * * A contrary doctrine would 
 be attended with very harsh and unjust consequences. The true rule on 
 the subject is not, properly speaking, a general rule subject to excep- 
 tions but is a simple rule to this eft'ect : That if hired property be 
 used by the hirer for a purpose or in a manner not authorized by 
 the terms of the hiring, and the loss of the property be occasioned 
 by such misuser, he is liable in trover for its value." See, also. Story 
 on Bailments (9th Ed.) § 413 et seq., and notes; Cooley on Torts 
 (3d Ed.) p. 184; Davis v. Garrett, 6 Bingham, 716, 722-724; 19 
 Eng. Com. Law, 321 ; Spencer v. Pilcher, 35 Va. 565. 
 
 In Churchill v. White, supra, the Supreme Court of Nebraska ap- 
 proved an instruction which stated at page 26 of 58 Neb., at page 
 371 of 78 N. W. {76 Am. St. Rep. 64) : "The rule that one who 
 hires property of this kind for one purpose and uses it for another 
 or different purpose from that contemplated by the parties in the 
 contract of hiring is liable for any harm that may happen it while he 
 is so using it applies to minors as well as to adults." 
 
 There is no evidence in this case tending to show that the death 
 of the horse was in any way connected with or occasioned by any use 
 of the horse outside the strict terms of the contract of hiring as 
 given by appellant himself. Nor is there any evidence tending to 
 show that appellee had any intention of converting the property and 
 depriving appellant thereof. There being a failure of evidence tend- 
 ing to connect the death of the horse with any violation of the terms 
 of the bailment and to show any intention to convert the property, 
 the court did not err in directing a verdict or in overruling appellant's 
 motion for a new trial. * * * Judgment affirmed.
 
 i94 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 (C) The Defense in Trover and Conversion 
 (a) In General 
 
 [Historical Note. — In the action of trespass at common law, a 
 plea of "not guilty" was deemed to deny the act of trespass charged 
 against the defendant but not the wrongfulness of that act. If the 
 physical act, committed vi et armis by the defendant against the plain- 
 tiff, was shown, there was, without more, an apparent wrong; the 
 plaintiff's cause was prima facie complete. There might be, of course, 
 cotemporaneous facts which, in legal effect, rendered the defendant's 
 act not wrongful, as when, for instance, the act charged against him 
 in trespass for assault and battery was a blow struck by him in self- 
 defense. In these cases the defendant who would use this cotempo- 
 raneous fact must plead it affirmatively, in confession and avoidance 
 in excuse. Although a possibly vital fact in the occurrence, it was not 
 within the case presented by the plea of not guilty. 
 
 In trover and conversion, however, the plea of "not guilty" was 
 deemed at common law to deny both the physical act charged against 
 the defendant and the wrongfulness of this act. The ettect was that 
 in trover a defendant who had pleaded merely "not guilty" could in- 
 troduce evidence of various states of fact having the general charac- 
 ter of those which in an action of trespass he could show only if he 
 had alleged them affirmatively, through a plea in confession and avoid- 
 ance. 
 
 For instance, in trover for the conversion of personal property, the 
 fact that it was destroyed by the executive officer of the board of 
 health, as required by law, to prevent the spread of disease, can be 
 shown under the plea of "not guilty" ; but, in trespass for taking away 
 personal property, the fact that the act was done under legal process 
 cannot be shown under a plea of "not guilty." 
 
 A further effect of this doctrine appears now and again in the trover 
 cases. A well-established rule of the common-law procedure required 
 that a plea which amounted to the general issue should be so pleaded, 
 under risk of a special demurrer. But, from the nature of the com- 
 mon-law theory of trover and conversion, nearly every possible plea 
 of excuse amounted to the general issue. "As the conversion, which 
 is the gist of the action in trover, is, ex vi termini, a tortious act, which 
 cannot in law be justified or excused, it is manifest that any plea al- 
 leging matter of justification or excuse (as a license from the plaintiff, 
 an authority derived from the law, etc.) is equivalent to the pica of not 
 guilty, since it must involve a denial of the conversion." Thus, in 
 detinue the detention was to be denied or justified, but in trover both 
 results were reached by a denial of the conversion. "Conversion is 
 always a wrongful act and cannot be confessed and avoided."
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 495 
 
 This deviation from the principles of scientific pleading was cor- 
 rected, in large part, in England, by the Rules of Hilary Term of 1833. 
 Regularly, under the American Codes and the English Judicature 
 Acts, if the defendant in an action of tort admits the prima facie case 
 charged against him, but wishes to show that it was not wrongful, he 
 mtist plead his justification specially, by way of confession and avoid- 
 ance. But in some of the trover cases under the Codes, the older the- 
 ory still finds an echo. 
 
 Where this view prevails, whether at common law or under the 
 Code, the doctrine of excuses for conversion lacks a clear-cut edge. 
 —Bd.] 
 
 ROCKWOOD V. FEASAR. 
 (Court of Queen's Bench, 1590. Cro. Eliz. 262, 78 Reprint, 517.) 
 
 Action of trover in London. The defendant pleaded, that long time 
 before the conversion supposed to be, J. S. was possessed of these 
 goods, as of his own goods, at B. in Norfolk ; and that he before the 
 conversion supposed did casually lose them and they came to the hand 
 of J. Palmer by trover, who gave them to the' plaintiff, who lost them 
 in London; and the defendant found them, and afterward did con- 
 vert them to his own use, by the command of the said J. S. as it was 
 lawful for him to do. It was moved, that this is no plea, for it 
 amounts to the general issue.*® 
 
 But all the justices held it a good plea ; for it conf esseth the posses- 
 sion and property in the plaintiff, against all but the lawful owner. 
 
 Nota. — This plea was devised by Coke to alter the trial.*^ 
 
 HARTFORD v. JONES. 
 
 (Court of King's Bench, 1G9S. 2 Salk. 654, 91 Reprint, 556.) 
 
 In trover and conversion the defendant pleaded, that the goods were 
 cast away, and they saved and detained them till they were paid for 
 their pains. On demurrer. Holt, C. J., held that they might retain for 
 payment, as a carrier for his hire ; and salvage is allowed by all na- 
 tions : he that serves another ought in reason to be paid for his serv- 
 
 46 On thi.s point see the note to Hartford v. Jones, infra. 
 
 47 Compare Ward v. Blunt (1.5SS) Cro. Eliz. 146 : In trover for divers 
 loads of corn and hay. The defendant pleaded that he had out the corn 
 and hay on his own land and was possessed of them until he lost them; 
 that the plaintiff found them, but lost them ; that they then came to the 
 hands of the defendant, and he converted them, as it was lawful for him 
 to do. Held open to demurrer, as amounting to the general issue.
 
 496 TORTS THROUGH ACTS OP ABSOLUTE LIABILITY (Parti 
 
 ice ; but the plea is naught ; for if the detainer be lawful, he does not 
 confess a conversion: I never knew but one special plea good in tro- 
 ver, viz. Yelv. 198.*^ And the rule was in the principal case, to waive 
 the plea and plead not guilty. 
 
 NORMAN V. BELL et al. 
 (Court of King's Bench, 1831. 2 Barn. & Adol. 190, 109 Reprint, 1114.) 
 
 Trover for wheat, &c. Plea, not guilty. At the trial before Parke, 
 J., at the Carlisle Spring Assizes, 1831, it appeared, that in November 
 preceding, the defendant was employed to take toll of corn for the 
 Earl of Egremont in Cockermouth market. The toll was taken by put- 
 ting the hand into the sack of corn as it stood in the market, taking out 
 a handful, and placing it in a bowl held near the top of the sack: and 
 the complaint in this action was, that the defendant had varied from 
 the mode previously used, so as to bring away a quantity exceeding the 
 lawful toll. The regular mode was described as lifting, that practised 
 by the defendant as sweeping. It was objected, on behalf of the de- 
 fendant, that trover was not maintainable. The learned Judge over- 
 ruled the objection, and the jury found a verdict for the plaintiff with 
 nominal damages. 
 
 F. Pollock now moved for a new trial. The question in this case 
 is as to the form of action, which has subjected the defendant to the 
 expense of proving title to the tolls, when it ultimately turned out 
 that the real matter of complaint was only an excessive taking. If 
 the defendant had been a wrong-doer in the whole of his proceeding, 
 there would have been no difficulty ; but here, the right to some toll 
 being admitted, the action is brought in respect of part of the corn 
 taken. How is that part to be distinguished in a mixed quanti- 
 
 Lord Te;ntErdi:n, C. J. The plaintiff, by adopting this form of ac- 
 tion, has certainly subjected the defendant to considerable difficulty 
 and expense, in consequence of the generality of the pleadings. On 
 the other hand, the proceeding has its conveniences ; but the question 
 is not, now, on which side the advantage preponderates ; we must 
 take the law as we find it. The defendant in this case was entitled 
 to take, as toll, a certain quantity of corn, amounting perhaps to a 
 pint. He takes a pint and a half. There is no doubt that he is a 
 wrong-doer: the question is as to the form of action. If the decla- 
 ration had been in trespass, the defendant must have justified by a 
 
 4 8 "The plea in Yelverton was, that the defendant took the wine mentioned 
 in the declaration for prisage due to the King. The following pleas in trover 
 have been also held good : a former recovery in trespass for the same 
 goods, Show. 146; a recovery in trover against a stranger, Cro. Jac. 73 ; or 
 against the defendant, 2 Str. 1078; that an innkeeper detained a horse 
 for liis meat, 2 Bulst. 289; tlie Statute of Limitations, Lut 99. Vide Bull. 
 N. F. 4i8."—l{cporter'a Note.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 497 
 
 prescription to take so much corn for toll, and on proof that he had 
 taken more, he would undoubtedly have been liable on account of the 
 excess. If this would have been so in an action of trespass, I think 
 in the present form of action the result must be the same. 
 
 Parke, J. This case may be made clear by considering how it would 
 have stood if this defence had been specially pleaded in an action 
 of trespass. Suppose, to a declaration in that form, the defendant 
 had pleaded a prescription to take a certain toll of corn, amounting 
 to one handful, and that he took in pursuance of such prescription ; 
 and the plaintiff had alleged in his replication or new assignment a 
 taking of two handfuls, or more than one handful, would such repli- 
 cation or new assignment have been good as supporting the declara- 
 tion, or would it have been bad on demurrer? If bad, the present 
 application is rightly made; if good, it is not; and if the plaintiff, 
 on such pleadings in trespass, would have been entitled to recover, he 
 is certainly entitled to recover in this action of trover ; for a plaintiff 
 may always bring an action of trover where an action of trespass de 
 bonis asportatis would lie. Now it appears to me that a replication, 
 in trespass, that the defendant had taken more than the quantity claim- 
 able under the prescription, would clearly have been sufficient in point 
 of law ; and, therefore, this action may be supported.*® 
 
 WHITE v. SPETTIGUE. 
 
 (Court of Exchequer, 1845. 13 Mees. & W. 603, 67 R. R. 753.) 
 
 Trover for books ; pleas, not guilty and not possessed. At the 
 trial, it appeared that the plaintiff, a solicitor, had missed from day 
 to day several volumes of the Statutes at Large, which he suspected 
 to have been stolen by a young man who was at that time a clerk 
 in his office. The defendant, a bookseller carrying on business in 
 London, became possessed of the books by a bona fide purchase of 
 them on different days, from a young man who brought them to his 
 shop and offered them for sale. The defendant havmg sold the books, 
 this action was brought to recover the value of them. 
 
 On the above facts appearing in evidence, it was objected for the 
 defendant, that, as the plaintiff had .done nothing to prosecute the 
 person who has stolen the books, he could not maintain the action. 
 Crimson v. Woodfull, 2 Car. & P. 41 ; Peer v. Humphrey, 41 R. R. 
 471, 2 Ad. & El. 495, 4 Nev. & M. 430. The learned Judge, however, 
 told the jury that there was no evidence to show who stole the books, 
 and that the property in the goods, being originally in the plaintiff, 
 could not be taken out of him by any act of a third party; and he 
 
 4 9 Part of the argument is omitted. Littledate and Patterson, J J., con- 
 curred. 
 
 Hepb. Torts — 32
 
 498 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Parti 
 
 directed them to find for the plaintiff, unless they beHeved the de- 
 fendant received the goods knowing them to have been stolen, in 
 which case the right would then merge in the felony, and the plaintiff 
 would not be entitled to recover. The jury having found for the 
 plaintiff, Merewether now moved for a new trial, on the ground of 
 misdirection. 
 
 Parke, B. I think there is not the least foundation for a rule in 
 this case. In the first place, independently of the point of law, there 
 are neither pleadings to warrant the defence, nor facts to support it. 
 The only pleas on the record are Not guilty, which puts in issue the 
 conversion, and Not possessed, which puts in issue the plaintiff's title 
 at the time of conversion, * * * so 
 
 Rule refused. 
 
 NICHOLS & SHEPARD CO. v. MINNESOTA THRESH- 
 ING MFG. CO. 
 
 (Supreme Court of Minnesota, 1S97. 70 Minn. 52S, 78 N. W. 415.) 
 
 Canty, J.^^ * * * It is assigned as error that the court permit- 
 ted defendant to prove a certain statute of South Dakota, against the 
 objection that it was not pleaded in the answer, which statute, as the 
 courts of that state have construed it, provides that a chattel mortgage 
 shall not pass the title to the property covered by it until after fore- 
 closure, but that it shall confer on the mortgagee merely a lien as se- 
 curity for the payment of the indebtedness. We are of the opinion 
 that the evidence was competent, if material. The plaintiff did not 
 allege the manner in which defendant converted the property and 
 under its complaint might have proved that defendant converted it 
 in any one of several different ways. The proof was that defendant 
 received the mortgaged property from the mortgagor in exchange 
 for other property, and then sold the mortgaged property to one 
 Hayden. The defendant was not obliged to anticipate this proof 
 in the answer, but had a right to meet it by any evidence that showed 
 that it was not guilty of converting the mortgaged property. John- 
 son V. Oswald, 38 Minn. 550, 38 N. W. 630, 8 Am. St. Rep. 698; 
 Adamson v. Wiggins, 45 Minn. 448, 48 N. W. 185. 
 
 6 The statement of the case is sliglitly abridged. Only so much of Baron 
 Parke's opinion is given as relates to the one point. There were concurring 
 opinions by Pollock, C. B. ("^Moreover, the defense sought to be raised is 
 not admissible under these pleas"), Alderson, B. ("I also think that this 
 defence ought to be specially pleaded"), and Rolfe, B. 
 
 51 For the statement of facts and the opening portion of the opinion, see 
 this case, ante, p. 462.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 499 
 
 KERWOOD V. AYRES. 
 (Supreme Court of Kansas, 1S9S. 59 Kan. 343, 53 Tac. 134.) 
 
 The action, by Kerwood, resulted in a judgment for the defendant. 
 The plaintiff brings error. 
 
 DosTER, C. J. The defendant in error, as sheriff, levied an attach- 
 ment upon certain goods as the property of one Denny. The plaintiff 
 in error, claiming ownership of the goods by purchase from Denny, 
 brought an action against the sheriff' for damages for their conver- 
 sion. The petition, however, did not characterize the act of con- 
 version as performed by the defendant in his official capacity. To 
 this petition only a general denial by way of answer was filed. The 
 jury found in defendant's favor. Judgment was rendered in accord- 
 ance with the verdict, and the plaintiff" prosecutes error to this court. 
 
 Upon the trial the district court, over the plaintiff's objections, 
 received evidence tending to show that the claim of purchase of the 
 goods from Denny was fraudulent. The admission of this evidence 
 constitutes the principal ground of complaint. The argument is that, 
 in actions for damages for conversion of goods, affirmative defenses, 
 such as justification or impeachment of plaintiff's title, are not ad- 
 missible under the general denial; that under such denial the de- 
 fendant is limited to counter evidence of the charge of conversion. 
 The plaintiff in error is mistaken. The rule is the same in actions 
 for conversion as in replevin. According to repeated decisions of 
 this court, the filing of a general denial in the last-mentioned class 
 of actions fully puts in issue the plaintiff's title to the property claim- 
 ed. Wilson V. Fuller, 9 Kan. 176; Holmberg v. Dean, 21 Kan. 79. 
 The courts apply the same rule in actions for conversion. "A general 
 denial traverses, not only the conversion, but also the plaintiff's title ; 
 and hence a defendant may, under such a pleading, show the sources 
 from which he claims title, or that he has no title, or that the prop- 
 erty belonged to a third person, who transferred it to the plaintiff 
 without consideration and with intent to cheat the third person." 
 1 Kinkead, Code PI. § 474. In Steel Works v. Bresnahan, 66 Mich. 
 489, 33 N. W. 834, the supreme court of that state said: "We are 
 cited by the plaintiff's counsel to the general rules of practice, 4 
 Wm. IV (1833), as authority for his position that the general issue 
 in trover is a denial of the conversion only, and not of the plaintiff's 
 title to the goods. But these rules have not been adopted into our 
 practice, and the general issue in this state, as formerly in England, 
 puts the whole declaration in issue. To entitle the plaintiff to re- 
 cover, two points are essential to be proved : First, property in him- 
 self, and a right of possession at the time of conversion ; and, second, 
 a conversion of the goods by the defendant to his own use ; and under
 
 500 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 the general issue the defendant may prove by any competent evi- 
 dence that the title to the goods was in himself, either absolutely as 
 general owner, or specially as bailee, or by way of lien." * * * 52 
 Judgment affirmed. 
 
 (b) The Defense When the Convekston was through a Demand 
 
 AND IlEFUSAL 
 
 BALDWIN V. COLE. 
 (Court of Queen's Bench, 1705. 6 Mod. 212, 87 Reprint, 964.) 
 
 Trover. The case, upon evidence, was this : A carpenter sent his 
 servant to work for hire to the Queen's yard ; and having been there 
 some time, when he would go no more, the surveyor of the work 
 would not let him have his tools, pretending a usage to detain tools to 
 enforce workmen to continue until the Queen's work was done. A de- 
 mand and refusal was proved at one time, and a tender and refusal 
 after. 
 
 Holt, C. J. The very denial of goods to him that lias a right to 
 demand them is an actual conversion, and not only evidence of it, as 
 has been holden ; for what is a conversion, but an assuming upon one's 
 self the property and right of disposing another's goods, and he that 
 takes upon himself to detain another man's goods from him without 
 cause, takes upon himself the right of disposing of them : so the tak- 
 ing and carrying away another man's goods is a conversion : so if one 
 come into my close, and take my horse and ride him, there it is con- 
 version : and here if the plaintiff had received them upon the tender, 
 notwithstanding the action would have lain upon the former conver- 
 sion, and the having of the goods after would go only in mitigation of 
 the damages : and he made no account of the pretended usage, but 
 compared it to the doctrine among the army, that if a man came into 
 the service, and brought his own horse, that the property thereof was 
 immediately altered, and vested in the Queen; which he had already 
 condemned. 
 
 And here one of the particulars In the declaration being ill laid, the 
 defendant was found not guilty as to that, and guilty as to the rest. 
 
 SMITH V. YOUNG. 
 (At Nisi Prius, 1808. 1 Camp, 439.) 
 See ante, p. 473, for a report of the case. 
 
 02 Part of the opinion is omitted.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 501 
 
 LOPARD V. SYMONS. 
 
 (Supreme Court of New York, Appellate Term, 1904. S5 N. Y. Supp. 1025.) 
 
 The action was by Lopard. The judgment was for the defendant, 
 and the plaintiff appealed. 
 
 Friedman, P. J. The facts that are undisputed in this case are as 
 
 follows : 
 
 Plaintiff, a diamond dealer, on October 7, 1902, intrusted to the defendant, 
 at his request, a diamond stud. The defendant was a proposed purchaser, 
 and took the stone for the purpose of having it appraised. He executed a 
 writing by which he agreed to return the stone on demand. It was shown 
 upon the trial, A^dthout objection, that the defendant was to return the stud 
 within an hour. Subsequently, and a few hours later on the same day, the 
 plaintiff called at the defendant's place of business and asked for the return 
 of the stone, saying that he had another customer for it. The defendant 
 thereupon promised to return it within half an hour. This he did not do, 
 but, instead, took it home; and some time during that night his room was 
 entered by a burglar, who stole the diamond, together with defendant's 
 watch, chain, money, etc. 
 
 Upon suit being brought by plaintiff for conversion, the defendant 
 interposed this theft as his defense, and succeeded in the court below. 
 The judgment must be reversed. 
 
 Upon failure by the defendant to return the stone upon the demand 
 made by the plaintiff, the defendant assumed to exercise act of con- 
 trol over the property of the plaintiff in hostility to his rights as 
 owner, and was then liable in an action for conversion. Boyce v. 
 Brockway, 31 N. Y. 490. He could not excuse himself from refusing 
 to return the stud upon demand by showing that the property was sub- 
 sequently stolen from him, even if he showed that he exercised the 
 greatest care in its preservation. ' 
 
 Judgment reversed. New trial ordered, with costs to the appellant 
 to abide the event. All concur. 
 
 ALEXANDER v. SOUTHEY. 
 
 (Court of King's Bench, 1821. 5 Barn. & Aid. 247, 106 Reprint, 1183, 
 
 24 R. R. 348.) 
 
 Trover for printing types and other goods. Plea, general issue. At 
 the trial at the last Guildhall sittings before Best. J., it appeared that 
 the defendant, who was the servant of the Albion Insurance Com- 
 pany, had in his custody in a warehouse, of which he kept the key. 
 certain goods belonging to the plaintiff, saved from a fire at the 
 plaintiff's house, and which had been carried to the warehouse by the 
 servants of the company. The only evidence of a conversion was, 
 that when the plaintiff demanded the goods from the defendant, the 
 latter said that he could not deliver them up without an order from the 
 Albion Office. The learned Judge left it to the jury to say, whether
 
 502 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 this qualification of the defendant's refusal was a reasonable one, tell- 
 ing them, that if so, he was of opinion, that there was not sufficient 
 evidence of a conversion. The jury accordingly found a verdict for 
 the defendant. And now 
 
 Denman moved for a new trial, on the ground of a misdirection. 
 
 BaylKy, J, If the plaintiff in this case had informed the defendant 
 that he had previously made application to the Insurance Company, 
 and that they had refused permission for the delivery of the property, 
 or had told the defendant, that he expected him to go and get an order, 
 authorizing the delivery of the property, and after that, the defendant 
 had refused either to deliver the goods or to go and get such order, 
 I think it would have amounted to a conversion on his part : but here 
 the defendant had the goods in his possession as the agent of the 
 Insurance Company, and he would not have done his duty if he had 
 given them up without an application to his employers. He only gave, 
 as it seems to me, a qualified, reasonable, and justifiable refusal. 
 
 Bkst, J. I thought at the trial that I might properly have nonsuited 
 the plaintiff, but that the safer course was to leave the question to the 
 jury. An unqualified refusal is almost always conclusive evidence of 
 a conversion; but if there be a qualification annexed to it, the question 
 then is whether it be a reasonable one. Here, the jury thought the 
 qualification a reasonable one, and that the refusal did not amount to 
 a conversion of the property, and I think they were right in that con- 
 clusion. 
 
 Rule refused.^* 
 
 VAUGHAN V. WATT. 
 
 (Court of Exchequer, 1840. 6 Mees. & W. 492, 55 R. I?. 712.) 
 
 Trover for different articles of wearing apparel, &c. Pleas : First, 
 not guilty; secondly, that the goods were not the property of the 
 plaintiff: on which issues were joined. At the trial, before Rolfe, B., 
 the following appeared to be the facts of the case : 
 
 On the 24th of July, 1839, the goods in question were pledged with the 
 defendant, a pawnbroker, by a female of tlie name of Hubbard, in the name 
 (as the defendant understood it) of Mary Warne. and the duplicate was 
 so made out. On tJie next day he was sent to by that person (whom he did 
 not then know, Init who afterwards proved to be the plaintiff's wife), to say 
 that she had lost the duplicate, and she demanded and obtained from him 
 a copy thereof, and also a form of a declaration of the loss of it, pursuant 
 to the Stat. 39 & 40 Geo. Ill, c. 99, § 16, and 5 & 6 Will. IV, c. 62, § 12. 54 
 
 53 The concurring opinions of Abbott, C. J., and Holroyd, J., are omitted. 
 See the comment on this case by Mr. Justice Blackburn in Hollins v. Fowler, 
 when that case was before the House of Lords in 1875. L. R. 7 H. L. 757, 767. 
 
 5* By the terms of this statute the person obtaining the copy ".shall there- 
 upon prove his or her property in or right to such goods and chattels, to 
 the satisfaction of some justice of the peace of the place where the goods 
 or chattels shall have been pledged."
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 503 
 
 Some days afterwards, upon an allegation that this document also was 
 lost, she obtained from the defendant another similar form. On the 6th 
 of August, the plaiutiQ: Vaughau produced the duplicate to the defendant, 
 and demanded the goods, tendering the amount of the pledge and the interest. 
 The defendant refused to give them up, on the ground of the declarations 
 having been obtained from him. On the 7th, the plaintiff made an applica- 
 tion to a police magistrate, for the purpose of compelling the restoration of 
 the gootls, and a summons was granted for the defendant's appearance. 
 The plaintiff stated that it was his wife by whom the goods had been 
 pledged ; but the magistrate, after hearing the circumstances, declined to 
 interfere. The plaintiff then brought this action. 
 
 It was contended for the defendant, that there was no evidence of 
 such an absoUite refusal by him to deliver up the goods to the plaintiff, 
 as constituted a conversion ; and that he was justified in refusing to 
 do so, by the circumstance of the declarations having been obtained 
 by another party claiming to be the owner. The learned Judge thought 
 that the mere fact of these documents having been obtained was no 
 defence as against the real owner of the goods, who might, in that 
 case, never have it in his power to recover possession of them and 
 under his Lordship's direction, a verdict was found for the plaintiff, 
 damages £10, leave being reserved to the defendant to move to enter a 
 nonsuit. 
 
 A rule for a nonsuit or for a new trial was accordingly obtained and 
 argued. ^^ 
 
 Parke, B. The learned Judge was incorrect in telling the jury that 
 the mere refusal to deliver the goods to the real owner was a con- 
 version. It was a question for the jury whether the defendant meant 
 to apply them to his own use, or assert the title of a third party 
 to them, or whether he only meant to keep them in order to ascer- 
 tain the title to them, and clear up the doubts he then entertained 
 on the subject, and whether a reasonable time for doing so had 
 not elapsed, without which it would not be a conversion. It ought 
 therefore to have been left to the jury, whether the defendant had a 
 bona fide doubt as to the title to the goods, and if so, whether a rea- 
 sonable time for clearing up that doubt had elapsed. The party ob- 
 taining the declaration is bound to go before a magistrate, and satisfy 
 him by evidence that he is the real owner of the goods; and if a rea- 
 sonable time had elapsed in this case for doing so, the defendant had 
 no longer any reasonable ground for detaining them on the 6th of 
 July, for a supposed defect of title. That was a question for the jury. 
 The statute supposes that the party will go before the magistrate im- 
 mediately ; and if three or four days elapse without his doing so, the 
 jury would be well warranted in finding that the reasonable time had 
 elapsed. But it is all for the jury; however strong the facts, the Judge 
 cannot take it upon himself to refuse to leave the question to them. 
 
 65 The argument on the rule is omitted.
 
 504 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 Therefore, although the result will clearly be the same, in strict law 
 the defendant is entitled to have the facts submitted to the jury. There 
 must therefore be a new trial. ^* 
 
 BOARDMAN v. STLL. 
 (At Nisi Prius, Sittings after Michaelmas Term, 1809. 1 Camp. 410, note.) 
 
 Trover for some brandy which lay in the defendant's cellars, and 
 which when demanded he had refused to deliver up, saying it was 
 his own property. At this time certain warehouse rent was due to the 
 defendant on account of the brandy, of which no tender had been 
 made to him. The Attorney General contended that the defendant 
 had a lien on the brandy for the warehouse rent, and that till this was 
 tendered trover would not lie. 
 
 But Lord EllEncorough considered, that as the brandy had been 
 detained on a different ground, and as no demand of warehouse rent 
 had been made, the defendant must be taken to have waived his lien, 
 if he had one, which would admit of some doubt. The plaintiff had a 
 verdict.^' 
 
 ALLGEAR v. WAESH. 
 
 (Kansas City Court of Appeals, Missouri, 1887. 24 Mo. App. 134.) 
 
 Philips, P. J. The plaintiff sued the defendant in trover for the 
 conversion of a barrel of whiskey. The answer, after tendering the 
 general issue, pleaded that prior to the general state election in 1884, 
 the plaintiff made a bet with one Flaisig, to the eft"ect, that the plain- 
 tiff wagered $100 against one barrel of whiskey, the property of 
 Flaisig, that Marmaduke would be elected governor of the state ; that 
 prior to this bet the said Flaisig, in order to induce defendant to go on 
 a note with him as surety to the Saxton National Bank, of St. Joseph, 
 for the sum of $2,200, agreed to, and did, turn over to defendant thirty 
 barrels of whiskey as collateral security; that he accordingly executed 
 said note, which has not been paid off or satisfied ; that at the time of 
 the making of the said bet the plaintiff and Flaisig came to him, when 
 plaintiff asked if he (defendant) had a barrel of whiskey belonging to 
 Flaisig, to which he answered that he had, but without explaining to 
 
 seTlie concurring opinions of Lord Abinger, C. B., and of Rolfe, B., are 
 omitted. 
 
 5" Compare: Marine Bank v. Fiske (1877) 71 N. Y. 353: (P. demands a 
 larger quantity of wheat than he is entitled to ; D. refuses upon the 
 ground that no part of the wheat belongs to P.) Singer Mfg. Co. v. King 
 (1884) 14 R. I. .511: An agent who had received a chattel from his principal 
 refu.sed to deliver it to the owner, not in order to consult his princ-ipal as 
 to the title, hut iu co-operation with his principal in the unlawful withholding 
 from the owner.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 505 
 
 plaintiff how he held the same. The answer alleged that he held said 
 barrel by reason of said pledge, and that the wager between the said 
 parties was illegal, etc. Plaintiff had judgment, from which defend- 
 ant has appealed. 
 
 The appellant presents his case on the theory, first, that this action, 
 in its essence, is to enforce a wagering contract, or to recover from a 
 stakeholder property won on a bet on an election. It is manifest, from 
 the instructions given and refused by the court, that it tried the case 
 on the theory that plaintiff's cause of action was predicated on a trans- 
 action independent of the wagering contract, and which supervened 
 after the performance by the parties. * * * 
 
 In Armstrong v. Toler, 11 Wheat. 258, 6 L. Ed. 468, while the 
 general rule was recognized, that the courts will not enforce contracts 
 growing immediately out of, or connected with, an illegal act, yet it 
 was held that if the promise on which the action is predicated be dis- 
 connected from the illegal act, and founded on a new undertaking, it 
 is not affected by such act, though it was known to the promisee, who 
 abetted the illegal act. In recognition, no doubt, of this ruling, it has 
 been held that the test whether a claim connected with an illegal 
 transaction be enforceable at law is whether the plaintiff requires the 
 aid of the forbidden transaction to establish his case. If he can fully 
 develop his cause, without predicating it on the illegal matter, so that 
 it is not in fact and law dependent thereon, the action is maintainable. 
 Swan V. Scott, 11 Serg. & R. (Pa.) 164; Thomas v. Brady, 10 Pa. 170; 
 Holt v. Green, 7Z Pa. 198, 13 Am. Rep. 7^1 ; Tyler v. Larimore, 19 
 Mo. App. 458; Parsons v. Randolph, 21 Mo. App. 353. 
 
 All that was necessary to enable plaintiff to make out the case stated 
 in the petition was to prove the agreement by which Flaisig, the ad- 
 mitted original owner of the whiskey, consented that the defendant 
 should turn the same over to plaintiff, and the defendant's assent to 
 hold the same subject to plaintiff's order, the demand and refusal 
 to return to plaintiff. This case is little distinguishable in principle 
 from that of Gowan, Adm'r, v. Gowan, 30 Mo. 472, in which it 
 was held that where a debtor deposits personal property in the 
 hands of another as bailee for the purpose of fraudulently screen- 
 ing it from his creditors, the bailee cannot avail himself of the 
 fraudulent intent of the depositor, to defeat an action brought against 
 him by the bailor for the recovery of such property. Napton, J., in 
 delivering the opinion of the court, very appositely observed: "The 
 plaintiff simply asks that the bailment may be enforced ; that as 
 he put the property in the defendant's hands, subject to his order, 
 he shall now have it again when demanded. No document or fact is 
 alleged to show that the transaction was any otherwise than it appeared 
 to be." 
 
 The same principle, in effect, was again recognized by the Supreme 
 Court in Watson v. Harmon, 85 Mo. 443, where the vendor of goods 
 was left in possession by the vendee as a cloak to defraud the creditors
 
 506 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 of the vendee. The vendee was allowed to maintain trover against 
 the vendor who refused on demand to surrender the goods. 
 
 So in Charles v. McCune, 57 Mo. 166, the plaintiff, who had sent 
 certain stock from INIissouri into Texas during the war, in contraven- 
 tion of the non-intercourse proclamation of the president, was held to 
 be entitled to maintain trover against the defendant, who acquired the 
 possession of the stock, and converted the same to his own use. While 
 the violation of the proclamation rendered the stock subject to confis- 
 cation, that fact constituted no defence to the conduct of the defend- 
 ant. * * * 
 
 Judgment affirmed.^^ 
 
 ENGLAND v. COWLEY. 
 
 (Court of Exchequer, 1873. L. R. 8 Exch. 126.) 
 
 Trover for household furniture. Plea: Not guilty by statute."** 
 Issue. 
 
 The plaintiff was the holder of a bill of sale over the household 
 furniture of Miss Morley, the tenant to the defendant of a house in 
 River Terrace, Chelsea. The bill of sale contained the usual clauses 
 enabling the plaintiff to take possession of, and remove and sell the 
 furniture in case of default upon Miss Morley's part in payment of 
 the sum advanced. She having made default, the plaintiff put a man 
 in possession early in August, 1872, and upon the 11th of August sent 
 two of his men with vans to remove the furniture from the house. 
 It was then after sunset. The men were met at the house by the de- 
 fendant, the landlord, who alleged that half a year's rent was due and 
 in arrear, and stated that he did not intend to allow the goods to be 
 removed, as be meant to distrain on the day following. One of the 
 men returned, and informed the plaintiff of what had passed. The 
 plaintiff thereupon went to the house himself, and was told by the 
 defendant, who was in the passage, that he would not suffer any of 
 the goods to be taken away until his rent was paid. The defendant 
 had also engaged a policeman, whom he stationed outside, to prevent 
 the removal of the goods. The plaintiff' thereupon gave up the at- 
 tempted removal and went away, leaving a man still in possession. 
 The defendant did not himself actually take possession of or remove 
 any of the goods upon this occasion. His object was to prevent the 
 plaintiff's removing them in order to distrain the next day at a legal 
 hour. 
 
 58 The arguments and part of the opinion are omitted. 
 
 50 Tlie statute referred to is the Act of 11 Geo. II, c. 19, § 21 (1738), de- 
 claring,' that in actions of trespass or on the case against persons eiililied to 
 rent, it shall be lawful for the dofcudaut "to plead the general issue, and 
 give the special matter in evidence."
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 507 
 
 The cause was tried before Bramwell, B., at the Surrey summer as- 
 sizes, 1872. In summing up the learned judge directed the jury in the 
 following terms : 
 
 "If you are of opinion that the defendant did not deprive the plaintiff of 
 his goods, did not take i>ossession of, nor assume dominion over, them, but 
 merely prevented the plaintiff from removing them from one place to another, 
 allowing him to remain in possession of them if he liked, then there is no 
 cause of action." 
 
 The jury answered this question in favour of the defendant, and a 
 verdict was entered for him accordingly, with leave to enter a verdict 
 for the plaintiff for £40, the value of the goods, if the Court should be 
 of opinion that the learned judge ought to have directed a verdict 
 for the plaintiff. A rule was obtained in Michaelmas Term accord- 
 ingly, on the ground that the learned judge ought to have directed the 
 jury that the conversion was proved. 
 
 jMartin, B. I think this rule should be made absolute. The real 
 question is whether the defendant "converted to his own use, or 
 wrongfully deprived" the plaintiff of his goods. Now it appears that 
 the plaintiff had a bill of sale over the goods of one Morley, whose 
 landlord the defendant was. After sunset on the 11th of August, 
 1872, when a distress was impossible, the plaintiff, who had previously 
 put a man in possession, went himself to the house, with the view of 
 removing the goods, there having been a default under the bill of sale. 
 The defendant could not distrain that evening, but in order to have 
 the opportunity of distraining he told the plaintiff that he would pre- 
 vent the goods being removed, and he took steps accordingly, placing a 
 policeman to watch the house and tO prevent the removal. I think this 
 was a conversion. The plaintiff was not bound to resist the defendant, 
 and to remove his goods at the peril of coming into collision with him. 
 He was deprived, by the plaintiff's act, of the power over his goods 
 which he was entitled to exercise. That is, in my opinion, enough 
 to enable him to maintain this action. If the defendant had been in 
 the room where the goods were, and had said to the plaintiff, "These 
 goods shall not be removed," surely that would have been a "wrongful 
 deprivation." The defendant was, in fact, not in the room but in the 
 passage, with equal means, however, of stopping the removal. I can 
 see no difference between the two cases. 
 
 Kklly, C. B. I am of opinion that this rule should be discharged. 
 The defendant, in my judgment, never converted these goods to his 
 own use. The plaintiff was himself in actual possession of them, 
 and all the defendant did was to say, "Rent is due to me, and before 
 that rent is paid I will not allow these goods to be removed." This 
 is no conversion. Many illustrations might be put to shew how absurd 
 would be the consequences of so holding. For instance ; suppose a 
 lodger was ill, and an attempt were made to remove the bed he was 
 lying on. Someone interferes, and says to the man who wants to re- 
 move, and who is the true owner, "You shall not do so." This is an
 
 508 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 interference with his dominion over his own property; yet there 
 would be no conversion. Indeed, it is only by relying upon the some- 
 what vague language which has been used about this form of action 
 that any plausible argument can be maintained. Apart from mere 
 dicta, no case, so far as I am aware, can be found where a man not in 
 possession of the property has been held liable in trover unless he has 
 absolutely denied the plaintiff's right, although, if in possession of the 
 property, any dealing with it, inconsistent with the true owner's right 
 would be a conversion. A limited interference with the plaintiff's 
 property, where all along the plaintiff is himself in possession, does 
 not constitute conversion. In the case of Fowler v. Hollins, Law Rep. 
 7 Q. B. 616, the cotton was in the defendant's actual possession. I 
 thought him not guilty because he was acting as broker merely ; but 
 even assuming the case was well decided, the plaintiff was out of pos- 
 session, and the defendant had full control over the goods. So also in 
 Willbraham v. Snow, 2 Wins. Saund. 87, the plaintiff's tools were 
 entirely under the control of the defendant. Nor does the case re- 
 ferred to by my Brother Martin, of Fouldes v. Willoughby, 8 M. & W. 
 540, really assist the plaintiff; for the dictum of Alderson, B., which 
 at first sight appears to favour his contention, is founded upon the 
 assumption that the plaintiff was out of actual possession of the goods. 
 
 I think, therefore, that the plaintiff must fail in this form of ac- 
 tion. He may have another remedy by some form of action of 
 trespass on the case, but the measure of damages would be different. 
 It would be unjust that, under the circumstances proved, he should 
 recover against the defendant the value of the goods. The rule must, 
 therefore, be discharged. 
 
 Rule discharged.®" 
 
 80 Pollock and Bramwell, BB., concurred with the Chief Baron. In his 
 concurring opinion Bramwell, B., renuirked : "Here the defendant did not 
 'convert' the goods to his own use, either hy sale or in any other way. Nor 
 did he deprive the plaintiff of them. All he did was to prevent, or threaten 
 to prevent, the plaintiff from using them in a particular way. 'You shall 
 not remove them,' he said, but the plaintiff still might do as he pleased with 
 them in the house. Assume that there was actual prevention, still I think 
 this action cannot be maintained. Take some analogous cases, by way of 
 Illustration. A man is going to fight a duel, and goes to a drawer to get 
 one of his pistols. I say to him 'You shall not take that pistol of yours 
 out of the drawer,' and hinder his doing so. Is that a conversion of the 
 pistol by me to my own use? Certainly not. Or, again, I meet a man on 
 liorseback going in a particular direction, and say to liim, 'You shall not 
 go that way, you must turn back ;' and make him comply. Who could say 
 that I had been guilty of a conversion of the horse? Or I might prevent a 
 man from pawning his watch, but no one would call that a conversion of 
 the watch by me. And really this case is the same with these."
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 509 
 
 DONNELL V. CANADIAN PAC. RY. CO. 
 
 (Supreme Judicial Court of Maine. 1912. 109 Me. 500, 84 Atl. 1002, 
 
 50 L. R. A. [N. S.] 1172.) 
 
 Spear, J. This case, coming up on report, imposes jury powers 
 upon the court. It is the opinion of the court that the following facts 
 may be found upon a preponderance of evidence : 
 
 This is an action of trover for the conversion of personal property, 
 consisting of various kinds of merchandise of the alleged value of 
 $2,600, the amount of which is not in dispute. The plaintiff was a 
 large dealer in groceries, provisions, and feed in the village of Presque 
 Isle, and had been so engaged for at least seven years. The defend- 
 ant is a railroad corporation, having a station, freight house, and place 
 of business at Presque Isle. 
 
 The defendant company and the Bangor & Aroostook Railroad Com- 
 pany are competing roads as common carriers of freight at Presque 
 Isle. Prior to the 7th day of June, 1909, for several years the plain- 
 tiff had an agreement with the defendant that the bulk of his freight 
 coming in car load lots should come over the defendant road, and that 
 in consideration for this business the defendant should set apart a por- 
 tion of its freight house for the storage of his goods, and keep them 
 separate from the goods of other shippers, and allow the plaintiff 
 and his servants at any time to remove them, for the storage of which 
 no charge was to be made. This arrangement was admitted by the 
 defendant's agent, and had existed for some years prior to the date 
 of the fire. As a necessary result the defendant, his agents, and em- 
 ployes had been furnished with a key, whenever called for, for the 
 purpose of storing and removing goods from the storehouse. Pre- 
 vious to the day of the fire, neither the plaintiff nor any one of his 
 employes had ever been refused the use of the key, upon request, to 
 give them access to the building. 
 
 On the afternoon of June 7, 1909, a fire started in the western part 
 of the village of Presque Isle, about one-half mile from the freight 
 and store house of the defendant, which rapidly developed, threatened, 
 and finally consumed a large part of the village, including the freight 
 house in question. At this time the goods alleged to have been con- 
 verted, together with five barrels of sugar, which were removed, were 
 in the storehouse without insurance. When the plaintiff' became 
 alarmed at the progress of the fire, he took his team, with three serv- 
 ants, and proceeded to the storehouse. Immediately upon arriving, 
 he sent one of his men, Mr. McKenney, who had long been a clerk in 
 his store and well known to the defendant's agent as his clerk, to 
 obtain the key to the storehouse to enable him to unlock it and re- 
 move his goods to a place of safety. This was from three-quarters 
 of an hour to an hour before the fire was communicated to the freight 
 house. The defendant's agent, although he said in his testimony, "I
 
 510 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 presumed he wanted the key for the purpose of removing his goods," 
 refused to deHver the key. He also says that he gave Mr. McKenney 
 no reasons whatever for refusing him the key. McKenney returned 
 without the key, and the plaintiff himself then proceeded to the sta- 
 tion, found the defendant's agent, and requested the key. As to what 
 occurred between the plaintiff and the defendant's agent with refer- 
 ence to what seems to have been a fatal delay in not turning over the 
 key to the plaintiff, there appears to be a material conflict in the tes- 
 timony, which must be solved in the light of the circumstances and 
 probabilities, because it is not controverted that the plaintiff, had he 
 been given the key when he first approached the agent, would have 
 been able to save all his goods. Therefore the loss of the time between 
 the request for the key and receiving it was responsible for the burning 
 of the goods. The defendant contends that this loss of time was due 
 to the voluntary concession of the plaintiff, based upon the conclusion 
 that the storehouse was not in danger. The plaintiff, however, con- 
 tends that he was unable to obtain the key until the burning of the 
 warehouse was imminent. * * * 
 
 We therefore think that the plaintiff's testimony, corroborated by 
 the probabilities, sustains the burden of proof in favor of his conten- 
 tion as to the cause of the delay. Upon this conclusion of fact, did 
 the refusal of the defendant to deliver the key to the plaintiff con- 
 stitute a conversion? 
 
 Again, the circumstances under which the plaintiff was acting con- 
 stitute an important element in determining, not only the facts, but 
 his legal rights upon the question of conversion. Under ordinary con- 
 ditions we should gravely doubt if the acts of the defendant's agent 
 could be regarded as tantamount to a conversion. The right to pos- 
 session of goods in the hands of a bailee may depend, however, so in- 
 timately upon immediate surrender that a delay of a few minutes even 
 may result in the difference between salvage and partial or total loss. 
 And the typical illustration of this rule would occur in case of fire. 
 It is the opinion of the court that it did occur in the case at bar. 
 While the defendant's agent did not refuse to deliver the goods, nor 
 claim title in them, nevertheless, under the circumstances, he exercised 
 a dominion over them, in refusing the key, more disastrous to the plain- 
 tiff' than an ordinary delay for a month to allow him to enter the 
 storehouse. Upon the plaintiff's demand, emphasized by the immediate 
 presence of dangerous conditions, it would seem that almost any hes- 
 itancy or delay to give him the quickest possible possession of his 
 goods was wrongful. And, as we understand the law, a wrongful 
 detention upon proper demand will support an action of trover. In 
 Fifield V. Me. Central R. R. Co., 62 Me. 77, it is said: "To constitute 
 it, there must have been either a wrongful taking, or wrongful de- 
 tainer, or an illegal using or a misusing, or an illegal assumption of 
 ownership." In Fernald v. Chase, Z7 Me. 289, it is said : "To make 
 out a conversion, there must be proof of a wrongful possession, or
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 511 
 
 of the exercise of a dominion over it, in exclusion or defiance of the 
 owner's rights, or of an unauthorized and injurious use, or of a 
 wrongful detention after demand." To the same effect is Fuller v. 
 Tabor, 39 Me. 519. Cooley on Torts, 524, says: "Any distinct act of 
 dominion, wrongfully exerted over one's property, in defiance of his 
 right or inconsistent with it, is a conversion. * * * It is not nec- 
 essary that it should be shown that he has applied it to his own use. 
 Does he exercise a dominion over it in exclusion or in defiance of the 
 plaintiff's right? If he does, that is in law a conversion, be it either his 
 own or another person's use." We think the rule is too well estab- 
 lished to require further citation that, when one person exercises a do- 
 minion over personal property inconsistent with the possession of the 
 owner, in consequence of which the property is lost or destroyed, the 
 exercise of such dominion constitutes a conversion. 
 
 Nor, in the case at bar, can the intention with which the defend- 
 ant's agent withheld the key become material. 28 Am. & Eng. Enc. 
 Law (2d Ed.) 681, and cases cited; 38 Cyc. 2029. See also Ingalls 
 V. Bulkley, 15 111. 224. 
 
 In accordance with the terms of the report the entry must be : 
 Judgment for the plaintiff for $2,600 and interest from the date of 
 the writ.*^^ 
 
 (c) The Dejfense When the Conversion was through a Destruction 
 
 OR AN Asportation 
 
 BIRD V. ASTCOCK. 
 
 (Court of King's Bench, 1615. 2 Bulst 280, 80 Reprint, 1122.) 
 
 In a special action upon the case brought by the plaintiff against 
 the defendant, being a carryer, a boatman, for a trover and conver- 
 sion of his goods to him delivered, and they miscarryed : two actions 
 by him brought, the one a trespass, the other a trover and conversion : 
 upon a motion now made, the rule of the Court was, that he should 
 proceed in one of the actions onely, in the trover and conversion. 
 
 Coke. There was a case resolved in the C. B. when I was there, 
 concerning Gravesend Barge, in which were a great number of pas- 
 sengers; one there had a pack of great value, and of great weight 
 in the barge, there suddenly happened a very great storm, and they 
 were all in great danger, and were, for their own safety, enforced 
 to throw out a great part of the goods, for the safeguard of their 
 lives which were then in the barge; amongst which goods, for the 
 lightning of the barge, this pack of goods was thrown over: after- 
 wards, he which was the owner of this pack, brought his action upon 
 the case against the bargeman, for these his goods thus cast over ; 
 and we all there did resolve it clearly, that this being the act of God, 
 
 61 Part of the opinion is omitted.
 
 512 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 this sudden storm which occasioned the throwing over of the goods, 
 and could not be avoided, and for this cause he recovered nothing; 
 upon this reason is the case in 6 Eliz. in Dalison's Reports, where one 
 was bound to keep and maintain the sea walls from overflowing; if 
 this happen by his negligence, this shall be wast, otherwise if it so 
 happen by the act of God suddainly, and so unavoidable; the whole 
 Court agreed with him herein. 
 
 BUSHEL v. MILLER. 
 
 (At Guildhall, Coram Pratt, C. J., 1718. 1 Str. 128, 93 Reprint, 428.) 
 
 Upon the Custom-House quay there is a hut, where particular por- 
 ters put in small parcels of goods, if the ship is not ready to receive 
 them when they are brought upon the quay. The porters, who have 
 a right in this hut, have each particular boxes or cupboards, and as 
 such the defendant had one. The plaintii? being one of the porters 
 puts in goods belonging to A. and lays them so that the defendant 
 could not get to his chest without removing them. He accordingly 
 does remove them about a yard from the place where they lay, to- 
 wards the door, and without returning them into their place goes 
 away, and the goods are lost. The plaintiff satisfies A. of the value 
 of the goods, and brings trover against the defendant. And upon 
 the trial two points were ruled by the C. J. 
 
 L That the plaintiff having made satisfaction to A. for the goods, 
 had thereby acquired a sufficient property in them to maintain trover. 
 
 2. That there was no conversion in the defendant. The plaintiff 
 by laying his goods where they obstructed the defendant from going 
 to his chest, was in that respect a wrong-doer. The defendant had a 
 right to remove the goods, so that thus far he was in no fault. Then 
 as to the not returning the goods to the place where he found them; 
 if this were an action of trespass, perhaps it might be a doubt; but 
 he was clear it could not amount to a conversion.*^^ 
 
 c2 Compare Shea v. Milford (1887) 145 Mass. 525, 14 N. E. 769: (P. 
 had a contract with D. to build a house on land owned by D. Before the 
 house was finished D. re<iuested P. to remove certiiin chattels, thou on the 
 laud and used by P. In building the house, to another part of the lot. P. 
 neglected to do this, and D. then removed them to another part of the lot, 
 doing no unnecessary damage. P. sued for a conversion of these chattels. 
 Said W. Allen, J.: "The evidence negatived a conversion of the property 
 by the defendants, and showed that they claimed no title to it, assumed 
 no dominion over it, and did nothing in derogation of the plaintiff's title 
 to it, and that all that was claimed by the defendants was the right to re- 
 move the goods from one place to another on their own land. All that was done 
 was in assertion of their right in the land, and in recognition of the plain- 
 tiff's right of proi>erty in the chattels. If the plaintiff had the light to 
 occupy the land which he claimed, the act of the defendants was wrongful, 
 and they would be liable to the plaintiff for damages for breach of contract, 
 or for the trespass, but not for the value of property converted to their 
 own use. Fanisworth v. Lowery IISS.*^! I'M Mass. 512; Fouldes v. Willoughby 
 11841 J 8 M. & W. 540; Heald v. Carey L1852J 11 C. B. 977.")
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 513 
 
 FORSDICK V. COLLINS. 
 
 (King's Bench [at Nisi Prius] Hilary Term, 1816. 1 Starkie, 173, 18 R. R. 757.) 
 
 Trover for the value of a block of Portland stone. The stone had 
 been placed by the plaintiff on the land adjoining some shells of 
 houses, which he had purchased in Hunter Street. The defendant 
 afterwards coming into possession of the land, refused to permit the 
 plaintiff to carry the stone away, and afterwards removed it himself 
 to Burton Crescent Mews. 
 
 Puller, for the defendant, contended that he had a right to remove it 
 from his own premises. 
 
 Lord ElIvEnborough. But he is not justified in removing it to a 
 distance. In an action of trespass at the suit of the owner, he must 
 in his justification have alleged, that he removed it to some adjacent 
 place for the use of the owner; he could not have justified this re- 
 moval. 
 
 Puller insisted that no sufficient demand had been proved. 
 
 Lord ElIvEnborough. A demand is unnecessary where the party 
 has been guilty of a conversion, and he is guilty of a conversion 
 v/here he oversteps the authority of law ; here the defendant over- 
 stepped that authority by removing the property to a distance. 
 
 Verdict for the plaintiff. 
 
 WILSON V. McLaughlin. 
 
 (Supreme Judicial Court of Massachusetts, 1871. 107 Mass. 587.) 
 
 Tort for conversion of a horse. At the trial, after a general de- 
 nial, the facts were found as follows : 
 
 On October 26, 1867, a horse of value of $250, belonging to the plaintiff, 
 escaped from a pasture in Milford, and appeared a day or two afterwards 
 in a highway in West Roxbury near an avenue which led from the travelled 
 road into the messuage of Matthew Bolles. The defendant, who wasi in 
 the employment of Bolles, supposing that the horse belonged to a neighbor, 
 one of whose beasts had previously strayed upon the laud of Bolles and done 
 damage there, drove it from the highway into an inclosed pasture belonging 
 to Bolles, for the purpose of preventing it from straying on Bolles's cultivatetl 
 land. This was done without the direction, knowledge or authority of 
 Bolles, who was not aware of what had been done until the horse had been 
 in his pasture for two nights and a day, when he immediately directed the 
 defendant to turn it into the highway again, and the defendant did so, and 
 the plaintiff never recovered it. The defendant never caused anj' notice 
 of the horse to be entered with the town clerk and posted up, or the horse to 
 be cried. 
 
 The judge ruled that these facts would not sustain the action, and 
 ordered judgment for the defendant. The plaintiff alleged exceptions. 
 
 Ames, J. It appears that, when the horse was taken up, he was 
 going at large in the highway, and was supposed to be about to en- 
 ter upon the premises of the defendant's employer. Under such cir- 
 cumstances, the act of turning him into an inclosed pasture was not 
 Hepb.Torts— 33
 
 514 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 an interference with the owner's possession, or a conversion of the 
 horse to the defendant's own use. Nothing is shown at all inconsist- 
 ent with a purpose on the defendant's part to keep the horse for the 
 owner; and it has been decided that the finder of an estray may keep 
 it for the owner, and is not liable in trover unless he uses the estray, 
 or refuses to deliver it on demand. Nelson v. Merriam, 4 Pick. 249. 
 We do not understand the plaintiff to complain of this act, except 
 on the ground that the defendant afterwards violated his trust as 
 a voluntary bailee by turning the horse into the highway again. But 
 this, it appears to us, was the act of his employer, and not of himself. 
 He could not keep the horse on another man's land, against the will 
 of such other man. The turning out into the highway was therefore 
 an act which he could not prevent, and for which he cannot be held 
 responsible; and the plaintiff has no cause of action under his first 
 count. * * * 
 
 Exceptions overruled.®^ 
 
 RYAN v. CHOWN. 
 
 (Supreme Court of Michigan, 1910. 160 Mich. 204, 125 N. W. 46, 
 
 136 Am. St. Rep. 4-33.) 
 
 Action by Daniel W. Ryan against Eunice Chown. A justice's judg- 
 ment for plaintiff was reversed on appeal to the circuit court, and 
 plaintiff brings error. 
 
 Brooke, J. The plaintiff" in July, 1907, was the owner of a hen 
 turkey and 14 young ones. Defendant, who also owned turkeys, re- 
 sided about a mile and a half distant from plaintiff's farm. One of 
 defendant's hen turkeys had been astray for some weeks. About 
 the middle of July, defendant, while driving along the highway, in 
 the vicinity of plaintiff's farm, found a hen turkey and chicks in the 
 road. She seems to have believed that the mother bird was the one 
 belonging to her own flock, which was astray. At any rate, she caught 
 the mother and brood of 10, conveyed them to her home and shut them 
 up that night. Upon the same day, she was advised by one Thick, 
 a neighbor of both plaintiff and defendant, who had passed her while 
 she was securing the brood, that he believed she had made a mistake, 
 that he thought the turkey she had taken belonged to plaintiff" and 
 that her turkey was on the corner. Plaintiff, missing his brood, and 
 being advised by Thick of the fact that defendant had taken a brood, 
 which he (Thick) believed belonged to Ryan, drove over to defendant's 
 farm to make inquiries about his property. There, defendant admitted 
 possession of the brood, said she did not know whether it belonged 
 to Ryan or not, but that if he said it did, he might take it. At that 
 time, the brood was in a field of standing oats and it could not be seen 
 or captured. The oats were cut the following week. A few days 
 
 63 The statement is abridged. The argument for the plaintiff and the 
 opinion on a second count are omitted.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 515 
 
 later, and after the oats were cut, a note was written by plaintiff, 
 demanding a return of the property, and threatening suit if it was 
 not returned. Upon receipt of this note, defendant claims to have 
 taken the turkey and her brood, one night after dark, back to the 
 place in the highway where she had found them, and there liberated 
 them, without notice to plaintiff, and he has never regained possession 
 of them. Plaintiff, knowing nothing of the return (if such return 
 was made), commenced suit in trover on August 29th, which resulted 
 in a judgment in his favor for S22. Defendant appealed from said 
 judgment to the circuit court, where it was reversed. Plaintiff has 
 removed the case to this court for review on writ of error. 
 The trial court charged the jury in part as follows: 
 
 "I charge you, further, that in order for defendant to avoid the liability 
 in an action for trover she must have returned the turkeys to plaintiff, before 
 suit, and the fac-t that the turkeys were in the neighborhood some time 
 after the commencement of the suit would be no defense to this action. 
 Now, counsel ask me to say to you that if she turned the turkeys loose 
 in the highway, that would not be a return, but I decline to give it in 
 that form, and leave it a question for the juiy to determine, whether leading 
 the turkeys where they were found in the highway was a return of the 
 turkeys to the plaintiff. I say to you that if you find, considering the nature 
 of the turkeys in view of all the circumstances of this case, that that was 
 a proper, fair, and reasonable return of the property to Mr. Ryan, if they 
 were his turkeys, and she did that before the suit, and she is sure about the 
 date, then she would not be liable, but if you find that the leaving of them 
 that distance from Ms house, at that time of day, or evening, or night 
 \Aithout giving him any notice was not a fair and reasonable return of 
 the propei'ty, then there is no question but that she was liable, if the turkeys 
 were Mr. Ryan's." 
 
 We think error is properly assigned upon this instruction. The 
 record shows that it is the nature of turkeys to wander. The alleged 
 return, the fact of which, as to time, is not clear upon the record, 
 was not such a return as would relieve defendant from liability, be- 
 cause the property was not in fact, placed in plaintift"'s possession, nor 
 was he notified of defendant's act. Assuming that defendant did just 
 what she claims, her act indicated rather a desire to avoid liability 
 than a purpose in good faith to repossess plaintiff of his property. 
 
 Plaintiff assigns error upon the admission of an advertisement, in- 
 serted by plaintiff, in a local newspaper, to the effect that 10 stray 
 turkeys came to his place about October 12th. We think the excep- 
 tion well taken. Plaintiff had recovered judgment against defendant 
 for the value of the property on September 20th. That judgment put 
 an end to his right to reclaim the property, even supposing the prop- 
 erty advertised to have been identical with that in litigation, which 
 is not sh.own. Kenyon v. Woodruff, 33 Mich. 310. But the admission 
 of the advertisement may have led the jury to infer that plaintiff had 
 recovered his property, and was therefore not entitled to re- 
 lief. * * * 
 
 The judgment is reversed and a new trial granted.*'* 
 
 «* Part of the opinion is omitted.
 
 516 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 GURLEY V. ARMSTEx\D. 
 
 (Supreme Judicial Court of Massachusetts, 18S9. 148 Mass. 267, 19 N. E. 3S9, 
 2 L. R. A. SO, 12 Am. St. Rep. 555.) 
 
 Tort for the conversion of certain articles of personal property be- 
 longing to the plaintiff. The case was submitted to the superior court, 
 and, after judgment for the defendant, to this court, on appeal, on an 
 agreed statement of facts, which, so far as material, appears in the 
 opinion. 
 
 De;vi;ns, J. The defendant, who was a job teamster, removed the 
 goods alleged to have been by him converted from a room in the 
 dwelling-house of one Whittier to the store of one Davis, and there 
 delivered them to Whittier, by whose direction he had acted. Al- 
 though the goods were in the house of Whittier, they were in a room 
 hired by the plaintiff from him. The contract between them was one 
 for rent, and not for storage, Whittier reserving no control over the 
 room. It was, however, neither locked nor fastened, although no 
 goods were in it except those of the plaintiff. In all that he did the 
 defendant acted in good faith, without any intention of depriving the 
 rightful owner of her property, and in ignorance of the fact that the 
 plaintiff was such owner, neither asserting title in himself nor denying 
 title to any other, nor exercising any act of ownership except by the 
 removal above stated. 
 
 The legal possession of the goods was, under these circumstances, 
 undoubtedly in the plaintiff, and as they were in the room hired by 
 her, the actual possession was also hers. The apparent control of 
 them was, however, in Whittier, as they were in his house, and he had 
 further the present capacity to take actual physical possession, as the 
 room in which they were was neither locked nor fastened. 
 
 It is conceded that whoever receives goods from one in actual, al- 
 though illegal, possession thereof, and restores the goods to such per- 
 son, is not liable for a conversion by reason of having transported 
 them. Strickland v. Barrett, 20 Pick. 415; Leonard v. Tidd, 3 Mete. 
 6. And this would be so apparently, even if the goods thus received 
 were restored to the wrongful possessor, after notice of the claim of 
 the true owner. Loring v. Mulcahy, 3 Allen, 575 ; Aletcalf v. Mc- 
 Laughlin, 122 Mass. 84. 
 
 Upon the precise question raised, we have found no direct authority, 
 nor was any cited in the argument ; but the principle on which the de- 
 cisions above cited rest is not unreasonably extended when it is applied 
 to the circumstances of the case at bar. The act of removing goods by 
 direction of the wrongful possessor of them is an act in derogation of 
 the title of the rightful owner; but the party doing this honestly is 
 protected because from such actual possession he is justified in believ- 
 ing the possessor to be the true owner. He does no more than such
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 517 
 
 possessor might himself have done by virtue of his wrongful posses- 
 sion. 
 
 The defendant was a job teamster, and thus in a small way a com- 
 mon carrier of such wares and merchandise as could appropriately be 
 transported in his tearri or wagon. He exercised an employment of 
 such a character that he could not legally refuse to transport property 
 such as he usually carried, which was tendered to him at a suitable 
 time and place with the offer of a reasonable compensation. If he 
 holds himself out as a common carrier, he must exercise his calling 
 upon proper request and under proper circumstances. Buckland v. 
 Adams Express Co., 97 Mass. 124, 93 Am. Dec. 68 ; Judson v. West- 
 ern Railroad, 6 Allen, 486, 83 Am. Dec. 646. His means of ascer- 
 taining the true title of the freight confided to him are of necessity 
 limited. He must judge of this as it is fairly made to appear. If 
 Whittier had actually gone into the room, as he might readily have 
 done, and taken physical possession of the goods, the defendant upon 
 well established authority would have been justified in obeying the 
 order, and transporting the goods to Whittier at another place; and 
 he should not be the less justified where Whittier, in apparent control 
 of the goods in his own house, and capable of immediately taking them 
 into his actual custody, by entering the room through the unlocked 
 door, has directed the removal. 
 
 If a person standing near and in sight of a bale of goods lying on 
 the sidewalk belonging to another, and thus in the legal possession of 
 such other, is able at once to possess himself of it actually, although 
 illegally, and directs a carrier to remove it and deliver it to him at 
 another place, compliance wnth this order in good faith cannot be 
 treated as a conversion ; and apparent control, accompanied with the 
 then present capacity of investing himself with actual physical posses- 
 sion, must be equivalent to illegal possession in protecting a carrier 
 who obeys the order of one having such control.®^ 
 
 Judgment for the defendant. 
 
 65 Accord: Greenway v. Fisber (1S24) 1 C. & P. 190: (D., a packer, acting 
 under the orders of S., who had employed him, shipped the goods of P., in the 
 ordinary course of business. Said Abbott, C. J.: "While he is a mere conduit 
 pipe in the ordinary course of trade, I think he Is not liable.") Nanson v. 
 Jacob (1887) 93 Mo. 331, 6 S. W. 246, 3 Am. St. Rep. 531; Leuthold v. 
 Fairchild (1886) 35 Minn. 99, 27 N. W. 503. 28 N. W. 218; Hodgson v. St. 
 Paul Plow Co. (1899) 78 Minn. 172, 80 N. W. 956, 50 L. R. A. 644, and note 
 652; Walker v. First National Bank (1903) 43 Or. 102, 72 Pac. 635. 
 
 Compare Liefert v. Galveston L. & H. Ry. Co (1900, Tex. Civ. App.) 
 57 S. W. 899: A railway company employed by P. to transport his goods 
 to Galveston as their destination, by mistake there delivered tliem to U., 
 a steamship company, for transportation to New York. "In this case," said 
 the court, "the steamship company received tlie gootls from tlie Laporte 
 Company, who had neither authority nor consent from the owner to export 
 them. The rule seems to be that there is no lion in favor of the carrier 
 where the goods have been received from a wrongful holder or from one 
 not authorized to ship them. 5 Am. & Eng. Enc. Law (2d Ed.) 403, note. 
 And in such a case the true owner can maintain an action for conversion, 
 however innocent the defendant may be."
 
 518 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 KNAPP V. GUYER. 
 (Supreme Court of New Hampshire, 1909. 75 N. H. 397. 74 Atl. 873.) 
 
 The action was by Knapp for the alleged conversion of 5,875 
 pounds of potatoes. There was a judgment in the superior court for 
 the plaintiff, after which the case was transferred to the Supreme 
 Court. 
 
 The plaintiff was a farmer at Piermont, and the defendant was a 
 merchant at Hanover. In May, 1908, one Blood, an innkeeper at 
 Hanover, was in financial difficulties. He desired to purchase 100 
 bushels of potatoes, intending to use most of them himself, and to 
 sell the remainder, and arranged with the defendant for the shipment 
 of potatoes to Hanover in the latter's name. Blood called at the 
 plaintiff's farm, purchased 100 bushels of potatoes, informed the 
 plaintiff that the purchase was for Guyer, paid $10, and took a receipt 
 therefor in his own name, and directed that the potatoes be billed to 
 the defendant. Shipment was made in accordance with Blood's in- 
 structions. When the potatoes arrived at their destination, the station 
 agent notified the defendant, who replied that he was not expecting 
 potatoes, and did not know about them. Shortly thereafter Blood 
 called at the station and inquired for the potatoes, and was informed 
 that they were billed to the defendant. He thereupon left the station, 
 but soon returned with an order written and signed by the defendant, 
 directing the delivery of the potatoes to Blood. The order was com- 
 plied with and Blood took possession of the potatoes, which were im- 
 mediately attached by his creditors and held for his debts. Blood had 
 no authority from the defendant to purchase potatoes in his name, and 
 the latter derived no benefit from the transaction. He merely acted 
 for the accommodation of Blood, and permitted the shipment of pota- 
 toes as above stated. 
 
 Bingham, J. It is clear from the facts found that the plaintiff did 
 not sell the property in question to the defendant, although he billed 
 it to him upon the representation of Blood that the defendant was the 
 purchaser. It is equally clear that he did not sell it to Blood, and that 
 in delivering it to the railroad billed to the defendant he parted with 
 the possession, but not with his title and right of possession. Having 
 the title and right of possession at the time that the defendant gave 
 the order to the railroad to deliver the property to Blood, the order 
 was an act in itself implying an assertion of title or right of dominion 
 over the property, inconsistent with the plaintiff's title and right of 
 possession, and was in law a wrongful act and a conversion. Brown v. 
 Ela, 67 N. H. 110, 111, 30 Atl. 412; Baker v. Beers, 64 N. H. 102, 
 105, 6 Atl. 35 ; Evans v. Mason, 64 N. H. 98, 99, 5 Atl. 766. 
 
 If the defendant could be said to have honestly mistaken his rights, 
 that fact would be of no consequence in this case. "The defendant's 
 act in assuming dominion over the property was none the less an in-
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 519 
 
 vasion of the plaintiff's right * * * because he did not intend a 
 wrong, or know that he was committing one. An encroachment upon 
 a legal right must constitute a legal wrong; and it is familiar law that 
 intention is of no account in a civil action brought by one man to re- 
 cover damage for a wrongful interference with his property by an- 
 other. The law gives the plaintiff compensation for the injury he has 
 sustained, whether the defendant intended such injury or not." Farley 
 V. Lincoln, 51 N. H. 577, 579, 12 Am. Rep. 182. At any rate, the 
 purpose or intention of the defendant would become material only 
 when the act done would not in itself imply an assertion of title or 
 right of dominion. Evans v. ]\Iason, 64 N. H. 98, 99, 5 Atl. 766. 
 
 The original act of the defendant in asserting dominion over the 
 propert}^ being wrongful, a demand was not necessary. Porell v. 
 Cavanaugh, 69 N. H. 364, 366, 41 Atl. 860; Farlev v. Lincoln, 51 
 N. H. 577, 581, 12 Am. Rep. 182; Bartlett v. Hoyt, 33 N. H. 151, 169. 
 
 Exception overruled. All concurred. 
 
 (d) The Defense When the Conversion was thbough Usee 
 DRAKE V. SHORTER. 
 
 (At Nisi Prius, 1S03. 4 Esp. 165.) 
 
 Trover for a boat. Plea of the general issue. The case stated on 
 the part of the plaintiff was, that the defendant, who was employed in 
 an invention for making a vessel sail against wind and tide, had em- 
 ployed the plaintiff to work on her ; that while the vessel was so work- 
 ing on, she took fire ; that the defendant took a boat belonging to the 
 plaintiff, to endeavour to extinguish it; but that she sunk, and was 
 lost. 
 
 Garrow, for the defendant, states his defence to be, that while the 
 plaintiff' was working on the vessel, it was his duty to have taken care 
 of her ; and that the interference, in this case, was to prevent the fire 
 spreading, by means of which the accident happened ; which he con- 
 tended was lawful. 
 
 Lord Ellenbo rough said, That if the fact was so, he thought it 
 amounted to a defence : that what might be a tort under one circum- 
 stance, might, if done under others, assume a different appearance. 
 As for example : If the thing for which the action was brought, and 
 which had been lost, was taken to do a work of charity, or to do a 
 kindness to the party who owned it, and without any intention of 
 injury to it, or of converting it to his own use; if, under any of 
 these circumstances, any misfortune happened to the thing, it could 
 not be deemed an illegal conversion; but as it would be a justifica- 
 tion in an action of trespass, it would be a good answer to an action of 
 trover.
 
 520 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 The defendant failed in proving the circumstances as to the ship 
 being in the plaintiff's care ; so that the accident of the fire proceeded 
 from the defendant himself ; and the plaintiff had a verdict. 
 
 WARING V. PENNSYLVANIA R. CO., for Use, etc. 
 (Supreme Court of Pennsylvania, 1874. 76 Pa. 491.) 
 
 This was an action of trover against Waring, surviving member of 
 the firm of Waring & Lafferty, oil refiners. The action was brought 
 for the value of three car loads of crude oil delivered by the Penn- 
 sylvania Railroad Company by mistake to Waring & Lafferty. The oil 
 belonged to other persons. It was delivered by the plaintiffs by run- 
 ning a train of tank cars into the siding of Waring & Lafferty at the 
 refinery, and leaving the cars intended for them without further no- 
 tice. The cars were, as soon as could be, unloaded by pumping them 
 into the refiners' tanks. There were no marks on the cars indicating 
 to whom the oil was consigned. The oil had been received from the 
 consignors by the Allegheny Railroad Company, the use-plaintiffs, and 
 they had paid the owners of the oil for it upon ascertaining that it 
 had not been delivered to them. 
 
 The trial resulted in a verdict and judgment for the plaintiffs. The 
 defendant took a writ of error.^^ 
 
 Gordon, J. Lord Mansfield defines the action of trover to be, "a 
 remedy to recover the value of personal chattels wrongfully converted 
 by another to his own use." 1 Chit. Plead. 146. The taking may have 
 been lawful, hence the gist of the action lies in the wrongful conver- 
 sion. Where one has the lawful possession of the goods of another, 
 and has not converted them, this action will not lie until there has been 
 a refusal to deliver them upon demand made. Ordinarily where such 
 goods have been converted b)?^ the bailee, the law presumes it to be 
 wrongful, and the action may be brought without a previous demand ; 
 but such presumption may be rebutted, showing a permission from 
 the plaintiff to convert the property. So we may suppose a case of 
 this kind : A. purchased a ton of wheat flour from B., a miller, B. 
 delivers to A. a ton of wheat flour belonging to C, and A. converts it 
 to his own use. Now it cannot be that B., as bailee of C, can main- 
 tain trover against A., without first explaining to him the mistake, and 
 demanding of him a return of C.'s flour ; for here the conversion is not 
 wrongful, but permissive, there being nothing in the transactions which 
 would lead A. to suppose that he had gotten any but his own property. 
 
 This example will apply to the case in hand. The defendant offered 
 to prove that he had received from the railroad company no more 
 car loads of oil than he was entitled to. This, as we understand the 
 offer, not by way of recoupment, which was not permissible, but to 
 
 60 A portion of tlie statement of tiie case and the arguments are omitted.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 521 
 
 show that he received the oil in good faith, supposing it to be his own. 
 By his subsequent offers, he proposed to prove, that if he received the 
 oil in dispute at all, it was by a delivery from the plaintiffs' ag'ents ; if 
 there was an error, it was produced by the plaintiffs, and finally that 
 the defendant received the property "at the instance and request of 
 the plaintiffs." 
 
 The offers should not have been overruled. Had the proof therein 
 proposed been produced, it is clear the plaintiffs had no case. 
 
 On such showing- the defendant did no wrong, there was no wrong- 
 ful conversion, and the action of trover would not lie. We observe no 
 error in the charge, or in the answer to the points. Under the evi- 
 dence, as admitted, they were correct. A wrongful conversion of the 
 oil in question by the defendant, would sustain the action, and if he, or 
 the firm of which he was a member, knowingly took advantage of the 
 mistake of the plaintiffs' agents, and appropriated the property of an- 
 other to the use of the firm, it would be such a conversion. This is 
 the substance of the charge, and is, so far as it goes, a sound exposition 
 of the law." 
 
 The judgment reversed, and a venire facias de novo awarded. 
 
 HOMER V. THWING. 
 (Supreme Judicial Court of Massacliusetts, 1826. 3 Pick. 492.) 
 
 Trover for a horse. One of the defendants was defaulted. Thwing, 
 who was an infant, defended by guardian. 
 
 The plaintiff offered evidence that the horse was let by him to the 
 defendants to drive in a chaise to the Punch Bowl in Brookline, and 
 
 6 7 Compare Tidey v. Kent Circuit Judge (1914) 179 Mich. 5S0, 146 N. W. 
 224 : (A limited copartnersliip, of Hamilton, Ontario, being indebted in the 
 sum of $425 to the "Grand Rapids Textile ]\[achinery Company," then lo- 
 cated in Grand Rapids, Mich., sent their check for said amount to Grand 
 Rapids for the purpose of paying this indebtedness ; the check was made 
 out and mailed to the "Grand Rapids Machinery Company," the word "Tex- 
 tile" being omitted by a clerical error. D. was doing business at Greenville, 
 Mich., under the name of the "Grand Rapids Machinery Company," and had 
 formerly done business in Grand Rapids in that name, selling secondhand 
 machinery, and after he went to Greenville he instructed the Grand Rapids 
 postmaster to forward his mail to the latter place. D. had authorized his 
 wife to look after his business affairs in his absence, to open his letters, 
 read his mail, and cash his checks. The letter containing the check in 
 question was forwarded from Grand Rapids to Greenville, where it was 
 received by relator's wife in his absence, tlie check taken out and indorsed 
 by her, as relator's agent, "Grand Rapids Machinery Company, A. L. Tidey," 
 and cashed at the Greenville banlc, the money being received thereon and 
 delivered to D., who spent it. "The fact," said Steere, J., delivering the 
 opinion, "that relator fD.] acted under juistake, in ignorance of who was 
 the actual owner, or even in tlie belief that the money was his own instead of 
 that of another, does not constitute a defense in trover. 38 Cyc. 2011 ; 
 Gibbons v. Farwell [1886] 6.3 Mich. .'549, 29 N. W. 8.->o, 6 Am. St. Rep. 301; 
 Kenney v. Ranney [1893J 96 Mich. 617, 55 N. W. 982.")
 
 522 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 that they went to Fresh Pond in Cambridge without leave, and after- 
 wards to the Punch Bowl, and that the horse was returned much 
 injured. 
 
 The counsel for Thwing contended that, as this was a transaction 
 arising originally on contract, in which the infancy of Thwing would 
 have been a good defence, the plaintiff should not recover upon the 
 same facts by changing the form of his action to tort. 
 
 But the jury were instructed, for the purposes of this trial, that the 
 action would lie against Thwing, notwithstanding his infancy; and 
 a verdict was found for the plaintiff. 
 
 If the Court should be of opinion, that the instruction to the jury 
 was wrong, the plaintiff was to be nonsuited; but otherwise judgment 
 was to be entered according to the verdict.®^ 
 
 Morton, J. The defence in this case is infancy. It is contended, 
 that this action is founded in contract, and that the defendant can- 
 not be ousted of this defence by changing the form of action from 
 contract to tort. 
 
 Infants are liable in actions arising ex delicto, but not in those aris- 
 ing ex contractu. The defendant however contends, that there is a 
 qualification of this rule, and that infants are liable for positive 
 wrongs only, and not for constructive torts. But we know of no such 
 distinction, and in the case of Jennings v. Rundall, 8 T. R. 335, so 
 much relied upon by the defendant's counsel, it is expressly rejected. 
 It is true, that an infant cannot become a trespasser by any prior or 
 subsequent consent. But he may be guilty of torts, as well by omis- 
 sions of duty, as by the commission of positive wrongs. 1 Chit. PL 
 65 (6th Amer. Ed. 87) ; Co. Litt. 180b, Butler's note 56. He is also 
 liable for frauds, as well as for torts. And his liability is to be deter- 
 mined by the real nature of the transaction, and not by the form of 
 the action. 1 Dane's Abr. 143; 1 Esp. Rep. 172. 
 
 Although an infant shall not be charged in trover for goods sold 
 to him with a knowledge of his infancy (Manby v. Scott, 1 Sid. 129), 
 and although an action will not lie against an infant for affirming 
 himself to be of full age in the execution of a contract (Johnson v. 
 Pie, 1 Lev. 169, and 1 Keb. 905), yet detinue will lie against an in- 
 fant for goods delivered upon a special contract for a specific pur- 
 pose, after the contract is avoided ; Mills v. Graham, 1 New Rep. 
 140; and assumpsit will lie against an infant for money embezzled; 
 for the Court will look through the form of the action into the tor- 
 tious nature of the transaction. 1 Esp. Rep. 172. 
 
 It has been holden, that trover will not lie against an infant for im- 
 moderately using a horse which he had contracted to use moderately, 
 on the ground that the action could only be supj^orted upon the con- 
 tract. Jennings v. Rundall, before cited. But in the case at bar, the 
 
 «8 The statement of the case is abridged.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 523 
 
 driving of the horse beyond the place to which the defendant had 
 permission to go, was a conversion, and trover is the proper remedy. 
 In the case of Wheelock v. Wheelwright, 5 Mass. 104, which in the 
 facts, as well as the principles, is similar to this, it was decided, not 
 only that case for improperly using the horse would not, but that 
 trover was the only action which would lie. 
 
 Whenever trover is the proper form of action, it will lie against an 
 infant. The defence therefore is insufficient, and judgment must be 
 entered on the verdict. 
 
 . STEPHENS et al. v. ELWALL. 
 
 (Court of King's Bench, 1815. 4 Maule & S. 259, 105 Keprint, 830, 
 
 16 R. R. 458.) 
 
 Trover for goods by the assignee of two bankrupts. Plea, not 
 guilty. At the trial before Le Blanc, J., at the last Lancaster assizes 
 the case was this : 
 
 The bankrupts being possessed of the goods in question sold them after 
 their bankruptcy to one Deane, to be paid for by bills on Heathcote, who had 
 a house of trade in Loudon, and for whom Deane bought the goods. Heath- 
 cote was in America, and the defendant was his clerk, and conducted the 
 business of the house. Deane communicated to the defendant information 
 of the purchase on the day it was made, and the goods were afterwards 
 delivered to the defendant, and he disposed of them by sending them to 
 America to Heathcote. No demand was made upon the defendant until 
 nearly two years after the purchase. 
 
 The learned Judge inclined to think, and so stated to the jury, that 
 if the defendant was acting merely as the clerk of Heathcote he was 
 not liable ; but if he was transacting business for himself, though in 
 the name of another, then he would be liable. The jury found a 
 verdict for the defendant. A rule nisi was obtained for a new trial, 
 in order to question the accuracy of the learned Judge's direction in 
 point of law.*^^ 
 
 Lord Ellenborough, C. J. The only question is, whether this is 
 a conversion in the clerk, which undoubtedly was so in the master. 
 The clerk acted under an unavoidable ignorance and for his master's 
 benefit when he sent the goods to his master; but nevertheless his 
 acts may amount to a conversion ; for a person is guilty of a conver- 
 sion who intermeddles with my property and disposes of it, and it is 
 no answer that he acted under authority from another, who had him- 
 self no authority to dispose of it. And the Court is governed by the 
 principle of law, and not by hardship of any particular case. For 
 what can be more hard than the common case in trespass, where a 
 servant has done some act in assertion of his master's right, that he 
 
 69 The argument is omitted.
 
 524 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 shall be liable, not only jointly with his master, but if his master 
 cannot satisfy it, for every penny of the whole damage ; and his 
 person also shall be liable for it; and what is still more, that he shall 
 not recover contribution? 
 
 Le Blanc, J. I think the rule of law is very different from what I 
 considered it at the trial. The great struggle made at the trial was, 
 whether the goods were for Heathcote or not; but that makes no 
 difference if the defendant converted them. And here was a conver- 
 sion by him long before the demand. 
 
 Per Curiam. Rule absolute. 
 
 LOESCHMAN v. MACHIN. 
 (At Nisi Prius, 1818. 2 Starkie, 311, 20 R. R. 687.) 
 
 This was an action of trover, brought to recover the value of two 
 pianofortes. 
 
 The plaintiff was a maker of pianofortes, and the defendant was 
 an auctioneer. The plaintiff had lent one of the pianos, the larger, to 
 a person of the name of Brown, whose wife was a musical teacher, on 
 hire, for which Brown was to pay at the rate of 18s. per month, if 
 he kept it for the whole year; and if for a less period, he was to pay 
 a guinea per month. With respect to the other piano, it did not 
 appear very clearly on what terms it had been delivered by the plain- 
 tiff to Brown, whether upon hire, or that he might dispose of it for 
 the plaintiff. Brown had sent both these pianos to the defendant, to 
 be sold by auction, and he, upon the plaintiff's application to deliver 
 the pianos to him, refused to deliver them unless the plaintiff would 
 pay the amount of certain expenses which had been incurred. 
 
 Abbott, J., in summing up to the jury said: I wish you to find 
 whether the smaller piano was let on hire, or sent to be sold by Brown, 
 if an opportunity offered; this is a question of fact for your con- 
 sideration ; and although I am of opinion that it will make no differ- 
 ence as to the verdict, it will give the party an opportunity of making 
 the distinction. The general rule is, that if a man buy goods, or take 
 them on pledge, and they turn out to be the property of another, the 
 owner has a right to take them out of the hands of the purchaser ; 
 except, indeed, in the case of a sale in market overt. With that 
 exception, it is incumbent on the purchaser to see that the vendor 
 has a good title. And I am of opinion that if goods be let on hire, 
 although the person who hires them has the possession of them, for 
 the special purpose for which they are lent, yet, if he send them 
 to an auctioneer to be sold, he is guilty of a conversion of the goods; 
 and that if the auctioneer afterwards refuse to deliver them to the 
 owner, unless he will pay a sum of money which he claims, he is also 
 guilty of a conversion.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 525 
 
 The jury found that the smaller piano had been sent to Brown for 
 the purpose of a sale, and the plaintiff had a verdict for the value of 
 both the pianos. 
 
 Leave was given to Marryatt, for the defendant, to move the 
 point.'^° 
 
 GENEVA WAGON CO. v. SMITH. 
 
 (Supreme Judicial Court of Massachusetts, 1905. 1S8 Mass. 202, 74 N. B. 299.) 
 
 The Geneva Wagon Company sued Ida Smith for conversion of 
 certain wagons. The court found for tlie plaintiff, and the defend- 
 ant excepted. 
 
 Hammond, J. The evidence warranted a finding that the title to 
 the wagons was to remain in the plaintiff until paid for in money, and 
 that they never were so paid for; and therefore that the title never 
 passed to the Hendersons. Upon the uncontradicted evidence, the 
 wagons Vv^ere included in the mortgage. The language of the mort- 
 gage included them, and Henderson, both as mortgagor and as agent 
 for the defendant, the mortgagee, intended that they should be in- 
 cluded. After the mortgage, Henderson had the key to the building 
 in which the wagons were kept, and the court could properly find 
 upon the evidence that he acted as agent for the defendant, so far 
 as respected her supposed rights as mortgagee, and kept them for her 
 under a claim of right inconsistent with the rights of the plaintiff. 
 This was a tortious act on the part of the defendant, and no demand 
 was necessary before bringing the suit. Baker v. Lothrop, 155 Mass. 
 376, 29 N. E. 643, and cases cited. We see no error in the rulings 
 given by the court. 
 
 Exceptions overruled. 
 
 7 "In Loeschman v. Machin, p. 687, a sound and important rule is laid 
 down perhaps fur the first time in a civil action (it is really identical with 
 the doctrine of 'breaking bulk' in the law of larceny, which dates fi'om the 
 fifteenth century), but the reasons are not given. These are supplied in sev- 
 eral later cases, and especially by the judgment of Parke, B., in Fenn v. Bittles- 
 ton (18.51) 7 Ex. 152, 21 L. J. Ex. 41. The latest reported application of the 
 principle appears to be in Nyberg v. Handelaar (1892) 2 Q. B. 202, 61 L. J. 
 Q. B. 709. Although the bailee has lawful possession and the immediate 
 right to possess, he destroys that right by parting with the possession in a 
 manner wholly unauthorized by the terms of the bailment, and at common 
 law, therefore, not only is guilty of a conversion, but confers no right to 
 possession as against the bailor, not even a qualified one, on a person who 
 receives the chattel from him, however innocently." Per Sir Frederick Pol- 
 lock, in preface to Vol. XX of Rev. Rep. p. vi.
 
 526 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 DEVEREUX V. BARCLAY. 
 
 (Court of King's Bench, 1S19. 2 Bam. & Aid. 702, 106 Reprint, 521, 
 
 21 R. K. 457.) 
 
 Trover for oil ; plea not guilty. At the trial, before Abbott, C. J., 
 the plaintiffs proved a purchase of four tuns of sperm oil, then lying 
 in the defendants' warehouses, from a person of the name of Collin- 
 son. The following delivery order was given, dated 13th February, 
 1818: 
 
 "To Messrs. A. and "W. Barclay, Leicester Square. 
 
 "Please to deliver to the order of ^Messrs. Devereux and Lambert, the un- 
 der-mentioned goods (enumerating them). Charges from 27th February, to 
 be paid by Messrs. Devereux & Co. Edward Collison." 
 
 Soon after this transaction, Collinson, who had in the meantime 
 purchased from Mr. Gamon, a broker, without the defendants' knowl- 
 edge, some dark sperm oil of inferior value, then also lying at the 
 defendants' warehouse, sold this latter quantity, about three tuns, 
 to a third person, and gave the following delivery order, dated 3d 
 March, 1818: 
 
 "To Messrs. A. and W. Barclay. 
 
 "Please to deliver to Mr. Dale's carts my dark sperm oil." 
 
 The defendants, not being aware that the two parcels of oil both 
 belonged to Collinson, by mistake, delivered the first parcel of oil to 
 the second delivery order, the first delivery order not having been 
 at the time presented to them by the plaintiffs. The plaintiff's, on the 
 28th of Alarch, presented their delivery order, and demanded the oil. 
 Abbott, C. J., being of opinion that this misdelivery, by mistake, did 
 not amount to a conversion, so as to entitle the plaintiffs to maintain 
 trover, directed a nonsuit. A rule nisi for a new trial having been 
 obtained, 
 
 Scarlett and Manning now shewed cause: The mistake which has 
 occurred is solely imputable to the negligence of the plaintiff's, in 
 not sooner sending their delivery order to the defendants. The con- 
 version must be an injurious act. A mere mis-delivery by mistake 
 will not do. * * * 
 
 Abbott, C. J. What eff'ect the production of further evidence may 
 have, the Court cannot anticipate at present; it is quite sufficient to 
 say that this cause having been stopped too soon, the plaintiffs are en- 
 titled to a new trial. This is not the case of an innocent delivery, for 
 it is one contrary to the knowledge which, in point of law, the de- 
 fendants ought to have had. There is a great distinction between 
 an omission and an act done. In the case cited from Burrow [Ross 
 v. Johnson (1772) 5 Burr. 2825] no act was done, and Lord ^Mansfield 
 expressly said that it was a mere omission. But here there is an 
 act done by the defendants, which, in its consequences, is injurious
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 527 
 
 to the plaintiff. Upon this evidence therefore, I am now of opin- 
 ion that trover may be maintained. 
 
 Bayley, J. The case of Yoiil v. Harbottle [1791] 1 Peake, N. P. 
 49, shews that a carrier is Hable in trover for a mis-delivery. 
 
 Rule absolute.^^ 
 
 POGGI V. SCOTT. 
 
 (Supreme Court of California, 1914. 167 Cal. 372, 139 Pac. 815, 
 
 51 L. R. A. [N. S.] 925.) 
 
 Action by Poggi to recover $2,000 damages for an alleged conversion 
 by Scott, the sole defendant, of some 210 barrels of wine, stored in a 
 room in the cellar of a business building in San Diego. This building 
 was rented to a Laundry Company, who sub-rented the cellar-room 
 to Poggi at $2 a month. The full barrels were in tiers along the wall. 
 Near the door were empty barrels. Poggi, who lived 15 miles from 
 San Diego, kept the door of this room locked, but came to San Diego 
 about twice a month, and on each visit looked after his wine. Once a 
 year he racked it off. 
 
 Before the tenancy of the Laundry Company had expired, the 
 owner of the building sold it to Scott. In due course the Laundry 
 Company moved out, but Poggi's wine was left where it was. Know- 
 ing nothing of the- change of ownership, Poggi supposed that he 
 should pay his rent to the former ov.-ner of the building. In this state 
 of things, two Italians, Bernardini and Ricci, called upon Scott and 
 told him that there were some empty barrels in the cellar of his laun- 
 dry building which they desired to buy. Scott replied that he did not 
 know that there were any barrels there, and made an appointment with 
 them to visit the place the next day. He did so, meeting Bernardini 
 alone. Bernardini took him to where the barrels were stored. There 
 was no lock on the door, and exposed to view were some broken bar- 
 rels. Further back, as Scott subsequently testified in criminal pro- 
 ceedings against Bernardini and Ricci, there were more barrels, appar- 
 ently whole. "I went back and tapped them, and so far as I could 
 discover they were empty." He told Bernardini that he knew nothing 
 of the value of the barrels, and asked what they were worth. Ber- 
 nardini said they were worth $10 or $15. Scott regarded the barrels 
 as old junk, and offered Bernardini to sell them for $15, provided 
 Bernardini would clean the whole cellar out. This offer being ac- 
 cepted, Bernardini and his companions carted off the wine in barrels 
 and shipped it away. They were subsequently arrested and tried for 
 the fraud and theft. 
 
 71 rart of the argument of counsel is omitted. Holroyd and Best, J.T., 
 concurred.
 
 528 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 In the light of these facts, the trial court, in Poggi's action for con- 
 version, granted a nonsuit. From the judgment which followed, the 
 plaintiff appealed.''^ 
 
 In support of the non-suit the respondent argued that as Scott 
 thought that he was disposing of so much junk or rubbish in the form 
 of barrels, he could not be held for the conversion of full barrels of 
 wine, or for the value of wine in barrels. It was further argued that 
 the asportation of the wine could not be charged to any act of Scott. 
 
 Henshaw, J. (after stating the facts). The foundation for the ac- 
 tion of conversion rests neither in the knowledge nor the intent of the 
 defendant. It rests upon the unwarranted interference by defendant 
 with the dominion over the property of the plaintiff from which in- 
 jury to the latter results. Therefore neither good nor bad faith, 
 neither care nor negligence, neither knowledge nor ignorance, are of 
 the gist of the action. "The plaintiff's right of redress no longer de- 
 pends upon his showing, in any way, that the defendant did the act in 
 question from wrongful motives, or, generally speaking, even inten- 
 tionally; and hence the want of such motives, or of intention, is no 
 defense. Nor, indeed, is negligence any necessary part of the case. 
 Here, then, is a class of cases in which the tort consists 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 redressable as a tort. 
 1 Bigelow on Torts, p. 6. And says Judge Cooley (Cubit v. O'Dett, 51 
 Mich. 347, 16 N. W. 679): "Absence of bad faith can never /excuse a 
 trespass, though the existence of bad faith may sometimes aggravate 
 it. Every one must be sure of his legal right when he invades the pos- 
 session of another." And without further quotation, reference may be 
 made to 1 Street on Foundations of Legal Liability, pp. 231, et scq. ; 
 38 Cyc. p. 2015; Horton v. Jack, 4 Cal. Unrep. Cas. 758, Z7 Pac. 
 653 ; 's. c, 126 Cal. 526, 58 Pac. 1051 ; Budd v. Multnomah Co., 12 Or. 
 271, 7 Pac. 99, 53 Am. Rep. 355; Boiling v. Kirby, 24 Am. St. Rep. 
 795, Prof. Freeman's note; Isle Royal Mining Co. v. Hertin, 37 Mich. 
 332, 26 Am. Rep. 520; Galvin v. Bacon, 11 Me. 28, 25 Am. Dec. 258; 
 Donahue v. Shippee, 15 R. I. 453, 8 Atl. 541 ; Hobart v. Hagget, 12 
 Me. 67, 28 Am. Dec. 159; Davis v. Tacoma Ry. & Power Co., 35 
 Wash. 203, 77 Pac. 209, 66 L. R. A. 802 ; Cook v. Monroe, 45 Neb. 
 349, 63 N. W. 800; Gibbs v. Chase, 10 Mass. 128. 
 
 In consonance with the principles of law thus declared, no question 
 can arise of the defendant's responsibility under the evidence. Con- 
 ceding all that may be argued as to the absence of improper motives 
 on the part of the defendant, the all-important fact yet remains, under 
 his own testimony, that he sold barrels that did not belong to him, and 
 which did with their contents belong to the plaintiff. That he did not 
 know that the barrels contained wine did not excuse his conduct. He 
 had no legal right to sell the barrels whether or not they contained 
 
 T2 The statement of the case is much abridged.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 529 
 
 wine. He was exercising an unjustifiable and unwarranted dominion 
 and control over the property of another, and from his acts great loss 
 resulted to that other. * * * 
 
 An appellate court is always reluctant to review evidence the pri- 
 mary duty of weighing which rests with a jury. It does so only, as 
 here, under compulsion. The views which it is forced to express are 
 not to be taken as conveying anything beyond what the necessities of 
 the consideration require. So here, those views are to be considered 
 as expressing merely this court's conviction that the evidence offered 
 by plaintiff demanded the consideration of the case by the jury, and 
 that the trial court was therefore in error in withholding that consid- 
 eration from the jury and in granting a nonsuit. 
 
 The judgment appealed from is therefore reversed/* 
 
 We concur: ]\Ie;lvin, J. ; Lorigan, J. 
 
 CERNAHAN v. CHRISLER. 
 (Supreme Court of Wisconsin, 1900. 107 Wis. 645. 83 N. W. 778.) 
 
 This action was brought in justice court to recover for the con- 
 version by defendant of a horse, buggy, and harness. The trial re- 
 sulted in a judgment for plaintiff for six cents damages and costs. The 
 case was appealed to the circuit court, and was tried and disposed of 
 upon the justice's return of testimony. The judgment of the court be- 
 low was affirmed. The defendant brings this appeal. The following 
 facts are shown by the record : 
 
 Plaintiff purcliased tlie property of Mrs. Lowe, a widow, who at his 
 direction left it at a livery stable in the city of Eau Claire. Mrs. Lowe 
 eloped, leaving several children. Williaju Lowe, a brother of her deceased 
 husband, took charge of the children. He came to Eau Claire to look up 
 any property she may have left, and at his reciuest the defendant, who was 
 undersheriff, assisted liim. The defendant found the property at the livery 
 stable, and directed the persons in charge not to let any one have it. He 
 i-eturned soon afterwards with Mr. Lowe, and directed the livery stable 
 keeper to deliver the property to him, and it was taken away. He acted on 
 the supposition that it belonged to Mrs. Lowe. The following day he was 
 infoi-med by plaintiff that he owned the property. He replied that he had 
 acted a little too quick in the matter, and that he would have the horse 
 brought in the next day. After the suit had been connuenced, and before 
 trial, Lowe brought the property back to the stable, and made claim for 
 keeping of the horse. Plaintiff declined to pay, and took the property and 
 sent it to his farm. 
 
 Bardeen, J. Two questions are suggested by the record : (1) Does 
 the evidence show that defendant was guilty of a conversion of the 
 
 7 3 Only so much of the opinion is given as relates to the one point. In 
 the testimony there were facts which tended to show that the defendant had 
 some knowledge of the plaintiff's tenancy, and a suspicion that the barrels 
 were not empty. 
 
 Hepb . Torts — 34
 
 530 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 property sued for? (2) Was the taking of the property by plaintiff 
 pending the suit a waiver of his cause of action for conversion ? 
 
 1. We will first inquire what acts of a party constitute a conver- 
 sion. Perhaps as terse a definition as can be found in the books is 
 given in Cooley, Torts (2d Ed.) 524. The learned author says : "Any 
 distinct act of dominion wrongfully exercised over one's property in 
 denial of his right, or inconsistent with it, is a conversion." It is not 
 necessary that there should be a manual taking, or that it should be 
 shown that he applied it to his own use. The test is, does he exercise 
 a dominion over it in exclusion or in defiance of the plaintiff's rights? 
 If he does, that, in law, is conversion, be it for his own or another per- 
 son's use. Neither is it any defense to say that he acted as agent. 
 "But one who assists in a wrongful taking of goods is liable, though 
 he acted as agent merely, for agency cannot be recognized as a protec- 
 tion in wrongs." Id. 529. Neither is the motive which controlled the 
 party available as a defense, except, in cases where exemplary damages 
 are claimed, it may be shown in mitigation. Railroad Co. v. O'Don- 
 nell, 49 Ohio St. 489, 32 N. E. 476, 21 L. R. A. 117, 34 Am. St. Rep. 
 579; Tobin v. Deal, 60 Wis. 87, 18 N. W. 634, 50 Am. Rep. 345. 
 In view of these rules, it seems entirely unnecessary to discuss the evi- 
 dence. The defendant clearly exercised dominion over the plaintiff's 
 property in defiance of his rights. It does not serve to excuse him 
 that he was ignorant of plaintift"'s title, or supposed title was in Mrs. 
 Lowe, or that he was acting in the interest of Mr. Lowe. We say, 
 therefore, that there is evidence to support the plaintiff's cause of ac- 
 tion. 
 
 2. After this suit was commenced the plaintiff took possession of the 
 property, and it is now claimed by defendant that he waived his right 
 to furtlier prosecute his action. We are referred to Collins v. Lowry, 
 78 Wis. 329, 47 N. W. 612, as an authority sustaining that proposition. 
 This was an action for the conversion of certain shares of stock. 
 Pending the action the defendant brought such shares into court and 
 tendered them to plaintiff. At the trial plaintiff announced his readi- 
 ness to accept the stock, and thereupon introduced the stock certificate 
 in evidence. Pie claimed also the right to recover damages for his 
 time, trouble, and expense in attempting to secure a return of the 
 stock. The court directed a verdict for nominal damages. The recov- 
 ery being less than $50, judgment for costs was entered for defend- 
 ant. In this court the plaintiff' insisted that he was entitled to recover 
 for his expenses, etc. In denying a recovery under the circumstances, 
 the following language was used : 
 
 "The theory of the case is that the defendant is only answerable for the 
 value of the proi^erty, and that he or his vendee or transferee is to be re- 
 ?;arded as the owner. Such being the nature of the action, a verdict for 
 the value of the jjroperty converted necessarily covers and inchuU's the 
 damages for such conversion, and the acceidance by the plaintiff of the 
 thing converted necessarily covers and includes its value, and hence such 
 acceptance extinguishes the alleged cause of action for such value, in
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 531 
 
 Other words, the plaintiff pending such action, cannot waive the alleged 
 tortious conversion by taking back the property, and at the same time 
 continue the action and recover the full or partial value of the thing con- 
 \erted, not even to recover costs." 
 
 It will be observed that no cases are cited to sustain this proposition. 
 It is true that in actions for conversion of property the measure of 
 damages is generally the value of the property at the time and place of 
 the conversion, with interest ; but, when the circumstances show special 
 damage over and above the value of the property, the almost universal 
 current of authority is that such damage may be recovered in such 
 action. This rule was recognized in Churchill v. \\'elsh, 47 Wis. 39, 
 1 N. W. 398, is incidentally referred to in Ingram v. Rankin, 47 Wis. 
 406, 2 N. W. 755, 32 Am. Rep. 762, and is expresslv stated in Parro- 
 ski V. Goldberg, 80 Wis. 339, 50 N. W. 191. In Churchill v. Welsh. 
 47 Wis. 39, 1 N. W. 398, and again in Warder v. Baldwin, 51 Wis. 450, 
 8 N. W. 257, this court discussed the circumstances under which there 
 may be a return of the property converted, in mitigation of damages, 
 pending the suit. The conclusion arrived at was that in case of such 
 return, and in the absence of evidence showing special damage, the 
 recovery should be limited to nominal damages. In Farr v. Bank, 87 
 Wis. 223, 58 N. W. Z77 , 41 Am. St. Rep. 40, the rule is again re- 
 ferred to and affirmed. It is there distinctly said that unless the plain- 
 tiff has suffered special damages, apart from the value of the property, 
 the recovery must be limited to liominal damages, although in that 
 case the return was made before the action was brought. It will be 
 observed that the court speaks of the return of the property as being 
 in mitigation of damages, and not in extinguishment of the cause of 
 action. 
 
 This seems to be the rule everywhere, as will be seen by reference 
 to the following authorities : Coolev, Torts (2d Ed.) 535, note 1 ; 2 
 Add. Torts, p. 513, 534; 2 Jag. Torts, 720; Walker v. Fuller, 29 
 Ark. 448 (where it is explicitly stated that, although the plaintiff could 
 not recover the full value of the goods after retaking them, yet the 
 receipt back of the goods alone would not bar the action ; the fact 
 should have gone in mitigation of damages) ; Bank v. Leavitt, 17 
 Pick. 1 (where it is said, "It is also well settled that, if the property 
 for which the action is brought be returned to and received by the 
 plaintiff", it shall go in mitigation of damages"); s. c. 28' Am. Dec. 
 268, and note. The case of Bigelow Co. v. Heintze, 53 N. J. Law, 
 69, 21 Atl. 109, contains an extended discussion of this question. The 
 court there says : "In trover the cause of action is complete upon proof 
 of the conversion. The return of the property is no bar to the action, 
 but is admissible in mitigation of damages." Many other cases might 
 be cited, but to do so would incumber the record. The rule is uni- 
 versal, and rests upon the ground that the return of the property does 
 not extinguish the cause of action, but simply goes in mitigation of 
 the damages.
 
 532 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 It being established in this state that special damages may be 
 recovered in actions of this kind, the infirmity of the rule stated 
 in Collins v. Lowry becomes apparent. The theory of the case 
 is not that "the defendant is only answerable for the value of the 
 property." He is answerable, not only for the value of the prop- 
 erty, but for any special damage the plaintiff has sustained. Hence 
 a return or retaking of the property goes only to mitigate the 
 damages, and not in bar of the action. In the case at bar, how- 
 ever, no special damages are shown. In Hiort v. Railway Co., 4 
 Exch. Div. 188, 195, Bromwell, L. J., said : "A conversion cannot 
 be purged, and if a defendant is guilty of conversion he must pay 
 some damages. A return of the goods undoubtedly might be shown, to 
 reduce the damages, in the case of conversion, not only when the owner 
 voluntarily received back the goods, but v.hen he took them back 
 against his will. In an action of trover and conversion, the practice was 
 for a defendant to apply to the court for a stay of proceedings on a 
 delivery up of the goods, and on payment of nominal damages and 
 costs; but if the plaintiff refused to accept delivery, and insisted on 
 proceeding with his action for substantial damages, he did so at his 
 peril, and if he failed to get substantial damages he was made to pay 
 the costs of the action. It is clear, therefore, that on a return of the 
 goods the plaintiff would recover, not their value, but the damages he 
 had sustained by the wrongful act, which was called the conversion." 
 
 The rule above suggested, when a return of the property had been 
 had, of applying to the court to stay or dismiss the action upon tender 
 or payment of nominal damages and costs, was referred to and ap- 
 proved in Bigelow Co. v. Heintze, supra, and is one that furnishes 
 ample protection to- the defendant. It is certainly against the policy 
 of the law to permit parties to carry on litigation when only the ques- 
 tion of costs is involved. The case of i\Iachine Co. v. Smith, 36 Wis. 
 295, 17 Am. Rep. 494, however, does not quite strike the situation here 
 presented. There the payment of the note in suit extinguished the 
 entire cause of action, and the court held there could be no judgment 
 for costs without a judgment for damages. Here the plaintiff was en- 
 titled, at least, to a judgment for nominal damages, which was a suffi- 
 cient foundation to carry costs. The defendant might easily have 
 protected himself by setting up tlie facts in his answer, and tendering 
 payment of nominal damages and costs, as hereinbefore suggested. 
 The judgment of the circuit court is affirmed.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 533 
 
 IV. Seduction and Loss of Service ''* 
 
 Actions for loss of service are of great antiquity and had their origin 
 in a state of society when service as a rule was a matter not of contract 
 but of status. At common law if A. took the servant of B., he took 
 w^hat originally af any rate was regarded as the chattel of B., and 
 thereby he committed a trespass. So if a servant was beaten this was 
 a trespass on the property of the master. It was early settled, how- 
 ever, that such a trespass was not actionable per se, but that it was 
 necessary to allege, with a per quod,'^ actual damage by reason of the 
 loss of service. The action, therefore, though founded on a notion 
 of trespass, was in substance for the consequential damage, and there 
 was considerable fluctuation of opinion as to its proper form."^ It 
 was, however, finally settled that the plaintiff might declare either in 
 trespass or case. 
 
 Clerk & Lindsell, Torts, 220 (1906). 
 
 7 4 The torts wliicli at the outset were characteristically of this class have 
 developed under several distinctive heads. An important part of the law 
 of domestic relations, including Master and Servant, Parent and Child, 
 Husband and Wife, began in actions for injuries to' a proprietary interest 
 in the service of another. These early actions are also the starting point 
 of the modern doctrine of tort liability for inducing a third person to 
 break his contractual relation with the plaintiff. 
 
 Cases on this latter doctrine will be given in Part III of this volume, un- 
 der the subject Torts through Malice. The earlier aspects of torts through 
 loss of service will be given here, but briefly, with reference only to their 
 bearings on the general doctrine of torts. — [Ed. 
 
 7 5 "Per quod servitium amisit." The clause was characteristic of and 
 essential to the cause. Compare Robert Mai-js' Case (1613) 9 Co. Rep. 113a : 
 "If my servant is beat, the master shall not have an action for this battery, 
 unless the battery is so great that by reason thereof he loses the service of 
 his servant, but the servant himself for every small battery shall have an 
 action ; and the reason of the difference is, that the master has not any 
 damage by the personal beating of his servant, but by reason of a 'per quod,' 
 viz. 'per quod servitium &c. amisit;' so that the original act is not the 
 cause of his action, but the consequent upon it, viz., the loss of his service is 
 the cause of his action ; for be the liattery greater or less, if the master 
 doth not lose the .service of his sen'ant, he shall not have an action." 
 
 76 "The action was generally on the case, but it might be trespass; e. g., 
 Tullidge V. Wade (1769) 3 Wils. 18, an action for seducing the plaintiff's 
 daughter, where the declaration was in trespass vi et armis. How this 
 can be accounted for on principle I know not, short of regarding the 
 servant as a quasi chattel. The difficulty was felt by Sir James Mansfield, 
 Woodward v. Walton (1807) 2 B. & P. N. R. 476, 482. For a time it seemed 
 the better opinion, however, that trespass was the only proper form. 
 Ibid.; Ditcham v. Bond (1814) 2 M. & S. 436. See 14 R. R. 836, note. It 
 was formally decided as late as 18.39 (without giWng any other reason than 
 the constant practice) that trespass or case might be used at the pleader's 
 option. Chamberlain v. Hazelwood (1839) 5 M. & W. 515, 9 L. J. Ex. 87. The 
 only conclusion which can or need at this day be drav>n from such fluctua- 
 tions is that the old system of pleading did not succeed in its professed 
 object of maintaining clear logical distinctions between different causes of 
 action." Pollock, Torts (7th Ed.) 225, note.
 
 534 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 The offences created by the series of Labour statutes and ordinances 
 which followed on the occurrence of the Black Death and the Peas- 
 ants' Revolt, have left a permanent mark on our law/'^ It was part 
 of the policy of that code to compel all persons under a certain rank 
 to serve any one who was willing to employ them, at the statutory rate 
 of wages ; and severe penalties were imposed upon a servant who re- 
 fused to serve or departed from his service. Naturally, the Courts 
 regarded any attempt to seduce a servant from his employment as vio- 
 lating the spirit of the Acts ; and, accordingly, the action of Case for 
 seduction or harbouring of a servant made its way into the books. 
 The form of the writ is given by Fitzherbert, who expressly bases it 
 on the statute of 1349, and says that it lies against both enticer aiid 
 servant. By a well-meaning, but rather clumsy analogy, this action 
 was, later on, extended to cover the case of debauching a woman ; but 
 the many anomalies of that form of action show how ill fitted is the 
 machinery to achieve its object. 
 
 Edward Jenks, Short Hist. Eng. Law, 147. 
 
 The much abused English action for seduction is quite in harmony 
 with legal principles. The person wronged is not the girl herself, who 
 ex hypothesi has consented to the act, but her parent, or other person 
 entitled to her services, who is damnified by its results. It is true that 
 English law has, on grounds of policy, allowed damages to be recov- 
 ered in this action far in excess of the value of the lost service. 
 
 Holland, Elements of Jurisprudence (10th Ed.) 173. 
 
 7 7 "I come then to the Statute of Labourers (23 Edw. Ill) ; and my ob- 
 ject now is to show that nothing in the provisions or policy of that statute will 
 warrant the action under the circumstances of this case; and that the older 
 authorities are decidedly against it. As we learn from the preamble, it 
 was enacted in consequence of the great mortality among the lower classes, 
 especially workmen and servants, in a pestilence which had prevailed in 
 1348-49. This pestilence will be found mentioned in our historians. And in 
 the preamble it is said: 'Many seeing the necessity of masters, and great 
 scarcity of servants, will not serve unless they may receive excessive wages, 
 and some rather willing to beg in idleness, than by labour to get their 
 living ; we considering the grievous incommodities, which of the lack es- 
 pecially of ploughmen and such labourers may hereafter come, have' &c. 
 'ordained.' This preamble is followed by an enactment, that every person 
 of whatever condition, free or bond, able in body, and under the age 
 of sixty, not living by mei'chandise nor having any certain craft, nor having 
 of his own wherewith to live, nor land of his own on the cultivation ot 
 which he may occupy himself, and not being in service, shall be compelled 
 to enter into service when required on customary wages. By the second 
 section it is made penal by imprisonment for any mower, reaper, or other 
 labourer or servant of whatsoever state or condition he shall be, to depart 
 from service before the expiration of the term agreed on; and no one is tio 
 receive or retain such offender in his service under like pain of imprison- 
 ment. This ordinance is the foundation of the action for the seduction of a 
 hired servant." Colendge, J., dissenting in Lumley v. Gye (1S53) 2 El. 
 & Bl. 216, 261, 95 E.'R. 531.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 535 
 
 This action [of trespass vi et armis, de uxore rapta et abducta] lay 
 at common law ; and thereby the husband shall recover, not the pos- 
 session of his wife, but damages for taking her away ; and by statute 
 Westm. I, 3 Edw. I, c. 13, the offender shall also be imprisoned two 
 years, and be fined at the pleasure of the king. Both the king and the 
 husband may therefore have this action; and the husband is also en- 
 titled to recover damages in an action on the case against such as per- 
 suade and entice the wife to live separate from him without a sufficient 
 cause. 
 
 Blackstone, 3 Com. 139J» 
 
 HART V. ALDRIDGE. 
 (Court of King's Bench, 1774. 1 Cowp. 54, 98 Reprint, 964.) 
 
 This came before the Court on a case reserved upon the following 
 question : Whether under the circumstances of this case the plaintiff 
 was entitled to recover? It was an action of trespass on the case for 
 enticing away several of the plaintiff's servants who used to work for 
 him in the capacity of journeymen shoemakers. The jury found that 
 Martin and Clayton were employed as journeymen shoemakers by the 
 plaintiff', but for no determinate time but only by the piece, and had 
 at the time of the trespass laid each of them a pair of shoes unfin- 
 ished ; that the defendant persuaded them to enter into his service and 
 to leave these shoes unfinished, which they accordingly did. 
 
 Mr. Darell, for the plaintiff, stated it to be a question of common 
 law, and that the only point for the opinion of the Court was, "whether 
 a journeyman was such a servant as the law takes notice of?" In sup- 
 port of which proposition he insisted that a journeyman is as much a 
 servant as any other person who works for hire or wages ; that neither 
 in reason nor at common law is there any distinction between a serv- 
 ant in one capacity or another, and that the injury of seduction is in 
 all cases the same, though the recompence in damages may be different. 
 To shew that an action lay at common law for taking a servant out of 
 his master's service, he cited Brooke, Abr. tit. Action sur le Case, pi. 
 38; 11 Hen. IV, 23, pi. 46. In Fitzherbert, 168, D, it is laid down, 
 that "if a man take an infant or other out of another's service, he shall 
 be punished, although the infant or other were not retained." In 
 Brooke, tit. Lab. p. 21, a distinction is taken between the taking a serv- 
 ant out of his master's service, and the procuring him to depart or 
 retaining him after a voluntary departure, being apprised of his first 
 retainer : in the two last of which cases, an action on the case is the 
 
 7 8 See Winsmore v. Greenbanlt (1745) Willes, 577, 125 Reprint, 1330. 
 Compare Macfadzen v. Olivant (1S0.5) 6 East, 387, 102 Ropiint, VMio. 
 And see 21 Cyc. 1G17 ; 16 Halsbury's Laws of England, 318 (1911).
 
 536 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Parti 
 
 proper remedy; in the former, trespass, at common law. But he in- 
 sisted that in no case liad there ever been a distinction taken with re- 
 spect to the time for which a servant might be hired ; nor indeed be- 
 fore the Stat. 5 Ehz. c. 4, was any precise time necessary; the object 
 of which statute was very different from the question before the 
 Court. He pressed the argument ab inconvenienti, stating that it 
 would be of great detriment to the town, where the whole trade was in 
 a great measure carried on by this sort of servant. That the verdict 
 had found the defendant to be apprised of the retainer of the serv- 
 ants, it being in proof that he had desired them to leave their work 
 then in hand unfinished. 
 
 Mr. Willes, contra. The single question is, whether the enticing 
 away a journeyman shoemaker, who is hired to make a single pair 
 of shoes, is such an injury to his master as that an action will lie for 
 it? Now the jury have found that there was no hiring for any deter- 
 minate time, but only by the piece: if so, they could not be the plain- 
 tiff's servants; for the term "journeyman" does not import that they 
 belong to any particular master. 
 
 Lord Mansfield interrupted him. The question is, whether say- 
 ing that such a one is a man's journeyman, is as much as to say, that 
 he is such a man's servant; that is, whether the jury by finding him to 
 be the plaintiff's journeyman do not ex vi termini find him to be his 
 servant? A journeyman is a servant by the day; and it makes no 
 difference whether the work is done by the day or by the piece. He 
 was certainly retained to finish the work he had undertaken, and the 
 defendant knowingly enticed him tO' leave it unfinished. 
 
 What is the gist of the action? That the defendant has enticed a 
 man away who stood in the relation of servant to the plaintiff, and by 
 whom he was to be benefited. I think the point turns upon the jury 
 finding that the persons enticed away were employed by the plaintiff 
 as his journeymen. It might perhaps have been different if the men 
 had taken work for everybody, and after the plaintiff had employed 
 them the defendant had applied to them, and they had given the pref- 
 erence to him in point of time. For if a man lived in his own house 
 and took in work for different people, it would be a strong ground to 
 say that he was not the journeyman of any particular master: but the 
 gist of the present action is, that they were attached to this particular 
 master. 
 
 Aston, Justice. It is clear tliat a master may maintain an action 
 against any one for taking and enticing away his servant upon the 
 ground of the interest which he has in his service and labour. And 
 even supposing, as my Lord has stated, that the servant did live in his 
 own house, if he were employed to finish a certain number of shoes 
 for a particular person by a fixed time, and a third person enticed him 
 away, I think an action would lie. If not, it might be a very bad con- 
 sequence in trade. He is a servant quoad hoc, and though the seducer
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 537 
 
 and enticer is much the worse, yet the law inflicts a penalty upon 
 workmen leaving their work undone. 
 
 Mr. Justice WillES and Mr. Justice Ashhurst concurred. 
 
 Per Cur. Let the postea be delivered to the plaintiff.''* 
 
 BLAKE V. LANYON. 
 
 (Court of King's Bench, 1795. 6 Term R. 221, 101 Reprint, 521, 3 R. R. 162.) 
 
 The first count in the declaration stated that the plaintiff, who was 
 a currier, had hired and retained W. Hobbs to be his servant and jour- 
 neyman, &c. and that the defendant persuaded and enticed Hobbs to 
 leave his service, &c. In the second count it was alleged that Hobbs, 
 while he was so hired and employed by the plaintiff in his trade as 
 such servant, &c. wilfully and without the leave or license and against 
 the will of the plaintiff departed and absented himself from and left 
 the service of the plaintiff, &c. and then and there went to the defend- 
 ant; yet the defendant well knowing Hobbs to be the servant of the 
 plaintiff, and to have been and to be so retained, hired, and employed 
 by the plaintiff, &c. but contriving, &c. did then and there receive 
 and harbour the said W. Hobbs, and did then and there retain, keep, 
 and employ the said Hobbs in his (defendant's) said service, and 
 wholly refused to deliver him to the plaintiff his master, although re- 
 quested, &c. and unlawfully detained, entertained, and kept the said 
 
 79 Accord: Hartley v. Cummings (1847) 5 C. B. 247, 136 Reprint, 871, 
 75 R. R. 722: (Action "upon tlie case against tlie defendant for seducing 
 workmen from tlie service of the plaintiff, a glass and alkali manufacturer." 
 It appeared that "the defendant had seduced from the plaintiff's seiTice 
 several workmen, who were in his service under agreements as follows." 
 These agreements, one of which is set forth in full in the report, were to this 
 effect : "A. contracted to serve B. and his partner or partners for the 
 time being, for seven years, in his business of a glass and alkali manufacturer, 
 and at all times during the term to do his best endeavours, and use his 
 utmost care and diligence in the works; and, further, that he would not, 
 at any time during the term, neglect or absent himself from the said service, 
 without the consent in writing of B. or his partner or partners for the 
 time being, or either or such of them as should carry on the business ; 
 nor would work; for or serve any other person or persons, without such 
 consent : in consideration of which service, B. agreed to pay A. 24s. per 
 week for a certain amount of work, and to find him some other description 
 of work, provided he should not re(iuire that quantity of the specified work, 
 so that A.'s wages should not be less than 24s. per week, except when a 
 furnace should be out, when A. agreed to work for 21s. per week : and it was 
 agreed, that, if A. should be sick or otherwise incapacitated from performing 
 the sen'ice, or in case of misconduct, or if B., or his partner or partners 
 for the time being, or either or such of them as should carry on the trade, 
 should discontinue the trade during the tenu, in either of such cases, B. 
 or his partners should be at liberty to retain or employ any other person 
 in the room or stead of A., without being obliged to pay him any wages or 
 satisfaction."
 
 538 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 Hobbs, so then being the servant and journeyman of the plaintiff, in 
 his (the defendant's) service, &c., whereby,^" etc. 
 
 At the trial at the last Launceston assizes it appeared that Hobbs, 
 who was retained by the plaintiff to work by the piece, left the plain- 
 tiff's service on a dispute between them, the plaintiff' having beaten 
 him ; that at the time of his departure he had some work in hand ; 
 that he then applied for work to the defendant, who was also a cur- 
 rier, and who employed him, not knowing of his engagement with the 
 plaintiff"; but that in the course of a few days afterwards the defend- 
 ant, having been apprised by the plaintiff that Hobbs was his servant, 
 and had left his work unfinished, and being threatened with an action 
 in case he continued to employ Hobbs, requested the servant to return 
 to his former master and finish his work: this Hobbs refused, and 
 the defendant continued him in his service. No evidence being given 
 in support of the first count; it was objected on behalf of the defendant 
 that the action could not be supported on the second count, because it 
 either imported that the defendant had retained Hobbs in his service, 
 knowing him to be the servant of the plaintiff", which was not estab- 
 lished in proof, or that he merely continued Hobbs in his service after 
 he had notice of Hobb's engagement with the plaintiff, for which no 
 action could be maintained, it appearing that the defendant did not 
 know that Hobbs was the plaintift"s servant, at the time he first em- 
 ployed him. But Mr. J. Lawrence, before whom the case was tried, 
 over-ruled the objection, saying that the plaintiff" might recover upon 
 the second count, if the jury were of opinion that the defendant con- 
 tinued to employ Hobbs after he knew that Hobbs was the plaintiff's 
 servant. The jury having given a verdict for the plaintiff": 
 
 Gibbs now renewed his objection, and moved either to enter a non- 
 suit, or to arrest the judgment; stating that great inconveniences 
 would result from a determination against the defendant, for that in 
 such a case a person engaged in a great manufacture might be de- 
 prived of the benefit of the service of a journeyman whom he had re- 
 tained to do a particular piece of work, not knowing at the time of 
 
 so "The old forms of pleading in actions for enticing: away or liarliouring 
 servants, besides alleging Isnowledge of the service, always alleged that the 
 defendant did the act complained of, 'contriAing and intending to injure 
 the plaintiff.' Whether the latter averment was regarded as material and 
 traversable was not very clear. No doubt in the majority of cases the 
 fact of knowledge is practically conclusive of malice. But there may be 
 cases in which the defendant bona fide, in the servant's own interest, advises 
 him to break his contract. It was at one time thought that in such cases 
 action would not lie, but in view of the decision of the House of Lords 
 in the case of the South AVales Miners' Federation v. Glamorgan Coal Co., 
 [1905] A. C. 239, this presumption is no longer tenable. Nor is it in all 
 c.ises essential that the defendant should have been actuated by a desire 
 either to injure the plaintiff or to benefit himself at tlie plaintiff's expense. 
 The old theory that tlie whole gist of tlie right of action lies in the ma- 
 licious intent, and that only where this is made out to the satisfaction of 
 the Court is the aggi-ieved party entitled to damages against the defendant, 
 in the light of recent decisions, being no longer a coiTcct exposition of tlie 
 law." Clerk & Lindsell, Torts, 222 (190G).
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 539 
 
 hiring that the journeyman was under any engagement with any other 
 master, before the servant had finished his work, and at a moment 
 when the materials then in work might be totally spoiled if left in an 
 unfinished state. And he cited Adams v. Bafeald, 1 Leon. 240, where 
 it was held by Tansfield, J., and Fenner, J., against the opinion of 
 Gawdy, ]., that an action does not lie for retaining the servant of an- 
 other, unless he procure the servant to leave his first master. 
 
 Sed PER Curiam. An action will lie for receiving or continuing to 
 employ the servant of another after notice, without enticing him away. 
 Here no fault could be imputed to the defendant, for taking Hobbs 
 into his service in the first instance, because then he had no notice of 
 Hobb's prior engagement with the plaintiff: but as soon as he had 
 notice of that fact, he ought to have discharged him. A person who 
 contracts with another to do certain work for him is the servant of 
 that other till the work is finished, and no other person can employ 
 such servant to the prejudice of the first master; the very act of giv- 
 ing him employment is affording him the means of keeping out of his 
 former service. ^^ 
 
 Rule refused. 
 
 BUTTERFIELD v. ASHLEY. 
 (Supreme Judicial Court of Massachusetts, 1850. 6 Cush. 249.) 
 
 This was an action of trespass on the case, for enticing away the 
 plaintiff's son and servant from his employment. The action was tried 
 in the court of common pleas, before Perkins, J., and came into this 
 court upon exceptions to the judge's instructions to the jury. 
 
 Metcalf, J. The question now to be decided is, whether the in- 
 structions given to the jury, upon the evidence introduced at the 
 trial, were warranted by the law of the case. 
 
 The declaration contains a single count, in which it is alleged that 
 the defendants, knowing that the plaintiff's son was in his employ- 
 ment and service, enticed him into their employment, put him on 
 board a vessel, and sent him to sea on a whaling voyage. The evi- 
 dence was, that the son left his father's house in New Hampshire, 
 without his father's consent, and went to New Bedford ; that he there 
 applied to the defendants to employ him in a whaling vessel; that 
 they, knowing him to be a minor at first refused to employ him; 
 but that, at his urgent solicitation and upon his representation that 
 he had his father's consent to go on a voyage, they took him into 
 their employment and sent him to sea. Upon this evidence, the jury 
 were instructed that the defendants were liable in this action, if the 
 
 81 Accord: Fawcet v. Blavres (1684) 2 Lev. 63, 83 Reprint, 451; Milburne 
 V. Byrne (1S05) 1 Cranch, C. C. 289, Fed. Cas. No. 9,542, wliere the fact of 
 employment by the defendant, \Alio knew that the servant had left his 
 ma.ster, was held presumptive evidence of the enticement.
 
 540 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 plaintiff never assented to his son's being employed by them, although 
 they honestly believed that he had given his full consent. And we 
 are of opinion that these instructions were wrong. 
 
 A master may maintain an action on the case against one who, 
 knowing that another is his servant, entices him away from his serv- 
 ice, or retains and employs him, after he has wrongfully left that 
 service without being enticed away; and also against one who con- 
 tinues to employ his servant, after notice that he is such, though the 
 defendant, at the time of retaining or employing him, did not know 
 him to be a servant; and a father is the master of his minor child, 
 within these rules of law. The books of entries contain forms of 
 declarations adapted to these three distinct causes of action. And 
 a plaintiff generally inserts at least two counts in his declaration; 
 one for enticing, and another for employing or harboring; so that 
 he may succeed on the latter, though he may fail to support the former. 
 But in either form of declaring, it is a material and necessary alle- 
 gation, that the defendant knew, at the time of enticing, employing, 
 or harboring, that the party enticed away, employed, or harbored, was 
 the servant of the plaintiff", or that he afterwards had notice there- 
 of, and continued to employ or harbor the servant, after such notice. 
 And such knowledge or notice must be proved, in order to support 
 the action. See Wentw. PI. 438; 2 Chit. PI. (6th Amer. Ed.) 645, 
 646; 1 Bl. Com. 429; 3 ib. 142; Fawcet v. Beavres, 2 Lev. 63; 
 Blake v. Lanyon, 6 T. R. 221 ; Reeve's Dom. Rel. 291 ; Sherwood v. 
 Hall, 3 Sumner, 127, Fed. Cas. No. 12,777; Ferguson v. Tucker, 
 2 Har. & Gill (Md.) 182 ; Conant v. Raymond, 2 Aik. 243 ; Fores 
 V. Wilson, Peake's Cas. 55. 
 
 The gist of an action like that now before us is, says Lord Mans- 
 field, "that the defendant has enticed away a man who stood in the 
 relation of servant to the plaintiff." Hart v. Aldridge, Cowp. 54, 56. 
 And the enticing must be proved. 3 Stark. Ev. 1310; Stuart v. 
 Simpson, 1 Wend. (N. Y.) 376. Now what is meant by "enticing 
 away from the service" of another? So far as we know, the word 
 "entice" has no technical meaning. But, in a declaration like that 
 in this case, it must mean something quite different from a reluctant 
 employment of another's servant, under a belief that the master has 
 consented to that employment. The word is often joined, in the 
 precedents of forms, with the words "solicit, seduce, persuade, and 
 procure" ; and it evidently imports an active and wrongful effort to 
 detach a servant from his master's service, by offering inducements 
 adapted to that end. In Keane v. Boycott, 2 H. Bl. 511, Eyre, C. 
 J., describes enticement and its effect as a dissolution of the relation 
 of master and servant "officiously." We see no evidence of entice- 
 ment, in the present case. The son had wrongfully left his father's 
 service, before he was employed by the defendants; so that the plain- 
 tiff's declaration is not sustained by the proof. If evidence of the
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 541 
 
 mere employment of another's servant, knowing him to be such, 
 would support a declaration for enticing him from his master, there 
 would be no necessity for a count which omits the allegation of en- 
 ticement, and charges only a retaining, employing, or harboring. 
 
 Besides, if, in the opinion of the jury, the defendants believed that 
 the plaintiff had fully consented to their employing his son, then the 
 material averment in the declaration, that they well knew that he was 
 in the plaintiff's service, was not proved, but was disproved. For 
 it is impossible that they should know him to be in the service of one 
 whom they believed to have dispensed with his service. New trial 
 ordered. 
 
 NICHOL et al. v. MARTYN. 
 (At Nisi Prius, Sittings after Term at Guildliall, 1799. 2 Eep. 732.) 
 
 This was a special action on the case, against the defendant, for 
 seducing the plaintiffs' customers. 
 
 The plaintiff's were wholesale ironmongers, who carried on a very 
 extensive business; the defendant had been employed by them as 
 their rider or traveller, to get orders in the course of their business ; 
 and the foundation of the action was, that the defendant, who at the 
 time of bringing the action was in the same line of business with the 
 plaintiffs, had, during the time that he was in their employment, en- 
 deavoured to seduce the several country shopkeepers who were in the 
 habits of dealing with the plaintiff's, to leave off dealing with them, 
 and to transfer their business to the defendant. 
 
 To prove the plaintiffs' case, they called some of those country 
 shopkeepers. Their evidence proved that the defendant on his last 
 coming to their shops as rider to the plaintiffs, and on their business, 
 had told them that he was himself going into the same business with 
 the plaintiffs after Christmas, and would then be obliged to them 
 for an order on his own account. 
 
 It appeared, however, on the cross-examination of those witnesses, 
 that he took the orders regularly for the plaintiffs on that journey, 
 and that they were executed on the plaintiffs' account; and that no 
 solicitation was used by the defendant for any order at that time, 
 which might have been supplied by the plaintiffs. 
 
 It was also admitted, that in fact, the time of the defendant's en- 
 gagement to serve the plaintiffs, expired at the beginning of the year ; 
 so that, in truth, in the month of March he would have been com- 
 pletely his own master. 
 
 Lord Kenyon, Chief Justice. The conduct of the defendant in 
 this case, may perhaps be accounted not handsome, but I cannot say 
 that it is contrary to law. The relation in which he stood to the plain- 
 tiffs, as their servant, imposed on him a duty which is called of imper- 
 fect obligation, but no such as can enable the plaintiffs to maintain
 
 542 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 an action. A servant while engaged in the service of his master, has 
 no right to do any act which may injure his trade, or undermine his 
 business ; but every one has a right, if he can, to better his situation 
 in the world ; and if he does it by means not contrary to law, though 
 the master may be eventually injured, it is damnum abs. injuria. 
 There is nothing morally bad, or very improper in a servant, who 
 has it in contemplation at a future period to set up for himself, to 
 endeavour to conciliate the regard of his master's customers, and to 
 recommend himself to them, so as to procure some business from 
 them as well as others. In the present case, the defendant did not 
 solicit the present orders of the customers : on the contrary, he took 
 for the plaintiffs all those he could obtain : his request of business for 
 himself was prospective, and for a time when the relation of master 
 and servant between him and the plaintiff's would be at an end. 
 
 It was suggested in the course of the cause, that the defendant 
 had seduced some of the servants of the plaintiffs to quit their serv- 
 ice and to enter into his when he went into business. 
 
 Upon that point Lord Kbnyon said, that seducing a servant, and 
 enticing him to leave his master while the master by the contract had 
 a right to his services, was certainly actionable; but that to induce 
 a servant to leave his master's service at the expiration of the time 
 for which the servant had hired himself, although the servant had no 
 intention at the time of quitting his master's service, was not the 
 subject of an action. 
 
 The plaintiffs were nonsuited. 
 
 DEAN v. PEEL. 
 
 (Court of King's Bench, 1S04. 5 East, 45, 102 Reprint, 986, 7 R. R. 653.) 
 
 This was an action on the case for debauching and getting with 
 child the plaintiff's daughter. The declaration stated that the defend- 
 ant, wrongfully intending to injure the plaintiff, debauched and car- 
 nally knew E. D. then being the daughter and servant of the plain- 
 tiff, whereby she became pregnant, &c. and diseased, &c. by means 
 whereof the said E. D. was rendered unable to perform the necessary 
 affairs and business of her said father and master, during all which 
 time he was deprived of her service, and was obliged to expend so 
 much in nursing and taking care of her. The cause was tried before 
 Chambre, J., at the last assizes at Lancaster; when the facts appeared 
 to be that the daughter, who was 19 years of age when she was se- 
 duced, was then living in the house of one Taylor, who had before 
 married her sister, a few doors from her father's house in Manchester. 
 Taylor kept a public house; and his wife having then lately died, 
 the plaintiff's daughter acted as his housekeeper, and had the care 
 of the bar : but no contract was made with her brother-in-law for
 
 Ch. 2) ABSOLrTE TORTS OTHER THAN TRESPASSES 543 
 
 wages, either by herself or the plaintiff her father, nor did she in 
 fact receive any : and she might have left him when she pleased : 
 but while her sister lay dead in the house Taylor told her that she 
 might take what money she wanted. Finding herself with child she 
 returned to her father's house and afterwards lay in there at his 
 expense : and after her removal thither she applied to Taylor for 
 wages, who refused to pay any. The daughter, by whom the above 
 facts were proved, added, upon her examination, that if this misfor- 
 tune had not befallen her she had determined not to return to her 
 father's house. On this evidence the learned Judge nonsuited the 
 plaintiff, on the ground that there was no service proved to the father 
 at the time of the seduction and getting with child : and that the 
 daughter being under age at the time (which was pressed upon him as 
 distinguishing this from former cases) made no dift'erence, particu- 
 larly as she had no animus revertendi to her father's family. 
 
 Topping now moved to set aside the nonsuit and for a new trial, 
 on the distinction before taken. * * * 
 
 Lord Ellenborough, C. J- T^n those cases ®^ the implied relation- 
 ship of master and servant continued. But here there was no animus 
 revertendi : the daughter declared on her examination that she had 
 no intention of returning to her father's house before this misfor- 
 tune ; and she was actually in the service of another person. I think 
 therefore that the opinion of the learned Judge who tried the cause 
 was correct. 
 
 Per Curiam. Rule refused. 
 
 CARR v. CLARKE. 
 (Court of King's Bench, 1818. 2 Chitty, 260, 23 R. H. 74S.) 
 
 This was an action for debauching the plaintiff's daughter; and 
 at the trial before Mr. Baron Wood, the plaintiff was nonsuited, on 
 the ground that the daughter was not proved to be the plaintiff's serv- 
 ant. It appeared that she was sixteen years of age, and that the 
 plaintiff her father, on removing from his residence, had left her 
 behind with a relation, a Mrs. Shapert, in whose employment she was 
 at the time of the seduction. The father, however, received from his 
 daughter a part of the wages. Scarlett now moved to set aside the 
 nonsuit and have a new trial. He contended that there was in this 
 case an animus revertendi on the part of the daughter; and that her 
 father receiving part of the wages and she herself being under age, 
 
 82 The reference Is to two cases referred to by Topping, in which Wilson. 
 J., at nisi prius had given it as his opinion that "if the daughter were 
 under age the action was maintainable for her seduction tliough she was 
 not living with her father at the time.'' 
 
 And see Hedges v. Tagg (1872) L. R. 7 Ex. 283 ; Whitbourne v. Williams 
 [1901] 2 K. B. 722.
 
 544 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 there was sufficient evidence of service to maintain the action. Dean 
 V. Peel, 5 East, 45, and other cases cited, were contended to be dis- 
 tinguishable ; the daughter, although under age, being actually in 
 the service of another person, and having no intention of returning. 
 In Postlethwaite v. Parkes, 3 Burr. 1878, the daughter was in another 
 service, and of full age at the time of the seduction. Bennett v. All- 
 cott, 2 T. R. 168. "The rule that there must be a contract for serv- 
 ice, is too narrow for the liberal sentiments of the present time. The 
 slightest service has been held sufficient." 
 
 Abbott, C. J. Even making tea has been said to be an act of serv- 
 ice. But here there was in fact a service with another person, who 
 could undoubtedly have brought the action; and then there might be 
 two actions. The declaration states that the injury was committed, 
 "the party then being the daughter and servant of the plaintiff." 
 
 Bayley, J., mentioned Fores v. Wilson, 1 Peake, 77 . The cases go 
 upon the express ground, that the relation of master and servant 
 must exist; but the evidence may be very slight. The parties must 
 stand in the relation of master and servant, although a temporary ab- 
 sence may not be sufficient to destroy that relation. If it had been 
 established that Mrs. Shapert had paid the father the wages, perhaps 
 the plaintiff' might have succeeded. 
 
 Abbott, C. J. This action is founded on the situation of master 
 and servant, not upon that of parent and child. When the father is 
 in a condition to bring the action, and the child is his servant, that 
 circumstance may increase the damages ; but we can go no farther. 
 in this case, the allegation that the child is the servant of the plain- 
 tiff is not proved. She was the servant of another person. 
 
 Bayle;y, J., was of the same opinion, and referred to Satterthwaite 
 V. Duerst, 5 East, 47. The action is supported by the evidence of 
 one of the criminal parties, and therefore should be kept within close 
 bounds. The declaration must state that the girl was the servant of 
 the plaintiff. Lord Mansfield, in the case referred to, after looking 
 into the cases said, that the action would not lie, unless it was laid per 
 quod servitum amisit. 
 
 Scarlett then observed, that Wood, B., was anxious that the motion 
 should be brought before the Court. And, 
 
 Abbott, C. J., observed, that it was very natural that any person 
 should feel anxious that the law upon this subject was rather differ- 
 ent from what it is. 
 
 Rule refused.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 545 
 
 MANVELL V. THO^ISON. 
 
 (At Nisi Prius, Adjourned Sittings at Guildliall, 1826. 2 Car. & P. 303, 
 
 31 R. R. 666.) 
 
 Trespass for seducing the plaintiff's niece and servant. 
 
 The plaintiff' was a ticket porter, and his niece, the subject of 
 the action, was a girl of about sixteen years of age, whose parents 
 had been dead some years. A sum of nearly £500 apiece was left by 
 her parents to herself and her brothers and sisters, which was de- 
 posited in the Bank till they should come of age. She was brought 
 up at her uncle's and was for some time out at service, but returned 
 to her uncle's house previously to the time when she was debauched 
 by the defendant. It appeared that while she was at her uncle's, who 
 had several children, she assisted them in the domestic business of 
 the house, as they kept no regular servant. 
 
 Denman, for the defendant. The action is not maintainable ; the 
 evidence of service is too slight. The presumption of her being a 
 servant to her uncle, is rebutted by the fact of her having so large a 
 sum of money; and the relation of uncle and niece is not of itself 
 sufficient. 
 
 Abbott, C. J. Certainly the relation of uncle and niece of itself 
 will not do ; but I think there is enough in the evidence to constitute 
 the relation of master and servant. Suppose a son has money enough 
 to find himself in clothes, the relation of father and son is not de- 
 stroyed by that circumstance. In this case, the uncle is in loco paren- 
 tis. The smallest degree of service will do. It seems there was no 
 servant kept; and it is reasonable to conclude, that all the members 
 of the family assisted in turn in the performance of the household 
 work. 
 
 The cousin of the girl, and a surgeon, proved, that when she re- 
 turned to her uncle's house, after she had been seduced and abandon- 
 ed by the defendant, she was in a state of very great agitation, and 
 continued so for some time ; that she received medical attendance, and 
 was obliged to be watched, lest she should do herself some injury. 
 This was taken as evidence raising the presumption of loss of service 
 by the tmcle ; and he had a 
 
 Verdict — damages i400. 
 
 MURRAY v. FITZGERALD. 
 
 (King'.s Bench Division of the High Court of Justice in Ireland, Nov., 1905; 
 Court of Appeal, Feb., 3906. [19061 2 I. R. 254.) 
 
 Action by Michael Murray against William FitzGerald for dam- 
 ages for seduction by the defendant of Bridget Murray, the sister and 
 servant of the plaintiff. 
 Hepb. Torts — 35
 
 546 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 The following facts were proved : Bridget IMurray lived with her 
 brothers Alichael and Pat on a farm at Clashmore, in the county of 
 \\'aterford. Their father had owned the farm. He died over twenty- 
 eight years before the action, leaving a widow and the three children. 
 Me left a will, which had not been proved. After his death the mother 
 managed the farm until her death about twenty years ago. At the time 
 of the mother's death Bridget Murray, who was the only one adult, 
 managed the farm and paid the rent, and got the receipts in the name 
 of the representatives of Murray, and also did the work which an 
 indoor servant would have done (no servant being kept) doing both 
 outside and inside work. The money produced by the farm went 
 to pay the bills and the rent. The rate receipts were in the name of 
 Michael. When Michael grew up. he took up the housework; there 
 was no inside servant kept. During the time that Bridget was ill, 
 Michael paid for the nurse to attend to her. It was stated that there 
 was an arrangement that if Bridget married, she was to have £100. 
 
 The jury found that at the times of the seduction and birth of the 
 child, Bridget Murray was the servant of the plaintifif, and they found 
 a verdict for £100. 
 
 The defendant moved to set aside the verdict and judgment for 
 the plaintiff, and that judgment should be entered for the defendant, 
 on the ground that there was no evidence to sustain the finding of 
 the jury that the relation of master and servant existed between the 
 plaintiff and Bridget Murray. 
 
 In the King's Bench Division it was held by Andrews and Boyd, 
 JJ., Gibson, J., dissenting, that there was evidence upon which the 
 verdict in favour of the plaintiff could be sustained. The defendant 
 appealed.^^ 
 
 In the Court of Appeal. 
 
 FiTzGiBBON, L. J. I find it impossible to question the verdict in this 
 case without disturbing the settled law as to the action for seduction. 
 The judgments of Andrews, J., and Boyd, J., appear to me to put the 
 plaintiff's right on its proper foundation. The judgment of Gibson, 
 J., is rather a doubting than a dissenting judgment. He truly says that 
 it is a hard case; but I cannot agree with him that "the action is so 
 far founded on fiction that sometimes it is impossible to reconcile the 
 view of the Court with common sense or reality." 
 
 I am unable to disturb the verdict, because I cannot hold that a 
 reasonable jviry could not find, on the evidence, that the relation of 
 master and servant — as legally understood for the purposes of such an 
 action — existed between the plaintiff and his sister, and that a loss 
 of her service was caused to the plaintiff by her seduction. 
 
 88 The opinions of Andrews, Ro.vd, and Gibson, JJ., in tlie Kiuc;'.s Bench 
 Division, the opinion of Walker, C, in the Court of Appeal, who conciUTed 
 with FitzUibhon, L. J., portions of the opinions by FitzGil)bou and Holmes, L. 
 JJ., and the argniments of counsel are omitted.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 547 
 
 The "fiction"' which Gibson, J., regarded as irreconcilable with 
 common sense or reality, can be defined. It is the fiction of "actual 
 service" ; but the word "service" is ambiguous, and Sir Frederick Pol- 
 lock says, of "the relation of master and servant," that in modern 
 law it is "created by contract, but for some purposes" (including that 
 of supporting the action of seduction) it "is still regarded as belonging 
 to the permanent organism of the family, and having the nature of 
 status." The "difficulty in fixing the boundary where the sphere of 
 domestic relation ends and that of pure contract begins, is only a 
 difficulty of degree." 
 
 We have here, in my opinion, ample evidence to establish "the do- 
 mestic relation" of master and servant, and that relation is quite 
 enough to sustain the action. "Service" is the test word. In the Im- 
 perial Dictionary I find the following definitions of it: "Labor per- 
 formed in the interest of others ;" "any work done for the benefit of 
 another ;" "the act of helping another or of promoting his interests in 
 any way." In these senses it means little more than assistance. It also 
 includes "the w^ork of a person in any way held to obedience or duty," 
 and "the official duty or work required of one." The so-called fiction 
 only imports obligation into the relation which supports the action 
 of seduction, and as to that Sir Frederick Pollock says : "The test of 
 the plaintifif's right has come to be, not whether he has been in- 
 jured as the head of the family, but whether he can make out a con- 
 structive loss of service." [Pollock on Torts, p. 223.] 
 
 It is clearly settled that seduction can be maintained w^here there is 
 no servitude — no actual obligation to serve. The domestic relation- 
 ship does not necessarily depend on blood relationship — it is not con- 
 fined to parent and child. A lady has maintained the action for the 
 seduction of even an unpaid companion. It is sufficient if help of 
 appreciable value is rendered by one member of a household to another 
 member of the same household, who is "head of the house." The 
 defendant's counsel asked Bridget Murray, "Weren't you the head of 
 the house?" and she answered, "Yes." But Johnson, J., asked her, 
 "Who is the man of the house at the farm?" and she answered, "Aly 
 brother Michael is." I think the fair meaning of these answers is, that 
 she was the housekeeper, and he was the head of the family. If 
 reasonable men could accept that evidence, we cannot disturb the ver- 
 dict. 
 
 What are the facts? We have to deal with the family of a farmer, 
 who at his death left a widow and daughter and two sons surviving 
 him. The widow afterwards died. There is some confusion as to the 
 ages of the children at the dates of the deaths of the father and moth- 
 er; but we cannot set aside a verdict because the dates are vague. 
 When the father died, the youngest son must have been very young. 
 The daughter was the eldest of the three. The mother survived the fa- 
 ther for some time, and she died about 20 years ago. At that time the
 
 548 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 daughter only was adult. While the widow lived, she certainly was 
 the head of the house. The widow managed the fami and household 
 until her death. She certainly could have maintained the action if her 
 daughter had been seduced during her life. While she managed the 
 place, her position in respect of ownership, as the widow of the de- 
 ceased tenant, seems to me to have been exactly the same, both in law 
 and in fact, towards her daughter, as that which was taken up by 
 the elder son, as soon as he became old enough to undertake the man- 
 agement. Until then the rent was paid by the daughter, but in the 
 name of her father's representatives; but from the time when the 
 plaintiff took up the management, he paid the rates, he employed all 
 the farm servants, and the rent was paid out of the produce of the 
 farm, still in the name of the father's representatives. The ordinary 
 house-work of the family — all the work of a female domestic servant 
 — was done by the sister. The younger brother may be left out of 
 consideration, for he was not old enough to take any part in the man- 
 agement, and if his sister rendered any "service" to him she did so 
 for her elder brother too. Not only did she perform all the neces- 
 sary domestic service of the household, but when she was incapacitat- 
 ed, the elder brother had to employ and pay some one else to do her 
 work, and if she had not been there he would have had to pay a do- 
 mestic servant. He paid the nurse who attended his sister when she 
 was ill. Under these circumstances — as the law stands — I think the 
 jury was not only justified, but was right, in finding that, at the 
 times of the seduction and birth of the child, Bridget IMurray was the 
 servant of the plaintiff. 
 
 My view of the law is put by Sir Frederick Pollock so clearly that I 
 take the liberty of adopting the following passages from his book 
 (Pollock on Torts [7th Ed.] p. 226), and incorporating his language 
 with my judgment: 
 
 "In this kind of action it is not necessary to prove the existence of 
 a binding contract of service between the plaintiff and the person 
 seduced. The presence * * * Qf seduction * * * is not a 
 necessary part of the cause of action, but only a circumstance of 
 aggravation. Whether that element be present or absent, proof of 
 a de facto relation of service is enough * * * when once the rela- 
 tion of master and servant, at the time of the acts complained of is 
 established. * * * Some evidence of such a relation there must 
 be, but very little will serve. * * * The fact of a child living with 
 a parent, or any other person in loco parentis, as a member of the 
 family of which that person is the head, is deemed enough to support 
 the inference that the relation of master and servant, determinable at 
 the will of either party, exists between them. 
 
 "Partial attendance in the parents' house is enough to constitute 
 service, as where a daughter employed elsewhere in the daytime is, 
 without consulting her employer, free to assist and does assist, in the
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 549 
 
 household when she comes home in the evening. Some loss of service, 
 or possibility of service, must be shown as consequent on the seduc- 
 tion, since that is, in theory, the ground of action ; but when that con- 
 dition is once satisfied, the damages that may be given are by no 
 means limited to an amount commensurate with the actual loss of 
 service proved or inferred. The awarding of exemplary damages is 
 indeed rather encouraged than otherwise. It is immaterial whether 
 the plaintiff be a parent or kinsman, or a stranger in blood, who has 
 adopted the person seduced.^* 
 
 "On the same principle or fiction of law a parent can sue in his own 
 name for any injury done to a child living under his care and control, 
 provided the child is old enough to be capable of rendering service; 
 otherwise not, for the gist of the action depends upon the capacity of 
 the child to perform acts of service." * * * 
 
 This being so, I am clearly of opinion that the case is brought well 
 within the authorities, and that there is ample evidence of the exist- 
 ence of the relationship necessary to entitle the plaintiff to maintain the 
 action. 
 
 Holmes, L. J. * * * The action of seduction is founded on 
 the wrong done to a person who is entitled to, or enjoys, the benefit 
 of the sen'ices of the person seduced. It cannot be maintained with- 
 out some proof of service or liability to service, although such proof 
 is often very slight, and the service purely conventional. No difficulty 
 arises where there is a contract to serve, express or implied. The mas- 
 ter in such a case can always sue ; and an implied contract may be 
 inferred from very trifling circumstances. For example, a lady taken 
 as a companion by another lady, without salary, and from motives of 
 friendship, might be regarded in an action of this kind as the latter's 
 servant, if she makes herself useful in the house. It would be a rea- 
 sonable inference that she gives this assistance in return for, and in 
 consideration of, the comforts of a home. 
 
 I think that at least one of the Judges of the Divisional Court held 
 that in the present case the jury were at liberty to infer from the 
 facts a contract of service. I am of opinion that there is no evidence 
 from which such an inference can be drawn. What was the consid- 
 eration given by the plaintiff" for such a contract? No doubt Bridget 
 did the indoor work, thus saving the wages of a servant, just as her 
 brothers, by their labour on the farm, reduced the need of hired help ; 
 but the sister was no more serving them than they were serving her. 
 Their position might be compared to the case of three ladies carrying 
 on a trading establishment as partners, each superintending a different 
 department of the business. If one becomes temporarily incapacitated 
 for work, the loss is felt by all ; but it would be, I think, absurd to 
 
 84 On the general principle here, see Tittlebaum v. Boehmcke (1911) 81 N. 
 J. Law, 607, SO Atl. 32.3, 35 L. R. A. (N. S.) 10G2, Ann. Cas. 1912D, 298, and 
 35 Cyc. 1303, notes, 64, 65, 66.
 
 550 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 suggest that, if such incapacity arose from pregnancy, the others 
 would have a cause of action against the seducer. It would only 
 intensify the absurdity, if the two other partners were in turn seduced, 
 to assert that an action lay at the suit of the partner who had already 
 yielded to temptation. 
 
 I have thus far considered the case on the basis of implied contract, 
 which was, I think, the ground taken by the majority of the Divisional 
 Court. I do not, however, forget that there is a kind of service wholly 
 unconnected with contract that will support an action of this kind. It 
 has always been held that where a daughter, living with a parent, is 
 seduced, the parent is entitled to sue the wrongdoer, upon showing 
 that the girl has rendered the slightest service in the family. I have 
 no doubt that this rule of law arose from the idea that she is under 
 a moral obligation to carry out the wishes of, and to make herself use- 
 ful to, a parent, under whose protection and guidance she is living. 
 This principle has been extended in two directions. It has been held 
 to apply in a few exceptional cases where, at the time of the seduc- 
 tion, the daughter is not actually living, at least permanently living, 
 with the parent. It has also been held to apply to cases where the 
 nominal services are rendered, not to a parent but to a person in loco 
 parentis. It is unnecessary for me to examine the authorities on those 
 branches of the rule ; for in the first the parent is always the plaintiff ; 
 and as to the second, no one could suggest that Michael Murray was 
 in loco parentis to a sister, ten or thirteen years older than himself, 
 who managed the money of the family, who gave card-parties and 
 other entertainments, and who was, as she said in her evidence, the 
 head of the house. 
 
 For these reasons I concur in the opinion of GinsON, J., that the 
 defendant was entitled to a direction in his favour at the close of the 
 plaintiff's case.^^ 
 
 85 In his opinion Mr. Justice Gibson had said: "I fear the evidence is at 
 least as consistent with the work having been done for the brothers as 
 piirtners; and if that were so, the action conld not be maintained. It is a 
 difflcuit case, as is apparent from what my Brother Andrews has said. The 
 action is so far founded on fiction that sometimes it is impossible to recon- 
 cile the view of the Court with counnon sense or reality. On the whole, 
 I think that the onus of proof which the plaintiff must establish is not 
 supported. The case is remarkable in this, that there is no other master in 
 existence, and that there has been a real pecuniary loss imposed on the 
 brothers by the act of the defendant. If the view of my Brother Andrews 
 is correct, that wherever there is interference with services rendered to 
 the prejudice of the person enjoying such services that is sufficient to give 
 a cause of action, the plaintiff must succeed ; but I think the law requires 
 something further: the services must be rendered to someone entitled to 
 them as master. In cases where there is a real contract, as in the ordi- 
 nary case of master and servant, there is no difficulty; it is only where 
 service is attributetl to some moral duty that a question arises. Here the 
 parties were co-owners ; and it being legitimate to refer the services ren- 
 dered to that relationship, my view is in favour of the defendant."
 
 Ch. 2) ABSOLUTE TOUTS OTHER THAN TRESPASSES 551 
 
 TAYLOR V. DANIEL. 
 (Court of Appeals of Kentucky, 1907. 98 S. W. 9S6.) 
 
 Lassing, J. Matilda Taylor filed her suit in the Bell circuit court 
 against White Daniel seeking to recover damages for the seduction of 
 her illegitimate daughter, Annie Belle Howard. A demurrer was filed 
 to the petition and sustained, and an amended petition filed, and a de- 
 murrer being sustained to the petition as amended, and plaintiff declin- 
 ing to plead further, her petition was dismissed, with judgment for 
 costs, and she appeals. 
 
 The petition as amended fails to state that the daughter, Annie 
 Belle Howard, was, at the date of the acts complained of. under 21 
 years of age, or that she was in the service of her mother, Matilda 
 Taylor. In the case of Woodward v. Anderson, 9 Bush, 624, this court 
 said: "At common law actions for seduction are based solely upon the 
 relation of master and servant, and no one but those entitled to the 
 services of the female could maintain it. The action is usually insti- 
 tuted by the parent, and the allegation and proof of loss of service 
 was at common law, indispensable to a recovery." Section 2 of the 
 Kentucky Statutes of 1903 has modified the common-law rule to the 
 extent that actions for seduction may now be maintained without any 
 allegation or proof of the loss of service of the female by reason of 
 the wrongful act of the defendant. But, as said in the case of Wood- 
 ward V. Anderson, supra : "This statute does not give the right of 
 action to any other persons than those who could maintain it at com- 
 mon law." The statute being silent on the question as to who may 
 bring such an action, the common-law rule upon this question is, there- 
 fore, in full force, and the relation of master and servant, or parent 
 and child, must still appear in the pleading. This being the case, and 
 the plaintiff in her petition having failed to allege that her daughter 
 was under 21 years of age, or was in her service, or that' she was 
 entitled to her service, we are of opinion that the petition failed to 
 state a cause of action for seduction. 
 
 The judgment is affirmed.**^ 
 
 8 Ou the change eflfected in the doctrine by statute, see 35 Cyc. 1298, and 
 cases cited in notes 29, 30, 31 ; 48 Cent. Dig. "Seduction," §§ 9, 16 ; Key-No. 
 ^Seduction," § 8. See also the remarks of Daniel, J., in Lee v. Hodges 
 (1857) 13 Grat (Va.) 726, 734, and the remarks of Campbell, .T., in Stondt 
 V. Shepherd (18S9) 73 :Mich. 588, 41 N. W. G96. Compare Tittlebaum v. 
 Koehmcke (1911) 81 N. .7. Law, 697, 80 Atl. 323, 35 L. R. A. (N. S.) 1062, 
 and note, Ann. Cas. 1912D, 298.
 
 553 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 PETERS V. JONES. 
 
 (High Court of Justice, King's Bench Division. [1914] 2 K. B. 781.) 
 
 The action was brought to recover damages for the seduction of 
 a girl aged twenty-two, the adopted daughter of the plaintiff, a mar- 
 ried woman. 
 
 The statement of claim originally alleged that the girl who had 
 been seduced was the sister and servant of the plaintiff". At the trial 
 this description was amended and she was described as the adopted 
 daughter and servant of the plaintiff. 
 
 The plaintiff, Mrs. Peters, lived with her husband. She adopted 
 the girl in 1906. The girl lived in the house with the plaintiff and 
 her husband, and without any specific contract of service either with 
 the plaintiff' or her husband performed there the ordinary domestic 
 services of the household. She was given by the plaintiff about 5s. 
 a week for pocket-money. Her clothes also were provided for her. 
 The clothes and pocket-money were provided out of the husband's 
 money. The plaintiff had no separate estate. The action was tried 
 at Cardiff' Assizes, before Avory, J., and a special jury, when evi- 
 dence of the facts stated above was given, and that the defendant 
 had seduced the girl. The jury having found a verdict for the plain- 
 tiff for £25. the case was adjourned to London for further consid- 
 eration as to whether the action would lie at the suit of the plaintiff. 
 
 Wilfred Lewis, for the plaintiff. The girl who was seduced was not 
 a servant of the plaintiff in the strict sense. She was the adopted 
 daughter of the plaintiff. The plaintiff therefore stood in loco paren- 
 tis to the girl. As the adopted daughter the girl owed a duty to her 
 adopted parent. Any one in loco parentis is entitled to maintain an 
 action in respect of the seduction of his or her daughter: Irwin v. 
 Dearman (1809) 11 East, 23. * * * 
 
 Avory, j_ * * * Xhe plaintiff is the wife of Ebenezer Peters, 
 and the question for decision is whether Mrs. Peters is entitled to 
 maintain this action for the seduction of the girl, who for the pur- 
 poses of this action may be treated as the adopted daughter of the 
 plaintiff. On behalf of the plaintiff it has been contended that in- 
 asmuch as that fact is admitted or established, and as she in fact 
 rendered services in the house, both at the time of the seduction and 
 also at the time of the confinement, there is sufficient to entitle Mrs. 
 Peters to sue, and that it is only a person who stands in loco parentis 
 who can sue for damages for ^seduction. Now, that contention ap- 
 pears to me to be a violation of the real principle upon which this 
 action can be maintained. I shall refer in a moment to the judg- 
 ments in Hamilton v. Long, [1903] 2 I. R. 407. But I wish to say 
 for myself that the principle on which an action for seduction can 
 be maintained is not, as the argument on behalf of the plaintiff sug- 
 gests, that there must be the relationship of parent and child, or any
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 553 
 
 quasi-relationship of parent and child, but that the relationship nec- 
 essary is merely that of master and servant. And when one looks 
 at the authorities in which it has been decided that a father may 
 maintain the action in respect of a daughter who is under twenty- 
 one years of age w^ithout proving any actual services rendered, but 
 that if she is over twenty-one years of age he must give evidence of 
 actual services rendered by the daughter, I think it is plain that the 
 foundation of the action is not the relationship of parent and child 
 but that of master and servant. 
 
 If I had had any doubt about that being the true principle I should 
 turn to Hamilton v. Long, [1903] 2 I. R. 407, where the facts in 
 my judgment gave rise to the very question of law that has to be 
 determined in this case. In that case a daughter w^as seduced while 
 her father and mother were alive and while she was living in their 
 house. A child was born after the father's death, and the daughter 
 continued to live with the widow. It was found as a fact that the 
 daughter rendered ordinary household services to her mother after 
 her father's death. In these circumstances it was held that an action 
 could not be maintained by the wddow either by virtue of the common 
 law or the ^Married Women's Property Acts. Now it is admitted to 
 be the law that the relationship which justifies the maintenance of 
 the action must exist at the time of the seduction and also at the time 
 of the illness consequent upon it that deprives the plaintiff of the 
 girl's services. That being so, the Court in Hamilton v. Long, [1903] 
 2 I. R. 407, had to determine whether, if the services were rendered 
 to the mother at the time of the illness, it could in that case be said 
 that the services were also being rendered to the mother at the time 
 of the seduction, and, if they were, whether the mother could main- 
 tain the action. The effect of the judgment w^as that as the father 
 ^vas alive and the daughter living in his house at the time of the se- 
 duction, he alone was the person who could have maintained the 
 action, and that the mother could not, because at the time of the 
 seduction the services were rendered to the father and not to the 
 mother. If I had had any doubt upon the point, I should have will- 
 ingly followed this decision of Lord O'Brien, C. J., Gibson, J., and 
 Madden, J., for although the decision is not binding upon me it is of 
 great authority. 
 
 Lord O'Brien, C. J., said : "Now, at common law the action would 
 not, in my opinion, be maintainable for this reason, namely, that to 
 sustain an action of seduction it must be shewn that the act of seduc- 
 tion took place while the relation of master and servant existed, and 
 that relation in the father's lifetime existed exclusively between the 
 father as head of the family, and the daughter as his child, and one 
 of the family and one of the household which he maintained." He 
 then deals with the Married Women's Property Acts and finds that 
 there is nothing in those Acts which alters the position which the
 
 554 TOUTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 wife occupies at common law in respect of this matter. Gibson, J., 
 said: "'The action is founded on a wrongful interference, to the 
 master's injury, with a subsisting relationship of master and servant. 
 Such relationship is supported by acts of service voluntarily rendered 
 without any enforceable contract, but the service must be to some 
 one whom the law recognizes as master. The question here is who 
 was the master? At common law certainly it was the father. He 
 and his wife were one. As head of the family he was guardian of 
 his daughter during minority, and when she became adult, so long 
 as she resided under his protection in the family home, he was re- 
 garded as master in respect of all services yielded to or for him in the 
 course of family duty. There is no trace of suggestion in the English 
 law books that a mother during the father's lifetime could be regard- 
 ed at common law as mistress" (that means mistress of the servant) 
 "jointly with her husband or separately. She was merged in her 
 husband." Madden, J., said: "So long as the plaintiff's daughter 
 was an infant living under the dominion of her father, he was in 
 law entitled to her services. After she became sui juris some evi- 
 dence of actual services rendered in the household became necessary 
 in order to give rise to the legal fiction of the existence between 
 parent and child of the contractual relation of master and servant 
 upon which the action of seduction is founded." That decision was 
 approved in the Irish Court of Appeal, [1905] 2 I. R. 552, by Lord 
 Ashbourne, L. C, and FitzGibbon, Walker, and Holmes, L. J J. I 
 hold exactly the same view as was expressed in that case. In my 
 judgment the action can only be maintained by proof of an actual 
 or implied contract of service. The relationship of parent and child 
 gives rise to the legal fiction that there is a contract of service. The 
 legal relationship of father and child does not by itself justify the 
 maintenance of the action. The maintenance of the action is only 
 justified by the legal fiction that a child living with the parent is a 
 servant, and the action is maintainable where the daughter is under 
 twenty-one years of age without any proof of actual services ren- 
 dered, but after that age is passed there must be proof of actual 
 services. 
 
 That being the principle, the question in this case is between whom 
 did the relationship of master and servant exist. On behalf of the 
 ]>laintiff it has been contended that because Mrs. Peters stood in loco 
 parentis she alone was the person who could maintain this action, and 
 that the husband would not have been entitled to sue; that as there 
 was no actual contract of service, such services as were rendered nnist 
 be deemed to have been rendered to the plaintitt, Mrs. Peters. But 
 the passages I have read from the judgments in the Irish case of 
 Hamilton v. Long, [1903 J 2 1. R. 407, shew that while Mrs. Peters 
 was living with her husband any ordinary domestic servant employed 
 in the house was the servant of Mr. Peters and not of his wife.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 555 
 
 Whether such a servant was paid wages or whether she was re- 
 munerated by gifts of clothes or pocket-money is, I think, immaterial. 
 The moment that one appreciates that the action is based on the 
 relationship of master and servant and not on that of parent and 
 child one sees that the only question for determination is, who was 
 the girl's master at the material times? There is only one answer 
 to that question. Mr. Peters was the master; Mrs. Peters was not 
 the mistress of the servant, and so she was not entitled to bring 
 this action and, being a person admittedly without any separate prop- 
 erty of her own, cannot be rendered liable for the costs of it. No 
 application was made to me to add Mr. Peters as a plaintiff. In my 
 opinion the plaintiff was not entitled to maintain this action, and there 
 must be judgment for the defendant. 
 Judgment for defendant.^'' 
 
 V. Defamation 
 
 (A) Origin of the Tort, and the Kinds of Defamation 
 
 (a) Its Recognition in the Courts of Law 
 
 The king's court [in the thirteenth century] gave no action for 
 defamation. This in our eyes will seem both a serious and a curious 
 defect in the justice that it administered. What is usually accounted 
 the first known instance of such an action comes from the year 
 1356, and even in that instance the slander was complicated with 
 contempt of court. In 1295 a picturesque dispute between two Irish 
 magnates had been removed to Westminster, and Edward I's court 
 declared in solemn fashion that it would not entertain pleas of defa- 
 mation; in the Irish court battle had been waged. At the end of 
 the Middle Ages we may see the royal justices beginning to recon- 
 sider their doctrine and to foster an "action on the case for words" ; 
 but they were by this time hampered by the rival pretensions of the 
 courts Christian. The tribunals of the church had been allowed to 
 punish defamation as a sin, and the province which had thus been 
 appropriated by the canonists was not very easily recovered from them 
 until the Protestant Reformation had weakened their hands. 
 
 We should be much mistaken, however, if we believed that the 
 temporal law of the Middle Ages gave no action to the defamed. 
 Nothing could be less true than that our ancestors in the days of their 
 barbarism could only feel blows and treated hard words as of no 
 account. Even the rude Lex Salica decrees that if one calls a man 
 "wolf" or "hare" one must pay him three shillings, while if one 
 calls a woman "harlot" and cannot prove the truth of the charge, 
 
 8T Part of the .«;tateiiient of facts and part of the opinion are omitted.
 
 556 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 one must pay her forty-five shillings. The oldest English laws exact 
 bot and wite if one gives another bad names. In the Norman Cus- 
 tumal it is written that the man who falsely calls another "thief" or 
 "manslayer" must pay damages, and, holding his nose with his fin- 
 gers, must publicly confess himself a liar. Shame was keenly felt. 
 In almost every action before an English local court of the thirteenth 
 century the plaintiff will claim compensation not only for the dam- 
 age (damnum) but also for the shame (huntage, hontage, dedecus, 
 pudor, vituperium) that had been done him, and we may suspect that 
 in the king's court this element was not neglected when compen- 
 sation was awarded. But further, we find that in the local courts, 
 not only were bad words punished upon presentment in a summary 
 way, but regular actions for defamation were common. We may 
 gather that in such an action the defendant might allege that his 
 words were true; Veritas non est defamatio. We may gather that 
 the English for "meretrix" was actionable, though an interchange 
 of this against the English for "latro" left one shilling due to the 
 man. We already hear that a slander was uttered "of malice afore- 
 thought" and sometimes a plaintitT alleges "special damage." But 
 until further researches have been made among the records of our 
 manorial courts, we shall know little of the mediaeval law of defa- 
 mation. Probably in this matter those courts did good enough jus- 
 tice, and for this reason it was that no royal writ was devised for 
 the relief of the slandered. In later days, when the old moots were 
 decaying, the ecclesiastical procedure against the sin of defamation 
 seems to have been regarded as the usual, if not the only, engine 
 v/hich could be brought to bear upon cases of libel and slander, and 
 in yet later days the king's court had some difficulty in asserting its 
 claims over a tract of law that it had once despised. 
 
 Pollock and Maitland, Hist. Eng. Law (2d Ed.) Vol. 2, p. 536. 
 
 The jurisdiction of the ecclesiastical courts was recognized both by 
 the legislature and the judges. But it was soon seen that an unlimited 
 jurisdiction over cases of defamation might be used, as an unlimited 
 jurisdiction over breaches of faith was used, to get indirectly control 
 over cases which ought to have gone to the king's court. Thus persons 
 indicted and acquitted had a habit of suing the indictors for defamation 
 in the ecclesiastical courts. It was enacted that in such cases a pro- 
 hibition should lie. In Edward IV's reign we get an odd tale of a 
 similar perversion of the action for defamation, told of no less a per- 
 son than the Abbot of St. Albans. He had sent for a certain married 
 woman, detained her in his chamber, and solicited her chastity without 
 success. Her husband then sued the abbot for the imprisonment of 
 his wife. The abbot thereupon sued him for defamation before the
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 557 
 
 ecclesiastical court. In such a case the court found no difficulty in 
 awarding a prohibition to the ecclesiastical court and declining to 
 grant a writ of consultation. In self-defence, then, the courts of 
 common law would prohibit certain actions for defamation. But, in 
 spite of one doubtful case to the contrar}^, it is clear that all through 
 this period they declined to entertain actions merely for defamation. 
 It is not until Henry VIII's reign, in the very last of the Year 
 Books, that we have any hint that the courts are beginning to think 
 of claiming some share in this jurisdiction. Here, as in other branches 
 of the law of crime and tort, the decline of the ecclesiastical courts and 
 the competition of the Court of Star Chamber led to important devel- 
 ooments in the common law. 
 ^V. S. Holdsworth, Hist. Eng. Law, Vol. Ill, pp. 316, 317 (1909). 
 
 Early in the Middle Ages reputation was amply protected in Eng- 
 land by the combined secular and spiritual authorities. In the course 
 of the nationalization of justice by the king's judges the jurisdiction 
 of the seignorial courts fell into decay; and, after a long and bitter 
 struggle, the jurisdiction of the ecclesiastical courts was also absorbed 
 by the royal tribunals. When, however, the king's courts acquired 
 jurisdiction over defamation, during the latter half of the sixteenth 
 century, various social and political conditions combined to contract 
 the actionable right, or remedy. The king's courts granted only a 
 limited remedy, the selection being based partly upon the character 
 of the imputation, partly upon the consequences resulting therefrom; 
 moreover, even this limited remedy was little concerned in theory 
 with the right to reputation as such. By reason of its growth in this 
 way the early common law of defamation consisted merely of a series 
 of exceptions to entire license of speech. When, at length, early in 
 the seventeenth century, the potentialities of the printing press dawned 
 upon the absolute monarchy, the emergency was met, not by further 
 additions to the list of actionable imputations, but by a direct impor- 
 tation of the Roman law, without regard to Roman limitations, and 
 with certain additions adapted to the purpose in hand. This special 
 provision for written or printed defamation, first adopted in the 
 criminal law, eventually became also a principle of civil judicature. 
 In this way a new principle of actionable defamation, based upon 
 mere form, was introduced in the law. The original common law 
 doctrine of defamation, based upon the nature of the imputation, 
 became stereotyped as the law of spoken defamation, or slander; the 
 doctrine inherited from the Roman law, through the Star Chamber, 
 became the law of written and printed defamation, or libel. The 
 English law of defamation, therefore, was first limited by a process of 
 selection, and then confused by a formal distinction which is not
 
 558 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 only unknown in other systems of law, but is also wholly accidental 
 in origin and irrational in principle. 
 
 A'an Vechlen Veeder, "The History and Theory of the Law of 
 Defamation." ^* 
 
 (b) Slander 
 (aa) Limitations "because of the Ecclesiastical Jurisdiction 
 
 PALMER V. THORPE. 
 
 (Court of King's Bench, 1583. 4 Coke, Rep. 20a, 70 Reprint. 909.) 
 
 Touching defamation determinable in the Ecclesiastical Court, it 
 was resolved, that such defamation ought to have three incidents: \. 
 That it concerns matter merely spiritual and determinable in the 
 Ecclesiastical Court, as for calling him "heretic, schismatic, adulterer, 
 fornicator, &c." 2. It ought to concern matter merely spiritual only ; 
 for if such defamation touches or concerns anything determinable at 
 the common law, the Ecclesiastical Judge shall not have cognizance of 
 it. 3. Although such defamation is merely spiritual, and only spiritual ; 
 yet he who is defamed cannot sue there for amends or damages, but 
 the suit ought to be only for the punishment of the sin, pro salute 
 animse. * * * 
 
 GRAVES v. BLANCHET. 
 
 (Court of Queen's Bencli, 1705. 2 Salk. G96, 91 Reprint. 5S9.) 
 
 Action for these words, "She is a whore, and had a bastard by her 
 father's apprentice;" judgment was arrested. The Court said they 
 could not overthrow so many authorities. The reason of the law is, 
 that fornication is a spiritual offence ; and no action lay at common 
 law for what the common law took no notice of, without special dam- 
 age."® 
 
 8 8 This interesting article by Judge Veeder was published in the Columbia 
 Law Review, vo). 3, pp. 540-573 (190;!), and vol. 4, pj). .33-50 (1904). The 
 first part, on the history of defamation, was republished, in 1909, in Select 
 Essays in Anglo-American Legal History, vol. 3, pp. 446-473. The second 
 part, on the theory of the present law of defamation, does not apjx'ar in the 
 Ix^gal Essays, hut should be consulted in the Ctihiiiihia I-aw Review. 
 
 See also 3 Iloldsworth. Hist. Eng. Law, 315-317 (1909), nnd for certain 
 historical bearings of the doctrine of defamation see the opinion of Holmes, C. 
 J., in Rutherford v. Paddock (1902) 180 Mass. 289, 62 N. E. 381, 91 Am. St. 
 Rep. 282. 
 
 80 "Holt, C. J., said that to say of a young woman that 'she had a bastard' 
 is a very great scandal, and for wliich, if he could, lie would encourage an 
 action; but it is not actionable, l>ecause it is a sjiirituiil defain.ation. i)un- 
 Ishahle in the Spiritual Court. So it is to call a man a 'herctick.' " Dictum 
 in Ogden v. Turner (1703) 6 Mod. 104. 
 
 Comiiare Chaucer's reference, in the Friar's Tale, to the vigorously ex-
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 559 
 
 (bb) Oral Defamation Now icithin the Jurisdiction of the Courts of Law 
 
 (1) Slander Per Se 
 (i) Words Imputing Crime 
 
 ANONYMOUS. 
 
 (Court of King's Bench, 1536. 1 Dyer, 19a, 73 Reprint, 40.) 
 
 An action upon the case was brought by two, for that the defend- 
 ant called them "two false knaves and thieves," and shewed in proof 
 of it, &c. And Mountague intended to demur in law upon the writ, 
 because the tort which one has by the words spoken is not the tort 
 which the other has ; therefore they ought to sever in their actions, 
 as of false imprisonment; and of that opinion was the Court, &c.^'* 
 
 EATON V. ALLEN. 
 
 (Court of Common Pleas, 1.508. 4 Coke, Rep. 16b. 76 Reprint. 896.) 
 
 The defendant said of the plaintiff, "he is a brabler and a quar- 
 reller, for he gave his champion counsel to make a deed of gift 
 of his goods to kill me, and then to fly out of the country, but God 
 preserved me." And it was strongly urged that the action should 
 be maintainable, and divers cases cited. * * * But upon great 
 consideration and advisement it was adjudged that in the principal 
 case the words were not actionable : for the purpose or intent of a 
 man without act, is not punishable by law, et ubi non est lex, ibi non 
 est transgressio quoad mundum. And although for such conspiracy 
 he might be punished in the Star Chamber, that is by the absolute 
 power of the Court, and not by the ordinary course of the law. Nota 
 bene, this case, and the cause and reason of this judgment.®^ 
 
 ercised jurisdiction of the archdeacon "in punyschj'ng of forrdcaeioun, of 
 wicche-craft, and eek of bauderye, of diffamacioun, and avoutrie." 1 Holds- 
 worth's Hist, of Eng. Law, 352, 387, 2 Legal Essays, 2.55, 295. 
 
 so It is not until after the crucial years of the Reformation, viz. in the 
 year 1536, that we find an action of slander reported in the King's Courts." 
 Edward Jenks' Short History of English Law, 1^5. 
 
 91 Part of the opinion is omitted. Accord: Bays v. Hunt (1882) 60 Iowa, 
 251, 2.52, 14 N. W. 785: (Tlie words were: "Bays will steal.") Fanning v. 
 Chaoe (1891) 17 R. I. 388, 22 Atl. 275, 13 L. R. A. 134, .33 Am. St. Rep. 878: 
 (The words were: "He is going to start a house of ill fame.") 
 
 Compare Cornelius v. Van Slyck (18.39) 21 Wend. (N. Y.) 70: (Here tlie 
 words "He will steal and I can prove it," were held to import a charge 
 that the plaintiff had stolen.) 
 
 And see Browning v. Commonwealth (1903) 116 Ky. 282, 76 S. W. 1!>: 
 (The defendant in a letter to one Newman had written "Beard will purloin 
 all the fprintingl outfit if be lias a chance at it; so I will hK)k to you to pro- 
 tect it for the present." Held sufficient to support an indictment for criminal 
 libel.)
 
 560 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 IMARSHAL V. STEWARD. 
 
 (Court of Common Pleas, 1615. 1 Browu. & G. 8, 123 Reprint, G31.) 
 
 Action upon the case, reciting the Statute of 1 Jac. against invoca- 
 tion, &c., for these words, "The devil appeareth to thee every night in 
 the Hkeness of a blackman, riding on a black horse, and thou conferrest 
 with him, and whatsoever thou dost ask, he doth give it thee, and that 
 is the reason thou hast so much money, and this I will justife." Judg- 
 ment for the plaintiff.^^ 
 
 BROOKER v. COFFIN. 
 
 (Supreme Court of Judicature of New Yorlv, 1S09. 5 Jolins. ISS, 
 
 4 Am. Dec. 337.) 
 
 Action for slander, with a declaration in two counts. There was a 
 general demurrer to the first count. ^^ 
 
 SpEncKr, J. The first count is for these words : "vShe is a common 
 prostitute, and I can prove it ;" and the question arises, whether speak- 
 ing these words gives an action, without alleging special damages. By 
 the statute (1 R. L. 124) common prostitutes are adjudged disorderly 
 persons, and are liable to commitment, by any justice of the peace, 
 upon conviction, to the Bridewell or House of Correction, to be kept 
 at hard labor for a period not exceeding 60 days, or until the next 
 General Sessions of the Peace. It has been supposed that, therefore, 
 to charge a woman with being a common prostitute, was charging her 
 with such an offense as would give an action for slander. 
 
 The same statute which authorizes the infliction of imprisonment 
 on common prostitutes or disorderly persons, inflicts the same punish- 
 ment for a great variety of acts, the commission of which renders the 
 persons liable to be considered disorderly ; and to sustain this action 
 would be going the whole length of saying, that every one charged 
 with any of the acts prohibited by that statute, would be entitled to 
 maintain an action for defamation. Among others, to charge a person 
 with pretending to have skill in physiognomy, palmistry, or pretending 
 to tell fortunes, would, if this action is sustained, be actionable. Upon 
 the fullest consideration we are inclined to adopt this as the safest rule, 
 and one which, as we think, is warranted by the cases. In case the 
 charge, if true, will subject the party charged to an indictment for a 
 
 92 See Statute 1 .Tac. I, c. 12: An act against conjuration, witchcraft, and 
 dealing with evil and wicked spirits (1G04). liepealed, 9 Geo. II, c. 5 (173G). 
 
 And see Hughs v. Farrer (1G2U) Cro. Car. Ill : ("Thou art a witch and didst 
 bewitch my master's drink." Held actionable.) George v. Ilarvy (l()o4), 
 Cro. Car. 324: ("You are a witch and a strong witch." Finally held no 
 slander within the statute, because no act of witchcraft alleged.) 
 
 03 The statement of the case is abridged, the arguments of counsel are 
 omitted, and only so much of the opinion is given as relates to the first count
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 5G1 
 
 crime involving moral turpitude, or subject him to an infamous pun- 
 ishment, then the words will be in themselves actionable; and Baron 
 Comyns considers the test to be, whether the crime is indictable or 
 not. 1 Com. tit. Action on the Case for Defamation, F, 20. There 
 is not, perhaps, so much uncertainty in the law upon any subject, as 
 when words shall be in themselves actionable.^* From the contradic- 
 tion of cases, and the uncertainty prevailing on this head, the court 
 think they may, without overleaping the bounds of their duty, lay 
 down a rule which will conduce to certainty, and they, therefore, adopt 
 the rule I have mentioned as the criterion. ''■'' In our opinion, there- 
 fore, the first count in the declaration is defective. * * * 
 The defendant must, therefore, have judgment. 
 
 WEBB v. BEAVAN. 
 
 (Queen's Bench Division, 1SS.3. 11 Q. B. Div. 609.) 
 
 The statement of claim alleged that the defendant falsely and ma- 
 liciously spoke and published of the plaintiff the words following : 
 
 "I will lock you" (meaning the plaintiff) "up in Gloucester Gaol next week. 
 I know enough to put you" (meaning the plaintiff) "there" (meaning thereby 
 that the plaintiff had been and was guilty of having committed some criminal 
 offence or offences). 
 
 The defendant demurred on the ground that no cause of action was 
 disclosed. Joinder in demurrer.''^ 
 
 W. H. Nash, in support of the demurrer, contended that, in order to 
 make the words actionable, the innuendo should have alleged that they 
 imputed an ofifence for which the plaintiff could have been indicted, 
 and that it was not sufficient to allege that they imputed a criminal 
 offence merely. 
 
 Pollock, B. I am of the opinion that the demurrer should be over- 
 ruled. The expression "indictable offence" seems to have crept into 
 the text books, but I think the passages in Comyns' Digest are conclu- 
 sive to shew" that words which impute any criminal offence are action- 
 able per se. The distinction seems a natural one, that words imputing 
 that the plaintiff' has rendered himself liable to the mere infliction of a 
 
 8 4 On the diversity of doctrine in America as to what words imputing 
 the commission of a crime are actionable per se, see 25 Cyc. 273 ; Burdick 
 on Torts (3d Ed.) 352. 
 
 5 The rule adopted in 1809 in Brooker v. Coffin has had a very extensive 
 following in America. The cases are grouped by states in 25 Cyc. 270, 
 note 34. See also the remarks of Mr. Justice Clifford in i'olhu-d v. Lyon 
 (1875) 91 U. S. 225, 230, 23 L. Ed. 308, and Cooley on Torts (Student's Ed.) 
 20L On moral turpitude as an element in the tort, see Sipp v. Coleman 
 (1^0, C. C.) 179 Fed. 997, and 25 Cyc. 272. note 43. 
 
 8 6 The statement of the case is abridged, and part of the argument of 
 counsel is omitted. 
 
 Hepb.Tobts— 36
 
 562 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 fine are not slanderous, but that it is slanderous to say that he has 
 done something for which he can be made to suffer corporally. 
 
 LopES, J, I am of the same opinion. I think it is enough to allege 
 that the words complained of impute a criminal offence. A great 
 number of oft'ences which were dealt with by indictment twenty years 
 ago are now disposed of summarily, but the effect cannot be to alter 
 the law with respect to actions for slander.®^ 
 
 Demurrer overruled. 
 
 KREBS V. OLIVER. 
 
 (Supreme Judicial Court of Massachusetts, 1858. 12 Cray, 239.) 
 
 Tort for slander, in accusing the plaintiff of the crime of larceny, by 
 words in substance as follows : ''Dr. Krebs was imprisoned many 
 years in a penitentiary in Germany for larceny." Verdict for the 
 plaintiff. Tlie defendant alleged exceptions.^® 
 
 BiGELOw, J. We cannot doubt that the words alleged in the dec- 
 laration are actionable. It is not necessary that the language used, in 
 order to be slanderous, should be so spoken, as, if true, to expose the 
 person concerning whom it is uttered to a criminal prosecution. That 
 is one of the tests by which to determine whether it constitutes a good 
 cause of action, but it is not the only one. The other is that it im- 
 putes to a person a species of misconduct to which the law attaches a 
 criminal punishment, and thereby he is subjected to obloquy and social 
 degradation and disrepute. The imputation of crime is essential as 
 a test whether the words used do amount to a legal slander; but it 
 
 9 7 Compare: Hellwig v. Mitchell [1910] 1 K. B. 609, 61.3: (Slander for words 
 which imputed that P. had been guilty of a criminal offence punishable 
 by tine only, but involving a liability to summary arrest. Bray, J., remarks: 
 "It was contended that the words are capalile of bearing the meaning al- 
 leged, namely, that the plaintiff had been guilty of disorderly conduct and 
 of committing breaches of the peace, and it was said that a person who 
 commits a breach of the peace may be arrested either by a private individual 
 or by a constable. That is true, but the offence is not punishable by imprison- 
 ment. It was contended, however, that the rule does not require that the 
 criminal offence should be one punisliable by imprisonment, and that it is 
 sullicient if the offence be one wliich renders the oft'eiider liable to summary 
 arrest and detention. This is not a question of principle, but of judge-made 
 law, and therefore I must look at the authorities to see how far they support 
 this contention. * * * i cannot find in the books a trace of authority 
 for saj'ing that words imputing that the plaintiff has done an act for wliich 
 lie may be arrested, but which is only punishable by a line, are actionable 
 without proof of special damage, or that a mere liatiility to arrest is .suffi 
 ciont to make the crime one for which the offender can be said to suffer 
 corporally. Strictly speaking, it is incorrect to say that a person who com- 
 mits a breach of the peace, can be made to suffer corporally. The ari-est 
 in that case is not a punishment; it is merely a method of preventing the 
 continuing of the offence.") And see 18 Ilalsbury, Laws of England, flSsT, 
 notes (m) and (n). 
 
 »« Only so umch of the case is given as relates to the one point. The state- 
 ment is slightly abx-idged, and the ai'gument of counsel is omitted.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 5G3 
 
 does not take away their actionable qualities, that they are so spoken 
 as to indicate that the party has suffered the penalty of law or is no 
 longer exposed to danger of punishment. In Van Ankin v. Westfall, 
 14 Johns. (N. Y.) 234, the court say : "The right of the plaintiff to sus- 
 tain the action does not depend upon the question whether he was lia- 
 ble to be prosecuted and punished for the crime charged against him." 
 And in a more recent case, where the words spoken were, "He is a 
 returned convict," it was held that they were actionable. Lord Denman 
 saying: "They import, to be sure, that the punishment has been suf- 
 fered, but the obloquy remains." * * * 99 
 Exceptions overruled. ^°° 
 
 99 Referring to Fowler v. Dowdney (1838) 2 M. & Rob. 119; Carpenter 
 V. Tarrant (1736) Cas. temp. Hardwicke, 339; Gaiuford v. Tuke (1619) Cro. 
 Jac. 536 ; Boston v. Tatam (1621) Cro. Jac. 623 ; Cuddiugton v. Wilkins, 
 Hob. 81; Smith v. Stewart (1847) 5 Pa. 372; Shipp v. McCraw (1S17) 7 
 N. C. 463, 9 Am. Dec. 611. 
 
 100 Compare: Wiley v. Campbell (1827), 5 T. B. Mon. (Ky.) 396: (Slander. 
 The words laid in the declaration were : "You have been cropi>ed for felony.) 
 Smith V. Stewart (1847) 5 Pa. 372 : (Slander for words charging the plaintiff 
 with having been a convict in another state.) Stewart v. Ho^^■e (1855) 17 
 111. 71: (Slander. The words were: "She [the plaintiff] stole $90; she is 
 a smart little thief." It appeared that the plaintiff was under ten years 
 of age ; and by an Illinois statute then in force, no child under ten years 
 could be punished for larceny.) Klumph v. Dunn (1871) 66 Pa. 141, 5 Am. 
 Rep. 355: (Slander. The words, spoken in Pennsylvania, charged the 
 plaintiff with adultery in Georgia.) 
 
 "Nothing seems to be better settled than that liability to prosecution or 
 punishment is not the criterion. Both ancient and modern cases agree in this. 
 * * * What then is the criterion? ]Mr. Starkie, after an elaborate reWew 
 of the cases, comes to tbe conclusion that, as it is necessary to have some 
 clear and certain rule by which the line of demarcation between actionable 
 and non-actionable words can be drawn, none could be adopted more con- 
 venient than that which refers the question to the criminal law, and confirms 
 the action to imputations of offences of moral turpitude, punisbable in the 
 temporal courts. 1 Sbirkie on Slander, 27. But to what law are the courts 
 to refer to ascertain whether the offence charged is of this character? Upon 
 every principle of reason and ]wlioy the answer seems to be the law of the 
 countiy where the words are spoken. That law is the exponent of the 
 moral sense of that community- — of the estimation in which they hold offences 
 against the moral law, and words which accuse a man of any crime, con- 
 demned and subjected to infamous punishment by that law, expose him 
 In that community to obloquy and contempt. The moral character of the 
 act canot be affected by the place where it is committed. What matters 
 it to those to whom the words are addressed, or in whose hearing they are 
 spoken, that the crime is charged to have been committed in a state or 
 country where such actions are not subject to punishment? Even if they 
 are to be presumed to know that the act was not a crime punishable by 
 the law of the country where it was alleged to have been committed, would 
 it any the less injure the moral character and standing of the party charged? 
 Is it possible that a man living in Pennsylvania can be accused of having 
 committed the crime inter Christianos non nominandum upon some unin- 
 habited coast or island where there is no government and no law, or among 
 some barbarous people where such practices may be, as they have been, 
 tolerated? Is such a plaintiff to be turned out of court unless he can prove 
 some special damage? This may be an extreme case, but nevertheless it 
 tests the principle. If the criminal code laid its heavy hand upon such 
 calumniators, tliere might be some good reason for requiring special damage 
 to be shown in all actions of slander, but we know that it does not, and
 
 564 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 (ii) Words Imputing Disease 
 TAYLOR V. PERKINS. 
 
 (Court of King's Beucli, 1607. Cro. Jac. 144, 79 Eeprint, 126.) 
 
 Action for these words : "Thou art a leprous knave." It was de- 
 murred upon the declaration, because the defendant conceived an ac- 
 tion lay not for these words. But upon the first motion all the Court 
 held, that the action well lay ; for they are as well actionable as if he 
 had said, "Thou wast laid of the pox." Wherefore, without argu- 
 ment, it was adjudged for the plaintiff.^ 
 
 COUNT JOANNES v. BURT. 
 
 (Supreme Judicial Court of Massacliusetts, 1863. 6 Allen, 236, 83 Am. Dec. 
 
 625.) 
 
 Tort brought in the name of "George, the Count Joannes," seeking 
 to recover damages for slander. The defendant demurred to the dec- 
 laration as not setting forth any legal cause of action. 
 
 Hoar, J, * * * f |-,g declaration is in tort for slander, by orally 
 imputing insanity to the plaintiff. We are aware of no authority for 
 maintaining such an action, without the averment of special damage. 
 The authorities upon which the plaintiff relies are both cases of libel. 
 The King v. Harvey, 2 B. & C. 257 ; Southwick v. Stevens, 10 Johns. 
 (N. Y.) 443. An action for oral slander, in charging the plaintiff' with 
 disease, has been confined to the imputation of such loathsome and 
 infectious maladies as would make him an object of disgust and aver- 
 
 unless the lash is placed in the hands of tlie injured party they must sro 
 'unwhipped of justice.' " Per Sharswood, J., in Klumph v. Dunn (1870) 
 66 Pa. 141, 145, 5 Am. Rep. 3-55. 
 
 1 Compare Simpson v. Press Pub. Co. (190O) 33 Misc. Rep. 228, 67 N. Y. 
 Supp. 401, a case of liliel in which Gaynor, J., remarked: "The defendant 
 contends that it is now scientifically established that leprosy is not in- 
 fectious or oontasious, l)ut only hereditary, jind that therefore it is no lonuer 
 within the definition of slander. When an indictable crime ceases to be such 
 it is no loniier slander to charge one with it When the penal statutes 
 against Catholics and witchcraft existed in England it was slander to say 
 of one that he was a Papist, or went to mass, or tliat he was a witch, or 
 used witchcraft. Walden v. :MitcheIl (l(i!»0) 2 Vent. 265; Smith v. Flynt 
 (1G12) Cro. Jac. 300; Rogers v. Gravat (1.597) Cro. Eliz. 571; Dacy v. 
 Clinch (1G62) 1 Sid. 53. But I do not think it is a parallel case if the 
 progress of science has revealed that lepi-osy was erroneously classed as in- 
 fectious or contagious. It remains a term of slander imtil the law is changed. 
 To say of one that he went to mass or practiced witchcraft might still 
 be slander if the law liad not been changed, even though the progress of en- 
 lightenment had revealed to most people tliat to hear mass was not bad, 
 or that tliere was no such thing as a witch. Besitles, the bane in the charge 
 of leprosy which made the courts classify it as slanderous was it.s tendency 
 to cause one to be shunned and excluded from society, and that still exists."
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 565 
 
 sion, and banish him from human society. We believe the only ex- 
 amples which adjudged cases furnish are of the plague, leprosy, and 
 venereal disorders. * * * 2 
 Appeal dismissed. 
 
 SMITH'S CASE. 
 
 (Court of Common Pleas, 1604. Noy, 151, 74 Reprint, 1112.) 
 
 An action upon the case for words, "Thou hast had the French pox." 
 And upon issue not guilty, it is found for the plaintiff. It was now 
 moved in arrest of judgment. Because the words are in the preter- 
 perfect tense, and the party it may be now is well, and sound, and no 
 scandal. To which all the Court agreed, and judgment arrested. 
 Cooke, Chief Justice, took this dift'erence of such a slander, de tem- 
 pore prseterito. when it touches the mind, and when it touches the 
 body. If it be a scandal to the mind, and the affections, as perjury, 
 felony, &c. there the mind that remains is slander. But if it be of an 
 accidental infirmity, or disease of the body, otherwise it is. For none 
 now will forbear his company, although he had the plague in times 
 past.^ 
 
 2 Parts of the opinion are omitted. 
 
 See Bac. Abr. "Slander," B, 2: "Man being formed for society, and standing 
 in almost constant need of the advice, comfort, and assistance of his fellow 
 creatures, it is highly reasonable that any words, which import the charge 
 of having a contagious distemper, should be in themselves actionable ; be- 
 cause all prudent i")ersons will avoid the company of a person having such 
 distemper. It makes no difference, whether the distemper be owing to the 
 visitation of God, to accident, or to the indiscretion of the party therewith 
 afflict.ed, for, in every one of the cases, the being avoided, from whence the 
 damage arises, is the consequence." But the only instances cited by Bacon 
 are leprosy and venereal disease. 
 
 Compare IS Halsbury's Laws of England, 62.5 (1911): "The imputation of 
 a present infectious or contagious disease is not defamatory, if the imjiuta- 
 tion is not calculated to bring the person to whom it is imputed into hatred, 
 contempt, or ridicule, although the imputation tends to exclude him from 
 society. It does not lower the reputation of any one to impute that he is 
 suffering from scarlet fever or influenza ; it is otherwise to say that he has 
 and (probably) to say that he has had. a verminous disease." 
 
 See, also, McDonald v. Nugent a904) 122 Iowa, 651, 98 N. W. .506: P. 
 charged D. with saying of him that he (P.) had a venereal disease. The trial 
 court instructed the jury that a charge that the plaintiff was affected witli 
 a venereal disease was not slanderous per se. Held, that the charge was 
 erroneous. "From an early date in the development of the common law of 
 slander and libel," said Weaver, J., delivering the opinion, "a charge made by 
 one person that another is infected with a venereal disease has been lield 
 to constitute one of the few exceptions to the general rule applicable to oral 
 slander — that, to be actionable per se, the ^^"ords must impute some crime 
 to the person defamed." 
 
 3 Accord : Taylor v. Hall (174.3) 2 Str. 11S9, Reprint; Carslake v. Maple- 
 doram (17S8) 2 T. R. 474, 475. 100 litT-rint, 255, 256, where Ashhurst. J., 
 remarks: "Charging a person with having committed a crime is actionable, 
 because tlie person charged may still be punished ; it affects him in his lib- 
 erty. But charging another with having had a contagious disorder is not
 
 5GG TOKTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 (Hi) Words Disparaging in Trade, Profession, or Office 
 STANLEY V. OSBASTON. 
 
 (Court of King's Bench, 1592. Cro. Eliz. 2G8, 78 Reprint, 534.) 
 
 Action for these words : "He was a bankrupt ;" and alleged he was 
 a shoemaker, and used buying and selling of leather. And it was ad- 
 judged that the action did lie, although the plaintiff was not a mer- 
 chant, but he got his living by buying and selling. 
 
 COLLIS V. MALIN. 
 
 (Court of King's Bench, 1633. Cro. Car. 282, 79 Reprint, 847.) 
 
 Action for words. Whereas the plaintiff had used per magnum tcm- 
 pus the trade of buying and selling of cattle, and divers times bought 
 upon his credit ; that the defendant said of him, "Thou art a bank- 
 rupt." The defendant pleaded not guilty ; and found against him. 
 And because he did not say, that he used the trade at the time of 
 speaking the words, but per magnum tempus usus fuit, which may be 
 divers years before, and the action lies not, unless at the time of speak- 
 ing the words he used the trade of buying and selling of cattle, there- 
 fore it was adjudged for the defendant.* 
 
 DAY V. BULLER. 
 
 (Court of Common Pleas, 1770. 3 Wils. 59, 95 Reprint, 932.) 
 
 Action for slandering the plaintiff in his profession of an attorney, 
 by saying of him these words : "What, does he pretend to be a law- 
 yer? He is no more a lawyer than the devil!" Verdict for the plain- 
 tiff. 
 
 And now Serjeant Davy moved an arrest of judgment; alledging, 
 that it was not actionable to say of an attorney he was no lawyer, any 
 more than to say of an apothecary that he was no physician ; that it 
 was no more necessary for an attorney to be a lawyer, than for an 
 apothecary to be a physician. 
 
 actionable ; for unless the words impute a continuance of the disorder at 
 the time of speaking them, the gist of the action fails ; for such a charge 
 cannot produce the effect which makes it the subject of an action, namely, 
 his being avoided by society. Therefore, unless some special damage be al- 
 leged in consequence of that kind of charge, the words are not actionable." 
 Nichols V. Guy (IS.IO) 2 Ind. 82: (The declaration, in two counts, laid the 
 words, first, as "Silas Guy had the clap;" secondly, "Silas Guy has the 
 clap.") 
 
 ■» Compare Allen v. Ilillman (1831) 12 Pick. (Mass.) 101, where the words 
 imputed misconduct in an office which had ceased to exist.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 567 
 
 But PKR Curiam, to say of an attorney he is no lawyer, is a great 
 reflection upon him, and means that he does not understand his busi- 
 ness ; besides, (they said) an attorney must have a competent knowl- 
 edge of the law, or he cannot draw a common writ or declaration. 
 
 And per YaTES Justice, the words are as great a slander upon the 
 plaintiff, and as injurious to him, as any words possibly can be. 
 
 So the Serjeant took nothing by his motion, and the plaintiff had 
 judgment.' 
 
 DOYLEY V. ROBERTS. 
 
 (Court of Common Pleas, 1S37. 3 Bing. N. C. 835, 132 Reprint, 632, 
 
 43 R. R. 810.) 
 
 Slander. The plaintiff declared that he was an attorney, and that 
 the defendant had falsely and maliciously spoken and published of the 
 plaintiff, and of and concerning him in the way of his business or pro- 
 fession, that "he had defrauded his creditors, and had been horsewhip- 
 ped off the course at Doncaster." Special damage, that one H. Gyde, 
 had, in consequence, declined to employ the plaintiff. 
 
 At the trial before Parke, B., last Worcester Assizes, the words 
 
 were proved to have been spoken by the defendant, of the plaintiff, 
 
 who was more engaged on the turf than in law, and had had creditors 
 
 in sporting transactions ; and the jury found, in answer to questions 
 
 put to them by the learned Baron : 
 
 That the words were spoken of and concerning the plaintiff ; that they 
 were not spoken of him in his business of an attorney; thati they had a 
 tendency to injure him morally and professionally; but, tliat H. Gyde did 
 not in consequence of them decline to employ the plaintiff. 
 
 A verdict was given for the plaintiff, with £50. damages ; but the 
 defendant had leave to move to enter a nonsuit instead, if the Court 
 should be of opinion that the words were not actionable unless spoken 
 of the plaintiff in the way of his business as an attorney.® 
 
 TixDAL, C. J. * * * The case will stand thus : The plaintiff' 
 is an attorney, and carries on business as such, but appears to have had 
 creditors in certain sporting transactions; the defendant says of him 
 
 6 Compare Oakley v. Farrington (1799) 1 Johns. Cas. (N. Y.) 129, 1 Am. 
 Dec. 107 : (D. said of P., a justice of the peace, who was usually called 
 "Squire Oakley," to distinguish him from others of the same name: "Squire 
 Oakley is a damned rogue.") 
 
 Spears v. McCoy (1913) 155 Ky. 1, 159 S. W. 610, 49 L. R. A. (X. S.) 1033: 
 (D. said of P., a public school teacher: "I do not want .such a teacher because 
 he is all the time courting the girls, and did court them hist year in the 
 school. He would dismiss the boys last year in school and keep the girls 
 in and give them candy and court them.") 
 
 6 The argument of counsel, part of the opinion of Tindal, C. .T., and the 
 opinions of I'ark, Vaughau, and Collnian, JJ,, concurring with the Chief 
 Justice, are omitted.
 
 568 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 generally, that he has defrauded his creditors, and the jury find that 
 these words were not spoken of him in his business of attorney. Xow 
 in Comyns' Digest, Action on the Case for Defamation, it is laid down, 
 
 D, 27, that "words, not actionable in themselves, are not actionable 
 when spoken of one in an ofifice, profession, or trade, unless they touch 
 him in his office ;" and these words, though spoken of an attorney, 
 do not touch him in his profession, any more than they would touch a 
 person in any other trade or profession. It is found, indeed, that the 
 words have a tendency to injure him morally and professionally; and 
 that is true; but it applies equally to all other professions, for a per- 
 son cannot say any thing disparagingly of another, that has not that 
 tendency : upon that subject the authority of Ayre v. Craven, 2 A. & 
 
 E. 2, is conclusive ; and a rule for arresting judgment in this case must 
 therefore be made absolute. 
 
 Rule absolute. 
 
 FOULGER V. NEWCOMB. 
 
 (Court of Exchequer, 1S67. L. R. 2 Exch. 327.) 
 
 Tlie declaration was in two counts, to both of which the defendant 
 demurred. The first count alleged : 
 
 That the plaintiff was a warrener, gamekeeper, horse-slaughterer, and 
 grease manufacturer; that he carried on these businesses in the neiglihour- 
 hood of Ridler's Wood, and that he was accustomed to be employed iii his 
 business of gamekeeper by occupiers of land in that neighbourhood ; that 
 many of the persons who so employed him were accustomed to hunt foxes, 
 and it was considered by them a very improper act to kill or destroy foxes 
 in the neighbourhood, and a person who should be guilty of so killing and 
 destroying foxes would be looked upon by them with disfavour and suspicion, 
 and would not be employed by them, and the plaintiff was always employed 
 as such warrener and gamekeeper upon the terms and understanding that 
 he should not nor would kill foxes in the neighbourhood ; that tlie plaintiff 
 had been employed as such warrener and gamekeeper upon the terms 
 aforesaid by one of the said occupiers, and had by reason of such employment 
 to perform his calling in Ridler's Wood, but not to kill foxes there, and it 
 would have been a gross breach of his duties as such warrener and game- 
 keeper, and in his said employment, had he killed foxes in the wood, of all 
 which premises the defendant at the time, &c. had notice; yet the defendant 
 falsely and maliciously sj>oke and published of the plaintiff, and of him 
 as such warrener and gamekeeper, and of his conduct whilst he was so 
 employed, the words following: "It is no wonder we did not find any foxes 
 in Ridler's Wood because Foulger trapped three foxes. I can prove it my- 
 self;" meaning thereby that the plaintiff', whilst he was so employed as 
 aforesaid, in breach of his duty, killed and destroyed three foxes in tlie 
 said wootl ; whereby the plaintiff has been greatly injured in his credit, 
 reputation, and circumstances, and in his said occupations and businesses 
 of a gamekeeper, warrener, horse-slaughterer, and grease manufacturer. 
 
 Special damage was alleged from the refusal of occupiers of the 
 land to employ the plaintiff in the way of his occupations. 
 
 CuANNELL, B. These are demurrers to a declaration for slander 
 containing two counts. The words complained of charge the plaintiff
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 569 
 
 with trapping foxes. To say simply of a man that he trapped foxes 
 would not, we think, be actionable. There are, however, various cir- 
 cumstances set out in this declaration, which it is asserted show that 
 there is a good cause of action. 
 
 The form of the declaration, and the somewhat peculiar circum- 
 stances of the case, gave rise to some little confusion on the argument 
 of the case as to the principle on which an action for defamation is 
 maintainable ; and the apparent novelty of some of the points raised 
 induced us to reserve our judgment. One essential ingredient of a 
 good cause of action for defamation is damage. The rules as to the 
 damage necessary to constitute a good cause of action, and as to the 
 cases in which such damage is implied by law, are somewhat arbitrary ; 
 but the more important principles of them are now clearly defined. 
 The two rules which we have to consider and apply to the facts of the 
 present case are, first, that from spoken words which impute miscon- 
 duct in an office, trade, profession, or business, the law implies action- 
 able damage ; secondly, that where words are spoken which are of a 
 defamatory nature yet such that the law will not imply damage from 
 them, still they are actionable if they are shown actually to cause (as 
 their legal and natural consequence) damage of a character which the 
 law will recognise. In order that the rule as to slander of a man in 
 his business may apply, it is necessary that the words (being capable 
 of having reference to the business) should in fact be spoken of him in 
 respect of his business. This is alleged in the present case, and for the 
 present purpose the allegation must be taken to be true. Next, it must 
 appear that they tend to prejudice him in that business. This, as well 
 as whether the words are capable of having reference to the business, 
 must of course depend upon the nature of the business. 
 
 Now, we think that the rule as to words spoken of a man in his 
 office or trade is not necessarily confined to offices and trades, of the 
 nature and duties of which the Court can take judicial notice. The 
 only limitation of which we are aware is, that it does not apply to ille- 
 gal callings ; as, for instance, to the keeping open rooms for pugilistic 
 encounters, as in Hunt v. Bell, 1 Bing. 1 ; see also Morris v. Lang- 
 dale, 2 B. & P. 284, a case relating to stock-jobbers, in which the deci- 
 sion proceeded on the ground that stock-jobbers were at that time of 
 two classes, one honest, the other practising what the legislature by 
 the statute then in force called "the infamous practice of stock-job- 
 bing ;" and that there was not in the declaration any averment of 
 which business the plaintiff carried on, or whether the contracts he 
 was unable, or said to be unable, to carry out, were legal or illegal con- 
 tracts. On the same principle, that words having a particular meaning 
 in a particular trade, or a particular locality, may be explained by 
 averment and innuendo in the declaration, we think that the nature 
 and duties of the trade or business may be explained by averment in 
 the declaration, so as to show how the words spoken afifect the busi- 
 ness.
 
 570 TOKTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 In the present case we could not, we think, take judicial notice that 
 it could be the duty of a gamekeeper not to trap foxes, or that it would 
 be a disparaging- thing to say of him that he trapped foxes. It is, 
 however, alleged, not only that the plaintifif was a gamekeeper, but that 
 it was his duty as such gamekeeper not to kill foxes ; that he was en> 
 ployed on the terms of his not doing so; and that the defendant knew 
 all this. 
 
 So far, then, it is clear that, this being the true nature of the plain- 
 tiff's business and employment, to hear that he trapped foxes would 
 prejudice him with respect to his business, at all events, with all per- 
 sons who knew the real nature of his employment. It is not, however, 
 quite clear that, wdiere the nature of the business would not be gen- 
 erally understood, it might not be necessary to show that the hearers 
 were aware of the facts necessary to give the words their defamatory 
 sense. Here the declaration does not appear to contain a distinct alle- 
 gation that the hearers knew that the plaintiff's duty was not to kill 
 foxes. It does set forth something as to what the people of the neigh- 
 bourhood knew and thought, but it does not state that the slander was 
 uttered to people of the neighbourhood. It does, however, contain an 
 innuendo that the words imputed a breach of duty. We think that this 
 may be taken to be equivalent to an allegation that the words would 
 convey that meaning to the hearers, and, taking it with the rest of the 
 declaration, we think it is sufficient to make the declaration good with- 
 out special damage. 
 
 In Ayre v. Craven, the physician's case, which was the principal au- 
 thority relied on in support of the demurrers, the decision proceeded 
 on the ground that the declaration did not set forth in what manner 
 the misconduct was connected with the plaintiff's profession. '^ Here 
 the declaration does set forth that it was the duty of the plaintiff", in 
 his employment, not to do that which the words complained of charged 
 him with doing. Therefore the objection which was successful there 
 does not arise here. On the whole, therefore, we think that the pres- 
 
 7 In Ayre v. Craven (lS:5-4) 2 A. & E. 2, 111 Reprint, 1, 41 R. R. 359, a dec- 
 laration for slander alleged that the defendant used words imputing adultery 
 to the plaintiff, a phy.sieian, and the words were laid to have been spoken 
 "of him in his profession;" no special damage was laid, and after verdict 
 for the plaintiff, judgment was arrested, the court holding that such words, 
 merely laid to be spolcen of a physician, were not actionable without special 
 damage, and that if they were so spoken as to convey an imputation upon 
 his conduct in his profession, the declaration ought to have shewn how the 
 speaker connected the imputation with tlie pi-ofessional conduct. Lord 
 Denman, C. J., remarked: "Some of the cases have proceeded to a length 
 which can hardly fail to e.xcite surprise; a clergyman having failed to 
 obtain redress for the imputation of adultery, Parret v. Carpenter, Noy, 
 64; S. C. (1597) Cro. Miz. 502, and a school mistress having been declared 
 incompetent to maintjiin an action for a charge of prostitution, Wharton 
 v. r.rook (10()9) 1 Ventr. 21. Such words were undeniably calculated to 
 injure the success of the plaintiffs in their several professions ; but not 
 lieing applicable to their conduct therein, no action lay." 
 
 See the connnent on Ayre v. Craven, by C. Allen, J., in Morasse v. Brochu 
 (1.S90) 151 Mass. 5G7, 25 N. E. 74, S L. R. A. 524, 21 Am. St. Kep. 474.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 571 
 
 ent declaration shows a good cause of action, independently of special 
 damage. 
 
 It is, however, clearly shown on the declaration that the words are 
 capable of bearing a defamatory sense, viz., the imputing a breach of 
 duty to the plaintiff, and it is alleged that the defendant, knowing the 
 circumstances that made the words defamatory, falsely and malicious- 
 ly used them in the defamatory sense. That being so, even if the law 
 will not imply damage under the circumstances, still the words are 
 actionable, and the defendant is responsible if they cause, as their le- 
 gal and natural consequence, actual damage. Here actual pecuniary 
 damage in the plaintiff's business or employment generally is alleged, 
 and we think that this allegation at all events makes the declaration 
 good. Of course if the plaintiff should only prove damage in the horse 
 slaughtering or grease manufacturing departments of his trade, that 
 would not help his case ; but, as it is alleged in his business as a 
 whole, we must take it that he means to prove damage in the other 
 branch of his business, in which case it may well be the legal and nat- 
 ural consequence of the words. 
 
 There is a second count alleging that the words imputed a trespass 
 as well as a breach of duty; this does not appear to differ substan- 
 tially from the other. 
 
 MILLER v. DAVID. 
 
 (Court of Common Pleas, 1S74. L. R. 9 C. P. IIS.) 
 
 The declaration, framed in several counts, alleged that the plaintiff 
 was a working stone mason residing at Llanelly and earning his living 
 as such in Llanelly and its neighborhood, and that the defendant false- 
 ly and maliciously spoke and published of him the words following: 
 
 "He was the ringleader of the uine-hour system." "lie has ruined the 
 town by bringing aljout the nine-hour system, and he has stopped several 
 good jobs from being carried out, by being the ringleader of the system 
 at Llanelly" 
 
 — w^hereby the plaintiff was prevented from obtaining employment in 
 his trade at Llanelly. 
 
 Demurrer, on the ground that the words were not in themselves de- 
 famatory, and that special damage consequent thereon, therefore, gave 
 no action. Joinder in demurrer. 
 
 Bray, in support of the demurrer. * * * That the words v/ere 
 spoken of the plaintiff in the way of his trade of a mason, is matter 
 of law to be inferred from the circumstances. (Lord Coleridge, C. 
 J. That might and ought to have been averred, but it is not.) Nobody 
 can doubt that the word "ringleader" is one which is capable of being 
 used in a defamatory and injurious sense: and whether or not it is 
 so used is a question for a jury, not for the Court. Jenner v. A'iieck-
 
 572 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 ett, Law Rep. 7 Q. B. 11. (De;nman, J. In that case there was an 
 innuendo giving the words a defamatory sense.) * 
 
 Cur. adv. vult. 
 
 Lord ColeivIdge:, C. J. In this case time was taken to consider our 
 judgment, from the wish entertained by at least one member of the 
 Court to hold, if there were authority for the proposition, that a state- 
 ment false and malicious made by one person in regard to another 
 whereby that other might probably, under some circumstances, and at 
 the hands of some persons, suffer damage, would, if the damage re- 
 sulted in fact, support an action for defamation. No proposition less 
 wide in its terms than this would support the present declaration ; for 
 to call a man "the ringleader of the nine-hours system," and to say 
 of him that he "had ruined a place by bringing about that system," 
 could not under many circumstances and at the hands of many people 
 do the subject of such statements any damage at all. But we are un- 
 able to find any authority for a proposition so wide and general in its 
 terms as would alone support this action. 
 
 The rule, as laid down by De Grey, C. J., in Onslow v. Horne,^ that 
 words are actionable if they be of probable ill consequence to a person 
 in a trade or profession or an office, is expressly disapproved of by 
 the Court of Exchequer in Lumby v. Allday.^" Bayley, B., there says : 
 "Every authority which I have been able to find either shews the want 
 of some general requisite, as, honesty, capacity, fidelity, or the like; 
 or connects the imputation with the plaintiff's office, trade, or busi- 
 ness." In that case, the words proved were a very strong imputation 
 on the morality of the plaintiff, who was a clerk to a gas company. 
 But the Court held them not actionable, because the imputation con- 
 veyed by them did not imply the want of any of those qualities which 
 a clerk ought to possess, and because the imputation had no reference 
 to his conduct as clerk. That case and the language of Bayley, B., in 
 delivering the judgment of the Court, have since been repeatedly ap- 
 proved of, and are really decisive of this case. 
 
 The words before us are not actionable in themselves. No expres- 
 sion in them was argued to be so except the word "ringleader" : and, 
 
 8 The statement of the case is abridged, and the argument of counsel is 
 for the most part omitted. 
 
 (1771) 3 Wils. 177, 186, 2 W. Bl. 753. 
 
 10 (1S31) 1 Cr. & J. 305, 35 R. R. 715: (The declaration stated that P. 
 was clerk of a gas company, and that D. s])oke of P. these words : "You 
 are a fellow, a disgrace to the town, unfit to hold your situation for your 
 conduct mth whores.") 
 
 Accord : Hogg v. Dorrah (1835) 2 Porter (Ala.) 212, Oram v. Franklin (1S3S) 
 5 Blackf. (Ind.) 42. 
 
 Compare: Stannard v. Wilcox & Gibbs Sewing Machine Co. (1912) 118 
 Md. 151, 84 Atl. 335, 42 L. R. A. (N. S.) 515, Ann. Cas. lDi4B, 709; Nicholas 
 V. Daily Reporter Co. (1905) 30 Utah, 74, 83 Pac. 573, 3 L. R. A. (N. S.) 330, 
 110 Am. St. Rep. 79(5, 8 Ann. Cas. 841, and the remarks of Lord Ilerschell 
 in Alexander v. Jenkins. L1S92J 1 Q. B. 797, 800, 0. A. See also 18 Halsbury'a 
 Laws of England, 621, 622.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 573 
 
 as to that, it is sufficient perhaps to say that Dr. Johnson points out 
 the mistake of supposing that the word is by any means necessarily a 
 word of bad import ; for, amongst other authorities, he cites Barrow 
 as caUing St. Peter the "ringleader" of the Apostles. Neither are the 
 words connected with the trade or profession of the plaintiff, either 
 by averment or by implication ; so that, on neither ground can the 
 declaration be supported. There is no averment here that the conse- 
 quence which followed was intended by the defendant as the result of 
 his words ; and therefore it is not necessary to consider the question 
 which was suggested on the argument, whether words not in them- 
 selves actionable or defamatory spoken under circumstances and to 
 persons likely to create damage to the subject of the words, are, when 
 the damage follows, ground of action. The judgment of Lord Wen- 
 sleydale in Lynch v. Knight. 9 H. L. C. at p. 600, appears in favour 
 of the affirmative of this question. But it is not necessary for us, for 
 the reasons given, to express any opinion upon it; and upon this de- 
 murrer there must be judgment for the defendant. 
 Judgment for the defendant. 
 
 REILLY V. CURTISS. 
 (Supreme Court of New Jersey, 1912. 83 N. J. Law, 77, 84 Atl. 199.) 
 
 Reilly sued Curtiss for slander, and obtained a judgment below. 
 The defendant appealed. 
 
 Trp:n'CHard, J. In this action for slander, the judge of the district 
 court, sitting without a jury, gave the plaintiff a judgment for $50. 
 
 The state of demand averred in eff'ect, and the proof showed, that 
 the defendant, in a certain discourse, falsely said that the election 
 boaVd of the Fourth district of the Eighth ward of the city of Eliza- 
 beth was drunk while on duty on registration day, and was totally un- 
 fit to receive names for registry. It was also averred and admitted 
 that the plaintiff was a member of that board. 
 
 The sole contention of the defendant on this appeal is that the judge 
 erred in not limiting the judgment to nominal damages. We are of 
 opinion that there is no merit in the contention. 
 
 Every district board of registry and election is composed of four 
 members. P. L. 1911, p. 277, § 4. A sweeping charge of misconduct, 
 leveled against a public board without exception, necessarily points 
 the finger of condemnation at every member thereof, though none are 
 named ; and every member of the board may maintain an action there- 
 for. Levert v. Daily States Pub. Co., 123 La. 594, 49 South. 206, 23 
 L. R. A. (N. S.) '726, 131 Am. St. Rep. 356; 25 Cyc. 352, 362, 363. 
 
 The office of member of a district board of registry and election is 
 one of profit (P. L. 1911, p. 283, § 11) ; and, under section 9, a member 
 is subject to removal, if shown to be disqualified. Words spoken false-
 
 574 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 ly, imputing drunkenness while on duty, and unfitness for duty, to a 
 member of such board reflect upon his capacity, and tend to work a 
 detriment, from a pecuniary point of view, by rendering his tenure 
 precarious, and are actionable per se. 25 Cyc. 346; Heller v. Duff, 
 62 N. J. Law, 101, 40 Atl. 691. 
 
 When words spoken are actionable per se, plaintiff is not required 
 to introduce evidence of actual damage to entitle him to substantial 
 damages, since, in the absence of any evidence of damage, the law pre- 
 sumes damage. 25 Cyc. 531. 
 
 The case of Alexander v. Jenkins [1892] 1 Q. B. 797, cited by the 
 defendant, is not in point. There the office for which the plaintiff was 
 said to be unfit was not an office of profit, and the distinction was there 
 carefully drawn. 
 
 The award ^^ of substantial damages in the case at bar being justi- 
 fied, the judgment of the court below will be affirmed. 
 
 (2) Slmulcr through Special Damage 
 
 Now, if tliere was no special damage, on what grounds are the 
 words actionable ? They do not allege any crime ; they do not allege 
 a particular kind of infectious disease; they do not allege any other 
 
 11 In Alexander v. .Tenkins, riS92] 1 Q. B. 797, the charge was: "Alexander 
 is never sober, and is not a fit man for the [town] council. On the night 
 of the election he was so drunk that he had to be carried home." In holding 
 that the action would not lie, Ix)rd Herschell, in the Court of Appeal, said: 
 "There is no case in which an action of slander has been held to lie for an 
 imputation that a man by reason of his conduct is unfit for an office, except 
 where, by reason of that misconduct, if it existed, he could have been de- 
 prived of the office. In Mr. Stiirkie's work, this liability — this danger of 
 exclusion from office — is said to be that which gives rise to the action; 
 and, at all events, there is there an intelligible ground upon which these ac- 
 tions may be rested, even if it be not altogether a satisfactory one. But 
 we are asked today to make an extension, and to say that an action will 
 lie where a person is charged with being unfit for his office, although he could 
 not — however true the charge — be excluded for that rea.son from the office. 
 That would be a step in advance, and I do not think it is a step in advance 
 which we are justified in taking. It is on that ground exclusively that I 
 desire to rest my judgment; I will put it shortly thus : That where the 
 imputation is an imputation not of miseonduct in an office, but of unfitness 
 for an office, and the office for which the person is said to be unfit is not 
 an otfice of profit, but one mei-ely of what has been called honour or creilit, 
 the action will not lie, unless the conduct charged be such as would enable 
 him to be removed from or deprived of that ofiice." 
 
 Compare the remarks of Loi)es, L. J., in Booth v. Arnold (ISO-") 1 Q. B. 
 571, 570 : "In my judgment, words imputing want of integrity, dishonesty, 
 or malversation to any one holding a public office of confidence or trust, 
 whether an ofiice of profit or not, are actionable per se. On the other hand, 
 when the woi'ds merely impute unsuitableness for the office, incompetency, 
 or want of ability, without ascribing any misconduct touching the ofiice, 
 then, according to the decision in Alexander v. Jenkins, [1S92J 1 Q. B. 797, 
 no action lies, where the otfice is honorary, without proof of special diimage. 
 It Is said that this view is contrary to the recent case of Alexander v. 
 Jenkins, [1892] 1 Q. B. 797; but a careful perusal of that case leads me to 
 a different conclusion."
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 575 
 
 of the peculiar matters for which slander may be actionable without 
 special damage, unless they ought to be construed as impugning the 
 capacity or conduct of the plaintiff in the way of his profession as a 
 solicitor. 
 
 Wright, J., in Dauncey v. Holloway.^^ 
 
 When our ancestors years ago drew the distinction between libel 
 and slander they exercised that kind of wise discretion which they 
 always exercised over the whole field of common law. It would, to 
 my mind, be very dangerous for us nowadays to relax in any way the 
 rule of law which confines actions for spoken words, in the absence 
 of proof of special damage, to a very limited number of cases. 
 
 Vaughan Williams, L. J., in Dauncey v. Holloway.^^ 
 
 AIATTHEW V. CRASS. 
 
 (Court of King's Bench, 1G14. Cro. Jac. o23, 79 Eeprint. 276.) 
 
 Action for these words, "Thou art a whoremaster, for thou hast 
 Iain with Brown's wife," by reason of which words he lost his mar- 
 riage, ad damnum &c. 
 
 After verdict for the plaintiff, it was moved in arrest of judgment, 
 that the words were not actionable, but examinable only in the Spirit- 
 ual Court; and that this was the first precedent where loss of marriage 
 was ever laid for words spoken of a man; and so not like to Anne 
 Davies' Case, 4 Co. 16. 
 
 But it was conceived by the Court that there was not any differ- 
 ence betwixt the cases, as to the hinderance of marriage either of 
 a man or of a woman ; which being alleged in this case, and a tem- 
 poral loss and damage to ensue thereby, though the crime is to be 
 punished in the Ecclesiastical Court, yet these words give the Tem- 
 poral Court jurisdiction, and make them here actionable. So the 
 calling of one "bastard" is triable and determinable in the Spiritual 
 Court; yet when matter subsecjuent is laid which is triable in a 
 Temporal Court (as to entitle himself to be heir, or where he shews 
 
 12 Dauncey v. Holloway, [1901] 2 K. B. 441, was .an action for slander. 
 The plaintiff was a solicitor in active practice. The words spoken of him 
 were: "Have you heard about our neighbor (meaning tlie plaiutift) along 
 here? They tell me he has gone for tliousands instead of hundreds this 
 time;" and, upon another occasion: "Have you heard anything about Mr. 
 Dauncey. It seems to be a worse .job than the other was. Miss Allen told 
 me Mr. Dauncey has lost thousands." No ' special ; damage was shown. It 
 was held by Wright, J., in the King's Bench Division, and by A. L. Smith. .M. 
 K., and \aughan Williams and Romer, L. .IJ., in the Court of A])i»eal, that 
 in the absence of special damage the words were not actionable, as tlu-y 
 were not reasonably capable of being construed as conveying an imputatiou 
 on the plaintiff in his business as a solicitor.
 
 576 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 some possibility of being heir), this maketh the calhng of him "bas- 
 tard" to be actionable at the common law : so here, by reason of the 
 allegation of his loss of marriage by these words spoken, the action 
 is maintainable; and judgment was given for the plaintiff. 
 
 SELL V. FACY. 
 
 (Court of King's Bench, 1615. 2 Bulst. 276, 80 Reprint, 1119.) 
 
 In an action upon the case for scandalous words, upon non culp. 
 pleaded, a verdict was found for the plaintiff: it was moved for 
 the defendant in arrest of judgment, that the declaration here is not 
 good, in regard that he lays for the ground of his action, a loss of 
 his marriage, by reason of the speaking of the words ; he lays the 
 same in this manner, quod intendebat & conatus fuit, to have such 
 a woman in marriage, and that by reason of the words spoken of him, 
 recusavit, she did refuse to have him ; intendebat, this is but onely 
 to shew what his intention was ; he lays no communication of mar- 
 riage, and therefore the declaration is not good, for that he ought to 
 have laid, quod colloquium habitum fuit de matrimonio, but it is not 
 so, and therefore not good. 
 
 Croke;, Justice. The words here are scandalous (being that he had 
 a bastard, or such like words), if he had said, quod recusavit, and had 
 laid the motion of marriage to her, this had been good, but not as 
 it is here laid, with a conatus fuit, this is not good. 
 
 Haughton, J. If all the women in this town should say, hearing 
 of these words, spoken of him, that they would not have him for 
 a husband, shall this be sufficient to give him cause of action, by 
 no means it shall not, but he ought to lay specially in his declaration, 
 that there was a motion of marriage for him, and this ought to be 
 certainly laid, and not by intendment, as here he hath laid the same 
 to be, and then also to lay a refusal for this, and so a breaking off 
 by reason of the words thus spoken of him, and being thus laid, the 
 declaration would then have been good, and the words actionable, but 
 here this declaration is not good, and so the plaintiff ought not to have 
 his judgment. ^^ 
 
 13 The concurring opinions of Coke, C. J., and Dodderidge and Crolve, JJ., 
 are omitted. "Tlie court was all clear of opinion against the plaintilTe, 
 that the declaration here was not good; and therefore they advised liiui, to 
 begin his sute again, and to lay in his declaration, an express collOLiuiuni de 
 matrimonio; and a breach, or falling off, by reason of these words; but 
 this declaration, as it is, is too short, and not good, and so judgment ought 
 to be given against the plaintiffe, and accordingly the rule 'of the Court was, 
 quod querens nil capiat per billam." 
 
 Compare Rade v. Press I'ub. Co. (1002) 37 Misc. Rep. 254, 75 N. Y. Supp. 
 298. The charge was that the defendant had falsely published of the 
 plaintiff tliat he had consuiiiplion. As special damage the complaint alleged, 
 inter alia, "that the young lady witli wlium he liept company avoids him."
 
 Ch. 2) ABSOLUTE TORTS OTUER THAN TRESPASSES 577 
 
 BARNES V. BRUDDEIv. 
 (Court of King's Bench, 1668-69. 1 Lev. 261, 83 Reprint, 397.) 
 
 Case for saying of her, being a virgin of good fame, "She was 
 with child by Simons ;" whereby she was in her parents' displeasure, 
 and in danger of being put out of their house; afterwards judgment 
 was stayed, for that the words were not actionable, there being no loss 
 of marriage, which was the sole reason of Anne Davies's case : 
 and the case in 1 Roll. 35. An action for saying, "She was with 
 child," whereby she lost the society of her neighbours, held not to 
 be law ; but that 3 Cro. 639, "She had a child, and if she have not 
 a child she has made it away," may be law, because it imports felony. 
 
 But note, in that case loss of marriage is laid also. 
 
 MOORE, Gent., v. MEAGHER. 
 
 (In the Exchequer Chamber, 1807. 1 Taunt. 39, 9 R. R. 702, 127 Reprint, 745.) 
 
 This was a writ of error from a judgment of the Court of King's 
 
 Bench in an action on the case for defamation. The plaintiff below, 
 
 in her declaration, alleged * * * ^y^^^ ^^^^ defendant spoke and 
 
 published the defamatory words complained of (imputing incontinence 
 
 to the plaintiff), by means of the speaking of which — 
 
 the plaintiff had been and was greatly in.1ured in her credit and reputation, 
 and brought into public scandal, &c. and her friends and neighbours, and 
 especially the several persons herein-before in that behalf named, had 
 wholly refused to hold or permit any intercourse or society with her, or to 
 receive and admit her into their respective houses or comjiany, or to find 
 or provide for her meat, drink, or any other benefits and advantages in any 
 mamier whatsoever, as they before that time had done, and other- 
 wise would have continued to do; whereby the plaintiff had lost 
 all those valuable benefits and advantages, being to her theretofore of 
 great value, to wit, of the value of £100, and had been and was greatly 
 reduced and prejudiced in her fortunes and pecuniary cii'cumstances, and 
 obliged to incur a much greater expense in her necessary living and support- 
 ing herself, to a large amount, to wit, the annual amount of £100, than she 
 theretofore had done, and otherwise would have continued to do, and had 
 been and was greatly impoverished, and all her friends had wholly with- 
 drawn their friendship, &c. 
 
 A verdict was found for the plaintiff" for £1(X) damages, and judg- 
 ment was entered accordingly. The errors assigned were that none 
 of the words alleged in the declaration were in themselves actionable, 
 (which was admitted by the defendant in error,) and that no sub- 
 stantial or real specific damage, or legal or specific injury, was al- 
 
 This ^aid jGoiynor, J., "is no allegation of special damage by the loss of 
 marriage. * * * Not only are the names and particulars not given, but 
 there is not even any allegation tliat there existed any contract, purpose or 
 intention of marriage." 
 
 IIepb.Tobts — 37
 
 578 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 leged to have been sustained in consequence of the words so spoken 
 and pubHshed. 
 
 Richardson, for the defendant in error. The declaration has not 
 been sufficiently stated in the plaintiff's argument. It alleges that 
 the persons named gratuitously received the defendant in error into 
 their houses, and provided her with meat and drink to the great re- 
 duction of her expenses, and increase of her riches. The defendant 
 below demurred specially, and assigned for cause that this was not 
 a temporal damage; but the court on argument held, that the ques- 
 tion whether this were a temporal damage or not, was a matter of 
 fact, and not a matter of law, and that if the provisions furnished 
 to the plaintiff by her friends were of the annual value of ilOO, as 
 the declaration alleged, the loss of them was a real damage, and di- 
 rected the defendant to withdraw the demurrer and plead to the 
 action. The jury have found tlie damages to be £100. And it is now 
 contended, that this cannot be a special damage. The plaintiff be- 
 low receives real benefit from the assistance of her friends ; the 
 defendant for malicious purposes speaks these words, by which she 
 loses that assistance. It is admitted, that if the least' pecuniary salary 
 were lost, an action would lie : how can it be otherwise upon the loss 
 of that which is equivalent in value to money? Com. Rep. 7 Ld. 
 Raym. 266, and other authorities show, that, as against a wrong- 
 doer, a possessory title is sufficient. It is urged that these persons 
 were not bound to provide her entertainment: but they did in fact 
 entertain her, and would have continued to entertain her, as the jury 
 have found; whose verdict cannot now be controverted. Words 
 spoken of a tradesman, are actionable, if spoken with reference to 
 his trade : but words spoken of him, though not referring to his 
 trade, are acti(5nable if he thereby loses a customer. 1 Lev. 140. Yet 
 no individual customer is bound to frequent any particular shop ; 
 but it is sufficient if he would in fact have come, except for the ma- 
 licious interference of a stranger. The case of Hartly v. Herring, 
 8 Term Rep. 130, was an action brought by a preacher, for words 
 imputing incontinence, per quod persons frequenting the chapel dis- 
 continued giving him the gains and profits which they had usually 
 given. Tlnere the court held there was no objection to the declara- 
 tion; and Lord Kenyon said it was sufficient if the plaintiff lost his 
 occasional employment. * * * 
 
 Curwood, in reply. All the cases cited are cases of legal damage. 
 The value of customers to a tradesman is fully recognized by the law : 
 so is slander of title. If this action lies, no words are not actionable 
 with the aid of an ingenious special pleader. (Heath, J. Undoubt- 
 edly all words are actionable, if a special damage follows.) 
 
 Mansfield, C. J. This case is not distinguishal)le from that of 
 Hartly v. Herring. We do not know how to say that this is not a 
 special damage, sustained in consequence of words imputing infamy.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 579 
 
 They have deprived this lady of an income derived from the bounty 
 of others, which now, after verdict, we must assume, would have 
 continued, if the defendant had not spoken these words. We cannot 
 say the action will not lie. 
 Judgment affirmed.^* 
 
 POLLARD V. LYON. 
 
 (Supreme Court of the United States, 1875. 91 U. S. 225, 23 L. Ed. 308.) 
 
 Mr. Justice Clifford delivered the opinion of the court: 
 Words both false and slanderous, it is alleged, were spoken by 
 the defendant of the plaintiff: and she sues in an action on the case 
 for slander to recover damages for the injury to her name and fame. 
 Controversies of this kind, in their legal aspect, require pretty 
 careful examination; and, in view of that consideration, it is deem- 
 ed proper to give the entire declaration exhibited in the transcript, 
 which is as follows : 
 
 "That the defendant, on a day named, speaking of the plaintiff, falsely 
 and maliciously said, spoke and published of the plaintiff the words fol- 
 lowing: 'I saw her in bed with Captain Denty.' That at another time, to 
 wit, on the same day, the defendant falsely and maliciously spoke and pub- 
 lished of the plaintiff the words following: 'I looked over the transom-light 
 and saw ^Irs. Pollard.' meaning the plaintiff, 'in bed ■n'ith Captain Denty" — 
 whereby the plaintiff has been damaged and injured in her name and fame, 
 and she claims damages therefor in the sum of $10,000." 
 
 Whether the plaintiff and defendant are married or single persons 
 does not appear; nor is it alleged that they are not husband and 
 wife, nor in what respect the plaintifT has suffered loss beyond what 
 may be inferred from the general averment that she had been dam- 
 aged and injured in her name and fame. 
 
 Service was made, and the defendant appeared and pleaded the 
 general issue; which being joined, the parties went to trial; and the 
 jury, under the instructions of the court, found a verdict in favor 
 of the plaintiff for the whole amount claimed in the declaration. 
 None of the other proceedings in the case, at the special term, re- 
 quire any notice, except to say that the defendant filed a motion in 
 
 i*The statement of facts is abridged. 
 
 Accord: Davies v. Solomon (1S71) L. R. 7 Q. B. 112: (The declaration, by 
 Davies and Isabella, his wife, charged that the defendant had published a 
 defamatory statement concerning Mrs. Davies, and that thereby the plaintiff 
 Isabella was injured in her character and reputation, and became alienated 
 from and deprived of the cohabitation of her husband, and lost and was 
 deprived of the companionship and ceased to receive the hospitality of divers 
 friends, and especially of her husband, .John Davies, "and one M. D. and one 
 G. H. T. and one A. J. M.," who have by reason of the premises witlidrawn 
 from the companionship and ceased to be hospitable to or friendly with 
 the plaintiff Isabella. The defendant demurred, insisting that the special 
 damage alleged was too remote.)
 
 580 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 arrest of judgment, on the ground that the words set forth in the 
 declaration are not actionable, and because the declaration does not 
 state a cause of action which entitles the plaintiff to recover; and 
 the record shows that the court ordered that the motion be heard at 
 general term in the first instance. Both parties appeared at the gen- 
 eral term and were fully heard; and the court sustained the motion 
 in arrest of judgment, and decided that the declaration was bad in 
 substance. Judgment was subsequently rendered for the defendant, 
 and the plaintiff sued out the present writ of error. * * * 
 
 Examined in the light of these suggestions,^^ and the authorities 
 cited in their support, it is clear that the proposition of the plaintiff, 
 that the words alleged are in themselves actionable, cannot be sus- 
 tained. 
 
 Concede all that, and still the plaintiff suggests that she alleges in 
 the second paragraph of her declaration that "she has been damaged 
 and injured in her name and fame," and she contends that the aver- 
 ment is sufficient, in connection with the words charged, to entitle 
 her to recover as in an action of slander for defamatory words with 
 averment of special damage. 
 
 Special damage is a term which denotes a claim for the natural and 
 proximate consequences of a wrongful act; and it is undoubtedly 
 true that the plaintiff in such a case may recover for defamatory 
 words spoken of him or her by^ the defendant, even though the words 
 are not in themselves actionable, if the declaration sets forth such a 
 claim in due form, and the allegation is sustained by sufficient evi- 
 dence; but the claim must be specifically set forth, in order that the 
 defendant may be duly notified of its nature, and that the court may 
 have the means to determine whether the alleged special damage is 
 the natural and proximate consequence of the defamatory words 
 alleged to have been spoken by the defendant. Haddan v. Lott, 15 
 C. B. 429. 
 
 Whenever proof of special damage is necessary to maintain an 
 action of slander, the claim for the same must be set forth in the 
 declaration, and it must appear that the special damage is the natural 
 and proximate consequence of the words spoken, else the allegation 
 will not entitle the plaintiff to recover. Vicars v. Wilcocks, 8 East, 
 3 ; Knight v. Gibbs, 1 Ad. & Ell. 46 ; Ayre v. Craven, 2 Ad. & Ell. 
 8; Roberts v. Roberts, supra [5 B. & S. 389]. 
 
 When special damage is claimed, the nature of the special loss or 
 injury must be particularly set forth, to support such an action for 
 
 15 In the omitted passage, Rrr. Justice Clifford, after an elaborate con- 
 sideration of the questions involved, reached these conclusions: First, that 
 the plaintiff had failed to show that the words alleged imputed any criuiiual 
 offence for which, under the law of the District of Columbia, she could be 
 indicted and punished ; secondly, that although the words spoken imputed 
 misconduct which was derogatory to the character of the plaintiff, and 
 highly injurious to her social stiinding. still they were not actionable at com- 
 mon law unless special damage was alleged and proven.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 581 
 
 words not in themselves actionable; and, if it is not, the defendant 
 may demur. He did demur in the case last cited ; and Cockburn, 
 C. ]., remarked that such an action is not maintainable, unless it be 
 shown that the loss of some substantial or material advantage has 
 resulted from the speaking of the words. Add. Torts (3d Ed.) 805 ; 
 Wilby V. Elston, supra [8 .M.,G. & S. 142]. 
 
 Where the words are not in themselves actionable, because the 
 offense imputed involves neither moral turpitude nor subjects the 
 offender to an infamous punishment, special damage must be alleged 
 and proved in order to maintain the action. Hoag v. Hatch, 23 Conn. 
 590; Andres v. Koppenheafer, supra [3 Serg. & R. 255, 8 Am. Dec. 
 647] ; Buys v. Gillespie, 2 Johns. (N. Y.) 117, 3 Am. Dec. 404. 
 ■ In such a case, it is necessary that the declaration should set forth 
 precisely in what way the special damage resulted from the speaking 
 of the words. It is not sufficient to allege generally that the plaintiff 
 has suffered special damages, or that the party has been put to great 
 costs and expenses. Cook v. Cook, 100 Mass. 194.^"^ 
 
 By special damage in such a case is meant pecuniary loss ; but 
 it is well settled that the term may also include the loss of substan- 
 tial hospitality of friends. Aloore v. ^leagher, 1 Taunt. 42; Wil- 
 liams v.'Hill, 19 W^end. (N. Y.) 306. 
 
 Illustrative examples are given by the text writers in great numbers, 
 among which are loss of marriage, loss of profitable employment, or 
 of emoluments, profits or customers ; and it was ver}' early settled 
 that a charge of incontinence against an unmarried female, where- 
 by she lost her marriage, was actionable by reason of the special dam- 
 age alleged and proved. Davis v. Gardiner, 4 Co. 16 b, pi. 11; Res- 
 ton V. Pomfreict, Cro. Eliz. 639. 
 
 Doubt upon that subject cannot be entertained ; but the special dam- 
 age must be alleged in the declaration, and proved; and it is not suf- 
 
 16 Accord: Chamberlain v. Boyd (1S83) 11 Q. B. D. 407: The words were: 
 "The conduct of the Messrs. Chamberlain was so bad at a club in Melbourne 
 that a round robin was signed urging the committee to expel them. As, 
 however, they were there only for a short time, the committee did not 
 proceed further." The defendant's demurrer was overruled by the trial 
 court. The Court of Appeal gave judgment for the defendant, "it is not al- 
 leged," said Bowen, L. .J., "that the defendant's words prevented the election 
 of the plaintiff, and that is the fatal blot in the plaintiff's ease." 
 
 Accord: Ford v. Lamb (1002) 116 Ga. 655, 42 S. E. 998: The defendant had 
 falsely said of the plaintiff (Lamb) to one Bass, with whom the plaintiff 
 was negotiating a ti'ade : "Don't sell Lamb anything. He is no good. He 
 will not pay for anything he gets." The j)etition set out this statement, and 
 alleged that because of it Bass broke off the trade, "greatly to petitioner's 
 worry and mortification," that the words spoken were false and malicious, 
 and that they had injured the plaintiff in the sum of $3,000. There was no 
 allegation as to the character of the plaintiff's business, or that he had 
 any business, office, or occupation. 
 
 Compare the analogous principle in the libel case of Reporters' Association 
 V. Sun Printing & Publishing Company (1900), before the Appellate Division 
 of the New York Supreme Court, 112 App. Div. 246, OS N. Y. Supp. 294, 
 and the Court of Appeals, 186 N. Y. 437, 79 N. E. 710.
 
 582 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 ficient to allege that the plaintiff "has been damaged and injured in 
 her name and fame," which is all that is alleged in that regard in 
 the case before the court. Hartley v. Herring, 8 T. R. 133 ; Add. 
 Torts, 805 ; Hill. Torts (2d Ed.) 622 ; Beach v. Ranney, 2 Hill (N. 
 Y.) 309. 
 
 Tested by these considerations, it is clear that the decision of the 
 court below, that the declaration is bad in substance, is correct. 
 
 Judgment affirmed. 
 
 SPEAKE V. HUGHES. 
 (In the Court of Appeal. [1904] 1 K. B. 138.) 
 
 The action was for slander. It was tried before the assessor of the 
 Court of Passage at Liverpool, who nonsuited the plaintiff'. 
 
 Collins, M. R. This is an appeal from a decision of the learned 
 assessor of the Passage Court at Liverpool. The action is brought 
 in respect of spoken words which, in any point of view, cannot, in my 
 opinion, be actionable in the absence of special damage resulting from 
 them. The words alleged to have been spoken were these : "You 
 have a barman in your employ, named Speake, who has removed from 
 his landlord's house, leaving £2 owing for a month's rent, and I cannot 
 get the money from him." The plaintiff' alleges that special damage 
 resulted from these words having been spoken by the defendant to a 
 person, who, at the defendant's request, repeated them to the plain- 
 tiff's employers, the damage so alleged being that they thereupon dis- 
 missed the plaintiff from their service. It is a question of law whether 
 such damage can, in point of law, be reasonably looked upon as a con- 
 sequence of the words alleged to have been spoken by the defendant. 
 The defendant might, I think, fairly be taken to have contemplated 
 that, as a result of those words, the plaintiff's employers would exercise 
 some pressure upon him to make him pay the rent owing to the defend- 
 ant ; but that, instead of doing that, the plaintiff''s employers should, 
 on the words being repeated to them, thereupon proceed to dismiss 
 him, does not appear to me, in point of law, to be a natural consequence 
 of the words spoken, or one which the defendant can reasonably be 
 taken to have contemplated when he spoke them. That being so, I 
 think the chain of causality between the words spoken and the alleged 
 damage breaks down, and there is therefore no special damage upon 
 which the plaintiff can rely in order to establish a cause of action. On 
 these grounds I think the appeal fails. 
 
 Mathew, L. J. I agree. It cannot, I think, be contended that the 
 words alleged to have been spoken in this case can be actionable per 
 se: and the special damage alleged is not such as, in my opinion, can 
 be regarded as a natural consequence of the words spoken. The de- 
 fendant might reasonably be supposed to have contemplated, when he
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 583 
 
 spoke the words, that the plaintiff's employers would remonstrate with 
 him on the subject, but not that they would dismiss him from their 
 service.^'' 
 
 Appeal dismissed. - 
 
 (c) Libel 
 
 In spite of the dictum of Fletcher Moulton, L. J., in Jones v. Hulton, 
 [1909] 2 K. B., at page 458, it cannot be admitted that "the action of 
 libel" (or, indeed, any form of defamation except the anomalous statu- 
 tory scandalum magnatum ^^) "is a very ancient action for a tort at 
 common law." On the contrary, in spite of the fact that there had 
 been three attempts in the year 1493 to bring cases of slander before 
 the Star Chainber (Selden Soc. "Star Chamber," pp. 28-45), it was 
 fully admitted, by the three judges, in an important case which came 
 before the King's Bench at the end of the fifteenth century (Y. B. 12 
 Hen. VII (1498) Tr. pi. 2, fo. 22a) that slanderous words were then 
 matter for the ecclesiastical courts ; though it is clear, from other evi- 
 dence, that actions for slander had long been familiar in the local 
 courts of the manor and borough. ^^ More than a hundred years later, 
 in the Court of Star Chamber, libel, so far as the King's Courts were 
 concerned, was treated as a purely criminal matter; whether it was 
 directed against a private person or against a magistrate.^" The proce- 
 dure is in that case said to be (a) indictment at the common law, or (b) 
 bill or confession in the Star Chamber; and the purely criminal char- 
 acter of the offence is emphasized by the statement, made without any 
 qualification, tliat the truth of the libel and the character of the party 
 libelled, are immaterial. Between 1498 and 1605, however, the action 
 of Case for slanderous words had been adopted by the King's Courts ; 
 and there are several reported decisions of the sixteenth century, the 
 first being, apparently, in the year 1536 (Anon., Dyer, 19a), when it 
 was held by the Court of Common Bench, that two plaintiffs who had 
 been called by the defendant "two false knaves and thieves" could not 
 join in one action against him. In the following year, in Russell's 
 Case (1537) Dyer, 26b, the principle that words imputing crime are 
 actionable per se, was clearly adopted by the same Court on a plea of 
 non damnificatus; and thereafter the action of Case for spoken words 
 becomes common in the reports of Dyer, Godbolt and Jenkins, though 
 
 17 The reporter's stateruent of the case and the arsiiment of counsel for 
 the plaintiff are omitted. It is remarked by the reporter that "it does not 
 appear to have been suggested that any evidence could have been called 
 of any special circumstances known to the defendant tending to shew that he 
 contemplated the dismissal of the plaintiff as a probable consequence of the 
 statement made by him. See Odsers on Libel and Shmder (;Jd Kd.) c. 5, § 
 5, p. 168, and chapter 12, § G, p. 371." As to this see infra. Part III. 
 
 18 See 3 Holdsworth's History of Eng. Law, 315. — Ed. 
 
 19 S. S. Select Pleas in Manorial Courts, pp. 36, 82, 95, &c.; Id. The Court 
 Baron, &c., pp. 133, 1.3(i. 
 
 2 Case of Scandalous Libels (1605) 5 Rep. 125a.
 
 584 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 the other sixteenth century reporters apparently ignore it. In the year 
 1586, we get the interesting decision, that the allegation of malice in a 
 declaration of slander is only formal, and that its omission is not fatal 
 (Alercer's Case, Jenk. 268). 
 
 On the other hand, though the introduction of the printing press 
 would seem to have rendered such a remedy essential, the action of 
 Case for libel does not make its way into the books until the seven- 
 teenth century, when it begins to be regarded as an alternative of a 
 bill in the Star Chamber (Lake v. Hatton (1618) Hob. 252) ; and it is 
 then admitted by the reporter that to the action of Case, as dis- 
 tinguished from a bill or indictment, a plea of truth is a good answer. 
 Another difference early taken was that, while communication to a 
 party libelled may be a sufficient publication for a criminal prosecution, 
 it is insufficient for an action of Case. * * * 21 
 
 The jurisdiction of the ecclesiastical courts in Defamation was not 
 abolished until 1855 (18 & 19 Vict. c. 41); but as, long before that 
 time (Palmer's and Thorpe's Case (1583) 4 Rep. 20), the King's Courts 
 had adopted the rule of prohibiting suits in the ecclesiastical courts 
 where the plaintiff had a remedy at law, and as the ecclesiastical courts 
 themselves would only entertain suits in respect of words imputing an 
 ecclesiastical offence (Harris v. Butler (1798) 1 Hagg. 463n), the scope 
 of the jurisdiction must have been small. It seems to have been chiefly 
 resorted to in the case of spoken words imputing unchastity, which, 
 until the passing of the Slander of Women Act, 1891, were not ac- 
 tionable per se in the common law courts, and are now so actionable 
 only when spoken of a woman. 
 
 It seems, therefore, that, while the common law action of slander 
 may be as old as 1535, the common law action of libel only dates from 
 the commencement of the seventeenth century. 
 
 J. C. Miles, Digest Eng. Civ. Law, 501. 
 
 VILLERS v. MONSLEY. 
 
 (Court of Common Pleas, 17G9. 2 Wils. 403, 95 Reprint, 8S6.) 
 
 Action upon the case * * * for a libel upon the plaintiff, in 
 the words following: 
 
 "Old Villers, so strong of brimstone you smell, 
 
 As if not long since you had got out of bell, 
 
 But tbis damnable smell I no longer can bear, 
 
 Therefore I desire you would come no more here; 
 
 You old stinking, old nasty, old itchy old toad, 
 
 If you come any more you shall pay for your board." 
 
 * * * The defendant pleaded not guilty: a verdict was found 
 for the plaintiff and sixpence damages, at the last assizes for the 
 
 21 Edwardes v. ^yootton (1G07) reported in Ilawarde's Cases in the Star 
 Chamber, Ed. Baildon, pp. 343, 341; Barrow'; v. Lewellin (1G16) Hob. (j2 ; 
 Hick's Case (1619) Id. 215.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 585 
 
 county of Warwick. And now it was moved by Sergeant Burland, in 
 arrest of judgment, that this was not such a Hbel for which action 
 would lie ; that the itch is a distemper to which every family is liable ; 
 to have it is no crime, nor does it bring any disgrace upon a man, 
 for it may be innocently caught or taken by infection ; the small- 
 pox, or a putrid fever are much worse distempers ; the itch is not so 
 detestable or so contagious as either of them, for it is not communi- 
 cated by the air, but by contact or putting on a glove, or the clothes of 
 one who has the itch, and although it be an infectious distemper, yet 
 it implies no offence in the person having it, and therefore no action 
 will lie for saying or writing that a man has got the itch. It is not 
 like saying or writing that a man has got the leprosy, or is a leper, for 
 which an action upon the case wall lie, because a leper shall be re- 
 moved from the society of men by the writ of de leproso amovendo 
 (1 Roll. Abr. 44; Cro. Jac. 144; Hob. 219), although it be a natural 
 infirmity. 
 
 Bathurst, J. I wish this matter was thoroughly gone into, and 
 more solemnly determined ; however, I have no doubt at present, but 
 that the w^riting and publishing anything which renders a man ridicu- 
 lous is actionable ; and whether the itch be occasioned by a man's 
 fault or misfortune, it is a cruel charge, and renders him both ridicu- 
 lous and miserable, by being kept out of all company: I repeat it, 
 that I wish there was some more solemn determination, that the Avrit- 
 ing and publishing anything which tends to make a man ridiculous " 
 
 22 Compare: Cook v. Ward (1S30) 6 Biiig. 409, 130 Reprint, 1338: (To 
 entertain a party of friends, P. told as a joke on himself that he had at- 
 tended a murder trial and been addressed there as the hangman; D. 
 printed the story as a fact in his new.spaper.) McBride v. Ellis (1856) 9 
 Kich. (S. C.) 313: (D. caused the publication in a local newspaper of an 
 obituary notice of P., a lady. "The residence and name were truly given, 
 though the age was greatly exaggerated.") Funston v. Pearson, in the King's 
 Bench Division (London Times, March 12, 1915): (D., the proprietor of cer- 
 tain dental surgeries, advertised them on a theater curtain. The advertise- 
 ment had these features: On one side of the curtain \^■as the photograph 
 of a lady absolutely- without teeth. On the (Other side was a photograph 
 of the same lady with a full set of teeth. Under the first picture wasA^rit- 
 ten "Before," and under the other "After." The photographs were both 
 those of P., an actress, performing in London. Underneath the pictures 
 appeared the following lines : 
 
 "Laugh and the world laughs with you, 
 But not when your teeth are bad, 
 So hustle and pay us a visit, 
 
 And get the laugh that's glad." 
 
 In P.'s action for libel, it was submitted, for the defendant, that the mat- 
 ter complained of was not reasonably susceptible of a defamatory meaning. 
 Said Scrutton, J. : "Not to show a young and good-looking person with all 
 her teeth out? I am entirely against you." Verdict for the plaintiff with 
 £30 damages, and judgment thereon.) 
 
 But see Cohen v. New York Times Co. (1912) 153 App. Div. 242, 138 N. T. 
 Supp. 206, 210: ("The question, then, whether this publication [of an 
 obituary notice of the plaintiff! could be a libel per se, involves the inquiry 
 whether it could have injured the reputation of the plaintiff. Here is a 
 bare item of news in a newspaper. The item states that an event has come
 
 586 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 or infamous ought to be punished ; for sayings: a man has the itch, 
 without more, perhaps an action would not lie without other malevolent 
 circumstances. I am of the same opinion that judgment must be for 
 the plaintiff. 
 
 Gould, J. What my Brother BaThurst has said is very material ; 
 there is a distinction between libels and words ; a libel is punishable 
 both criminally and by action, when speaking the words would not be 
 punishable in either way ; for speaking the words "rogue" and 
 "rascal"' of anyone, an action will not lie; but if these words were 
 written and published of any one, I doubt not an action would lie. If 
 one man should say of another that he has the itch, without more, an 
 action would not lie ; but if he should write those words of another, 
 and publish them maliciously, as in the present case, I have no doubt 
 at all but the action well lies. What is the reason why saying a man 
 has the leprosy or the plague is actionable ? It is because the having of 
 either cuts a man off from society ; so the writing and publishing 
 maliciously that a man has the itch and stinks of brimstone, cuts him 
 off from society. I think the publishing anything of a man that renders 
 him ridiculous is a libel and actionable, and in the present case am of 
 opinion for the plaintiff. 
 
 Judgment for the plaintiff PER ToT. Cur. without granting any rule 
 to shew cause. 
 
 THORLEY V. LORD KERRY. 
 
 (In the Exchequer Chamber, 1812. 4 Taunt. 8.54, 13 R. R. 62G.) 
 
 This was a writ of error brought to reverse a judgment of the 
 King's Bench, in an action on a libel in a letter written by the defend- 
 ant. The defamation was found in this passage in the letter, which 
 was set out in the declaration : 
 
 "I sincerely pity the man (meaning the plaintiff) that can so far forget 
 \^-)hat is clue, not only to himself bvU: to others, who. under the cloak of 
 religious and spiritual reform, hypocritically, and with the grossest impurity, 
 deals out his malice, uncharitableness, and falsehoods." 
 
 to i)ass which is looked for in the history of every man, is regarded as 
 beyond his control, and therefore does not permit the inference that the 
 man has done any act or suffered any act which he could not have done 
 or which he need not have suffered. Prematurity is the sole peculiarity. 
 How can tlie imblication of such an event, merely as a matter of news, 
 hold up the subject to scorn, to hatred, to contempt, or to ridicule, so that 
 his reputation is impaired? Such pulilication may be unpleasant; it may 
 annoy or irk the subject thereof; it may subject him to joke or to jest or 
 banter from those who knew him or knew of him, even to the e.xtent of 
 affecting his feelings; but this in itself is not enough. Samuels v. KtsxMiing 
 Mail Association [18751 <' liun, 5; Lombard v. Lennox [1891] 105 iSIass. 70, 
 28 N. E. 1125, 31 Am. St. Rep. 528; Duvivier v. French [lOUOl 104 Fed. 278, 
 43 C. C A. 529. The question is, as we have seen, whether the publication 
 'tends to lower him in the opinion of men wliose standard of opinion the 
 court can prop(>rly recognize or to induce them to entertain an ill opinion 
 of him.' Lord Ualsbury's Laws of England, vol. 18, p. 019." I'er Jenks, I'. J.)
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 587 
 
 Upon not guilty pleaded, the writing of the letter by the defendant 
 was proved, and that he delivered it unsealed to a servant to carry, 
 who opened and read it : a verdict was found for the plaintiff with 
 £20 damages, and judgment was passed for the plaintiff without argu- 
 ment in the Court below. The plaintiff in error assigned the general 
 errors. 
 
 Barnewall for the plaintiff in error, argued that there were no words 
 in this case, for which, if spoken, the action would bo maintainable, 
 and he denied that there was any solid ground, either in authority or 
 principle, for the distinction supposed to have prevailed in some cases, 
 that certain words are actionable when written, which are not action- 
 able when spoken. He contended that all actionable words were re- 
 ducible to three classes: (1) Where they impute a punishable crime; 
 (2) where they impute an infectious disorder ; (3) where they tend to 
 injure a person in his office, trade, or profession, or tend to his dis- 
 herison, or produce special pecuniary damages. 1 Ro. Ab. Action 
 sur case pur parols, passim ; Co. Dig. Action upon the Case for 
 Defamation, passim. And these words do not come within either of 
 those classes. Neither of those books recognize the distinction be- 
 tween written and unwritten slander. All the older cases treat them 
 on the same footing. * * * 'phe reason assigned, that the print- 
 ing or writing indicated a greater degree of malice than mere speak- 
 ing, is a bad one ; for it is not the object of an action at law to punish 
 moral turpitude, but to compensate a civil injury: the compensation 
 must be proportionate to the measure of the damage sustained ; but it 
 cannot be said that the publication of written slander is in all cases 
 attended with a greater damage than spoken slander, for if a defend- 
 ant speaks words to a hundred persons assembled, he disseminates 
 the slander and increases the damage an hundred fold, as much as if 
 he only wrote it in a letter to one.^* 
 
 Mansfield, C. J. * * * The words, if merely spoken would 
 not be of themselves sufficient to support an action. But the question 
 now is, whether an action will lie for these words so written, not- 
 withstanding that such an action would not lie for them if spoken; 
 and I am very sorry it was not discussed in the Court of King's Bench, 
 that we might have had the opinion of all the twelve Judges on the 
 point, whether there be any distinction as to the right of action, be- 
 tween written and parol scandal ; for myself, after having heard it 
 extremely well argued, and especially, in this case by Mr. Barnewall, 
 I cannot, upon principle, make any difference between words written 
 and words spoken, as to the right which arises on them of bringing an 
 action. 
 
 For the plaintiff in error it has been truly urged, that in the old 
 books and abridgments no distinction is taken between words written 
 
 23 The statement of the case has been abridged. Part of Barnewall's 
 argument, all of Dampier's argument, and part of Chief Justice MaiLsfield's 
 opinion are omitted.
 
 588 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 and words spoken. But the distinction has been made between writ- 
 ten and spoken slander as far back as Charles the Second's time, and 
 the difference has been recognized by the Courts for at least a century 
 back. It does not appear to me that the rights of parties to a good 
 character are insufficiently defended by the criminal remedies which 
 the law gives, and the law gives a very ample field for retribution by 
 action for words spoken in the cases of special damage, of words 
 spoken of a man in his trade or profession, of a man in office, of a 
 magistrate or officer; for all these an action lies. But for mere gen- 
 eral abuse spoken, no action lies. In the arguments both of the judges 
 and counsel, in almost all the cases in which the question has been, 
 whether what is contained in writing is the subject of an action or not, 
 it has been considered, whether the words, if spoken, would maintain 
 an action. It is curious that they have also adverted to the question, 
 whether it tends to produce a breach of the peace : but that is wholly 
 irrelevant, and is no ground for recovering damages. So it has been 
 argued that writing shews more deliberate malignity; but the same 
 answer suffices, that the action is not maintainable upon the ground of 
 the malignity, but for the damage sustained. So, it is argued that 
 written scandal is more generally diffused than words spoken, and is 
 therefore actionable, but an assertion made in a public place, as upon 
 the Royal Exchange, concerning a merchant in London, may be much 
 more extensively diffused than a few printed papers dispersed, or a 
 private letter : it is true that a newspaper may be very generally read, 
 but that is all casual. 
 
 These are the arguments which prevail on my mind to repudiate 
 the distinction between written and spoken scandal ; but that distinc- 
 tion has been established by some of the greatest names known to the 
 law. Lord Hardwicke, Hale, I believe, Holt, C. J., and others. Lord 
 Hardwicke, C. J., especially has laid it down that an action for libel 
 may be brought on words written, when the words, if spoken, would 
 not sustain it. Co. Dig. tit. Libel, referring to the case in Fitzg. 122, 
 253, says there is a distinction between written and spoken scandal, 
 by his putting it down there as he does, as being the law, without mak- 
 ing any query or doubt upon it, we are led to suppose that he was of 
 the same opinion. I do not now recapitulate the cases, but we cannot, 
 in opposition to them, venture to lay down at this day that no action 
 can be maintained for any words written, for which an action could 
 not be maintained if they were spoken : upon these grounds we think 
 the judgment of the Court of King's Bench must be affirmed. 
 
 The purpose of this action is to recover a compensation for some 
 damage supposed to be sustained by the plaintiff by reason of the libel. 
 The tendency of the libel to provoke a breach of the peace, or the de- 
 gree of malignity which actuates the writer, has nothing to do with 
 the question. If the matter were for the first time to be decided at 
 this day, I should have no hesitation in saying, that no action could be
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 589 
 
 maintained for written scandal which could not be maintained for 
 the words if they had been spoken.-* 
 Judgment affirmed. 
 
 TRIGGS V. SUN PRINTING & PUBLISHING ASS'N. 
 
 (Court of Appeals of New York, 1904. 179 N. Y. 144, 71 N. E. 739, 66 L. R. A. 
 612, 103 Am. St. Rep. 841, 1 Ann. Cas. 326.) 
 
 Appeal taken in pursuance of leave granted by the Appellate Di- 
 vision of the Supreme Court, which certified that a question of law 
 had arisen which, in its opinion, ought to be reviewed by the Court 
 of Appeals. This question was stated as follows : Does the com- 
 plaint state facts sufficient to constitute a cause of action? 
 
 The complaint, without alleging special damage, set forth three 
 articles which had been published in the defendant's newspaper, al- 
 leged that the plaintiff was and for seven years had been engaged in 
 teaching in the Department of English at the University of Chicago, 
 and in writing on subjects connected with English literature, and 
 prayed judgment in damages for a libel. 
 
 The character of these articles is indicated in the following ex- 
 tract : 
 
 "We cannot boast of having discovered Triggs, for he was born great, 
 discovered himself earlj', and has a just appreciation of the value of this 
 discovery. But in our humble way we have helped commvmicate him to 
 the world, assisted in his effusion and diffusion, and beckoned reverent 
 millions to his shrine. We have joyed to see him perform three heroic 
 labors, viz.: 
 
 "1. 'Knock out' old Whittier and Longfellow. 
 
 "2. 'Do up' the hymn writers. 
 
 "3. Name his baby at the end of a year of solemn consultation. 
 
 "But these achievements are only the bright beginning of a long course of 
 halcyon and vociferous proceedings. As yet, Prof. Triggs is but in the 
 
 2 4 "It is not easy to perceive why any distinction should be made between 
 written and oral slander, but the case referred to, Thorley v. Lord Kerry, 
 has established it too firmly to be shaken." Best, C. J., in Archbishop of 
 Tuam V. Robeson (1S28) 5 Bing. 17, 21, 30 R. R. 530, 533. 
 
 "The civil doctrine of libel was first announced by Lord Chief Baron 
 Hale in King v. Lake in the Exchequer, in 1670, Hardres, 470. There are 
 a few earlier cases in which the defamation was in writing, but on no 
 occasion was this regarded as a title to a remedy if the matter written did 
 not come within recognized exceptions. King was a barrister who claimed 
 to have been damnified in his good name and credit and profession by reason 
 of the fact that Sir Edward Lake had written of a petition to Parliament 
 drawn up by King that it was stuffed with illegal assertions, ineptitudes 
 and imperfections, and clogged with gross ignorances, absurdities, and 
 solecisms. Hale held that 'although such general words spoken once without 
 writing or publishing them would not be actionable, yet here, they being 
 writ and published, which contains more malice than if they had been 
 once spoken, they are actionable.' * * * The matter may be said to have 
 been finally determined by the judgment of the Exchequer Chamber in the 
 case of Thorley v. Lord Kerry, in 1812, 4 Taunton, 355." Van Vechten Veeder, 
 "History of the Law of Defamation," 3 Col. Law Rev. 569, 3 liCgal Essays, 
 471-473.
 
 590 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 bud. He came near blossoming the other day, and the English drama would 
 have blossomed with him. A firm wliieh is to T)roduce 'Rxjmeo and Juliet' 
 offered him !f700 a week to be the 'advance agent' of the show and to 
 'work up enthusiasm by lecturing.' Prof. Triggs was compelled to decline 
 the offer, but the terms of his refusal show that it is not absohite, and 
 that 'some day,' as the melodramas cry, he will illuminate Shakespeare, 
 dramatic literature, and the public mind. * * * if tliese plays are to 
 be put upon the stage, they must be rewritten; and Prof. Triggs is the 
 destined rewriter, amender, and reviser. The sapless, old-fashioned rhetoric 
 must be cut down. The fresh and natural contemporary tongue, pure 
 Triggsian, must be substituted. For example, who can read with i^atieuce 
 these tinsel lines? 
 
 " 'Madam, an hour before the worshipped sun 
 'Peered forth the golden window of the east, 
 'A troubled mind drave me to walk abroad.' 
 "This must be translated into Triggsian, somewhat like this: 
 " 'Say, lady, an hour before sunup I was feeling wormy, and took a walk 
 around the block." 
 "Here is more Shakesperian rubbish: 
 " 'O, she doth teach the torches to burn bright! 
 'Her beauty hangs upon the cheek of night, 
 'As a rich jewel in an Ethiop's ear.' 
 "How much more forcible in clear concise Triggsian: 
 
 "'Say, she's a peach! a bird!' 
 "Hear 'Pop' Capulet drivel: 
 " 'Go to, go to, 
 'You are a saucy boy.' 
 "In the Oscar dialect this is this: 
 
 " 'Come off, kid ! You're too fresh.' 
 "Compare the dropsical hifalutin: 
 
 " 'Night's candles are burnt out, and jocund day, 
 'Stands tiptoe on the misty mountain's tops.' 
 — with the time-saving Triggsian version: 
 " 'I hear the milkman.' " 
 
 To the complaint the defendant demurred upon the ground that it 
 did not state facts sufficient to constitute a cause of action. The 
 issue of law thus raised was tried at the Special Term, and the court 
 found (1) that the complaint states facts sufficient to constitute a 
 cause of action ; and (2) that the statements complained of are libel- 
 ous per se. It thereupon directed an interlocutory judgment over- 
 ruling the demurrer, with costs, with leave to the defendant to answer 
 within 20 days upon payment of costs, and, in default, that final 
 judgment should be entered. The defendant appealed from such in- 
 terlocutory judgment to the Appellate Division, where it was revers- 
 ed, and the demurrer of the defendant sustained, with costs, with 
 leave to the plaintiff to amend his complaint. Thereupon he appealed 
 from the order of the Appellate Division by permission of that court.^^ 
 
 Martin, J. (after stating the facts). This action was for libel. The 
 defendant demurred to the complaint upon the ground that it did not 
 state facts sufficient to constitute a cause of action. By interposing 
 a demurrer upon that ground, all the facts alleged in the complaint, 
 
 2 The statement of the case Is abridged.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 501 
 
 or which can by reasonable and fair intendment be implied from the 
 allegations thereof, are deemed admitted. Marie v. Garrison, 83 N. 
 Y. 14; Sanders v. Soutter, 126 N. Y. 193, 195, 27 N. E. 263; Ahrens 
 v. Jones, 169 N. Y. 555, 559, 62 N. E. 666, 88 Am. St. Rep. 620. 
 A written or printed statement or article published of or concern- 
 ing another which is false, and tends to injure his reputation, and 
 thereby expose him to public hatred, contempt, scorn, obloquy, or 
 shame, is libelous per se. Riggs v. Denniston, 3 Johns. Cas. 198, 2 
 Am. Dec. 145; Steele v. Southwick, 9 Johns. 214; Van Ness v. Ham- 
 ilton, 19 Johns. 349, 367; Root v. King, 7 Cow. 613; Cooper v. 
 Greeley, 1 Denio, 347; Shelby v. Sun Printing & P. Ass'n, 38 Hun, 
 474, affirmed 109 N. Y. 611, 15 N. E. 895; IMcFadden v. Morning 
 Journal Ass'n, 28 App. Div. 508, 51 N. Y. Supp. 275; Bergmann v. 
 Jones, 94 N. Y. 51, 64; ]\loore v. Francis, 121 N. Y. 199, 23 N. 
 E. 1127, 8 L. R. A. 214, 18 Am. St. Rep. 810; Morey v. Morning 
 Journal Ass'n, 123 N. Y. 207, 25 N. E. 161, 9 L. R. A. 621, 20 Am. 
 St. Rep. 730; Mattice v. Wilcox, 147 N. Y. 624, 42 N. E. 270; 
 Gates V. N. Y. Recorder Co., 155 N. Y. 228, 49 N. E. 769; Morrison 
 V. Smith, 177 X. Y. 366, 69 N. E. 725.^-^ 
 
 When the articles published by the defendant of and concerning the 
 plaintiff are read in the light of the foregoing principles of law, it 
 becomes obvious, we think, that they were libelous per se. It seems 
 impossible for any fair-minded person to read the articles alleged in 
 the complaint without reaching the conclusion that they were not only 
 intended, but necessarily calculated, to injure the plaintiff's reputation, 
 and to expose him to public contempt, ridicule, or shame. * * * -' 
 
 The order of the Appellate Division should be reversed, the judg- 
 ment of the Special Term affirmed, and the question certified answer- 
 ed in the affirmative. 
 
 PECK V. TRIBUNE CO. 
 
 (Circuit Court of Appeals, Seventh Circuit, 1907. 83 C. C. A. 202, 154 Fed. 3.30. 
 
 Supreme Court of United States, 1909. 214 U. S. 185, 29 Sup. Ct. 554, 
 
 53 L. Ed. 9G0, 16 Ann. Cas. 1075.) 
 
 In Error to the Circuit Court of the United States for the Eastern 
 Division of the Northern District of Illinois. 
 
 The case in the court below was an action at law by plaintiff in 
 error, a citizen of Iowa, against defendant in error, a corporation or- 
 ganized under the laws of Illinois, to recover damages for the print- 
 mg in its newspaper by defendant in error of the advertisement given 
 on the following page. 
 
 2 6 See, also, Holm v. Holm (1911) 140 App. Div. 75, 1.30 N. Y. Supp. 670, 
 and cases in "Libel and Slander," Cent. Dig. §§ 1-9 ; Dec. Dig. § 16. 
 -~ For the remainder of the opinion, see infra, under Fair Comment
 
 593 
 
 TORTS THROUGH ACTS OP ABSOLUTE LIABILITY 
 
 (Part 1 
 
 Nurse and Patients 
 
 Prai se Duffy's 
 
 Mr*. A. Schuman, Ono of Chicago's Most Capable and GxperlenceJ 
 Nurses, Pays an Eloquent Tribute to the Great Invigor- 
 ating, Life-Qiving and Curative Properties of 
 DUFFY'S PURE MALT WlilSKEY. 
 
 I " For that weak, run-down and gone feeling, it is tbe best (OOlC tod lUn* 
 uUnt in tlie world." 
 
 MRS. A. SCHUMAN. 
 "After y«ftr« of constant use of your Pure Malt WhUfcay both by tnV*elf lifi* •* 
 Riven to patienla in my capacity as nurso. I have no hesitation In recommenflihg u,a* 
 the very best tonic and stimulant for nil weak and run down conditions. 'At Unjt 
 twenty-rivo families use It in my own neighborhood, and when I go out nursing^ patient* 
 ask me what to take for that gone feeling.' and once that Duffy's U within tbelr tcaob 
 It Is used always." — Sin. A. Soliamaa, 1678 Mozart St, Chloago, 111. ^^ 
 
 Duffy's Pure Malt Whiskey 
 
 • For more than fifty y«ars Duffy's Purs MalfWliIskcy haa been prescribed by diO.' 
 tors and used In over two thousand leading: hospitals as the purest and most powt»rful 
 tonlc-stlmulant. Invlgorator and heaittj-bulldcr known to the medical science. It Is 
 endorsed by the clergy and profesiilonal nurses and recommended by all schools of 
 medicine as. a positive cure for pneumonia, consumption, grip, dyspepsia, Indlgeutlon, 
 nervous prostration, all diseases of the throat and lungs, and every form of stomach 
 troubler i{ialar!a. chills, fever, and all run-down, weakened, diseased conditions of th» 
 body, brain, mind and muscle. It Is a heart tonic, blood purifier and promoter of hea".:i 
 and long llfo: makes the old hearty apd young, and keeps the young vigorous ani 
 strong. Duffy's Pure Walt Whiskey contains no fusel oil, «nd is the onlT whlsltcy 
 recognized by the government as medicine. * ^ 
 
 Tliere is but ono Duffy's Pure Malt 
 Whiskey. Insist on having the genuine 
 and refuse cheap substitutes and imi- 
 tatlons offered by unscrupulous dealers, 
 which are placed on tho market for 
 profit only and which are positively 
 harmful to both body and brain. Look for 
 tho trade-mark, the "Old Chemist," on 
 the label, and be sure the seal on the 
 bottle is unbroken. Sold in sealed bot« 
 ties only; nevf r In bulk. 
 
 All reliable druggists and grocer*, or direct. 11.00 a bottle. 
 booklet free. Duffy's Malt Whjikey Co., Rochester, N, T. 
 
 Advice and medlen
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 593 
 
 The first two counts of the declaration proceeded as for Ubel, and 
 alleged that the plaintiff was not Mrs. Schuman, was not a nurse, and 
 was a total abstainer from whisky and all spirituous liquors. There 
 was also a count for publishing the plaintiff's likeness without leave. 
 The defendant pleaded not guilty. At the trial, subject to exceptions, 
 the judge excluded the plaintiff's testimony in support of her allega- 
 tions just stated, and directed a verdict for the defendant.-® 
 
 In the Circuit Court of Appeals. 
 
 Grosscup, Circuit Judge. The plaintiff in error indisputably has 
 suffered a wrong, the gist of which is that by the publication of her 
 picture in connection with a patent medicine advertisement, people 
 who recognize the portrait will be led to think that she has loaned her 
 face, and perhaps her name, in a way that a self-respecting person 
 would not have consented to. Were the case under review an appli- 
 cation for an injunction to restrain future publications, or were it 
 an action at law against the parties consciously responsible for the 
 make-up of the advertisement, a question wholly different from the 
 one presented by this record would be involved. 
 
 The first question presented here is, whether the plaintiff in error 
 made out a case of libel in her declaration and proof — the gravamen 
 of the action, as set forth in the declaration, being, that whereas plain- 
 tiff in error was not a nurse, and did not either for herself, or as 
 imrse, use Duffy's Malt Whiskej'- as a tonic, the advertisement was 
 calculated to convey the impression that she was a nurse, and that 
 both for herself, and as nurse, she had used Duffy's Malt Whiskey 
 as a tonic. This being the whole of the libel charged, and there being- 
 no averment of special damages, the question is : Is such a publica- 
 tion libelous per se ? We think not. It is not, in our opinion, libelous, 
 per se, to say of a person that she is a nurse, or that she has used 
 as a tonic Duffy's Pure Malt Whiskey, or has recommended its use. 
 Nor do we think that these things said of a person, independently of 
 other averments or circumstances, make out a case to go to a jury 
 for determination. Doubtless there are people, by whom the use 
 of whiskey as a tonic is considered wrong; and there may be people 
 among whom to be a nurse, is considered something less desirable 
 than not to be a nurse. But the world has not yet arrived at 
 a concensus of opinion on these matters, that to say these things 
 of a person is, independently of all other considerations, to libel 
 him. * * * ^® 
 
 2 8 The stitement of the case is abridgecl, and the opinions of Judge 
 Grosscup In the Circuit Court of Appeals and of Mr. Justice Holmes in the 
 Supreme Court are given only so far as tliey bear upon tlie one point. 
 
 The third count, framed on the theory of a right of privacy, was held 
 defective, there being no showing of substantial damage. 
 
 Hepb. Torts — 38
 
 594 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 In the Supreme Court of the United States. 
 
 On a Writ of Certiorari to the Circuit Court of Appeals for the 
 Seventh Circuit. 
 
 Mr. Justice Holmes deHvered the opinion of the Court. * * * 
 The question then is whether the pubHcation was a Hbel. It was 
 held by the Circuit Court of Appeals not to be, or at most to entitle 
 the plaintiff only to nominal damages, no special damage being al- 
 leged. It was pointed out that there was no general concensus of 
 opinion that to drink whisky is wrong, or that to be a nurse is dis- 
 creditable. It might have been added that very possibly giving a cer- 
 tificate and the use of one's portrait in aid of an advertisement would 
 be regarded with irony, or a stronger feeling, only by a few. But it 
 appears to us that such inquiries are beside the point. It may be 
 that the action for libel is of little use, but, while it is maintained, 
 it should be governed by the general principles of tort. If the adver- 
 tisement obviously would hurt the plaintiff in the estimation of an 
 important and respectable part of the community, liability is not a 
 question of a majority vote. 
 
 We know of no decision in which this matter is discussed upon prin- 
 ciple. But obviously an unprivileged falsehood need not entail uni- 
 versal hatred to constitute a cause of action. No falsehood is thought 
 about or even known by all the world. No conduct is hated by all. 
 That it will be known by a large number, and will lead an appreciable 
 fraction of that number to regard the plaintiff" with contempt, is 
 enough to do her practical harm. Thus, if a doctor were represented 
 as advertising, the fact that it would affect his standing with others 
 of his profession might make the representation actionable, although 
 advertising is not reputed dishonest, and even seems to be regarded 
 by many with pride. See Martin v. The Picayune (Martin v. Nichol- 
 son Pub. Co.) 115 La. 979, 4 L. R. A. (N. S.) 861, 40 So. 376. It 
 seems to us impossible to say that the obvious tendency of what is 
 imputed to the plaintiff by this advertisement is not seriously to hurt 
 her standing with a considerable and respectable class in the com- 
 munity."® Therefore it was the plaintiff's right to prove her case 
 and go to the jury, and the defendant would have got all that it could 
 ask if it had been permitted to persuade them, if it could, to take 
 
 20 Compare D'Altomonte v. New York Herald Co. (1913) 154 App. Div. 453. 
 139 X. Y. Supp. 200: (A sensational article, under a half jiaffe illustration 
 and the heading, "Stopping a Congo cannibal Feast," was published in the 
 defendant's newspaper. In a sul)heading it named the plaiutirt", a distinguish- 
 ed traveller and writer, as its author, gave a short biographical sketch of 
 him, and represented him as describing himself in the act of rescuing a 
 young and courageous American "just as he was about to be killed and 
 eaten by savages." The article was a fabrication by some person unknown 
 1o plaintiff. It was "not avowcilly written in Jest with a view to amusing 
 the readers of the newspaper," but was apparently written "in a perfectly 
 serious vein.")
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 595 
 
 a contrary view. Culmer v. Canby, 41 C. C. A. 302, 101 Fed. 195, 
 197 ; Twombly v. Monroe, 136 ]\Iass. 464, 469. See Gates v. New 
 York Recorder Co., 155 N. Y. 228, 49 N. E. 769. 
 
 It is unnecessary to consider the question whether the publication 
 of the plaintiff's Hkeness was a tort per se. It is enough for the pres- 
 ent case that the law should at least be prompt to recognize the in- 
 juries that may arise from an unauthorized use in connection with 
 other facts, even if more subtlety is needed to state the wrong than 
 is needed here. In this instance we feel no doubt. 
 
 Judgment reversed. 
 
 (B) Elements of the Prima Facie Cause in Defamation 
 
 (a) Nature of the Charge, 
 (aa) Defamatory 
 KELLY V. PARTINGTON. 
 
 (Court of King's Bench, 1833. 5 Barn. & Adol. 645, 110 Reprint. 929.-) 
 
 The declaration in its second count stated that the defendant, 
 falsely and maliciously spoke and published of and concerning the 
 plaintiff as a shopwoman and servant, these defamatory words : "She 
 (meaning the plaintiff) secreted Is. 6d. under the till ; stating, these 
 are not times to be robbed." The declaration concluded with an 
 allegation of special damage, that one Stenning, by reason of the 
 speaking of the words, refused to take the plaintiff into his service. 
 The jury found a general verdict for the plaintiff'. 
 
 Sir James Scarlett obtained a rule nisi for arresting the judgment, 
 on the ground that the words in the second count, taken in their 
 grammatical sense, were not disparaging to the plaintiff; and there- 
 fore that no special damage could result from them. 
 
 The Solicitor-General shewed cause. The words in the second 
 count (as the Court has already decided) are not actionable without 
 special damage. The question is, whether they are actionable even 
 with special damage. (Den man, C. J. It is contended that the words 
 import that the plaintiff secreted her own money from excessive 
 caution.) The words may not be actionable of themselves, but such 
 words, if a jury find them to have been spoken with a malicious in- 
 tent to injure the plaintiff, as charged in this declaration, are ac- 
 tionable by reason of special damage. Comyns, C. B., in his Digest, 
 tit. Action on the Case for Defamation, D, 30, after having stated, 
 under the previous heads, many instances of words actionable in 
 themselves, says, that an action may be maintained "for any words 
 by which the party has a special damage." Even, therefore, if the 
 words in question, bore the sense ascribed to them, yet being spoken
 
 596 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 falsely and maliciously with intent to injure, and followed by special 
 damage, they are actionable. And these were in fact not innocent, 
 but disparaging words, or at all events, equivocal ; and it was for 
 the jury to find in what sense they were used. The word "secreted" 
 is used in a bad sense, it usually imputes some bad motive. If the 
 words "stating, these are not times to be robbed," apply to the plain- 
 tiff, they are ambiguous, they may have been used by her as a pre- 
 tence for secreting money belonging to another, and that question 
 was for the jury. (LittlEdalE, J. Suppose a man had a relation 
 of a penurious disposition, and a third person, knowing that it would 
 injure him in the opinion of that relation, tells the latter a gen- 
 erous act which the first has done, by which he induces the relation 
 not to leave him money, would that be actionable?) If the words 
 were spoken falsely with intent to injure, they would be actionable. 
 At all events, if the words were not laudatory but would bear a bad 
 sense, and a jury might find (as they did here) that they were used 
 in that sense, and an injury is stated to have ensued in consequence, 
 they are actionable.^" 
 
 LiTTlEdalE, J. I cannot agree that words laudatory of a party's 
 conduct would be the subject of an action if they were followed by 
 special damage. They must be defamatory or injurious in their 
 nature. In Comyn's Dig., tit. Action on the Case for Defamation 
 (D), 30, it is said generally, that any words are actionable by which 
 the party has a special damage, but all' the examples given in illus- 
 tration of that rule are of words defamatory in themselves, but not 
 actionable, because they do not subject the party to a temporal pun- 
 ishment. In all the instances put, the words are injurious to the 
 reputation of the person of whom they are spoken. The words here 
 are extraordinary; if they had stood merely, "She secreted Is. 6d. 
 under the till," they might perhaps have been actionable,^ ^ but coupled 
 with the subsequent words, which appear only to import great cau- 
 tion on the part of the plaintiff, I think we cannot say that they 
 impute anything injurious to the plaintift".^^ 
 
 Rule absolute. 
 
 3 The statement of facts has been abridged, and the opinions of Denman, 
 C. J., and Taunton, J., are omitted. 
 
 31 It api>ear.s that the words in the second count, "stating these are not 
 times to be robbed," were in fact part of the expressions supposed to have 
 been used by the defendant himself, but liad by mistalie been inserted in 
 this count as if spoken by the plaintiff. 
 
 32 Whether words which are not dofniiiafory may be actionable as a 
 tort of some other description, see infra, I'ait III. 
 
 On the extension of Slander and Libel to include nondefamatory state- 
 ments affecting the plaintiff in his business, see infra. 
 
 Compare: Knight v. I'.hukford (18S4) 14 D. C. 177, 51 Am. Rep. 772: (D. 
 falsely stated to S. that P., a clerk in the employ of the government, had 
 spoken disrespectfully of his chief, tliis report came to the knowledge of 
 the latter, and he discharged P.) 
 
 Loml)ard v. Lennox (1S91) 155 IMass. 70, 28 N. E. 1125, 31 Am. St. Rep. 
 52S: (P. was in the employ of S., a manufacturer, as an apprentice. D., also
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 597 
 
 ARNE V. JOHNSON. 
 (Court of King's Bench, 1712. 10 Mod. Ill, 88 Reprint, 651.) 
 
 An action was brought for these words spoken of an upholster : 
 
 "You are a .soldier, I saw you in your red coat doing duty : your word 
 is not to be taken." 
 
 The words were ruled to be actionable ; because it is known to be 
 a common practice for tradesmen to protect themselves against their 
 creditors by a counterfeit listing; nor can it be worth a tradesman's • 
 while for any other purpose, but to defraud his creditors, by subjecting 
 himself to the power of an officer. A soldier has by Act of Parlia- 
 ment, which the Court must take notice of, the privilege of not being 
 held to special bail; and those words, "your word is not to be taken," 
 are plainly an inference from the former. 
 
 BOYDELL V. JONES. 
 
 (Court of Exchequer, 1838. 4 Mees. & W. 446, 51 R. R. 676.) 
 
 Libel. The declaration stated, that whereas the plaintiff, for a long 
 time before and at the time of the committing of the grievances by the 
 defendant as hereinafter mentioned, resided and still does reside in 
 Devonshire Street, Queen Square, London, and had been and was and 
 still is an attorney of the Court of our Lady the Queen before the 
 Queen herself, and had used, exercised and carried on the profession / 
 and business of attorney-at-law, with great credit and reputation, and 
 whereas before the time of the committing of the grievances by the 
 defendant as hereinafter mentioned, certain orders had been made by 
 one of the Judges of the said Court of our Lady the Queen before the 
 Queen herself, for setting aside with costs certain proceedings in a 
 certain action then pending in the said last mentioned court, in which 
 action the now defendant was the attorney of the then plaintiff, and 
 the now plaintiff was the attorney of the then defendant ; and before 
 the time of the committing of the grievances by the now defendant as 
 hereinafter mentioned, the said costs had been and were ascertained 
 and taxed by one of the Masters of the said Court; and whereas 
 before and at the time of the committing of the grievances by the now 
 defendant as hereinafter mentioned, sharp practice in the profession 
 of an attorney was and is, and was and is considered to be and to im- 
 port, disreputable practice, and practice discreditable to the attorney 
 
 a manufacturer, believing P. to be an apprentice of his. so informed S., 
 who thereupon discharged P. In fact, P. had been an apprentice of D., 
 but was not .so at the time.) 
 See, also, 25 Cyc. 353-354.
 
 598 TORTS THROUGH ACTS OP ABSOLUTE LIABILITY (Part 1 
 
 adopting or pursuing the same ; whereof the now defendant then had 
 notice : yet the now defendant, well knowing the premises, but contriv- 
 ing and falsely and maliciously intending to injure the now plaintiff 
 in his good name, fame, and credit, and also in his said profession and 
 business of an attorney-at-law, and to cause it to be suspected and be- 
 lieved that the now plaintiff had been guilty of such sharp practice as 
 aforesaid in the said action, and that he the now plaintiff had been 
 reprimanded by the said Master for such practice as aforesaid in the 
 said action, &c., heretofore, to wit, on &c., wrongfully, maliciously, 
 and injuriously composed and published a certain ironical, false, 
 scandalous, malicious, and defamatory libel of and concerning the 
 now plaintiff', and of and concerning him in the way of and in respect 
 of his said profession and business of attorney-at-law, and of and 
 concerning the said action, and of and concerning the practice of the 
 now plaintiff as such attorney with respect to the aforesaid orders, 
 then wrongfully supposed by the now defendant to be such sharp prac- 
 tice as aforesaid, and of and concerning the said Master, containing 
 therein the ironical, false, &c., matter following, of and concerning the 
 now plaintiff, &c. &c., (that is to say) : 
 
 "An honest lawyer (thereby meaning the now plaintiff, and intending to 
 represent that he was not an honest lawyer), a person by the name of 
 Charles Boydell (meaning the now plaintiff), an attorney in Devonshire 
 Street, Queen Square, was severely reprimanded by one of the Masters 
 of the Queen's Bench (meaning the aforesaid Master) the other day, for 
 what is called sharp practice in his profession" (meaning and alluding to 
 the now plaintiff's practice with respect to the aforesaid orders in the 
 said action, and that such practice had been and was sharp practice as 
 aforesaid). By means of which, &c. 
 
 The questions argued were (inter alia) whether the declaration 
 showed a good cause of action. Upon this question, after hearing 
 argument for the defendant, judgment was given as follows: 
 
 ParkU, B. Suppose he had ceased to practice as an attorney — this 
 is not an action for words but for a libel. This is a libel on him as 
 a man. Suppose he had retired from his profession, and taken his 
 name off the roll, to write of him that whilst he was an attorney, he 
 had been guilty of sharp practice, would be a libel upon him. With 
 respect to the other point, I think it was a sufficient prefatory aver- 
 ment, that the liliel was ironical. * * * 
 
 The rest of the Court concurred. 
 
 Judgment for the plaintiff.^^ 
 
 88 The statement of facts is abridged and part of the opinion is omitted.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 599 
 
 DOOLING V. BUDGET PUB. CO. 
 
 (Supreme Judicial Court of Massacliusetts, 1887. 144 Mass. 258, 10 N. E. 809, 
 
 59 Am. Rep. S3.) 
 
 Tort, for an alleged libel, contained in the following words : 
 
 "Probably never in the history of the Ancient and Honorable Artillery 
 Company was a more unsatisfactoiy dinner served than that of Monday 
 hist. One would suppose, from the elaborate bill of fare, that a sumptuous 
 dinner would be furnished by the caterer, Dooling ; but instead, a wretched 
 dinner was served, and in such a way that even hungry barbarians might 
 justly object. The cigars were simply vile, and the wines not much better." 
 
 At the trial in the Superior Court, before Pitman, J., the publica- 
 tion of the words by the defendant was admitted. 
 
 The plaintiff's counsel, in opening the case to the jury, stated that 
 the plaintiff' was a caterer in the city of Boston with a very large busi- 
 ness, and acted as caterer upon the occasion referred to. Upon the 
 statement of the plaintiff's counsel that he should offer no evidence 
 of special damage, the judge ruled, without reference to any question 
 of privilege that might be involved in the case, that the words set forth 
 were not actionable per se, and that the plaintiff could not maintain 
 his action without proof of special damage ; and, the plaintiff's counsel 
 still stating that he should off'er no evidence of special damage, directed 
 a verdict for the defendant; and reported the case for the determina- 
 tion of this court. 
 
 If the ruling was correct, judgment was to be entered on the verdict ; 
 otherwise, the case to stand for a new trial. 
 
 C. AlIvEn, J. The question is, whether the language used imports 
 any personal reflection upon the plaintiff in the conduct of his busi- 
 ness, or whether it is merely in disparagement of the dinner which he 
 provided. Words relating merely tO' the quality of articles made, pro- 
 duced, furnished, or sold by a person, though false and malicious, are 
 not actionable without special damage. For example, the condemna- 
 tion of books, paintings, and other works of art, music, architecture, 
 and generally of the product of one's labor, skill, or genius, may be 
 unsparing, but it is not actionable without the averment and proof of 
 special damage, unless it goes further, and attacks the individual. 
 Gott V. Pulsifer, 122 Mass. 235, 23 Am. Rep. 322 ; Swan v. Tappan, 5 
 Cush. 104; Tobias v. Harland, 4 Wend. (N. Y.) 537; Western Coun- 
 ties Manure Co. v. Lawes Chemical Manure Co., L. R. 9 Ex. 218; 
 Young V. Macrae, 3 B. & S. 264; Ingram v. Lawson, 6 Bing. N. C. 
 212. Disparagement of property may involve an imputation on per- 
 sonal character or conduct, and the question may be nice, in a particu- 
 lar case, whether or not the words extend so far as to be libellous, as 
 in Bignell v. Buzzard, 3 H. & N. 217. 
 
 The old case of Fen v. Dixe, W. Jones, 444, is much in point. The 
 plaintiff there was a brewer, and the defendant spoke of his beer in 
 
 ./
 
 600 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 terms of disparagement at least as strong- as those used by the pres- 
 ent defendant in respect of the plaintiff's dinner, wines, and cigars ; 
 but the action failed for want of proof of special damage. 
 
 In Evans v. Harlow, 5 Q. B. 624, 631, Lord Denman, C. J., said: 
 "A tradesman offering goods for sale exposes himself to obser\'ations 
 of this kind; and it is not by averring them to be 'false, scandalous, 
 malicious, and defamatory,' that the plaintiff can found a charge of 
 libel upon them." 
 
 In the present case there was no libel on the plaintiff, in the way of 
 his business. Though the language used was somewhat strong, it 
 amounts only to a condemnation of the dinner and its accompaniments. 
 No lack of good faith, no violation of agreement, no promise that the 
 dinner should be of a particular quality, no habit of providing dinners 
 which the plaintiff knew to be bad, is charged, nor even an excess of 
 price beyond what the dinner was worth ; but the charge was, in eft'ect, 
 simply that the plaintiff, being a caterer, on a single occasion, provided 
 a very poor dinner, vile cigars, and bad wines. Such a charge is 
 not actionable, without proof of special damage.^* 
 
 Judgment on the verdict. 
 
 34 Accord : Tobias v. Harland (1S30) 4 Weiid. (N. Y.) 537 : (D. said of P., 
 a watch maker: "His watches are bad.") Kennedy v. Press Publishing Co. 
 (1886) 41 Hun (N. Y.) 422 : (P. was the proprietor of a Coney Island saloon. 
 D.'s newspaper published an article which charged that Coney Island saloons 
 were the resort of improper characters.) Victor Safe & Lock Co. v. Deright 
 (lUUU) 147 1^'ed. 211, 77 C. G. A. 437, 8 Ann. Cas. 809, and note: (The plaintiff 
 was a corporation engaged in making the "Victor" safe. The defendant, 
 engaged in selling other safes, wrote to a purchnser of a "Victor" safe that 
 "the Victor plate safe is very cheaply constructed and can be easily bur- 
 glarized ; the Victor so-called 'manganese steel safe' is weaker still, and 
 can be opened inside of a vault or any where else in a few moments 
 time.") Dust Sprayer :Mfg. Co. v. Western Fruit Grower (1907) 126 Mo. App. 
 lo9, 103 !S. \V. 566: (D. published a letter in a fruit growers' magazine, 
 stating that he had used P.'s remedy for brown rot on peach trees, and had 
 found it disastrous.) Hopkins Chemical Co. v. Read Drug & Chemical Co. 
 (1914) 124 Md. 210, 92 Atl. 478: (D. stated that a certain tooth paste was 
 "nothing else but grit, was very harmful to the gums, and would take the 
 enamel off your teeth." P. was the sole manufacturer of this tooth paste.) 
 
 Compare the remark of Cullen, J., in Kennedy v. Press Publishing Co. 
 (1886) 41 Hun (N. Y.) 423: "A libel on a thing may constitute a libel on a 
 person. Thus, to say of a brewer that he adultei'ates his beer would be a 
 libel upon him in his trade, not because of the allegatum that the beer 
 was bad, but because the language would import deceit and malpractice 
 on the part of the brewer. It is, therefore, at times dilhcult to determine 
 whether the publication attacks the person or merely the thing, and any 
 apparent conflict in the authorities arises out of this difficulty." And see 
 infra.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 601 
 
 MERLE V. SOCIOLOGICAL RESEARCH FILM 
 CORPORATION. 
 
 (Supreme Court of New York, Appellate Division, First Department, 1915. 
 
 152 N. Y. Supp. S29.) 
 
 The action was against the Sociological Research Film Corporation. 
 To the complaint, setting forth two causes of action, the defendant 
 demurred. The facts appear in the opinion of the court below, by y 
 Lehman, J., which was as follows : 
 
 The plaintiff in Ms complaint attempts to set forth two causes of action, 
 both based upon the production of a moving picture film or play entitled, 
 "The Inside of the White Slave Traffic," in which the producer depicts a 
 facto i-y and building bearing the plaintiff's firm name of August G. Merle 
 & Co. The defendant has demurred to both causes of action. The first 
 cause of action is for libel, and the only allegations which are, in my opinion, 
 possibly material to a personal action for libel as distinguished from an 
 action for libel of the plaintiff's business, are: That tlie plaintiff does 
 business under the fii-m name of August G. Merle & Co., has an excellent 
 name and reputation, and that he employs a large number of hands; that 
 the defendants have produced and exhibited a moving picture film or play 
 called "The Inside of the White Slave Traffic," wherein they purported to 
 portray the life of those engaged or associated in the said white slave traffic, 
 wherever possible showing the ac-tual places where the traffickers operate ; 
 and that in said play they showed the building wherein the plaintiff's business 
 is located, and prominently displayed thereon and as part thereof the 
 plaiutift''s name and his business sign, "August G. Merle & Co., Infants' and 
 Children's Headwear," and also showed a factory purporting to be located 
 in said building and to be plaintiff's said establishment and factory as 
 places where the said cadets and traffickers plied their vicious trade and 
 obtained victims from among the girls employed in said building and es- 
 tablishment, and as places used by said cadets and traffickers as rendezvous 
 between them and the unfortunate victims whom they succeeded in obtaining 
 or procuring in said building and factory; "that the defendants thereby 
 falsely, untruthfully, and maliciously charged, and intended to charge, the 
 plaintiff with being in some way identified or connected with or related to 
 the said white slave traffic or system or w^th said cadets or traffickers, with 
 allowing or permitting the said trafficking in his establishment or in and 
 around the building wherein his place of business was located, either for 
 gain or otherwise, and that in the said building and in the plaintiff's said 
 establishment there was grave and serious danger for the girls and women 
 and for the young men employed therein that they might be approached 
 or enticed or seduced or molested by these cadets or white slave traffickers 
 and induced, corrupted, enticed, or forced into a life of vice, crime, shame, 
 and prostitution, and that in some way the plaintiff had knowledge or notice 
 of this condition of affairs, and that he participated therein, or at least 
 acquiesced in or countenanced the same." 
 
 A suit for libel based upon a moving picture production is a somewliat 
 novel proceeding, but there is no doubt that if the production tends to 
 bring a person into disrepute it may give rise to such an action. The serious 
 question in this case is, however, whether the alleged libel is a libel directed 
 against the plaintiff's business or a libel against himself personally, for 
 concededly the complaint does not contain allegations of si)ecial damage 
 sufficient to state a cause of action if the libel is directed only against his 
 business. The distinction between the two classes of cases is pointed out 
 in the case of Marlin Fire Ins. Co. v. Shields, 171 N. Y. 3&4, 390, 64 N. E. 163, 
 59 L. R. A. .•',10. The rule seems to be that words spoken or written primarily 
 against a man's business cannot give rise to an action for damages without 
 special damage unless they also directly charge the plaintiff with a personal 
 wrong.
 
 602 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 Whether the picture used in this case does charge the plaintiff personally 
 with any wrongdoing must be determined from the description of the 
 picture itself, and, though upou this motion tlie description of tlie picture 
 must be taken as true, the reasonable inferences which can be drawn from 
 that picture cannot be extended Ity innuendo. It seems to me that the only 
 fair inference to be drawn from that picture is that it contains a charge that 
 the plaiutift's place of business is a place where cadets and white slave traf- 
 fickers ply their vicinus trade and obtain victims and is used as a rendezvous 
 between them and their victims, and so far supports at least the innuendo 
 that the plaintiff permits the trallic to proceed upou his premises. It does 
 not, however, charge the plaintifl' with actual knowledge of such traffic. The 
 case therefore seems to me to come directly down to the question : Does a 
 charge that a place of business where many girls are employed is used as a 
 place where the white slave trade may be recruited and as a rendezvous 
 for cadets and their victims reasonably imply such moral wrong against the 
 owner of the place of business as would bring him personally into general 
 disrepute? 
 
 It seems to me quite clear that, even if we may assume that the owner of 
 the place of business is ignorant of such conditions, yet public opinion would 
 hold him in abhorrence for being so careless of the conditions surrounding the 
 place where his women employes work tliat evil men can use the place to en- 
 tice them into vice. Moreover, it would seem that a charge that a business 
 is being carried on in a vicioiis manner might well reasonably imply that 
 the owner of the business is morally responsible therefor. 
 
 The defendant, however, relies upon the case of Kennedy v. Press Publish- 
 ing Co., 41 Ilun. 422, in which it was held that a charge that the plaintiffs 
 saloon was the resort of improper characters, and that the influence of as- 
 sociation had there was bad, was held not to be a libel on the plaintiff per- 
 sonally, and on the case of Bosi v. N. Y. Herald Co., 33 Misc. Rep. G22, 68 
 X. Y. Supp. S98, affirmed on opinion below, 58 App. Div. 619, 68 N. Y. Supp. 
 1134, where a similar construction was given to an article charging that 
 the plaintiff's restaurant was a resort favored by anarchists. Both these 
 cases seem to rest upon the principle that a restaurant or saloon keeper is 
 not personally responsible for the character of his guests, and that therefore 
 the articles affect the plaintiff only in his business ; but, whatever may be 
 the moral responsibility of a saloon or restaurant owner to keep out vicious 
 guests, tlie measure of responsibility resting upon a factory owner, who has 
 complete control of his premises and can restrict visitors there in any way 
 he sees tit, is obviously governed by different considerations. 
 
 It follows that the demurrers to the lirst cause of action are over- 
 ruled. * * * 35 
 
 Per Curiam. Order affirmed, on the opinion of Lehman, J., with 
 leave to defendant to withdraw demurrer and answer on payment of 
 costs. 
 
 MOORE V. FRANCIS et al. 
 
 (Court of Appeals of New York, 1890. 121 N. Y. 199, 23 N. E. 1127, 
 8 L. R. A. 214, 18 Am. St. Rep. 810.) 
 
 The action was for Hbel. There was a verdict for the defendants, 
 with judgment thereon. From a judgment of the General Term of 
 the Supreme Court, affirming the judgment below, and an order deny- 
 ing a motion for a new trial, the plaintiff appealed. 
 
 Andrews, J. The alleged libelous publication which is the subject 
 of this action was contained in the "Troy Times" of September 15, 
 
 85 The second cause of action is omitted. The demurrer to it was sustained.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 603 
 
 1882, in an article written on the occasion of rumors of trouble in 
 the financial condition of the Manufacturers' National Bank of Troy, 
 of which the plaintiff was, at the time of the publication, and for 
 eighteen years prior thereto had been, teller. The rumors referred 
 to had caused a "run" upon the bank, and it is claimed by the defend- 
 ants, and it is the fair conclusion from the evidence, that the primary 
 motive of the article was to allay public e>:citement on the subject. 
 That part of the publication charged to be libellous is as follows : 
 
 "Several weeks ago it was rumored that Ainasa Moore, the teller of the 
 bank, had tendered his resignation. Rumors at once began to circulate. 
 A reporter inquired of Cashier Wellington if it was true that the teller 
 had resigned, and received in reply the answer that Mr. ^Sloore was on his 
 vacation. More than this the cashier would not say. A rumor was cir- 
 culated that Mr. Moore was suffering from overwork, and that his mental 
 condition was not entirely good. Next came reports that Cashier Wellington 
 was financially involved, and that the bank \^-as in trouble. A Times re- 
 porter at once sought an interview with President Weed of the bank, and 
 found him and Directors Morrison, Cowee, Bradwell and others in con- 
 sultation. They said that the hank was entirely sound, with a clear surplus 
 of $100.000 : that there had been a little trouble in its affairs occasioned 
 by the mental derangement of Teller Moore, and that the latter's statements, 
 when he was probably not responsible for what he said, had caused some 
 bad rumors." 
 
 The complaint is in the usual form, and charges that the publication 
 was false and malicious, made with intent to injure the plaintiff' in his 
 good name and credit in his occupation as bank teller, and to cause it 
 to be believed that by reason of mental derangement he had become 
 incompetent to discharge his duties, and had caused injury to the 
 bank, etc. 
 
 The court on the trial was requested by the plaintiff's counsel to 
 rule as a question of law that the publication was libellous. The court 
 refused, but submitted the question to the jury. The jury found a 
 verdict for the defendants, and as the verdict may have proceeded 
 upon the finding that the article was not libellous, the question is pre- 
 sented whether it was per se libellous. If it was, the court erred in 
 leaving the question to the jury. It is the settled law of this state that 
 in a civil action for libel, where the publication is admitted and the 
 words are unambiguous and admit of but one sense, the question of 
 libel or no libel is one of law which the court must decide. Snyder v. 
 Andrews, 6 Barb. 43; ^Matthews v. Beach, 5 Sandf. 256; Hunt v. 
 Bennett, 19 N. Y. 173; Lewis v. Chapman, 16 N. Y. 369; Kingsbury 
 v. Bradstreet Co., 116 N. Y. 211, 22 N. E. 365. Of course an error 
 in submitting the question to the jury would be harmless if their find- 
 ing that the publication was not libellous was in accordance with its 
 legal character. The import of the article, so far as it bears upon the 
 plaintiff, is plain and unequivocal. The words amount to a distinct 
 affirmation: first, that the plaintiff was teller of the bank; second, 
 that while acting in this capacity he became mentally deranged ; third, 
 that the derangement was caused by overwork; fourth, that while 
 • teller, and suffering from this mental alienation, he made injurious
 
 604 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Parti 
 
 statements in respect to the bank's affairs, which occasioned it trouble. 
 
 The cases of actionable slander were defined by Chief Justice De 
 Grey, in the leading case of Onslow v. Horne, 3 Wilson, 177, and 
 the classification made in that case has been generally followed in 
 England and this country. According to this classification, slander- 
 ous words are those which (1) import a charge of some punishable 
 crime ; or (2) impute some offensive disease which would tend to 
 deprive a person of society; or (3) which tend to injure a party in his 
 trade, occupation or business; or (4) which have produced some 
 special damage. 
 
 Defamatory words, in common parlance, are such as impute some 
 moral delinquency or some disreputable conduct to the person of whom 
 they are spoken. Actions of slander for the most part are founded 
 upon such imputations ; but the action lies in some cases where the 
 words impute no criminal offense, where no attack is made upon the 
 moral character, nor any charge of personal dishonor. The first and 
 larger class of actions are those brought for the vindication of reputa- 
 tion, in its strict sense, against damaging and calumnious aspersions. 
 The other class fall, for the most part, at least within the third specifi- 
 cation in the opinion of Chief Justice De Grey, of words which tend 
 to injure one in his trade or occupation. The case of words affecting 
 the credit of a trader, such as imputing bankruptcy or insolvency, is 
 an illustration. The action is maintainable in such a case, although 
 no fraud or dishonesty is charged, and although the words were 
 spoken without actual malice. The law allows this form of action, 
 not only to protect a man's character as such, but to protect him in 
 his occupation also against injurious imputations. It recognizes the 
 right of a man to live, and the necessity of labor, and will not permit 
 one to assail by words the pecuniary credit of another except at the 
 peril, in case they are untrue, of answering in damages. The prin- 
 ciple is clearly stated by Bayley, J., in Whittaker v. Bradley, 7 D. & 
 R. 649 : "Whatever words have a tendency to hurt, or are calculated 
 to prejudice a man who seeks his livelihood by any trade or business, 
 are actionable." When proved to have been spoken in relation thereto, 
 the action is supported, and unless the defendant shows a lawful ex- 
 cuse, the plaintiff is entitled to recover without allegation or proof of 
 special damage, because both the falsity of the words and resulting 
 damage are presumed. 1 Saund. 243, note ; 1 Am. Ldg. Cas. 135. 
 
 The authorities tend to support the proposition that spoken words 
 imputing insanity are actionable, per se, when spoken of one in his 
 trade or occupation, but not otherwise, without proof of special dam- 
 age. Morgan v. Lingen, 8 L. T. Rep. 800; Joannes v. Burt, 6 Allen 
 (Mass.) 236, 83 Am. Dec. 625. The imputation of insanity in a writ- 
 ten or printed publication is a fortiori libellous where it would con- 
 stitute slander, if the words were spoken. Written words are libellous 
 in all cases where, if spoken, they would be actionable, but they may 
 be libellous where they would not support an action for oral slander.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 605 
 
 There are many definitions of libel. The one by Hamilton, in his argu- 
 ment in People v. Croswell, 3 Johns. Cas. 337, append., viz. : "A cen- 
 sorious or ridiculing writing, picture or sign, made with malicious 
 intent towards government, magistrates or individuals," has been 
 often referred to with approval ; but, unless the word censorious is 
 given a much broader signification than strictly belongs to it, the 
 definition would not seem to comprehend all cases of libellous words. 
 The word "libel," as expounded in the cases, is not limited to written 
 or printed words which defame a man, in the ordinary sense, or 
 which impute blame or moral turpitude, or which criticise or censure 
 him. In the case before referred to, words aflfecting a man injuriously 
 in his trade or occupation, may be libellous, although they convey no 
 imputation upon his character. Words, says Starkie, are libellous if 
 they afiect a person in his profession, trade or business, "by imputing 
 to him any kind of fraud, dishonesty, misconduct, incapacity, unfitness 
 or want of any necessary^ qualification in the exercise thereof." Starkie 
 on Slander, § 188. * * * 
 
 ■The publication now in question is not simply an assertion that the 
 plaintiff is or has been affected with "mental derangement," discon- 
 nected with any special circumstances. The assertion was made to ac- 
 count for the trouble to which the bank had been subjected by reason 
 of injurious statements made by the plaintiff' while in its employment. 
 Words to be actionable on the ground that they affect a man in his 
 trade or occupation, must, as is said, touch him in such trade or occu- 
 pation ; that is, they must be shown, directly or by inference, to have 
 been spoken of him in relation thereto and to be such as would tend 
 to prejudice him therein. Sanderson v. Caldwell, 45 N. Y. 405, 6 Am. 
 Rep. 105. The publication did, we think, touch the plaintiff in re- 
 spect to his occupation as bank teller. It imputed mental derangement 
 while engaged in his business as teller, which affected him in the dis- 
 charge of his duties. The words conveyed no imputation upon the 
 plaintiff's honesty, fidelity or general capacity. They attributed to him 
 a misfortune, brought upon him by an over-zealous application in his 
 employment. While the statement was calculated to excite sympathy, 
 and even respect for the plaintiff, it nevertheless was calculated also 
 to injure him in his character and employment as a teller. On com- 
 mon understanding, mental derangement has usually a much more 
 serious significance than mere physical disease. There can be no 
 doubt that the imputation of insanity against a man employed in a 
 position of trust and confidence such as that of a bank teller, whether 
 the insanity is temporary or not, although accompanied by the ex- 
 planation that it was induced by overwork, is calculated to injure and 
 prejudice him in that employment, and especially where the statement 
 is added that in consequence of his conduct in that condition the bank 
 had been involved in trouble. The directors of a bank would naturally 
 hesitate to employ a person as teller, whose mind had once given 
 away under stress of similar duties, and run the risk of a recurrence
 
 GOG TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 of the malady. The pubhcation was, we think, defamatory in a legal 
 sense, although it imputed no crime and subjected the plaintiff to no 
 disgrace, reproach or obloquy, for the reason that its tendency was 
 to subject the plaintiff to temporal loss and deprive him of those ad- 
 vantages and opportunities, as a member of the community, which are 
 open to those who have both a sound mind and a sound body. The 
 trial judge, therefore, erred in not ruling the question of libel as one 
 of law. The evidence renders it clear that no actual injury to the 
 plaintiff was intended by the defendants, but it is not a legal excuse 
 that defamatory matter was published accidentally or inadvertently, 
 or with good motives and in an honest belief in its truth. 
 
 The judgment should be reversed and a new trial granted. All 
 concur. 
 
 Judgment reversed.^' 
 
 SHEPHEARD v. WHITAKER. 
 
 (Court of Common Pleas, 1875. L. R. 10 C. P. 502.') 
 
 The declaration stated that the defendant falsely and maliciously 
 printed and published in a certain newspaper called The Bookseller, 
 the words following, that is to say: 
 
 "The Gazette. First meeting under the new Bankruptcy Act. Shepheard, 
 Shepheard, and Yeomans, Garrick Street and Cheapside, under the firm 
 of British and Foreign Stationery Company, stationers, printers, and book- 
 sellers, as regards Charles Yeomans," 
 
 the defendant meaning thereby that the plaintiff's firm had been bank- 
 rupt, or had taken proceedings in liquidation or for composition, and 
 that a first meeting of creditors under their bankruptcy or proceedings 
 in liquidation or for composition was about to be held. Plea, not 
 guilty. Issue thereon. 
 
 At the trial, it appeared that, through the negligence of persons in 
 the defendant's employ, instead of announcing, in the extracts from 
 the London Gazette inserted in their newspaper called The Bookseller, 
 published on the 1st of January, 1875, that there had been a dissolu- 
 tion of the partnership of their firm, the advertisement announcing it 
 was inserted amongst the first meetings under the Bankruptcy Act. 
 Upon the discovery of the mistake, the defendant, whose publication 
 appeared monthly, printed and circulated amongst the trade 4000 cop- 
 ies of the Bookseller's Circular explaining the blunder, and inserted 
 an ample apology in his next issue, on the 1st of February, and also 
 in the Stationers' Circular of the 5th. 
 
 The learned judge left it to the jury to say whether or not the pub- 
 lication was libellous, telling them that at all events it was not a case 
 for serious damages. The jury returned a verdict for the plaintiff, 
 damages £50. 
 
 8 8 Part of the opinion is omitted.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 607 
 
 Weatherfield moved for a new trial on the grounds of misdirection 
 and that the damages were excessive : he also moved to arrest the 
 judgment, on the ground that the declaration disclosed no cause of ac- 
 tion. He submitted that the form in which the announcement appeared 
 was such that no person of ordinary intelligence could have been mis- 
 led by it; that the learned judge ought not to have left the case to the 
 jury; that, if anybody was likely to be affected by the publication, it 
 was Yeomans only; and that, at all events, the damages were unjusti- 
 fiably large. ^'' 
 
 Brett, J. Whether a publication amounts to a libel or not is a ques- 
 tion for the jury ; and, as it is impossible for us to say that the words 
 could not by possibility amount to a libel, the judgment cannot be ar- 
 rested. The damages doubtless are somewhat high, seeing that no 
 malice is suggested. But it is not surprising that a jury should give 
 large damages where bankruptcy is imputed to a trader. 
 
 Rule refused.^ ^ 
 
 (bh) Of and Concerning the Plaintiff 
 JOHNSON v. SIR JOHN AYLMER. 
 
 (Court of King's Bench, 1605. Cro. Jac. 126, 79 Reprint, 100.) 
 
 Action ; for that the defendant "hsec falsa et scandalosa verba se- 
 quentia dixit et publicavit" : 
 
 "Mr. Price, you do my Lord Burleigh wrong, that you do not apprehend 
 Jeremy Jolinson" (innuendo the plaintiffi "for a felon, and seize his goods: 
 for he" (innuendo the plaintiff) "hath stolen a sheep from Wright, of Rirsby" 
 (innuendo John Wright). 
 
 37 The statement of the case is abridged, and an opinion by Lord Coleridge, 
 C. J., is omitted. It appeared that the third member of the partnership, 
 Yeomans, had brought a similar action, which was settled by a nominal 
 verdict. 
 
 38 "The law has always been very tender of the reputation of tradesmen, 
 and therefore words spoken of them in the way of their trade will bear an 
 action that will not be actionable in the case of another person." Per 
 Curiam in Harman v. Delany (1731) 2 Stra. 898, 93 Reprint. 925. 
 
 "A statement is defamatory if it imputes insolvency to a trader ; and this 
 is so whether or not the statement includes any suggestion of discreditable 
 conduct or incapacity. It may be doubted, indeed, whether this is strictly 
 logical. It would seem tliat, apart from any such suggestion, an allegation 
 of insolvency should be classed merely as an injurious falsehood, not as 
 defamation. For insolvency is not a personal quality or defect like insanity, 
 which in itself excites the disrespect or dislike or ridicule of other persons. 
 It is a misfortune which is consistent with a liigh regard for the duiraoter 
 and competence of the insolvent. Nevertheless it is settled law that a charge 
 of insolvency is to be classed as defam;itory. and is subject to all the severities 
 of the law of libel, and not to the more lenient rules which govern cases of 
 injurious falseh(x>d. In view of the very serious miseliief wliicli an un- 
 founded allegatiuu of insolvency may work, it is well that ri'sponsiliility 
 for it should be maintained at this high level." Salmond, Law of Torts (2d 
 Ed.) 405.
 
 / 
 
 COS TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 The defendant pleaded not guilty ; and found against him, and dam- 
 ages assessed to £50. After verdict, it was moved in arrest of judg- 
 ment, that the words are too generally laid to maintain the action ; for 
 they are not alledged to be spoken of the plaintiff in the writ or count ; 
 but only in recitinc: the words he saifh, "innuendo the plaintiff;" and 
 the innuendo, without expressly alledging the words to be spoken of 
 the plaintiff, will not maintain the action. 
 
 And THE Court was of that opinion, wherefore, it was adjudged 
 for the defendant. 
 
 NORTHROP V. TIBBLES. 
 
 (Circuit Court of Appeals of the United States, Seventh Circuit, 1914. 
 
 131 C. C. A. 407, 215 Fed. 99.) 
 
 Baker, Circuit Judge. To plaintiff in error's declaration for libel a 
 demurrer for want of facts was sustained, plaintiff declined to amend, 
 and judgment for defendant was entered. 
 
 Many objections are urged by defendant; but, if the declaration is 
 deficient in any material respect, the judgment must be affirmed. 
 
 So we may assume that the letter written and mailed by defendant 
 to a third person contains matter libelous per se (though this is strenu- 
 ously controverted), that defendant intended to defame plaintiff, and 
 that plaintiff, when she somehow obtained a copy, applied the libel to 
 herself. But the letter does not name plaintiff as the person intended 
 to be libeled; and the declaration fails to charge (either as a conclu- 
 sion of fact, if such pleading is permissible, or by an exhibition of 
 extraneous facts that have the necessary effect of showing) that the 
 recipient of the letter, or any other third party, understood the libel- 
 ous matter to refer to plaintiff. 
 
 To allege that defendant wrote and published (by mailing) the let- 
 ter "of and concerning plaintiff" is not enough. As this court said in 
 Duvivier v. French, 104 Fed. 278, 43 C. C. A. 529: "The gravamen 
 of an action for libel is not injury to the plaintiff's feelings, but dam- 
 age to his reputation in the eyes of others. * * * Jt jg ^ot 
 enough, to constitute libel, that the plaintiff knew that he was the sub- 
 ject of the article, or that the defendants knew of whom they were 
 writing ; it must appear upon the face of the declaration that persons 
 other than these must have reasonably understood that the article was 
 written of and concerning the plaintiff, and that the so-called libelous 
 expressions related to him." 
 
 See, also, Robinson v. Drummond, 24 Ala. 174; De Witt v. Wright, 
 57 Cal. 576; Patterson v. Edwards, 7 111. (2 Oilman) 720; McLaugh- 
 lin v. Fisher, 136 111. Ill, 24 N. E. 60; McCallum v. Lambie, 145 
 Mass. 234, 13 N. E. 899; Carlson v. Minnesota Tribune Co., 47 Minn. 
 337, 50 N. W. 229; Miller v. Maxwell, 16 Wend. (N. Y.) 9; Sasser
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 609 
 
 V. Rouse, 35 N. C. 145 ; Dunlap v. Sundberg, 55 Wash. 609, 104 Pac. 
 830, 133 Am. St. Rep. 1050. 
 
 As plaintiff refused to plead the necessary additional facts, we must 
 believe that (but for the filing of her present declaration) her reputa- 
 tion with the world at large remained as good as if the letter had been 
 written in a code unknown to any one except defendant and herself. 
 
 The judgment is affirmed. 
 
 WANDT V. HEARST'S CHICAGO AMERICAN. 
 
 (Supreme Court of Wisconsin, 1906. 129 Wis. 419, 109 N. W. 70, 6 D. R. A. 
 [N. S.] 919, 116 Am. St. Rep. 959, 9 Ann. Cas. 864.) 
 
 The action was brought by Rose Wandt against Hearst's Chicago 
 American. There was a judgment for the plaintiff, and the defendant 
 appealed. 
 
 WiNSLOW, J. This is an action for libel. The complaint charged 
 in effect that the defendant corporation published and circulated in its 
 newspaper, in the city of Milwaukee, the following article with the 
 picture or photograph of the plaintiff immediately under the first head- 
 line: 
 
 "Suicide Girl Laid to Rest 
 
 "Evelyn Daly, Suicide. 
 [Photograph] 
 
 "Milwaukee. Aug. 17.— Evelyn Daly, daughter of Mrs. E. L. Daly, of East 
 Lake, Mich., and who, under the name of Cecil Davis, of Cadillac, Mich., 
 succeeded in ending her life after twenty-five attempts, was buried here to- 
 day. Here are some of the attempts she has made within the last three 
 months. 
 
 "June 5 — Took morphine; went to Emergency Hospital and asked to be 
 pumped out. * * * " 39 
 
 — and that the defendant thereby falsely, willfully, and maliciously 
 charged the plaintiff with having committed suicide, and with having 
 many times attempted to commit suicide, to her great damage. A gen- 
 eral demurrer to the complaint was overruled, and the defendant ap- 
 peals. 
 
 It is elementary that written or printed publications which falsely 
 tend to bring the plaintiff into public disgrace, contempt, or ridicule 
 are libelous. Bradley v. Cramer, 59 Wis. 309, 18 N. W. 268, 48 Am. 
 Rep. 511. It is also elementary that a libel need not be in printed lan- 
 guage, but that a caricature, or picture, or effigy, with or without 
 printed language, which is understood to refer to the plaintiff, and 
 which has the tendency to bring disgrace, contempt, or ridicule upon 
 the plaintiff, is libelous. Newell on Slander and Libel (2d Ed.) p. 43, 
 c. 4, § 1. A printed statement to the effect that a person is a suicide 
 
 39 The rest of the article, referring throughout to "Miss Daly," and two of 
 its headlines, are omitted. 
 
 Hepb. Torts — 39
 
 610 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 fiend, has attempted suicide 25 times, and would usually go to the hos- 
 pital and ask to be pumped out, certainly has a tendency to bring that 
 person into public contempt and ridicule. Had the article in question 
 given no name, but simply stated that the person whose picture was 
 given had done these things, there would be little doubt in the mind of 
 any one that it would have been libelous, provided the picture was ac- 
 curate enough to be recognized as the plaintiff's picture. From the al- 
 legations of the complaint it must be assumed that the picture was 
 fairly accurate, as it is called a photograph, doubtless meaning a half- 
 tone reproduction of a photograph, which can now be made with a 
 considerable degree of accuracy. The insertion of the picture under 
 the headline of the article is, of course, in effect a statement that it 
 is a picture of the person referred to in the article. Hence the article 
 and picture together constitute a libel as matter of law, unless the 
 fact that the article states that the suicide's name was Evelyn Daly can 
 be held to be an antidote to the otherwise libelous eft'ect. 
 
 This contention is strongly made by the appellant, and is in fact the 
 only contention worthy of very serious consideration. It seems quite 
 true, as urged by the appellant, that persons who knew the plaintiff 
 well, and knew her residence and family, would probably not be mis- 
 led, but would at once conclude that the picture was inserted by mis- 
 take; but there may well be a considerable number of persons, who 
 only know the plaintiff by sight or have merely a slight acquaintance, 
 who would recognize the picture at once, and would conclude that the 
 article in fact did refer to the plaintiff', concluding (if they knew the 
 plaintiff''s name at all) tliat such name was merely another alias. The 
 complaint alleges that the plaintiff' has been greatly damaged by the 
 publication. There is ample room for the inference that she may well 
 have been damaged in the estimation of the classes of people last men- 
 tioned. The fact that she may not have been damaged in the estima- 
 tion of friends who knew her well would only affect the extent of in- 
 jury and mitigate the damages. A very similar case where a like re- 
 sult was reached will be found in De Sando v. New York Herald Co., 
 88 App. Div. 492, 85 N. Y. Supp. 111.**' 
 
 Order affirmed. 
 
 4 In Feck v. Triliune Co. (1909) 214 U. S. 185, 29 Sup. Ct. 554. 53 L. Ed. 
 960, 16 Ann. Cas. 1075, Mr. .Tiistice Holmes, referrinir to the pictorial adver- 
 tisement in that case (see ante, p. 591), remarked: "The publication was of 
 and concerning the plaintill notwithstanding the presence of another fact, 
 the name of the real signer of the certificate, if that was Mrs. Schuman, 
 that was inconsistent when all the facts were known, with the plaintiff's 
 having signed or adopted it. Many might recognize the plaintiff's face 
 without knowing her name, and those who did know it might be led to infer 
 that she had sanctioned the publication under an alias." 
 
 On the collateral question, when the defendant has published the plain- 
 tiff's picture without his consent, but also without any defamatory matter, see 
 ••The liight to Trivacy," 4 Harv. Law llev. 19;] (1890), "The Right of I'rivacy," 
 2 Columbia Law Rev. 437, and cases under Key-No. "Torts," § 8.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES Cll 
 
 JONES V. E. HULTON & CO. 
 
 (Court of Appeal. [1009J 2 K. B. 444.) 
 
 E. HULTON & CO. v. JONES. 
 
 (House of Lords. [1910] A. C. 20.) 
 
 Application by the defendants for judgment or a new trial in an 
 action before Channell, J., with a special jury. 
 
 The plaintiff, 'Mr. Thomas Artemus Jones, a barrister practising on 
 the North Wales Circuit, brought the action to recover damages for 
 the publication of an alleged libel concerning him contained in an ar- 
 ticle of the Sunday Chronicle, a newspaper of which the defendants 
 were the printers, proprietors, and publishers. The article, which was 
 written by the Paris correspondent of the paper, purported to describe 
 a motor festival at Dieppe, and the parts complained of ran thus : 
 
 "Upon the terrace marches the world, attracted by the motor races — a 
 world immensely pleased with itself, and minded to draw a wealth of in- 
 spiration — and, incidentally, of golden cocktails — from any scheme to speed 
 the passing hour. * * * 'Whist ! there is Artemus Jones with a woman 
 who is not his wife, who must be, you know — the other thing,' whispers a 
 fair neighbour of mine excitedly into her bosom friend's ear. Really, is it 
 not surpilsing how certain of our fellow countrymen behave when they come 
 abroad V Who would suppose, by his goings on, that he was a church- 
 warden at Feckham? Xo one, indeed, would assume that Jones in the atmos- 
 phere of London would take on so austere a job as the duties of a church- 
 warden. Here, in the atmosphere of Dieppe, on the French side of the 
 Channel, he is the life and soul of a gay little band that haunts the Casino 
 and turns night into day, besides betraying a most unholy delight in the 
 society of female butterflies." 
 
 The plaintiff' had in fact received the baptismal name of Thomas 
 only, but in his boyhood he had taken, or had been given, the addi- 
 tional name of Artemus, and from that time he had always used, and 
 had been universally known by, the name of Thomas Artemus Jones 
 or Artemus Jones. He had, up to the year of 1901, contributed 
 signed articles to the defendants' newspaper. The plaintiff was not 
 a churchwarden, nor did he reside in Peckham. Upon complaint be- 
 ing made by the plaintiff of the publication of the defamatory state- 
 ments in the article, the defendants published the following in the next 
 issue of their paper: 
 
 "It seems hardly necessary for us to state that the imaginary Mr. Artemus 
 Jones referred to in our article was not ^Ir. Thomas Artemus Jones, barrister, 
 but, as he has complained to us, we gladly publish this paragraph in order 
 to remove any possible misunderstanding and to satisfy Mr. Thomas Artemus 
 Jones we had no intention whatsoever of referring to him." 
 
 The defendants alleged that the name chosen for the purpose of the 
 article was a fictitious one, and having no reference to the plaintiff, and 
 chosen as unlikely to be the name of a real person, and they denied 
 that any officer or member of their staff who wrote or printed or pub- 
 lished before publication the words complained of knew the plaintiff
 
 G12 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Parti 
 
 or his name or his profession, or his association with the journal or 
 with the defendants, or that there was any existing person bearing the 
 name of or known as Artemus Jones. They admitted publication, but 
 denied that the words were published of or concerning the plaintiff. 
 On the part of the plaintiff the evidence of the writer of the article and 
 of the editor of the paper that they knew nothing of the plaintiff', and 
 that the article was not intended by them to refer to him, was accepted 
 as true. At the trial witnesses were called for the plaintiff', who said 
 that they had read the article and thought it referred to the plaintiff. 
 The jury returned a verdict for the plaintiff' with il750 damages, and 
 the learned judge gave judgment for the plaintiff'. The defendants ap- 
 pealed. 
 
 Farwell, L. J.*^ The appellants contend that the verdict and judg- 
 ment in this case cannot stand, because it was proved that neither the 
 writer of the libellous article nor any person in the defendants' em- 
 ployment under whose notice it came before it was published knew or 
 had even heard of the existence of the plaintiff, and that it therefore 
 necessarily follows that the defendants cannot have intended the libel- 
 lous words to apply to the plaintiff. The question for us is whether 
 this contention is right. 
 
 The old declaration in an action for libel still accurately states the 
 issues that have to be proved, namely, that the defendants falsely and 
 maliciously printed and published of the plaintiff in the A. paper (or 
 as the case may be) the words following (setting them out), meaning 
 thereby that the plaintiff, &c., &c. It is hardly necessary to say that 
 actual malice is not necessary : malice in law is sufficient, and that is 
 shewn by the falsity and defamatory nature of the words, as soon as 
 it has been proved that they were written of the plaintiff. But the 
 plaintiff" has to prove (1) the publication, and (2) that it is of the plain- 
 tiff ; and then he has to prove the libellous nature of the words, that 
 is, the innuendo. It is contended that the libel cannot be published of 
 the plaintiff' if it be proved that his existence was unknown to the de- 
 fendant. A plaintiff need not, of course, be named in the libel : it is 
 sufficient if he be sufficiently described, and for this purpose recourse 
 may be had to the innuendo. As Lord Campbell says in Le Fanu v. 
 Malcomson, 1 H. L. C. at pp. 637, 668, "It comes round to the old 
 rule, that you cannot by an innuendo extend the natural meaning of 
 the words which are spoken or written, but by the innuendo you may 
 point out the particular individual to whom these words apply." The 
 first step is to prove that the words published, whether by name, nick- 
 name, or description, are such as reasonably to lead persons acquainted 
 with the plaintiff to believe that he is the person to whom the libel re- 
 fers ; the next step is to prove that that is the true intent and meaning 
 of the words used. This is what I understand to be meant by Lord 
 
 <iThe statement of facts is abridged, and opinions of Lord Alverstone, 
 C. J., and Moulton, L. J., and part of opinion of Farwell, L. J., are omitted.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 613 
 
 Cottenham in Le Fanu v. Malcomson, 1 H. L. C, at p. 664: "If a 
 party can publish a libel so framed as to describe individuals, though 
 not naming them, and not specifically describing them by any express 
 form of words, but still so describing them that it is known who they 
 are, as the jurors have found it to be here, and if those who must be 
 acquainted with the circumstances connected with the party described 
 may also come to the same conclusion, and may have no doubt that 
 the writer of the libel intended to mean those individuals, it would be 
 opening a very wide door to defamation, if parties suffering all the 
 inconvenience of being libelled were not permitted to have that pro- 
 tection which the law aft'ords. If they are so described that they are 
 known to all their neighbours as being the parties alluded to; and if 
 they are able to prove to the satisfaction of a jury that the party v/rit- 
 ing the libel did intend to allude to them, it would be unfortunate to 
 find the law in a state which would prevent the party being protected 
 against such libels." Lord Campbell, 1 H. L. C, at page 668, says: 
 "Whether a man is called by one name or whether he is called by an- 
 other, or whether he is described by a pretended description of a class 
 to which he is known to belong, if those who look on, know well who 
 is aimed at, the very same injury is inflicted, the very same thing is 
 in fact done, as would be done if his name and Christian name were 
 ten times repeated." It is however, argued that when Lord Cotten- 
 ham says "the writer of the libel intended to mean these individuals" 
 he is referring to the intention in the writer's mind as distinct from 
 the intention expressed in the words that he has used, as explained 
 by the relevant surrounding circumstances. In my opinion this is not 
 so, and I may remark that it was not the contention of the appellants' 
 counsel in that case; he opened his case by asserting that it was nec- 
 essary to shew "that the libel on the record should point to the plain- 
 tiffs," &c. The rule is well settled that the true intention of the writer 
 of any document, whether it be contract, will, or libel, is that which 
 is apparent from the natural and ordinary interpretation of the written 
 words ; and this, when applied to the description of an individual, means 
 the interpretation that would be reasonably put upon those words by 
 persons who knew the plaintiff' and the circumstances. * * * 
 
 In the present case the jury have found that the libellous article de- 
 scribed an actual scene at Dieppe, and that "Artemus Jones" men- 
 tioned therein described an actual person and not a mere type. If the 
 defendants had proved in the present case not only that the writer of 
 the article did not know of the plaintiff"s existence, but also that there 
 was an Artemus Jones other than the plaintiff, who was present at 
 Dieppe in the company alleged, then the circumstances with reference 
 to which the words "Artemus Jones" were used would shew that the 
 plaintiff was not the person intended ; but the writer of the libel has 
 chosen to state as a fact tliat Artemus Jones was present in order (as 
 he says) to avoid the banality of using A. B. or a blank: he has, there- 
 fore, for his own purposes chosen to assert a fact of a person bearing
 
 614 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 the very unusual name of Artemus Jones, recklessly, and caring not 
 '.vhethcr there was such a person or not, or what the consequences 
 might be to him. 
 
 An action for defamation differs from other actions, such for in- 
 stance as trespass, in that it is of the essence of defamation that the 
 plaintiff should be aimed at or intended by the defendant. The man 
 who throws a squib into a crowd not intending to hit any one is liable 
 for the consequences of his act, whatever his intentions may have 
 been, because the two necessary constituents of tort, namely, a wrong- 
 ful act by the defendant and actual damage to the plaintiff, are both 
 present. But it is not enough for a plaintiff in libel to shew that the 
 defendant has made a libellous statement, and that the plaintiff's 
 friends and acquaintances understood it to be written of him : he nmst 
 also shew that the defendant printed and published it of him ; for if 
 the defendant can prove that it was written truly of another person 
 the plaintiff would fail. To this extent I agree with Fletcher Moulton, 
 L. J., but we differ as to the meaning of the word "intended." In my 
 opinion the defendant intended the natural meaning of his own words 
 in describing the plaintiff as much as in the innuendo : the inquiry is 
 not what did the defendant mean in his own breast, but what did the 
 words mean having regard to the relevant surrounding circumstances. 
 For example, fraud is proved in an action of deceit not only when a 
 false representation is made knowingly, but also when it is made reck- 
 lessly, careless whether it be true or false, and although there was no 
 intention to cheat or injure the person to whom the statement was 
 made — Derry v. Peek, 14 App. Cas. 237, at p. 374 — and yet the fraud- 
 ulent intent is of the essence of the action. So the intention to libel 
 the plaintiff may be proved not only when the defendant knows and 
 intends to injure the individuals, but also when he has made a state- 
 ment concerning a man by a description by which the plaintiff" is rec- 
 ognized by his associates, if the description is made recklessly, care- 
 less whether it hold up the plaintiff to contempt and ridicule or not. 
 In such a case it is no answer for the defendant to say that he did not 
 intend the plaintiff, because he had never heard of him : he intended 
 to describe some living person : he can suggest no one else ; and the 
 plaintiff proves that he is believed by his acquaintances and friends to 
 be the person aimed at, and has suffered damage thereby. The ele- 
 ment of intention, which is as essential to an action of defamation as 
 to an action of deceit, can be proved in the same way in both actions. 
 The issue of fact is whether the plaintiff" is the person intended by the 
 libeller ; but sufficient evidence to prove it may be given, although the 
 defendant had no intention of injuring the plaintiff and had never 
 heard of his existence. The squib thrower is liable for the injury 
 done by his squib to the plaintiff, whether he aimed at or intended to 
 hit him or not: the libeller is not liable to the plaintiff unless it is 
 proved that the libel was aimed at or intended to hit him ; the manner 
 of proof being such as I have already stated. If the libel was true
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 615 
 
 of another person and honestly aimed at and intended for him, and 
 not for the plaintiff, the latter has no cause of action, although all his 
 friends and acquaintances may fit the cap on him. If this were not 
 so, no newspaper could ever venture to publish a true statement of A., 
 lest some other person answering the description should suft'er thereby. 
 
 It is said that this would enable several plaintiff's to bring several 
 and distinct actions in respect of one libel, and I think that this is so ; 
 but I am unable to see the objection. If the libel consisted in defama- 
 tion of a number of individuals described generally, that is to say, "as 
 the owners of some Irish factories," as in Le Fanu v. Malcomson, 1 
 H. L. C. 637, every member of the class who could satisfy the jury 
 that he was a person aimed at and defamed could recover ; and I can 
 see no reason why two or more persons of the name of Artemus Jones 
 who produced evidence from their acquaintances and others in differ- 
 ent parts of the kingdom similar to that produced by the plaintiff' in 
 this case, the other circumstances being similar, should not recover. 
 It is quite possible that a defendant might know two persons of the 
 same name and might use words equally applicable to both, and de- 
 scribe each so that he appeared to his own circle of friends and ac- 
 quaintances to be the person attacked, and might really intend to strike 
 at both : it would certainly be somewhat shocking if such a man could 
 successfully defend an action by one Artemus Jones by producing evi- 
 dence that shewed conclusively that the other was aimed at, and then 
 defeat an action by that other by producing evidence that shewed con- 
 clusively that the first was aimed at : the evidence in both cases would 
 be true, and the libeller would escape because he had successfully li- 
 belled two persons in one libel. The case would be nearly as bad if 
 the first plaintiff succeeded and the judgment obtained by him was 
 held sufficient to defeat the action of the other person aimed at. If 
 a man chooses to make statements of fact about persons whom he 
 names, as in this case, I see no reason why he should not be liable to 
 every one whom he injures who can convince a jury that he is reason- 
 ably intended by the words used. 
 
 I am therefore of opinion that the defendant cannot complain of 
 Channell, J.'s, summing up. I do not think that he intended to rule 
 anything more than that the alleged actual, as distinguished from the 
 expressed, intention of the defendant was under the circumstances of 
 this particular case immaterial. I do not understand him to have with- 
 drawn from the jury the question whether the plaintiff was the person 
 of whom the libel was published, which was, in my opinion, a question 
 for them to decide, but to have ruled that the fact that any one of the 
 plaintiff's names was unknown to the writer and to every one in the 
 defendants' office through whose hands the libel passed was not a con- 
 clusive defence requiring him to stop the case; and in this he was, 
 in my opinion, right. The ignorance was of course a material fact, 
 both in considering the question of the true intent of the defendants 
 and also in considering the damages, but I think that these were before
 
 616 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 the jury. It was said that there was some misdirection on the point 
 of neghgence, but I do not think that this is so. NegHgence is imma- 
 terial on the question of hbel or no hbel, but may be material on the 
 question of damages. The recklessness to which I have referred, 
 founding myself on Derry v. Peek, 14 App. Cas. 337, is quite differ- 
 ent from mere negligence. 
 
 Then it is said that the amount of damages is excessive. It is no 
 doubt large, but the evidence shews how serious the consequences have 
 been and may yet be to the plaintiff. It is difficult to estimate the con- 
 sequences of libel in a newspaper : as Best, C. J., says in De Crespigny 
 v. Wellesley (1829) 5 Bing. 392, at p. 402, it may "circulate the cal- 
 umny through every region of the globe." Those who read it may 
 never read the subsequent explanation or the report of the trial ; and 
 some of those who read both may forget the result, and be left with 
 a general recollection that the plaintiff was a man of whom a discred- 
 itable story was reported in a paper. Such newspapers as publish li- 
 bellous statements do so because they find that it pays : many of their 
 readers prefer to read and believe the worst of everybody, and the_ 
 newspaper proprietors cannot complain if juries remember this in as- 
 sessing damages. The amount of damage is peculiarly their province, 
 and I see no ground for interference. In my opinion the appeal should 
 be dismissed with costs. 
 
 Appeal dismissed. 
 
 [The defendants thereupon appealed to the House of Lords.] 
 Norman Craig, K. C. (Isaacs, K. C, with him), for the appellants. 
 It is a necessary element in a cause of action for libel that the words 
 complained of should have been written "of and concerning" the 
 plaintiff. There must have been intention in the writer to apply the 
 words to the plaintiff, and there can be no such intention when the 
 writer does not know even of the existence of the person who im- 
 agines the language to be directed to himself. The principle of 
 innuendo has never been applied where the question is one of iden- 
 tity. No doubt a man must be taken to know the reasonable con- 
 struction of the words he employs; but he cannot know every com- 
 bination of names in the directory. This principle has been recog- 
 nized and enforced for centuries. * * * 'pi^g question is, who 
 was meant? (Lord Loreburn, L. C. Is it not rather who was hit?) 
 No. A man cannot be held responsible for remote and improbable 
 results of his actions. * * * The test is not the impression of by- 
 standers or the influence of friends, but whether the defendant used 
 words which were admittedly defamatory "of and concerning" the 
 plaintiff. * * * 
 
 Lord Loreburn, L. C.*^ My Lords, I think this appeal must be 
 dismissed. A question in regard to the law of libel has been raised 
 
 42 The statement of facts, the opinions of Lords Atkinson and Gorell, and. 
 part of opinion of Lord Shaw of Dunfermline, are omitted.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 617 
 
 which does not seem to me to be entitled to the support of your Lord- 
 ships. Libel is a tortious act. What does the tort consist in? It 
 consists in using language which others knowing the circumstances 
 would reasonably think to be defamatory of the person complaining 
 of and injured by it? A person charged with libel cannot defend him- 
 self by shewing that he intended in his own breast not to defame, or 
 that he intended not to defame the plaintiff, if in fact he did both. 
 He has none the less imputed something disgraceful and has none 
 the less injured the plaintiff. A man in good faith may publish a 
 libel believing it to be true, and it may be found by the jury that he 
 acted in good faith believing it to be true, and reasonably believing it 
 to be true, but that in fact the statement was false. Under those cir- 
 cumstances he has no defence to the action, however excellent his in- 
 tention. If the intention of the writer be immaterial in considering 
 whether the matter written is defamatory, I do not see why it need be 
 relevant in considering whether it is defamatory of the plaintiff. The 
 writing, according to the old form, must be malicious, and it must be 
 of and concerning the plaintiff'. Just as the defendant could not excuse 
 himself from malice by proving that he wrote it in the most benevolent 
 spirit, so he cannot shew that the libel was not of and concerning the 
 plaintiff by proving that he had never heard of the plaintiff. His in- 
 tention in both respects equally is inferred from what he did. His 
 remedy is to abstain from defamatory words. 
 
 It is suggested that there was a misdirection by the learned judge 
 in this case. I see none. He lays down in his summing up the law 
 as follows : 
 
 "The real point upon which your verdict must turn is, ought or ought not 
 sensible and reasonable people reading this aiticle to think that it was a 
 mere imaginary person such as I have said — Tom Jones, ]Mr. Pecksniff as a 
 humbug, Mr. Stiggins, or any of that sort of names that one reads of in 
 literatiu-e used as types? If you thiuk any reasonable person would think 
 chat, it is not actionable at all. If, on the other hand, you do not think 
 that, but think that people would suppose it to mean some real person — 
 those who did not know the plaintiff of course would not know who the 
 real person was, but those who did know of the existence of the plaintiff 
 would think that it was the plaintilf — then the action is maintainable, sub- 
 ject to such damages as you think undei* all the circumstances are fair and 
 right to give to the plaintiff." •la 
 
 43 Compare Newton v. Grubbs (1913) 155 Ky. 479, 159 S. W. 994, 48 L. R. 
 A, (N. S.) 355 : (In an action for slander, the appellee, who was defendant 
 below, was a practicing physician. He had related to several persons an 
 experience in his practice with a young woman, "but not only did he never 
 use appellant's name in that connection, but never so far as this record 
 shows did he ever indicate who tbe young woman was. The evidence 
 whoUy fails to show that he ever used appellant's name in telling this ex- 
 perience, or by innuendo or suggestion intimated that she was the person. 
 JL5ut it appears that in some unexplained way the appellant's name became 
 associated with this episode, and several of the witnesses say they had heard 
 this, and therefore thought from outside rumors that api>ellee when he was 
 telling of it referred to appellant, although her name was never used by 
 appellee. Appellee testified that he had such an experience in his practice,
 
 G18 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 I see no objection in law to that passage. The damages are cer- 
 tainly heavy, but I think your Lordships ought to remember two 
 things. The first is that the jury were entitled to think, in the ab- 
 sence of proof satisfactory to them (and they were the judges of it), 
 that some ingredient of recklessness, or more than recklessness, enter- 
 ed into the writing and the publication of this article, especially as 
 Mr. Jones, the plaintifif, had been employed on this very newspaper, 
 and his naine was well known in the paper and also well known in 
 the district in which the paper circulated. In the second place the 
 jury were entitled to say this kind of article is to be condemned. 
 There is no tribunal more fitted to decide in regard to publications, 
 especially publications in the newspaper press, whether they bear a 
 stamp and character which ought to enlist sympathy and to secure 
 protection. If they think that the license is not fairly used and that 
 the tone and style of the libel is reprehensible and ought to be checked, 
 it is for the jury to say so; and for my part, although I think the 
 damages are certainly high, I am not prepared to advise your Lord- 
 ships to interfere, especially as the Court of Appeal have not thought 
 it right to interfere, with the verdict. 
 
 Lord Shaw of Dunfermline. * * * ]\];y Lords, with regard 
 to this whole matter I should put my propositions in a threefold form, 
 and, as I am not acquainted by training with a system of jurispru- 
 dence in which criminal libel has any share, I desire my observations 
 to be confined to the question of civil responsibility. 
 
 In the publication of matter of a libellous character, that is matter 
 which w^ould be libellous if applying to an actual person, the responsi- 
 bility is as follows : In the first place there is responsibility for the 
 words used being taken to signify that which readers would reason- 
 ably understand by them; in the second place there is responsibility 
 also for the names used being taken to signify those whom the readers 
 would reasonably understand by those names; and in the third place 
 the same principle is applicable to persons unnamed but sufficiently 
 indicated by designation or description. 
 
 My Lords, 1 demur to the observation so frequently made in 
 the argument that these principles are novel. Sufficient expression 
 is given to the same principles by Abbott, C. J., in Bourke v. Warren, 
 2 C. & P. 307 (cited in the proceedings), in which that learned judge 
 says: "The question for your consideration is whether you think 
 the libel designates the plaintiff in such a way as to let those who 
 knew him understand that he was the person meant. It is not neces- 
 
 but that he never told who the young woman was, and that it was not 
 appellant.") 
 
 And see Brown v. Journal Newspaper Co. (1915) 219 Mass. 486, 107 N. E. 
 358: (D.'s newspaper, without naming any one, charged that there was col- 
 lusion between those who conducted the tax sales in Boston and the "tax title 
 sharks." P. was collector of taxes in Boston, and as such was the only 
 person authorized by law to conduct the tax sales there.)
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 619 
 
 sary that all the world should understand the libel; it is sufficient 
 if those who know the plaintiff can make out that he is the person 
 meant." I think it is out of the question to suggest that that means 
 "meant in the mind of the writer" or of the publisher ; it must mean 
 "meant by the words employed." The late Lord Chief Justice Cole- 
 ridge dealt similarly with the point in Gibson v. Evans, 23 Q. B. D. 
 384, at p. 386, when in the course of the argument he remarked: 
 "It does not signify what the writer meant ; the question is whether 
 the alleged libel was so published by the defendant that the world 
 would apply it to the plaintiff." 
 
 Order of the Court of Appeal affirmed and appeal dismissed with 
 costs. J _ V I 
 
 (b) Publication 
 WEIR V. HOSS. 
 
 (Supreme Court of Alabama, 1844. 6 Ala. SSI.) 
 
 The action was for a libel. Upon the trial, under the general is- 
 sue, the plaintiffs proved the loss of the original libel ; and then 
 proved three copies of it; each of which was proved to be a sub- 
 stantial copy of the original libel ; and all of which differed from each 
 other in some respects, and offered the said copies in evidence. To 
 the introduction of each of said copies in evidence, the defendant 
 objected. The objections were overruled, and all of said copies read 
 to the jury; and defendant excepted. 
 
 The court charged the jury, that if they were satisfied from the 
 proof, that either of the copies of the libel offered in evidence, was 
 substantially a copy of the original libel, and that it was either com- 
 posed, or published, by defendant, they ought to find for the plaintiff's, 
 to which the defendant excepted. 
 
 Ormond, j. * * * fhe court charged, that if the defendant 
 either composed or published the libel, the jury must find for the plain- 
 tiff. This is a plain error. To constitute either verbal or written 
 slander, there must be a publication — tlie contents must be made 
 known to some third person or persons. This is not denied by the 
 counsel for the defendant in error, who insisted that the point was not 
 made in the court below, that publication was conceded, as is evident 
 from the fact that there were so many copies of the libel extant. It 
 is, to be sure, very probable that such was the fact; but still it may 
 be that the libel was not intended for publication, and that the copies 
 were taken without the consent of the defendant. There is nothing 
 in the record which conclusively shows that publication was made; 
 and as the charge was clearly erroneous in point of law, and upon 
 a point necessarily involved in the issue, it is impossible that we should
 
 620 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 say that the defendant was not prejudiced by it. It may have been 
 the point on which the case turned; and for this error, the judg- 
 ment must be reversed, and the cause remanded.** 
 
 SHEFFILL V. VAN DEUSEN. 
 
 (Supreme Judicial Court of Massachusetts, 1859. 13 Gray, 304, 
 
 74 Am. Dec. 032.) 
 
 Action of tort for slander. Trial in the court of common pleas, 
 before Briggs, J., who signed this bill of exceptions : 
 
 "The words claimed to have been slanderous, were spoken, if at all, at 
 the dwelling house of the defendants and at that part called the bakery, 
 where bread and other articles were sold to customers ; and were spoken 
 by ]Mrs. Van Deusen to Mrs. SheffiU. 
 
 "The defendants asked the court to instruct the jury that if the words 
 alleged in the plaintiffs' declaration were spoken to Mrs. Sheffill, and no other 
 person but Mrs. Shelhll and Mrs. Van Deusen were present, there was no 
 such publication of the words as would maintain the action. 
 
 "The court declined so to instruct, but did instruct the jury that if the 
 words were publicly uttered in tlie bakery of the defendants, there was 
 a suthcient publication, though the plaintiff has not shewn that any 
 other person was present, at the time they were spoken, but IMrs. Sheffill 
 and Mrs. Van Deusen. The jury returned a verdict for the plaintiffs, and 
 the defendants except." 
 
 BiGELOw, J.*^ Proof of the publication of the defamatory words 
 alleged in the declaration was essential to the maintenance of this 
 action. Slander consists in uttering words to the injury of a person's 
 reputation. No such injury is done when the words are uttered only 
 to the person concerning whom they are spoken, no one else being 
 present or within hearing. It is damage done to character in the 
 opinion of other men, and not in a party's self estimation, which con- 
 stitutes the material element in an action for verbal slander. Even 
 in a civil action for libel, evidence that the defendant wrote and sent 
 a sealed letter to the plaintiff, containing defamatory matter, was 
 held insufficient proof of publication ;*® although it would be other- 
 
 44 The statement of facts is abridged and part of the opinion is omitted. 
 
 45 Tart of the opinion is omitted. 
 
 46 Accord : Economopoulos v. Pollard Co. (1914) 218 Mass. 294, 105 N. E. 
 S06: (D.'s clerk said to P., in a store: "You have stolen a handkerchief." 
 There was no evidence that a third person heard the words.) Phillips v. 
 Jausen (1798) 2 Esp. 624: (D, wrote and mailed to P. a sealed letter which 
 defamed P.) Yousling v. Dare (1904) 122 Iowa. 539, 98 N. W. 371. Clutter- 
 buck V. Chaffers QSIG) 1 Stark. 471, 18 r: K. 811 : (D. wrote and sent to P. 
 by S. a folded but unsealed letter which defamed P. Without reading it or 
 allowing any other person to read it, S. delivered the letter to P.) Fonville 
 V. McNease (18;i8) Dud. (S. C.) 303. 31 Am. Dec. 556: (D. wrote a letter 
 which defamed P., sealed it, addressed it to P., "or Miss Susan Sloan," 
 and threw it sealed into an inclosure, where it was picked up by a stranger 
 and delivered to P., who opened and read it aloud.) Western Union Tele- 
 graph V. Cashnian (19(Xi) 149 Fed. :'.G7, 81 C. C. A. 5, 9 L. R. A. (N. S.) 140, 
 9 Ann. Cas. 693: (A libelous message was delivered to an otfice boy to make
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 621 
 
 wise in an indictment for libel, because such writings tend directly 
 to a breach of the peace. * * * 47 
 
 It is quite immaterial in the present case that the words were spoken 
 in a public place. The real question for the jury was, were they so 
 spoken as to have been heard by a third person? The defendants 
 were therefore entitled to the instructions for which they asked. 
 
 Exceptions sustained. 
 
 WENMAN V. ASH. 
 
 (Court of Coramon Pleas, 1853. 13 C. B. 836, 138 Reprint, 1432, 93 R. R. 761.) 
 
 This was an action for a libel contained in a letter addressed by 
 the defendant to the wife of the plaintiff. The defendant pleaded 
 Not guilty, and on this issue submitted that there was no proof of 
 a publication. A verdict was taken for the plaintiff, damages 20s., 
 subject to leave reserved for the defendant to enter a verdict for him. 
 
 Byles, Serjt., moved accordingly: There was no publication; the 
 sending the letter to the plaintift''s wife, was like sending it to the 
 plaintiff himself; for husband and wife are for all legal purposes one. 
 (Mauls, J. Is a man's character with his wife worth nothing?) It 
 is difficult to see how he could sustain injury from a communication 
 made to her. * * * ^^ 
 
 a letter press copy. The boy made the copy. There was no evidence that he 
 read the letter.) 
 
 Compare Kiene v. Rufif (1855) 1 Iowa, 482: (The libelous letter was 
 transcribed by S. and then mailed to P.) And see IS Halsbury's Laws of 
 England, 658-659 (1911) ; 25 Cyc. 365, 366 ; Cent. Dig. "Libel and Slander," 
 §§ 106-108; Dec. Dig., Key-No., "Libel and Slander," §§ 23-25. 
 
 47 Spe Edwards v. Wooton (1602) 12 Co. Rep. 35, a case in tJae Star 
 Chamber, between Edwards, a physician, plaintiff, and Wooton, a doctor in 
 physic, defendant. The defendant bad sent a libel written in a letter sealed 
 and directed to the party libeled. "The doctor thought that this could not be 
 punished in any manner : but it was resolved, that the said infamous letter, 
 which in law is a libel, shall be punished (although it was solely writ to the 
 plaintiff ^A^thout any other publication) in the Star Chamber, for that it is 
 an offence to the King, and is a gi'eat motive to revenge, and tends to the 
 breaking of the i^eace and great mischief; and for that reason it was nec- 
 essary, that it should be punished either by indictment, or in the Star 
 Chamber, to prevent such occasions of mischief." 
 
 See, also, Yousling v. Dare (1904) 122 Iowa, 539, 98 N. W. 371, 372, where 
 McClain, J., remarks: "The difference between the criminal law and the 
 law of torts in this respect is manifest. The act of publishing a libel may 
 be criminal for the reason that it provokes the person libeled to wrath, and 
 tends to create a breach of the peace. 1 Bishop, New Crim. Law, § 591 (4) ; 
 2 McClain, Crim. Law, § 1055. But in a civil action it is essential that some 
 damage to the person libeled must appear, either directly or by legal inference, 
 and no such inference can be drawn from the communication of the libelous 
 matter to the very person concerning whom the language was used. Such 
 a distinction is illustrated by the statutory provision as to the publication of 
 libelous matter respecting one who is deceased. Such a publication may 
 constitute a crime (Code, § 50S6), but cannot form the basis of an action 
 for civil damages in behalf of any person. Bradt v. New Nonpareil Co. 
 [1899J 108 Iowa, 449, 79 N. W. 122, 45 I-. R. A. 681." 
 
 4 8 The statement of the case is abridged, and parts of opinions of Jervis, 
 C. J., and Maule, J., and opinion of Creswell, J., are omitted.
 
 622 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 Je^rvis, C. J. I am of opinion that this rule must be discharged. It 
 was sufficiently pointed out in the course of the discussion that it must 
 necessarily be injurious to a man to have a communication like that 
 in question addressed to his wife. Notwithstanding the ingenious 
 argument of my Brother Byles, it is enough to say that I think there 
 was a publication, and that of a matter calculated to operate inju- 
 riously to the plaintiff, and sufficient to maintain this action. * * * 
 
 Mauls, J. I am of the same opinion. In the eye of the law, no 
 doubt, man and wife are for many purposes one : but that is a strong 
 figurative expression, and cannot be so dealt with as that all the con- 
 sequences must follow which would result from its being literally 
 true. For many purposes, they are essentially distinct and dift'erent 
 persons, and, amongst others, for the purpose of having the honour 
 and the feelings of the husband assailed and injured by acts done or 
 communications made to the wife. * * * 49 
 
 Rule discharged. 
 
 'fc>^ 
 
 49 Accord: Schenck v. Schenck (1S43) 20 N. J. Law, 208; Luick v. Driscoll 
 (1S95) 13 Ind. App. 279. 41 N. E. 4G3. 55 Am. St. Kep. 224. 
 
 On the question whether a communication to the plaintiff's agent is a 
 publication on which the plaintiff may rely, see Duke of Bmns%Aack v. 
 Harmer (1849) 14 Q. B. 185, 117 Reprint, 75, SO R. R. 241 : (In 1830 a libel of 
 P. was published in D.'s newspaper. In 1847 P. sent S. to the ofiice of this 
 newspaper, to purchase a copy of the paper containing this libel of 17 years 
 before. S. made the purchase of D., and handed the copy to P. It was 
 contended that there was no publication within six years. Said Coleridge, 
 J., delivering the opinion: "It appeared that the publication relied on was 
 a sale of a copy of the newspaper to a person sent by the plaintiff to pro- 
 cure it, who, on receiving it, carried it to the plaintiff. It was said that 
 this was a sale to the plaintiff himself, and, therefore, not a sufficient 
 publication to sustain a civil action for damages. And, in some sense, it is 
 true that it was a sale and delivery to the plaintiff ; but we think it was 
 also a publication to the agent. The question arises as on a plea of Not 
 guilty in an ordinary case. The defendant, who, on the application of a 
 stranger, delivers to him the writing which libels a third person, publishes 
 the libellous matter to him, though he may have been sent for the purpose 
 of procuring the work by that third person. So far as in him lies, he lowers 
 the reputation of the principal in die mind of the agent, which, although 
 that of an agent, is as capable of being affected by the assertions as if he 
 were a stranger. The act is complete by the delivery : and its legal char- 
 acter is not altered, either by the plaintiff's procurement or by the subse- 
 quent handing over of the writing to liim. Of course that this publication 
 was by the procurement of the plaintiff is not material to tlie question we 
 are now considering." See, also, Massee v. Williams (1913) 207 Fed. 222, 
 229, 124 C. 0. A. 492; Brown v. Elm City Lumber Co. (1914) 107 N. C. 9, 
 82 S. E. 961. 
 
 But see the doctrine of decoy publication as a defense, given infra, "Other 
 Excuses for Defamatory Charges Confessedly Untrue." 
 
 Compare: Wennliak v. Morgan (IS.SS). 20 Q. li. D. 035, where ITuddleston, 
 B., delivering the opinion remarks: "This is as far as we know tlie first time 
 it has ever been alleged in cases of this kind that tlie handing over of a libel 
 by the libeller to his wife is a publication. I think that tlie question can be 
 decided on the common law principle that luisl>and and wife are one." 
 
 Sesler v. Montgomery (ISSO) 78 Cal. 4.SG, 21 Pac. 1S5, 3 L. R. A. 053, 12 Am. 
 St. Rep. 70. In this case, McEarland, J., coiiiincnting on Schenck v. Sclu'iick 
 (1843) 20 N. J. Law, 208, remarked: "Whether or not that decision was 
 a correct exposition of the law, it is clear, at lea.st, that another princii)le 
 was involved. As the court say in that case: "Such a communication matle
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 623 
 
 RUMNEY V. WORTHLEY. 
 
 (Supreme Judicial Court of Massachusetts, 19(M. 186 Mass. 144, 71 N. E. 316, 
 
 1 Ann. Cas. 189.) 
 
 Tort to recover damages for a libel contained in two letters sent by 
 tbe defendant to the plaintiff through the mail. The letters were 
 sent to the plaintiff at his residence, and were opened and read aloud 
 by his wife and daughter. The superior court found that there was 
 no publication of the letters, and directed a verdict for the defendant. 
 
 KnowIvTON, C. J.^'^ * * * The question in this case is whether 
 there was any evidence which would have warranted the jury in find- 
 ing that the defendant believed, or had good reason to believe, that 
 the letters might be opened and read by the plaintiff's daughter in 
 his absence, and that she was authorized to open her father's letters. 
 The question of difficulty is whether there was evidence that the de- 
 fendant was aware that she was accustomed or authorized to read 
 such letters addressed to her father. On this point the testimony is 
 very unsatisfactory. She testified that she had known the defendant 
 for five years ; that he came to the store a great mau}^ times for 
 the purpose of selling goods; that during the year immediately prior 
 to the receipt of these letters he had seen her at least two or three 
 times receive mail addressed to her father and open it in his presence ; 
 that she knew this had happened several times, and that she could not 
 state the exact number of times ; that he had seen her, after open- 
 ing the letters, walk with them to her father, and show him the con- 
 directly to the wife is an attempt to poison the fountain of domestic peace, 
 conjugal affection, and filial obligation, at their very sources.' There the 
 exception which was allowed to the general rule was in support of the 
 confidential relation of marriage; while in the case at bar the exception 
 sought to be established would be destnictive of that relation. Our con- 
 clusion is, that a communication from a husband to a wife, not in the 
 presence of any other person, does not constitute a publication within the 
 meaning of the law of slander. It follows from this conclusion that the 
 judgment in the case at bar was erroneous." 
 
 But see Trumbull v. Gibbons (1816) 3 City Hall Recorder (N. Y.) 97, 
 commented on in Wennhak v. Morgan, ante: (D. printed in New York 
 fifty copies of a pamphlet which libeled P. Five copies were sent by D. to 
 his wife in New Jersey ; four of them bore the names of acquaintances of 
 his mfe, but there were no instructions as to what she should do with them. 
 She delivered two copies in New Jersey to the persons whose names they 
 bore, and handed the rest to P. in New Jersey. Held, that there was a 
 publication by D, in New Jersey.) 
 
 5 Part of the opinion, on the effect of sending a libelous letter through 
 the mail to the person libeled, with no reason to suppose that it will be 
 opened and read by any one else, is omitted. On this point, Knowlton, C. 
 J., referred to Clutterbuck v. Chaffers (1816) 1 Stark. 471 ; Delacroix v. 
 Thevenot (1817) 2 Stark. 63; Robinson v. Jones (1879) 4 L. R. (Ir.) 391; 
 Fonville v. McNease (1838) Dud. (S. C.) 303, 31 Am. Dec. 056; Fry v. Mc- 
 Cord (1895) 95 Tenn. 678, 33 S. W. 568; Sylvis v. Miller (1896) 96 Tenn. 
 95, 33 S. W. 921; Spaits v. I'oundstoue (1882) 87 Ind. 522, 44 Am. Kep. 773: 
 Mcintosh V. Matherly (1848) 9 B. Mon. (Ky.) 119; Waruock v. Mitchell 
 (1S90 C. C.) 43 Fed. 428.
 
 624 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 tents of them. Without repeating her testimony on this point, which 
 was of considerable length, we are of opinion that the jury fairly 
 might have inferred from it that, as clerk in the store which was 
 owned by her mother and conducted by her father, she was accus- 
 tomed to open letters addressed to him, at least if they looked like 
 letters pertaining to the business, and that the defendant knew it. 
 Printed on the face of the libelous letters were these words: "In 
 five days return to D. E. Worthley, 27 Canada Street, Lowell, Mass." 
 This was the defendant's business address. We infer that the let- 
 ters appeared externally like the ordinary business letters of the de- 
 fendant. We do not attach much importance to the fact that they 
 were addressed to No. 12 Burt street, instead of No. 14 Burt street, 
 for the dwelling house and store were connected. If the case stood 
 upon the testimony in direct examination, we should think the jury well 
 might infer knowledge on the part of the defendant that the plaintiff's 
 daughter was accustomed to open letters which looked like these, and, 
 with considerable hesitation, we are inclined to think that the cross- 
 examination, taken in connection with the direct examination, would 
 warrant the jury in coming to the same conclusion. If he sent the 
 letters, having good reason to believe that they were likely to be open- 
 ed by an authorized person other than the plaintiff, his sending them 
 by mail was a publication.^^ 
 Verdict set aside. 
 
 51 Accord: Delacroix v. Tlievenot (1817) 2 Stark. 03: (D. wrote, sealed, 
 and mailed to P. a letter which defamed P. The letter was opened in regular 
 course of business by P.'s clerk, the letter not being marked "private." 
 D. knew of the clerk's emiiloyment in this way.) Pullman v. Hill & Co. [ISOl] 
 1 Q. B. 524: (A letter which libeled the plaintitfs was addressed in the name 
 of the firm of which they were members. The letter was opened by a clerk 
 in the ordinary course of business and was read liy two other clerks. If it 
 had been directed to the plaintiffs in their individual capacity, the letter 
 would probably not have been opened by a clerk.) Allen v. Wortham (1S90) 
 S9 Ky. 485, 13 S. W. 73, 11 Ky. Law Rep. 697: (D. writes and mails to P. 
 a letter which defames him, but P. is vmable to read, and has S. read the 
 letter to him.) And see the remark of Taft, J., in Wilcox v. Moon (1892) G4 
 Yt. 450, 24 Atl. 244, 15 L. II. A. 700, .33 Am. St. Rep. 936: "Sending [a letter] 
 to a party who cannot read, if this is known to the sender, and the party 
 to whom it is sent from necessity procures another to read it, is likewise 
 evidence of a publication." 
 
 Compare : Iluth v. Hnth (1915), in the Court of Appeal, London Times for 
 March 27, 1915: (In 1898 Miss Edith Greaves was mai-ried to Captain Iluth. 
 In 1913 Mrs. Iluth, because of differences with her husband, left his house 
 and went to live at Torquay. The alleged libel was in a document sent by 
 Mr. Iluth, the defendant, to Mrs. Huth by post in an unsealed envelope bear- 
 ing a i/^d. stamp, and addressed "Miss IMith (Jreaves, care of Mrs. Stark, 
 Torquay." This letter was received at Mrs. lluth's house in Torquay l)y hor 
 butler. Yielding to his curiosity over the unusual address, the butler took 
 the document out of its unsealed envelope and read it. It was contended 
 that tliere had been a publication by the del'endant in two respects: Tlie 
 butler had in fact i*ead the document; the defendant had sent it in the un- 
 sealed envelope by the post. In his opinion in the Court of Appeal, the Lord 
 Chief Justice said that he found no evidence of pul)lication to the butler. 
 It could not bo contended that it would amount t« a publication by the sender 
 if a third i>erson in breach of his duty opened and read a letter when the
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 625 
 
 PRICE V. JENKINGS. 
 (In the Exchequer Chamber, 1601. Cro. Eliz. 865, 78 Reprint, 1091.) 
 
 Action for words. And declares, that the defendant spake these 
 words in Welsh (reciting them particularly), signifying hrec Anglicana 
 verba: "Thou hast murdered thy wife." After verdict, and judg- 
 ment for the plaintiff, error was brought and assigned in hoc, that 
 it is not averred that the words were spoken in the company of 
 Welshmen, or of such who understood the Welsh tongue ; but it is 
 alledged that they were spoken in presentia et auditu quamplurimorum 
 subditorum dominse reginae. And the action was brought in the 
 county of Monmouth, which was once parcel of Wales, but was now 
 an English county. 
 
 And all the Justices and Barons held that for this cause it was 
 erroneous : for it shall not be intended that any there understood the 
 said tongue, unless it had been shewn ; and then it was not any 
 slander, no more than if one spake slanderous words in French or 
 Italian, an action lies not, unless it be averred that some there present 
 understood those languages; as it was held in the case of Johns v. 
 Daux. But because the damages were found to £50 and if the plain- 
 tiff should begin de novo he might not have peradventure so great 
 damages, they moved him to accept of £10 and to make an end with- 
 out further proceedings: and so it was done, and no judgment en- 
 tered.^2 
 
 sender had no reason to expect anything of the kind. As to the suggestion 
 of publication in the post otSce, tlie Lord Chief Justice remarlved that he 
 would be soriy to lay do^Ti anything that would allow libels to be published 
 with greater safety. In the case of a postcard, it was presumed, in the ab- 
 sence of evidence to the contrary, that some person, other than the addressee 
 would read it. But the contention that the same presumption would be made 
 in the case of a letter of which the envelope was not fastened down amounted 
 to saying that a document without a cover was the same thing as a docu- 
 ment with a cover. In his opinion there was no such presumption. It was 
 time that the post office authorities had a right to examine documents en- 
 closed in envelopes with %d. stamps, but that in itself was not enough ; 
 to show publication it would be necessary to call some one from the post 
 office who had in fact opened the letter. 
 
 Compare also : Wilcox v. Moon (1892) ante : (D. addressed a libelous 
 letter to P. It was received at the post office by P.'s husband, and delivered 
 to her unopened, whereupon she broke the seal and they read it together.) 
 
 Shepard v. Lamphier (1914) 84 Misc. Rep. 498, 146 N. Y. Supp. 745, 748: 
 (D., a married man, addressed and mailed to P., a married woman, a letter 
 proposing immoral conduct. P. laid the letter before the postal authorities.) 
 
 52 Accord: Jones v. Davers (1596) Cro. Eliz. 497: (The plaintiff alleged 
 that the defendant dixit et propalavit hsec Latina verba in prtesentia 
 diversorum, qui intellexerunt Romanam linguam, viz. "inimicus meus (in- 
 nuendo the plaintiff) is an extortioner." On the plaintiff's demurrer to a 
 defective plea, it was contended that the declaration was defective, for "it 
 is supposed that the defendant spoke slanderous words in Latin, in prjiesentia 
 diversorum who understood linguam Romanam, which well may be ; for 
 lingua Romana at this day intends tlie Italian tongue, and not the Latin 
 
 Hepb. Torts — 40
 
 626 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 SAD'GROVE V. HOLE. 
 
 (In the Court of Appeal. [1901] 2 K. B. 1.) 
 
 The defendant, as managing director of a limited company, em- 
 ployed an architect on behalf of the company to prepare plans and 
 drawings relative to a proposed addition to the company's premises. 
 The architect was directed to employ a quantity surveyor to make 
 out a bill of quantities, and he instructed the plaintiff to do this. The 
 bill of quantities was accordingly prepared by the plaintiff, and copies 
 were sent to seven builders whose names had been supplied by the 
 defendant, and to whom invitations to tender for the work had been 
 given. The contents of the bill of quantities came to the knowledge 
 of the defendant, who appears to have thought that the amount of 
 work indicated therein was much in excess of that which the company 
 desired should be done. The defendant thereupon wrote and sent 
 by post to one of the seven builders a post-card which was as fol- 
 lows : "The quantities sent you this morning by architect are entirely 
 wrong. I have plans &c., here, and you can give me prices on these. 
 Yours, &c., S. Hole." The defendant also wrote and sent by post 
 to another of the seven builders a post-card which was as follows : 
 "There are great errors in the quantities posted to you this morning. 
 H you will call here you can see plans and give me price on these. 
 Yours obediently, S. Hole." 
 
 The plaintiff brought an action for libel on these two post-cards, 
 alleging that they were defamatory of him in his calling of quantity 
 .surveyor. The defence was a denial that the words were published 
 concerning the plaintiff, that they bore the interpretation placed upon 
 them in the statement of claim, and that they amounted to defamatory 
 matter. The defendant also pleaded that the publication to the build- 
 ers was privileged and made bona fide and without malice. To this 
 the plaintiff replied alleging express malice, and that the contents of 
 the post-cards were necessarily communicated and published to the 
 postmen and clerks through whose hands they respectively passed 
 before reaching the persons to whom they were addressed. No one 
 through whose hands either of the post-cards had passed was called 
 as a witness at the trial. 
 
 The learned judge held that the words were capable of a defama- 
 tory meaning; that the occasion was not privileged; and he left the 
 
 tonpnie.") "Economopoulos v. Pollard Co. (1914) 218 Mass. 204, 105 N. E. 896 : 
 (D.'s clerk said to P. in D.'s store : "You have stolen a handkerchief of us 
 and have it in your pocket." The words were spoken in Greek, and in the 
 hearing of others, but there was no evidence that any one understood tlieni 
 except P.) 
 
 Compare: Steketee v. Kinnn (1882) 48 Mich. ?.22, 12 N. W. 177: (Action for 
 a liljel published in the Dutch language in a newspaper having a large 
 circulation among Hollanders in Michigan.)
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 627 
 
 case to the jury, who returned a verdict for the plaintiff for £5, and 
 judgment was entered for that amount. The defendant appealed. 
 
 A. L. Smith, M. R." * * * The plaintiff' to succeed in the ac- 
 tion must prove a publication of and concerning him of libellous mat- 
 ter, and if he does not satisfy the onus of proof which is on him in 
 this respect there is no cause of action. It is certainly my opinion 
 that if a man writes a libel on the back of a post-card and then sends 
 it through the post there is evidence of publication, as in the case of 
 a telegram. The cases cited shew that the two stand on the same 
 footing. What, then, did the plaintiff prove ? He proved the sending 
 of a post-card; but, on the evidence, it is clear that he did not prove 
 any publication of a libel on him until the post-card got into the hands 
 of the builder, because then for the first time could any knowledge 
 arise as to the person to whom the post-card referred. I quite agree 
 that if the name of the plaintiff' had appeared on the post-card there 
 would have been plenty of evidence of publication to persons other 
 than the builder.^* That, however, was not the case, and the plain- 
 tiff" did not prove publication to any one before the post-card got into 
 the builder's hands, and as a communication to him it was privileged 
 unless there was evidence of express malice. * * * 55 
 
 I come to the conclusion, therefore, that the appeal must be allowed 
 and judgment entered for the defendant. 
 
 OWEN V. OGILVIE PUB. CO. 
 
 (Supreme Court of New York, Appellate Division, Second Department, 1898. 
 32 App. Div. 465, 5.3 N. Y. Supp. 1033.) 
 
 The action was against the publishing company. From a judgment 
 for the plaintiff and an order denying a new trial, the defendant ap- 
 pealed. 
 
 Hatch, J.^® * * * ^he libel consisted in the dictation of a let- 
 ter by the defendant's general manager to a young lady employed by 
 the corporation as a stenographer and typewriter in the private office 
 of the general manager. The letter was written in reference to the 
 business of the corporation, and had relation to a small sum of money 
 
 53 Part of tlie opinion, as well as tlie concurring opinion of Collins, L. J., 
 are omitted. 
 
 64 That sending a defamatory statement by iK)stal card or by telegram is 
 a publication, see Williamson v. Freer (1874) L. R. 9 C. P. 303 ; Robinson 
 V. Jones (1879) 4 L. R. Ir. 391; Logan v. Hodges (1907) 146 N. C. 38, 59 S. 
 E. 349, 14 Ann. Cas. 103; 18 IIalsl)ury's Laws of England, 661 ; 25 Cyc. 3G9. 
 
 55 The Master of the Rolls was, however, of opinion tliat there was no 
 evidence of express malice: "It is said that the mere writing of a post- 
 card and sending it by mail, instead of sending a closed letter, was evi- 
 dence of malice, and I agree that if the name of tlie plaintiff had appeared 
 on the card that would have been so; but in this case tliere was nothing to 
 connect the libel with the plaintiff, and no evidence of malice." 
 
 5s Parts of the opinion are omitted.
 
 628 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 missing from the cash drawer, and the letter expressed a suspicion 
 that the money had been taken by the plaintiff during her employ- 
 ment by the defendant, on the day before. 
 
 The law is elementary that there can be no libel without a publica- 
 tion of the libelous matter. We may assume that this letter was 
 libelous. Was there a publication of it by the corporation, within 
 the meaning of the law? Ordinarily, when a letter is written and 
 delivered to a third person, with the intent and expectation that it shall 
 be read by such person, and it is actually read, the publication is com- 
 plete. Youmans v. Smith, 153 N. Y. 214, 47 N. E. 265. Has such 
 rule application to the facts of this case? The letter was dictated 
 to the stenographer, and was by her copied out, was signed by the 
 manager, was then inclosed in an envelope, and sent by mail to the 
 address of the plaintiff. It may be that the dictation to the stenog- 
 rapher and her reading of the letter would constitute a publication of 
 the same by the person dictating it, if the relation existing between 
 the manager and the copyist was that of master and servant, and the 
 letter be held not to be privileged. Such, however, was not the rela* 
 tion of these persons. They were both employed by a common master, 
 and were engaged in the performance of duties which their respective 
 emj?loyments required. Under such circumstances we do not think 
 that the stenographer is to be regarded as a third person in the sense 
 that either the dictation or the subsequent reading can be regarded as 
 a publication by the corporation. It was a part of the manager's duty 
 to write letters for the corporation, and it was the duty of the stenog- 
 rapher to take such letter in shorthand, copy it out, and read it for 
 the purpose of correction. The manager could not write and publish 
 a libel alone, and we think he could not charge the corporation with 
 the consequences of this act, where the corporation, in the ordinary 
 conduct of its business, required the action of the manager and the 
 stenographer in the usual course of conducting its correspondence. 
 The act of both was joint, for the corporation cannot be said to have 
 completed the act which it required by the single act of the manager, 
 as the act of both servants was necessary to make the thing complete. 
 The writing and the copying were but parts of one act; i. e. the 
 production of the letter. Under such conditions we think the dicta- 
 tion, copying, and mailing are to be treated as only one act of the 
 corporation ; and, as the two servants were required to participate in 
 it, there was no publication of the letter, in the sense in which that 
 term is understood, by delivery to and reading by a third person. 
 There was in fact but one act by the corporation, and those engaged 
 in the performance of it are not to be regarded as third parties, but 
 as common servants engaged in the act. We do not deny but that 
 there can be publication of a libel by a corporation by reading the 
 libelous matter to a servant of such corporation, or delivering it to be 
 read. Where the duties devolved upon such servant are distinct and 
 independent of the process by which the libel was produced, he might
 
 Ch.2) 
 
 ABSOLUTE TORTS OTHER THAN TRESPASSES 629 
 
 well stand in the attitude of a third person through whom a libel can 
 be published. But such rule may not be applied where the acts of the 
 servants are so intimately related to each other as is disclosed in the 
 present record, and the production is the joint act of both. As there 
 was no other proof of publication aside from the reading by the stenog- 
 rapher, it is insufficient to uphold a finding that the libel was pub- 
 lished.'^' * * * 
 
 It follows that the judgment should be reversed, and a new trial 
 granted; costs to abide the event. * * * All concur. 
 
 5 7 In Pullman v. Hill & Co., [1S91] 1 Q. B. 524, a defamatory letter was dic- 
 tated by the defendants' managing director to a short-hand clerk, who tran- 
 scribed it by a typewriter machine. Lord Esher, M. R., delivering an opinion 
 In the Court of Appeal, reasoned thus: "The first question is whether, assum- 
 ing the letter to contain defamatory matter, there has been a publication of it. 
 What is the meaning of 'publication'? The making known the defamatory 
 matter after it has been written to some person other than the person of whom 
 it is written. If the statement is sent straight to the person of whom it is 
 written, there is no publication of it ; for you cannot publish a libel of a 
 man to himself. If there was no publication, the question whether the occa- 
 sion was privileged does not arise. If a letter is not communicated to any 
 one but the person to whom it is written, there is no publication of it. And, 
 if the writer of a letter locks it up in his own desk, and a thief comes and 
 breaks open the desk and takes away the letter and makes its contents known, 
 I should say that would not be a publication. If the writer of a letter shews 
 it to his own clerk in order that the clerk may copy it for him, is that a pub- 
 lication of the letter? Cert^ainly it is shewing it to a third person ; the writ- 
 er cannot say to the person to whom the letter is addressed, "I have shewn it 
 to you and to no one else.' I cannot, therefore, feel any doubt that, if the 
 writer of a letter she-n^ it to any person other than the person to whom it is 
 written, he publishes it. If he wishes not to publish it, he must, so far as he 
 possibly can, keep it to himself, or he must send it himself straight to the 
 person to whom it is written. There was, therefore, in this case a publica- 
 tion to the typewriter." 
 
 In accord with Pullman v. Hill & Co. are Gambrill v. Schooley (1901) 93 Md. 
 48, 48 Atl. 730, 52 L. R. A. 87, 86 Am. St. Rep. 414 ; Ferdon v. Dickens (1909) 
 161 Ala. 181, 49 South. 888; Puterbaugh v. Gold Medal Mfg. Co. (1904) 7 Out. 
 L. Rep. 582, 1 Ann. Cas. 100: (S., the manager of D., a mercantile corporation, 
 having written out the draft of a letter to P., which charged him with theft, 
 handed the draft to a clerk of D., to be copied on a typewriter. The clerk did 
 so, stamped the company's name at the foot of the copy, and brought it to S., 
 who wrote his name beneath that of the company, and gave it back to the 
 clerk, to be closed and mailed to P., which was done.) 
 
 In Puterbaugh v. Gold Medal Mfg. Co., ante, the Ontario Court of Appeal, 
 reversing the divisional Court (5 Out. L. Rep. 680), held that there had been 
 a publication of the libel by the defendant, on the autliority of Pullman v. 
 Hill & Co. But on the prmciple involved, Moss, C. J. O., remarked: "It ap- 
 pears to me that in view of recognized methods of conducting the business 
 affairs of large commercial and manufacturing corporations in this country it 
 would not be unreasonable to hold that where the manager or other officer of 
 such a corporation within the scope of whose duty falls that of dealing with 
 any matter of concern to the business, dictates a letter on a business matter 
 of the corporation to a stenographer in its employ who thereupon transcribes 
 it for signature in the ordinary course, such acts ought not to be treated as 
 publication so as to render the corporation liable to an action for libel for 
 the matter contained in the letter. The stenographer ought not to be regarded 
 as a third person. The communication to him ought to be treated as privi- 
 leged. There is to my mind much force in the statement of the learneil Judge 
 who delivered the jud'zment of the Court in Owen v. J. S. Ogilvie Pub. Co. 
 [189S] 32 App. Div. 4(i7 [53 N. Y. Supp. 1033]." 
 
 In England, the doctrine of Pullman v. Hill & Co. has been materially quali-
 
 630 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 VIZETELLY v. MUDIE'S SELECT LIBRARY, Limited. 
 
 (In the Court of Appeal. [1900] 2 Q. B. 170.) 
 
 The action was for a libel contained in a book, copies of which had 
 been circulated and sold by the defendants, who were the proprietors 
 of a circulating library with a very extensive business. The defend- 
 ants in their defence stated that, if they sold or lent the book in 
 question, they did so without negligence, and in the ordinary course 
 of their business as a large circulating library ; that they did not know, 
 nor ought they to have known, that it contained the libel complained 
 of ; that they did not know and had no ground for supposing that it 
 was likely to contain libellous matter ; and that under the circumstances 
 so stated they contended that they did not publish the libel. 
 
 The libel complained of was a short passage in a book called "Emin 
 Pasha : His Life and Work," published in October, 1898, by Archibald 
 Constable & Co. The special circumstances in the case brought to 
 the attention of the jury were as follows : 
 
 The plaintiff on becoming aware of the libel brought an action for 
 libel against Messrs. Constable & Co., which was settled by their pay- 
 ing £100 damages, apologizing, and undertaking to withdraw the libel 
 from circulation. In the issue of the Publishers' Circular, a recog- 
 nized medium for trade advertisements of the kind, for November 12, 
 1898, a notice was inserted to the effect that Messrs. Archibald Con- 
 stable & Co. requested that all copies of vol. 1 of "The Life and Work 
 of Emin Pasha" might be returned to them immediately, as they wished 
 to cancel a page, and insert another one in its place, and stating that 
 they would of course defray the carriage both ways, if desired. A 
 similar notice was inserted on the same date in the Athenaeum news- 
 paper, a well-known medium of communication among literary people. 
 In March, 1899, it came to the plaintiff's knowledge that the defend- 
 ants were lending copies of the work as originally published to sub- 
 scribers, and also selling surplus copies of the same, and he thereupon 
 commenced the action against them. It appeared that none of those 
 engaged in the conduct of the defendants' business had seen the be- 
 fore-mentioned notices in the Publishers' Circular and Athenaeum, 
 though the defendants took in those papers. Mr. A. O. Mudie, one 
 
 fied and distinsuisbed. in Boxsius v. Goblet Freres, [1894] 1 Q. B. 842, and 
 Edmondsou v. Birch & Co., [1907] 1 K. B. 371. In the former case the decision 
 in Pullman v. Hill & Co. is put on the ground that it does not fall within the 
 ordinary business of a merchant to write such defamatory statements, and 
 that, if he does so, it is not reasonably necessary, as he is doiug a thing not 
 in the ordinary course of his business, that he should cause the statomcut to 
 be copied by a clerk in his ollice. In the Edmond.son Case, Fletcher Moulton, 
 C. J., concurring with Collins, M. R., and Cozeus-IIardy, L. J., summed up the 
 dwtrine thus: "In my opinion the law on the subject, as laid down in the 
 cases, amounts to this: If a business communication is privileged, as being 
 made on a privileged occasion, the privilege covers all incidents of tlie trans- 
 mission and treatment of that cunuuuuication which are in accordance with 
 the reasonaijle and usual course of busines.s."
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 631 
 
 of the defendants' two managing directors, who was called as a wit- 
 ness for the defendants, gave evidence to the eilfect that the defend- 
 ants did not know when they circulated and sold the book in question 
 that it contained the passage complained of. He stated that the books 
 which they circulated were so numerous that it was impossible in the 
 ordinary course of business to have them all read, and that they were 
 guided in their selection of books by the reputation of the publishers, 
 and the demand for the books. He said in cross-examination that 
 there was no one else in the establishment besides himself and his co- 
 director who exercised any kind of supervision over the books ; that 
 they did not keep a reader or anything of that sort ; that they had had 
 books on one or two occasions which contained libels ; that that would 
 occur from time to time ; that they had had no action brought against 
 them for libel before the present action; and that it was cheaper for 
 them to run an occasional risk of an action than to have a reader. 
 
 In summing up, Grantham, J., directed the jury to consider whether, 
 having regard to this evidence, the defendants had used due care in the 
 management of their business. The jury found for the plaintiff, 
 damages £100. The defendants applied for a judgment or a new 
 trial.^« 
 
 Rome;r, L. J. The law of libel is in some respects a very hard one. 
 In the remarks which I am about to make I propose to deal only 
 with communications which are not privileged. For many years it 
 has been well settled law that a man who publishes a libel is liable 
 to an action, although he is really innocent in the matter, and guilty 
 of no negligence. That rule has been so long established as to be in- 
 capable of being altered or modified, and the Courts, in endeavouring 
 to mitigate the hardship resulting from it in many cases, have only 
 been able to do so by holding that, under the circumstances of cases 
 before them, there had been no publication of the libel by the defend- 
 ant. The result, in my opinion, has been that the decisions on the 
 subject have not been altogether logical or satisfactory on principle. 
 The decisions in some of the earlier cases with which the Courts had 
 to deal are easy to understand. Those were cases in which mere car- 
 riers of documents containing libels, who had nothing to do with and 
 were ignorant of the contents of what they carried, have been held 
 not to have published libels. 
 
 Then we have the case of Emmens v. Pottle,^® in which vendors of 
 
 5 8 The statement of the case is abridged. The arguments of counsel and 
 the opinions of A. L. Smith and Vaughau Williams, L. JJ., and part of the 
 opinion of Eomer, L. J., are omitted. 
 
 5 16 Q. B. D. 354 (1885). In this case the statement of defence was in 
 two paragraphs. The first denied that the defendants had published the 
 libel. The second paragraph alleged that the defendants "are newsvendors 
 carrying on a large business at 14 and 15, Royal Exchange, in tlie city of 
 London, and as such newsvendors, and not otherwise, sold copies of the said 
 periodical called Money in the ordinary course of their said business, and 
 without any knowledge of its contents, which is the alleged publication."
 
 632 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 newspapers in the ordinary course of their business sold a newspaper 
 which contained a Hbel It was clear that selling a document which 
 contained a libel was prima facie a publication of it, but the Court 
 there held that there was no publication of the libel under the circum- 
 stances which appeared from the special findings of the jury, those 
 findings being (1) that the defendants did not know that the news- 
 papers at the time they sold them contained libels on the plaintiff; 
 (2) that it was not by negligence on the defendants' part that they did 
 not know that there was any libel in the newspapers ; and (3) that the 
 defendants did not know that the newspaper was of such a character 
 that it was likely to contain libellous matter, nor ought they to have 
 known so. Lord Esher, M. R., in this Court was of opinion that, 
 though the vendors of the newspapers, when they sold them, were 
 prima facie publishers of the libel, yet, when the special findings of 
 the jury were looked at, the result was that there was no publication of 
 the libel by the defendants. Bowen, L. J., put his judgment on the 
 ground that the vendors of the newspapers in that case were really 
 only in the same position as an ordinary carrier of a work containing 
 a libel.^'^ 
 
 The decision in that case, in my opinion, worked substantial jus- 
 tice; but, speaking for myself, I cannot say that the way in which 
 that result was arrived at appears to me altogether satisfactory ; I 
 do not think that the judgments 'very clearly indicate on what prin- 
 ciple Courts ought to act in dealing with similar cases in future. That 
 case was followed by other cases, more or less similar to it, namely, 
 Ridgway v. Smith & Son (1890) 6 Times L. R. 275, Mallon v. W. H. 
 Smith & Son, 9 Times L. R. 621, and Martin v. Trustees of the 
 
 In his reply, the plaintiff joined issue on the first paragraph of the defence, 
 and alleged, as to its second paragraph, "that the allegations therein con- 
 tained are bad in substance and in law, on the ground that, even if tlie 
 defendants sold copies of the said periodical without any knowledge of 
 their contents and in the ordinary course of their business, as alleged in 
 their defence, still, inasmuch as the defendants sold the said copies as 
 newsvendors for reward in that behalf, the said allegations disclose no an- 
 swer to the plaintiff's claim." 
 
 60 "A newspaper is not like a fire; a man may carry it about without being 
 bound to suppose that it is likely to do an injury. It seems to uie that the 
 defendants are no more liable tJian any other innocent carrier of an article 
 which he has no reason to suppose likely to be dangerous. But I by no means 
 intend to say that the vendor of a newspaper will not be responsible for a 
 libel contained in it, if he knows, or ought to know, that the paper is one 
 which is likely to contain a libel." Per Eowen, L. J., in Emmens v. Pottle 
 (1S85I IG Q. b'. D. ;i54, :J58. 
 
 Compare: Arnold v. Ingram (1012) 151 Wis. 43.S, 138 N. W. Ill, Ann. 
 Cas. 1914C, 976: (S., a clergyman, delivered a political sermon, and sent 
 a synopsis of it to a newspaper, which published it. D. in person delivered 
 the manuscript of this synopsis to tlic publisher of the paper.) Wahlheimer 
 V. Ilardenbergh (1914) IGO App. Div. 190, 145 N. Y. Supp. 101 : (!>. was the 
 general manager of an association of newspapers, organized to furnish 
 news to the papers in the as.sociation. As such D. had power to employ re- 
 porters to collect and dis.seminate news. One of his reporters sent out a 
 libelous statement to the newspapers in the association. D. had no actual 
 knowledge of this until nearly two years later.)
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 633 
 
 British Museum (1894) 10 Times L. R. 338. The result of the cases 
 is I think that, as regards a person who is not the printer or the first 
 or main publisher of a work which contains a libel, but has only taken, 
 what I may call, a subordinate part in disseminating it, in consider- 
 ing whether tliere has been publication of it by him, the particular 
 circumstances under which he disseminated the work must be consid- 
 ered. If he did it in the ordinary^ way of his business, the nature of 
 the business and the way in which it was conducted must be looked 
 at ; and, if he succeeds in shewing (1) that he was innocent of any 
 knowledge of the libel contained in the work disseminated by him, 
 (2) that there was nothing in the work or the circumstances under 
 which it came to him or was disseminated by him which ought to have 
 led him to suppose that it contained a libel, and (3) that, when the 
 work was disseminated by him, it was not by any negligence on his 
 part that he did not know that it contained the libel, then, although 
 the dissemination of the work by him was prima facie publication of 
 it, he may nevertheless, on proof of the before-mentioned facts, be held 
 not to have published it. But the onus of proving such facts lies on 
 him,^^ and the question of publication or non-publication is in such a 
 case one for the jury. 
 
 Applying this view of the law to the present case, it appears to me 
 that the jury, looking at all the circumstances of the case, have in 
 effect found that the defendants published the libel complained of, and 
 therefore the defendants are liable, unless that verdict is disturbed. 
 Looking at the special circumstances of the case which were brought 
 to the attention of the jury, I cannot say that they could not reasonably 
 find as they did. * * * 
 
 Application dismissed. 
 
 61 "I agree that the defendants are prima facie liable. They' have 
 handed to other people a newspaper in which there is a libel on the plain- 
 tiff. I am inclined to think that this called upon the defendants to shew 
 some circumstances which absolve them from liability, not by way of privi- 
 lege, but facts which shew that they did not publish the libel." Per Lord 
 Esher, M. R., in Emmens v. Pottle (1885) 16 Q. B. D. 354, 357. 
 
 "Every sale or delivery of a written or printed copy of a libel is a fresh 
 publication, and every person who sells a written or printed copy of it may 
 be sued therefor, and the onus of proving that he was ignorant of its contents 
 is on the defendant." Per Manning, J., in Staub v. Van Beuthuysen (1884) 36 
 La. Ann. 467, 469. The libel here was a cartoon in a newspaper sold at 
 a news stand "where all the local newspapers and tlie principal ones from 
 other cities are constantly sold."
 
 G34 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 (c) "Falsely and Maliciously" 02 
 
 GREENWOOD v. PRICK. 
 
 (Court of King's Bench. Cited in Cro. Jac. 91, 79 Reprint, 78.) 
 
 Coke cited a case where Parson Prick in a sermon recited a story 
 out of Fox's Martyrology, that one Greenwood, being a perjured per- 
 son and a great persecutor, had great plagues inflicted upon him, and 
 was killed by the hand of God ; whereas in truth he never was so 
 plagued, and was himself present at that sermon ; and he thereupon 
 brought his action upon the case, for calling him a perjured person: 
 and the defendant pleaded not guilty. And this matter being disclosed 
 upon the evidence, Wray, Chief Justice, delivered the law to the jury, 
 that it being delivered but as a story, and not with any malice or inten- 
 tion to slander any, he was not guilty of the w^ords maliciously ; and 
 so was found not guilty. 14 Hen. 6, pi. 14. 20 Hen. 6, pi. 34. And 
 PoPHAM affirmed it to be good law, when he delivers matter after 
 his occasion as matter of story, and not with any intent to slander 
 any.®^ 
 
 6 2 The common law declaration in trespass on the ease for slander or libel 
 regularly contained this allegation : "Yet the said defendant, well knowing 
 the premises, but greatly envying the happy state and coudition of the 
 said plaintiff, and contriving and wickedly and maliciously intending to in- 
 jure the said plaintiff, * * * then and there falsely and maliciously 
 spoke and published" (or, in libel, "falsely, wickedly and maliciously com- 
 posed and puldished) of and concerning the plaintiff." See Whittier's Cases 
 on Common Law Pleading, 127-130 ; Stephen on I'leading (Williston's Ed.) 44. 
 
 The Common Law Procedure Act of 1S52 prescribed this form for slander: 
 "That the defendant falsely and maliciously spoke and published of the 
 plaintiff the words following, that is to say ;" and tliis for libel : "That 
 the defendant falsely and maliciously printed and published of the plaintiff 
 
 in a newspaper called , the words following, that is to say." (15 & 16 
 
 Vict. c. 7G, Schedule (B), 32, 33.) 
 
 The Commissioners of the New York Code of 1S48 recommend the follow- 
 ing: "That the defendant on the , at , published the following 
 
 libel concerning the plaintiff, viz." (First Report of the Commissioners on 
 Practice and Pleadings, p. 267.) 
 
 63 In Crawford v. Middleton (1678) 1 I^ev. 82, 83 Reprint, 308, Twysden 
 "mentioned a case tried before JEIobart, which he himself heard; where the 
 plaintiff brought an action against one, for falsely and maliciously saying 
 of him, 'that he heard he was hanged for stealing of an horse;' and on the 
 evidence it api>eared that the words were spoken in grief and sorrow for 
 the news ; and Hobart caused the plaintiff to be non-suit, for it was not 
 maliciously ; which all the Court here agreed to be done according to law." 
 
 Compare the query of Lord Denman in Hearne v. Stowell (1840) 12 Ad. 
 & E. 719, 725, where Greenwood v. Prick was cited for the proposition that 
 "malice is the gist of tlie action" for libel: "Do you pretend that I am 
 justified in illustrating an argument by making a charge against a third 
 party? Is Greenwood v. Prick good law now?" But see Chancellor Wal- 
 worth's comment on this case in Hastings v. Lusk (1839) 22 Wend. (N. Y.) 
 410, 415, 34 Am. Dec. 330.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 635 
 
 MERCER V. SPARKS. 
 
 (Court of King's Bench, 15S6. Owen, 51, 74 Reprint, 892.) 
 
 Mercer had judgment to recover against Sparks in the Common 
 Pleas, upon an action of the case for words ; and Sparks brought a 
 writ of error in the King's Bench, and assigned for error, that the 
 plaintiff did not express in the declaration that the defendant spake 
 the words malitiose, but it was adjudged, that it was no error, because 
 the words themselves were malicious and slanderous, wherefore judg- 
 ment was affirmed.^* 
 
 6* "In an indictment a thing must be expressed to be done 'falso et 
 malitiose,' because that is the usual form, but in a declaration these words 
 are not necessary." Anon. (1G.j2) Style, 392. 
 
 "As to malice, the plaintiff in practice always alleges in his statement 
 of claim, in actions of libel and slander, that the defendant falsely and 
 maliciously wrote, or spoke, and published of and concerning the plaintiff 
 the words complained of. But it is not necessary for the plaintiff to allege 
 that the defendant did so maliciously. A publication calculated to convey 
 an actionable imputation is prima facie a libel, or a slander. The law im- 
 plies malice if the words are defamatoi-y and untrue, unless indeed the oc- 
 casion is privileged, in which case malice in fact must be proved." 18 
 Halsburys Laws of England, 608 (1911). This practice holds in America, 
 as in England. 
 
 "There has been much confusion in the law of defamation concerning 
 malice as an ingi-edient of the offence. The use of the term may be traced 
 to the ecclesiastical courts. By the canon law a bad intent, called 'malitia,' 
 was essential in 'injuria' ; and it is likely that itvS use in the spiritual 
 courts was primarily jurisdictional. These courts punished offences which 
 were sinful because they were sinful, the essential element being 'malitia.' 
 The defamerwas punished 'pro salute animse'; the matter was looked at from 
 a moral, not from a legal point of view, to see if the speaking of the words 
 were sinful. But it was no more true in the thii'teenth century than it is 
 now that an imputation upon a man's character was always or necessarily 
 malicious. Such imputations were known, however, as a matter of common 
 experience, to be malicious in. most cases. And upon this presumption 
 (though sometimes contrary to fact) tlie ecclesiastical jurisdiction was based. 
 From being a necessary ground of jurisdiction in the spiritual courts, it 
 came to be considered afterwards, when the civil courts acquired jurisdiction, 
 that malice was the ground of temporal redress, though of course the 
 jurisdiction of the temporal courts was not based upon malice. In other 
 words, the common law adopted the ecclesiastical presumption as the gist 
 of the action. Early cases may be found which proceeded strictly upon 
 this basis. * * « But when the remedy came to be applied to cases in 
 which there was obviously no actual wrongful intent, the courts resorted, 
 as usual, to a fiction to preserve their consistency. They affirmed that malice 
 was in all cases the gist of the action, but to find malice that did not exist 
 they implied it. The whole doctrine of applied malice, in defamation as in 
 other branches of the common law, is pure scholasticism. Malice if it 
 means anything means malevolence or ill will ; any other use of the term 
 is fictitious. But the law was stated in this way: Words spoken without 
 ill will may be actionable, but in such cases the law is said to imply malice 
 from tlie act of speaking or public-.ition. This kind of malice which the 
 law is said to imply is called 'legal malice," as differing from malevolence, 
 which is called 'malice in fact' ; and legal malice is said to consist in si)eak- 
 ing defamatory matter without legal excuse, because when words are thus 
 spoken the law implies malice." Van Vochten \'eeder, "History and Theory 
 of the Law of Defamation," 4 Columbia Law Review, 32, 35, 36. 
 
 "The exposition of the law of defamation was at one time encumbered by
 
 636 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 SHEPHEARD v. WHITAKER. 
 (Court of Common Pleas, 1S75. L. R. 10 C. P. 502.) 
 [See ante, p. 606, for a report of the case.] °^ 
 
 a useless legal fiction known as the doctrine of implied malice. It used 
 to be said that malice was an essential element in all actions for libel and 
 slander, whether the occasion was privileged or not; but when there was 
 no pri\dlege, malice was conclusively presumed from the mere fact of pub- 
 lication. The existence of privilege, on the other hand, excluded any such 
 presumption. Absolute privilege excluded it conclusively; but when the 
 privilege was qualified merely, it remained open to the plaintiff to prove 
 as a fact that malice existed. Malice which was thus presumed in law 
 was called implied malice, while that which was proved as a fact in cases 
 of qualified privilege was known as express or actual malice. Implied malice 
 has now been eliminated from the law. It is now recognized that malice 
 is no more an essential element in the wrong of defamation than in that of 
 trespass or conversion." Salmond, Law of Torts (2d Ed.) 419, note. 
 
 See also 25 Cyc. 372, and compare the remark of Burch, J., in Coleman v. 
 MacLennan (1908) 78 Kan. 711, 98 Pac. 281, 20 L. R. A. (N. S.) 361. 130 Am. 
 St. Rep. 390, and of Buun, J., in Dodge v. Oilman (1913) 122 Miun. 177, 
 142 N. W. 147, 47 L. R. A. (N. S.) 1098, Ann. Gas. 1914D, 894. 
 
 65 Accord: Taylor v. Hearst (1895) 107 Cal. 262, 40 Pac. 392: (D., the 
 proprietor of a newspaper, had published an article charging fraud by "J. 
 W. Taylor"; the statement was unti-ue of him, and D. had not intended to 
 name him, but to make the charge against another person, whose name was 
 "J. N. Taylor.") 
 
 Upton v. Times-Democrat (1900) 104 La. 141, 28 South. 970: (A dispatch 
 to the defendant's newspaper referred to P. as "a cultured gentleman." 
 Through a mistake in transmission, this became "a colored gentleman." 
 Under a standing rule in D.'s newspaper office, this was changed so as to 
 read "a negro," and so published, in New Orleans.) 
 
 Morrison v. Ritchie & Co., [1902] 4 F. 645, 39 S. L. R. 432, 9 S. L. T. 476 : 
 (On August 15, 1901, the following appeared among the birth notices in the 
 "Scotsman," published by the defendants: "Morrison: At the Caledonian 
 Hotel, Ullapool, on the 11th inst., the wife of George Morrison, of 33 South 
 Back Conongate, of tmn sons. Ross-shire papers please copy." The state- 
 ment was false, and Mr. and Mrs. Morrison had been married on July 12, 
 1901. Of these facts, however, the publishers of the Scotsman had no actual 
 knowledge. In an aclion against them for written slander the following 
 issues were proposed for the pursuers : Whether the pursuers were married 
 as alleged, whether the defenders had published the notice on the date 
 mentioned, and whether the notice was of and concerning the pui'suers and 
 "was false and calumnious." ThesQ issues were approved by the Lord 
 Ordinary (Kincairney), who remarks as follows : 
 
 "This is an action of damages against the proprietors of a newspaper on 
 account of defamatory advertisements. There can be no doubt tliat the 
 pursuers had suffered a very cruel ^vTong, and would doubtless recoA-er 
 exemplary damages from the mean scoundrel who sent the advertisements, 
 if they could discover him and if he were found to be sane and able to pay 
 them. But their action against the newspaper raises a question of much 
 importance and apparently of some novelty, since no precise or very close 
 precedent has been quoted. 
 
 "I do not inquire whether sulhciont vigilance was exercised in the 'Scots- 
 man' oIHce before inserting this advertisement. A very slight inquiry would 
 have disclosed the fraud. A telegram to Ullapool would have disclosed it. 
 The instructions were not signed, but bore the name of Mrs. Sutherland, 7 
 Albert Street, and an examination of the Directory would have disclosed 
 the fac-t that no such house existed. But these precautions were not taken. 
 I am far from inq)n1ing any l)lame on that account, because I suppose it 
 would be barely possible to make such inquiries about the multitude of such
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 637 
 
 WILLIAMS V. HICKS PRINTING CO. 
 (Supreme Court of Wisconsin, 1915. 159 Wis. 90, 150 N. W. 183.) 
 
 The action was against the printing company to recover damages 
 for a Hbelous publication in the defendant's newspaper. The plain- 
 tiff was a lawyer in good standing, and it was claimed that the article 
 in question was willfully and maliciously composed and published 
 with intent to injure him in his good name and fame as a lawyer and 
 to bring him into public contempt and ridicule. The complaint con- 
 tained allegations to this effect, with other allegations essential to 
 support a recovery, including a copy of the article. 
 
 The defendant admitted the publication, but pleaded that it was 
 neither false nor defamatory, and took issue on all allegations of the 
 complaint as to the defendant's conduct being actionable.*'" The cause 
 was submitted to the jury under instructions permitting a verdict for 
 the defendant. After a motion for a new trial had been overruled, 
 judgment for the defenda.nt was rendered on the verdict. 
 
 Marshall, j, * * * i^ general, malice is an essential element .r 
 of libel, but not, necessarily, malice in the sense of actual ill will and—^r 
 intent to injure, constructive malice, so called, — perpetration of the K^ 
 act without lawful excuse, — is sufficient. One need not go further 
 on the subject of malice in proving a charge of libel than to prove 
 the publication, unless the situation is such as to fall within the field 
 of conditional privilege, and then malice in law is circumstantially re- 
 butted and malice in fact, or express malice, as it is otherwise called, 
 is required. 
 
 advertisements which reach the 'Scotsman.' But that is a matter which 
 has no bearing on the question under consideration, because this action is 
 not laid on neglect, but simply upon slander, there being no plea about 
 neglect. 
 
 "Malice in the ordinary sense, or in any sense which can reasonably be 
 put on the word, is not in tlie case. It is certain that there has been no 
 malice. There hardly ever is when the action is laid against the proprietors 
 of a newspaper on account of what has appeared in its columns, but the law 
 is that the proprietors of the newspaper represent their correspondent, and 
 are liable for the injui-ious paragraph as he would have been. I do not 
 think that the law does so strange a thing as to imply malice where it 
 manifestly and certainly does not exist." 
 
 On the effect of a retraction or apology, see Turton v. N. Y. Recorder 
 Co. (1894) 144 N. Y. 144, 38 N. E. 1009; Coffman v. Simkane Pub. Co. (1911), 
 
 65 Wash. 1, 117 Pac. 596, Ann. Cas. 1913B, 636 ; De Severinus v. Press Pub. 
 Co. (1911) 147 App. Div. 161, 1.32 N. Y. Supp. 89 : "This [the retraction subse- 
 quently published] goes only to show absence of actual malice, but it does 
 not exonerate from the consequences of original recklessness." Per Carr, J. 
 And see 18 Halsbury's Laws of England, 726, 727 (1911); 25 Cyc. 424; 
 Key. No. "Libel and Slander," § 66. 
 
 On constitutional questions as to a statute giving effect to a retraction, 
 see Hanson v. Krehbiel (1904) 68 Kan. 670, 75 Pac. 1041, 64 L. R. A. 790, 104 
 Am. SL Rep. 422, and Osborn v. Ix>ach (1904) 135 N. C. 628, 47 S. E. 811, 
 
 66 L. R. A. 648. 
 
 6 The defendant pleaded also in excuse and justification, and in mitigation 
 of damages. Only so much of the case is given as relates to the one point. 
 The result of the appeal was a reversal of the judgment below.
 
 638 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 So it is not to be thought that mere good faith, honest behef in the 
 correctness of the pubHcation, or good motives, or accident or inad- 
 vertence, is, of itself, a defense, or even sufficient to mitigate as to 
 actual damages, because such faith, belief and motive are not in- 
 consistent with malice in law arising, as a legal result, from the per- 
 petration of the act of publishing an article, the natural tendency of 
 which is to make its victim appear ridiculous or contemptible, or a 
 subject of hatred, or to disgrace him in society or injure him in his 
 business. 
 
 If a published article naturally tends, as suggested, the right to 
 recover general damages follows as matter of course, in the absence 
 of truth as a justification or circumstances of legal excuse, this, as 
 indicated, not including mere negligence, accident, good faith, good 
 motives or sense of duty, except as said, in the field of conditional 
 privilege where something more than implied malice is required. 
 General damages, which so follow, may be added to by exemplary 
 damages, upon proof of that actual malice which overcomes the pro- 
 tection of conditional privilege. Thus one cannot efficiently claim 
 immunity from liability for damages inflicted by publishing with ex- 
 press malice a false and defamatory article, by putting up the shield 
 of conditional privilege. Joseph v. Baars, 142 Wis. 390, 125 N. W. 
 913, 135 Am. St. Rep. 1076; Arnold v. Ingram, 151 Wis. 438, 138 
 N. W. Ill, Ann. Cas. 1914C, 976. 
 
 (d) Actual Damage ot 
 
 The practice of awarding damages to the libelled party, in addition 
 to the fine or imprisonment due to the criminal character of the 
 offence, was introduced by the Star Chamber itself;*^" and it would, 
 therefore, have been natural that, on the abolition of the Star Cham- 
 ber in 1641, the civil action for damages should at once take the place 
 of the older procedure. Nevertheless, though there is a thin stream 
 of reported cases from the Restoration onwards,®^ libel continued for 
 some time to be regarded mainly as a criminal ofifence punishable on 
 indictment or information ; and it may be to this fact that we owe 
 the rule (certainly anomalous in an action of case) that in libel no 
 damage need be proved. 
 
 Miles, in Digest Eng. Civ. Law, 502, 503. 
 
 67 On the importance of actual damage in slander cases, see ante, "Slander 
 through Special Damage." The question here is: When, if at all, is actual 
 damage essential to the prima facie cause in libel? 
 
 68 "As in Edwardes v. Wootton (1607) Hawarde's Cases in the Star Chamber 
 343, and in Lake's Case of 1019 (see Cal. Stat. Pap. (Dom.) Ill, pp. 19, 21, and 
 Hudson, Star Chamber, p. 227." 
 
 6 8 "One of the earliest being the well-known Lake v. King, on parliamen- 
 tary privilege, in 1668."
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 639 
 
 HERIOT V. STUART. 
 
 (At Nisi Prius, Sittings after Term at Westminster, 1796. 1 Esp. 437.) 
 
 The plaintiff was proprietor of a newspaper called the True Briton. 
 The defendant was printer of another paper called The Oracle; and 
 the action was brought for a libel inserted in the latter paper, concern- 
 ing the former. The libel was in the following terms, in the form 
 of a paragraph in the Oracle : 
 
 "Times versus True Briton. 
 
 "In a morning paper of yesterday was given the following character of the 
 True Briton: That 'it was the most vulgar, iguoraut, and scurrilous journal 
 ever published in Great Britain.' To the above assertion we assent, and to 
 this account we add, that the fii-st proprietors abandoned it, and that it is 
 the lowest now in circulation ; and we submit the fact to the consideration 
 of advertisers." 
 
 Erskine, for the plaintiff, admitted, that the first words, charging 
 it with scurrility, &c. were not actionable; but that the latter 
 were, inasmuch as they affected the sale, and profits to be made by 
 advertising. 
 
 To which Lord K^nyon assented.^** 
 
 MAYOR, ALDERMEN, AND CITIZENS OF MANCHESTER 
 
 V. WILLIAAIS. 
 
 (Queen's Bench Division, 1S90. [1891] 1 Q. B. 94.) 
 
 The statement of claim, by the Municipal Corporation of the City 
 of Manchester, after setting forth a letter by the defendant published 
 in a newspaper further alleged that the defendant meant, and was 
 understood to mean thereby, that bribery and corruption existed in 
 three departments of the Manchester City Council, and that the plain- 
 tiffs were either parties thereto or culpably ignorant thereof. It did 
 not, however, contain any averment that the plaintiffs had suffered 
 any special pecuniary damage as the result of such defamatory pub- 
 lication. The defendant raised the objection of law that the words 
 complained of were not capable of being construed into a libel against 
 the plaintiffs, and that the statement of claim disclosed no cause of 
 
 7 Part of the case is omitted. 
 
 Because of a variance, a stat processus was entered by consent. 
 
 Compare the remark of Bayley, J., in Whittaker v. Bradley (1826) 7 Dowl. & 
 By. 649, 16 E. C. L. 310: "Whatever words have a tendency to hurt, or are cal- 
 culated to prejudice a man who seeks his livelihood by any trade or business, 
 are actionable." 
 
 And see South Hetton Coal Co., Ltd., v. North-Eastern News Ass'n, Ltd. 
 (1894) 1 Q. B. 1.33; Reporter's Ass'n of America v. Sun Printing & Publish- 
 ing Ass'n (1906) 186 N. Y, 437, 79 N. E. 710. See also the doctrine of Malicious 
 Falsehood, given infra, Part III. 
 
 '>.
 
 640 TORTS THROUGH ACTS OP ABSOLUTE LIABILITY (Part 1 
 
 action, and that a municipal corporation cannot sue in its corporate 
 capacity in respect of the alleged words in the sense complained of. 
 
 Blake Odgers, for the plaintiffs. If a corporation can be guilty 
 of malice by its servants so as to render it liable to be sued for a 
 malicious prosecution, it must equally be capable of being guilty of 
 corruption so as to entitle it to sue for an imputation of corruption. 
 Moreover, the libel here complained of contains charges which can 
 only refer to the corporation as a whole. It speaks of "scandalous 
 and abominable expenditure." But the money is voted by the cor- 
 porate body, and not by the individual members of it. 
 
 Day, J. This is an action brought by a municipal corporation to 
 recover damages for what is alleged to be a libel on the corporation 
 itself, as distinguished from its individual members or ofificials. The 
 libel complained of consists of a charge of bribery and corruption. 
 The question is whether such an action will lie. I think it will not. 
 
 It is altogether unprecedented, and there is no principle on which 
 it could be founded. The limits of a corporation's right of action 
 for libel are those suggested by Pollock, C. B., in the case which has 
 been referred to. A corporation may sue for a libel affecting property, 
 not for one merely affecting personal reputation. The present case 
 falls within the latter class. There must, therefore, be judgment for 
 the defendant. 
 
 McLOUGHLIN v. AMERICAN CIRCULAR LOOM CO. 
 
 (Circuit Court of Appeals of the United States, First Circuit, 1903. 
 60 C. C. A. 87, 125 Fed. 203.) 
 
 The action was against the American Circular Loom Company, a 
 corporation, and charged a libel in the publication by the defendant 
 of the following letter from Chelsea, Mass., signed by the defendant, 
 and addressed to the plaintiff, at New Orleans : 
 
 "Dear Sir: You are aware that we have sent our Mr. Kirkland to New 
 Orleans to make an original investigation of the controversy between 
 yourself and the Board of Underwriters. Mr. Kirkland has returned and 
 has made to us the report of such investigation. It appears, beyond contro- 
 versy, that you are using, and have been using, our circular loom conduit, 
 not only under the conditions and in the places where it is permitted by 
 the rules, but also in places and under circumstances where it is prohibited 
 by such rules. We desire to impress upon you the fact that this com- 
 pany submits itself to those undenvriters' rules; that such rules 
 have been framed with its consent and acquiescence, and that we cannot, 
 and will not, place ourselves in opposition to the execution of those rules 
 as written. 
 
 "Under these circumstances, we think it necessary to advise you that 
 unless you are willing to handle our material in accordance witli our wishes, 
 and in accordance with the rules of the Board of Underwriters, our business 
 relations must cease, as we cannot afford to have any person connected with 
 us who puts us in hostility to an organization with which we are in entire 
 sympathy. 
 
 "Your immediate answer to this letter is requested, and we expect you 
 in that letter to define your future policy in regard of the subject matter 
 of this communication.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 641 
 
 "We deem it proper to notify you that we tiave sent a copy of this letter 
 to the Board of Underwriters, to the various insurance companies operating 
 in New Orleans, and to such other persons as we have deemed it advisable 
 to communicate witli." 
 
 The declaration alleged that the plaintiff had become the selling 
 agent for the defendant in New Orleans, for the purpose of intro- 
 ducing and establishing the sale of the defendant's product, viz. cir- 
 cular loom conduits, that the statements in the letter were false, and 
 that copies of the letter were sent to insurance companies and agencies 
 in New Orleans, where plaintiff was in the business of installing elec- 
 trical plants, and to his competitors. The defendant demurred.* 
 
 Lowell, District Judge. The plaintiff did not contend strenuously 
 that the language complained of was libelous per se, without allega- 
 tion and proof of special damage. Some distinctions applied in an 
 action for defamation are highly technical, and have been adversely 
 criticised even by judges who applied them. The gravamen of an 
 action for defamation is damage to the reputation of the plaintiff, 
 naturally arising from a false report. See Odgers on Libel and Slan- 
 der (3d Ed.) 95; Morasse v. Brochu, 151 Mass. 567, 25 N. E. 74, 
 8 L. R. A. 524, 21 Am. St. Rep. 474. Speaking generally, where the 
 false report and consequent damage to the reputation are shown, an 
 action will lie unless the occasion be privileged. From some sorts 
 of false report the law presumes conclusively that damage has fol- 
 lowed, and the plaintiff need neither allege nor prove it. Here the 
 language is styled libelous per se. Logically or not, the conclusive 
 presumption of damage arises from some written words, where it 
 does not arise if the same words are merely spoken. Odgers, 3 ; 
 Thorley v. Kerry, 4 Taunt. 355. Except where this presumption ex- 
 ists, special damage to the plaintiff's reputation must be alleged and 
 proved to have been the actual and natural result of the language 
 used. In an action of defamation, the distinction between injuria 
 and damnum— injury to the plaintiff's reputation and damage arising 
 from the injury — is particularly hard to draw. Some language is 
 deemed injurious without proof of damage, and damage is conclusive- 
 ly presumed to have followed the injury; other language is deemed 
 injurious to the reputation only where damage has actually resulted. 
 
 Probably two diverse theories have tended to govern the action : 
 First, that A. is responsible for defaming B. in the ordinary sense of 
 defamation — language libelous per se ; second, that A. is responsible 
 to B. for damage naturally resulting from the lies told by A. about 
 B.— special damage. See Ratclifte v. Evans, [1892] 2 Q. B. 524. It 
 may be that an action for defamation, strictly si)eaking, is pro]:)erly 
 maintainable only under the first theory, while under the second the 
 action should be special on the case. But in this country, at any rate, 
 the two theories have not been differentiated. In a few critical cases 
 
 * The statement of the case is abridged. 
 Hepb. Torts — 41
 
 642 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 they may lead to results quite different, but in general the law is that 
 above stated. An accurate and readily applicable definition of written 
 language, libelous per se, does not exist, and some well-established 
 distinctions may rest on history rather than on logic. Webb's Pol- 
 lock on Torts, 290. The language here complained of, if spoken, 
 would not support an action without proof of special damage. In the 
 absence of innuendo and further colloquium, we do not deem that 
 this language, though written, is libelous per se. * * '" ^^ 
 
 (C) Construction and Application 
 
 72 
 
 No statement is necessarily and in all circumstances defamatory. 
 There is no charge or imputation, however serious on the face of it, 
 which may not be explained away by evidence that in the special cir- 
 cumstances of the case it was not issued or understood in a defam- 
 
 71 However, in the omitted portion of the opinion the court reached the 
 eonelnsion that special damasre was shown. 
 
 Accord: Stannard v. Wilcox & Gibbs Sewing Machine Co. (1912) 118 Md. 151, 
 84 Atl. 335, 42 L. R. A. (N. S.) 515, Ann. Cas. 1914B, 709: (D., the Sewing 
 Machine Company, sent a letter to another corporation stating that P., their 
 Baltimore manager, refused to complete the payments for his wife's sewing 
 machine and that "if you do not desire to see one of your managers brought 
 up in a civil suit for goods purchased on the installment plan, we would 
 suggest that you communicate with him to the effect that he take some 
 steps" towards meeting this debt. In his suit for libel P. made no claim 
 of any special damage caused him by the writing and sending of this letter, 
 but insisted that it was actionable per se. Said Stockbridge, J., delivering 
 the opinion: "A generalization from all these cases leads to the conclusion 
 that in order for words not ordinarily actionable in themselves to be libel- 
 ous per se, because affecting the plaintiff in respect to his business, occupa- 
 tion, or profession, it is necessary that the words have a reference to him in 
 that capacity. Words which impute to persons engaged in business, such 
 as merchants, traders, and others in occupations where credit is essential 
 to the successful prosecution of their occupation, nonpayment of debts, 
 want of credit, or actions which tend to lessen their credit, are libelous 
 per se, unless they are privileged communications. In this case Mr. Stannard 
 was not in business on his own account. He was the local manager for a non- 
 resident corporation. It is not alleged or suggested that he had any occa- 
 sion for the use of credit, or that his credit had been in any way impaired or 
 affected. The statements in regard to him in no way related to the manner 
 of his performance of his duties as manager of the Holmes Electric Protective 
 Company, or charged him with being unfit for the proper performance of 
 them; nor did he lose his position because of the letter in question, in 
 which case he vv'ould have sustained special damage. Under these conditions, 
 and applying the rule of law already stated, the letter cannot be regarded 
 as actionable per se, and the trial court committed no error in sustaining 
 the demurrer. That the letter was actuated by malice is admitted by the 
 demurrer, and apparent from- the pai>er itself, and deserving of the most 
 emphatic reprobation; but that will not justify this court in departing from 
 well-established principles upon so important a subject.") 
 
 72 "It is elementary that alleged defamatory matter comes before the court 
 for construction under the ordinary rules for construing pleadings. Among these 
 is that the pleader is sui)posed to have stated his case in the manner most 
 favorable to himself. The law will not assume as favorable to a party
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 643 
 
 atory sense. It may be shown to have been made in jest, or by 
 way of irony, or in some metaphorical or secondary innocent sense, 
 and that it was or ought to have been understood in that sense by 
 those to whom it was made. Conversely, no statement is necessarily 
 and in all circumstances innocent. An allegation which on the face 
 of it contains no imputation whatever against the plaintiff may be 
 proved from the circumstances to have contained a latent and sec- 
 ondary defamatory sense. 
 
 John W. Salmond, Law of Torts (2d Ed.) 409. 
 
 ROBERTS v. CAMDEN. . 
 
 (Court of King's Bench, 1S07. 9 East, 93, 103 Reprint, 508, 9 R. R. 513.) 
 
 Lord Ellenborough, C. J.,''^ delivered judgment: This was a 
 motion in arrest of judgment in an action for words, in which a 
 general verdict was found, with joint damages, upon the whole of 
 the declaration. * * * Xhe first objection turns upon the mean- 
 ing of the words spoken of the plaintiff by the defendant. The words 
 are these : 
 
 "He is under a charge of a prosecution for perjury. Griffith "Williams 
 (meaning an attorney of that name) has the Attornej'-General's directions 
 (meaning the Attorney-General of the County Palatine of Chester) to prose- 
 cute (meaning to prosecute the plaintiff) for perjury." 
 
 As it has been settled ever since the case of Underwood v. Parkes, 2 
 Stra. 1200, that the truth of the words cannot be given in evidence 
 upon not guilty, but must be specially pleaded ; the words, not having 
 been so justified, must be assumed to be false : and the v^^ords not 
 being accompanied by any qualifying context, nor appearing to be 
 spoken on any warrantable occasion ; as in a course of duty, or the 
 like ; so as to rebut the malice which is necessarily to be inferred from 
 making a false charge of this kind; provided the charge itself is to 
 be considered as a charge of the crime of perjury; the question 
 amounts simply to this, whether the words amount to such charge; 
 that is, whether they are calculated to convey to the mind of an or- 
 dinary hearer an imputation upon the plaintiff of the crime of per- 
 jury. The rule which at one time prevailed, that words are to be 
 
 anything he has not aven-ed. As was said in Holt v. Scolefield, 6 T. R. 691 : 
 'Either the words themselves must be such as can only be understood in a 
 libelous sense, or it must be shown by the introductory allegations that 
 they have that meaning, otherwise they are not actionable. Words, to be 
 actionable, should be unequivocally so.' Harrison v. Stratton, 4 Esp. Cas. 
 218. This was the rule in regard to pleadings iu libel cases in the English 
 Courts (Folkard, Slander & Libel [Tth Ed.J p. 235). and it has been affirmed 
 in many American cases." Per Walker, J., in Walsh v. Pulitzer Pub. Co. 
 (1913) 2.j0 Mo. 142, 157 S. W. 326, Ann. Cas. 1914C, 985. 
 
 73 The statement of facts and part of the opinion are omitted.
 
 644 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 understood in mitiori sensu,^* has been long ago superseded; and 
 words are now construed by Courts, as they always ought to have 
 been, in the plain and popular sense in which the rest of the world 
 naturally understand them.'^^ 
 
 What then is the plain and popular sense of these words ; and what 
 is the imputation meant to be conveyed by a person speaking them 
 untruly of another? They must mean, that he was ordered by the At- 
 torney-General to be prosecuted ; (and it is immaterial for this pur- 
 pose, whether the Attorney-General of the County Palatine or of 
 England were meant;) either for a perjury which he had committed; 
 or, which he had not committed; or, which he was supposed only 
 to have committed. In the first sense they are clearly actionable. In 
 \he second, they cannot possibly be understood consistently with the 
 context. And if the defendant had used the words in the last sense, 
 the jury might have acquitted him. according to the doctrine in the 
 case of Oldham v. Peake, both in the Court of Common Pleas, 2 Sir 
 W. Blackstone, 962, and in this Court, Cowp. 275 ; in which case 
 when in the Common Pleas Mr. Justice Gould laid it down, "That 
 what was the defendant's meaning was a fact for the jury to decide 
 upon." And Lord Mansfield afterwards, when that case was brought 
 into this court, by error, said, "if (the words had been) shewn to be 
 innocently spoken, the jury might have found a verdict for the de- 
 
 74 See The Lord Cromwell's Case (1578) 4 Co. Rep. 13a: "And it was said 
 quod sensus verboiiim est duplex, sell., mitis et asper; et verba semper 
 aceepieuda sunt in mitiori sensu." 
 
 Brough V. Dennyson (IGOO) Goulds. 143, 75 Reprint, 1053: (The words were 
 "Thou has stolen by the high-way side." It was remarked by Fenner: 
 "When the words may have a good construction you shall never construe 
 them in an evill sense. And it may be intended he stole a stick under a 
 hedge, and these words are not so slanderous, that they are actionable.") 
 Ball V. Bridges (1600) Cro. Eliz. 746, 78 Reprint, 978: (The words were: "He 
 is a maintainer of thieves, and keepeth none but thieves in his house." A 
 judgment lor the plaintiff was reversed; for "he doth not say that he knew 
 them to be thieves whom he maintained, and one may have thieves in his 
 house, and maintain them, and not know them to be thieves, and then it is not 
 any offence.") Foster v. Browning (1624) Cro. Jac. 688, 79 Reiirint. 596: 
 (The words were: "Thou art as arrant a thief as any is in England." A 
 motion in arrest of judgment was successful because, inter alia, "he doth 
 not aver that there was any thief in England.") 
 
 Southold V. Daunston (1633) Cro. Car. 269, 79 Reprint, 834: (The words 
 were "Southold hath been in bed with Dorchester's wife." They were pleaded 
 with special diiniiige. loss of marriage witli a certain woman. After verdict 
 for the plaintiff, liing, Serjt., contended that the words were not actionable; 
 "for it may be that he was in bed witli lier when he was a child, she being 
 his nurse, or it may be that her husliand was in bed betwixt them, and 
 the words shall be taken in mitiori sensu when any construction can be 
 made to help it." After some hesitation judgment was given for the plaintiff, 
 apparently because of the si)ecial damage.) 
 
 In Baker v. Pierce (1703) 6 Mod. 23, 87 Reprint, 787, Holt, C. J., after 
 describing these cases in slander as "scrambling things that have gone 
 backwards and forwards," remarks that wherever words tended to take 
 away a man's reputation he would encourage actions for them, "because 
 so doing would contribute much to the preservation of the peace." 
 
 7 See note 75 on following page.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 645 
 
 fendant; but they have put a contrary construction upon the words 
 as laid." And certainly, if the sense of the defendant, in speaking 
 these words, had varied from that ascribed to them by the plaintiff, 
 he might by specially pleading have shewn them not actionable, had 
 he not chosen to have rested his defence merely on the general issue. 
 It appears therefore that these words must fairly be understood in 
 the first of these three senses; namely, that he was ordered to be 
 prosecuted for a perjury which he had committed; and, so under- 
 stood, they are unquestionably actionable. These words are not less 
 strong- in effect than the words which were held actionable in one of 
 the later cases, that of Carpenter v. Tarrant, Rep. temp. Hardw. 339. 
 viz. "Robert Carpenter was in Winchester gaol, and tried for his life; 
 and would have been hanged had it not been for Leggat, for break- 
 ing open the granary of farmer A., and stealing his bacon." And 
 without adverting to the long bead roll of conflicting cases which have 
 been cited on both sides in the course of this argument, it is sufficient 
 to say, that these words, fairly and naturally construed, appear to us 
 to have been meant, and to be calculated, to convey the imputation 
 of perjury actually committed by the person of whom they are spoken; 
 and that, therefore, the rule nisi for arresting the judgment must be 
 discharged.'^ ^ 
 
 THOMPSON v. BERNARD. 
 
 (At Nisi Prius, 1807. 1 Camp. -iS.) 
 
 Case for slander. It appeared that the defendant had used the 
 following words, which were laid in the declaration, "Thompson is 
 a damned thief ; and so was his father before him ; and I can prove o>>J^ 
 it ;" but that he added "Thompson received the earnings of the 
 ship, and ought to pay the wages." The witness, to whom these 
 words were addressed, had been master of a ship belonging to a per- 
 son deceased, who had left the defendant his executor; and at the 
 time was applying to him for payment of his wages. 
 
 7 5 In Harrison v. Thornboroiigh (1713) 10 Mod. 196, 88 Reprint. G91. it 
 was remarked from the Queen's Bench : "Precedents in actions for words 
 are not of equal authority as in other actions, because norma loquendi is the 
 rule for the interpretation of words ; and this rule is different in one age 
 from what it is in another. The words which an hundred years aw did 
 not import a slanderous sense now may; and so vice versa. In this kind 
 of action for words, which are not of very great antiquity, the Courts did 
 at first, as much as they could, discountenance them ; and that for a wise 
 reason, because generally brought for contention and vexation ; and there- 
 fore when the words were capable of two constructions, the Court always 
 took them mitiori sensu. But latterly these actions have been more coun- 
 tenanced ; for men's tongues growing more virulent, and irreparable damage 
 arising from words, it has l)een by experience found, tliat \inless men can 
 get satisfaction by law, they will be apt to take it themselves. The rule 
 therefore that has now prevailed is, that words are to be taken in that 
 sense that is most natural and obvious, and in which those to whom they 
 are spoken will be sure to understand them."
 
 046 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 Lord Ellenborough directed a nonsuit; observing, that the word 
 "thief" was used without any intention in the defendant to impute 
 felony to the plaintiff; which must appear to support the declara- 
 tion.^* 
 
 HANKINSON v. BILBY. 
 
 (Court of Exchequer, 1847. 16 Mees. & W. 442, 73 R. R. 563.) 
 
 Case. The declaration stated with proper innuendoes that the de- 
 fendant falsely and maliciously spoke and published of the plaintiff 
 the following defamatory words : 
 
 "You are a thief, and a bloody t±iief. You get your living by it. You 
 have robbed Mr. Lake of £30, and would have robbed him of more, only you 
 were afraid. I did mean what I said ; be off, I don't want any bloody 
 thieves here. You know you robbed Mr. Lake of £30." 
 
 At the trial, under a plea of Not guilty, before Rolfe, B., it appeared 
 that the words were uttered by the defendant, a toll collector, to the 
 plaintiff, as he passed the turnpike-gate, in the presence of several 
 persons as well as the witness. The nature of the previous conversa- 
 tion between the plaintiff and defendant did not appear. The learned 
 Baron told the jury, that it was immaterial whether the defendant in- 
 tended to convey a charge of felony against the plaintiff by the words 
 used, the question being, whether the bystanders would understand 
 that charge to be conveyed by them. Verdict for the plaintiff for £5. 
 
 Humfrey now moved for a new trial, on the ground of misdirec- 
 tion : No special damage being laid, it was necessary to show the 
 words to be actionable in themselves. The witness called by the plain- 
 tiff to prove the words was purposely selected, he not have heard the 
 previous conversation between the plaintiff and defendant. * * * 
 (Parke, B. The witness appears to have been well acquainted with 
 the affair to which the words related. If the bystanders were equally 
 cognizant of it, the defendant would have been entitled to a verdict ; 
 but here the only question is, whether the private intention of a man 
 who utters injurious words is material, if bystanders may fairly un- 
 derstand them in a sense and manner injurious to the party to whom 
 they relate, e. g. that he was a felon.) 
 
 Some doubt being suggested as to the facts proved, the Court con- 
 ferred with Rolfe, B. ; and the next day, 
 
 Pollock, C. B., said : We find from my Brother Rolfe, that there 
 were several bystanders who not only might but must have heard the 
 expressions which form the subject of this action. That disposes of 
 the case as to the matter of law. Words uttered must be construed in 
 the sense which hearers of common and reasonable understanding 
 
 76 Accord: Allen v. Hillman (1831) 12 Pick. (Mass.) 101, 103. 
 And see the remarks of Spear, J., in Macurda v. Lewiston Journal CO. 
 flOlL') 109 Me. 53, 82 Atl. 43S, 441.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 647 
 
 would ascribe to them, even though particular individuals better in- 
 formed on the matter alluded to might form a different judgment on 
 the subject.'^'' 
 Rule refused. 
 
 BARHAM V. NETHERSALL. 
 (Court of King's Bench, 1602. Yel. 22, SO Reprint, 16.) 
 
 The plaintiff declared that the defendant spoke these words : 
 
 T. Barham (innueudo the plaintiff) tiatti burnt my barn (innuendo my barn 
 at such a place full of corn) and that with his own hand; 
 
 and upon non culp' pleaded, it was found for the plaintiff, and alleg'd 
 in arrest of judgment, that the action did not lie; for these words, 
 the plaintiff" hath burnt my barn, are no slander ; for such burning 
 of a house is but a trespass, and all one as if he had said, the plaintiff 
 hath cut down my trees, and such like ; for to say a man hath commit- 
 ted a trespass is no slander : and then the innuendo (my barn full of 
 corn) will not help the matter ; for it is the nature of an innuendo to j^,J^ 
 explain doubtful words, where there is matter sufficient in the dec- 
 laration to maintain the action. But if the words before the innuendo 
 do not sound in slander, no words produced by the innuendo will make 
 the action maintainable, for it is not the nature of an innuendo to 
 beget an action. And all this was allowed by Gaudy and Yelverton, 
 Justices (being alone in the King's Bench), and judgment quod nil ca- 
 piat per billam. 
 
 BLOSS V. TOBEY. 
 (Supreme Judicial Court of Massachusetts, 1S24. 2 Pick. 320.) 
 
 This was an action of slander with a declaration in seven counts, 
 for the words stated in the opinion. The cause was tried upon the 
 general issue, with a verdict for the plaintiff for $500 damages. The 
 defendant moved in arrest of judgment.'^ ^ 
 
 Parke;r, C. J. * * * The first count only charges the defend- 
 ant with having said that the plaintiff had burnt his own store in 
 Alford. The words are introduced with a colloquium "of and concern- 
 ing the plaintiff and of and concerning a certain store of the plaintiff''s 
 
 7 7 The statement of the case is abridged, and most of the argument of 
 counsel is omitted. 
 
 Accord: Phillips v. Barber (1831) 7 Wend. (N. Y.) 439. And see Pollock's 
 comment on the principal case, in 73 R. R. v-i. Compare the charge, and 
 the ruling on it, in Janiigan v. Fleming (1S71) 43 Miss. 710, 720, 5 Am. 
 Rep. 514. 
 
 78 The statement of the case is abridged, the arguments of counsel are 
 omitted, and only so much of the opinion is given as relates to the first 
 count.
 
 64S TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 situated in said Alford, before that time, to wit, on the sixth day of 
 December last past, consumed by fire," and alleges that the defendant 
 did speak, utter and publish the following false, scandalous and ma- 
 licious words of and concerning the plaintiff, viz. : 
 
 He (meaning the plaintiff) burnt it (meaning the plaintiff's store in Alford 
 aforesaid) himself (again meaning the plaintiff : and further meaning and 
 insinuating by the several words aforesaid, that the plaintiff had been 
 guilty of the crime of wilfully and maliciously burning his own store in 
 Alford aforesaid). 
 
 Now these words are not actionable, unless it is a crime punishable 
 by law for a man to destroy by fire his own property ; and we cannot 
 find that, either by the common law, or by any statute of this com- 
 monwealth, such an act, unaccompanied by an injury to, or by a 
 design to injure, some other person, is criminal; and although it is 
 alleged by the innuendo, that the defendant meant and intended to 
 charge the plaintiff' with having done this act wilfully and maliciously, 
 yet the words do not thereby acquire any force or meaning which they 
 had not in themselves, the ofiice of an innuendo being only to make 
 more plain what is contained in the words themselves as spoken, not 
 to enlarge or extend their meaning or give them a sense which they 
 do not bear when taken by themselves without the aid of an innuendo. 
 The words spoken, as stated in this count, are simply, "He burnt it." 
 These words are innocent in themselves, though they may have a 
 defamatory meaning, if they relate to any subject the burning of which 
 is unlawful. In order to give them that character, that they may be 
 actionable, the plaintiff should have set forth in a colloquium the cir- 
 cumstances which would render such a burning unlawful, or by an 
 averment in the preceding part of his count, without the form of a 
 colloquium, and then should have averred that the words spoken were 
 of and concerning those circumstances."** Thus, if goods belonging 
 
 7 9"T>et the slanderer disguise his language, and wrap up his meaning in 
 ambiguous givings out, as he will, it shall not avail him, because courts will 
 understand language, in whatever form it is used, as all mankind understand 
 it. * * * If the words have the slanderous meaning alleged, not by their 
 own intrinsic force, but by reason of the existence of some extraneous fact, 
 the plaintiff" must underbike to prove that fact, and the defendant must be 
 at liberty to disprove it. The fact then must be averred in a traversable form, 
 with a proper colloquium, to wit, an averment, that the words in question 
 are spoken of and concerning such usage, or report, or fact, whatever it is, 
 which gives to words, otherwise indifferent, the particular defamatory mean- 
 ing imputed to them." Per Sliaw, C. J., in Carter v. Andrews (1834) 16 
 Pick. (Mass.) 1, 5. See also Winsor v. Ottofy (1909) 140 Mo. App. 5G3, 120 
 S. VV. ti93. 
 
 For the debt which American literature owes to tlie common law collo- 
 quium, see the reference to Bloss v. Tobey, in Bigelow's Life of William 
 CuUen Brvant, American Men of Letters, pp. 37, 38, note 1. 
 
 The Connnon Law Prwedure Act of 1802 (15 it 16 Vict. c. 76, § 61) provided 
 that in actions of libel and slander, the plaintiff shall be at libertj'^ to aver 
 that the words or matter complainetl of were used in a defamatory sense, 
 specifying such defamatory sense, without any prefatory averment to show 
 how such words and matter were used in tliat sense." See also the provision 
 of the New York Code of I'rocedure of 1848, 141, which has had a large
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 649 
 
 to another person were in the store, or if goods belonging to the plain- 
 tiff had been insured, it should have been averred that such was the 
 case, and that the words spoken related to a store with such goods in 
 it. But there is nothing in the count which indicates that any goods 
 were in the store, or that any damage had happened or was design- 
 ed towards any one but the plaintiff himself ; so that the whole ac- 
 cusation against him, as represented in this count, is that he wilfully 
 and maliciously burnt his own store. * * * ^° 
 Judgment arrested. 
 
 (D) Defenses to a Prima Facie Cause in Defamation 
 (a) Justification : Truth of the Charge 
 
 PRESS CO. V. STEWART. 
 
 (Supreme Court of Pennsylvauia, 1888. 119 Pa. 584, 14 Atl. 51.) 
 
 Action on the case against the Press Company, to recover damages 
 for the publication of an alleged libel in "The Press," a daily paper of 
 Philadelphia. The plaintiff had leased rooms in a business section of 
 Philadelphia and fitted them up as a school for clerks, salesmen, and 
 reporters, and he professed to be a teacher of shorthand. The out- 
 side of his rooms had been alluringly placarded with signs. The at- 
 tention of the city editor of "The Press" being attracted by the pe- 
 culiarity of the signs, he detailed a reporter to visit the establishment 
 and ascertain its character. He did so, and "The Press," the next 
 day, contained the report of the interview. 
 
 following in America : "In an action for libel or slander, it shall not be nec- 
 essaiT to state in the complaint, any extriu:?ic facts for the purpose of show- 
 ing the application to the plaintiff, of the defamatory matter out of which 
 the cause of action arose; but it shall be sufficient to state generally that 
 the same was published or spoken concerning the plaintiff, and if such 
 allegation be controverted, the plaintiff shall be bound to establish, on the 
 trial, that it was so published or spoken." On the effect of such enactments, 
 see Grand v. Dreyfus (1898) 122 Cal. 58, 54 Pac. 389. 
 
 80 Accord: Hopkins v. Beedle (1803) 1 Caines (N. Y.) 348, 2 Am. Dec. 191:' 
 (The words were "You have sworn a lie ;" but there was no colloquium.) 
 Stafford V. Green (1806) 1 Johns. (N. Y.) ,505: ("He swore falsely before Squire 
 Andrews," without a colloquium, but with "a mere innuendo, that it was in 
 a certain cause depending before a .iustice.") Blair v. Sharp (1820) Breese 
 (111.) .30. Tebbetts v. Goding (1857) 9 Gray (Mass.) 254. 
 
 Compare Niven v. Munn (181G) 13 Johns. (N. Y.) 48, where the statement 
 was thus pleaded : "The defendant, in a certain discourse which he had 
 of and concerning the trial of a certain cause between David Munn and 
 John Wilson, then lately had, before Samuel Barnard, Esq., a justice of the 
 peace, in and for the County of Sullivan ; and of and concerning the testi- 
 mony of the plaintiff, who was sworn as a witness, by the said Samuel 
 Barnard (he being a justice as aforesaid, and having full power and lawful 
 authority to administer an oath), on the trial of the cause, and testified 
 as a witness therein, spoke and published, concerning the plaintiff, these 
 false, scandalous, malicious and defamatory words: 'Wiiat he (meaning 
 to plaintiff) has sworn to is a damned lie' (meaning thereby, that the plaintiff 
 had perjured himself on the trial of the said cause)."
 
 650 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 It was this report which formed the subject of the alleged libel. The 
 plaintiff claimed that it was a libel because it exposed him to ridicule, 
 and was calculated to injure him in his business as a teacher. 
 
 Paxson, C. J.^^ * * * 'j^i^g defendant filed what was substan- 
 tially, though not perhaps in strict technical form, a plea of justifica- 
 tion. It alleged that the article in the Press was a just and true ac- 
 count of the interview between its reporter and the plaintiff', and asked 
 the court to instruct the jury that "if they believe that the publication 
 complained of is a fair and true account of an interview had between 
 the plaintiff and Mr. Cooke, your verdict must be for the defendant." 
 The court declined to affirm this point, and therein we think the learn- 
 ed judge erred. While the truth would not have been a defence to 
 an indictment, the rule is otherwise in a civil suit for damages.*^ 
 This is horn-book law. For this error at least the judgment must be 
 reversed. 
 
 Judgment reyersed. 
 
 81 The statement of the case is abridged, and only so much of the opinion 
 is given as relates to the one point. 
 
 " 82 On the possible effect of showing tlie truth of the statement in slander, 
 see the comment of Holt, C. J., in Johnson v. Browning (1703) 6 Mod. 216, 
 when that case was before the King's Bench in 1705 : "And he (Holt, G. J.) 
 remembered another very lately, where a fellow brought an action for 
 saying of him 'he was a highway-man' ; and it appearing upon evidence 
 that he was so, he was taken in court, committed to Newgate, and con- 
 victed and hanged the next sessions: so people ought to advise well before 
 they brought such actions. And Darnell (for the plaintiff) remembered the 
 like fate, which befell a client of his." 
 
 It was however at one time received as sound law that "no scandal in 
 writing is any more justifiable in a civil action brought by the party to 
 vindicate the Injury done him, than in an indictment or information at the 
 suit of the crown; for tliough in actions for words, the law, through com- 
 passion, admits the truth of the charge to be pleaded as a justification, 
 yet this tenderness of the law is not to be extended to written scandal, 
 in which the author acts with more coolness; and deliberation gives the 
 scandal a more durable stamp, and propagates it wider and farther: whereas 
 in words men often in a heat and passion say things which they are after- 
 wards ashamed of, and though they seem to act with deliberation, yet the 
 .scandal sooner dies away, and is forgotten ; and therefore from the greater 
 •degree of mischief and malice attending the one than the other, though the 
 law allows the party to justify in an action for words, yet it doth not 
 for written scandal; from whence it follows, that the only favour truth 
 affords in such a case is, that it may be shewn in mitigation of damages in 
 an action." Bacon's Abridgment, "Libel," A, 5. 
 
 This rested chiefly on the remark ascribed to Lord Hardwicke in The King 
 V. Roberts (1735) Selw. N. P. 9S6. But Lord Holt in 1707 had already accepted 
 the doctrine that "a man may justify in an action upon the case for words, 
 or for a libel; otherwise in an indictment." Anon. (170G) 11 Mod. 99. 
 
 On the reason for the rule, compare 3 Bl. Com. (1765) 125, and Pollock on 
 Torts (7th Ed.) 254.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 651 
 
 UNDERWOOD v. PARKS. 
 
 (At Middlesex Sittings, 1744. 2 Strauge, 1200, 93 Reprint, 1127.) 
 
 In an action for words, the defendant pleaded not guilty, and offer- 
 ed to prove the words to be true, in mitigation of damages : which the 
 Chief Justice refused to permit, saying that at a meeting of all the 
 Judges upon a case that arose in the Common Pleas, a large majority 
 of them had determined not to allow it for the future, but that it 
 should be pleaded, whereby the plaintiff might be prepared to defend 
 himself, as well as to prove the speaking of the words. That this 
 was now a general rule amongst them all, which no Judge would think 
 himself at liberty to depart from, and that it extended to all sorts of 
 words, and not barely to such as imported a charge of felony.^ ^ 
 
 CLARK V. BROWN. 
 (Supreme Judicial Court of Massachusetts, 1875. 116 ilass. 504.) ,^ 
 
 Tort for slander, for saying of the plaintiff, "he has stolen my iron 
 bar, cart-pin, and ox-yoke." The defendant pleaded that the words 
 were true. On the trial the defendant offered evidence tending to show 
 that the plaintiff had admitted that he took the defendant's iron bar, 
 ox -yoke and cart-pin, but he did not take them to steal them, but to 
 bother or plague the defendant. The jury found for the plaintiff, for 
 $11.75. 
 
 DevEns, J. It is argued for the defendant that, while one may be 
 justly held for slanderous utterances in respect to an innocent person 
 wrongfully defamed, yet that if such a person, by some misconduct of 
 his own, has contributed to produce a belief in the truth of the words 
 thus uttered, he cannot complain of the person expressing it ; and 
 that, therefore, if the plaintiff wantonly took the property of the de- 
 fendant as an idle jest or for the purpose of annoyance, the defendant 
 is not liable for saying that he stole the articles, unless he knew that 
 the plaintiff intended to return them, or only took them thus to annoy 
 him. But in order to justify the defendant in the utterance of words 
 otherwise slanderous, it is necessary that the facts proved by him 
 should be coextensive with the charge ; and he cannot protect himself 
 from the consequences of having made it by showing that he believed 
 it to be true, even if such a belief is induced by misconduct or im- 
 propriety on the part of the plaintiff, which fell short of that which he 
 had seen fit to impute. Parkhurst v. Ketchum, 6 Allen, 406, 83 Am. 
 
 83 Accord: Bearsley v. Bridgman (1864) 17 Iowa, 290: (Action for 
 slander, under the Iowa code of civil procedure. The defendant answered 
 by denial only. On the trial the defendant offered to prove the truth of the 
 words alleged to have been spoken. The plaintiff's objection was sustained 
 by the trial court.)
 
 652 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 Dec. 639, and Watson v. Moore, 2 Cush. 133, 140, are decisive of this 
 point, and the defendant has no ground of complaint in reference to 
 the ruHng upon it. * * * 
 
 The plaintiff is entitled to retain his verdict if he shall elect to have 
 it amended to one for nominal damages. * * * ^* 
 
 ; 
 
 WEAVER V. LLOYD. 
 
 (Court of King's Bench, 1824. 2 Barn. & C. 678, 107 Reprint, 535.) 
 
 Case for a libel published in an Oxford newspaper. The paragraph 
 set out in the declaration charged the plaintiff with the brutal usage 
 of a horse, in riding from Oxford to Abingdon, and after various 
 particulars concluded as follows: 
 
 "We learn that, on reaching Abingdon, the horse presented a most shock- 
 ing spectacle, having one eye literally knocked out, besides being dreadfully 
 lacerated and injured in various parts of its body. Being conscious that its 
 condition would excite attention, he ordered the person who had the care of 
 the horse not to let anyone go into the stables." 
 
 The defendant pleaded, first, not guilty; secondly, a justification, 
 averring the truth of each particular of the statement; thirdly, that 
 the matters contained in the supposed libel were true in substance and 
 efi^ect. Replication, de injuria. At the trial the jury found for the 
 plaintiff on the first plea, and as to the others, that two of the matters 
 alleged were not true ; viz. that the horse's eye, although much in- 
 jured, was not literally knocked out, and that the plaintiff had not 
 ordered that no person should be allowed to go into the stable to see 
 the horse ; but that the alleged libel was true in substance and effect. 
 The Judge then directed a verdict for the plaintiff', and gave the 
 defendant leave to move to enter a verdict in his favour, if the Court 
 should think the third plea supported by the evidence. The jury ac- 
 cordingly found a verdict for the plaintiff with one shilling damages. 
 
 W. E. Taunton now moved to enter a verdict for the defendant, 
 and contended, that the jury were warranted in finding that the alleged 
 libel was true in substance and effect. The horse's eye was shewn 
 to be much injured, although the sight was not entirely destroyed, and 
 the supposed order, not to admit any person into the stable was not 
 any part of the libellous matter, it was therefore unnecessary to prove 
 the truth of it. Edwards v. Bell, 1 I'ing. 403. 
 
 Per Curiam. The defendant did not succeed in proving either of 
 his special pleas. The second plea, which distinctly averred the truth 
 of the two facts which were not proven, clearly was not supported, 
 and the third plea alleging that the charge was true in substance and 
 effect, must mean that each particular of the charge was true in sub- 
 stance. In the case cited, the passage not proved formed no ingredient 
 
 8* The statement of facts is abridged and parts of tlie opinion are omitted.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 653 
 
 of the charge against the plaintiff. Here, the statement that he knock- 
 ed out the horse's eye imputed a much greater degree of cruelty than a 
 charge of beating him on the other parts of the body. If we were to 
 hold this a sufficient justification, exaggerated accounts of any transac- 
 tion might always be given with impunity. 
 Rule refused. 
 
 RUTHERFORD v. PADDOCI 
 
 lV. 
 
 (Supreme Judicial Court of Massachusetts, 1902. 180 Mass. 289, 62 N. E. 381, 
 
 91 Am. St. Rep. 282.) 
 
 Tort for slander. The plaintiff alleged that she was a married wo- 
 man, and that the defendant "charged her with adultery" through 
 speaking these words : "You (meaning the plaintiff) are a dirty old 
 whore, and I can prove it." The defendant pleaded the truth of the 
 charge, in that "the plaintiff had, before said words were spoken and 
 published, committed the crime of adultery." On the trial, the evi- 
 dence tended to show that the plaintiff' had committed adulter}^ two 
 or three times with the same person. The defendant asked the judge 
 to rule as follows : 
 
 "The words as alleged in the declaration are actionable, mthout proof 
 of special damage, only because they charge the plaintiff with, or impute to 
 her, the commission of a crime — the crime of adiiltery. The defendant there- 
 fore justified if she proves that before the words were spoken the plaintiff 
 had committed the crime of adultery. It is not necessary for her to prove, 
 in order to justify, the full truth of the words spoken — i. e., that the plaintiff 
 was a whore in the ordii^ary acceptation of the word, if she proves that 
 defendant had committed the only cilrne which those words import, to wit, 
 the crime of adultery." 
 
 The judge refused to so rule, and left the case to the jury, vvho re- 
 turned a verdict for the plaintiff. The defendant alleged exceptions. 
 
 Holmes, C. J. This is an action of tort brought by a married wo- 
 man for calling her a dirty old whore. We repeat the qualifying ad- 
 jectives as bearing on what we have to say. At the trial the defendant 
 asked for a ruling that a justification was made out by proof that be- 
 fore the words were spoken the plaintiff had committed adultery. The 
 judge refused so to rule, but left it to the jury to decide in what sense 
 the words were used, and instructed them that the justification must be 
 as broad as the charge. On this ground the judge further instructed 
 them that proof that the plaintiff' had committed adultery at some time 
 would not be a justification, if, that is to say, the jury should be of 
 opinion that the words meant more than the charge of the act on a 
 single occasion, and imported, for instance, making merchandise of 
 the plaintiff's person for hire. The defendant excepted. 
 
 No special reference was made to the pleadings in the request or 
 ruling, and so we lay on one side the fact that the justification pleaded 
 followed the innuendo of the declaration, which went little or no fur-
 
 654 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 ther than to aver that the defendant charged the plaintiff with the 
 crime of adultery. See Simmons v. Mitchell, 6 App. Cas. 156, 162; 
 Haynes v. Clinton Printing Co., 169 Mass. 512, 515, 48 N. E. 275. 
 Of course the judge was right in his instruction that the justification 
 must be as broad as the charge. Apart from the pleadings, clearly the 
 jury were at Hberty to find that the words charged the commission 
 of adultery on more than one occasion, and therefore the ruling re- 
 quested was wrong. 
 
 But, as a general rule, the justification need be no broader than the 
 charge in a legal sense — than the actionable portion or significance of 
 the words. It need not extend to the further abuse with which a sen- 
 tence or word may be loaded, where the truth of the substance of the 
 imputation has been made out. Morrison v. Plarmer, 3 Bing. N. C. 
 ■759, 767; Edwards v. Bell, 1 Bing. 403, 409. The judge, by suggest- 
 ing that usually the epithet carried the notion of hire, implied that if 
 that meaning were found the justification must extend to that. There 
 is no doubt that the jury were warranted in finding that the epithet 
 with its adjectives meant more and worse in a social sense than even 
 repeated lapses from conjugal faith. But it would be rather a stretch 
 to say, and it was not argued, that they could have found that any 
 other crime was charged — for instance, that of being a common night- 
 walker, or a lewd, wanton and lascivious person in speech or behavior, 
 under Public Statutes, chapter 207, section 29. Therefore, the ques- 
 tion is suggested whether we are to confine the cause of action to so 
 much of the charge as imports criminal conduct, or are to recognize 
 as an element to be included in the justification such further import of 
 the word as adds to the heinousness of the crime and possibly aft'ects 
 the degree of the punishment, although it does not change the techni- 
 cal character of the offense. 
 
 If we take the former view, we follow to its extreme results a tra- 
 dition of the common law, the reasons for which have disappeared, 
 and which has been corrected in England and in some of our states 
 by statute. Odgcrs on Libel and Slander (3d Ed.) 90. By the old 
 law, apart from an allegation of special damage, an action lay in the 
 spiritual courts only, because the offense charged was dealt with only 
 in the spiritual courts, and it was said that therefore the spiritual 
 courts alone could determine the truth of the charge. Y. B. 27 Henry 
 VIII, 14, pi. 4. Perhaps it would have been simpler to say that orig- 
 inally the whole jurisdiction was ecclesiastical, and that it was re- 
 tained by the church, except in those instances where for special rea- 
 sons the common law had encroached. In Coke's time the state of the 
 law seems to have been accounted for or justified by treating such 
 charges as "brabling words." Oxford v. Cross, 4 Rep. 18. But see 
 Ogden V. Turner, 6 Mod. 104, 105 ; Graves v. Blanchet, 2 Salk. 696 ; 
 Davis V. Sladden, 17 Or. 259, 262, 263, 21 Pac. 140. It has been sug- 
 gested that the taking by the common-law courts of a portion of the 
 original ecclesiastical jurisdiction over slander started from tlie fact
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES C55 
 
 that in the cases where the common law interfered the matter charged 
 was the subject of a common-law writ, and that the principal matter 
 drew to it the accessory. In such cases the common-law courts best 
 could determine the truth of the charge : Smith v. Teutonia Ins. Co., 
 Fed. Cas. No. 13,115, 6 Am. Law Rev. 593, 595, 603, 605. Of course 
 at that stage the common law could not present a systematic scheme 
 of liability, but only examples of occasional interference which seemed 
 merely arbitrary when the explanation was lost. 
 
 At the present day, when slander is fully domiciled in the common 
 law as a tort and the only remedy recognized as a remedy must be 
 found in the common-law courts, it may be argued with some force 
 that there should be an effort after consistency of theory, and that 
 the remedy for one of the greatest wrongs that can be done by words 
 should not be distorted by the necessity of referring it to the liability 
 to a small fine or imprisonment if the falsehood were true. The older 
 law already has been broken in upon by holding liability to a trivial 
 punishment enough if the crime involves moral turpitude, or if the 
 punishment Avill bring disgrace. See Miller v. Parish, 8 Pick. 384; 
 Brown v. Nickerson, 5 Gray, 1. Compare Turner v. Ogden, 2 Salk. 
 696, 6 Mod. 104; Onslow v. Home, 2 W. Black. 750, 753, 3 Wils. 
 177, 186; Holt v. Scholefield, 6 Term Rep. 691, 694; Eure v. Odom, 
 9 N. C. (2 Hawks) 52. At all events, so long as the action for slander 
 is preserved and lies for imputing unchastity to a woman, it is so rea- 
 sonable to hold the liability coextensive with the imputation that we 
 sloall not be more curious than our predecessors in finding an arbitrary 
 and technical limit. In Doherty v. Brown, 10 Gray, 250, 251, it was 
 said by a very able judge, and said as a material part of the reasoning 
 on which the case was decided, that proof of the unchastity of the 
 plaintiff would not be a justification of the charge that she was a 
 whore. We are content to take the law as we find it stated. See 
 Cleveland v. Detweiler, 18 Iowa, 299 ; Sheehey v. Cokley, 43 Iowa, 
 183, 22 Am. Rep. 236; Peterson v. Murray, 13 Ind. App. 420, 41 N. 
 E. 836. 
 
 Exceptions overruled. 
 
 CUDDINGTON v. WILKINS. 
 
 (Court of Common Pleas, 1615. Hob. 67, 80 Reprint, 216.) 
 
 Cuddington brought an action on the case against Wilkins, for call- 
 ing him thief; the defendant justified, because beforetime he had 
 stolen somewhat : the plaintiff replied, that since the supposed felony 
 the general pardon in the seventh year of the King was made, and 
 makes the usual averment to bring himself within the pardon. Where- 
 upon the defendant demurs : See Staundford plac. Coronse, 180, that 
 a man arrested for felony break prison, he shall lose his battail ; but 
 yet if the King pardon him that it is restored. F. Coronas, 281 ; 1
 
 656 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 and 2 E. 3, F. Coronae, 154. So here the felony is by the pardon ex- 
 tinct. 
 
 And in the end this case was adjudged for the plaintiff, though it 
 may be, he knew him not to be within the pardon ; for there is no 
 cause to favour idle and injurious words: but perhaps if he had ar- 
 rested him for the felony after pardon, it might have been excused if 
 he knew it not, because it is an act of justice.®^ 
 
 LARSON V. COX. 
 (Supreme Court of Nebraska, 1903. 68 Neb. 44, 93 N. W. 1011.) 
 
 Sullivan, C. J. This was an action by Larson against Cox to re- 
 cover damages for slander. The defamatory words set out in the pe- 
 tition amount to a charge of larceny. The defendant in his answer 
 alleged that the charge was true, and that it was made with good mo- 
 tives and for justifiable ends. The jury found against the plaintiff, 
 and judgment followed the verdict. 
 
 The assignments of error discussed by counsel relate for the most 
 part to the plea of justification, and raise the question whether the 
 truth of slanderous matter is per se a complete defense. The conten- 
 tion of counsel for plaintiff is that the truth is unavailing unless it 
 was uttered with a good motive and for a proper purpose. His argu- 
 ment is grounded altogether upon the provision of the Constitution 
 which declares tliat "in all trials for libel, both civil and criminal, the 
 truth, when published with good motives and for justifiable ends, shall 
 be a sufficient defense." Const, art. 1, § 5. The provision here quoted 
 is a substitute for section 3, art. 1, of the Constitution of 1866, which 
 was an almost literal copy of a New York statute adopted soon after 
 the trial of the celebrated case in which Croswell was convicted of 
 publishing a libel on Thomas Jefferson. People v. Croswell, 3 Johns. 
 Cas. 337, append. This statute was intended to secure and safeguard 
 the freedom of the press, and is now fundamental law in many of the 
 
 85 Accord: Leyman v. lAitimer (1S77) 3 Ex. Div. 15, 20: (The editor of 
 a newspaper sued for libel iu calling him a "felon editor" ; the defeudauts 
 justified, allefiing that the plaintiff had been convicted of felony and sen- 
 tenced to twelve months imi^risonment and hard labour. The plaintiff re- 
 plied that after his conviction he underwent his sentence of twelve months' 
 imprisonment and hard labour and so became as cleared of the crime and 
 its consequences as if he had received the (Queen's pardon luider the great 
 seal.) Compare the application of the prin(i])le in llav v. Justices of the 
 Tower, [1M)0J 24 Q. B. D. 501, and in Mousun v. Tussauds, Limited, [1S94] 
 1 Q. B. 671, 687. 
 
 For an elaborate consideration of the effect of a pardon, and of the doc- 
 trine of Cuddington v. Wilkins, see Bronson, J.'s, opinion in Baum v. Clause 
 (1843) 5 Hill (N. Y.) 196. 
 
 On the fpiostion in general, see "Pardons," 29 Cyc. 1566; 37 Cent. Dig. 
 Tit "Pardon," § 16 ; Dee. Dig. tit "Pardon," § 9.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 657 
 
 States. It was a modification of the doctrine of the common law that 
 in public prosecutions for libel the truth of the libel is no excuse for 
 its publication. 
 
 AMien considered in the light of history, there is much reason to 
 suppose that the constitutional provision upon which plaintiff relies 
 \vas designed as a sure and permanent protection, both in civil and 
 criminal actions, to persons who have occasion, in the discharge of 
 some legal, social, or moral duty, to write and publish criticisms on 
 the character and conduct of others, and that it was not any part of 
 its purpose to take away from the defendant in a libel case any right 
 given him either by the statutory law or the common law. The truth 
 of a defamatory publication is still a complete and perfect defense in 
 a criminal case, irrespective of the motive or object of the publisher. 
 The Legislature has made it so by definition of the crime. Section 
 132 of the Code of Civil Procedure in effect declares that, in an action 
 for a libel or slander, the truth of the defamatory matter may be 
 pleaded and proved as a defense. Castle v. Houston, 19 Kan. 417, 27 
 Am. Rep. 127. The validity of this section was of course necessarily 
 involved in Pokrok Zapadu Pub. Co. v. Zizkovsky, 42 Neb. 64, 60 N. 
 W. 358, and Neilson v. Jensen, 56 Neb. 430, 76 N. W. 866, which seem 
 to have been decided on the assumption that the constitutional provi- 
 sion above quoted, so far as it relates to libels which are the subjects 
 of civil action, was intended as a restraint upon the freedom of the 
 press, and that it operated as a partial repeal of the statute. It is not 
 necessary at this time to either affirm or deny the doctrine of these 
 cases, as the constitutional provision with which they deal has no ref- 
 erence to actions for slander. Section 132, so far at least as it relates 
 to spoken defamation, is in harmony with the Constitution, and is 
 therefore valid. 
 
 Under the instructions given by the court at plaintiff's request, the 
 jury must have found that the plea of justification was sustained by 
 the proof. In our opinion, the evidence was sufficient to warrant the 
 conclusion that Larson had committed the crime imputed to him. 
 This being so, the verdict and judgment are right, even though defend- 
 ant did not make the accusation with good motives and for justifiable 
 ends. * * * *® Judgment affirmed. 
 
 8 6 Part of the opinion is omitted. 
 
 Accord: Bauni v. Clause (1843) 5 Hill (N. Y.) 196: (In slander, because D. 
 had said that P. had stolen an axe several years before, D. pleaded the truth 
 of the charge. P. replied that he had been pardoned by the Governor. Said 
 Branson, J.: "The plaintiff has so far retrieved his character that he has been 
 made one of the inspectors of elections for the town in which he resides. This 
 proves that he enjoys the good opinion of his neighbors, and it was a malicious 
 thing on the part of the defendant to open this old sore. But our law allows 
 a man to speak the truth, although it be done maliciously.") And see the 
 remarks of Chapman, J., in Foss v. llildreth (1803) 10 Allen (Mass.) 76, 79. So 
 in an action for libel at common law. "The truth is always a complete de- 
 fense, although the publication may be inspired by malice or ill will and be 
 
 Hep B. Torts — 42
 
 \ 
 
 r) 
 
 65S TORTS TnROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 (b) Privilege 
 SIR JOHN SCOTT LILLIE v. PRICE. 
 
 (Court of Kiug's Bench, 1836. 5 Adol. & E. 645, 111 Reprint, 1309.) 
 
 Declaration (1836) for libel contained in a letter. Plea, not guilty. 
 On the trial before Lord Denman, C. J., at the sittings in Middlesex 
 after last Trinity term, the defence was, that the alleged libel was a 
 privileged communication. The defendant's counsel objected that this 
 answer could not be given under the plea of not guilty. The Lord 
 Chief Justice thought otherwise, and left the whole case to the jury, 
 who found for the defendant. 
 
 Sir W. W. Follett in this term moved for a rule to shew cause why 
 a new trial should not be had, on the ground of misdirection. 
 
 Lord De;nman, C. J. We have consulted the other Judges on this 
 point, and are of opinion that the defence of privileged communica- 
 tion, as it goes to the very root of the matter of complaint, need not 
 be specially pleaded. 
 
 Rule refused.^^ 
 
 libelous per se." Herald Pub. Co. v. Feltner (1914-) 158 Ky. 35, 164 S. W. 
 371 ; 25 Cyc. 413, 414, note 25. 
 
 But tills common law rule as to justification through a showing of the mere 
 truth of the charge, has been modified" by constitutional or statutory provi- 
 sions in a considerable number of states. In some of these states, a plea of the 
 truth in libel is a prima facie justification, but the plaintiff may overcome it 
 by proving a malicious intention on the part of the defendant. Perry v. Port- 
 er (1878) 124 Mass. 338 ; Conner v. Standard Pub. Co. (1903) 183 Mass. 474, 67 
 N. E. 596. Compare the charge in Cardarelli v. Providence Journal Co. (1911) 
 33 K. 1. 268, 80 Atl. 583, 588. In other states, a plea of the truth in libel is 
 a justification if the defendant goes further and shows that he published it 
 with good motives and for justifiable ends. Neilsou v. Jensen (1S9S) 56 Neb. 
 430, 70 N. W. 866. 
 
 In Hutchins v. Page (1909) 75 N. H. 215, 72 Atl. 689, 31 L. R. A. (N. S.) 132, 
 however, it was held, on common law grounds, that whether truth is a valid 
 defense to an action to recover damages for a libel "depends upon the good 
 faith and real purpose of the publisher." See infra, in the discussion of torts 
 through intentional harm. See also, in general, 25 Cyc. 414, note 26, and the 
 elaborate note to Hutchins v. Page, in 31 L. R. A. (N. S.) 132. 
 
 ST "The defence that the occasion or circumstances under which words of 
 themselves slanderous were spoken afford an excuse for their utterance, and 
 so repel the legal inference of malice, is clearly matter in the nature of avoid- 
 ance of the cause of action, and must be duly pleaded in the answer in order 
 to enable a defendant to avail himself of it under the provisions of the prac- 
 tice act. Gen. Sts. c. 129, §§ 15, 17, 20, 27." Per Bigelow, C. J., in Goodwin v. 
 Daniels (1803) 7 Allen (Mass.) 61, 63. This principle is now recognized by 
 statute in a number of American states. 25 Cyc. 481, note 86. And under 
 the English Judicature Acts a defendant who relies on a privilege "should set 
 out the facts wliich he alleges constitute the privileged occasion." 18 Hals- 
 bury's Laws of England, 085, note (a).
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 659 
 
 (aa) Absolute Prhnleges ss 
 
 RAM V. LAMLEY. 
 
 (Court of Common Pleas, 1G33. Hut. 113, 123 Repriut, 1139.) 
 
 Norff. Ram brought an action upon the case against Lamley, and 
 declared, that whereas he was "bonus & legahs homo and free a sus- 
 pitione felonise," the defendant maliciously went to the Major of Linn, 
 and requested a warrant of him (being a justice of peace) against the 
 plaintiff for stealing his ropes : the major said to him, ''be advised and 
 look what you do," the defendant said to the major, "Sir, I will charge 
 him with flat felony for stealing my ropes from my shop," quorum 
 quidem verborum, &c. And after not guilty pleaded, and verdict for 
 the plaintiff, Hitcham moved in arrest of judgment; and the Court 
 unanimously resolved that these words being spoken to the justice of 
 peace when he came for his warrant, which was lawful, would not 
 maintain an action, for if they should, no other would come to a jus- 
 tice to make complaint, and to inform him of any felony. Querens 
 nil capiat per breve. ^^ 
 
 8 8 "I should first like to explain my view, whicli is derived from the former 
 cases, as to the meaning of what is called 'absolute privilege.' I do not think 
 that it is a very accurate expression, and I am sure that calling it a 
 'privilege' Ls sometimes misleading. Privilege means, in the ordinary way, 
 a private right. Now there is no private right of a judge, or a witness, 
 or an advocate to be malicious. It would be wrong of him, and if it could be 
 proved I am by no means sure that it would not be actionable. The real 
 doctrine of what is called 'absolute privilege' is that in the public interest 
 it is not desirable to inquire whether the words or acts of certain persons are 
 malicious or not. It is not that there is any privilege to be malicious, but 
 that, so far as it is a privilege of the individual — I should call it rather a 
 right of the public — the privilege is to be exempt from all inquiry as to 
 malice; that he should not be liable to have his conduct inquired into to see 
 whether it is malicious or not — the reason being that it is desirable that 
 persons who occupy ceilain positions as judges, as advocates, or as litigants 
 should be perfectly free and independent, and, to secure their independence, 
 that their acts and words should not be brought before tribunals for inquiry 
 into them merely on the allegation that they are malicious. I think there is 
 something more in that distinction than mere words, and the reason that this 
 peculiar doctrine of 'absolute privilege' is sometimes complained of is that 
 it is not thoroughly understood. That explanation of the doctrine will be 
 found here and there in many of the cases, although it never seems to have 
 been put into the head-note, and so it does not appear prominently as the 
 real ground of the doctrine. In Munster v. Lamb, 11 Q. B. D. 5SS, for 
 instance, the explanation of the doctrine is given in some of the judgments, 
 but it is not to be found in the head-note; and the same remark applies to 
 some of the cases earlier than Munster v. Lamb." Per Channell, J., in Bot- 
 tomley v. Brougham (1908) 1 K. B. .584. 
 
 8 9 Accord: Cutler v. Dixon (1.58G) 4 Co. Rep. 14 b: "If actions should 
 be permitted in such cases, those who have just cause for complaint, would 
 not dare to complain for fear of infinite vexation." Hartsock v. Iteddick 
 (1842) 6 Blackf. (lud.) 255, 38 Am. Dec. 141.
 
 660 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 SCOTT V. STANSFIELD. 
 
 (Court of Excbeiiuer, ISGS. L. E. 3 Exch. 220.) 
 
 Declaration, for that the plaintiff carried on the business of an ac- 
 countant and scrivener, and the defendant spoke and published of 
 and concerning him, in relation to his said business, tlie words fol- 
 lowing : 
 
 "You," meaning the plaintiff, "are a barpy, preying on the vitals of the 
 poor." 
 
 Plea, that at the time when the alleged grievance was committed, 
 the defendant was the judge of a certain court of record, being the 
 County Court of Yorkshire, and spoke and published the words com- 
 plained of when he was sitting in the said court, and acting in his 
 capacity as such judge, and was as such judge hearing and trying a 
 cause in which the now plaintiff was defendant, the hearing and de- 
 termination of which was wnthin the jurisdiction of the said court. 
 Replication, that the said words so spoken and published by the de- 
 fendant — 
 
 were spoken falsely and maliciously, and without any reasonable, probable 
 or justifiable cause, and without any foundation whatever, and not bona fide 
 in the discharge of his duty as .iudge as aforesaid, and were wholly uncalled 
 for, immaterial, irrelevant, and impertinent, in reference to, or in respect 
 of, the matters before him, and were wliolly unwarranted on the said 
 occasion, of all which premises the defendant had notice before and at the 
 time of the committing of the said grievance, and then well knew. 
 
 To this replication the defendant demurred, and the plaintiff joined 
 in the issue thus raised. 
 
 Martin, B.®° It seems to me quite clear that words spoken under 
 the circumstances stated in these pleadings are not the subject of an 
 action of slander. The plea states that the defendant at the time 
 when he spoke the words complained of, was sitting as the judge of a 
 court of record, and spoke them while acting in his capacity of judge, 
 and trying a cause within his jurisdiction in which the present plain- 
 tiff was the defendant. If the words spoken under such circumstances 
 were the subject of an action of slander, the most mischievous conse- 
 quences would ensue; no judge would then be able freely to admin- 
 ister justice, for if it were alleged, as is the case here, that he spoke 
 falsely and maliciously, and not bona fide in the discharge of his duty, 
 and that what he said was irrelevant to the matter in hand, a jury 
 would have to determine the question whether what he said in the 
 course of a case which he had jurisdiction to tr}^ was or was not said 
 under the circumstances so alleged. What judge could try a case with 
 any degree of independence if he was to be afterwards subject to have 
 his conduct in the administration of justice commented on to a jury, 
 
 90 The statement of the case is abridged, and the concurring opinions of 
 Kelly, C. B., and Bi-amwell and Channell, liB., are omitted.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 661 
 
 and the propriety of it determined by them? It appears to me that 
 the opinion expressed by Chief Justice Kent, in the American case 
 cited,® ^ puts this matter upon its proper foundation, and states, that 
 which is both sound law and good sense in reference to it. I do not 
 think we are really deciding anything new, for to my mind the de- 
 cisions of the Court of Queen's Bench have gone the full length of 
 our present decision.®- 
 
 Judgment for the defendant. 
 
 91 Yates V. Lansing (1810) 5 Johns. (N. Y.) 282; Id. (1811) 9 Johns. (N. Y.) 
 bUo, 6 Am. Dec. 290. 
 
 92 "Why is it that a .indge who disgraces his office, and speaks from the 
 bench words of defamation, falsely and maliciously, and without reasonable 
 or probable cause, is not liable to an action? Ts not such conduct of the 
 worst description, and does It not produce gi'eat injury to the person affected 
 by itV Why should a witness be able to avail himself of his position in the 
 box and to make witliout fear of civil consequences a false statement, 
 which In many cases is perjured, and which is malicious and affects the 
 character of another? The rule of law exists, not because the conduct of 
 those persons ought not of itself to be actionable, but because, if their 
 conduct was actionable, actions would be brought against judges and wit- 
 nesses in cases in which they had not spoken with malice, in which they 
 had not spoken with falsehood It is not a desire to prevent actions from 
 being brought in cases where they ought to be .maintained that has led to 
 the adoption of the present rule of law ; but it is the fear that if the 
 rule were otherwise, numerous actions would be brought against persons 
 who were merely discharging their duty. It must always be borne in mind 
 that it is not intended to protect malicious and untruthful persons, but 
 that it is intended to protect i>ersous acting bona fide, who under a different 
 rale would be liable, not perhaps to verdicts and judgments against them, 
 but to the vexation of defending actions." Fry, L. J., in Munster v. Lamb 
 (1883) 11 Q. B. D. 588, 607. 
 
 This immunity of judges from civil action for defamation is but one in- 
 stance of a doctrine which "has a deep root in the common law." See Clian- 
 cellor Kent's remarks in Yates v. Lansing (1810) 5 .Johns. (X. Y.) 282, 291, 
 and the cases there referred to; Bradley v. Fisher (1871) 13 Wall. 335, 347, 
 20 L. Ed. 646; Alzua v. Johnson (1913) 231 U. S. 106, 107, 34 Sup. Ct. 27, 
 58 L. Ed. 142. The action in the last case was against a justice of the 
 Supreme Court of the Philippines. '"Whatever may have been the Spanish 
 law," said Mr. Justice Holmes, "this [the immunity of judges] is a principle 
 so deep seated in our system that we should regard it as carried into the 
 Philippines by implication as soon as we established courts in those islands." 
 And it was held therefore that an act of the I'hilippine commission provid- 
 ing that no judge shall be liable to civil action for olhcial acts done in good 
 faith, is not to be construed as rendering judges of the Supreme Court liable 
 for official acts done in bad faith. 
 
 See also the statement and illustration of the general principle in Cooley 
 on Torts (Student's Ed.) 377. For other cases, see "Public Authorities," 23 
 Halsbury's Laws of England (1912) 323-331, and notes; "Judges," 23 Gyc. 
 569, note 3 ; Cent. Dig. §§ 165-173, 178, 179 ; Dec. Dig. § 36.
 
 v/ 
 
 662 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 BROOK V. SIR HENRY MONTAGUE. 
 (Court of King's Bench, 1605. Cro. Jac. 90, 79 Reprint, 77.) 
 
 Action for words, for that the defendant spake these words of the 
 plaintiff: "He was arraigned and convicted of felony, &c." The de- 
 fendant pleads, that the plaintiff at another time brought false impris- 
 onment against J. S., one of the Serjeants of London, and found 
 against the plaintiff, who brought an attaint : and the defendant being 
 consiliarius et peritus in lege, was retained to be of counsel with the 
 petty jury; and in evidence at the trial spake these words in the 
 declaration; and so justifies. Yelverton and Coke, Attorney General, 
 were of counsel for the defendant. 
 
 The Court resolved that the justification was good: for a coun- 
 sellor in law retained hath a privilege to enforce any thing which is 
 informed him by his client, and to give it in evidence, it being pertinent 
 to the matter in question, and not to examine whether it be false or 
 true; but it is at the peril of him who informs it: for a counsellor 
 is at his peril to give in evidence that which his client informs him, 
 being pertinent to the matter in question ; otherwise action upon the 
 case lies against him by his client, as Popham said. But matter not 
 pertinent to the issue, or the matter in question, he need not to de- 
 liver; for he is to discern in his discretion what he is to deliver, and 
 what not : and although it be false, he is excusable, being pertinent 
 to the matter : but if he give in evidence any thing not material to the 
 issue which is scandalous, he ought to aver it to be true, otherwise 
 he is punishable ; for it shall be intended as spoken maliciously and 
 without cause; which is a good ground for an action. So if a coun- 
 sellor object matter against a witness which is slanderous, if there be 
 cause to discredit his testimony, and it be pertinent to the matter in 
 question, it is justifiable what he delivers by information, although it 
 be false. So here it is material evidence to prove him a person fit to 
 be bound to his good behaviour, and in maintenance of the first verdict ; 
 therefore his justification is good. * * * 93 
 
 Wherefore, for these reasons it was adjudged for the defendant. 
 
 8 3 The statement of the case is slightly abridged. 
 
 Accord: Hodgson v. Scarlett (1818) 1 B. & Aid. 2.32, 19 R. R. 301, where 
 the words used by the defendant, Scarlett, afterwards Lord Ablnger, were as 
 follows: "Some actions are founded in folly, some in knavery, some in 
 both, some in the folly of the attorney, some in the knavery of the attorney, 
 some in the folly and knaveiy of the parties themselves. Mr. Peter Hodgson 
 was the attorney of the parties, drew the promissory note, fraudulently got 
 Bowman to pay into his hands £150 for the benetit of the plaintiff. This 
 was one of the most protiigate things I ever knew done by a professional 
 man. IMr. Hodgson is a fraudulent and wicked attorney." The words, said 
 Lord EUenborough, were "not used at random and unnecessary, but were 
 a comment upon the plaintiff's conduct as attorney," and "were relevant and 
 pertinent to it."
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 663 
 
 MUNSTER V. LAMB. 
 (In the Court of Appeal, 1883. 11 Q. B. Div. 588.) 
 
 Brett, M. R.®* * * * f^is action is brought against a solici- 
 tor for words spoken by him before a court of justice, whilst he was 
 acting as the advocate for a person charged in that court with an 
 offence against the law. For the purposes of my judgment I shall 
 assume that the words complained of were uttered by the solicitor 
 maliciously, that is to say, not with the object of doing something use- 
 ful towards the defence of his client: I shall assume that the words 
 were uttered without any justification or even excuse, and from an in- 
 direct motive of personal ill will or anger towards the prosecutor aris- 
 ing out of some previously existing cause; and I shall assume that 
 the words were irrelevant to every issue of fact which was contested 
 in the court where they were uttered ; nevertheless, inasmuch as the 
 words were uttered with reference to, and in the course of the judicial 
 inquiry which was going on, no action will lie against the defendant, 
 however improper his behaviour may have been. * * * j^- ^y^g ^(j_ 
 mitted that so long as an advocate acts bona fide and says what is rel- 
 evant, owing to the privileged occasion defamatory statements made by 
 him do not amount to libel or slander, although they would have been 
 actionable if they had not been made whilst he was discharging his 
 duty as advocate. But it was contended that an advocate cannot claim 
 the benefit of the privilege unless he acts bona fide, that is, for the pur- 
 pose of doing his duty as an advocate, and unless what he says is rel- 
 evant. That is the question which Ave now have to determine. Cer- 
 tain persons can claim the benefit of the privilege which arises as to 
 everything said or written in the course of an inquiry as to the admin- 
 istration of the law, and without making an exhaustive enumeration 
 I may say that those persons are judges, advocates, parties, and wit- 
 nesses. * * * 
 
 If upon the grounds of public policy and free administration of the 
 law the privilege be extended to judges and witnesses, although they 
 speak maliciously and without reasonable or probable cause, is it not 
 for the benefit of the administration of the law that counsel also 
 should have an entirely free mind? Of the three classes — judge, wit- 
 ness, and counsel — it seems to me that a counsel has a special need 
 to have his mind clear from all anxiety. A counsel's position is one of 
 the utmost difficulty. He is not to speak of that which he knows ; he 
 is not called upon to consider, whether the facts with which he is 
 dealing are true or false. What he has to do, is to argue as best he 
 can, without degrading himself, in order to maintain the proposition 
 which will carry with it either the protection or the remedy which 
 he desires for his client. If amidst the difficulties of his position he 
 
 84 The statement of facts and parts of tlie opinion are omitted.
 
 664 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 were to be called upon during- the heat of his argument to consider 
 whether what he says is true or false, whether what he says is relevant 
 or irrelevant, he would have his mind so embarrassed that he could 
 not do the duty which he is called upon to perform. For, more than 
 a judge, infinitely more than a witness, he wants protection on the 
 ground of benefit to the public. The rule of law is that what is said in 
 the course of the administration of the law, is privileged ; and the rea- 
 son of that rule covers a counsel even more than a judge or a witness. 
 To my mind it is illogical to argue that the protection of privilege 
 ought not to exist for a counsel, who deliberately and maliciously 
 slanders another person. The reason of the rule is, that a counsel, 
 who is not malicious, and who is acting bona fide, may not be in dan- 
 ger of having actions brought against him. If the rule of law were 
 otherwise, the most innocent of counsel might be unrighteously har- 
 assed with suits, and therefore it is better to make the rule of law so 
 large that an innocent counsel shall never be troubled, although by 
 making it so large counsel are included who have been guilty of malice 
 and misconduct. * * * i ^yill refer to Kennedy v. Milliard, 10 Ir. 
 Com. Law Rep. (N. S.) 195 ; and in that case Pigott, C. B., delivered 
 a most learned judgment, in the course of which he said : "I take this 
 to be a rule of law, not founded (as is the protection in other cases 
 of privileged statements) on the absence of malice in the party sued, 
 but founded on public policy, which requires that a judge, in dealing 
 with the matter before him, a party in preferring or resisting a legal 
 proceeding, and a witness in giving evidence, oral or written, in a 
 court of justice, shall do so with his mind uninfluenced by the fear of 
 an action for defamation or a prosecution for libel." Into the rule 
 thus stated the word "counsel" must be introduced, and the rule may 
 be taken to be the rule of the common law. That rule is founded upon 
 public policy. With regard to the counsel, the question of malice, 
 bona fides, and relevancy, cannot be raised ; the only question is, 
 whether what is complained of has been said in the course of the ad- 
 ministration of the law. If that be so, the case against a counsel must 
 be stopped at once. No action of any kind, no criminal prosecution, 
 can be maintained against a defendant, when it is established that 
 the words complained of were uttered by him as counsel in the course 
 of a judicial inquiry, that is, an inquiry before any court of justice 
 into any matter concerning the administration of the law.®* 
 
 8 5 "The authorities are clear, uniform and conclusive tliat no action lies, 
 whether against judges, counsel, witnesses, or parties, for words spoken in 
 the ordinary cour.se of any proceeding before any court or tribunal recog- 
 nized liy law. It is manifest Uiat the administration of justice would be 
 jjaralysed if those who are engaged in it were to be liable to actions of libel 
 or slander upon the imputation that they had acted maliciously and not 
 bona fide. The doctrine is not confined to the administration of justice in 
 the sui)erior courts. It has been applied in its fullest extent to county 
 coui-ts. It applies not only to all kinds of courts of justice, but to other 
 tribunals recognised by law acting judicially. It has not, however, been
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 6G5 
 
 I am of opinion that the rule of law is such as I have pointed out, 
 that it ouglit to be applied in the present case, and therefore that this 
 action cannot be maintained. 
 
 Appeal [by the plaintiff] dismissed. 
 
 McLaughlin v. cowley. 
 
 (Supreme Judicial Court of Massachusetts, 1879. 127 Mass. 316.) 
 
 Tort. The second count in the declaration stated in due form 
 that the defendant in a declaration signed and filed by him as attor- 
 ney for the plaintiff in an action brought by one Leggate against 
 one Moulton had falsely and maliciously charged the present plaintiff 
 with murder and adultery. The trial resulted in a verdict for the 
 plaintiff, and the defendant alleges exceptions. "'^ 
 
 Lord, J. It was stated in the opinion of this court in the recent 
 case of Rice v. Coolidge, 121 Mass. 393, 23 Am. Rep. 279, that it 
 seems to be settled by the English authorities that judges, counsel, 
 parties and witnesses are absolutely exempted from liability to an 
 action for defamatory words published in the course of judicial pro- 
 ceedings; and that the same doctrine is generally held in the Ameri- 
 can courts, with the qualification, as to parties, counsel and witnesses, 
 that their statements made in the course of an action must be pertinent 
 and material to the case. The doctrine thus qualified was set forth by 
 Shaw, C. J., in an elaborate opinion, in Hoar v. Wood, 3 ]\Ietc. 193. 
 The qualification of the English rule is adopted in order that the pro- 
 tection given to individuals in the interest of an efficient administra- 
 tion of justice may not be abused as a cloak from beneath which to 
 gratify private malice. The question presented by the first excep- 
 tion in this case depends upon the proper application of this rule. 
 
 A careful examination of the declaration in the case of Leggate 
 against Aloulton shows that that action was brought to recover dam- 
 ages for losses sustained by Leggate in consequence of employing 
 McLaughlin, the plaintiff in the case at bar, as her agent; and that 
 he was so employed because Leggate believed certain false represen- 
 tations made by Moulton as to McLaughlin's trustworthiness and fit- 
 ness for the agency. The declaration sets forth the representations 
 made, alleges that they were false and that Moulton knew it, and 
 then proceeds with the statements which are here charged to be li- 
 bellous. These statements relate to matters not mentioned in the 
 
 extended further than to courts of justice and tribunals acting in .a manner 
 similar to that in which such courts act." 18 Halsbury's Laws of England, 
 678-681 (1911), and cases there cited. 
 
 8 The statement of the case is abridged, and a portion of the opinion, 
 dealing with other questions, is omitted. The defendant's excoiitions were 
 sustained for error in the admission of testimony under a plea of justification.
 
 GG6 TORTS TUROUGH ACTS OP ABSOLUTE LIABILITY (Part 1 
 
 representations made by Moulton. They do not directly negative the 
 truth of any of his representations, and were not necessary nor ma- 
 terial to a full and complete presentation of the case on which Leg- 
 gate asked for damages. The ground of action was not strengthened 
 by adding them, nor did they furnish any basis for enhancing the 
 damages which might be recovered. They were not pertinent to the 
 action, and were struck out of the declaration, by the court, on motion 
 of Moulton. They contained charges against the present plaintiff 
 of criminal conduct of the grossest character. 
 
 To hold that such statements, thus uncalled for and irrelevant, are 
 privileged, as part of pleadings in a cause, would be to disregard the 
 salutary modification of the English rule which has been made by 
 the American courts,'*'' and is stated in Rice v. Coolidge. The de- 
 fendant stands, therefore, as to liability to action on account of these 
 statements, precisely as if he had published them in a newspaper, and 
 cannot justify, by showing his belief that they were true, the sources 
 
 97 "In England, the law seems to be settled now that .ludges, counsel, par- 
 ties and witnesses are alisolutely exempted from liabilitj' to an action for 
 defamatory words published in the course of judicial proceedings (Rice v. 
 Coolidge [1876]; 121 Mass. 303, 23 Am. Rep. 279), and it has been broadly stated 
 that this was the rule at common law. As the common law of England, as it 
 existed down to the 4th day of July, 1776, is declared by statute to be of 
 force in this state, let us see what was the state of the common law prior 
 to the time stated. [Mr. Justice Parkhill here reviewed the earlier English 
 cases on the point.] We need not comment upon the other English cases 
 cited by counsel for the defendant in error further than to say that many of 
 them were decided long after the 4th day of July, 177G, and only support the 
 modern doctrine of privilege prevailing in that country. We do not think 
 the rule at coiumon law sustains the contention for an absolute privilege 
 for defamatory words published in the due course of judicial proceedmg. 
 
 "In the United States, according to the overwhelming weight of authority, 
 in order that defamatory words, published by parties, counsel, or witnesses 
 in the due course of a judicial procedure, may be absolutely privileged, they 
 must be connected with, or relevant or material to, the cause in hand or 
 subject of inquiry. If they are so published and are so relevant or pertinent 
 to the subject of inquiry, no action will lie therefor, however false or mali- 
 cious they may in fact be." Per Parldull, J., in Myers v. Hodges (1907) 53 
 I'la. 197, 44 South. 357, 301, citing many cases. 
 
 See also Dodge v. Oilman (1013) 122 ]Minn. 177, 142 N. W^ 147, 47 L. R. A. 
 (JN. S.) 109S, Ann. Cas. 1914D, 894. But in Sebree v. Thompson (1007) 126 Ky. 
 223, 103 S. W. 374, 11 L. R. A. (N. S.) 723, 15 Ann. Cas. 770, a dictum inclines 
 toward the later Ehglish view. See, in general, 25 Cyc. 377-380; "Libel and 
 Slander," Cent. Dig. §§ 117-123, Dec. Dig. Key-No. § 38. 
 
 The range of the principle of "absolute privilege" is indicated in the fol- 
 lowing passage from the considered judgment of the Court of Exchequer 
 Chamber in Dawkins v. Lord Rokeby (1873) L. R. 8 Q. B. 255, 268: "What- 
 ever is said, however false or injurious to the character or interests of a com- 
 plainant, by judges upon the bench, whether in the superior courts of law or 
 equity, or in county courts, or sessions of tlie peace, by counsel at the bar 
 in pleading causes, or by witnesses in giving evidence, or by members of the 
 legislature in either house of parliament, or by ministers of the' Crown in 
 advising the Sovereign, is absolutely privileged and cannot be inquired into 
 In an a<tion at law for defamation." This passage is quoted by Fry, L. J., iu 
 Munster v. Lamb (1883) 11 Q. B. D. 588, 606, as a dictum of the highest value 
 and "in my opinion nothing less than a declaration of the common law on the 
 point."
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 6G7 
 
 of his information, or his instructions from his cHent. It is only 
 when words are published on an occasion which makes them privi- 
 leged, that the belief of the publisher that they are true can be 
 shown. * * * 
 
 SEAMAN V. NETHERCLIFT. 
 (In the Court of Appeal, 1876. 2 0. P. Div. 53.) 
 
 Appeal from the decision of the Common Pleas Division, ordering 
 judgment to be entered for the defendant. ^^ 
 
 CocKBURN, C. J. * * * At the trial before Lord Coleridge it 
 appeared that in the probate suit of Davies v. May the defendant had 
 been examined, as an adept, to express his opinion as to the genuine- 
 ness of a signature to a will, and he gave it as his opinion that the 
 signature was a forgery. The president of the Court, in addressing 
 the jury, made some very strong observations on the rashness of the 
 defendant in expressing so confident an opinion in the face of the 
 direct evidence. Soon afterwards, on a prosecution for forgery be- 
 fore the magistrate, the defendant was called as an adept by the per- 
 son charged, when he expressed an opinion favourable to the genuine- 
 ness of the document. He was then asked by the counsel for the 
 prosecution whether he had been a witness in the suit of Davies v. 
 May. He answered "Yes." And he was then asked, "Did you read 
 a report of the observations which the presiding judge made on your 
 evidence?" He again said "Yes." And then the counsel stopped. 
 I presume the circumstances of the trial were well known, and the 
 counsel thought he had done enough. The defendant, the witness, 
 expressed a desire to make a statement. The magistrate told him 
 he could not hear it. Nevertheless the defendant persisted and made 
 the statement, the subject matter of this action of slander. 
 
 On the proof of these facts Lord Coleridge reserved leave to the 
 defendant to move to enter judgment, if the Court should be of opin- 
 ion that there was no evidence on behalf of the plaintiff which ought 
 to be left to the jury. It occurred to him, however, that it would 
 
 98 Parts of the opinion are omitted. 
 
 Seaman v. Netherclift (187 G) 1 C. P. D. 540. The pleading in the case was 
 as follows : 
 
 Claim: that defendant said of a will, to the signature of which the plaintiff 
 wa.s a witness, "I believe the signature to the will to bo a rank forgery, and 
 I shall believe so to the day of my death,"' meaning that the plaintiff had 
 been guilty of forging the signature of the testator, or of aiding and abetting 
 in the forgery. 
 
 Defence: that defendant spoke the words in the course of giving his 
 evidence as a witness on a charge of forgery before a magistrate. 
 
 Reply : that the words were not bona tide spoken by delendant as a wit- 
 ness, or in answer to any question put to him as a witness, and ho was a 
 mere volunteer in speaking them for liis own purposes otiierwise than as a 
 witness and maliciously and out of the course of his examination.
 
 668 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 be as well to take the opinion of the jury, and they found that the 
 replication was true, viz. that the words were spoken not as a wit- 
 ness in the course of the inquiry, but maliciously for his own pur- 
 pose, that is, with intent to injure the plaintiff. Upon these findings 
 judgment was entered for the plaintiff', leave being again reserved 
 to enter judgment for the defendant, and the Court of Common Pleas 
 gave judgment for the defendant. 
 
 Now, if the findings of the jury had been founded upon evidence 
 by which they could have been supported, I might have had some 
 hesitation about the decision. But they were not; and we are asked 
 to come to a conclusion contrary to what has been established law 
 for nearly three centuries. 
 
 If there is anything as to which the authority is overwhelming it 
 is that a witness is privileged to the extent of what he says in the 
 course of his examination. Neither is that privilege affected by the 
 relevancy or irrelevancy of what he says ; for then he would be 
 obliged to judge of what is relevant or irrelevant, and questions might 
 be, and are, constantly asked which are not strictly relevant to the 
 issue. But that, beyond all question, this unqualified privilege extends 
 to a witness is established by a long series of cases, the last of which 
 is Dawkins v. Lord Rokeby [1875] Law Rep. 7 H. L. 744, after 
 which to contend to the contrary is hopeless. It was there expressly 
 decided that the evidence of a -witness with reference to the inquiry 
 is privileged, notwithstanding it may be malicious; and to ask us 
 to decide to the contrary is to ask what is beyond our power. But 
 I agree that if in this case, beyond being spoken maliciously the 
 words had not been spoken in the character of a witness or not while 
 he was giving evidence in the case, the result might have been dif- 
 ferent. For I am very far from desiring to be considered as laying 
 down as law that what a witness states altogether out of the char- 
 acter and sphere of a witness, or what he may say dehors the mat- 
 ter in hand, is necessarily protected. I quite agree that what he says 
 before he enters or after he has left the witness-box is not privileged, 
 which was the question in the case before Lord Ellenborough, Trot- 
 man V. Dunn [1815] 4 Camp. 211. Or if a man when in the witness- 
 box were to take advantage of his position to utter something having 
 no reference to the cause or matter of inquiry in order to assail the 
 character of another, as if he were asked : "Were you at York on 
 a certain day?" and he were to answer: "Yes, and A. B. picked 
 my pocket there;" it certainly- might well be said in such a case that 
 the statement was altogether dehors the character of witness, and 
 not within the privilege. 
 
 If, therefore, the findings of the jury, that the defendant had 
 ceased to be a witness when he spoke the words, were justified by the 
 evidence, I should hesitate before I decided in his favour. But I 
 think the defendant was entitled to judgment on the first reservation.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES GG9 
 
 There was no evidence to go to the jury upon the plaintiff's case. 
 What the defendant said was said in his character of witness ; for 
 there can be no doubt that the words were spoken in consequence 
 of the question put to him by counsel for the prosecution, the object 
 and effect of the cross-examination having been to damage his credi- 
 bility as a witness before the magistrate, and of this the witness was 
 conscious. The counsel, having put the question, stops ; and if there 
 had been counsel present for the prisoner who had re-examined the 
 witness, he would have put the proper questions to rehabilitate him 
 to the degree of credit to which he was entitled. That such questions 
 would have been relevant I cannot bring myself for a moment to 
 doubt, relating as they do to the credibility of the witness, which is 
 part of the matter of which the magistrate has to take cognizance. 
 That being so, the witness himself, who is sworn to speak the whole 
 truth, is properly entitled, not only with a view to his own vindica- 
 tion, but in the interests of justice, to make such an observation in 
 explanation of his former answer as is just and fair under the cir- 
 cumstances. That is what the defendant did. The sitting magistrate 
 having allowed the disparaging question to be put and answered, 
 ought not to have interfered to prevent the defendant from giving 
 an explanation. I think the statement, coming immediately after the 
 damaging question had been put to him, must be taken to be part of 
 his testimony touching the matter in question, as it affects his cred- 
 ibility as a witness in the matter as to which he was called. It was 
 given as part of his evidence before he had become divested of his 
 character of witness ; and but for the question of the opposite coun- 
 sel he never would have made the statement at all. * * * 
 
 In my opinion, the Lord Chief Justice should have nonsuited the 
 plaintilt, which is the conclusion at which the Court of Common 
 Pleas ultimately arrived ; for there really w^as no evidence that the 
 defendant was speaking otherwise than as a witness and relevantly ^^ 
 
 »9 On this point in tlie case, Bramwell, J. A., concurring with Cockbura, 
 C. J., remarked: "I am by no means sure that the word 'relevant' is the 
 best word that could be used : the phrases used by the Lord Chief Baron 
 and the Lord Chancellor in Dawkins v. Lord Rokeby (1S75) Law Rep. 7 H. 
 L. at page 744, would seem preferable, 'having reference,' or 'made with 
 reference to the inquiry.' Now, were the judges of the Common Pleas Di- 
 vision right in holding that this statement of the defendant had reference to 
 the inquiry? I think that they were. There can be no doubt that the ques- 
 tion put bj the cross-examining counsel ought not to have been allowed : 
 'Have you read what Sii* James Hanneij is reported to have said as to your 
 evidence in Davies v. May?' What Sir James Hannen had said in a former 
 case was not evidence. It was, therefore, an improper question, and the 
 answer to it, if untrue, would not have subjected the witness to an indictment 
 for perjury. But the question having been put, and the answi-r having been 
 in the affirmative— and the question being, as Lord Coleridge observed, 'in- 
 geniously suggestive,' viz., that the way the defendant had been dealt with on 
 the former occasion did not redound to his credit as a witness — the de- 
 fendant insisted on making in addition the statement complained of. He did 
 so, in my opinion, very foolishly. It would have been better to have been 
 satisfied with retaining his own opinion without setting it up in direct op-
 
 670 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 to the matters in issue, because relevantly to his own character and 
 credibility as a witness in the matter. That being so, even if express 
 malice could have been properly inferred from the circumstances, the 
 case of Dawkins v. Lord Rokeby, Law Rep. 7 H. L. 744, conclusively 
 decides that malice has ceased to be an element in the consideration 
 of such cases, unless it can be shewn that the statement was made 
 not in the course of giving- evidence, and therefore not in the char- 
 acter of a witness. A long series of authorities, from the time of 
 Elizabeth to the present time, has established that the privilege of a 
 witness while giving evidence is absolute and unqualified. * * * 
 The judgment of the Common Pleas must therefore be affirmed. 
 
 position to the positive testimony of eyewitnesses. But he foolishly, as I think, 
 and coarsely exclaimed, 'I believe that will to be a rank forjrery, and shall 
 believe so to the day of my death.' Suppose after he had said 'yes,' he had 
 added in a decent and becoming manner, 'and I am sorry Sir James Hannen 
 said what he did, for I took great pains to form my own opinion, and T 
 shall always retain it, as 1 still think it right.' Would not tliat have had 
 reference to the inquiry before the magistrate? And would it not have been 
 reasonable and right that the witness should have added that statement in 
 justification of himself? Surely, yes. Mr. Clarke said he was prepared to 
 maintain that as long as a witness spoke as a mtness in the udtness-box, 
 he was protected, whether the matter had reference to the inquiiy or not. 1 
 am reluctant to affinn so extreme a proposition. Suppose while the witness 
 is in the box, a man were to come in at the door, and the witness were to 
 exclaim, 'that man picked my pocket.' I can hardly think that would be 
 privileged. I can scarcely think a witness would be protected for anything 
 he might say in the witness-box, wantonly and without reference to the in- 
 quiry. I do not say he would not be protected. It might be held that it was 
 better that everything a witness said as a witness should be protected, than 
 that v\itnesses should be under the impression that what they said in the 
 witness-box might subject them to an action. I certainly should pause before 
 I affirmed so extreme a proposition, but without affirming that, I think 
 the words 'having reference to the inquiry' ought to have a very wide and 
 comprehensive application, and ought not to be limited to statements for 
 which, if not true, a witness might be indicted for perjury, or the exclusion 
 of which by the judge would give ground for a new trial; but ought to ex- 
 tend to that which a witness might naturally and reasonably say when giving 
 evidence with reference to the inquiry as to which he had been called as a 
 witness. Taking that view, I think the first proposition is established, that 
 the statement of the defendant was made as witness and had reference to 
 the inquiry." 
 
 Amphlett, J. A., also concurring, remarked : "How it would have been 
 if this statement had been volunteered by the defendant, without it being 
 necessary or in any way arising from questions he had been asked, we need 
 not express any opinion. In such a case it may be tliat the words would not 
 have been spoken in his office of a witness. I must by no means be taken 
 as expressing an opinion that in such a case the witness would not be pro- 
 tected. I can see many reasons why a witness should be absolutely protected 
 for anything he said in the witness box. If he did voluntarily make a 
 scandalous attack wliile giving evidence, he would be guilty of a gross con- 
 ttempt of Court, and might be committed to prison by the presiding judge; 
 or if he were before an inferior tribunal, and he persevered in his scandalous 
 statements, he might be liable to an indictniont for obstructing the course 
 of justice. But this question does not arise here."
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 671 
 
 LAMBERSON v. LONG. 
 
 (St. Louis Court of Appeals, Missouri, 1806. 66 Mo. App. 253.) 
 
 The action was slander. The petition charged that the defendant, 
 in the presence and hearing of others, spoke of and concerning the 
 plaintiff certain words which imputed to the plaintiff the crime of 
 larceny. There was an answer in denial, with a verdict for the plain- 
 tiff. The defendant appealed.^ 
 
 RoMBAUKR, P. J. * * * The assignment of error mainly re- 
 lied on arises upon the refusal of three instructions asked by the de- 
 fendant, all of which were to the effect that, if the jury found that 
 the words charged to have been spoken were spoken by the defendant 
 while he was being cross-examined as a witness, and that he was 
 merely undertaking to repeat, in answer to a question asked him, what 
 he had said to plaintiff in a former difficulty between them, the 
 plaintiff could not recover. 
 
 There was no controversy touching the fact that the actionable 
 words were spoken by the defendant while he was being cross-exam- ' 
 ined as a watness in a legal proceeding. There is, however, no pre- 
 tense that they were responsive to any question propounded to him, 
 and a careful analysis of the evidence has satisfied us that there is 
 no substantial evidence in the record that they were intended by 
 him to be a mere repetition of what he had formerly stated. We have 
 very fully examined the law touching the privileged remarks of wit- 
 nesses in the recent case of Crecelius v. Bierman, 59 Mo. App. 513, 
 and have there fully defined the character and extent of such a priv- 
 ilege. Under that definition the utterance complained of could not 
 be absolutely privileged, because it was not responsive to any question 
 propounded by counsel, nor did it fairly arise out of any question pro- 
 pounded by counsel. It is well settled that a remark made by a wit- 
 ness in the box, wholly irrelevant to the matter of inquiry and un- 
 called for in any question of counsel, but introduced by the witness 
 maliciously for his own purposes, will not be privileged. Odgers on 
 Libel and Slander, top page 144. In order to make a statement which 
 is not responsive to a question, and which is irrelevant to the issue, 
 relatively privileged, it is incumbent upon the defendant to satisfy 
 the jury that the statement was made by the witness because he deem- 
 ed it relevant on reasonable grounds, and, moreover, that the witness 
 believed the statement to be true. Had the instructions refused con- 
 tained these qualifications, it would have been error to refuse them, 
 since there was evidence in the case supporting that hypothesis. As 
 they did not contain these qualifications, but were based upon a 
 hypothesis unsupported by any substantial evidence in the record, we 
 can not put the trial court in the wrong for refusing them. 
 
 1 The statement of the case is abridged and part of the opinion is omitted.
 
 672 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 It thus appears that neither of the errors assigned are well assigned, 
 and hence the judgment must be affirmed. So ordered. All the 
 judges concur, Judge Bond in the result.^ 
 
 2 Compare White v. Carroll (1870) 42 N. T. 1(51, 1 Am. Rep. 50.3 : (White 
 was a homeopathic doctor; Carroll, an allopathic doctor. The latter was tes- 
 tifying as a witness on an issue as to the sanity of a testator, whom he had 
 attended. He was asked, "Did any other physician attend him then?" 
 The answer was: "Not as I know of. I understand he had a quack, I would 
 not call him a physician; I understootl tliat Dr. White, as he is called, had 
 been there." The Court held that this answer was not material and perti- 
 nent to the enquiry, tliat it was privileged if the defendant when he gave it 
 believed in good faith that it was, and that whether he so believed was a ques- 
 tion of fact for the jury.) See Grover, J., in Marsh v. Ellsworth (1S72) 50 
 N. Y. 309, 318. 
 
 See also the remark of Fields, J., in Wright v. Lothrop (1889) 149 Mass. 
 385, 389, 21 N. E. 903, 965: "The examination of witnesses is reguhited by 
 the tribunal before which they testify, and if witnesses answer pertinently 
 questions asked them by counsel which are not excluded by the tribunal, or 
 answer pertinently questions asked them by the tribunal, they ought to be 
 absolutely protected. It is not the duty of a witness to decide for himself 
 whether the questions asked him under the direction of the tribunal are 
 relevant. As the witness is sworn to tell the whole truth relating to the 
 matter concerning which his testimony is taken, he ought also to be absolutely 
 protected in testifying to any inatter which is relevant to the inquiry, or 
 which he reasonably believes to be relevant to it. But a witness ought not 
 to be permitted with impunity to volunteer defamatory statements which 
 are irrelevant to the matter of iuqviiry, and which he does not believe to be 
 relevant. This statement of the law, we think, is supported by the decisions 
 in this Commonwealtli. The English decisions, ])erha])s, go somewhat further 
 than this in favor of a witness : certainly they apply the rule liberally for 
 his protection." 
 
 In Buschbaum v. Heriot) (1909) 5 Ga. App. 521, m S. E. 645, Russell, J., 
 remarked: "The fact that a witness, without inquiry, and influenced by mal- 
 ice, volunteers false testimony defamatory of another, the immateriality 
 of which is apparent to any ordinary mind, is such a circuuistance as places 
 the testimony of the witness in the class of conditional privilege, where he is 
 no longer shielded by the law, unless it be made to appear that he bona lide 
 believes that the facts stated by him are true, and unless with at least some 
 show of reason he is of opinion that his testimony is material. What we have 
 said relates wholly to such testimony as is inunaterial, and not only imma- 
 terial but vohmteered by the witness, because, in a case where the testi- 
 mony is given in direct response to a question pi'opounded by an officer of the 
 court, the witness is not to be the judge of tlie materiality of his answer, 
 but is required to answer the question, if it is not olijectecl to or is not self- 
 incriminatory, 'i'ertinent matter in pleadings, motions, aflidavits, and other 
 papers in any judicial proceeding is alisolutely privileged, though false and 
 malicious. And in determining whether matter is pertinent or not the court 
 will indulge in no strained, technical, or close construction to deprive the 
 defendant of tlie protection of the privilege.' 1 Cooley on Torts (3d Ed.) A:V2, 
 § 251. This rule, which applies especially to parties, is rather extended than 
 restricted in favor of the witness." 
 
 But see Ilunckel v. VoneiCf (1889) C9 Md. 179, 14 Atl. 500, 17 Atl. 1050. 9 
 Am. St. Rep. 413: "It was i>erfectly comix^tent for this court, having the 
 questions before them for the hrst time in tliese cases, to follow an<l adopt 
 the current of the American decisions in regard to the privilege of the ad- 
 vocate, and to follow and adopt the rule of the English courts as regards the 
 privilege of the witness. This is what has been done, and it does not seem 
 to me that the privileges of the two are so tied together, either by reason or 
 authority, as to make these decisions inconsistent and irreconcilable." Per 
 Miller, .r. 
 
 For the principle in other than judicial i)r()ceedings, see an article by .Tudge 
 Van Vechten Veeder in 10 Columbia Law Rev. 131 (1910), on "Absolute
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 673 
 
 Bond, J. Being unable to agree to all the expressions used in the 
 opinion of my associates, it becomes necessary to state separately 
 my views of the law applicable to this case : 
 
 I. A statement made by a witness in a judicial proceeding is pre- 
 sumptively privileged. If the statement is relevant, or believed on 
 reasonable ground to be relevant to the issues on trial, or if it is 
 responsive to an inquiry by court or counsel, the privilege becomes 
 absolute irrespective of the intent of the utterer. 
 
 II. To overcome the prima facie presumption of privilege arising 
 from the occasion, it is incumbent on the plaintiff (in an action of 
 slander or libel) to show that the statement of the witness was not 
 responsive to a question asked by the court or counsel, and that it 
 was not believed on reasonable grounds to be relevant to the issues 
 on trial. If the jury believes the evidence adduced to this effect, all 
 presumption arising from the fact that the statement was made under 
 examination in court ceases, and the statement, if actionable per se, 
 will authorize a recovery. These principles are sustained by the 
 cases cited in my opinion in Crecelius v. Bierman, 59 Mo. App. 513. 
 As defendant's instructions did not conform to these rules, they were 
 properly refused. 
 
 KEELEY V. GREAT NORTHERN RY. CO. 
 (Supreme Court of Wisconsin, 1914. 156 Wis. 181, 145 N. W. 664.) 
 
 The action was against the Great Northern Railway Company for 
 defamation. A demurrer to the complaint was sustained, and the 
 plaintiff appealed. 
 
 The complaint, in substance, set forth that in 1907 the husband of 
 plaintiff, while in the employment of defendant, was killed in conse- 
 quence of defendant's negligence ; that she brought an action against 
 the defendant for damages under the death statute, and recovered 
 after a trial in which she was a witness in her own behalf with refer- 
 ence to fonnal and uncontested points, and in which an employe of 
 the defendant was called as a witness for the plaintiff, and gave rele- 
 vant and material testimony tending to establish the liability of de- 
 fendant. After verdict for the plaintiff defendant moved for a new 
 trial. Attached to and made part of the motion papers was an affida- 
 
 Immunity in Defamation : I^egislative and Executive Proceedinsrs," and see 
 the same topics in 18 Halsbury's Laws of England, 683, 684 (1911). 
 
 The nature and extent of legislative immunity is effectively presented in 
 CJhief Justice Parsons' opinion in Coffin v. Coffin (180S) 4 Mass. 1, 3 Am. Dec. 
 189. The case is the more valuable in that it marks the limits of a very 
 wide principle. 
 
 For the application of the principle in official communications b.v executive 
 officers of the government, see Chatterton v. Secretary of State, [1895] 2 
 Q. B. 189. 
 
 Hepb. Torts — 4-3
 
 G74 TORTS THROUGH ACTS OP ABSOLUTE LIABILITY (Part 1 
 
 vit of one Sandager, a detective in the employment of defendant, made 
 in 1908, reflecting upon the chastity of the plaintiff. It is averred that 
 this affidavit and the statement above referred to were wholly and en- 
 tirely immaterial, irrelevant, and not pertinent to any issues involved in 
 the action or on said motion, and that the affidavit and statements were 
 not material, pertinent, or relevant to any matter or subject in the 
 action, or considered, or proper to be considered, on said motion, and 
 that neither the affidavit, nor any of the statements therein contained, 
 nor any of the statements quoted therefrom, were proper to be used 
 or filed in said action or upon said motion, which facts were well 
 known to the defendant and its attorneys at and prior to the time of 
 making and filing said affidavit and statements. The defendant, act- 
 ing through its attorneys. at the hearing of the motion for a new trial, 
 read said affidavit and statements in open court. The presiding judge 
 filed an order denying defendant's motion for a new trial, which order 
 contained the following statement: "The affidavits of Zearfoss, Barr, 
 and Sandager presented by defendant's counsel, in the opinion of this 
 court, are improper and ought not to be considered, and they are not 
 considered on the decisions of the several motions." This order and 
 the decision of the circuit judge were affirmed by the Supreme Court. 
 On the day the affidavit was presented and filed in the circuit court 
 plaintiff caused to be served on the defendant a notice in writing, ad- 
 vising the defendant of the filing of the libelous afiidavit and state- 
 ments by its attorneys, but the defendant, after receipt of this notice 
 by and through its attorneys, caused and procured said affidavit con- 
 taining the alleged libelous statements to be filed in the office of the 
 clerk of the circuit court, and thereafter to be filed with the clerk of 
 the Supreme Court, and made no eft'ort or request to withdraw from 
 the files said affidavit and such statements therein contained. It is 
 further averred that the acts and conduct of Sandager and of said at- 
 torneys were fully ratified by the defendant, and that the said acts 
 and conduct were malicious, vindictive, and with the intention and for 
 the purpose of destroying the good name and reputation of the plain- 
 tiff, and to cause her disgrace and degradation. It is also averred that 
 the plaintiff has always been, and is now, a woman of chaste character 
 and of good reputation. 
 
 Timlin, J.3 * * * it is contended here that the demurrer ad- 
 mits these averments of the complaint which charged lack of good 
 faith, want of reasonable belief in the truth of the affidavit made 
 against the plaintiff, and knowledge on the part of the defendant that 
 the affidavit in question was false and malicious; hence that the de- 
 
 8 In the omitted portion of the opinion it was held that the statement, in 
 the defendant's affidavit for a new trial, that illicit relations existed between 
 the plaintiff and her prinripal wifness, was relevant, since on the trial the 
 witness appeared to be disinterested. And "the fact that the .indge apparently 
 dis-ipproved of this attack upon the reputation of the plaintiff, and also denied 
 the motion for a new trial, as he lawfully uiisht do, is immaterial."
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES C75 
 
 fendant cannot shelter itself behind a plea of privilege. This would 
 be true as to conditional privilege. But this complaint shows on its 
 face that the court had jurisdiction to entertain the motion, and that 
 the matter complained of was relevant to the inquiry upon this motion, 
 and in this respect shows a case of absolute privilege within the rule 
 of Jennings v. Paine, 4 Wis. 358; Calkins v. Sumner, 13 Wis. 193, 
 80 Am. Dec. 738; Larkin v. Noonan, 19 Wis. 82; Schultz v. Strauss, 
 127 Wis. 325, 106 N. W. 1066, 7 Ann. Cas. 528. The cases of Cottrill 
 V. Cramer, 43 Wis. 242, Eviston v. Cramer, 47 Wis. 659, 3 N. W. 392, 
 and Cochran v. Melendy, 59 Wis. 207, 18 N. W. 24, were cases of com- 
 munications conditionally privileged, and are not in point here. 
 
 In order to bring a witness, counsel, or party in a litigation within 
 the rule of absolute privilege it is only necessary to show that the al- 
 leged slanderous or libelous words at the time vvhen made or pub- 
 lished were clearly relevant to the pending legal inquiry in which they 
 were uttered or used. Nothing less than this would be an adequate 
 protection. Ogders on Libel and Slander, p. 191 ; Hoar v. Wood, 3 
 Mete. (Mass.) 193; Laing v. Mitten, 185 ]Mass. 233, 70 N. E. 128. 
 \Miere slanderous or libelous words employed in such a proceeding 
 are irrelevant, they fall within the rule of conditional privilege, and 
 if they are shown to be false, and not put forward with any bona fide 
 belief in their truth or their relevancy, or any other ground of actual 
 malice be shown, the conditional privilege is lost and the utterer liable. 
 Without approving everything said therein we may here cite Myers 
 V. Hodges, 53 Fla. 197, 44 South. 357; Lauder v. Jones, 13 N. D. 525, 
 101 N. W. 907. In some of the cases and text-books cited the dis- 
 tinction between absolute and conditional privilege is not accurately 
 stated as in Xewell on Defamation, Slander and Libel, p. 423 ; but 
 see page 425 of the same work. Cases from other courts may also be 
 found which ignore the distinction between absolute and conditional 
 privilege, here made to rest upon the nature of the judicial proceed- 
 ing and the relevancy of the matter complained of. But such cases 
 are not the law of this state. 
 
 In legal proceedings, if the matter be relevant but false in fact, the 
 law undertakes to punish for perjury, but civil damages are not recov- 
 erable. If irrelevant, false, and uttered or published with express 
 malice, damages may be recovered in a civil action. If irrelevant and 
 false, but uttered or published without actual as contradistinguished 
 from imputed malice, it usually falls within the rule of conditional 
 privilege, depending somewhat upon the degree of its irrelevancy ; 
 for if the matter is very obviously irrelevant, that circumstance may 
 impugn the good faith of the utterer or publisher, and either take the 
 case out of the rule of conditional privilege or be considered evidence 
 to support a finding of express malice. Sherwood v. Powell, 61 Minn. 
 479, 63 N. W. 1103, 29 L. R. A. 153, 52 Am. St. Rep. 614; McLaugh- 
 lin V. Cowley, 127 Mass. 316; s. c, 131 ^lass. 70. 
 
 Order affirmed.
 
 676 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 WATSON V. McEWAN. 
 SAME V. JONES. 
 
 (House of Lords. [190.5] A. C. 480.) 
 
 Appeal from the Second Division of the Court of Session, Scotland. 
 
 The appellant was Sir Patrick H. Watson, a doctor of medicine; 
 and the respondents were respectively Jessie' Prentice Jones or Mc- 
 Ewan, wife of Thomas McEwan, and her father, James Jones. The 
 ground of the actions was that the appellant, while being- examined as 
 a witness in an action of separation brought by the respondent Jessie 
 McEwan, made certain statements which the respondents alleged were 
 slanderous. The respondent Jessie McEwan alleged that the state- 
 ments made in the witness-box had been, prior to the trial, and with 
 a view to giving evidence, communicated by the appellant to her hus- 
 band, Thomas McEwan, his agent and his counsel. The Lord Ordi- 
 nary and their Lordships of the Second Division were unanimously of 
 opinion that no action would lie against the appellant for the state- 
 ments made in the witness-box ; but their Lordships (Lord Young dis- 
 senting) allowed an issue with reference to the information previously 
 given to the husband's law agent. The main question raised in this 
 appeal was whether the averment of the respondent Jessie McEwan 
 that the statements made in the witness-box were previously commu- 
 nicated to her husband and his agent and counsel formed a ground of 
 action against the appellant Sir Patrick H. Watson. * * * 4 
 
 Earl oif Halsbury, L. C. * * * By complete authority, in- 
 cluding the authority of this House, it has been decided that the priv- 
 ilege of a witness, the immunity from responsibility in an action when 
 evidence has been given by him in a Court of justice, is too well es- 
 tablished now to be shaken. Practically I may say that in my view 
 it is absolutely unarguable — it is settled law and cannot be doubted. 
 The remedy against a witness who has given evidence which is false 
 and injurious to another is to indict him for perjury; but for very 
 obvious reasons, the conduct of legal procedure by Courts of justice, 
 with the necessity of compelling witnesses to attend, involves as one 
 of the necessities of the administration of justice the immunity of wit- 
 nesses from actions being brought against them in respect of evidence 
 they have given. So far the matter, I think, is too plain for argument. 
 
 But then comes the question which, so far as I know, has been 
 raised for the first time in this case. The ingenious suggestion has 
 been made that although it is true that a witness is protected from an 
 action in respect of evidence actually given in a Court of justice, yet 
 no such protection exists in respect of his attendance before the so- 
 licitor at what is called apparently in Scottish law his precognition — 
 
 * The statement of the case is abridged, and the arguments of counsel 
 and parts of the opinion are omitted.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 677 
 
 what we call the interview between the intended witness and the solic- 
 itor who takes from him what we call the proof — that is to say, re- 
 duces to writing the evidence which the witness is about to give. One 
 very serious element of difficulty which those who insist upon such a 
 liability have to meet is manifest — namely, that in the whole course of 
 the diligent inquiry that the learned counsel on both sides have made 
 into this matter they have not found that any such liability has ever 
 been sought to be established before. So far as I know personally 
 in my experience no such question has ever arisen. The learned judg- 
 es who have allowed these issues have done so apparently for the first 
 time in this case. 
 
 It appears to me that the privilege which surrounds the evidence 
 actually given in a Court of justice necessarily involves the same priv- 
 ilege in the case of making a statement to a solicitor and other persons 
 who are engaged in the conduct of proceedings in Courts of justice 
 when what is intended to be stated in a Court of justice is narrated 
 to them — that is, to the solicitor or writer to the Signet. If it were 
 otherwise, I think what one of the learned counsel has with great co- 
 gency pointed out would apply — that from time to time in these vari- 
 ous efforts which have been made to make actual witnesses responsible 
 in the shape of an action against them for the evidence they have 
 given, the difficulty in the way of those who were bringing the action 
 would have been removed at once by saying, "I do not bring the action 
 against you for what you said in the witness-box, but I bring the ac- 
 '. !on against you for what you told the solicitor you were about to say 
 in the witness-box." If that could be done the object for which the 
 privilege exists is gone, because then no witness could be called ; no 
 one would know whether what he was going to say was relevant to 
 the question in debate between the parties. A witness would only 
 have to say, "I shall not tell you anything; I may have an action 
 brought against me to-morrow if I do ; therefore I shall not give you 
 any information at all." It is very obvious that the public policy which 
 renders the protection of witnesses necessary for the administration 
 of justice must as a necessary consequence involve that which is a step 
 towards and is part of the administration of justice — namely, the pre- 
 liminary examination of witnesses to find out what they can prove. It 
 may be that to some extent it seems to impose a hardship, but after 
 all the hardship is not to be compared with that which would arise if 
 it were impossible to administer justice, because people would be 
 afraid to give their testimony. 
 
 My Lords, the hardship to which I refer is this : that although when 
 a witness does give evidence which is wilfully false you can indict him 
 for perjury, on the other hand, if he makes the same statement not 
 upon oath to a person taking down the evidence he is prepared tO' give, 
 it seems to be very difficult to devise anything that would bring him 
 to justice for that false statement. The answer, of course, dealing 
 with it as a matter of convenience and indeed of necessity for the ad-
 
 678 .TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 ministration of justice, I suppose, is this: unless he does give evidence 
 in a Court of justice, in which case he can be indicted for perjury if 
 his evidence is wilfully false, nobody knows anything about it — it 
 slumbers, I suppose, in the office of the solicitor, and nobody hears or 
 cares anything about it. Practically, I think that would be the answer. 
 But whether that be a good answer or not, what seems to me to be 
 an overwhelming consideration in the determination of this case is 
 that a witness must be protected for his preliminary statement or he 
 has no protection at all, and that there is that protection established 
 is, as I have already said, beyond all possibility of doubt. * * * 
 
 Under these circumstances, my Lords, it appears to me that there 
 is but one point in this case ; namely, whether the preliminary exam- 
 ination of a witness by a solicitor is within the same privilege as that 
 which he would have if he had said the same thing in his sworn tes- 
 timony in Court. I think the privilege is the same, and for that rea- 
 son I think these judgments ought to be reversed, and I move accord- 
 ingly.^ 
 
 (bl)) Conditional Privilege « 
 
 (1) Reports in Puhlic Interest 
 
 CURRY v. WALTER. 
 
 (Court of Common Pleas, 1796. 1 Bos. & P. 525, 4 R. R. 717, 
 
 126 Reprint, 1046.) 
 
 This was an action for printing and publishing in the newspaper 
 called The Times, under the title of "Law Reports," a libel on the 
 plaintiff. It imported to be an account of an application to the Court 
 of King's Bench for an information against the plaintiff and a Mr. 
 Bingham, both justices of the peace for Hampshire, for refusing to 
 license an inn at Gosport. The ground of the application, as moved 
 by Mr. Erskine, was that the magistrates had conspired with the land- 
 lord of the inn-keeper to find a pretence for refusing him a licence, 
 thereby to compel him to surrender a very beneficial lease to his land- 
 lord. The supposed libel, which was set out verbatim in the declara- 
 tion, stated the circumstances of this charge very distinctly, and con- 
 cluded by shewing that the rule was not granted, because there was no 
 
 B Lord James and Lord Robertson concurred. The cause was remitted 
 back to the Court of Session in Scotland, with a direction to dismiss the 
 action. 
 
 "The term 'qualified privilesre' is almost invariably used to distinguish 
 this kind of privilege from 'absolute privilege.' The term 'conditional privilege' 
 is, however, convenient as emphasizijig the fact that the defence of privilege 
 which is not absolute is conditional only, and liable to be displaced if the 
 plaintiff establishes that the communication was actuated by express or 
 actual malice." 18 Ilalsbury's Laws of li)ng]and, 685, note (a).
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 679 
 
 affidavit on the part of the prosecutor of the magistrates having had 
 due notice of the motion. 
 
 The defendant pleaded the general issue, and at the trial, after the 
 plaintiff had proved the publication of the paper in question by him, 
 produced as witness a person whom he employed to collect legal in- 
 telligence for the use of his paper, in order to prove that the report 
 was a true and faithful account of what passed in the Court of King's 
 Bench upon the motion. It was objected on the other side, that this 
 defence ought to have been put upon the record, and could not be 
 given in evidence under the general issue. This objection, however, 
 was overruled by Eyre, C. J., who in summing up, told the Jury, that 
 though the matter contained in the paper might be very injurious to 
 the character of the magistrates, yet he was of opinion, that being a 
 true account of what took place in a court of justice which is open 
 to all the world, the publication of it was not unlawful. The Jury 
 found a verdict for the defendant. A rule nisi for setting aside this 
 verdict was obtained and argued.'^ 
 
 The Court were of opinion that this action could not be main- 
 tained, but some doubts being entertained upon the bench whether the 
 matter of justification ought not to have been pleaded, the case stood 
 over; and no judgment was ever given. ^ 
 
 WASON V. WALTER. 
 (Court of Queen's Bench, 1S68. L. R. 4 Q. B. 73.) 
 
 A petition of the plaintiff was presented to the House of Lords, 
 charging a high judicial officer with having made a false statement to 
 his own knowledge, in order to deceive a committee of the House of 
 Commons, and praying inquiry and the removal of the officer if the 
 charge was found true. A debate ensued on the presentation of the 
 petition, and the charge was utterly refuted. In the course of the 
 debate statements disparaging to the character of the plaintiff were 
 
 7 The statement is abridged, and the arguments of counsel are omitted. 
 
 8 This case, a pioneer ruling in a doctrine which is now settled law, "has 
 been often criticised but never overturned, and often acted uix)n. And in Rex 
 V. Wright, it received the unqualified approbation of that great judge, Mr. 
 Justice Lawrence." Per Lord Campbell, C. J., in Lewis v. Levy (1S5S) El., Bl. 
 & El. 537, 560, 120 Reprint, 610, 617, 113 R. R. 768. The reason which under- 
 lies the doctrine was thus expressed by Lawrence, J., in Rex v. Wright (1799) 
 8 T. R. 293, 298: "Though the publication of such proceedings may be to the dis- 
 advantage of the particular individual concerned, yet it is of vast importance 
 to the public that the proceedings of Courts of Justice should be universally 
 known. The general advantage to the country in having these proceedings 
 made public, more than counterbalances the inconveniences to the private 
 persons whose conduct may be the subject of such proceedings. The same 
 reasons also api)ly to the proceedings in Parliament: It is of advantage to 
 the public, and even to the legislative bodies, that true accounts of their pro- 
 ceedings should be generally circulated ; and they would be deprived of that 
 advantage if no person could publish their proceedings without being punished 
 as a libellor."
 
 680 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 made by the Lord Chancellor and other Lords. The Times news- 
 paper published a faithful and correct report of these proceedings in 
 the House of Lords, including the debate. The plaintiff sued the pro- 
 prietor of the Times for libel. The defendant pleaded "Not guilty." 
 
 At the trial, the Lord Chief Justice told the jury that if they were 
 satisfied that the matter charged as a libel in the first count was a 
 faithful and correct report of the proceedings in the House of Lords, 
 and of the speeches delivered on the occasion, he directed them in 
 point of law that it was a privileged publication, and one which was not 
 the subject of a civil action, and they should find for the defendant 
 on that count. 
 
 There was a verdict for the defendant. Afterwards a rule was ob- 
 tained for a new trial, on the ground of a misdirection in charging 
 the jury that the publication of the libel was privileged if they should 
 find it to be a true and faithful report of the debate in the House of 
 Lords." 
 
 CocKBURN, C. J. * * * The main question for our decision is, 
 whether a faithful report in a public newspaper of a debate in either 
 house of parliament, containing matter disparaging to the character of 
 an individual, as having been spoken in the course of the debate, is 
 actionable at the suit of the party whose character has thus been called 
 in question. We are of opinion that it is not. 
 
 Important as the question is, it comes now for the first time before 
 a court of law for decision. Numerous as are the instances in which 
 the conduct and character of individuals have been called in question 
 in parliament during the many years that parliamentary debates have 
 been reported in the public journals, this is the first instance in which 
 an action of libel founded on a report of a parliamentary debate has 
 come before a court of law. There is, therefore, a total absence of 
 direct authority to guide us. There are, indeed, dicta of learned 
 judges having reference to the point in question, but they are conflict- 
 ing and inconclusive, and, having been unnecessary to the decision of 
 the cases in which they were pronounced, may be said to be extraju- 
 dicial. In the case of Rex v. Wright, 8 T. R. 293, Lawrence, J., placed 
 the reports of parliamentary debates on the same footing with respect 
 to privilege as is accorded to reports of proceedings in courts of jus- 
 tice, and expressed an opinion that the former were as much entitled 
 to protection as the latter. But it is to be observed that in that case 
 the question related to the publication by the defendant of a copy of 
 a report of a committee of the House of Commons, which report the 
 House had ordered to be printed, not to the publication of a debate 
 unauthorized by the House. * * * 
 
 Decided cases thus leaving us without authority on which to proceed 
 in the present instance, we must have recourse to principle in order to 
 
 9 The statement of the case is abridged, and some parts of the opinion are 
 omitted.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 681 
 
 , arrive at a solution of the question before us, and fortunately we have 
 not far to seek before we find principles in our opinion applicable to 
 the case, and which will afford a safe and sure foundation for our 
 judgment. 
 
 It is now well established that faithful and fair reports of the pro- 
 ceedings of courts of justice, though the character of individuals may 
 incidentally suft'er, are privileged, and that for the publication of such 
 reports the publishers are neither criminally nor civilly responsible. 
 
 The immunity thus afforded in respect of the publication of proceed- 
 ings of courts of justice rests upon a twofold ground. * * * 
 
 The broader principle on which this exception to the general law 
 of libel is founded is, that the advantage to the community from pub- 
 licity being given to the proceedings of courts of justice is so great, 
 that the occasional inconvenience to individuals arising from it must 
 yield to the general good. It is true that with a view to distinguish 
 the publication of proceedings in parliament from that of proceedings 
 of courts of justice, it has been said that the immunity accorded to 
 the reports of the proceedings of courts of justice is grounded on 
 the fact of the courts being open to the public, while the houses of 
 parliament are not ; as also that by the publication of the proceedings 
 of the courts the people obtain a knowledge of the law by which 
 their dealings and conduct are to be regulated. But in our opinion 
 the true ground is that given by Lawrence, J., in Rex v. Wright,^ '^ 
 namely, that "though the publication of such proceedings may be to 
 the disadvantage of the particular individual concerned, yet it is of 
 vast importance to the public that the proceedings of courts of justice 
 should be universally known. The general advantage to the country 
 in having these proceedings made public, more than counterbalances 
 the inconvenience to the private persons whose conduct may be the 
 subject of such proceedings." In Davison v. Duncan, 7 E. & B. 231, 
 Lord Campbell says : "A fair account of what takes place in a court 
 of justice is privileged. The reason is, that the balance of public ben- 
 efit from publicity is great. It is of great consequence that the pub- 
 lic should know what takes place in court ; and the proceedings are 
 under the control of the judges. The inconvenience, therefore, aris- 
 ing from the chance of injury to private character is infinitesimally 
 small as compared to the convenience of publicity." And Wightman, 
 J., says : "The only foundation for the exception is the superior ben- 
 efit of the publicity of judicial proceedings which counterbalances the 
 injury to individuals, though that at times may be great." * * * 
 
 10 8 T. R. 29.3, 298 (1799), where Mr. Justice Lawrence recurs to the facts 
 "of an action brought not many years ago by Mr. Cnrrie against Walter, pro- 
 prietor of the Times," and, in the passage quoted, gives the ratio decidendi in 
 that case. "The same reasons also apply to the proceedings in Parliament: 
 It is of advantage to the public, and even to the legislative bodies, that the 
 accounts of their proceedings should be generally circulated ; and they would 
 be deprived of their advantage if no person could publish their proceedings 
 without being punished as a libellor."
 
 682 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 We entirely concur with Lawrence, J., in Rex v. Wright, 8 T. R. 
 298, that the same reasons which apply to the reports of the proceed- 
 ings in courts of justice apply also to the proceedings in Parliament. 
 It seems to us impossible to doubt that it is of paramount public and 
 national importance that the proceedings of the houses of Parliament 
 shall be communicated to the public, who have the deepest interest 
 in knowing what passes within their walls, seeing that on what is 
 there said and done, the welfare of the community depends. * * * 
 The analogy between the two cases is in every respect complete. If 
 the rule has never been applied to the reports of parliamentary proceed- 
 ings till now, we must assume that it is only because the occasion has 
 never before arisen. If the principles which are the foundation of 
 the privilege in the one case are applicable to the other, we must not 
 hesitate to apply them, more especially when by so doing we avoid the 
 glaring anomaly and injustice to which we have before adverted. 
 Whatever disadvantages attach to a system of unwritten law, and of 
 these we are fully sensible, it has at least this advantage, that its 
 elasticity enables those who administer it to adapt it to the varying 
 conditions of society, and to the requirements and habits of the age 
 in which we live, so as to avoid the inconsistencies and injustice which 
 arise when the law is no longer in harmony with the wants and usages 
 and interests of the generation to which it is immediately applied. 
 Our law of libel has, in many respects, only gradually developed itself 
 into anything like a satisfactory and settled form. The full liberty of 
 public writers to comment on the conduct and motive of public men 
 has only in very recent times been recognized. Comments on govern- 
 ment, on ministers and officers of state, on members of both houses of 
 Parliament, on judges and other public functionaries, are now made 
 every day, which half a century ago would have been the subject of 
 actions or ex officio informations, and would have brought down 
 fine and imprisonment on publishers and authors. Yet who can doubt 
 that the public are gainers by the change, and that, though injustice 
 may often ,be done, and though public men may often have to smart 
 under the keen sense of wrong inflicted by hostile criticism, the nation 
 profits by public opinion being thus freely brought to bear on the dis- 
 charge of public duties? Again, the recognition of the right to pub- 
 lish the proceedings of courts of justice has been of modern growth. 
 Till a comparatively recent time the sanction of the judges was 
 thought necessary even for the publication of the decisions of the 
 courts upon points of law. * * * 
 
 It is to be observed that the analogy between the case of reports 
 of proceedings of courts of justice and those of proceedings in Parlia- 
 ment being complete, all the limitations placed on the one to prevent 
 injustice to individuals will necessarily attach on the other: a garbled 
 or partial report, or of detached parts of proceedings, published with 
 intent to injure individuals, will equally be disentitled to protection.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 683 
 
 Our judgment will in no way interfere with the decisions that the 
 publication of a single speech for the purpose or with the effect of 
 injuring an individual will be unlawful, as was held in the cases of 
 Rex V. Lord Abingdon, 1 Esp. 226, and Rex v. Creevey, 1 M. & S. 
 'yix * * * 
 
 Rule discharged. 
 
 STEVENS V. SAMPSON. 
 
 (In the Court of Appeal, 1879. 5 Exeh. Div. 53.) 
 
 In the trial of the action of Nettlefold v. Fulcher in the Marylebone 
 County Court, the defendant in the present action appeared for Net- 
 tlefold and made statements reflecting on the plaintiff in the present 
 action, who was a debt collector and employed by Fulcher as agent 
 in the Nettlefold case. Afterwards, the defendant sent a report of 
 these proceedings in the Nettlefold case, including his remarks, to 
 local newspapers, where they were published. This action for libel 
 followed. The case came on for trial before Cockburn, C. J., at the 
 Hilary Sittings, 1879, at Westminster, who left two questions to the 
 jury: 1. Was the report a fair one? 2. W^as it sent honestly, or with 
 a desire to injure the plaintiff? The jury answered these questions: 
 1. That it w'as in substance a fair report: 2. That it was sent with a 
 certain amount of malice : and found a verdict for the plaintiff with 
 40s. damages. Cockburn, C. J., directed judgment to be entered for 
 the plaintiff for that amount. 
 
 The defendant appealed on the ground that the judgment entered 
 upon the findings of the jury was wrong; and that it should have been 
 directed to be entered for the defendant, the jury having found that an 
 alleged libel, being a report in certain newspapers of proceedings which 
 took place in a court of justice, was a fair report of the proceedings. 
 
 Harris and Poulter, for the defendant. The judgment ought to be 
 entered for the defendant, for a true report of proceedings in a court 
 of justice is privileged absolutely. Hoare v. Silverlock, 9 C. B. 20; 
 Lewis v. Levy, 27 L. J. (Q. B.) 282. The motive that the defendant 
 had for sending the report is immaterial. All the public have a right 
 to be present in a court of justice and hear the proceedings. The de- 
 fendant by the publication of the report has made the proceedings, 
 which were accessible to all who were present, universally known. 
 The publication, though to the disadvantage of a particular individual, 
 is of importance to the public, and it is, therefore, privileged. 
 
 Lord Coleridge, C. J.^^ The question before us is whether, on 
 the findings of the jury, the entry of the judgment for the plaintiff 
 is right. I am of opinion that it was rightly entered for the plaintiff. 
 The principle which governs this case is plain. It is like that which 
 
 11 The statement of the case is abridged, and a concurring opinion by Bram- 
 well, L. J., is omitted.
 
 684 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 governs most other cases of privilege. In order, in cases of libel, to 
 establish that the communication is privileged, two elements must 
 exist; not only must the occasion create the privilege, but the occa- 
 sion must be made use of bona fide and without malice; if either 
 of these is absent, the privilege does not attach ; here the second ele- 
 ment is absent, for bona fides is wanting, and malice exists. There are 
 certain cases in which the privilege is absolute. Words spoken in the 
 course of a legal proceeding by a witness or by counsel, and words 
 used in an affidavit in the course of a legal proceeding are absolutely 
 privileged. It is considered advantageous for the public interests that 
 such persons should not in any way be fettered in their statements. 
 This is the first time that a report of proceedings in a court of justice 
 has been sought to be brought within this same class of privilege. • I 
 am not disposed to extend the bounds of privilege beyond the prin- 
 ciples already laid down, and I find no authority for its extension. 
 
 Brett, L. J. It seems to me that the verdict of the jury means that 
 the defendant did not send this report to be published for the benefit 
 of the public in a matter as to which they ought to be informed, but 
 from a desire to injure the plaintiff. Assuming the report to be a 
 fair and correct account of the proceedings in a court of justice, was 
 it privileged? It seems to me that, whatever privilege is relied upon 
 in an action, the defendant is bound to prove that the occasion is 
 privileged, and that he used the occasion in a privileged way. He is 
 bound to shew that he used the privilege bona fide and without malice ; 
 if he fails in either of these incidents, he fails to shew that the com- 
 munication is privileged. The defendant, in order to establish his 
 defence, must shew that the report was substantially correct and that 
 this substantially correct report was made without malice. It is said 
 that the publication of proceedings in a court of justice is a case of 
 absolute privilege, but there is no authority for that statement, and 
 the case comes within the general rule. The defendant has failed to 
 make out the defence he has put on the record. 
 
 Judgment affirmed. 
 
 KIMBALL V. POST PUB. CO. 
 
 (Supreme Judicial Court of Massacliusetts, 1908. 199 Mass. 248, 85 N. E. 
 103, 19 L. R. A. [N. S.] 862, 127 Am. St. Kep. 492.) 
 
 Separate actions for libel were brought against the Post Publishing 
 Company by Kimball and Galletly, and by the same plaintiff's against 
 the Boston Transcript Company. From judgments for the defend- 
 ants, the plaintiffs bring exceptions. 
 
 Hammond, J. The articles of which the plaintiffs complain con- 
 tained reports of certain proceedings in court and also of a meeting 
 of stockholders of a corporation called the Burrows Lighting & Heat- 
 ing Company.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 685 
 
 So far as respects the report of the court proceedings the articles 
 were privileged. This case differs materially from Cowley v. Pul- 
 sifer, 137 Mass. 392, 50 Am. Rep. 318. In that case there had 
 been no action by the court. Here the bill had been presented to the 
 court and the court had acted upon it so far as to make a special order 
 that the defendants therein should appear and show cause why they 
 should not be enjoined. This act of the court was a judicial proceed- 
 ing and, whatever might formerly have been the rule, it was a subject 
 for a privileged report, although the cause had not yet been finished. 
 It was an act begun in a case, and in the end there must be a final 
 decision. The words of Esher, M. R., in Kimber v. Press Ass'n 
 (1893) L. R. 1 Q. B. 65, 71, seem to us to be a true statement of the 
 law on this subject: "I am, therefore, of opinion that where the 
 proceedings are such as will result in a final decision being given, 
 a final and accurate report, made bona fide, of those proceedings is 
 privileged, although it be published before the final decision." And 
 in that case the rule was applied to the proceedings upon an ex 
 parte application for the issue of a summons on a charge of per- 
 jury. * * * 
 
 But there was something more in the articles than the report of the 
 proceedings in court. There was a report of the meeting of the 
 stockholders of a private corporation ; and unless this part of the 
 report is also privileged the defense, so far as resting upon that 
 ground, must fail. It is argued by the defendants that "the public 
 is interested and concerned in a meeting of stockholders of a cor- 
 poration such as is described in the" articles in question, and that 
 reports of such meetings are privileged if fair and made without mal- 
 ice. But the difficulty with this argument is that, unless modified by 
 statutory provision, the law in England and in this commonwealth al- 
 ways has been otherwise. It is to be noted that we are not dealing 
 with what is said at the meeting nor with the person who said it. 
 No doubt a stockholder at such a meeting, speaking to stockholders, 
 may with impunity say things derogatory to an officer or the man- 
 ager of the company provided that what he says be pertinent to the 
 matter in hand and he speaks in good faith and without malice. His 
 justification rests upon the fact that he is speaking to the stockholders 
 upon a subject in which he and they have an interest. On the con- 
 trary, we are dealing with a report in the nature of a repetition of 
 the defamatory remarks, which report is made by a stranger, having no 
 interest in the question, to other strangers, called the public, equally 
 without interest. It is manifest that the grounds for the privilege 
 under which the original speaker, the stockholder, is protected can- 
 not serve the publisher of the report. Davison v. Duncan, 7 El. & 
 Bl. 231 ; De Crespigny v. Wellesley, 5 Bing. 402. The privilege of 
 the publisher, if any he has, must rest upon other grounds. 
 
 It is stated by some authorities that by the common law of England
 
 686 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 reports of judicial and parliamentary proceedings alone were privi- 
 leged. While it is said by Shaw, C. J., in Barrows v. Bell, 7 Gray, 
 301, 66 Am. Dec. 479, that this statement, unqualified, is too broad, 
 still subsequent decisions seem to show clearly that in England the 
 principle of privilege is confined to reports of judicial or quasi judi- 
 cial bodies. No privilege was attached to the report of other public 
 unofficial meetings. Hence, if in such a case a report containing any 
 defamatory statement of fact was printed in a newspaper the pro- 
 prietor's only defense was that the statement was true. Purcell v. 
 Sowler, 1 C. P. D. 781, 2 C. P. D. 215. See, also, Odgers, Libel & 
 Slander (4th Ed.) Append. B, and the authorities therein cited. Since 
 the decision in this last case the law has been somewhat modified so 
 far as respects official and other public meetings. But these statutes 
 have been somewhat strictly construed, and even now a fair report 
 is not always safe. Ponsford v. Financial Times, 16 T. L. R. 248. 
 
 The subject was quite freely discussed by Shaw, C. J., in Barrows 
 V. Bell, 7 Gray, 301, 66 Am. Dec. 479, and the following language 
 was used (7 Gray, 313): "Whatever may be the rule as adopted and 
 practiced on in England, we think that a somewhat larger liberty 
 may be claimed in this country and in this commonwealth, both for 
 the proceedings before all public bodies, and for the publication of 
 those proceedings for the necessary information of the people. So 
 many municipal, parochial and other public corporations, and so 
 many large voluntary associations formed for almost every lawful 
 purpose of benevolence, business or interest, are constantly holding 
 meetings, in their nature public, and so usual is it that their proceed- 
 ings are published for general use and information, that the law to 
 adapt itself to this necessary condition of society, must of necessity 
 admit of these public proceedings, and a just and proper publication 
 of them, as far as it can be done consistently with private rights. 
 This view of the law of libel in Massachusetts is recognized, and to 
 some extent sanctioned by the case of Com. v. Clap, A Mass. 163, 3 
 Am. Dec. 212, and many other cases." And it was held that the 
 publication by a member of the Massachusetts Medical Society of a 
 true account of the proceedings of that society in the expulsion of 
 another member for a cause within its jurisdiction, and of the re- 
 sult of certain suits subsequently brought by him against the society 
 and its members on account of such expulsion, is privileged. 
 
 The above language of the court, however liberal its construction, 
 is not to be understood as applying to strictly private meetings. It 
 applies at the most only to meetings public in their nature, or where 
 the proceedings concern the public. In that case it was said that the 
 charter of the Massachusetts Medical Society "invested the society, 
 their members and licentiates, with large powers and privileges, in 
 regulating the important public interest of the practice of medicine 
 and surgery, enabled them to prescribe a course of studies, to examine
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 687 
 
 candidates in regard to their qualifications for practice, and give 
 letters testimonial to those who might be found duly qualified." It 
 was also stated that it appeared by the acts incorporating this society 
 that it was regarded by the Legislature "as a public institution, by the 
 action of which the public would be deeply affected in one of its 
 important public interests, the health of the people." It was fur- 
 ther said that the proceedings of which the report was made "might 
 be rightly characterized, as in the case of Farnsworth v. Storrs, 5 
 Cush. 412, as quasi judicial." And it was upon tiie latter ground that 
 the communication was adjudged to be privileged. 
 
 The case before us is entirely diff'erent. The meeting was simply 
 that of a private corporation invested with no privileges and owing 
 no special duty to the public. It was an ordinary business meeting. 
 Whether any member was in- fraudulent possession of stock, or had 
 mismanaged the affairs of the corporation, or whether the plaintiffs 
 were unfit to continue as of^cers, or the corporation had been made 
 bankrupt, were matters with which the public were in no way con- 
 cerned. The meeting was for the stockholders alone. Only they 
 or their duly constituted agents were entitled to be present. The 
 meeting was neither public nor for a public purpose. As well might 
 it be said that a private conference between the members of a part- 
 nership on partnership matters was a public meeting. For the pur- 
 poses of the meeting it might have been necessary for charges to be 
 made by one stockholder against another stockholder or an ofiicer, and 
 that the charges should be discussed and their truth or falsity deter- 
 mined ; and so far the actors were well within the privilege. They 
 had a duty to perform in a matter in which all were interested. But 
 for obvious reasons hereinbefore stated the mantle of protection can- 
 not cover him who, having no interest, repeats the defamatory words 
 to others also without interest. And in this matter the conductor of 
 a newspaper stands no better than any other person. As was said 
 in Sheckell v. Jackson, 10 Cush. 25, 26, 27, in reply to a contention 
 that conductors of the public press are entitled to peculiar indulgences 
 and have special rights and privileges, "the law recognizes no such 
 peculiar rights, privileges, or claims to indulgence. They have no 
 rights but such as are common to all. They have just the same rights 
 that the rest of the community have, and no more." These words, 
 although spoken more than half a century ago, state the law as it 
 exists today, except so far as it has been modified by statute, and 
 there has been no statute material to the question before us. The 
 result is that the articles were not privileged so far as they reported 
 the proceedings of the corporation. 
 
 It is argued by the defendants that inasmuch as the charge in the 
 bill in equity was the same as that made at the meeting, namely, that 
 the majority of the stock was in the fraudulent possession of the 
 plaintiffs, it will be impossible for the plaintiffs to contend that any
 
 688 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 alleged damage was suffered from the one rather than from the other, 
 and therefore if one report is privileged the action cannot be main- 
 tained. This is untenable. Even if the charge in substance is the 
 same, it is evident that a charge made in a bill in equity filed in court 
 may not be regarded as so serious a matter as a charge made by one's 
 business associates in a business meeting. The difficulty of separating 
 the damages gives no immunity to the defendants. 
 Exceptions sustained.^^ 
 
 TREBBY V. TRANSCRIPT PUB. CO. 
 
 (Supreme Court of Minnesota, 1S9S. 74 Minn. 84, 76 N. W. 9G1, 
 
 73 Am. St. Rep. 330.) 
 
 The action was against the Publishing Company for libel. The 
 trial court rendered judgment for the defendant, and denied the plain- 
 tiff's motion for a new trial. The plaintiff' appeals. 
 
 Mitchell, j. * * * The facts leading up to the publication of 
 the alleged libel were as follows : The city of Little Falls had issued 
 to a waterpower company its bonds to the amount of $25,000 in aid 
 of the improvement of the waterpower of the Mississippi River at this 
 place, whereupon the plaintiff' brought an action to restrain the city 
 treasurer from paying the bonds, and to compel the waterpower com- 
 pany to return them, on the ground that they were illegally issued 
 and void. To the complaint in this action the waterpower company 
 demurred on the ground that it did not state a cause of action. The 
 demurrer was overruled, and from the order overruling it the water- 
 power company appealed to this court. The bonds having been subse- 
 quently surrendered and cancelled under some new agreement between 
 the city and the waterpower company, this appeal was not prosecuted 
 further, and was finally dismissed by this court for want of prosecu- 
 tion, and judgment for costs rendered against the waterpower com- 
 pany. Thereupon the plaintiff caused to be published in a St. Paul 
 paper an article to the effect that the judgment of this court in rela- 
 tion to the bonds was in favor of the plaintiff; that the amount in 
 controversy was $25,000; that this decision rendered the bonds void; 
 that the case had been in contest for some time, and was quite im- 
 portant. 
 
 This article having come to the notice of some bankers and brokers 
 in Chicago, they wrote to the mayor of the city, asking for the par- 
 ticulars, and inquiring if the city had started on an era of repudia- 
 tion, and why the bonds were contested. Thereupon some of the citi- 
 zens of Little Falls presented a petition to the city council, reciting 
 the facts, and stating that they deemed the city had been slandered 
 
 12 Part of the opinion is omitted.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 689 
 
 by the publication of the article, and that action should be taken "to 
 make the truth public, so that the good name of the city should be 
 continued." Thereupon the city council passed a resolution set out 
 in the complaint, in which they characterized the plaintiff as a "dis- 
 reputable person," and recited that the facts were falsely reported by 
 him to the St. Paul paper with full knowledge of the true facts, and 
 that he maliciously and intentionally made a false report, and con- 
 demned his conduct as execrable and odious, and as having caused the 
 city irreparable damage. This resolution, preceded by an historical 
 introduction, and headed "The City's Credit" (also set out in the 
 complaint), the defendant published in its newspaper published in the 
 city of Little Falls, and circulated in that city and the surrounding 
 country. This is the publication complained of. 
 
 1. We shall spend no time on the question whether this publica- 
 tion was libellous on its face. It was clearly calculated to injure plain- 
 tiff in the good opinion and respect of others, and expose him to the 
 contempt and hatred of his neighbors, especially in the city of Little 
 Falls. It was manifestly libellous unless privileged. * * * 
 
 2. Defendant contends that the publication was absolutely privileg- 
 ed, because its paper was the official newspaper of the city, and the 
 city charter (Sp. Laws 1889, c. 8, § 52) required all ordinances and 
 resolutions to be published in the official newspaper before they shall 
 be in force. To this there are several answers : First, the provision 
 of the charter invoked does not seem to apply to resolutions of this 
 character, but merely to ordinances which will have some operative 
 force after they are passed; second, this does not purport to be an 
 official publication, but merely the publication of an item of news ; 
 and, third, the resolution was not within the scope of the duty of the 
 city council, but wholly outside of it, and privilege can only be claim- 
 ed of things published within the scope of official authority. The city 
 council had no more authority to libel or traduce the private character 
 of a private citizen than an assemblage of private citizens would have. 
 Buckstaff v. Hicks, 94 Wis. 34, 68 N. W. 403, 59 Am. St. Rep. 853 ; 
 Wilcox v. Moore, 69 Minn. 49, 71 N. W. 917. 
 
 Neither was the publication privileged conditionally. A privileged 
 communication is one made in good faith upon any subject-matter in 
 which the party communicating has an interest, or in reference to 
 which he has, or honestly believes he has, a duty to a person 
 having a corresponding interest or duty, and which contains matter, 
 which, without the occasion upon which it is made, would be defama- 
 tory and actionable. Newell, Defam. 388. If the article published 
 by the plaintiff in the St. Paul paper was calculated to unjustly impair 
 the credit of the city, the city council or the defendant would have 
 a perfect right to publish the actual facts, in order to set the city's 
 credit right before the public, although such facts might reflect on 
 the conduct of the plaintiff, but not to make false and defamatory 
 Hepb. Torts — 44
 
 690 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 Statements regarding plaintiff's character. Landon v. Watkins, 61 
 Minn. 137, 63 N. W. 615. 
 
 It is true that the publication complained of was, as a matter of 
 news, entirely true ; that is, the city council did pass the resolution 
 just as stated by the defendant. But the publication in a newspaper 
 of false and defamatory matter is not privileged because made in 
 good faith as a matter of news. The right to publish through the 
 newspaper press such matters of interest as may be thus properly laid 
 before the public does not go to the extent of allowing the publication 
 concerning a person of false and defamatory matter, there being no 
 other reason or justification for doing so than merely the purpose 
 of publishing news. Mallory v. Pioneer Press Co., 34 Minn. 521, 26 
 N. W. 904. The article was not privileged, either absolutely or con- 
 ditionallv. * * * 
 
 Order reversed and new trial granted.^' 
 
 LUNDIN V. POST PUB. CO. 
 
 (Supreme Judicial Court of Massachusetts, 1914. 217 Mass. 213, 104 N. E. 
 
 480, 52 L. R. A. [N. S.] 207.) 
 
 This action was against the Publishing Company, for libel. Judg- 
 ment for the plaintiff and the defendant brings exceptions. 
 
 Sheldon, J. The defendant published in its newspaper a statement 
 that '*it was alleged" that the plaintiff had committed an assault upon 
 a woman named, which had resulted in stated personal injuries to her. 
 For this publication the plaintiff had a right of action, unless it was 
 privileged, or unless it was true, or unless for some other reason it 
 was not libelous. The mere fact that the charge against the plaintiff 
 was not made by direct averment but only by saying that such an al- 
 legation had been made was not material ; for the statement of un- 
 founded charges is none the less actionable that it is made only by way 
 of repeating them as having been made by others. Kimball v. Post 
 Publishing Co., 199 Mass. 248, 251, 85 N. E. 103. 19 L. R. A. (N. S.) 
 862, 127 Am. St. Rep. 492, et seq. ; Metcalf v. Times Publishing Co., 
 20 R. I. 674, 678, 40 Atl. 864, 78 Am. St. Rep. 900; Park v. Detroit 
 Free Press Co., 72 Mich. 560, 40 N. W. 731, 1 L. R. A. 599, 16 Am. 
 St. Rep. 544; Popham v. Pickburn, 7 H. & N. 891; Davison v. 
 Duncan, 7 El. & Bl. 229; Purcell v. Sowles, 1 C. P. D. 781, 2 C. P. 
 D. 251. Nor have the publishers of newspapers any greater right to 
 give in this way currency to false charges than other persons. They 
 have no peculiar rights or privileges. Sheckell v. Jackson, 10 Cush. 25, 
 26; Burt v. Advertiser Newspaper Co., 154 Mass. 238, 243, 28 N. E. 
 1, 13 L. R. A. 97. 
 
 13 Parts of the opinion arc omitted.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 691 
 
 The defendant claims that this was a fair report of the fact that a 
 suit for damages had been brought against the plaintiff by the woman 
 named, and that in her declaration she had made charges against hirr.' 
 which were fairly and correctly stated in the article complained of ; that 
 her writ and declaration had been made the subject of judicial proceed- 
 ings in open court; and therefore that the article was privileged as 
 a fair and correct report of judicial proceedings published in good 
 faith and without malice. This is the main, though not the only con- 
 tention now relied on by the defendant. 
 
 It is not open to dispute that a fair report in a newspaper of pending 
 judicial proceedings is proper, and that this privilege extends to all 
 matters which have been made the subject of judicial proceedings, 
 though such proceedings may be merely preliminary or interlocutory, 
 or even ex parte. For example, it will render privileged a fair report 
 of the charges made in a bill in equity which has been presented to 
 the court and upon which the court has acted by making an order that 
 the defendants shall appear and show cause why an injunction shall 
 not be issued against them. Kimball v. Post Publishing Co., 199 Mass. 
 248, 85 N. E. 103, 19 L. R. A. (N. S.) 862, 127 Am. St. Rep. 492; 
 Kimber v. Press Association [1893] 1 Q. B. 65, 71. So it will extend 
 to fair and accurate reports of hearings had upon applications for the 
 issuance of warrants or other criminal process, or upon hearings had 
 after such process has been issued, though they be not final trials upon 
 the merits.^* * * * 
 
 But this principle is limited to matters which really have been made 
 the subject of judicial action. It does not give the right to publish 
 statements made in declarations or other papers filed in court on tlie 
 ground merely that they have been placed on the files of the court, 
 or until they have been brought to the attention of the court and some 
 judicial action has been taken upon them. Cowley v. Pulsifer, 137 
 Mass. 392, 50 Am. Rep. 318. As was said by Mr. Justice Holmes in 
 that case, the reasons for allowing fair reports of the proceedings of 
 courts of justice "have no application whatever to the contents of a 
 preliminary written statement of a claim or charge. These do not 
 constitute a proceeding in open court. Knowledge of them throws no 
 light upon the administration of justice. Both form and contents de- 
 pend wholly on the will of a private individual, who may not be even 
 an officer of the court. It would be carrying privilege farther than we 
 
 14 Mr. Justice Sheldon here cited Conner v. Standard Publishing Co. (1903) 
 183 Mass. 474, 67 N. E. 59G, Perkins v. Mitchell (1860) 31 Barb. (N. Y.) 461, 
 471, 472, Lewis v. Levy (1858) El., Bl. & El. 537, and Usil v. Hales (1878) 
 3 C. P. D. 319, and gave the following cases, as being to the same general 
 effect: Parker v. Republican Co. (lfK)2) 181 Mass. 392, 63 N. E. 931 : Acker- 
 man V. Jones (1874) 37 N. Y. Super. Ct. 42 ; Meriwether v. Knapp (1908) 211 
 Mo. 199, 215, 109 S. W. 750, 16 L. R. A. (N. S.) 953; A. H. Belo & Co. v. 
 Lacy (Tex. Civ. App. 1908) 111 S. W. 215, 218; Curry v. Walter (179G) 1 B. 
 & P. 525, cited and followed in I^ing v. ^Yright (1799) 8 T. R. 293, 298 ; Ry- 
 alls V. Leader (18GG) L. R. 1 Exch. 296; Hope v. Leng (1907) 23 T. L. R. 243. 
 
 And see 18 Halsbury's Laws of England, 695 (1911).
 
 692 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 feel prepared to carry it, to say that, by the easy means of entithng 
 and fihng it in a cause, a sufficient foundation may be laid for scatter- 
 ing any libel broadcast with impunity." In that case, to be sure, the 
 paper had been neither presented to the court nor entered upon the 
 docket. But the fundamental ground of the decision was that it had 
 not been made the foundation of any judicial action. The rule again 
 was well stated in Barber v. St. Louis Dispatch, 3 ]\Io. App. Zll , in 
 language which, though used by a court of inferior jurisdiction, often 
 has been quoted with approval by courts of last resort. So too the 
 Supreme Court of Rhode Island has said, in Metcalf v. Times Publish- 
 ing Co., 20 R. I. 674, 678, 40 Atl. 864, 865 (78 Am. St. Rep. 900), 
 that the rule of privilege "gives no license to publish libelous matter 
 simply because it is found in the files of a court. As publishers of 
 news and items of public importance the press should have the freest 
 scope, but as a scandal-monger it should be held to the most rigid lim- 
 itation. If a man has not the right to go around to tell the charges 
 made by one against another, much less should a newspaper have the 
 right to spread it broadcast and in an enduring form. It is neces- 
 sary to the ends of justice that a party should be allowed to make his 
 charges against another, for adjudication, even though they may be of 
 a libelous character, and as such they are privileged. * * * gut 
 the right of a party to make charges gives no right to others to spread 
 them." See, also. Park v. Detroit Free Press Co., 72 Mich. 560, 40 
 N. W. 731, 1 Iv. R. A. 599, 16 Am. St. Rep. 544, and American Pub. 
 Co. v. Gamble, 115 Tenn. 663, 90 S. W. 1005. The general doctrine 
 of privilege has been limited similarly in analogous cases. Monaghan 
 v. Globe Newspaper Co., 190 :\Iass. 394, 17 N. E. 467 ; Sweet v. Post 
 Publishing Co., 215 Mass. 450, 102 N. E. 660; Smith v. Streatfield 
 (1913) 3 K. B. 764. 
 
 The averments of the declaration mentioned in the defendant's 
 article had not been made the subject of any judicial action within the 
 rule which we have stated. The woman named in that article had 
 brought an action against this plaintiff, but had failed to enter it in 
 court upon the return day thereof. She then presented to the court a 
 petition that she be allowed to make a late entry of her writ and dec- 
 laration. Her petition was allowed by the court upon consent of the 
 respondent thereto. But this was merely a permission given to that 
 plaintiff to make a late entry of her action, under R. L. c. 173, § 11. 
 It involved no examination of the averments of her declaration in that 
 action, no passing upon their sufficiency, no consideration of the ques- 
 tion whether she was entitled to any special relief pending the suit, or 
 of the question whether any special process should be issued against 
 the defendant therein under the provisions of R. L. c 167, § 80, or 
 otherwise. There was no question as to the making of any order rest- 
 ing upon the character of her action or of the charges made in her 
 declaration. Indeed, there was and is nothing to indicate that her 
 declaration was presented to any judge for action of any kind, and
 
 Ch. 2) ABSOLL'TE TORTS OTHER THAN TRESPASSES 693 
 
 the defendant made no pretense at the trial that this was the case. 
 It cannot be said that there was any judicial action whatever upon that 
 declaration. For this reason the case stands now as showing the bare 
 repetition by the defendant of charges made, or claimed to have been 
 made, by a third person in her action against this plaintiflf. As we 
 have seen, because the defendant had no privilege to report these 
 charges, it took tlie risk, when it chose to repeat them, of being held 
 liable for any damage thus caused to this plaintifif. The privilege 
 which that woman enjoyed of stating her charges against this plain- 
 tiff for the purpose of having them adjudicated did not extend to this 
 defendant or afford it any defense for the publication of libelous 
 matter. * * * is 
 
 Exceptions overruled. ^ 
 
 (2) Communications in Pursuance of a Duty 
 
 CHILD V. AFFLECK et ux. 
 
 (Court of King's Bench, 1829. 9 Barn. & C. 403, 33 R. R. 216, 109 Reprint, 150.) 
 
 Case for a libel. Plea, the general issue. At the trial before Lord 
 Tenterden, C. J., at the Westminster sittings after Hilary Term, it 
 appeared in evidence that the plaintiff had been in the service of the 
 defendants, IMrs. Affleck having before she hired her made inquiries 
 of two persons, who gave her a good character. The plaintiff re- 
 mained in that service a few months, and was afterwards hired by 
 another person, who wrote to Mrs. Affleck for her character, and re- 
 ceived the following answer, which was the alleged libel : 
 
 "Mrs. A.'s compliments to Mrs. S., and is sorry tliat in reply to her in- 
 quiries respecting E. Child, nothing can be in justice said in her favour. She 
 lived with Mrs. A. but for a few weeks, in which short time she frequently 
 conducted herself disgracefully ; and Mrs. A. is concerned to add she has, 
 since her dismissal, been credibly informed she has been and now is a pros- 
 titute in Bury." 
 
 In consequence of this letter the plaintiff was dismissed from her 
 situation. It further appeared that after that letter was written, ]\Irs. 
 Affleck went to the persons who had recommended the plaintiff to 
 her, and made a similar statement to them. Upon this evidence it 
 was contended, for the defendants, that there was no proof of malice, 
 and that consequently the plaintiff must be nonsuited. On the other 
 
 15 Accord: Williams v. New York Herald Co. (1914) 165 App. Div. 529, 
 1.50 X. Y. Supp. 8.'1S, where Scott, J., adopts the language of Stiness, J., in 
 Metcalf V. Times Publishing Co. (1898) 20 R. I. 674, 678, 40 Atl. 864, 78 Am. 
 St. Rep. 900: "It is necessary to the ends of justice that a party should be 
 allowed to make his charges against another, for adjudication, even though 
 they may be of a libelous character, and as such they are privileged, 
 the injured party having a remedy for malicious prosecution when they are 
 made maliciously or without probable cause. But the right of a party to 
 make charges gives no right to others to spread them."
 
 694 TORTS THROUGH ACTS OP ABSOLUTE LIABILITY ^ (Part 1 
 
 hand, it was urged that Mrs. Affleck's statement of what the plaintiff's 
 conduct had been after she left her sendee was not privileged, and 
 that, at all events, that part of the letter and the statement that she 
 voluntarily made to other persons, and not in answer to any inquiries, 
 were evidence of malice. Lord Tenterden, C. J., was of opinion that 
 the latter part of the letter was privileged, and that the other communi- 
 cations being made to persons who had recommended the plaintiff 
 were not evidence of malice, and he directed a nonsuit. 
 
 Parke, J. The rule laid down by Lord Mansfield in Edmonson v. 
 Stevenson, Bull. N. P. 8, has been followed ever since. It is, that 
 in an action for defamation in giving a character of a servant, "the gist 
 of it must be malice, which is not implied from the occasion of speak- 
 ing, but should be directly proved." The question then is, whether 
 the plaintiff* in this case adduced evidence, which, if laid before a 
 jury, could properly lead them to find express malice. That does not 
 appear upon the face of the letter. Prima facie it is fair, and un- 
 doubtedly a person asked as to the character of a servant may com- 
 municate all that is stated in that letter. Independently of the letter, 
 there was no evidence except of the two persons that had recommended 
 the plaintiff. The communication to them, therefore, was not officious, 
 and Mrs. Affleck was justified in making it. In Rogers v. Clifton, 
 3 Bos. & P. 587, evidence of the good conduct of the servant was 
 given, and the communication also appeared to be officious. In Black- 
 burn V. Blackburn, 29 R. R. 583, 4 Bing. 395, the occasion of writing 
 the alleged libel did not distinctly appear, it was therefore properly 
 left to the jury to say, whether it was confidential and privileged or 
 not, and they found that it was not. Here the letter was undoubtedly 
 prima facie privileged, the plaintiff, therefore, was bound to prove 
 express malice in order to take away the privilege.^* 
 
 Rule refusecj. 
 
 HARRISON V. BUSH. 
 (Court of Queen's Bench, 1S55. 5 El. & Bl. 344, 119 Reprint. .509. 103 R. R. 507.) 
 
 Lord Campbell, C. J.^' This was an action for a libel tried before 
 my brother Crowder at the last Salisbury assizes. The defendant 
 pleaded Not Guilty, and a justification. 
 
 It appeared that Dr. Harrison, the plaintiff, before and at the 
 time when the cause of action accrued, was a justice of peace for the 
 county of Somerset, and was in the habit of acting in petty sessions 
 held in the borough of Frome. In the month of October last, there 
 was a contested election for a member to represent this borough in 
 
 16 The opinions of Lord Tenterden, C. J., and of Bayloy and Littledale, J J., 
 are omitted. 
 
 17 The reporter's statement of tlie facts and parts of the opinion are 
 omitted.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 695 
 
 Parliament. During the election, there was much excitement; many 
 windows were broken by the mob; and there were dangerous riots 
 in the streets. The defendant was an elector and an inhabitant of 
 the borough ; and, after the election Avas over, he and several hundred 
 other inhabitants of the borough prepared, signed, and transmitted to 
 Viscount Palmerston a memorial complaining of the conduct of the 
 plaintiff as a magistrate during the election, imputing to him that he 
 had made speeches directly inciting to a breach of the peace ; that, 
 after reading the Riot Act, he had sent a man into the streets armed 
 with a bludgeon, and ordered him to strike any person he might meet, 
 indiscriminately; and that he had himself violently struck and kicked 
 several men and women. The memorial alleged that the plaintiff 
 ought not to be allowed to remain in Her Majesty's Commission of 
 the peace, and concluded thus : "Your memorialists therefore earnestly 
 pray that your Lordship will cause such an inquiry to be made into 
 the conduct of the said Dr. Harrison as your Lordship may think fit ; 
 and that, on the allegations contained in the memorial being duly sub- 
 stantiated and verified, your Lordship will feel it to be your duty to 
 recommend to Her Majesty that the said Dr. Harrison be removed 
 from the commission of the peace." * * * 
 
 The learned Judge said that on the authority of Blagg v. Sturt,^* 
 he should rule that the memorial to the Secretary of State was not 
 a privileged communication, but would reserve leave to the defendant 
 to move to enter a verdict for him, if the jury found bona fides. On 
 this point, he desired them to consider "whether the memorial was 
 got up and signed by the defendant honestly for the purpose which is 
 stated in it, or whether the defendant had any bye motive? If they 
 found bona fides or not, they would assess damages ; but these would 
 vary as they thought defendant was actuated more or less by any 
 malicious feeling. If he acted altogether bona fide, damages would 
 be very considerably modified." The jury found a verdict for the 
 plaintiff, damages 20s., saying: "We consider it a bona fide me- 
 morial." 
 
 18 In Blasg V. Sturt (1846) 10 Q. B. 899, it appeared that D. sent to the 
 Secretary of State a letter which imputed to P., who was town clerk, and 
 clerk to the justices, corruption in the latter office. But the Secretary of 
 State had no direct authority in respect of the matter complained of and 
 was not a competent tribunal to receive the application. In Harrison v. 
 Bush, on the other hand, Lord Campbell reached the conclusion that al- 
 though the defendant might have addressed the memorial to the Lord Chan- 
 cellor, in which case it would certainly have been privileged, it was equally 
 privileged being addressed to the Secretary' of State. "Legally and constitu- 
 tionally a justice of the peace is appointed and removed by the sovereign, 
 acting, as in every other exercise of the prerogative, by the advice of a re- 
 sponsible minister. Considering this as virtually a communication to the 
 Queen through her Secretary of State, it cannot bo doubted that Ilor Majesty 
 has an interest in the matter ; for she Ls to see that all in authority under 
 her do their duty, and that justice is duly admiuistered to all her subjects. 
 We therefore come to the conclusion that this was a privileged communica- 
 tion, and that the verdict ought to be onlprod for tlie defendant."
 
 696 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 A rule has been obtained to enter a verdict for the defendant; 
 and this we think ought to be made absohite. 
 
 During the argument, a legal canon was propounded for our guid- 
 ance by the plaintiff's counsel; and this we are willing to adopt, as 
 we think that it is supported by the principles and authorities upon 
 which the doctrine of privileged communications rests. "A com- 
 munication made bona fide upon any subject matter in which the party 
 communicating has an interest or in reference to which he has a duty, 
 is privileged if made to a person having a corresponding interest or 
 duty, although it contained criminatory matter which, without this 
 privilege, would be slanderous and actionable." In the present case, 
 little need be said to show that the communicator had both an interest 
 and a duty in the subject matter of the communication. Assuming that 
 Dr. Harrison had misconducted himself as a magistrate in the man- 
 ner alleged, all the electors and inhabitants of Frome had suffered a 
 grievance by the magistrate having fomented the riot instead of quell- 
 ing it, and having endangered instead of protecting life and property 
 within the borough. They have an interest that they may not longer 
 remain subject to the jurisdiction of a magistrate who so violates the 
 law. Again, if Dr. Harrison had so misconducted himself as a magis- 
 trate, he had committed an offence, and it was the duty of those who 
 witnessed it to try by all reasonable means in their power that it should 
 be inquired into and punished. "Duty," in the proposed canon, can- 
 not be confined to legal duties which may be enforced by indictment, 
 action, or mandamus, but must include moral and social duties of im- 
 perfect obligation. One mode of proceeding for this offence would 
 have been by applying to us for a criminal information, and seeking 
 to have the offender punished by fine and imprisonment. But another, 
 which though milder, may be more effectual, is to try by lawful and 
 constitutional means to have the offender removed from his office, 
 without calling down upon him the sentence of a criminal Court. In 
 this land of law and liberty, all who are aggrieved may seek redress ; 
 and the alleged misconduct of any who are clothed with public author- 
 ity may be brought to the notice of those who have the power and 
 duty to inquire into it, and to take steps which may prevent the repeti- 
 tion of it. * * * 
 
 Rule absolute. 
 
 HEBDITCH V. MacILWAINE et al. 
 
 (In the Court of Appeal. [1894] 2 Q. B. 54.) 
 
 The action was for libel. The defendants pleaded a justification 
 and privilege. It appeared that the plaintiff had been elected to the 
 office of guardian of the poor of the parish of South Petherton. The 
 defendants, who were rate payers of the parish and entitled to vote 
 at the election, signed and sent to the board of guardians a letter
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 
 
 697 
 
 complaining of certain irregularities which they alleged to have oc- 
 curred at the election, and suggesting that the matter ought to be in- 
 quired into. * * * The plaintiff alleged that the effect of the 
 letter was to impute that he himself had participated in the malprac- 
 tices therein mentioned. 
 
 The judge left to the jury the following questions: 1. Whether 
 the letter was libellous with regard to the plaintiff. 2. Whether the 
 plea of justification was proved. 3. Whether the defendants honest- 
 ly believed it to be their duty to make each and all of the communica- 
 tions contained in the letter to the board of guardians, and did so 
 acting under a sense of that duty. 4. Whether the defendants honest- 
 ly and reasonably believed that the board of guardians were the prop- 
 er authority to whom to apply in respect of each and all of the mat- 
 ters mentioned in the letter. The judge reserved any question of 
 actual malice until these questions had been answered. The jury found 
 that the letter was libellous with regard to the plaintiff, and that the 
 plea of justification was not proved. In answer to the third question 
 they found that the defendants acted partly from a sense of duty, 
 and partly not. In answer to the fourth question they found that 
 the defendants did honestly and reasonably believe that the board of 
 guardians were the proper authority to whom to apply. The judge, 
 thinking the effect of these answers ambiguous, asked the jury the 
 following further questions: 1. Whether the defendants wrote the 
 first part of the letter under a sense of duty, and believing the board 
 of guardians to be the proper authority to whom to apply. 2. A 
 similar question with regard to the latter part of the letter. The 
 jury answered the first of these questions in the affirmative, and the 
 second in the negative. 
 
 The judge thereupon held that the occasion was not wholly priv- 
 ileged, and, therefore the plaintiff was entitled to damages, the amount 
 of which he asked the jury to assess. The jury assessed the damages 
 at £10, for which sum the judge gave the plaintiff judgment. 
 
 J. Alderson Foote, for the defendants. The defendants as rate 
 payers had an interest in the matter to which the letter related. It 
 may be admitted that the board of guardians could take no action in 
 the matter brought before them by the defendants. They could not 
 avoid the plaintiff's election. That could only be done by a petition 
 under the Municipal Corporations Act, 1882, part IV. * * * It 
 is contended however, that, where a person who has a grievance makes 
 a complaint in respect thereof to a person or body, whose duty he 
 honestly and reasonably believes it to be to inquire into and redress 
 such grievance, the occasion is privileged. * * * 
 
 Lord EsHER, M. R.^° * * * It must be borne in mind that the 
 
 19 The statement of the case and the argiuiients of counsel are abridged 
 and parts of the opinion are omitted. There were concurring opinions by 
 A. L. Smith and Davey, L. JJ.
 
 898 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 material part of the cause of action in libel is not the writing, but the 
 publication of the libel. It was proved that the defendants had written 
 and published to the board of guardians matter which the jury found 
 libellous with regard to the plaintiff, and which was untrue. The de- 
 fendants set up by way of defence that the occasion was privileged. 
 It is for the defendant to prove that the occasion was privileged. If 
 the defendant does so, the burden of shewing actual malice is cast 
 upon the plaintiff, but, unless the defendant does so, the plaintiff is 
 not called upon to prove actual malice. The question whether the 
 occasion is privileged if the facts are not in dispute, is a question of 
 law only, for the judge, not for the jury. If there are questions of 
 fact in dispute upon which this question depends, they must be left 
 to the jury, but, when the jury have found the facts, it is for the 
 judge to say whether they constitute a privileged occasion. 
 
 What are the facts upon which the question whether the occasion 
 was privileged, depends in the present case ? There had been an election 
 to the office of guardian of the poor, and the paintiff had been elected. 
 The defendants were rate payers who had a right to vote at the election. 
 After the election they wrote and sent the letter containing the mat- 
 ter complained of to the board of guardians. It seems clear that, 
 when that board had received the letter, they could do nothing in the 
 matter. They could not set aside the election. Such being the facts 
 of the case, what was the judge called upon to consider in dealing 
 with the question whether the occasion was privileged? He had first 
 to consider whether the defendants, who published the defamatory 
 matter, had any interest or duty in connection with the subject which 
 they thus brought before the board of guardians. I am not prepared to 
 say that they had not an interest or duty. On the contrary I am 
 inclined to think that they had an interest in the matter. They were 
 electors and had an interest in having the office filled by a person 
 properly elected. Then the position of the board of guardians, to 
 whom the defamatory matter was published, had to be considered. 
 They had no interest in the matter, as it seems to me, and, as I have 
 already said, they had no duty or power to take any action upon 
 the communication made to them. Under these circumstances I 
 think it clear that the occasion was not privileged. 
 
 It was argued that, although the board of guardians had no power 
 or duty or interest in the matter, nevertheless the occasion was priv- 
 ileged, because the defendants honestly and reasonably believed that 
 the board had such a duty or power or interest, and were asking 
 them for redress in the matter which they believed they could give. 
 Assuming that the defendants had such a belief, though I confess I 
 cannot see how there could be any reason in such a belief, the argu- 
 ment in substance seems to come to this: that the belief of the defend- 
 ants that the occasion was privileged mal<es it privileged. I cannot 
 accept the proposition so put forward. I cannot see how the belief 
 of the defendants who have made a mistake, and have published a
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 699 
 
 libel to persons who have no interest or duty or power in the matter, 
 can affect the question. The belief of the defendants might have 
 a bearing on the question of malice; if it be assumed that the occa- 
 sion was privileged, the belief of the defendants might be strong to 
 shew that the communication was privileged, as being made without 
 malice, but I do not think it has anything to do with the question 
 whether the occasion was privileged."" * * * 
 
 Application [by defendant for judgment or a new trial] dismissed. 
 
 TODD v. HAWKINS. 
 
 (Northern Spring Circuit, York Assizes, 1S37. 8 Car. & P. 88, 56 R. R. 834.) 
 
 Libel. Plea, not guilty. It appeared that the plaintiff was a share- 
 broker, and that the plaintiff and the defendant had also been in part- 
 nership in the tea trade, but that they had dissolved their partner- 
 ship in the year 1835. It further appeared that the wife of the de- 
 fendant was the daughter of the late Dr. Taft, a Wesleyan minister, 
 and that in the year 1836 the plaintiff was paying his addresses to 
 Mrs. Taft, the mother of the defendant's wife. These facts were 
 proved by Mrs. Taft, who also stated, that in the month of July, 1836, 
 she received a letter, which was the subject of the present action, from 
 
 20 Lord Esher liere considered the question on authority, found only one 
 case which "really seems to me to be a strong authority in favour of the 
 defendant's contention," Thompson v. Dashwood (1S83) 11 Q. B. D. 43, and as 
 to it remarked: "The only way to deal with that case, in my opinion, is to 
 say that we do not agree with it." In his concurring opinion Davey, L. J., 
 remarked: "I desire to say that I agree with the Master of the Rolls in 
 thinking that Tompson v. Dashwood cannot be supported." 
 
 The facts in Tompson v. Dashwood (1883) 11 Q. B. D. 43, were as follows: 
 The plaintiff was the managing director, with a salary, of a manufacturing 
 company. The defendant was a director in the same company. The plain- 
 tiff and the defendant being about to go- to the continent at the expense of the 
 company, the defendant wrote to the chairman of the company, Colonel Wood, 
 a letter suggesting that the secretaiy's cash book be looked into, to see what 
 sums the plaintiff had charged against the company for travelling expenses, 
 and intimating that they were excessive. At the same time, the defend- 
 ant wrote another letter, about a different matter, to the secretary of the 
 company, who was the plaintiff's brother. By mistake the defendant put 
 each letter into the envelope intended for the other, so that the letter in- 
 tended for the chairman went to the secretary, who handed it to his brother. 
 On these facts, it was held in the Queen's Bench Division that the publica- 
 tion was privileged. "It is admitted," said Watkin Williams, J., "that the 
 defendant stood in such a relation to Colonel Wood that in writing to him 
 the legal implication of malice was technically rebutted, and the defend- 
 ant, in the absence of malice in fact, was protected by privilege; but it is 
 contended for the plaintiff that, the defendant having carelessly put the 
 letter into the wrong envelope, so that it reached the hands of a person with 
 whom he had no such relation, the protection of privilege is destroyed, and 
 the case put into the condition in which the law implies malice. I think 
 there is a fallacy in that contention. The defendant's state of mind was 
 never altered. His intention was always honestly to do that which he con- 
 ceived to be his duty. I can see nothing to justify the conclusion as a mat- 
 ter of law, that by reason of the defendant's inadvertence the case is taken out 
 of the category of privilege, so that malice should lie implied."
 
 700 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 the defendant, and that she gave it to the plaintiff, who returned it 
 after a copy had been made of it, and that the original letter was 
 then burnt. In her cross-examination Mrs. Taft said, the defendant 
 would receive an accession of property on her second marriage, or 
 when his youngest child comes of age, which would be about seven 
 years hence, so that property would the sooner come into the posses- 
 sion of the defendant, in right of his wife, by Mrs. Taft's second 
 marriage. 
 
 The letter was to the following effect : 
 
 "Dear Ma. I feel very severely the coldness and constraint which com- 
 pels me to communicate my sentiments to you through the medium of a 
 letter, but the misery to yourself and the evil consequences to your family, 
 which must inevitably ensue from the step I fear you are about to take, impel 
 me to waive every private consideration and to do my duty to you honest- 
 ly, and, I hope you will feel, respectfully, as I am quite sure you would to me 
 under an exchange of circumstances ; but whilst in the following remarks 1 
 express my own private sentiments, I am anxious you should believe me 
 they also contain the opinion (for there is but one) of all our friends 
 without any exception. * = * Now, I am quite sure from all that I 
 have ever seen and known of your character that wilfully to do so with your 
 eyes oi>en would be utterly abhorent to you, and that it can only be account- 
 ed for by your being the victim to the plausible artifice of a wicked and art- 
 ful man, and I most earnestly wish you to investigate thoroughly his char- 
 acter, for I honestly assure you, and I speak it as free from personal preju- 
 dice as I am able, and with the fear of a lie in my heart, thai his character 
 in I'ork amongst those who best know him is that of an unprincipled trick- 
 ster. To make money, by no matter what means, appears to be his prin- 
 cipal object, as he is constantly descending in transactions of that nature 
 to the meanest artifice and juggle, which an honest-minded man would 
 rather die than be guilty of. * * * INIanmia, examine well into your mo- 
 tives, search deeply your own heart. Is the love of money or anxiety after 
 worldly appearance there? Are you sacrificing to Mammon, and making your 
 children pass through the fire to Moloch? The spoils of the widow and fa- 
 therless are in his treasure, the moth and rust will cornipt tliem, and his 
 money will perish in the using. Do let me press upon you the conduct which, 
 as a prudent person you ought, and as a professor of Christ you dare not 
 but do. I mean, earnest and agonizing prayer for that guidance and direc- 
 tion of the spirit of God which is promised for these special occasions, by 
 thoroughly examining your motives, a'nd weighing well the consequences of 
 such a step ; and then, by diligent and extensive inquiry from i^arties most 
 likely to give you honest and necessary information as to his character, and 
 fitness for increasing and adding to the comfort and establishment of those 
 interests whicli it is your duty, and I have no doubt your intention to pi'o- 
 tect — I say, if after having jjursued this course you think him a man to 
 whom you can fearlessly surrender your charge, I can only say that no one 
 will more rejoice than myself if the issue be happy. But so contrary is my 
 conviction of the result, that my earnest and daily prayer to Cod is, that 
 he who has promised to be a husband to the widow, to be her counsellor 
 and guide, and has declared that he will deal kindly with the relicts of his 
 saints, will deliver you from this fatal snare, which has already had an 
 unfavourable effect tipon your character in the opinions of respectable and 
 intelligent people both in and without the pale of the Christian church, and 
 will eventually nain your peace. I pray God bestow upon you every neces- 
 sary good, and so direct your way that you may keep his testimonies. 
 
 "Yours very affectionately, W. Hawkins." 
 
 AldKrson, B.^^ (in summing up). * * * Here is a widow about 
 to contract marriage with the plaintiff ; the defendant is her son in law ; 
 
 21 Part of the opinion is omitted.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 701 
 
 1 think, therefore, that he was justified in writing this letter to her, 
 provided you are satisfied that in doing so he acted bona fide, al- 
 though the imputations contained in the letter be false, or based upon 
 the most erroneous information. There is no doubt, that unless this 
 letter was justified by the occasion, it is a libel, and had Mrs. Taft 
 and the defendant been strangers to each other this would have been 
 a mere question of damages. However, in this case, although the 
 letter be derogatory to the plaintiflf's character, and written in 
 stronger language than a prudent man would use, you must consider 
 whether it was written sincerely, and with a desire to benefit the person 
 to whom it was addressed. The letter professes to be so, and you must 
 decide whether that profession is made bona fide. The request that 
 this lady would make diligent and extensive inquiry into the character 
 of Mr. Todd was extremely good advice, and so is the exhortation 
 to her to apply herself to prayer. It may not be judicious on trifling 
 or light occasions to make reference to sacred things ; but on an im- 
 portant occasion like that which calls forth this letter, no better ad- 
 vice could be given. The question you have to try is, not whether 
 Mr. Todd was guilty of the charges laid against him, but whether, 
 although the defendant may have acted rashly, he wrote the letter 
 bona fide. So far as pecuniary interests are concerned, it would be 
 to the advantage of the defendant that this lady should marry, and 
 that tends to show bona fides, as men do not in general act maliciously 
 and at the same time against their own interests. The whole of the 
 circumstances are before you, and the occasion is one which prima 
 facie justifies the letter. If, however, the defendant has availed him- 
 self of the occasion for malicious purposes, he must answer for what 
 he has done. If, on the other hand, he has used expressions, however 
 harsh, hasty, or untrue, yet bona fide, and believing them to be true, 
 he, was justified in so doing. It is for the good of all that communi- 
 cations of this kind should be viewed liberally by juries ; and unless 
 you see clearly that this letter was written with a malicious intention 
 of defaming the plaintiff, your verdict ought to be for the defendant.^' 
 
 2 2 On the principle involved, see the remarks of Willes, J., in Hen wood 
 V. Harrison (1S72) L. R. 7 C. P. 606, 621. 
 
 See also Clark v. Molyneux (1S77) 3 Q. B. D. 237: (D., a clergyman, wrote 
 to S., another clergynian, in whose church P., also a clergyman, was to preach, 
 that D. had heard from trustworthy sources that P., "while curate at Hor- 
 ringer, had seduced two girls." The charge was false.) Stuart v. Bell, [1801] 
 
 2 y. B. :i41 C. A.: (When P. and his master, S., were at Newcastle as the 
 guests of D., a magistrate and the mayor of the town, the chief constable 
 of the town shewed D. a letter stating that P. was suspected of theft in a 
 hotel at Edinburgh, which he had recently left. D. made no enquiry, hut just 
 before P. and his mother left, D. informed S. privately of the theft and the 
 suspicion.) Cameron v. Cockran (189.5) 2 Marv. (Del.) 166, 42 Atl. 454: (D., 
 a physician, referring to a certain prescription by D. for S., which had pro- 
 duced bad effects, said to S.: "That prescription has a mistake in it. The 
 druggist [P.] has made a mistake. He don't know his business anyhow.") 
 
 And see 18 Halsbury's Laws of I-:ngland, 687, note (i) (1911) ; 25 Cyc. 393, 
 note 34: Key So. "Libel and Slander," § 44.
 
 702 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 Verdict for the defendant. 
 
 AldErson, B. I hope it will be understood that this verdict is 
 founded on the fact that this letter was a confidential communication. 
 The Foreman of the Jury : My Lord, that is so. 
 
 "THE COUNT JOANNES" v. BENNETT. 
 
 (Supreme Judicial Court of Massachusetts, 1862. 5 Allen, 169, 81 Am. 
 
 Dec. 738.) 
 
 Tort brought in the name of "The Count Joannes (born 'George 
 Jones')" for two libels upon him contained in letters to a woman to 
 whom he was then a suitor, and was afterwards married, endeavor- 
 ing to dissuade her from entering into the marriage. 
 
 At the trial it appeared that the defendant had' for several years 
 held the relation of pastor to the parents of the woman, as members 
 of his church, and to the daughter, as a member of his choir; and 
 there was evidence tending to shew that he was on the most intimate 
 terms of friendship with the parents, and that, being on a visit from 
 his present residence in Lockport, New York, he called upon the 
 father at his place of business in Boston, and was urged by him to 
 accompany him to his residence in South Boston, the father stating 
 that both he and his wife were in great distress of mind and anxiety 
 about their daughter, and that they feared she would engage herself 
 in marriage to the plaintiff. On their way to South Boston, the father 
 stated to the defendant what he and his wife had heard and appre- 
 hended about the plaintiff, and their views with regard to his being 
 a suitable match for their daughter, who, with a young child by a 
 former husband, was living with them. On reaching the house it 
 was found that the daughter had gone out ; and it was then arranged 
 that the defendant should write a letter, and materials for that pur- 
 pose were furnished and the letter set forth in the first count was 
 written, addressed to the daughter, and left open and unsealed with 
 the mother, after the principal portion of it had been read aloud at 
 the tea-table in the presence of the parents and a confidential friend 
 of the family. On leaving, the defendant was further requested to 
 do what he thought best to induce the daughter to break up the 
 match. * * * 
 
 The judge ruled that neither of the letters was a privileged com- 
 munication ; and a verdict was returned for the plaintiff. The de- 
 fendant alleged exceptions. 
 
 BiGDLOW, C. J. The doctrine that the cause or occasion of the pub- 
 lication of defamatory matter may afford a sufficient justification in an 
 action for damages, has been stated in the form of a legal rule or 
 canon, which has been sanctioned by high judicial authority. The 
 statement is this: A communication made bona fide upon any subject
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 703 
 
 matter in which the party communicating has an interest, or in refer- 
 ence to which he has a duty to perform, is privileged, if made to a 
 person having a corresponding interest or duty, although it contains 
 defamatory matter, which without such privilege would be libellous 
 and actionable. It would be difficult to state the result of judicial de- 
 cisions on this subject, and of the principles on which they rest, in a 
 more concise, accurate and intelligible form. Harrison v. Bush [1855], 
 5 El. & Bl. 344, 348; Gassett v. Gilbert [1856], 6 Gray, 94, and cases 
 cited. 
 
 It seems to us very clear that the defendant in the present case 
 fails to show any facts or circumstances in his own relation to the 
 parties, or in the motives or inducements by which he was led to 
 write the letter set out in the first count of the declaration, which 
 bring the publication within the first branch of this rule. He certainly 
 had no interest of his own to serve or protect in making a communica- 
 tion concerning the character, occupation and conduct of the plaintiff, 
 containing defamatory or libellous matter. It does not appear that 
 the proposed marriage which the letter written by the defendant was 
 intended to discountenance and prevent, could in any way interfere 
 with or disturb his personal or social relations. It did not even involve 
 any sacrifice of his feelings or injury to his affections. The person to 
 whom the letter was addressed was not connected with him by the ties 
 of consanguinity or kindred. It is not shewn that he had any peculiar 
 interest in her welfare. Under such circumstances, without indicating 
 the state of facts which might afford a justification for the use of 
 defamatory words, it is plain that the defendant held no such relation 
 towards the parties as to give him any interest in the subject matter 
 to which his communication concerning the plaintiff related. Todd v. 
 Hawkins, 2 M. & Rob. 20 ; s. c, 8 C. & P. 88. No doubt, he acted 
 from laudable motives in writing it. But these do not of themselves 
 afford a legal justification for holding up the character of a person 
 to contempt and ridicule. Good intentions do not furnish a valid 
 excuse for violating another's rights, or give impunity to those who 
 cast unjust imputations on private character. 
 
 It is equally clear that the defendant did not write and publish the 
 alleged libellous communications in the exercise of any legal or moral 
 duty. He stood in no such relation towards the parties as to confer 
 on him a right or impose on him an obligation to write a letter con- 
 taining calumnious statements concerning the plaintiff's character. 
 Whatever may be the rule which would have been applicable under 
 similiar circumstances while he retained his relation of religious 
 teacher and pastor towards the person to whom this letter in question 
 was addressed, and towards her parents, he certainly had no duty rest- 
 ing upon him after that relation had terminated. He then stood in no 
 other attitude towards the parties than as a friend. His duty to ren- 
 der them a service was no greater or more obligatory than was his
 
 704 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 duty to refrain from uttering and publishing slanderous or libellous 
 statements concerning another.^^ 
 
 It is obvious that if such communications could be protected merely 
 on the ground that the party making them held friendly relations to 
 those to whom they were written or spoken, a wide door would be left 
 open by which indiscriminate aspersion of private character could 
 escape with impunity. Indeed it would rarely be difficult for a party 
 to shelter himself from the consequences of uttering or publishing a 
 slander or libel under a privilege which could be readily made to em- 
 brace almost every species of communication. The law does not 
 tolerate any such license of speech or pen. The duty of avoiding the 
 use of defamatory words cannot be set aside except when it is essen- 
 tial to the protection of some substantial private interest, or to the 
 discharge of some other paramount and urgent duty. It seems to us, 
 therefore, that on the question of justification set up by the defendant 
 under a supposed privilege which authorized him to write the letter 
 set out in the first count, the instructions of the court were cor- 
 rect. * * * ^* 
 
 23 "The letter does not appear to have been written in answer to any pre- 
 vious inquiry, but to have been voluntarily written. And it has lieen said 
 that, where the matter is not of great or immediate imiwrtance, interference 
 may be considered officious and meddlesome, although, if the party had been 
 applied to, it would clearly have been his duty to give all the information 
 he could ; and an answer to a confidential inquiry njay be privileged, where 
 the same information, if volunteered, would be actionable. * * * As has 
 been well said, 'Although the defendant may feel sure that if he were in his 
 neighbor's place, he should be most grateful for the information conveyed, 
 still he must recollect that it niay eventually turn out that in endeavoring 
 to avert a fancied injuiy to that neighbor, he has really infiicted an lui- 
 doubted and undeserved injury on the plaintiff.' " Per Robinson, .J., in Sam- 
 ples V. Carnahan (1S9S) 21 Ind. App. 55, 58, 51 N. E. 425, 426, quoting from 
 Odgers, Liliel & Slander (2d Ed.) 216. 
 
 Compare: Byam v. Collins (1S88) 111 N. Y. 14.3, 19 N. E. 75, 2 L. R. A. 
 129. 7 Am. St. Rep. 726: (P. was paying attention to Dora with a view to 
 matrimony. D. voluntarily wrote Dora a letter making defamatory charges 
 against P. Until three months before, D. and Dora had long been very in- 
 timate friends, then they became somewhat estranged and their intimacy 
 ceased. About four years before this letter, and when they were still close 
 friends, Dora often requested D., "if she knew anything about any youug 
 man she went with, or in fact any young man in the place, to tell her." Dora 
 was not then contemplating maiTiage with any young man, and did not know 
 P. The letter, referring to this former friendship and the writer's continu- 
 ing affection for Dora, declared: "I have decided to hold my peace no lon- 
 ger, feeling that if I do and your life is wrecked (as it is sure to be if you 
 marry or have further acquaintance with that man) I shall in some way be 
 responsible for it, inasnuich as I neglect to do my duty." 
 
 24 The statement of facts is abridged and part of the opinion, dealing with 
 a second count, is omitted. Foi" error in the admission of evidence relat- 
 ing to the second count, a new trial was granted.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 705 
 
 WALLER V. LOCH. 
 (In the Court of Appeal, 1881. 7 Q. B. Div. 619.) 
 
 Action for libel. At the trial before Grove, J., it appeared that the 
 defendant was the Secretary of the Charity Organisation Society, one 
 of the objects of which as stated in its circulars to be "the improve- 
 ment of the condition of the poor by securing due investigation and 
 fitting action in all cases and by repressing mendicity." The society 
 consisted of a federation of local district committees, and by one of 
 its circulars it is stated that the inhabitants of each district, whether 
 subscribers or not, are invited to refer to the committee all cases of 
 applicants for charitable relief which require investigation. "If re- 
 quested so to do it communicates the result of such investigation to the 
 person desiring inquiry, and should he wish to undertake the case 
 leaves it in his hands. In the absence of such wish the committee 
 deals with each case to the best of its judgment and ability." 
 
 The plaintiff was the daughter of a deceased officer in the army 
 and was in distressed circumstances. A lady interested herself in ob- 
 taining subscriptions to make some provision for her, and obtained 
 promises of contributions to a considerable amount. Another lady 
 who was interested in the case applied to the society for information. 
 The society communicated to her an unfavourable report on the case, 
 which by their permission she communicated to the other lady. In 
 consequence of this report the plaintiff lost the benefit of the subscrip- , 
 tions. She therefore commenced this action against the defendant, the 
 secretary of the society. 
 
 The learned judge held the communication privileged, and left to 
 the jury the question whether there was express malice. The jury 
 found for the defendant. A rule for a new trial on the ground of mis- 
 direction and that the verdict was against the evidence was refused by 
 the Divisional Court. The plaintiff appealed. 
 
 Brett, L. J. The jury having found that there was no express 
 malice, a finding, the correctness of which I see no reason to doubt, 
 then, if the communication was privileged it is immaterial whether 
 the justification that the alleged libel was true can be supported or not. 
 I agree that the communications were privileged. I think that the 
 definition by Blackburn, J., in Davies v. Snead, Law Rep. 5 Q. B. 608, 
 611, is the best, it leaves out all misleading words, saying nothing 
 about "duty," and states in plain terms what I conceive to be the true 
 rule.'^ Then do the facts of this case bring it within the rule? It 
 
 25 The "definition by Blackburn, J., In Davis v. Snead" (1870) L. R. 5 Q-.^ 
 B. tJOS, Gil, as quoted in the concurring opinion of Jessel, M. R., was as fol- "^ 
 lows: "Where a person is so situated that it becomes right in the interests 
 of society that he should tell to a third person certain facts ; then if he, bona 
 tide and without malice, does tell thoni, it is a privileged communication." 
 
 See the approval of this by Andrews, J,, in Moore v. Banlv (1S90) 123 N. 
 
 Hepb, Torts — 45
 
 706 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 seems to me that they do, if the defendant reasonably believed that the 
 question was asked in order to enable the questioner to decide whether 
 relief should be given or should be continued to be given. It is not 
 material whether the information was really wanted for that purpose 
 or not, it is enough if the defendant reasonably supposed the question- 
 er to be asking it for that purpose. He could not reasonably suppose 
 that the question was asked for any other purpose, and that being so, 
 I think it was right and for the benefit of society that he should an- 
 swer it. If a person who is thinking of dealing with another in any 
 matter of business asks a question about his character from some one 
 who has means of knowledge, it is for the interests of society that the 
 question should be answered, and if answered bona fide and without 
 malice, the answer is a privileged communication. 
 Judgment for the defendant. 
 
 FLANAGAN v. McLANE. 
 
 (Supreme Court of Errors of Connecticut. 1913. 87 Conn. 220, 87 Atl. 727.) 
 
 Action for libel and slander. Verdict for the defendant. The 
 plaintifif appeals from the denial of his motion to set aside the verdict 
 as against the evidence. 
 
 Beach, J. The complaint contains three separate counts in libel 
 and one in slander. The plaintiff and his helper worked in and about 
 the house of the defendant's husband for some weeks. During this 
 time a sum of money was missed which afterwards reappeared. W' hile 
 the money was missing the defendant wrote the letter set forth in the 
 first count to one Sturtze, a constable of the town of Hamden, in- 
 forming him of the loss and of her belief that tjie plaintiff had taken 
 it. She had already written a similar letter, set forth in the fourth 
 count, to the mother of the plaintiff's helper. After the money re- 
 appeared the defendant again wrote to Sturtze the letter which is the 
 basis of the second count, saying in eft'ect that the money had been 
 found in a place where she had never put it and that she would do no 
 more about the matter, but was satisfied that the plaintiff had taken 
 it and brought it back again when he found that he was suspected. 
 The third count of the complaint is in slander. The defendant's an- 
 swer denied the allegations of the third count, admitted the authorship 
 of the letters, and pleaded privilege and want of malice as to each. 
 
 The law implies malice from a libelous publication, except in cer- 
 tain cases of privilege, one of which is "when the author and pub- 
 
 Y. 420, 424, 25 N. E. 1048, 11 L. R. A. 753; and by liddon, J., in Coogler v. 
 Rhodes (1896) 38 Fla. 240, 248, 21 South. 109, 112, 5U Am. St. Rep. 170, 175: 
 "This definition is considered more exact in leaving out the word 'dUty,' be- 
 cause it is privileged in the interests of society for a man to bona fide and 
 without malice say those things which no positive legal duty may make it 
 obligatory upon him to say."
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 707 
 
 lislier of the alleged slander acted in the bona fide discharge of a 
 public or private duty or in the prosecution of his own right or inter- 
 est." * * * 
 
 We think that the letter set forth in the second count, although writ- 
 ten after the money was found, must be dealt with as a part of the 
 whole correspondence between the defendant and the officer. It is not 
 very seriously disputed that the first letter to Sturtze, written before 
 the money was found, is, on the facts pleaded, a privileged communica- 
 tion. Sturtze was a constable, and the defendant appealed to him to 
 investigate her loss with a view to get "evidence and threaten them 
 with arrest." She w^as concerned more with using the law in terrorem 
 than with the punishment of the supposed thief. Then when the 
 money w^as found she again writes the officer telling him that it is 
 found, but in a place where she never put it ; that she will do no more 
 about the matter; and that she is still satisfied that the plaintiff took 
 it and brought it back again. Clearly this second letter w^ould never 
 have been written except for the first. The defendant w^as in a way 
 bound to let the officer know that the money had been found, and if 
 she said no more her letter would be taken as an admission that her 
 former suspicions were mistaken. We think, under these circum- 
 stances, that the defendant in writing to an officer already engaged in 
 investigating the loss was legally entitled, if acting honestly and with- 
 out malice, to reaffirm her belief in the plaintiff's guilt for the guidance 
 of the officer in case it was or might become his duty to pursue the 
 investigation wath a view to criminal proceedings. There is no error.^* 
 
 MACKINTOSH et al. v. DUN et al. 
 (Judicial Committee of the Privy Council. [1908] App. Cas. 390.) 
 
 This is an appeal from a decision of the High Court of Australia, 
 pronounced on cross-appeals from the orders of the Full Court of 
 New South Wales. The action was for libel. It was tried before 
 Cohen, J., and a jury. The question was whether the occasion of the 
 publication of the two libels, which were of and concerning the ap- 
 pellants in relation to their business, was privileged. They were con- 
 tained in two reports in writing, published to a firm of Holds worth, 
 Macpherson & Co. 
 
 The case for the appellants was that the libels consisted partly of 
 the repetition of alleged rumours and partly of defamatory statements 
 put forward as being within the respondent's own knowledge, and the 
 general purport and eft'ect of them was that the appellants were per- 
 sons with whom it was not wise to do business in the ordinary way, 
 or upon the ordinary terms of credit ; that they had concealed an im- 
 
 86 Parts of tbe opinion are omitted.
 
 708 T'ORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 portant change in the constitution of their firm in order to give their 
 business a fictitious appearance of financial stabiHty ; that the appel- 
 lant James Mackintosh was commonly and correctly reported to be 
 living beyond his means, and to possess habits and tastes which were 
 likely to bring the appellants and their business rapidly into a state 
 of insolvency; that the business was grossly mismanaged; and that 
 the appellants were persons without personal resources or assets, ex- 
 cept book-debts and a stock that was greatly depreciated, and were 
 heavily in debt and unable to meet their current business liabilities 
 and engagements, which included a heavy overdraft on their account 
 with their bankers, and were struggling with severe financial diffi- 
 culties which would probably end in disaster. 
 
 At the close of the appellants' case before Cohen, J., it was submit- 
 ted that the appellants should be nonsuited on the ground that the oc- 
 casion of the publication by the respondents to Holdsworth, Macpher- 
 son & Co. of the two reports was privileged and that there was no evi- 
 dence of express malice to go to the jury. The respondents did not 
 deny the fact of publication, nor that the two reports contained de- 
 famatory matter of and concerning the appellants in relation to their 
 business. The trial judge ruled that the occasion was not privileged 
 and so directed the jury. But with a view to a possible appeal against 
 his ruling on the question of privilege the learned judge left to the 
 jury two questions on the subject of malice: 
 
 1. Did the defendants in distributing the reports act from a sense of 
 duty or from some indirect or improper motive? 
 
 2. Did the defendants distribute the repoi'ts recklessly, not caring whether 
 they were true or false? 
 
 In reply the jury found that the respondents acted from a sense of 
 duty to their own subscribers, and that they exercised care as far as 
 possible. The plaintiffs obtained a verdict for £800. 
 
 The trial judge held that the plea of privilege was bad. The Full 
 Court ruled that the occasion was privileged, and directed a new trial. 
 The High Court held that the occasion was privileged and that judg- 
 ment should be entered for the respondents. Thereupon an appeal 
 by special leave, limited to the question of privilege, was obtained to 
 the Privy Council.^ ^ 
 
 The judgment of their Lordships was delivered by 
 
 Lord Macnagiiten. * * * ^\^q question, and the only ques- 
 tion on the present appeal, is whether the occasion on which the libels 
 were published was or was not a privileged occasion. 
 
 The plaintiffs are wholesale and retail ironmongers in Sydney. 
 The defendants (as their acting manager in Sydney stated in an affi- 
 davit filed in the action) carry on the business of a trade protective 
 society "in almost all parts of the civilized world" under the name of 
 "The Mercantile Agency." That business, as the acting manager ex- 
 
 27 The statement of facts has been slightly abridged and part of the opin- 
 ion is omitted.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 709 
 
 plained, "consists in obtaining information with reference to the com- 
 mercial standing and position of persons" in the state of New South 
 Wales "and elsewhere and in communicating such information con- 
 fidentially to subscribers to the agency in response to specific and con- 
 fidential inquiry on their part." He stated further that all requests 
 for information directed to the agency by their subscribers are in the 
 
 following form : 
 
 "Subscriber's Ticket. 
 "The Mercantile Agency. R. G. Dun and Co. 
 
 "Give us in confidence and for our exclusive use and benefit in our busi- 
 ness, viz., that of aiding us to determine the propriety of giving credit, what- 
 ever information you have, respecting the standing, responsibility, &c., of — 
 
 "Aame 
 
 "Business 
 
 "Address 
 
 "Subscribers to sign the above themselves, 
 
 "Subscriber." 
 
 The law with regard to the publication of information injurious to 
 the character of another is well settled. The difficulty lies in apply- 
 ing the law to the circumstances of the particular case under consid- 
 eration. In Toogood V. Spy ring,-* Parke, B., delivering the judgment 
 of the Court of Exchequer, says : "The law considers such publica- 
 tion as malicious, unless it is fairly made by a person in the discharge 
 of some public or private duty, whether legal or moral, or in the con- 
 duct of his own affairs in matters where his interest is concerned. In 
 such cases the occasion prevents the inference of malice, which the law 
 draws from unauthorized communications, and affords a qualified de- 
 fence depending on the absence of actual malice. If fairly warranted 
 by any reasonable occasion or exigency, and honestly made, such com- 
 munications are protected for the common convenience and welfare 
 of society, and the law has not restricted the right to make them with- 
 in any narrow limits." 
 
 That passage, which, as Lindley, L. J., observes,^® is frequently 
 cited, and "always with approval," not only defines the occasion which 
 protects a communication otherwise actionable, but enunciates the 
 principle on which the protection is founded. The underlying princi- 
 ple is "the common convenience and welfare of society" — not the con- 
 venience of individuals or the convenience of a class, but, to use the 
 words of Erie, C. J., in Whiteley v. Adams,^** "the general interest of 
 society." 
 
 Communications injurious to the character of another may be made 
 in answer to inquiry or may be volunteered. If the communication 
 be made in the legitimate defence of a person's own interest, or plain- 
 ly under a sense of duty such as would be "recognized by English peo- 
 
 28 1 C, M. & R. 181, 193, 40 R. R, 523 (1S34). 
 
 29 [1891] 2 Q. B, 346, 
 
 8 15 c. B. N. S. 392, 418 (1SG3).
 
 710 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 pie of ordinary intelligence and moral principle," ^^ to borrow again 
 the language of Lindley, L. J., it cannot matter whether it is volun- 
 teered or brought out in answer to an inquiry. But in cases which are 
 near the line, and in cases which may give rise to a difference of opin- 
 ion, the circumstance that the information is volunteered is an element 
 for consideration certainly not without some importance. 
 
 In deference, therefore, to the views of the learned judges of the 
 High Court, the first question would seem to be, under which category 
 does the communication now in question properly fall? No doubt 
 there was a specific request. In response to that request the communi- 
 cation was made. That much is clear. But it is equally clear that the 
 defendants set themselves in motion and formulated and invited the 
 request in answer to which the information complained of was pro- 
 duced. The defendants, in fact, hold themselves out as collectors 
 of information about other people which they are ready to sell to their 
 customers. It cannot matter whether the customer deals across the 
 counter, so to speak, just as and when the occasion arises, or whether 
 he enjoys the privilege of being enrolled as a subscriber and pays the 
 fee in advance. 
 
 If, then, the proprietors of the Mercantile Agency are to be re- 
 garded as volunteers in supplying the information which they profess 
 to have at their disposal, what is their motive? Is it a sense of duty? 
 Certainly not. It is a matter of business with them. Their motive is 
 self-interest. They carry on their trade, just as other traders do, in 
 the hope and expectation of making a profit. 
 
 Then comes the real question : Is it in the interest of the commu- 
 nity, is it for the welfare of society, that the protection which the law 
 throws around communications made in legitimate self-defense, or 
 from a bona fide sense of duty, should be extended to communications 
 made from motives of self-interest by persons who trade for profit 
 in the characters of other people ? The trade is a peculiar one ; still 
 there seems to be much competition in it ; and in this trade as in most 
 others, success will attend the exertions of those who give the best 
 value for money and probe most thoroughly the matter placed in their 
 hands. There is no reason to suj>pose that the defendants generally 
 have acted otherwise than cautiously and discreetly. But information 
 such as that which they offer for sale may be obtained in many ways, 
 not all of them deserving of commendation. It may be extorted from 
 the person whose character is in question, through fear of misrepre- 
 sentation or misconstruction if he remains silent. It may be gathered 
 from gossip. It may be picked up from discharged servants. It may 
 be betrayed by disloyal employees. It is only right that those who 
 engage in such a business, touching so closely very dangerous ground, 
 should take the consequences if they overstep the law. 
 
 32 
 
 81 [1S91] 2 Q. B. 350. 
 
 82 Accord: Pacific Packing Co. v. Bradstreet Co. (1914) 25 Idaho, 69G, 139 
 i'ac. 1007, 51 L. K. A. (iN, S.) 893, wliere this passage is quoted as giviiiij whole-
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 711 
 
 It may not be out of place to recall the striking language of Knight 
 Bruce, V. C.,^^ in reference to a somewhat similar subject. The ques- 
 tion before him was the propriety of enforcing disclosure of commu- 
 nications between a client and his legal advisers. "The discovery and 
 vindication and establishment of truth," his Honour says, "are main 
 purposes certainly of the existence of Courts of justice; still, for the 
 obtaining of these objects, which, however valuable and important, 
 cannot be usefully pursued without moderation, cannot be either use- 
 fully or creditably pursued unfairly or gained by unfair means, not 
 every channel is or ought to be open to them. * * * Truth, like all 
 other good things, may be loved unwisely — m.ay be pursued too keenly 
 — may cost too much." And then he points out that the meanness and 
 the mischief of prying into things which are regarded as confidential, 
 with all the attending consequences, are "too great a price to pay for 
 truth itself." 
 
 It seems to their Lordships, following out this train of thought, that, 
 however convenient it may be to a trader to know all the secrets of 
 his neighbour's position, his "standing," his "responsibility," and what- 
 ever else may be comprehended under the expression "et cetera," yet, 
 even so, accuracy of information may be bought too dearly — at least 
 for the good of society in general. 
 
 It is admitted that in this country there is no authority directly in 
 point. There are direct authorities in the United States in favour of 
 the conclusion at which the High Court has arrived. American au- 
 thorities are, no doubt, entitled to the highest respect. But this is a 
 question that must be decided by English law. In the dearth of Eng- 
 lish authority it seems to their Lordships that recourse must be had 
 to the principle on which the law in England on this subject is 
 founded. With the utmost deference to the learned judges of the 
 High Court, their Lordships are of opinion that the decision under 
 appeal is not in accordance with that principle.^* 
 
 Their Lordships will therefore humbly advise His Majesty that the 
 orders appealed from should be discharged and the judgments of the 
 Full Court reversed, with costs in both Courts, including the costs of 
 
 some doctrine applicable to the case at bar. The question in the Idaho case 
 arose on demurrer to a complaint which is set forth at length and held suf- 
 ficient. 
 
 33 In Pearse v. Pearse (1846) 1 De G. & Sm. 12, 28, 63 Reprint, 950, 957, 
 75 R. R. 4, 16. 
 
 3 4 On the theory that business welfare demands that a Icnowledge of the 
 financial and ijersonal trustworthiness of business concerns be readily as- 
 certainable, American courts have protected commercial agencies which have 
 transmitted communications, confidentially and in good faith, to a customer 
 having an interest in the siibject matter and requesting information. Orms- 
 by V. Douglass (ISGS) 37 N. Y. 477. But information which is volunteered, a 
 general report, for instance, sent out to subscribers, has been held not priv- 
 ileged. Douglass V. Daisley (1902) 114 Fed. 628, 52 C. C. A. 324, 57 h. li. A. 
 475 ; King v. Patterson (1887) 49 N. J. Law, 417, 9 Atl. 705, 60 Am. Rep. 622. 
 
 See 25 Cyc. 396, and cases cited in notes 49, 50.
 
 712 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 the cross-appeals, and that any costs already paid by the appellants to 
 the respondents should be repaid by the latter. 
 The respondents will pay the costs of the appeal. 
 
 (3) Coniinunication in Protection of a Private Intei'est 
 
 McDOUGALL v. CLARIDGE. 
 (At Nisi Prius, Adjourned Sittings in Loudon, ISOS. 1 Camp. 267.) 
 
 This was an action for a libel on the plaintiff in his profession as a 
 solicitor. Plea, the general issue. 
 
 The libel set out in the declaration was contained in a letter written 
 by the defendant to Messrs. Wright and Co., bankers at Nottingham, 
 and charged the plaintiff with improper conduct in the management of 
 their concerns. It appeared, however, that the letter was intended as 
 a confidential communication to these gentlemen, and that the defend- 
 ant was himself interested in the affairs which he supposed to be mis- 
 managed by the plaintiff. After the case had been opened by the 
 plaintiff's counsel, — 
 
 Lord Ellicnbokougii '^ said, if the letter had been written by the 
 defendant confidentially, and under an impression that its statements 
 were well founded, he was clearly of opinion that the action could not 
 be maintained. It was impossible to say that the defendant had ma- 
 liciously pul3lished a libel to aggrieve the plaintiff, if he was acting 
 bona fide, with a view to the interests of himself and the persons 
 whom he addressed ; and if a communication of this sort, which was 
 not meant to go beyond those immediately interested in it,^® were the 
 subject of an action for damages, it would be impossible for the affairs 
 of mankind to be conducted. * * * 
 
 The Attorney General, for the defendant, said that his client at the 
 time of writing the letter was certainly impressed with a belief of the 
 truth of the charges it contained, but had since seen reason to believe 
 they were groundless. He therefore consented to withdraw a juror. 
 
 3 5 Part of the opinion is omitted. 
 
 88 In Pearson v. Lcmaitre (1S43) 5 Man. & G. 700, 710, counsel in argument 
 quoted a remarli by Holroyd, J., in Fairman v. Ives (1822) 5 B. & A. G42: 
 "In the case of a confidential communication made between friends, to pre- 
 vent an injury, and not for the purpose of slandering, the occasion justifies 
 the act." Thereuiwn Cresswell, J., made this comment: "That must mean 
 a communication to some friend upon some subject in which he is interested." 
 And see Lord Esher's comment in Hebditch v. Macllwaine (15i94) 2 Q. B. 54, 61.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 713 
 
 COOK V. GUST. 
 (Supreme Court of Wisconsin, 1914. 155 Wis. 594, 145 X. W. 225.) 
 
 This was an action for slander, by Cook against Gust. It was 
 charged in the complaint that the defendant stated to one Lewer and 
 his wife and son that plaintiff set fire to a certain cheese factory and 
 burned it. The answer set forth facts tending to show that any com- 
 munications made by defendant to Lewer were privileged. After the 
 factory burned, the farmers in the vicinity decided to erect a new one, 
 and some meetings were had between the proposed stockholders to 
 make the necessary arrangements. At these meetings the advisability 
 of not taking in the plaintiff was discussed, and he was left out ap- 
 parently because he had caused. considerable trouble while he was a 
 member of the old company, and because there was a strong suspicion 
 that he had burned the old factory because of such trouble. Lewer 
 was a newcomer, and it was the purpose of the promoters of the new 
 scheme to interest him in it. 
 
 The plaintiff's evidence tended to show tliat the alleged slanderous 
 words were spoken to Lewer at or near his house, and that the latter 
 then called his wife and 14 year old son to the place where he and 
 defendant were talking and requested the defendant to repeat the 
 statement in their presence, which he did. There was no evidence 
 tending to show malice. The jury returned a general verdict for the 
 defendant. The plaintiff appeals. 
 
 Barne;s, J.^'^ * * ik 3 'pj-jg principal contention of the appel- 
 lant is that the following instruction given to the jury was erroneous 
 and prejudicial: 
 
 "If you find that Mr. Gust spoke to Mr. Lewer on April 8, 190S, concerning 
 Mr. Cook, and that such words were spoken to him as one who was interested 
 in this factory under such circumstances that they would be privileged under 
 the rules just given you, tlien the fact, if such be the fact, that Mrs. Lewer 
 and her son heard what Mr. Gust said does not, standing alone, take tlie case 
 out of the privilege, if you find that their presence could not have been avoid- 
 ed by Mr. Gust, or if you find that they happened to be present in the usual 
 course of the business affairs in which Mrs. Lewer and her son were tlieu 
 engaged." 
 
 It is not claimed that the alleged statement made to Lewer was not 
 qualifiedly privileged as to him under the circumstances under which 
 it was made, but it is urged that it was not so privileged as to the wife 
 and son. The portion of the instruction which advised the jury that 
 they might find the communication privileged if satisfied that the pres- 
 ence of Mrs. Lewer and the son "could not have been avoided" should 
 not have been given, because there was no evidence which warranted 
 its submission. It is perfectly obvious to any one that their presence 
 could have been avoided. That fact must have been apparent to the 
 jury, and it is altogether improbable that they found for the defendant 
 
 37 The statement of facts is abridged and parts of the opinion are omitted.
 
 714 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 because of this part of the instruction, when there were other legiti- 
 mate grounds on which the conclusions reached might be arrived at. 
 The error committed in giving this part of the charge was not prej- 
 udicial under section 3072m, Stats. 
 
 The only other portion of the charge complained of is that by which 
 the jury were informed that they might find the communication privi- 
 leged if the wife and boy were "present in the usual course of the 
 business affairs" in which they were then engaged. At the time of 
 the alleged conversation Lewer had been invited to become a stock- 
 holder in the new corporation and was considering the matter. It was 
 planned to leave Cook out, and, if not actuated by malice, the defend- 
 ant might state the reasons which led him to believe that Cook should 
 be left out. It is probably a very general custom for farmers to con- 
 sult their wives and members of theii- family when they are about to 
 engage in a new business enterprise of some importance. Where this 
 practice is pursued, such communication as was here made is privi- 
 leged as to the other members of the family as well as the husband, 
 assuming that it is made in good faith and not from malicious motives. 
 
 What the court did in substance in the 'instant case was to permit 
 the jurors to decide whether or not it was a matter of common knowl- 
 edge that farmers counseled and advised' with their wives in reference 
 to business transactions of this nature.^® Had the court so instructed 
 
 3 8 Accord: Chambers v. Leiser (1906) 43 Wash. 285, 86 Pac. 627, 10 Ann. 
 Cas. 270: (Defamatory statement in a letter from D., a stockholder, to S., an- 
 other stockholder, with reference to the conduct of P., an officer in the cor- 
 poration.) 
 
 Broughton v. McGrew (C. C, 1889) 39 Fed. 672, 5 L. R. A. 406: (In a meet- 
 ing of the stockholders of a railway company, D., a stockholder, said of I'., 
 the general manager of the company: "He has been drunk frequently, and 
 you can't expect his subordinates to remain sober when he furnishes them 
 such an example. * * * i am reliably informed that he is unfit to do 
 business.") 
 
 Trimble v. Morrish (1908) 152 Mich. 624, 116 N. W. 451, 16 L. R. A. (N. S.) 
 1017: (Defamatory statement by D.. a druggist, to S., a physician, about P., 
 a young woman in charge of S.'s office. It appeared that S. and D. had an 
 agreement that the foi-mer would send all his prescriptions to D.'s store, and 
 that D. would pay part of S.'s office rent.) 
 
 Jarvis v. Hatheway (ISOS) 3 Johns. (N. Y.) 180, 3 Am. Dec. 473: (In a 
 church meeting, in the regular course of church discipline, "pursuant to the 
 precept in the eighteenth chapter of the evangelist Matthew," D. charged P. 
 with forgery.) 
 
 Cadle V. Mcintosh (1912) 51 Tnd. App. 365, 99 N. E. 779: (D., a member of 
 a Knights of Pythias lodge, said of P., who was seelcing admission to the 
 lodge, that he was a thief, a drunkard, and a gambler. All those to whom 
 the charge was made belonged to the order of the Knights of Pvthias.) 
 
 Ilayden v. Hasbrouck (1912) 34 R. I. 556, 84 Atl. 1087, 42 L. R. A. (N. S.) 
 1109: (D., who was president of a state federation of women's clubs and 
 a director in a subordinate clul», in conference witli other officers of this club, 
 with reference to thefts which had been committed at its meetings, expressed 
 her belief that P., a member of the club, was the guilty person.) 
 
 But compare Peak v. Taubman (1913) 251 Mo. 390, 158 S. W. 656: (D., the 
 president of a bank, chanced to meet on a train one W., who had been a 
 bookkeeper in D.'s bank, and D., in casual conversation with W., said to him 
 that P., who also had been a bookkeeper in D.'s bank, had while boolikeei>ex*
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 715 
 
 the jury as a matter of law, we would hesitate to hold that the instruc- 
 tion was wrong. This being so, we cannot hold that it was error to 
 submit the question to the jury. * * * 
 Judgment affirmed. 
 
 DELANY V. JONES. 
 
 (At Nisi Prius, Sittings after Term at Westminster, 1803. 4 Esp. 191.) 
 
 This was an action on the case, for a libel. Plea of Not Guilty. 
 The declaration stated that the defendant, who then carried on the 
 business of a stationer, intending to charge the plaintiff with the crime 
 of bigamy, and to bring him into danger of legal punishment, pub- 
 lished the false and malicious libel following; that is to say, 
 
 '"Ten Guineas Reward: Wliereas, by a letter lately received from the 
 West Indies, an event is stated to be announced by a newspaper, tliat can 
 only be investigated by these means: This is to request, that if any printer, 
 or other person, can ascertain that James Delany, Esq. [the plaintiff], some 
 years since residing at Cork, late Lieutenant in the North Lincoln Militia, 
 was married previous to nine o'clock in the morning of the 10th of August, 
 
 1799, they will give notice to Jones [the defendant]. No. 14, Duke Street, 
 
 St. James's, and they shall receive the reward." 
 
 There was an innuendo that the defendant meant thereby to insin- 
 uate, and to be understood, that the said plaintiff' had been, and was 
 married before the time mentioned in the advertisement, and had an- 
 other wife then living; he being then married to one Elizabeth Wes- 
 ton, his present wife. 
 
 The defence relied upon and given in evidence was that this adver- 
 tisement had been inserted by the authority of the plaintiff''s wife, for 
 the purpose of making a discovery which was important for her to 
 know, namely, Whether the plaintiff had another wife living? That 
 beside this, from the terms of the advertisement, no direct slander was 
 conveyed; without which there could be no libel. The advertisement 
 might be to discover an heir, the legrtimacy of a person, or for such 
 like purpose ; which would not be a libel. 
 
 It was answered by Erskine, of counsel for the plaintiff. That, to 
 constitute a libel, it was not necessary that the libel should be appar- 
 ent to all the world. If a man sends an advertisement to a newspaper 
 so wrapped up, that, though not intelligible to the bulk of mankind, 
 it is so to minds more intelligent, still it was a libel ; and that the libel- 
 lous tendency of this advertisement could not be mistaken. 
 
 Lord Ellenborough, in summing up to the jury, said. This paper 
 is relied upon as necessarily carrying with it the imputation that the 
 plaintiff was guilty of bigamy. You must be of opinion that it does 
 carry such imputation, before you can find a verdict for the plain- 
 forged checks on the bank. W.'s business relations with the bank had ter- 
 minated before I'.'s alleged forgeries had been discovered, nor were they now 
 under investigation by the bank.)
 
 716 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 tifif, as that meaning is necessary to make the paper a Hbel at all. The 
 plaintiff's counsel contend, that you are to talce into your considera- 
 tion only, whether the advertisement conveys a libellous charge against 
 the plaintiff or not? I am of a different opinion: I conceive the law 
 to be. That though that which is spoken or written may be injurious 
 to the character of the party, yet if done bona fide, as with a view of 
 investigating a fact, in which the party making it is interested in it, 
 is not libellous. If therefore this investigation was set on foot, and 
 this advertisement published by the plaintiff's wife, either from anxiety 
 to know, Whether she was legally the wife of the plaintiff or, Wheth- 
 er he had another wife living when he married her, though that is 
 done through the medium of imputing bigamy to the plaintiff, it is 
 justifiable; but in such a case, it is necessary for the defendant who 
 publishes the libel, to shew that he published it under such authority, 
 and with such a view. The jury are therefore first to say. Whether 
 the advertisement imputes a charge of bigamy to the plaintiff; and 
 if they think it does, then to enquire. Whether the libel was published 
 with a view, by the wife, of fairly finding out a fact respecting her 
 husband, in which she was materially interested. If it was so, the 
 publication is not a libel ; and the defendant is entitled to a verdict. 
 The jury found a verdict for the defendant. 
 
 SOMERVILLE v. HAWKINS. 
 
 (Court of Common Pleas, 1851. 10 C. B. 583, 84 R. R. 709.) 
 
 This was an action upon the case for slander. The first count of 
 the declaration stated that the defendant, in a certain discourse had 
 of and concerning the plaintiff, in the presence and hearing of John 
 Jones and Thomas Williams, the defendant's servants, and of divers 
 other persons, falsely and maliciously spoke and published of and con- 
 cerning the plaintiff, the false, scandalous, malicious, and defamatory 
 words following, that is to say : 
 
 "I discharged that man for robbing me. He is a thief: and if ever you 
 (meaning the said John Jones and Thomas Williams) speak to him again, 
 or have anything to do with him, I shall consider you as bad as him, and shall 
 discharge you." 
 
 * * * The defendant pleaded not guilty, and a justification on 
 the ground that the plaintiff' had, whilst in the defendant's employ, 
 stolen certain articles the property of the defendant. Upon these pleas 
 issue was joined. 
 
 The cause was tried before Wilde, C. J., at the sittings in London 
 after Hilary Term, 1848. It appeared, that the plaintiff' had been in 
 the service of the defendant, and had been dismissed on a Thursday, 
 in consequence of some articles being missed, which he was suspected 
 of having stolen ; and that, when he went to the defendant's shop on
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 717 
 
 the following Saturday to receive the wages due to him, the defendant 
 called Jones and Williams, the other two servants, into the counting 
 house, and, speaking of the plaintiff, said to them — "I have dismissed 
 that man for robbing me : do not speak to him any more, in public or 
 private, or I shall think you as bad as him." 
 
 For the defendant, it was submitted that this was a privileged com- 
 munication. 
 
 On the other hand it was insisted that the act complained of was 
 perfectly gratuitous, not like a communication made to a confidential 
 person, or a matter that the other servants had any interest in ; and 
 that it was a question for the jury, whether the statement was made 
 under circumstances which indicated malice. 
 
 The Lord Chief Justice was of opinion that this was a privileged 
 communication, and that there was no evidence of malice, and conse- 
 quently that the defendant was entitled to a verdict on the first issue. 
 He, however, offered to go on and try the issue on the justification. 
 This the plaintiff declined. His Lordship thereupon directed a non- 
 suit to be entered. 
 
 The plaintiff obtained a rule nisi for a new trial, on the ground of 
 misdirection. 
 
 E. James, in support of the rule. — The communication in question 
 clearly was not privileged. A statement to the prejudice of a third 
 person, to justify it, must be made in pursuance of some duty, legal 
 or moral, or in answer to an inquiry bona fide made by some person 
 having an interest in making it. [Maule, J. — That is narrowing the rule 
 too much : there are many cases in which volunteer statements have been 
 held to be privileged, when made bona fide. The question here is, 
 whether the statement was privileged, assuming the defendant to have 
 acted bona fide and without malice. 
 
 MaulE, J. * * * We think that the case falls within the class 
 of privileged communications, which is not so restricted as it was 
 contended on behalf of the plaintiff. It comprehends all cases of com- 
 munications made bona fide, in performance of a duty, or with a fair 
 and reasonable purpose of protecting the interest of the party using the 
 words. In this case, supposing the defendant himself to believe the 
 charge, — a supposition always to be made when the question is wheth- 
 er the communication be privileged or not, — it was the duty of the 
 defendant, and also his interest, to prevent his servants from associ- 
 ating with a person of such a character as the words imputed to the 
 plaintiff; as such association might reasonably be apprehended to be 
 likely to be followed by injurious consequences, both to the servants 
 and to the defendant himself. 
 
 We think, therefore, the communication in question was privileged, 
 i. e., it was made under circumstances which rebut the presumption of 
 malice, which would otherwise arise from the nature of the words 
 used. That presumption being rebutted, it was for the plaintiff to
 
 718 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 show affirmatively that the words were spoken maHciously ; for, the 
 question, being one the affirmative of which Hes on the plaintiff, must, 
 in the absence of evidence, be determined in favour of the defendant. 
 
 On considering the evidence in this case, we cannot see that the 
 jury would have been justified in finding that the defendant acted ma- 
 liciously. It is true that the facts proved are consistent with the pres- 
 ence of malice, as well as with its absence. But this is not sufficient 
 to entitle the plaintiff to have the question of malice left to the jury; 
 for, the existence of malice is consistent with the evidence in all cases 
 except those in which something inconsistent with malice is shown in 
 the evidence : so that, to say, that, in all cases where the evidence was 
 consistent with malice, it ought to be left to the jury, would be in ef- 
 fect to say that the jury might find malice in any case in which it was 
 not disproved, — which would be inconsistent with the admitted rule, 
 that, in cases of privileged communication, malice must be proved, 
 and therefore its absence must be presumed until such proof is given. 
 
 It is certainly not necessary, in order to enable a plaintiff tO' have the 
 question of malice submitted to the jury, that the evidence should be 
 such as necessarily leads to the conclusion that malice existed, or that 
 it should be inconsistent with the non-existence of malice; but it is 
 necessary that the evidence should raise a probability of malice, and 
 be more consistent with its existence than with its non-existence. 
 
 In the present case, the evidence, as it appears to us, does not raise 
 any probability of malice; and is quite as consistent with its absence 
 as with its presence: and considering, as we have before observed, 
 that the mere possibility of malice which is found in this case, and in 
 all cases where it is not disproved, would not be sufficient to justify 
 a jury in finding for the plaintiff, we. think the Lord Chief Justice was 
 right in not leaving the question to them, and consequently that this 
 rule must be discharged. 
 
 Rule discharged.^^ 
 
 (c) Otuee Excuses foe Defamatoey Charges Confessedly Untrue 
 
 Mcpherson v. daniels. 
 
 (Court of King's Bench, 1829. 10 Barn. & C. 263, 34 R. R. 397, 
 
 109 Reprint, 448.) 
 
 In an action for slander, for words imputing insolvency spoken 
 of the plaintiff in his trade, the defendant pleaded that these same 
 words, which he set out in his plea, had been spoken of the plaintiff 
 and to the defendant by one T. W. Woor, of Swaffham, in the County 
 of Norfolk, and that when he, the defendant, spoke and published 
 the said words he also declared, in the hearing of those to whom the 
 
 3 The statement of facts is abridged and part of the opinion is omitted.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 719 
 
 words were spoken, that he, the defendant, had heard and been told 
 the same by the said T. W. Woor of Swattham, in the county of Nor- 
 folk. General demurrer. The Court called on 
 
 Piatt, to support the plea: It is a sufficient justification to an ac- 
 tion for slanderous words first spoken by a third person, for the de- 
 fendant to shew that at the time he repeated them he mentioned the 
 name of that person. In the fourth resolution of Lord Northamp- 
 ton's case, this is said : "In a private action for slander of a com- 
 mon person, if J. S. publish that he hath heard J. N. say that J. G. was 
 a traitor or thief ; in action of the case, if the truth be such, he may 
 justify. But if J. S. publish that he hath heard generally, without a 
 certain author, that J. G. was a traitor or thief, there an action sur 
 le case lieth against J. S. for this, that he hath not given to the party 
 grieved any cause of action against any, but against himself, who pub- 
 lished the words, although that in truth he might hear them ; for other- 
 wise this might tend to great slander of an innocent." 
 
 Bayley, j, * * * Upon the great point, viz. whether it is a 
 good defence to an action for slander, for a defendant to shew he 
 heard it from another, and at the time named the author, I am of opin- 
 ion that it is not. Lord Northampton's case was undoubtedly men- 
 tioned without disapprobation by Lord Kenyon, a man of a very pow- 
 erful mind, acute discrimination, and great learning. But whatever 
 respect I may feel for the memory of that noble and learned Judge, 
 I cannot carry that respect so far as to surrender my own judgment. 
 Look at the terms of the resolution and try it by the plain principles 
 of reason and common sense. 
 
 "It was resolved, that if A. say to B., did you not hear that C. is guilty 
 of trea.son, &c.? this is tautamouut to a scandalous publication: and in a 
 private action for slander of a common person, if J. S. publish that he hath 
 heard J. X. say that J. G. was a traitor or a thief ; in an action on the case, 
 if the truth be such, he may justify." 
 
 Now, assuming that it is not there stated, as a qualified proposition, 
 that a person may justify if he believes the slander to be true, and re- 
 peats it on a justifiable occasion ; but as a general proposition, if he in 
 truth heard the report, from another, and named that other at the time 
 he uttered the slander, that that is in all cases a justification, I think 
 that is a proposition which cannot be supported. At present I have 
 very great doubts whether the repetition of slander is in any case law- 
 ful, unless the party believe it to be true. By repeating slander, a 
 person, although he state at the tiine that he heard it from another, 
 gives it a degree of credit; for the repetition of it, imports a degree 
 of belief in the truth of the slander. If I hear another say that A. is 
 a thief, and that B., though a person of bad character, told him so, 
 I am induced to think, that the person who repeats it gives some credit 
 to the statement. It seems to me. therefore, that a person cannot be 
 justified in repeating slander, unless he believes it to be true. But
 
 720 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 that alone is not sufficient. I think it can only be repeated upon a 
 justifiable occ^sion. Every publication of slanderous matter is prima 
 facie a violation of the right which every individual has to his good 
 name and reputation. The law, upon grounds of public policy and 
 convenience, permits, imder certain circumstances, the publication of 
 slanderous matter, although it be injurious to another. But such act 
 being prima facie wrongful, it lies upon the person charged with 
 uttering slander, whether he were the first utterer or not, to shew that 
 he uttered it upon some lawful occasion. Upon the whole. I am of 
 opinion that a man cannot by law justify the repetition of slander by 
 merely naming the person who first uttered it; he must also shew that 
 he repeated it on a justifiable occasion, and believed it to be true*" 
 Judgment for plaintiff. 
 
 COOK V. WARD. 
 
 (Court of Common Pleas, 1830. 6 Bing. 409, 31 R. R. 456, 130 Reprint, 130S.) 
 
 Libel. The declaration stated that, before the committing of the 
 grievances by the defendant as thereinafter mentioned, one Corder, 
 who had been tried and convicted of murder at Bury, was about to 
 be hanged ; it then alleged, with the customary innuendos, that the de- 
 fendant, Ward, proprietor of the Colchester Gazette, had caused the 
 
 40 The statement of the pleadings is abridged. The concurring opinions of 
 Littledale and I'arke, JJ., and a part of the opinion of Baylej-, J., are omit- 
 ted. The three judges were at one also in regarding the latter part of the 
 fourth resolution in Lord Northampton's Case (IG13) 12 Co. Kep. 134, as not 
 law. 
 
 In 1829, also, Best, C. J., in De Crespigny v. Wellesley, 5 Bing. .302, 401, 
 declined to recognize the fourth resolution of Lord Northami)ton's Case as 
 applying to libel. And see IS Halsbury's Laws of England, 6U4. note (n). 
 
 In America, the doctrine of Lord Northanii)ton's Case has found an echo 
 or two iu slander suits. Tatlow v. Jaquett (1834) 1 Har. (Del.) 333. L'G Am. 
 Dec. 399: ("Where a man hears a slander he may repeat it if he does h.o in the 
 same words, and gives his author at the time.") Jarnigan v. Fleming (1S70) 
 43 Miss. 710, 5 Am. Rep. 514. But the great weight of Amerioau authm-ity, 
 in actions for slander, is the other way. Llaines v. Welling (1835), 7 Ohio, 
 253, 256, pt. 1: (approving JMcPherson v. Daniels as "consistent with policy, 
 right, justice and common sense.") And see 25 Cyc. 364. 
 
 In America as in England the doctrine of Lord Noi-thampton's Case ap- 
 pears to have had no support in libel cases. See the i-emarks of Kent. C. J., 
 in Dole v. Lyon (181.3) 10 Johns. (N. Y.) 447, 6 Am. Dec. 346; 25 Cyc. 363, note 
 77. The contrary, however, was urged, wiUumt causing any change in the 
 doctrine, in WallLng v. Commercial Advertiser (1915) 165 App. Div. 26, 150 
 N. Y. Supp. 906. 
 
 Compare Branstetter v, Dorrough (1882) 81 Ind. 527, 531: (D. retailed to 
 S. a slanderous charge against P., "for the imrpose of obtaining the opinion 
 of S. whether D. should or should not inform P. of the charge against her.") 
 
 Tidman v. Ainslie (1854) 10 Ex. 63, 102 R. R. 478: (The plea, in an action 
 for libel, alleged a repetition on stated authority aud "that the defendant then 
 believed all the statements made in the said letter, and particularly the said 
 words of the said letter so published as aforesaid, to be true." To this the 
 plaintiff demurred.)
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 721 
 
 following defamatory statement to be published of the plaintiff, Cook, 
 
 in the Gazette : 
 
 "The following ludicrous occurrence took place at Bury shortly after the 
 conclusion of the trial of Corder. A respectable deputy overseer, not two 
 miles from the parish of St. Mary's in this town, like many other Gents, had 
 the curiosity to hear Corder's trial. Accoi'dingly, he went to Bury and got 
 admission into court ; and the trial being ended he adjourned to an inn (not 
 of the highest class) to take some porter, amidst a dozen others, who were 
 perhaps as risky as himself. His appearance, which we suppose must have 
 been singular, struck the company that he must be a man 'out of the common 
 way.' Accordingly, the question was whispered amongst them, who he could 
 be: at length, after a deal of pro and con, it was decided that he could be no 
 other personage than Jack Ketch. After a short pause, one of them emphati- 
 cally said to him, 'Pray, Sir, aren't you the gemman that's come down to 
 hang Corder?' Of course such a question was the means of his bidding them 
 a respectful farewell. 
 
 The stupid elves mistook him by his look, 
 
 'Stead of the Jack, he proved to be the Cook.' " 
 
 * * * It appeared that before the publication in the newspaper 
 the plaintiff had told the story of himself to a party of his acquaintanc- 
 es at a public-house in Colchester. 
 
 The jury gave a verdict for the plaintiff, with £10 damages. A 
 rule nisi was obtained on the defendant's motion. 
 
 TiNDAL, C. J. * * * It is urged, however, that the plaintiff 
 could have no claim to damages, because he had told the story of 
 himself. If it could have been shown that he had authorized the pub- 
 lication of the story, the Court would have granted a new trial. But 
 there is a great dift'erence between ,a man's telling a ludicrous story 
 of himself to a circle of his own acquaintance, and a publication of it 
 to all the world through the medium of a newspaper. The rule must be 
 discharged. 
 
 Discharged.'*^ 
 
 RICHARDSON v. GUNBY. 
 
 (Supreme Court of Kansas, 1912. 8S Kan. 47, 127 Bac. 533, 42 L. E. A. 
 
 [N. S.] 520.) 
 
 Benson, J." This is an action to recover damages for an alleged 
 libel. Mr. Neal of Indianapolis, Ind., addressed a letter to the Altoona 
 State Bank asking for information concerning the Altoona Portland 
 Cement Company and its officers. The letter stated that the company 
 was bidding for investors. Responding to this inquiry, the appellee, 
 who was president of the bank, wrote a letter to Mr. Neal, in which it 
 was stated that the cement company had been characterized as a paper 
 concern by the state bank examiner ; that none of its stock had been 
 
 41 The statement of facts is abridged and part of the opinion of Tindal, 
 C. J., and the opinion of Park, J., are omitted. 
 4 2 Parts of the opinion are omitted. 
 IIepb. Torts — 46
 
 23 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 
 placed locally, because "no one locally has any faith in the integrity or 
 ability of its officers. Its secretary is regarded as one of the most 
 tricky men in this community and a good man to leave strictly alone, 
 and all of his projects." The letter otherwise reflected upon the credit 
 and standing of the company and closed with the statement, "The 
 above information is submitted in confidence and in reply to your in- 
 quiry for same and if of any value to you we will expect such informa- 
 tion so treated," and was signed "J. F. Gunby, President." The ap- 
 pellant was the secretary of the company. The language of the letter 
 contained within the quotation was held to be actionable per se in 
 Schreiber v. Gunby, 81 Kan. 459, 106 Pac. 276. * * * For a 
 separate defense it was alleged that the letter of inquiry was written at 
 the instance of the plaintifif as a decoy to induce the defendant to 
 make some statement upon which to predicate an action. A demur- 
 rer filed to this defense was overruled. The verdict and judgment 
 were for the defendant. * * * 
 
 Whatever may be the rule in criminal cases, where the object 
 is punishment for a public ofifense, in a civil action a party cannot be 
 allowed to recover damages for a libel which he procured or instigated 
 to be published against himself for the purpose of laying the founda- 
 tion of a lawsuit for his own pecuniary gain. It would be contrary to 
 the principles declared in analogous cases to sustain such an action. 
 It follows that the demurrer to the defense referred to was properly 
 overruled.*^ 
 
 Another feature of the case clos'ely related to this remains to be con- 
 sidered. In the tenth instruction the court, referring to the defense 
 last considered, said : "If this letter written by Mr. Neal was the re- 
 sult of a decoy letter sent to Mr. Gunby at the instance and request of 
 Mr. Richardson, plaintiff cannot recover, for the reason that it would 
 
 43 See King v. Waring (1803) 5 Esp. 13, 14 R. R. 751, Smith v. Wood (1813) 
 3 Camp. 323, and the examination and adoption of these cases in Gordon v. 
 Spencer (1829) 2 Blackf. (Ind.) 286, 287. 
 
 "The question [whether a plaintiff who has procured the defamatory ut- 
 terance, in order to found an action upon it, can maintain his action] has 
 been discussed and passed upon in many cases in the United States, and 
 among them in Gordon v. Si>encer (1829) 2 Blaclcf. (Ind.) 286. 288; Yeates v. 
 Reed (1838) 4 Blackf. (Ind.) 463, 465, 32 Am. Dec. 43: Jones v. Chapman 
 (1839) 5 Blackf. (Ind.) 88; Haynes v. Leland (1S18) 29 Me. 233, 234, 243; Sut- 
 ton V. Smith (1850) 13 Mo. 120, 123, 124 ; Nott v. Stoddard (1805) 38 Vt. 25, 
 31, 88 Am. Dec. 033; Heller v. Howard (1882) 11 111. App. 554; White v. 
 ^'ewcomb (1898) 25 App. Div. 397, 401, 49 N. Y. Supp. 704 : O'Doimell v. Nee 
 (C. C, 1898) 86 Fed. 96; Railroad v. Delaney (1899) 102 Tenn. 289, 294, 295, 
 52 S. W. 151, 45 L. R. A. 600, and Shinglemeyer v. Wright (1900) 124 Mich. 
 230, 240, 82 N. W. 887, 50 L. R. A. 129. See also 25 Cyc. pp. 370, 371. In most 
 of these cases the supposed ruling of Ix)rd Ellenborough, C. J., in Smith v. 
 Wood, and the oi)uiion expressed by Loi'd Alvanloy, C. J., in King v. Waring 
 were recognized as correct statements of the law, and followed." Per Mere- 
 dith, C. J., delivering the opinion of the Ontario Divisional Court in Rudd v. 
 Cameron (1912) 4 I). L. R. 567, 571. This court, however, distinguishes King 
 V. Waring and Smith v. Wood, and follows Duke of Brunswick v. Harmor 
 (1849) 14 Q. B. 185. See also Rudd v. Cameron (1914) 8 D. L. R. 622, C. A.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 723 
 
 place the plaintiff in the situation of publishing a libel against himself 
 — a thing which the law will not tolerate." This statement lacks an 
 important qualification. The reason why a person cannot recover in 
 such a case, where he instigates or invites the libel, is that he does it, 
 as charged in the reply, for the purpose of predicating an action for 
 damages upon it. He may not thus assist in building up a cause of 
 action for the purpose of gathering the fruitage to himself. If, how- 
 ever, the plaintiff instigated or set on foot the inquiry for the purpose 
 of ascertaining whether the defendant, or the bank of which he was 
 president, was disseminating evil reports concerning the cement com- 
 pany or its officers, in order that such influences might be counteracted, 
 or for any other proper purpose, and not for the purpose of predicat- 
 ing an action for damages in his own behalf, he was not estopped from 
 maintaining an action. * * * ** 
 
 Following the instruction last quoted, if the jury found from the evi- 
 dence that the so-called decoy letter was written at the instance and 
 request of appellant, they were precluded from giving him a verdict, 
 regardless of his purpose or motive in causing the inquiry. This was 
 an error affecting his substantial rights, and for this the judgment is 
 reversed, with directions to grant a new trial. 
 
 4 4 Benson, J., here quoted the dictum of Lord Alvanley in King v. Waring 
 (1803) 5 Esp. 13. See also Rudd v. Cameron (1912) 8 D. L. R. 622, C. A.: 
 (Finding that slanders concerning him in his business as a building contractor 
 were being circulated, but not knowing who was responsible, P. placed the 
 matter in tbe hands of a detective agency, who sent two detectives to in- 
 vestigate. They were not told or asked by P. to go to D. The detectives, hav- 
 ing made the acquaintance of D., told him that they were going to erect a 
 club house and that P. wished to get the contract. This ruse brought out 
 from D. a repetition of the slander already in circulation. In P.'s action, 
 based uiwn this statement, D. contended that he had been induced to utter the 
 slanderous words by detectives employed by P. for that purpose, and that it 
 was as if D. had spoken the words to P. himself and at his request. But a 
 judgment for P. was sustained in the Divisional Court and in the Ontario 
 Court of Appeal. "If the plaintiff," said Meredith, J. A., "had by subtei-fuge 
 induced the defendant to speak defamatory words of him merely for the pur- 
 pose of having an action for damages, I cannot think that such an action 
 would lie. * * * That which one procures another to do for him, may be 
 said, very properly, to be done by himself, in fishing for actions as well as 
 in other things. But that is not this case ; it was the case referred to by 
 Lord Avanley in his ruling in King v. Waring [1803] 5 Etep. 15. It is quite a 
 different thing for one who has been defamed by a secret enemy, and who 
 in honest and not unusual or unreasonable endeavours to discover the wrong- 
 doer, is again defamed — by one whom he suspected of the secret defamation — 
 to bring such an action as this — even though the new slanders were published 
 only to detectives employed by him and under false statements made by them 
 in such an endeavour. And that is this case: and was very like the case of 
 Duke of Bi-unswick v. Harmer [1849] 14 Q. B. 185; see also GritBths v. Lewis 
 [1845] 7 Q. B. 61. The plaintiff was not seeking a new defamation of his char- 
 acter with a view to recovering damages because of it: he was seeking knowl- 
 edge with a view to putting a stop to the secret slanders which he neither 
 desired nor had induced: and so, in this action, is not taking advantage of 
 his own wrong, or answered by a defence of leave and license.")
 
 724 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 POUCHAN V. GODEAU. 
 
 (Supreme Court of California, 1914. 167 Cal. 692, 140 Pac. 952.) 
 
 Per Curiam.*^ This case was transferred from the District Court 
 of Appeal of the First District by reason of a disagreement of the 
 justices. Mr. Justice Hall was in favor of a reversal of the judg- 
 ment and order, and this court agrees with the view which he took. 
 He said : 
 
 "Plaintiflf recovered judgment against defendant, in an action for 
 slander, in the sum of $1,500. The appeal is from the judgment and 
 the order denying defendant's motion for a new trial. 
 
 "The only grounds relied upon for a reversal are alleged errors 
 committed by the court in giving and refusing certain instructions 
 and in its rulings upon certain objections to testimony. 
 
 "The language which it is charged that defendant used with regard 
 to plaintiff was spoken in the French tongue at the entrance of a 
 hall, wherein a meeting of French people was about to be held, to 
 consider matters concerning the French Hospital and the election of 
 officers thereof. The language charged to have been used is set out 
 in the complaint, together with its translation into English. It is 
 charged that defendant intercepted plaintiff' at the doorway of said 
 hall, and in the presence and hearing of divers persons said to him, 
 'Thieves are not allowed in here,' to which plaintiff responded, 'Then 
 you call me a thief,' to which the defendant replied, 'Yes, you are a 
 thief.' The evidence amply sustains the charge as it is set forth in 
 the complaint. 
 
 "The defendant requested the court to give to the jury two in- 
 structions, as follows : 
 
 " 'I cliarge you that if you believe or if yoii find that the words alleged 
 to have been uttered by the defendant, as set foilh in plaintiff's complaint, 
 were in reply to a cpiestion or questions propounded by defendant to plaintiff, 
 then said replies are privileged, and that you may not assess any damages 
 against defendant.' And: 'I charge you that if you find the pulilication was 
 proved at the trial, and that it was brouglit about by the plaintiff's own con- 
 trivance, this does not constitute sufficient evidence of publication, and your 
 verdict must then be for the defendant.' 
 
 "The court refused to give either of said instructions. 
 
 "Each and every witness who testified to the use of the language 
 complained of testified to the effect that defendant intercepted and 
 barred the entrance of plaintiff to the hall, and at the same time open- 
 ed the conversation by saying to him, 'Thieves are not allowed in 
 here.' This language, under the circumstances of its use, clearly in 
 itself and without further explanation prima facie carries the infer- 
 ence that plaintiff was a thief, or that defendant so charged. 
 
 "The fact that plaintiff, by a question, drew out a reiteration in 
 
 *5 Parts of the opinion are omitted.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 725 
 
 more direct language of the charge already made, in the presence of 
 the same people, does not bring the case within the rule of 'Volenti 
 non fit injuria,' relied upon by defendant in support of his request 
 for the rejected instructions. 
 
 "Where a defendant, not in the presence or hearing of third per- 
 sons, makes a slanderous statement about a plaintiff, and thereafter, 
 at the request of the plaintiff, repeats the statement in the presence 
 and hearing of third persons, such repetition cannot be made the basis 
 of an action for slander. Such a case is within the rule now invoked 
 by defendant. ^^ * * * 
 
 "But under no phase of the evidence in the case at bar does it ap- 
 pear that the language complained of and proven to have been used 
 was but a repetition, at the request of plaintiff, of language previously 
 used but not in the presence of third persons. All the evidence that 
 tends to show the use of the language complained of shows that it 
 was used under the circumstances above detailed, and that the first 
 remark was made by defendant to plaintiff, as above stated, under 
 such circumstances as of itself to carry the meaning that plaintiff 
 was a thief. 
 
 "The witnesses for the defendant denied that the language com- 
 plained of or any part of it was used at all by the defendant. Un- 
 der this condition of the evidence, there was nothing to justify the 
 giving of either of the refused instructions. * * * 
 
 WILLIAMS et al. v. NEW YORK HERALD CO. 
 
 (Supreme Court of New York, Appellate Division, 1915. 1G5 App. Div. 529, 
 
 150 N. y. Supp. S38.) 
 
 The action was by Williams and another against the New 
 York Herald Company. From a judgment for plaintiffs, and from 
 an order denying a new trial, the defendant appeals. 
 
 46 The Court here cited Patterson v. Frazer (Tex. Civ. App., 1904) 79 S. 
 W. 1082; O'Donnell v. Nee (C. C, 1S9S) 80 Fed. 96: (P. said to S.: "The 
 watchman [D.] has accused me of hiding brass to steal." S., turning to D., 
 said: "Is that so?" Thereupon D. said "Yes.") Heller v. Howard (1882) 
 11 111. App. 5.54: (A defamatory statement made to the plaintiff alone was 
 afterwards repeated at plaintiff's request in the hearing of a third person. 
 "The repetition was at her special refiuest, and the maxim volenti non fit in- 
 juria ^^ill apply." Per McAllister, J.) Shingleraeyer v. Wright (1900) 124 
 Mich. 2.30, 82 N. W. 887, 50 L. R. A. 129: (P. had sent for a police officer for 
 the purpose of having D. repeat in his hearing the false charge of theft which 
 D. had made to P. alone.) 
 
 See also Sutton v. Smith (1850) 13 Mo. 120: (P. put "an apron full of 
 her own corn" into D.'s corn crib, and afterwards, when D. is watching her, 
 throws it out in a successful attempt to "devil" him into a charge of theft.) 
 Melcher v. Beeler (1910) 48 Colo. 2:}.3, 110 Pac. 181, 139 Am. St. Hep. 273; 
 Howland v. Blake Mfg. Co. (1892) 156 Mass. 543, 570, 31 N. E. 6.56; 25 Cyc. 
 370, notes 24, 25 ; "Libel and Slander," Cent. Dig. §§ 131, 132, 154 ; Dec. Dig. 
 Key -No. § 47.
 
 726 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 Scott, J.*^ The action is for libel. The defendant is the publisher 
 of a newspaper. The plaintiffs, under the name of the Lambert Dairy 
 Company, carry on the business of selling and supplying milk and 
 cream to their customers in the city of New York. The libel com- 
 plained of consists of an article accusing the Lambert Dairy Com- 
 pany of selling watered and adulterated milk. This article was a 
 fairly accurate summary of the allegations contained in a complaint 
 in an action by the French-American Stores Company against the 
 plaintiffs and others. This complaint was filed in the office of the 
 county clerk, but up to the time of the publishing of the libel it had 
 never been presented to the court, nor had any application, based upon 
 it, been made to the court for any preliminary or provisional order 
 or process. It developed upon the trial that plaintiffs had never 
 filed the certificate required by law to enable them to carry on business 
 under the name Lambert Dairy Company, which they had adopted 
 and used. Hence, while the business they were conducting was a 
 perfectly lawful and legitimate one, the manner of conducting it was 
 unlawful and constituted a misdemeanor. Penal Law, §§ 440, 924; 
 Partnership Law, § 22. The damages claimed in the complaint were 
 those claimed to have been suffered by plaintiffs in their business. 
 The amount recovered was not excessive, if they are entitled, as a 
 matter of law, to recover at all. 
 
 The appellant urges two reasons why, as it is claimed, the judgment 
 should not stand : First. It claims a qualified privilege in that the 
 article complained of was a fair and true report of a judicial proceed- 
 ing or of a paper duly filed in the course of such a proceeding. 
 Second. Because the plaintiffs were engaged in a criminal undertak- 
 ing in carrying on their business as they did, and consequently can- 
 not claim damages in respect thereto. * * * 
 
 The defendant's second objection to the judgment rests, in our 
 opinion, on a sounder foundation. The damages claimed are for inju- 
 ry to the business in which the plaintiffs are engaged, and it certainly 
 seems anomalous that one may recover for injury to a business, the 
 carrying on of which is unlawful and criminal. Plaintiff's claim is 
 that the libel injured the fair fame and reputation, and consequently 
 the business value of the Lambert Dairy Company, a name which 
 they had unlawfully appropriated and used. In principle the case 
 is not unlike Marsh v. Davison, 9 Paige, 580, wherein the slander 
 sued for was that the plaintiff had killed a w^oman by the use of mis- 
 applied remedies. It was pleaded in defense that the plaintiff had 
 not registered as a medical practitioner. The court said : "It is 
 doubtful whether the words charged to have been spoken by hini 
 are actionable. For it appears by the bill itself that Davison was not 
 a regular physician or surgeon ; nor was he licensed to practice as 
 such according to the laws of this state. And as he cannot, therefore, 
 
 4 7 I'art of the opinion is omitted.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 727 
 
 recover any compensation for his services under the provision of the 
 Revised Statutes (1 R. S. [2d Ed.] 451, § 24), he cannot maintain 
 an action of slander for charging him with malpractice in a profes- 
 sion which he cannot legally exercise." *^ 
 
 So in the present case it must, we think, be said that plaintiffs can- 
 not recover for damages to a business which they could not lawfully 
 carry on in the manner in which they did carry it on. When this 
 case was before us on demurrer, the present question was not pre- 
 sented, for it did not appear that plaintiff's use of this fictitious name 
 was unlawful. For aught that appeared, they might have taken the 
 necessary steps to render the use of the name lawful. Fry v. Bennett, 
 28 N. Y. 324; Trimmer v. Hiscock, 27 Hun, 364. If plaintiffs were 
 suing for damages to themselves as individuals, a different question 
 would be presented, with which we are not now called upon to deal. 
 
 Our conclusion is that, for the reason above assigned, the defendant 
 was entitled to a dismissal of the complaint at the trial. It follows 
 that the judgment and order appealed from must be reversed, and 
 the complaint dismissed, with costs to the appellant in all courts. 
 All concur. 
 
 48 Accord: Collins v. Carnegie (1834) 1 Ad. & E. 695, 110 Reprint, 1.37.3: 
 ("The statute imposes no penalty on unlicensed practitioners, but the pro- 
 hibitory words are strong enough to make the practice unlawful. This ac- 
 tion cannot, therefore, be maintained for slander of the plaintiff in a profes- 
 sion which by law he could not exercise." Per Lord Deunian, C. .J.) 
 
 Hargan v. Purdy (1892) 93 Ky. 424, 20 S. W. 432: ("As defamatory words, 
 either spoken or written, of a person in respect to his office or employment, 
 as to say of a physician 'He is an empiric' or 'a quack,' are actionable per 
 se, the petition would have contained, prima facie, a cause of action if ap- 
 pellant had been contented to state the simple fact that he was a regular 
 physician duly and legally authorized to practice that profession, and being 
 so employed the words mentioned were spoken of him. But he undertook to 
 state how and by what authority he was entitled to practice as a physician; 
 and thus is presented the question, to be considered on general demurrer, 
 whether he was, at the time the alleged slanderous words were published, 
 legally authorized to practice the medical profession. For if he was then 
 undertaking to practice medicine in violation of the statute of the State, he 
 could not, in contemplation of law, have been injured or sustained damage 
 from being called an empiric or quack; or, at all events, he could not be 
 heard in a court of justice to complain that words had been spoken or writ- 
 ten of him having the simple effect to disable or deter him from violating a 
 penal law." Per Lewis, J.) 
 
 For a distinction when the libel "reflects on the plaintiff in his private 
 character" and not merely as a ijractitioner. see the remarks of Tindal. C. J., 
 in Long v. Chubb (1831) 5 C. & P. 431. Here the plaintiff had declared for 
 a libel published "of and concerning him, and of and concerning him as a 
 medical practitioner." u
 
 728 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 (d) Faib Comment 
 
 SIR JOHN CARR, Knt, v. HOOD et al. 
 
 (London Sittings, after Trinity Term, ISOS, 1 Camp. 355, note, 
 
 10 R. R. 701, note.) 
 
 The declaration stated that the plaintiff, before the publishing of 
 any of the libels thereinafter mentioned, was the author of a certain 
 book entitled "The Stranger in France," a certain other book entitled 
 "A Nortr.ern Summer," a certain other book entitled "The Stranger 
 in Ireland," which said books had been respectively published in 4to, 
 yet that defendant, intending to bring upon plaintiff great contempt, 
 laughter and ridicule, 
 
 falsely and maliciously published a certain false, scandalous, malicious, and 
 defamatory libel, in the form of a book, of and concerning the said books, 
 of which the said Sir John was the author as aforesaid, which same libel 
 was entitled "My Pocket Book, or Hints for a Ryghte Merrie and Conceited 
 Tour," in quarto, to be called, 'The Stranger in Ireland in 1S05' (thereby al- 
 luding to the said book of the said Sir John, thirdly above mentioned), by a 
 Kniglit Errant (thereby alluding to the said Sir John), and which same libel 
 contained therein a certain false, scandalous, malicious, and defamatory print, 
 of and concerning the said Sir John, and of and concerning the said books of 
 the said Sir John, 1st and 2ndly above mentioned, therein called "Frontis- 
 piece," and entitled "The Knight (meaning the said Sir John) lieaving Ire- 
 land with Regret," and containing and representing in the said print, a certain 
 false, scandalous, and malicious, defamatory, and ridiculous representation of 
 the said Sir John, in the form of a man of ludicrous and ridiculous appear- 
 ance, holding a pocket handkerchief to his face and appearing to be weep- 
 ing, and also containing therein, a certain false, malicious, and ridiculous 
 representation of a man of ludicrous and ridiculous appearance, following 
 the said representation of the said Sir John, and representing a man load- 
 ed with, and bending under the weight of, three large books, one of them 
 having the word "Baltic," printed on the back thereof, &c. and a pocket 
 handkerchief appearing to be held in one of the hands of the said representa- 
 tion of a man, and the corners thereof appearing to be held or tied together, 
 as if containing something therein, with the printed word "Wardrobe" de- 
 l>ending thoretrom (thereby falsely, scandalously and maliciously meaning 
 and intending to represent, for the purpose of rendering the said Sir John 
 ridiculous, and exposing him to laughter, ridicule and contempt, that one 
 copy of the said 1st mentioned book of the said Sir John, and two copies of 
 the said Look of the said Sir John 2ndly above mentioned, were so heavy as 
 to cause a man to bend under the weight thereof, and tliat his the said Sir 
 John's wardrobe was very small, and capable of being contained in a pocket 
 handkerchief. 
 
 The declaration concluded by laying as special damage that the 
 plaintiff had been prevented and hindered from selling to Sir Richard 
 Philips, Knt., for £600, the copyright of a certain book of which the 
 plaintiff was the author, containing an account of a tour by him 
 through part of Scotland. Plea, Not guilty. 
 
 Lord Ellenborough, as the trial was proceeding, intimated an 
 opinion, that if the book published by the defendants only ridiculed 
 the plaintiff as an author, the action could not be maintained. 
 
 Garrow for the plaintiff allowed, that when his client came forward
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 729 
 
 as an author, he subjected himself to the criticism of all who might 
 be disposed to discuss the merits of his works; but that criticism 
 must be fair and liberal; its object ought to be to enlighten the pub- 
 lic, and to guard them against the supposed bad tendency of a par- 
 ticular publication presented to them, not to wound the feelings and 
 to ruin the prospects of an individual. If ridicule was employed it 
 should have some bounds. While a liberty was granted of analyzing 
 literary productions, and pointing out their defects, still he must 
 be considered as a libeller whose only object was to hold up an author 
 to the laughter and contempt of mankind. A man with a wen upon 
 iiis neck perhaps could not complain if a surgeon in a scientific work 
 should minutely describe it, and consider its nature and the means of 
 dispersing it; but surely he might support an action for damages 
 against any one who should publish a book to make him ridiculous 
 on account of this infirmity, with a caricature print as a frontispiece. 
 The object of the book published by the defendants clearlv was, by 
 means of immoderate ridicule to prevent the sale of the plaintiff's 
 works, and entirely destroy him as an author. In the late case of 
 Tabart v. Tipper *^ his Lordship had held that a publication by no 
 means so offensive or prejudicial to the object of it, was libellous 
 and actionable. 
 
 Lord Ellkxborough. In that case the defendant had falsely ac- 
 cused the plaintiff" of publishing what he had never published. Here 
 the supposed libel has only attacked those works of which Sir John 
 Carr is the avowed author; and one writer in exposing the follies 
 and errors of another may make use of ridicule however poignant. 
 Ridicule is often the fittest weapon that can be employed for such 
 a purpose. If the reputation or pecuniary interests of the person 
 ridiculed suffer, it is damnum absque injuria. Where is the liberty 
 
 49 1 Camp, 350, 10 R. R. 698. In this case, the defendant had published 
 in a periodical called "The Satirist or Monthly Jfeteor" an article reflecting 
 upon the plaintiff as a publisher of children's books and imputing to him the 
 following "magnificent poem": 
 
 "There was a little maid, and she was afraid, 
 Her sweetheart would come to her, 
 She bound up her head when she went to bed 
 And she fastened her door with a skewer." 
 
 On the trial the defendant "allowed that the plaintiff had not published 
 the poem imputed to him." Lord EUenborough remarked that "liberty of 
 criticism must be allowed, or we should neither have purity of taste nor of 
 morals. Fair discussion is essentially necessary to the truth of history and 
 the advancement of science. That publication therefore I shall never consider 
 as a libel, which has for its object, not to injure the reputation of any in- 
 dividual, but to con-ect misrepresentations of fact, to refute sophistical rea- 
 soning, to expose a vicious taste in literature, or to censure what is hostile 
 to morality." But after the evidence was in, his Lordship informed the jury, 
 that "it was certainly actionable gravely to impute to a bookseller having pub- 
 lished a poem of this sort, to which he was a stranger ; as the evident 
 tendency of the unfounded imputation was to hurt him in his business." 
 
 See also the charge in Post Tub. Co. v. Peck (1912) 199 Fed. G, 13, 120 C 
 ■C. A. 1.
 
 730 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 of the press if an action can be maintained on such principles? Per- 
 haps the plaintiff's "Tour through Scotland" is now unsaleable; but 
 is he to be indemnified by receiving a compensation in damages from 
 the person who may have opened the eyes of the public to the bad 
 taste and inanity of his compositions? Who would have bought the 
 works of Sir Robert Filmer after he had been refuted by Mr. Locke? 
 But shall it be said that he might have sustained an action for defa- 
 mation against that great philosopher, who was labouring to enlighten 
 and ameliorate mankind? We really must not cramp observations 
 upon authors and their works. They should be liable to criticism, 
 to exposure, and even to ridicule, if their compositions be ridicu- 
 lous; otherwise the first who writes a book on any subject will main- 
 tain a monopoly of sentiment and opinion respecting it. This would 
 tend to the perpetuity of error. Reflection on personal character is 
 another thing. Shew me an attack on the moral character of this 
 plaintiff, or any attack upon his character unconnected with his au- 
 thorship, and I shall be as ready as any judge who ever sate here to 
 protect him; but I cannot hear of malice on account of turning his 
 works into ridicule. 
 
 The counsel for the plaintiff* still complaining of the unfairness of 
 this publication, and particularly of the print affixed to it, the trial 
 proceeded. 
 
 Lord Ellenborough said: Every man who publishes a book com- 
 mits himself to the judgment of the public, and any one may com- 
 ment upon his performance. If the commentator does not step aside 
 from the work, or introduce fiction for the purpose of condemnation, 
 he exercises a fair and legitimate right. In the present case, had the 
 party writing the criticism followed the plaintiff into domestic life 
 for the purposes of slander, that would have been libellous ; but no 
 passage of this sort has been produced, and even the caricature does 
 not aft'ect the plaintiff, except as the author of the book which is 
 ridiculed. The works of this gentleman may be, for aught I know, 
 \ery valuable; but whatever their merits, others have a right to pass 
 their judgment upon them — to censure them if they be censurable, 
 and to turn them into ridicule if they be ridiculous. The critic does 
 a great sendee to the public, who writes down any vapid or useless 
 publication, such as ought never to have appeared. He checks the 
 dissemination of bad taste, and prevents people from wasting both 
 their time and money upon trash. I speak of fair and candid criti- 
 cism; and this every one has a right to publish, although the author 
 may suft'er a loss from it. Such a loss the law does not consider 
 as an injury; because it is a loss which the party ought to sustain. It 
 is in short the loss of fame and profits to which he was never entitled. 
 Nothing can be conceived more threatening to the liberty of the 
 press than the species of action before the Court. We ought to resist 
 an attempt against free and liberal criticism at the threshold.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 731 
 
 The Chief Justice concluded by directing the jury, that if the 
 writer of the publication complained of had not travelled out of the 
 work he criticised for the purpose of slander, the action would not 
 lie; but if they could discover in it any thing personally slanderous 
 against the plaintiff, unconnected with the works he had given to 
 the public, in that case he had a good cause of action, and they would 
 award him damages accordingly. 
 
 Verdict for the defendants. 
 
 POST PUB. CO. v. HALLAM. 
 
 {Circuit Court of Appeals of the United States, Sixth Circuit, 1893. 59 Fed. 
 
 530, 8 C. C. A. 201.) 
 
 Action by Hallam against the Post Publishing Company for libel. 
 Verdict for plaintiff. Motion for a new trial denied, and judgment for 
 plaintiff on the verdict. The defendant brings error. The petition 
 set forth the publication by the defendant of and concerning the plain- 
 tiff, in the Cincinnati Post, of the following article : 
 
 The Berry-Hallam congressional fight in the Sixth Kentucky district is still 
 on, — that is to say, Banquo"s ghost bobs up now and then, to the aunoyaui-e 
 of the congressional nominee. Berry, and the mortification of the defeated 
 candidate, Theo. F. Hallam. The Boone County Recorder delivers a broad- 
 side at the Kenton county delegates, and naively asks: "Why don't they 
 come out and tell the truth about vrhat induced them to go to Berry? The 
 world knows." Yes, the world knows, and you may say ilars and the planets 
 know it also. Proprietor Roth, of the St. Nicholas Hotel, has an inside cinch 
 on this inside information. Evei^j-one knows Colonel Berry. * * * Hal- 
 lam is a successful lawyer at Covington; but legal eminence does not mean 
 the fat incomes that are its synonyms on this side of the Ohio. Hallam 
 is one of the bhoys, loves ward politics for the fun, if not the emoluments, 
 and is about as poor as a church mouse. In fact, he owes several hundred 
 dollars for taxes. The two counties, Kenton and Campbell, threw out their 
 hooks for the congressional nomination. Kenton swore by Hallam, while 
 Campbell vowed that * * * Albert S. Berry, should be the nominee. The fight 
 waxed hot. The convention was held at Warsaw, commencing on September 
 27th, and ending September 30th. The Kenton boys prepared for the fray. The 
 principal preparation consisted in engaging the steamer Henrietta to carry the 
 delegates to Warsaw, and the carte blanche orders of Mr. Roth, of the St. 
 Nicholas hostelry, to fill her up from truck to keelson with the best the cel- 
 lar and the larder of the house afforded. * * * Hallam and his crowd did 
 all the feasting and the drinking. The Campbell county men were not in it. 
 But the bill was made out to Colonel A. S. Berry. Here is the bill: "St. 
 Nicholas. Edward N. Roth. Cincinnati, October 10, 1S92. Colonel A. S. Ber- 
 ry, per Theodore F. Hallam, to the St. Nicholas Hotel Company, Dr.: For 
 meals, service, wine, and cigars served on board the steamer Henrietta, $865.- 
 15." Then again: At Warsaw the battle raged four days. On the last day 
 Colonel Berry and Lawyer Hallam were seen to go arm in arm to the rear of 
 the courthouse, where the convention was held. They had a quiet and con- 
 fidential chat. At its conclusion Hallam called his warriors about him, and 
 spoke to them in whispers. Immediately thereafter the whole Kenton coun- 
 ty delegation cast its vote for Colonel Berry, and he received the nomination. 
 Is Colonel Berry carrying out all and every one of the promises he made? 
 Ah, there's the rub. Mr. Roth, of the St. Nicholas, has sent a bill of $805.15 to 
 Colonel A. S. Berry. That bill is for "dry" and "wet" provisions ordered by 
 Hallam, and disposed of by Hallam's supporters. Such generosity on the 
 part of the victor to the vanquished is truly touching.
 
 732 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part t 
 
 The defendant's answer admitted the publication of the article, but 
 denied the other allegations in the petition. The evidence for the 
 plaintiff tended to show that the charge or insinuation that he had 
 received any consideration for influencing his supporters to transfer 
 their votes to Berry was unfounded.^" 
 
 Taft, Circuit Judge. * * * Finally, we come to those assign- 
 ments of error which are based on the charge of the court in regard to 
 privileged communications. The court in effect told the jury that the 
 article in question, relating, as it did, to a matter of public interest, 
 came within a class of communications that were conditionally priv- 
 ileged; that the public acts of public men (and candidates for office 
 were public men) could be lawfully made the subject of comment and 
 criticism,^ ^ not only by the press, but also by all members of the 
 public, for the press had no higher rights than the individual ; but that 
 while criticism and comment, however severe, if in good faith, were 
 privileged, false allegations of fact, as, for instance, that the candidate 
 had committed disgraceful acts, were not privileged, and that, if the 
 charges were false, good faith and probable cause were no defense, 
 though they might mitigate damages. Counsel for the plaintiff in 
 error and the defendant below has argued with great vigor and an 
 array of authorities that we ought not to adopt the view of the circuit 
 court upon this important question, but should hold that the privilege 
 extends to statements of fact as well as comment. 
 
 The argument is this : Privileged communications comprehend all 
 bona fide statements in performance of any duty, whether legal, moral, 
 or social, even though of imperfect obligation, when made with a fair 
 and reasonable purpose of protecting the interest of the person making 
 them, or the interest of the person to whom they are made. Townsh. 
 Sland. & L. § 209. It is of the deepest interest to the public that they 
 should know facts showing that a candidate for office is unfit to be 
 chosen. Therefore, every one who has reasonable ground for believ- 
 ing, and does believe, that such a candidate has committed disgraceful 
 acts affecting his fitness for the office he seeks, should have the right 
 to give the public the benefit of his information, without making him- 
 self liable in damages for untrue statements, unless malice is shown. 
 Though of imperfect obligation, it is said to be the highest duty of 
 the daily newspaper to keep the public informed of facts concerning 
 those who are seeking their suffrages and confidence. Can it be pos- 
 sible, it is asked, that public policy will make privileged an unfounded 
 
 BO The statement of the case is abridged and parts of the opinion are omit- 
 ted. i''or the case below, see Hallam v. Post Publishing Co. (C. C, 1S93) 05 
 Fed. 450. 
 
 61 Compare Walsh v. Pulitzer Pub. Co. (1913) 250 jNIo. 142, 157 S. W. 327, 
 Ann. Cas. 1914C, 9S5: (A newspaper published by D. stated of P., who was a 
 lawyer extensively engased for the defense in criminal prosecutions and at 
 the time was a candidate for the ofHce of district attorney, that "the more 
 candidacy of such a person should fill the city with alarm. He has no quali- 
 fications for the ofHce.")
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 733 
 
 charge of dishonesty or criminality against one seeking private serv- 
 ice, when made to the private individual with whom service is sought, 
 and yet will not extend the same protection to him who in good faith 
 informs the public of charges against applicants for service with them? 
 Is it not, at least, as important that the high functions of public office 
 should be well discharged, as that those in private service should be 
 faithful and honest? 
 
 The a fortiori step in this reasoning is only apparent. It is not 
 real. The existence and extent of privilege in communications are 
 determined by balancing the needs and good of society against the 
 right of an individual to enjoy a good reputation when he has done 
 nothing which ought to injure it. The privilege should always cease 
 where the sacrifice of the individual right becomes so great that the 
 public good to be derived from it is outweighed. Where conditional 
 privilege is extended to cover a statement of disgraceful fact to a 
 master concerning a servant or one applying for service, the privilege 
 covers a bona fide statement, on reasonable ground, to the master only, 
 and the injury done to the servant's reputation is with the master only. 
 This is the extent of the sacrifice which the rule compels the servant to 
 suffer in what was thought to be, when the rule became law, a most 
 important interest of society. But, if the privilege is to extend to 
 cases like that at bar, then a man who offers himself as a candidate 
 must submit uncomplainingly to the loss of his reputation, not with 
 a single person or a small class of persons, but with every member of 
 the public, whenever an untrue charge of disgraceful conduct is made 
 against him, if only his accuser honestly believes the charge upon rea- 
 sonable ground. We think that not only is such a sacrifice not re- 
 quired of every one who consents to become a candidate for office, 
 but that to sanction such a doctrine would do the public more harm 
 than good. 
 
 We are aware that public officers and candidates for public office 
 are often corrupt, when it is impossible to make legal proof thereof, 
 and of course it would be well if the public could be given to know, 
 in such a case, what lies hidden by concealment and perjury from 
 judicial investigation. But the danger that honorable and worthy 
 men may be driven from politics and public service by allowing too 
 great latitude in attacks upon their characters outweighs any benefit 
 that might occasionally accrue to the public from charges of corrup- 
 tion that are true in fact, but are incapable of legal proof. The free- 
 dom of the press is not in danger from the enforcement of the rule we 
 uphold. No one reading the newspaper of the present day can be 
 impressed with the idea that statements of fact concerning public 
 men, and charges against them, are unduly guarded or restricted ; 
 and yet the rule complained of is the law in many of the states of 
 the Union and in England. 
 
 In Davis v. Shepstone, 11 App. Cas. 187, Lord Chancellor Herschell 
 delivered the judgment of the Judicial Committee of the Privy Coun-
 
 734 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 cil in an appeal from a judgment for libel recovered in the supreme 
 court of Natal. The plaintiff below was a resident commissioner of 
 Great Britain in Zululand, and the alleged libel charged him with hav- 
 ing committed unprovoked and altogether indefensible assaults upon 
 certain Zulu chiefs. The publication was made in the colony of Natal 
 where the conduct of the resident commissioner in Zululand was of 
 great public interest. It was claimed that the article was conditionally 
 privileged, and that the plaintiff ought to have succeeded only on 
 proof of express malice. This claim was denied. The Lord Chancel- 
 lor thus stated the law : 
 
 "There is no doubt that the public acts of a public man may lawfully 
 be made the subject of fair comment or criticism, not only by the press, 
 but by all members of the public. But the distinction cannot be too 
 clearly borne in mind between comment or criticism and allegations of 
 fact, such as that disgraceful acts have been committed or discreditable 
 language used. It is one thing to comment upon or criticise, even with 
 severity, the acknowledged or approved acts of a public man, and 
 quite another to assert that he has been guilty of particular acts of 
 misconduct. In the present case the appellants, in the passages which 
 were complained of as libelous, charged the respondent, as now ap- 
 pears, without foundation, with having been guilty of specific acts of 
 misconduct, and then proceeded, on the assumption that the charges 
 were true, to comment upon his proceedings in language in the highest 
 degree offensive and injurious. Not only so, but they themselves 
 vouched for the statements by asserting that, though some doubt had 
 been thrown upon the truth of the story, the closest investigation 
 would prove it to be correct. In their lordships' opinion there is no 
 warrant for the doctrine that defamatory matter thus published is re- 
 garded by the law as the subject of any privilege." 
 
 Other English cases laying down the same doctrine are Campbell v. 
 Spottiswoode, 3 Fost. & F. 421, 432, affirmed 3 Best & S. 769, and 
 Popham v. Pickburn, 7 Hurl. & N. 891, 898. The latest American 
 case, and the most satisfactory, is that of Burt v. Newspaper Co., 
 [1891] 154 Mass. 238, 242, 28 N. E. 1, 13 L. R. A. 97, where Justice 
 Holmes discusses the question, and quotes with approval the foregoing 
 passage from the judgment in Davis v. Shepstone.^^ * * * 
 
 Judgment of the Circuit Court affirmed. ^^ 
 
 5 2 Judge Taft here cited the following American cases as approving the 
 same rule: Smith v. Burrus (1891) 106 Mo. 94, 101, 16 S. W. SSI, 13 L. R. 
 A. 59, 27 Am. St. Rep. .329; Wheaton v. Beeclier (18S7) 66 Mich. 307, 33 N. 
 W. 503; Bronson v. Bruce (1886) 59 Mich. 467, 26 N. W. 671, 60 Am. Rep. 307; 
 Brewer v. Weakley (1807) 2 Overt. (Teun.) 99, 5 Am. Dec. 656; Sweeney v. 
 Baker (187S) 13 W. Ya. 158. 31 Am. Rep. 757 : Hamilton v. Eno (ISSO) 81 N, 
 Y. 120; Rearick v. Wilcox (1876) 81 111. 77; Negley v. FaiTow (1883) 60 Md. 
 158, 170, 45 Am. Rep. 715; Jones v. Townsend (1885) 21 Fla. 431. 451, 58 
 Am. Rep. 676; Banner I'ub. Co. v. State (188.5) 16 Lea (Tenn.) 176, 57 Am. 
 Rep. 216; Tublishing Co. v. Moloney (1S93) 50 Ohio, 71, 33 N. E. 921; Seely 
 
 03 See note 53 on following page.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 735 
 
 TRIGGS V. SUN PRINTING & PUBLISHING ASS'N. 
 
 (Court of Appeals of New York, 1904. 179 N. Y. 144, 71 X. E. 739, 66 L. R. 
 A. 612, 103 Am. St. Rep. 841, 1 Ann. Cas. 326.) 
 
 Martin, J. * * * ^* It is contended by the respondent that the 
 articles pubHshed were a mere comment or criticism of matters of 
 pubHc interest and concern, and hence were privileged. While every 
 one has a right to comment on matters of public interest, so long as 
 
 V. Blair, Wright (Ohio, 1833) 358, 683; Wilson v. Fitch (1871) 41 Cal. 383; 
 Edwards v. Piiblishiug Co. (1893) 99 Cal. 431, 34 Pae. 128, 37 Am. St. Rep. 
 70; State v. bchuiitt (1887) 49 N. J. Law, 579, 586, 9 Atl. 774; Eviston v. 
 Cramer (1883) 57 Wis. 570, 15 N. W. 760. 
 
 5 3 See Haynes v. Clinton (1897), 169 Mass. 512, 48 N. R 275, 276 (where 
 Holmes, J., remarks: "It is settled that newspapers as such have no peculiar 
 privilege, and it is equally settled that the privilege of comment and criti- 
 cism on matters of public interest which a possible murder may be assumed to 
 be for the purposes of decision does not extend to false statements") ; Mor- 
 ris V. Sailer (1911) 154 Mo. App. .305, 134 S. W. 98, 99; Walsh v. Pulitzer 
 Pub. Co. (1913) 250 Mo. 142, 157 S. W. 326, 330, Ann. Cas. 1914C, 985; Schwarz 
 Bros. Co. V. Evening News Pub. Co. (1913) 48 N. J. Law, 486, 87 Atl. 148, 153 
 (where Mr. Justice Swayze quotes with approval from Lord HersL-heU's opin- 
 ion, given in the text, in Davis v. Shepstone [1886] 11 App. Cas. 187, with this 
 preliminarv comment: "There could hardlv be a case where freedom of speech 
 was more important"). Ott v. Murphy (1913) 160 Iowa. 730, 141 N. W. 463. 
 467: ("It is sometimes said that fair and honest criticism in matters of 
 public concern are privileged, but there is a manifest difference between fair 
 and honest criticism of public events and pri\-ileged communications. In 
 the latter case the words may be defamatory, but the defamation is excused or 
 justified by reason of the occasion, while in the former case the words are 
 not defamatory of the plaintiff, and are not libelous — the stricture or criti- 
 cism is not upon the person himself, but upon his work. In other words, 
 it is impersonal. Bearce v. Bass [1894] 88 Me. 521, 34 Atl. 411, 51 Am. St. 
 Rep. 446 ; Burt v. Advertising Co. [1891] 1.54 Mass. 2.38, 28 N. E. 1, 13 L. R. A. 
 97. Criticism must be founded on truth, and false statements or attacks on 
 private character are not pennitted." Per Deemer, J.) Parsons v. Age Herald 
 Pub. Co. (1913) 181 Ala. 439, 61 South. 345, 350: ("The privilege [of fair com- 
 ment] is limited to comment or criticism, and must be with reference to 
 admitted or proven facts or conduct." Per Somerville, J.) 
 
 i'or other late cases on the point, see 25 Cyc. 404-406, and especially notes 
 83, 84, 85, 86 : Key No. "Libel and Slander," § 48 ; 18 Halsbury's Laws of Eng- 
 land (1911) 702-709, and notes. 
 
 So it was remarked by Cockburn, C. J., in the Queen v. Carden (1879) 
 5 y. B. D. 1, 8: "Iti is true that a comment upon given facts, which would 
 otherwise be libellous, may assume a privileged character, because, though 
 unjust and injurious, yet being founded on facts not in themselves libellous, 
 it is a comment which any one is entitled to make upon a public man. For 
 instance, suppose that any one states facts not in themselves libellous of a 
 candidate for election to parliament, and on them bases the conclusion that 
 he is not an honest politician. The comment may be injurious, but it may 
 be privileged as a fair comment on the facts, if not malicious, because made 
 on a public man. On the other hand, to say that you may first libel a man. 
 and then comment upon him. is obviously absurd." 
 
 And in Digby v. Financial News [1907] 1 K. B. 502, 507, it was romarlced 
 by Collins, M. R., in the Court of Appeal: "Comment, in order to be fair. 
 
 54 The statement of the fncts in this case, and so much of the opinion as 
 relates to the question of libel, apart from the question of fair comment, 
 are reported ante, page 589.
 
 736 TORTS THROUGH ACTS OP ABSOLUTE LIABILITY (Part 1 
 
 one does so fairly, with an honest purpose, and not intemperately and 
 maHciously, although the publication is made to the general public by 
 means of a newspaper, yet what is privileged is criticism, not other de- 
 famatory statements ; and, if a person takes upon himself to allege 
 matters otherwise actionable, he will not be privileged, however honest 
 his motives, if those allegations are not true. When a publisher goes 
 beyond the limits of fair criticism, his language passes into the region 
 of libel, and the question whether those limits have been transcended 
 may become a question of law, but ordinarily presents a question for 
 the jury. Fay v. Harrington, 176 Mass. 270, 57 N. E. 369. It is true 
 that an author, when he places his work before the public, invites 
 criticism ; and, however hostile it may be, the critic is not liable for 
 libel, provided he makes no misstatements of material facts contained 
 in the writing, and does not go out of his way to attack the author. 
 The critic must, however, confine himself to criticism, and not make 
 it the veil for personal censure, nor allow himself to run into reckless 
 and unfair attacks merely for the purpose of exercising his power of 
 denunciation. If, under the pretext of criticising a literary production 
 or the acts of one occupying a public position, the critic takes an oppor- 
 tunity to attack the author or occupant, he will be liable in an action 
 for libel. Cooper v. Stone, 24 Wend. 434 ; lattice v. Wilcox, 71 Hun, 
 485, 488, 24 N. Y. Supp. 1060, affirmed 147 N. Y. 624, 42 N. E. 270; 
 Hamilton v. Eno, 81 N. Y. 116. Moreover, it is difficult to perceive 
 how this privilege can be tried on demurrer, as the question whether 
 the criticism was fair and just, or willfully assailed the reputation of 
 the plaintiff, would be for the jury. In this case it is obvious that the 
 articles complained of go far beyond the field of fair and honest 
 criticism, and are attempts to portray the plaintiff in a ridiculous light. 
 
 must be based upon facts, and if a defendant cannot shew that his com- 
 ments contain no misstatements of fact, he cannot prove a defense of fair 
 comment. The usual way to begin sucli a plea is by asserting that the 
 facts on which the comment is based are true, that is, that the defendant 
 has made no misstatements in formulating the materials upon which he has 
 commented. If the defendant makes a misstatement of any of the facts up- 
 on which he comments, it at once negatives the possibility of his comment 
 being fair. It is therefore a necessary part of a plea of fair connuent to 
 shew that there has been no misstatement of facts in the statement of the 
 materials upon which the comment was based." 
 
 But see Cleveland Leader Printing Co. v. Nethersole (1911) 84 Ohio, 118, 
 95 N. E. 7o5, Ann. Gas. 1912B, 978. The plaintiff, an actress and producer of 
 plays upon the stage, sued for an alleged libel in an article published in the 
 defendant's newspaper. This article, referring to a play called "The Laby- 
 rinth," in which the plaintiff had just appeared in Cleveland, contained 
 this statement: "Cleveland received it frigidly, as is the American way wlien 
 displeased or disgusted, but when it was produced in London it was hissed 
 so soundly that Miss iS'ethersole had hysterics." The two statements as to 
 the London production were false. A judgment for the plaintitf, who as- 
 serted no special damage, was reversed by the Supreme Court, apparently 
 on two groimds, that tlie defendant was within the protection of fair com- 
 ment, and that the false statements were not a "libel uiwn the person," but 
 only a "Ubel upon the play." See an interesting note on this case in 10 Mich. 
 Law Key. 44 (1911).
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 737 
 
 As was in effect said by the learned judge in the dissenting opinion 
 below : The articles complained of represent the plaintiff as illiterate, 
 uncultivated, coarse, and vulgar, and his ideas as sensational, absurd, 
 and foolish. They also represent him as egotistical and conceited in 
 the extreme, and convey the impression that he makes himself ridicu- 
 lous both in his method of instruction and by his public lectures. They 
 also ridicule his private life, by charging that he was unable to select 
 a name for his baby until after a year of solemn deliberation. In short, 
 they effect to represent him as a presumptuous literary freak. These 
 representations concerning his personal characteristics were not within 
 the bounds of fair and honest criticism, and are clearly libelous per se. 
 
 It is likewise claimed by the respondent that these articles were writ- 
 ten in jest, and hence that it is not liable to the plaintiff for the in- 
 jury he has sustained. It is, perhaps, possible that the defendant pub- 
 lished the articles in question as a jest, yet they do not disclose that, 
 but are a scathing denunciation, ridiculing the plaintiff. If, however, 
 they can be regarded as having been published as a jest, then it should 
 be said that, however desirable it may be that the readers of, and the 
 writers for, the public prints shall be amused, it is manifest that nei- 
 ther such readers nor writers should be furnished such amusement at 
 the expense of the reputation or business of another. In the language 
 of Joy, C. B. : "The principle is clear that a person shall not be allowed 
 to murder another's reputation in jest;" or, in the words of Smith, B., 
 in the same case: "If a man in jest conveys a serious imputation, he 
 jests at his peril." Donoghue v. Hayes [1831], Hayes, Irish Ex- 
 chequer, 265, 266. We are of the opinion that one assaulting the repu- 
 tation or business of another in a public newspaper cannot justify it 
 upon the ground that it was a mere jest, unless it is perfectly manifest 
 from the language employed that it could in no respect be regarded 
 as an attack upon the reputation or business of the person to whom 
 it related. 
 
 The single purpose of the rule permitting fair and honest criticism 
 is that it promotes the public good, enables the people to discern 
 right from wrong, encourages merit, and firmly condemns and exposes 
 the charlatan and the cheat, and hence is based upon public policy. 
 The distinction between criticism and defamation is that criticism deals 
 only with such things as invite public attention or call for public com- 
 ment, and does not follow a public man into his private life, or pr\^ into 
 his domestic concerns. It never attacks the individual, but only his 
 work. A true critic never indulges in personalities, but confines him- 
 self to the merits of the subject-matter, and never takes advantage of 
 the occasion to attain any other object beyond the fair discussion of 
 matters of public interest, and the judicious guidance of the public 
 taste. The articles in question come far short of falling within the 
 line of true criticism, but are clearly defamatory in character, and are 
 libelous per se. * * * 
 Hepb.Tobts — 47
 
 738 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 (E) Defeating a Prima Facie JustiUcation or Excuse in Defamation: 
 
 Malice, Excess 
 
 (a) As A Reply to the Plea of Justiiucation 
 
 PERRY V. PORTER. 
 (Supreme Judicial Court of Massachusetts, 1878. 124 Mass. 338.) 
 
 Tort, with a count for libel and thirteen counts for slander. After 
 the former decision, reported 121 Mass. 522, the case was tried in this 
 court, before Soule, J., who, after a verdict for the defendant, allowed 
 a bill of exceptions. 
 
 Morton, J. * * * In regard to the count for libel, the vital 
 question is as to the correctness of the ruling of the court, that, if 
 the jury found the matter contained in the publication charged as 
 libellous to be true, this was a complete defence to the action. 
 
 The plaintiff relied upon the Gen. Sts. c. 129, § 77, and contended 
 that the truth was not a justification and defence, if it was proved 
 that the article was published with express malice. But the court 
 ruled that the exception in the statute was not applicable to a civil 
 action, and that proof of the truth was not of itself a defence. 
 
 At common law, in private actions for libel or slander, proof of the 
 truth is a justification. But in public prosecutions the rule was other- 
 wise, and it was accordingly held, in Commonwealth v. Blanding, 3 
 Pick. 304, 15 Am. Dec. 214, that on an indictment for libel the truth 
 of the matter published was not admissible in evidence. Probably in 
 consequence of this decision, the Legislature enacted in 1827 that in 
 every prosecution for libel the defendant might give in evidence in his 
 defence the truth of the matter charged to be libellous, but that such 
 evidence should not be a justification unless it was made to appear 
 that such matter was published with good motives and for justifiable 
 ends. St. 1826, c. 107, 1. 
 
 This was re-enacted in the Rev. Sts. c. 133, § 6, and remained the 
 law until 1855 when it was provided that "in every prosecution, and 
 in every civil action for writing or for publishing a libel, the defendant 
 may give in evidence, in his defence upon the trial, the truth of the 
 matter contained in the publication charged as libellous ; and such evi- 
 dence shall be deemed a sufficient justification, unless malicious inten- 
 tion shall be proved." St. 1855, c. 396, § 1. 
 
 This provision was without change incorporated in the Gen. Sts. c. 
 129, § 77. It is true that all the prior legislation had been, not in the 
 direction of limiting the effect of proof of the truth in civil actions, but 
 in the direction of enlarging its effect in favour of, the defendant in a 
 criminal prosecution. The St. of 1826 for the first time permitted the 
 truth to be given in evidence as a justification in criminal prosecutions. 
 Under its provisions the burden of proof was upon the defendant to
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 739 
 
 show not only the truth of the matter charged to be Hbellous, but also 
 that it was published with good motives and for justifiable ends. Com- 
 monwealth V. Bonner, 9 Mete. 410. 
 
 The St. of 1855 goes further in favor of the defendants in criminal 
 prosecutions and throws the burden on the government, if the defend- 
 ant establishes the truth, of proving that the publication was made with 
 malicious intention. In this respect, it accords with the general tenden- 
 cy of modern legislation to make the proof of the truth more eflfective 
 in the defence of a prosecution for libel. 
 
 These considerations, and the further argument that, if the Legisla- 
 ture had intended to make so important a change in the law of libel 
 in civil suits, it would have done so in direct affirmative language, 
 afford some ground for the inference that it was not intended that the 
 exception in the concluding words of the St. of 1855 should apply to 
 civil actions. 
 
 But, on the other hand, we must construe the words of the statute 
 "according to the common and approved usage of the language" unless 
 such construction would be inconsistent with the manifest intent of 
 the Legislature. Gen. Sts. c. 3, § 7, cl. 1. 
 
 This statute in its terms is made applicable "in every prosecution 
 and in every civil action for writing or for publishing a libel." The 
 provisions that the truth may be given in evidence, and if proved shall 
 be sufficient justification, undoubtedly were intended to apply to civil 
 and criminal proceedings. According to the common and approved 
 usage of the language, the exception or qualification contained in the 
 words, "unless malicious intention shall be proved," also applies to 
 civil actions as well as to criminal prosecutions; and we are not able 
 to see either in the context or in the history of previous legislation 
 upon the subject, sufficient evidence of a manifest intent of the Legis- 
 lature that it should be limited to criminal prosecutions. 
 
 We are of opinion, therefore, that the court erroneously ruled at the 
 trial that the exception in the statute did not apply to a civil action, 
 and that the proof of the truth was of itself a defence. But, as this 
 error affected only the count for libel, and as the plaintiff has fully 
 tried his counts for slander, we are of opinion that a new trial should 
 be granted only upon the count for libel. 
 
 Exceptions sustained.^^ 
 
 5 5 Part of the opinion is omitted. 
 
 Compare: Conner v. Standard Pub. Co. (190.')) 183 Mass. 474, 67 N. E. 
 596: (Ct'rtain testimony in an action for libel had been admitted "on the 
 question of whether the article was written honestly and in good faith." 
 Said Loring, J., delivering the opinion: "At common law, the truth of the 
 statement complained of is an absolute defense to an action of libel, and 
 such evidence is not admissible because it does not tend to prove the truth 
 of the facts charged. This is the ground upon which Shaw, C. J., rests his 
 opinion in Sheckell v. Jackson [1852] 10 Cush. 25. But an act was passed in 
 1855 [St. 1855, p. 782, c. 396] which provided that the truth of the mattor 
 should not be a defense if a malicious intention was proved. It was held in 
 Perry v. Porter [1878] 124 Mass. 338, that the burden of proving malice was
 
 740 TORTS THROUGH ACTS OP ABSOLUTE LIABILITY (Part 1 
 
 ; HUTCHINs'v. PAGE. 
 
 (Supreme Court of New Hampshire, 1909. 75 N. H. 215, 72 Atl. 6S9, 31 L. R. 
 
 A. [N. S.] 132.) 
 
 Case, by Hutchins against Page, for an alleged libel. In opening his 
 case the plaintiff's counsel stated that he expected to prove that the 
 defendant, being tax-collector for the city of Portsmouth and having 
 an overdue tax against the plaintiff, advertised the property for sale 
 by posting the notices required by the statute and also by publishing 
 like notices in two newspapers. These publications were alleged to 
 have been made maliciously and for no purpose except to injure the 
 plaintiff". Upon this statement a nonsuit was ordered, subject to excep- 
 tion. 
 
 Peasle;^, J. However the law may be elsewhere,^® it is well settled 
 in this state that the truth is not always a defense to an action on the 
 case to recover damages for the publication of a libel. State v. Burn- 
 ham, 9 N. H. 34, 31 Am. Dec. 217. The rule there suggested, that if 
 the occasion be lawful the motive for the publication is immaterial, if 
 the truth of the charge be established, was m.aterially modified when a 
 case arose in which the question was directly in issue. "It seems to us 
 that in order to settle whether the occasion was lawful we must gen- 
 erally inquire into the motives of the publisher. There may be some 
 cases where the occasion renders, not only the motive, but the truth, 
 of the communication immaterial. Thus it may be the better rule that 
 no relevant statement made by a witness or by counsel in the course of 
 a trial is actionable, even though false and malicious. See Revis v. 
 Smith, 18 Com. Bench, 126. But in the great majority of instances, 
 and certainly in the present case, the lawfulness of the occasion de- 
 pends upon the good faith and real purpose of the publisher. Most of 
 what are called 'privileged communications' are 'conditionally,' not 
 'absolutely' privileged. 'The question is one of good faith,' or mo- 
 tive, and can be settled only by a jury. A court cannot rule that 
 a communication is privileged without assuming the conditions on 
 which it is held to be privileged, namely, that it was made in good 
 
 on the plaintiff ; and in Brown v. Mass. Title Ins. Co. [1890] 151, Mass. 127, 23 TST. 
 E. 733, and Fay v, Harrington [1900] 176 Mass. 270, 57 N. E. 3G9, that by "ma- 
 licious intention" was meant malice, in the popular sense of hatred or ill 
 will. In pursuance of the latter case, the words "actual malice" have been 
 substituted in the act for the original words, "malicious intention." Rev. 
 Liaws, c. 173, § 91. * * * We are of opinion that this evidence was ad- 
 missible in the issue of "actual malice.") 
 
 See, also, Pierce v, Rodliff (1901) 95 Me. 346, 50 Atl. 32, and 25 Cyc. 414. 
 
 66 Compare: Foss v. Hildreth (1S05), 10 Allen (Mass.) 76. The defendant 
 requested an instruction that the truth is not a defence to an action of 
 slander, if the words were spoken maliciously or without any reason on the 
 part of the defendant to believe they were true. "But in respect to verbal 
 slander the law has always been otherwise. A special plea in justification 
 sets forth the tnith of the words merely. 3 Chit. PL 1031." Per Chapman, 
 J. See, also, 25 Cyc. 414, note 25.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 741 
 
 faith, for a justifiable purpose, and with a belief, founded on rea- 
 sonable grounds, of its truth." Palmer v. Concord, 48 N. H. 211, 
 217, 97 Am. Dec. 605; Carpenter v. Bailey, 53 N. H. 590, 594; 
 Id., 56 N. H. 283, 290. 
 
 Under this rule the plaintiff states a case. While it was the defend- 
 ant's duty to publish the fact that the plaintiff had failed to pay the 
 taxes assessed against him, "by posting advertisements thereof in two 
 or more public places in the town" (Pub. St. 1901, c. 60, § 14), it was 
 not his duty to otherwise publish the fact unless he thought such pub- 
 lication was essential to the success of the tax sale. If he did not so 
 believe, but, on the contrary, used this occasion to maliciously pro- 
 claim in a public manner that the plaintiff had not paid his taxes, 
 there is neither legal nor ethical reason why an action should not lie 
 for the damage caused by the malicious and unwarranted act.^^ 
 
 The claim that the defendant is exonerated by the provision that 
 he shall not be liable "for any cause whatever except his own official 
 misconduct" (Pub. St. 1901, c. 60, § 16) cannot be sustained. The 
 misconduct here charged is "his own." He can no more use the statutory 
 power to advertise as a cloak for a malicious assault upon the plain- 
 tiff's character than he could make the power to arrest a commission 
 for the infliction of bodily chastisement. 
 
 Exception sustained. All concurred. 
 
 (h) As A Reply to the Plea of Privilege 
 
 SCOTT V. STANSFIELD. 
 
 (Court of Exchequer, 1868. L. R. 3 Bxch. 220.) 
 [See ante, p. 660, for a report of the case.] 
 
 WILLIAMSON V. FREER. 
 (Court of Common Pleas, 1874. L. R. 9 C. P. 393.) 
 
 This was an action for a libel, tried before Brett, J. The facts 
 were as follows : The plaintiff was employed as assistant in the shop 
 of the defendant, a shoemaker, at Leicester. The defendant having 
 accused the plaintiff of robbing him of money, sent two post-office 
 telegrams to her father, who resided in London, to inform him of his 
 suspicions. The first telegram was to this effect: "Come at once to 
 Leicester, if you wish to save your child from appearing before a 
 magistrate." The second was as follows : "Your child will be given in 
 
 57 For the broader doctrine of this case, see infra, Part III, Chapter 2. 
 "Torts through Acts of Intentional Harm."
 
 742 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 charge of the poHce unless you reply and come to-day. She has taken 
 money out of the till." 
 
 The charge was persisted in down to the trial; but there was no 
 evidence to support it. It did not appear tliat, beyond the officials of 
 the post-office, through whose hands the telegrams passed, they had 
 come to the knowledge of any other persons than the father, mother, 
 and brother of the plaintiff. 
 
 On the part of the defendant it was contended that the messages if 
 sent in sealed letters would clearly have been privileged communica- 
 tions, and that they did not lose this privilege by being transmitted by 
 telegraph. The learned judge told the jury that, although the state- 
 ments, if made bona fide and without malice, would have been priv- 
 ileged if they had been contained in letters addressed to the father, 
 they might be if libellous, deprived of that privilege by being sent 
 by telegraph. And he left it to the jury to say whether the statements- 
 were libellous, and whether it was reasonable to transmit them by 
 telegraph rather than by post. 
 
 The jury found that the statements were libellous, and that it was 
 not reasonable to send them by telegraph, and they returned a verdict 
 for the plaintiff, damages £100. 
 
 Brett, J. I reserved the point because I thought it was a very im- 
 portant one. It is whether, where a communication is to be made to 
 a relative of a person against whom a charge is preferred, which com- 
 munication would be privileged if sent by letter in the ordinary way, 
 the privilege is not lost by sending it in the form of a telegram, — 
 whether a communication in that form can be said to be made to one 
 person, when in point of fact it passes through several hands before it 
 reaches its ultimate destination. Privilege is not wanted unless the 
 publication is libellous. The question then is whether the character of 
 an innocent person is to be destroyed because the libeller thinks fit to 
 send the libel in this shape rather than in a sealed letter. I do not 
 mean to say that there was malice in fact here. But I agree with my 
 Lord that sending the messages by telegraph when they might have 
 been sent by letter was evidence of malice. I desire, however, to put 
 this higher. I think that a communication which would be privileged 
 if made by letter becomes unprivileged if sent through the telegraph 
 office, because it is necessarily communicated to all the clerks through 
 whose hands it passes. It is like the case of a libel contained on the 
 back of a post-card. It was never meant by the legislature that these 
 facilities for postal and telegraphic comrrluni cation should be used for 
 the purpose of more easily disseminating libels. Where there is such 
 a publication, it avoids the privilege, because it is communicated 
 through unprivileged persons.^* As to the damages, I am not at all 
 
 8 8 Accord: Brown v. Croouie (1817) 2 Starkie, 297, 19 R. R. 727: (D. pub- 
 lished in a newspaper an advertisement for a meeting of tlie creditors of P., 
 a banl^mpt. Tlie advertisement contained defamatory statements. Lord 
 Kllenborouj,'h, ruling against a claim of privilege, remarked: "The defend-
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 743 
 
 disposed to think them excessive. The charge against the plaintiff 
 was of a very grave character. It was made with considerable sever- 
 ity, and it was insisted upon even down to the trial. 
 
 ODDY V. LORD GEORGE PAULET. 
 
 (At Nisi Prius, 1865. 4 Fost. & F. 1009, 142 R. R. 743.) 
 
 Slander upon a trader in the way of his business. The first count 
 laid the words to be : "You and your family are all a set of rogues, 
 and you have robbed me ever since I have dealt with you." Plea, not 
 guilty. 
 
 The plaintiff was a com dealer, and the defendant had dealt with 
 him. The orders were given by servants, and there was a book in the 
 usual way in which supplies were entered. The defendant had gone 
 to the plaintiff's shop on several occasions in one week, and had — as 
 was proved by the plaintiff and his son, and a third person who hap- 
 pened to be in hearing — spoken the words complained of in evident 
 heat and anger. The son of the plaintiff was in the shop on one of 
 the occasions, and the third person who was in hearing on another oc- 
 casion was a traveller, who was in a parlour at the back of the shop, 
 and, as he swore, heard the words uttered. It was also sworn on the 
 part of the plaintiff that the defendant spoke the words very loudly, 
 
 ant made no progress in his defense, unless he could show that such a pub- 
 lication was the only effectual mode of convening the creditors. A communi- 
 cation sufficient for the purpose might have been made in measured, lan- 
 guage. The want of proper caution had rendered the publication action- 
 able, as being published to the world at large.") 
 
 Muetze v. Tuteur (1890) 77 Wis. 236, 46 N. W. 123, 9 L. R. A. 86. 20 Am. 
 St. Rep. 115: (D. sent to P. a letter demanding payment of a debt. The letter 
 was enclosed in a red envelope bearing, in large type, the name of a certain 
 association and the statement that it was for collecting bad debts.) 
 
 Sheftall V. Central of Georgia Ry. (1905) 123 Ga. 589. 51 S. E. 649: (P., 
 a conductor on the defendant railway, had been discharged. He had in his 
 possession, as part of his conductor equipment, certain unused tickets. These 
 he failed to turn in. The railway company sent out a circular describing the 
 tickets as "lost and scalped" and requiring the conductors to decline to honor 
 them if presented for transportation. This circular, in which P. was named 
 as failing to surrender the tickets, was sent to all the defendant's con- 
 ductors, and posted for ten days on bulletin boards in public places.) 
 
 Bingham v. Gaynor (1911) 203 N. Y. 27, 96 N. E. 84: (D., a judge in New 
 York City, sent to S., the mayor of the city, a letter containing defamatory 
 statements of P., a police commissioner of the city. S. was the superior 
 officer of P. Before the delivery of this letter to S., it was, through D.'s 
 act, published in newspapers in the city.) 
 
 Compare: Ashcroft v. Hammond (1910) 197 N. T. 488, 90 N, E. 1117: (D., 
 in reply to a telegram from S., who with D. was interested in the proper 
 management of a corporation, and the settlement of a controversy over the 
 validity of an election of its board of directors, sent a telegram reflecting 
 upon the competency of P., who had been manager of the corporation and 
 was active in the pending controversy. The telegram from S., di-afted by 
 P. and sent with his knowledge, asked D. to "telegraph reply" to a certain 
 address.)
 
 74i TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 and SO as to be heard by every one standing by, and, moreover, that 
 he had stood outside and repeated the words loudly, so that he could be 
 heard by persons passing by ; and that some persons were passing by 
 at the time and might have heard it. At the close of the case for the 
 plaintiff, 
 
 Coleridge submitted that the words were privileged, because spoken 
 to a trader by a customer, and as words of remonstrance and com- 
 plaint. 
 
 Lush, J. No doubt a customer may complain to a tradesman with 
 whom he deals of what he deems irregular or dishonest; but if he 
 does so outside the door of the tradesman's shop — so as to be heard 
 by the public — or if even inside the shop, he speaks slanderous words 
 unnecessarily in the presence of third parties, or to third parties, and 
 uses language which is extreme and beyond the occasion — all this, with 
 the tone and manner in which the words were spoken, will be evidence 
 for the jury to consider whether in the law the words were spoken 
 maliciously and without excuse. The case, therefore, cannot be with- 
 drawn from the jury. 
 
 Coleridge thereupon yielded to an apology. 
 
 TOOGOOD V. SPYRING. 
 
 (Court of Exchequer, 1S34. 1 Cromp., M. & R. ISl, 40 R. R. 523.) 
 
 This was an action of slander for words alleged to have been spo- 
 ken of the plaintiff' as a journeyman carpenter, by the defendant on 
 three different occasions. The declaration, the facts of which suffi- 
 ciently appear in the opinion, was in five counts. The defendant 
 pleaded the general issue, and, in two special pleas, the truth of the 
 charge. The plaintiff replied to the special pleas with a de injuria. 
 There was a verdict for the plaintiff. The defendant moved for a 
 nonsuit or a new trial, on the ground of misdirection.^® 
 
 Parke, B. * * * The defendant, who was a tenant of the Earl 
 of Devon, required some work to be done on the premises occupied 
 by him under the Earl, and the plaintiff, w^ho was generally employed 
 by Brinsdon, the Earl's agent, as a journeyman, was sent by him to 
 do the work. He did it, but in a negligent manner ; and, during the 
 progress of the work, got drunk ; and some circumstances occurred 
 which induced the defendant to believe that he had broken open the 
 cellar door, and so obtained access to his cider. The defendant a day 
 or two afterwards met the plaintiff in the presence of a person named 
 Taylor, and charged him with having broken open his cellar door with 
 
 68 The statement of facts is abridged. Tlie arguments of counsel and 
 part of tlie opinion are omitted. The opinion in this case has been referred 
 to as one of "the judgments by Baron Parke which in a few years I'aised 
 the Exchequer to a fully equal position with the other Courts." 40 R. 
 R. vi.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 745 
 
 a chisel, and also with having got drunk. The plaintiff denied the 
 charges. The defendant then said he would have it cleared up, and 
 went to look for Brinsdon ; he afterwards returned and spoke to Tay- 
 lor, in the absence of the plaintiff; and, in answer to a question of 
 Taylor's, said he was confident that the plaintiff had broken open the 
 door. On the same day the defendant saw Brinsdon, and complained 
 to him that the plaintiff had been negligent m his work, had got drunk, 
 and he thought he had broken open the door, and requested him to 
 go with him in order to examine it. 
 
 Upon the trial it was objected, that these were what are usually 
 termed "privileged communications." The learned Judge thought that 
 the statement to Brinsdon might be so, but not the charge made in the 
 presence of Taylor; and in respect of that charge, and of what was 
 afterwards said to Taylor, both which statements formed the subject 
 of the action, the plaintiff had a verdict. We agree in his opinion, 
 that the communication to Brinsdon was protected, and that the state- 
 ment, upon the second meeting, to Taylor, in the plaintiff's absence, 
 was not ; but we think, upon consideration, that the statement made to 
 the plaintiff, though in the presence of Taylor, falls within the class 
 of communications ordinarily called privileged ; that is, cases where 
 the occasion of the publication affords a defence in the absence of ex- 
 press malice. In general, an action lies for malicious publication of 
 statements which are false in fact, and injurious to the character of 
 another (within the well-known limits as to verbal slander), and the law 
 considers such publication as malicious, unless it is fairly made by 
 a person in the discharge of some public or private duty, whether legal 
 or moral, or in the conduct of his own affairs, in matters where his 
 interest is concerned. In such cases, the occasion prevents the infer- 
 ence of malice, which the law draws from unauthorized communica- 
 tions, and affords a qualified defence depending upon the absence of 
 actual malice. If fairly warranted by any reasonable occasion or exi- 
 gency, and honestly made, such communications are protected for the 
 common convenience and welfare of society; and the law has not re- 
 stricted the right to make them within any narrow limits. 
 
 Among the many cases which have been reported on this subject, 
 one precisely in point has not, I believe, occurred ; but one of the 
 most ordinary and common instances in which the principle has been 
 applied in practice is, that of a former master giving the character of 
 a discharged servant; and I am not aware that it was ever deemed 
 essential to the protection of such a communication that it should be 
 made to some person interested in the inquiry, alone, and not in the 
 presence of a third person. If made with honesty of purpose to a 
 party who has any interest in the inquiry (and that has been very lib- 
 erally construed, Child v. Affleck, 33 R. R. 216, 9 B. & C. 403, 4 Man. 
 & Ry. 338), the simple fact that there has been some casual bystander 
 cannot alter the nature of the transaction. The business of life could 
 not be well carried on if such restraints were imposed upon this and
 
 746 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 similar communications, and if, on every occasion in which they were 
 made, they were not protected unless strictly private. In this class of 
 communications is, no doubt, comprehended the right of a master bona 
 fide to charge his servant for any supposed misconduct in his service, 
 and to give him admonition and blame ; and we think that the simple 
 circumstance of the master exercising that right in the presence of 
 another, does by no means of necessity take away from it the pro- 
 tection which the law would otherwise afford. Where, indeed, an 
 opportunity is sought for making such a charge before third persons, 
 which might have been made in private, it would afford strong evi- 
 dence of a malicious intention, and thus deprive it of that immunity 
 which the law allows to such a statement, when made with honesty 
 of purpose; but the mere fact of a third person being present does 
 not render the communication absolutely unauthorized, though it may 
 be a circumstance to be left with others, including the style and char- 
 acter of the language used, to the consideration of the jury, who are 
 to determine whether the defendant has acted bona fide in making 
 the charge, or been influenced by malicious motives. In the present 
 case, the defendant stood in such a relation with respect to the plain- 
 tiff, though not strictly that of master, as to authorize him to impute 
 blame to him, provided it was done fairly and honestly for any sup- 
 posed misconduct in the course of his employment ; and we think that 
 the fact that the imputation was made in Taylor's presence, does not, 
 of itself, render the communication unwarranted and officious, but at 
 most is a circumstance to be left to the consideration of the jury. 
 
 We agree with the learned Judge, that the statement to Taylor, in 
 the plaintift''s absence, was unauthorized and officious, and therefore 
 not protected, although made in the belief of its truth, if it were, in 
 point of fact, false ; but, inasmuch as no damages have been sepa- 
 rately given upon this part of the charge alone, to which the fourth 
 count is adapted, we cannot support a general verdict, if the learned 
 Judge was wrong in his opinion as to the statement to the plaintiff in 
 Taylor's presence ; and, as we think that at all events it should have 
 been left to the jury whether the defendant acted maliciously or not 
 on that occasion, there must be a new trial. 
 
 Rule absolute for a new trial. 
 
 5Y»^ BUNCOMBE v. DANIELL. 
 
 (Adjourned Sittings at Westminster after Michaelmas Term, 1837. 
 
 8 Car. & P. 222.) 
 
 Libel. The declaration was upon two letters written by the defend- 
 ant, who was a barrister and an elector of the borough of Finsbury, 
 and published in the "Morning Post" newspaper, addressed to the 
 plaintiff, Mr. Buncombe, who had been member of parliainent for, and 
 at the time of the publication was a candidate for the representation
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 747 
 
 of, that borough. Plea — Not guilty; and three pleas of justification, 
 stating in substance that the matters contained in the letters were true. 
 Verdict for the defendant, damages £100. 
 
 In the ensuing term, Sir W. Follett for the defendant applied for 
 a new trial upon several grounds, the last of which was that it was 
 justifiable for an elector bona fide to communicate to the constituency 
 any matter respecting a candidate which he believed to be true, and 
 believed to be material to the election. 
 
 Coleridge:, J. You must go further than that, and make out that 
 the elector is entitled to publish it to all the world. This publication 
 was in a newspaper. 
 
 Sir W. Follett submitted that if no more was done than was neces- 
 sary to make the matters known to the electors the publication was 
 privileged, and that whether or not any thing more was done was a 
 question for the jury. 
 
 Lord De;nman, C. J. However large the privilege of electors may 
 be, it is extravagant to suppose that it can justify the publication to all 
 the world of facts injurious to a person who happens to stand in the 
 situation of a candidate. 
 
 Rule refused on the last ground, and granted on the others.®" 
 
 COLEMAN V. MacLENNAN. 
 
 (Supreme Court of Kansas, 1908. 78 Kan. 711, 98 Pac. 281, 20 L. R. A. 
 [N. S.] 361, 130 Am. St. Rep. 390.) 
 
 BuRCH, J. In August, 1904, the plaintiff held the office of Attor- 
 ney General of the state and was a candidate for re-election at the 
 general election, which occurred in the following November. By vir- 
 tue of his office, he was a member of the commission charged with the 
 management and control of the state school fund. The defendant was 
 the owner and publisher of the Topeka State Journal, a newspaper 
 published at Topeka, and circulated both within and without the state. 
 In the issue of the date mentioned appeared an article purporting to 
 state facts relating to the plaintiff's official conduct in connection with 
 
 CO The statement of the case is abridged. 
 
 Accord: Buckstaff v. Hicks (1806) 94 Wis. 34, 68 N. W. 403, 59 Am. St. 
 Rep. 853: (In a meeting of the city council, S., who represented the city in 
 the legislature, made remarks which were defamatory of P. as the city's 
 representative in the state senate. A true report of these remarks, including 
 the defamatory statement, was published in D.'s newspaper, which circulat- 
 ed, not only in the city, but in adjoining counties and cities and outside the 
 state.) 
 
 State V. Haskins (1899) 109 Iowa, 650, 80 N. W. 1063, 47 L. R. A. 223, 77 
 Am. St. Rep. 560: (When P. was a candidate for election as Judge in the 
 fourteenth judicial district, an article falsely charging him with fraudulent- 
 ly altering a judicial record was published in D.'s newspaper, which circulat- 
 ed in this district, in other districts, and outside the state.)
 
 748 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 a school fund transaction, making comment upon them and drawing 
 inferences from them. Deeming the article to be libelous, the plaintiff 
 brought an action for damages against the defendant, alleging that 
 the matter published concerning him was false and defamatory, and 
 that its publication was the fruit of malice. Among other defenses 
 the defendant pleaded facts which he claimed rendered the article and 
 its publication privileged. * * * 
 
 The plaintiff argues that the defense of privilege was destroyed by 
 the fact that copies of the defendant's newspaper circulated in other 
 states, complains of the instructions given upon the subject, and in- 
 sists that the instruction offered by him should have been given. The 
 instruction given was correct and follows the rule announced by this 
 court in Redgate v. Roush, 61 Kan. 480, 59 Pac. 1050, 48 L. R. A. 
 236. There a matter of interest to communicants of a church was 
 published in the church papers in Indiana, Ohio, Texas, and Nebraska. 
 It was inevitable that they should be read by people of other denomi- 
 nations. The syllabus reads : ''Where the publication appears to have 
 been made in good faith and for the members of the denomination 
 alone, the fact that it incidentally may have been brought to the at- 
 tention of others than members of the church w'ill not take away its 
 privileged character." This accords with the general rule stated in 
 25 Cvc. 387. See, also. Hatch v. Lane, 105 Mass. 394; Mertens v. 
 Bee Publishing Co., 5 Neb. (Unof.) 592, 99 N. W. 847. 
 
 In the cases of State of Iowa v. Haskins, 109 Iowa, 656, 80 N. W. 
 1063, 47 L. R. A. 223, 77 Am. St. Rep. 560, Buckstaff v. Hicks, 94 
 Wis. 34, 68 N. W. 403, 59 Am. St. Rep. 853, and Sheftall v. Central 
 Railway Co., 123 Ga. 589, 51 S. E. 646, language is used from which 
 it might be inferred that privilege will be destroyed if the communi- 
 cation should reach the eyes of others than persons interested. This 
 would be the end of privilege for all newspapers having circulation 
 and influence. Generally the publication must be no wider than will 
 meet the requirements of the moral or social duty to publish. If it 
 be designedly or unnecessarily or negligently excessive, privilege is 
 lost. But, if a state newspaper published primarily for a state con- 
 stituency have a small circulation elsewhere, it is not deprived of its 
 privilege in the discussion of matters of state-wide concern because 
 of that fact.°^ * * * 
 
 61 Parts of the opinion are omitted. 
 
 Accord (incidental excess): Hatch v. Lane (1S70) 10-5 Mass. 394: fD., a 
 baker who emplo.ved several drivers to deliver bread in Taunton and adjoin- 
 ing towns, inserted in the Taunton Daily Gazette a notice that, P. "having 
 left my emploj' and taken upon himself the privilege of collecting my bills, 
 this is to give notice that he has nothing farther to do with my business.") 
 
 Shnrtleff v. Stevens (1879) 51 Vt. 501, 519, ;^1 Am. Rep. G98, 707: (At a 
 meeting of an association of Congregatiuualist ministers in Vermont, a 
 resolution defamatory of P., a member of the association, was passed and a 
 copy of this resolution was, by order of the mooting, published in two news- 
 papers which were the organs of the Congregationalist churches and cir-
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 749 
 
 SAVAGE V. STOVER. 
 
 (Supreme Court of New Jersey, 1914. 92 Atl. 2S4.) 
 
 Savage brought an action against Stover for libel and had judgment 
 below. The defendant appeals. 
 
 Parker, J. This is a libel suit coming up from the district court 
 of Hoboken. The plaintiff is the president and, as claimed, the virtual 
 owner of a bread-baking concern, and the defendant is an attorney at 
 law who had two claims against the corporation on behalf of former 
 employes who had deposited $100 each as security for the faithful 
 performance of their duties, and after their dismissal or resignation 
 were able to get only part of it back. The corporation was repre- 
 sented by the counsel for the present plaintiff, and the libel consisted 
 in a letter written by the defendant Stover, in which, among other 
 things, he spoke of the plaintiff, Savage, as follows, after declining to 
 make a settlement in the two cases : 
 
 "'Your client is one of the most cold-blooded of men I have ever met. Not 
 only did I see his actions in the Townsend matter where he provoked an as- 
 sault and battery, but he sent me a very insulting letter when I wrote him 
 in a friendly way in spite of the fact that my folks bought his bread. 1 
 have a good mind to tell my folks to discontinue buying his bread. He treats 
 his men laborers like dogs. Not only does this contract exemplify that, but 
 I have heard tales from drivers and from men close to you and him how he 
 insults and squeezes them. Pei"Soually if I were you I would not lend my- 
 self to do the work of that fellow Savage. How can he expect to build up 
 a business on the reputation he is getting throughout the county? I would 
 ship him long ago were Jie my client. I would not want his reputation 
 to redound on my shoulders. Kindly let me know at once whether you will 
 try or settle it." 
 
 This was sent to Mr. Burtis in the usual course. The case was tried 
 by a judge without a jury, and he found a verdict for $75 damages 
 and costs, which is the judgment now complained of. 
 
 culated chiefly, but not exclusively, among Congregationalists in Vermont and 
 New England.) 
 
 Broughton v. McGrew (C. C. 1SS9) 39 Fed. 672, 5 L. R. A. 406: (At a meet- 
 ing of the stockholders of a railway company, D., a stockholder, made to the 
 other stockholders a statement which was defamatory of the general man- 
 ager of the conwration, in his official capacity. Three attorneys, who were 
 not stockholders, were present on invitation from officers of the road.) 
 
 Conrad v. Roberts (Kan. 1915) 147 Pac. 795: (In an action for slander D. 
 pleaded that the words were spoken by her in a conversation with her hus- 
 band, S., at a time when she understood that he was in danger of arrest for 
 his conduct with P. and another woman where he lived, that this would 
 bring disgrace upon the family of D. and S., and that she desired to warn 
 S. in his own interest, as well as in that of the family. The court in sub- 
 stance charged the jury that if a third person overheard the defamatory re- 
 mark concerning P. which D. made to S. on this occasion, the remark was 
 not privileged unless such third person was a mere eavesdropiJer. But, said 
 the reviewing court, "it was privileged, though a third person, without being 
 an eavesdropper, heard it, provided it was made in good faitli. 'Where the 
 presence of bystanders is a mere casual incident, not in any sense sought 
 for liy the defendant, he will not be deprived of his privilege.' " Per Porter, 
 J., referring to 18 Am. & E. Encyc. of L. 1047, and cases there cited.
 
 750 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 It is now claimed that the court should have entered a nonsuit or 
 directed a verdict (there was no jury) on several grounds, the principal 
 of which is tliat the letter was privileged. No doubt it was privileged 
 as to what it said about Savage in connection with the two cases that 
 were then pending, but it is very far from confining itself to those 
 matters. It is rather a general personal admonition from one attorney 
 to another that the client of the latter is not fit to be regarded as a 
 client and ought to be sent about his business. This was clearly out- 
 side the scope of the business under discussion between the two at- 
 torneys, and raised the question whether the letter was privileged as 
 to such surplus matter. The authorities appear to be in some conflict 
 on this point. 25 Cyc. 386, 387. In Fahr v. Hayes, 50 N. J. Law, 275, 
 280, 13 Atl. 261, 263, a slander suit, the defendant on a privileged oc- 
 casion used strong language, but this court held that his motive "did 
 not betray the defendant into any expression beyond what was perti- 
 nent to the subject of * * * (the) inquiry, and was honestly be- 
 lieved by the defendant, and therefore was legalized by the privileged 
 occasion and motive." The inference is open that, if the language 
 used had been "beyond what was pertinent to the subject of * * * 
 (the) inquiry," another view of defendant's liability would have been 
 taken. In the case at bar the language was not spoken, but written; 
 and was not in response to any inquiry, confidential or otherwise, but 
 was manifestly volunteered. Hence it clearly exceeded the demands 
 of the occasion ; and in such case we think the true rule is that such 
 excessive language is not covered by the privilege. 
 
 If, however, the rule be otherwise, the judgment below is not nec- 
 essarily erroneous. The burden of showing privilege is on the de- 
 fendant, and if he sustains it the plaintiff may still hold him liable by 
 showing express malice. Fahr v. Hayes, supra. This might appear 
 from the very language used. Id. ; 25 Cyc. 387. As we read this let- 
 ter, its very language was evidence justifying the jury, or the court 
 sitting as a jury, in finding the existence of express malice. 
 
 The other points made are insignificant. * * * 62 Judgment 
 affirmed. 
 
 JENOURE V. DELMEGE. 
 
 (Judicial Committee of tlie Privy Couucil. (1S91] A. C. 73.) 
 
 On appeal from the Supreme Court of Jamaica. 
 
 This was an action of libel brought by the respondent Delmege 
 against the appellant Jenoure. Delmege was a Government medical 
 officer. Jenoure was a justice of the peace, residing in the same par- 
 ish. The libel was contained in the following letter signed by Jenoure 
 
 82 Part of the opinion is omitted.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 751 
 
 as justice of the peace and sent by him to the inspector of constabu- 
 lary- for the district: 
 
 "Sir — I have been informed on good authority that Dr. Delmege, of Man- 
 chioneal was called by cue Lindsay (who, I believe, is his servant) to attend a 
 woman in labour named Zipporah Henry, of Manchioneal, on Sunday, 8th 
 January ; that, although implored by Lindsay to attend the woman, the doctor 
 refused to do so without the fee, and that consequently the woman died on 
 Monday morning from want of medical attendance. I shall be obliged in 
 the interest of humanity, especially as I am informed it is by no means an 
 uncommon occurrence for Doctor Delmege to refuse to attend such cases, 
 if you will inquire into this matter and if the facts prove to be as stated, that 
 you will reiwrt the case to the proper authority, as such wilful neglect can- 
 not be allowed." 
 
 The appellant pleaded that the statements contained in the letter 
 were true in substance and in fact, and that the occasion of the publi- 
 cation was privileged. The jury returned a general verdict for the 
 plaintiff with £50 damages, and judgment was entered accordingly. 
 
 A motion for a new trial was granted on the ground of misdirection 
 with regard to the question of privilege. But on argument, the Court 
 unanimously confirmed the judgment. The appellant subsequently 
 obtained special leave from Her Majesty in Council to prefer an ap- 
 peal. In the Privy Council the judgment of their Lordships was de- 
 livered by 
 
 Lord Macnaghten.^^ * * * 'pl-,g chief Justice told the jury 
 that it was tlie duty of the appellant, as a justice of the peace, to bring 
 circumstances such as those mentioned in his letter to the notice of the 
 proper authorities. Their Lordships may observe in passing that, in 
 their opinion, nothing turns on the position of the appellant as a jus- 
 tice of the peace. To protect those who are not able to protect them- 
 selves is a duty which every one owes to society. The Chief Justice 
 went on to tell the jury that the proper authority to whom such a com- 
 plaint should have been submitted was the superintending medical of- 
 ficer ; but he also told them that, if they thought that the appellant had 
 addressed the letter to the inspector of constabulary by an honest 
 unintentional mistake as to the proper authority to deal with the com- 
 plaint, then the communication would not be deprived of any privilege 
 to which it would have been entitled had it been addressed to the su- 
 perintending medical officer. So far the summing up seems to be open 
 to no objection. 
 
 The Chief Justice then proceeded to explain to the jury that the ex- 
 istence of privilege was contingent on whether in their opinion, the 
 appellant honestly believed the statements contained in the letter to be 
 true. The meaning of the Chief Justice is made perfectly clear by 
 what follows. After referring to the cases where the alleged defam- 
 atory matter was spoken or written by masters with reference to the 
 characters of servants, he points out that, in such cases, "no question 
 
 03 The reporter's statement of facts and parts of the opinion are omitted.
 
 752 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 as to the bona fides of the defendant arises as preliminary to the ex- 
 istence of privilege." Where, however, "it is alleged that the defam- 
 atory communication was made in discharge of a duty," his view was 
 that the defendant must "satisfy the jury that he made the communi- 
 cation with a belief in its truth." "No doubt," he adds, "the dicta of 
 some of the judges in the masters and servants cases cited seem to 
 extend to all classes of privileged communications ; but no case was 
 cited, and I have been able to find none, where, when privilege was 
 claimed on the ground that the communication was made in discharge 
 of a duty, it has been held that the plaintiff, to support his action, must 
 prove express malice. In the one case there can be no room for doubt 
 that, if the defendant established the relation which existed between 
 him and the plaintiff', a privilege arises which can only be overcome 
 by proof of express malice. In the other, the authorities already cited 
 shew that, where a defendant claims privilege in respect of a charge of 
 misconduct volunteered by him, he must satisfy the jury that he acted 
 bona fide before the question of privilege arises for the determination 
 of the judge." 
 
 There can be no doubt, therefore, that the learned Chief Justice 
 gave the jury to understand that it lay upon the appellant to prove 
 affirmatively that he honestly believed the statements contained in the 
 alleged libel to be true, and that, unless and until that was made out 
 by him to their satisfaction, it was not incumbent on the respondent 
 to prove express malice. 
 
 Curran, J., took the same view of the authorities, and Northcote, T., 
 concurred. 
 
 Notwithstanding some dicta which, taken by themselves and apa 't 
 from the special circumstances of the cases in which they are to be 
 found, may seem to support the view of the Chief Justice, their Lord- 
 ships are of opinion that no distinction can be drawn between one 
 class of privileged communications and another, and that precisely 
 the same considerations apply to all cases of qualified privilege. "The 
 proper meaning of a privileged communication," as Parke, B., ob- 
 serves, Wright v. Woodgate, 2 C, M. & R. 577, "is only this : that the 
 occasion on which the communication was made rebuts the inference 
 prima facie arising from a statement prejudicial to the character of 
 the plaintiff, and puts it upon him to prove that there was malice in 
 fact — that the defendant was actuated by motives of personal spite or 
 ill will, independent of the occasion on which the communication was 
 made." There is no reason why any greater protection should be giv- 
 en to a communication made in answer to an inquiry with reference 
 to a servant's character than to any other communication made from 
 a sense of duty, legal, moral, or social. The privilege would be worth 
 very little if a person making a communication on a privileged occasion 
 were to be required, in the first place, and as a condition of immunity, 
 to prove affirmatively that he honestly believed the statement to be 
 true. In such a case bona fides is always to be presumed.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 753 
 
 Their Lordships consider the law so well settled that it is not in 
 their opinion necessary to review the authorities cited by the Chief 
 Justice. The last case on the subject is Clark v. Molyneux, 3 Q. B. D. 
 2?i7 , to which, unfortunately, the attention of the Supreme Court was 
 not called. That was a case, not of master and servant, but of a com- 
 munication volunteered from a sense of duty. A verdict was found 
 for the plaintiff. But it was set aside by the Court of Appeal on the 
 ground of misdirection. In giving his judgment, Cotton, L. J., used 
 the following language, every word of which is applicable to the pres- 
 ent case. "The burden of proof," he says, "lay upon the plaintiff to 
 shew that the defendant was actuated by malice; but the learned 
 judge told the jury that the defendant might defend himself by the 
 fact that these communications were privileged, but that the defend- 
 ant must satisfy the jury that what he did he did bona fide, and in the 
 honest belief that he was making statements which were true. It is 
 clear that it was not for the defendant to prove that he was 
 acting from a sense of duty, but for the plaintiff to satisfy the jury 
 that the defendant was acting from some other motive than a sense 
 of duty." «* 
 
 Their Lordships are therefore of opinion that there was a misdirec- 
 tion on a material point, which may have led to a miscarriage. In- 
 deed, it is difficult to see how the jury could have done anything but 
 find for the plaintiff, having regard to the way in which the question 
 was presented to them. The jury were told that it was for the de- 
 fendant to prove that he honestly beUeved the statements in his letter 
 to be true ; whereas the letter itself put these statements forward, not 
 
 64 Compare: Henry v. Moberly aS9.3) 6 Ind. App. 490, 33 N. E. 981: A 
 complaint iu an action for libel alleged that the defendant, who with two oth- 
 ers constitnted a board of school trustees before whom the plaintiff's appli- 
 cation for employment as a teacher was pending, filed his protest before this 
 board, objecting in "false, malicious, and libelous language" to plaintiff's 
 emplojTnent. The defendant's charge was that the plaintiff "had claimed 
 wages not due her" and to obtain them "had made statements which in my 
 opinion she knew to be false." The complaint was held demurrable. "In 
 her complaint appellee avers that appellant published the 'malicious' lan- 
 guage quoted. This expression, without explanation, would be equivalent 
 to saying that he so published the words without sutHcient excuse. In the 
 .same connection, however, in the complaint, the facts are stated which dis- 
 close a legal excuse, unless he was prompted by express or actual malice. 
 Inasmuch as she has statefl these facts, it appears to us, on reason and anal- 
 ogy, that it was incumbent on her to allege that ho acted maliciously. If 
 he was in fact prompted by malicious motives, instead of a desire to dis- 
 charge the duties of his office, iu publishing the defamatory matter recited in 
 his protest, he is, under the authorities, undoubtedly liable ; but when ap- 
 pellee concedes, as she does in her complaint, the privilege under which ap- 
 pellant was acting on the only occasion of which she complains, it is then 
 incumbent on her to aver facts sufficient to negative the rights which ac- 
 crue to him on account of such privilege." Per Duvis, J. And .see Henry v. 
 Moberly (1899) 23 Ind. App. .305, 51 N. E. 497. See al.so the opinion of Collins, 
 M. K., in Thomas v. Bradbury, Agnew & Co., [190G] 2 K. B. U27, given in text 
 infra, 
 
 Hepb.Tobts — 48
 
 754 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 as matters of the truth of which the writer has satisfied himself, but 
 as matters calling for inquiry and consideration by the proper authori- 
 ties. 
 
 Their Lordships think that the verdict cannot stand ; that the judg- 
 ment entered thereon, and the orders of the 26th of July, 1888, and 
 the 5th of September, 1888, ought to be discharged, and that there 
 ought to be a new trial; but only on the terms that the plea of justi- 
 fication is not to be raised again. It seems to their Lordships that that 
 issue has been finally disposed of. * * * 
 
 BAVINGTON v. ROBINSON. 
 
 (Court of Appeals of Maryland, 1914. 124 Md. 8-5, 91 Atl. 777.) 
 
 This was an action, by Bavington against Robinson, for slander. 
 Under the instructions of the court below, a verdict was rendered for 
 the defendant. The plaintiff appealed from the judgment thereon. 
 The declaration, framed in several counts, alleged the following de- 
 famatory statements by the defendant of the plaintiff: 
 
 "Don't you know you are stealing my corn? Well, you are." "Don't you 
 know you are criminally liable? You are." "I (meaning the defendant) 
 am going to see the state's attorney; you (meaning the plaintiff) have been 
 robbing me long enough." 
 
 * * * The defendant pleaded the general issue, and filed a special 
 plea of justification to the second count. At the conclusion of the testi- 
 mony for the plaintiff the court directed a verdict for the defendant, on 
 the ground that the alleged slanderous words were privileged and the 
 plaintiff had failed to oft'er any proof of express malice ; and it is from 
 that ruling that the only question in this appeal arises. * * * 
 
 From the testimony it appears that the appellant is a young man 
 engaged in farming, and has canned tomatoes since 1906 in his home 
 county, Harford. * * * f^g appellee is a canner and canned 
 goods broker. The canning operations of the appellant had been 
 financed since their beginning by the appellee until the difficulty which 
 gave rise to this suit. The business of the appellant did not prosper, 
 * * * and, in 1908, he gave to the appellee a bill of sale to cover 
 his indebtedness to him of 32,000. * * * The property under this 
 bill of sale included 250 barrels of corn, then in the field unhusked, 
 the number of barrels being estimated, as well as a lot of farming 
 machinery and some live stock, all of which remained in the possession 
 of the appellant. On the 18th of December, 1909, the appellee loaned 
 the appellant $700 on the joint note of the appellant and his father, 
 payable two months after date. The appellant agreed with the appellee 
 at this time that the corn that was covered by the bill of sale should be 
 hauled and sold by him and the proceeds therefrom applied to the 
 payment of the note. It was not agreed, however, that it should be
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 755 
 
 hauled at once, but in several conversations it was agreed that it should 
 be held until it advanced to $4 a barrel. On February 21, 1910, the 
 appellant was standing in the corridor of the Bel Air courthouse, talk- 
 ing with some people, when the appelleee called to him. After the 
 appellant had walked over to him the appellee said to him: "How 
 about that corn, have you hauled any of it out?" Appellant told him 
 he had hauled out about 35 barrels. Upon the appellee demanding 
 the money the appellant told him he had part of it to his credit in bank, 
 a part his father, with whom he lived, had, and a part of the corn had 
 not been paid for, and that since he had not the weights with him he 
 could not tell how much he had received, and, therefore, could not pay 
 him that day. Whereupon, shaking his finger at him, the appellee in a 
 loud voice spoke the words set out in the declaration. Several persons, 
 who were in the corridor of the courthouse, testified as to the use of 
 these words and the manner of the appellee. 
 
 The only question presented, is, should the court have ruled, upon 
 this state of facts, that the appellee was entitled to the protection of 
 a privileged communication? The law upon the subject of privilege 
 is too well settled to admit of serious controversy. The statement of 
 the testimony shows that if this is to be classed as a privileged com- 
 munication, it is of course a qualified privilege. Malice is the essential 
 of the action of slander, but it is not necessary that it be proved ; when 
 once the slanderous words are proved, malice is presumed. However, 
 when the words alleged to be slanderous are embraced in the class 
 of privileged communications, the plaintiflF is bound to prove the ex- 
 istence of malice as the real motive of the defendant's language. 
 * * * 
 
 It is a question for the court to decide, in the first instance, whether 
 words alleged to have been slanderous were privileged by the occa- 
 sion, assuming them to have been spoken in good faith, without malice, 
 and in the belief that they were true; and, if so privileged, then the 
 plaintiff must show express malice in order to recover. And if there 
 is any evidence tending to prove express malice, that question should 
 be submitted to the jury. Brow v. Hathaway, 13 Allen (Mass.) 239; 
 Fresh v. Cutter, 73 Md. 87, 20 Atl. 774, 10 L. R. A. 67, 25 Am. St. 
 Rep. 575. But it is proper for the court, where the facts are contro- 
 verted, to instruct the jury as to what facts amount to privilege, and 
 leave it to the jury to determine whether those facts are proved. 
 Brinsfield v. Howeth, 107 Md. 278, 68 Atl. 566, 24 L. R. A. (N. S.) 
 583. "But the plaintiff has the right, notwithstanding the privileged 
 character of the communication, to go to the jury, if there be evidence 
 tending to show actual malice, as when the words unreasonably impute 
 crime, or the occasion of their utterance is such as to indicate, by its 
 unnecessary publicity or otherwise, a purpose wrongfully to defame 
 the plaintiff. * * * Expressions in excess of what the occasion 
 warrants do not per se take away the privilege, but such excess may be 
 evidence of malice." Fresh v. Cutter, supra.
 
 75G TORTS THROUGH ACTS OP ABSOLUTE LIABILITY (Part 1 
 
 Applying the above principles to the facts of the present case, it is 
 plain that the occasion of the utterance of the slanderous words was 
 such as to throw upon the appellant the burden of showing express 
 malice. We are also of the opinion that the court was in error in rul- 
 ing that there was no evidence tending to show the existence of malice. 
 
 Could the appellee have believed, from the facts known to him, that 
 the appellant was guilty of crime ? It is true he had a bill of sale upon 
 the corn, but from the testimony it was a bill of sale in form only. It 
 was clearly a mortgage. The only evidence in the case shows he had 
 directed the appellant to sell the corn. When the appellant was in the 
 act of carrying out this direction he was accused of a crime. There- 
 fore, if the jury should find from the evidence that the accuser did not 
 believe the accusation he had made was true, there would be a fact 
 from which they could infer malice. The use of the words, "You have 
 been robbing me long enough," might also tend to show malice, if the 
 jury should think they were in excess of what the occasion demanded. 
 Did not the facts tend to show, in the light of the knowledge the appel- 
 lant had, that it was an unreasonable imputation of crime? If, then, 
 the jury could have found from them malice, it was not for the court 
 to pass its judgment upon them, but to have left that question to 
 be determined by the jury, with proper instructions from the court. 
 
 Judgment reversed, and new trial awarded, with costs to the appel- 
 lant.^^ 
 
 ^-,-" SMITH V. STREATFEILD et al. 
 
 ^ (King's Bench Division. [1913] 3 K. B. 764.) 
 
 The defendant the Reverend Canon G. S. Streatfeild wrote a 
 pamphlet containing defamatory statements of the plaintiff and em- 
 ployed the other defendants, the Robert Spennell Press, a firm of 
 printers, to print and publish it. The pamphlet was circulated only 
 among those who had a common interest with the defendant Canon 
 Streatfeild in the contents. As regards him a qualified privilege was 
 admitted. The Court was of opinion that as it was a natural and 
 proper course to print the pamphlet in order to get it published to 
 those having a common interest in its contents, the privilege extended 
 to the printers also. The jury found that Canon Streatfeild was 
 actuated by malice in publishing the pamphlet, but that the printers 
 were not. 
 
 McCardie, for the defendants the Robert Spennell Press. These 
 defendants are entitled to judgment. The evidence must shew that 
 the defendants themselves were actuated by malice; otherwise the 
 plaintiff cannot recover against them. It is not enough to shew that 
 some one else was so affected : Hennessy v. Wright (1888) 24 Q. B. D. 
 
 «6 rarts ot tlie opinion are omitted.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 757 
 
 445, n. In an action against the publisher of a magazine evidence of 
 the writer's personal malice is inadmissible : Robertson v. Wylde 
 (1838) 2 Moo. & R. 101. 
 
 Further, these defendants having printed and published the pam- 
 phlet in the ordinary course of business may claim a privilege separate 
 and distinct from that of their co-defendant. Where matter is pub- 
 lished on a privileged occasion all incidental acts such as printing or 
 copying, if done in the ordinary course of business, are privileged 
 also : Baker v. Garrick (1894) 1 O. B. 838. 
 
 Sir F. Low, in reply. There is no authority for the position that 
 printers can claim privilege on the ground that printing was in the 
 ordinary course of their business and incidental to the publication 
 of the matter complained of. The words of Lord Macnaghten in 
 Macintosh v. Dun, [1908] A. C. 390, at p. 400, apply most aptly to 
 these defendants : "'What is their motive ? Is it a sense of duty ? 
 Certainly not. It is a matter of business with them. Their motive 
 is self-interest. They carry on their trade, just as other traders do, 
 in the hope and expectation of making a profit." They admit the print- 
 ing and publication of a libel. The only way in which they can set up 
 a privilege is by sheltering themselves behind their' co-defendant. His 
 privilege does not cover him and consequently they stand unprotected. 
 
 Bankes, J. * * * It remains only to consider the proposition 
 contended for by Mr. McCardie that the printers are entitled to judg- 
 ment, as the jury have negatived any malice on their part. I\Ir. Mc- 
 Cardie's contention in substance amounted to this, namely, that his 
 clients' privilege was what he called an incidental privilege — that is 
 to say, that, though it arose out of the same facts as constituted the 
 privilege of Canon Streatfeild, it was independent of it in the sense 
 that his clients were entitled to the protection of the privilege even 
 though Canon Streatfeild might have disentitled himself to any protec- 
 tion. It appears to me that Mr. McCardie's argument fails, whether 
 the question is regarded from the point of view of the law applicable 
 to privilege, or of the law applicable to the case of joint tortfeasors. 
 
 To take the last first: the publication here complained of was a 
 joint publication — that is to say, a single publication to each rural dean 
 for which both defendants were jointly responsible. This publication 
 was admitted by the printers. The finding of the jury establishes the 
 fact that the defendant Canon Streatfeild was a tortfeasor as regards 
 this publication. It necessarily follows, in my opinion, that the print- 
 ers are joint tortfeasors with him. The ordinary rule of law is that 
 each tortfeasor is liable for all the consequences of the joint tort. In 
 Clark V. ]\Iewsam (1847) 1 Ex. 131, Rolfe, B., states the rule thus: 
 "When two persons have so conducted themselves as to be liable to 
 be jointly sued, each is responsible for the injury sustained by their 
 common act." In my opinion it follows from this rule of law that in 
 the case of a joint publication of a libel each tortfeasor is liable for the
 
 758 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 malice of the other. It may very well be that in assessing damages the 
 jury may take into account the fact that one of the two persons 
 jointly responsible for the publication of the libel may be morally 
 blameless, and may consequently refuse to give anything in the nature 
 of vindictive damages in a verdict which will affect him, but this does 
 not affect his liability for the publication. 
 
 The same result, in my opinion, follows if the matter is looked at 
 from the point of view of privilege. The principle upon which the 
 law of qualified privilege rests is, I think, this : that where words are 
 published which are both false and defamatory the law presumes 
 malice on the part of the person who publishes them. The publication 
 may, however, take place under circumstances which create a qualified 
 privilege. If so, the presumption of malice is rebutted by the priv- 
 ilege, and in an action for libel or slander founded on a publication 
 upon a privileged occasion the plaintiff has to prove express malice on 
 the part of the person responsible for the publication. The effect of 
 proving express malice is sometimes spoken of as defeating the priv- 
 ilege. This is a convenient expression, and conveys in a single word 
 a correct idea of what has really happened, namely, that although the 
 occasion remains a privileged occasion, the privilege afforded by the 
 occasion ceases to be an effective weapon of defence. The reason for 
 this is obvious. Qualified privilege is a defence only to the extent that 
 it throws on the plaintiff the burden of proving express malice. Di- 
 rectly the plaintiff succeeds in doing this the defence vanishes, and it 
 becomes immaterial that the publication was on a privileged occasion. 
 Qualified privilege in one sense may be said to be the privilege of the 
 individual, in that it arises out of the circumstances in which the in- 
 dividual is placed, but as a defence it is attached to the publication. 
 Where therefore, as here, the plaintiff is complaining of a joint pub- 
 lication, if the defence of privilege as to that publication fails because 
 of the proof of express malice, it fails, in my opinion, altogether, and 
 the plaintiff establishes his right to succeed in respect of that particu- 
 lar publication. 
 
 From whichever point of view, therefore, Mr. McCardie's contention 
 is approached, the result is, in my opinion, the same, and his clients 
 cannot derive any benefit, so far as liability for the publication of the 
 libel is concerned, from the fact that the jury have negatived any ex- 
 press malice on their part. In the result, therefore, I give judgment 
 against both defendants for £50 damages. 
 
 Judgment for plaintiff.®" 
 
 66 The statement of facts is abridged and part of the opinion is omitted.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 759 
 
 (c) As A Reply to the Plea of Faib Co\rMENT 
 
 THOMAS V. BRADBURY, AGNEW & CO, Limited, et al. 
 
 (In the Court of Appeal. [1906] 2 K. B. 627.) 
 
 The plaintiff was a journalist, and the author of a book entitled 
 "Fifty Years of Fleet Street, being the Life and Recollections of Sir 
 John R. Robinson." The defendants Bradbury, Agnew & Co. were 
 the proprietors and publishers of "Punch," to which the other defend- 
 ant, Henry W. Lucy, contributed articles under the pseudonym of 
 "Toby, M. P." Sir John Robinson was a journalist who had been at 
 one time the editor and for many years the manager of the "Daily 
 News," until his retirement in 1901. He died in 1903. The plaintiff 
 had been his private secretary. The alleged libel was in the following 
 review, published in "Punch" : 
 
 "Mangled Remains. 
 
 "Extract from the Recess Diary of Toby, M. P. 
 
 "Been reading "Fifty Years of Fleet Street,' just issued by Macmillan. Pur- 
 ports to be the 'L,ife and Recollections of Sir John Robinson,' the man who 
 made, and for a quarter of a century maintained at high level, the Daily 
 ^'ews. The story is written by Mr. F. M. Thomas, who has added a new 
 terror to death. There are biographies of sorts ranging in value with the 
 personality of the subject and the skill of the compiler. The former occasion- 
 ally suffers from the incapacity of the latter. But at least his individuality 
 is scrupulously observed. Like Don Jose, what he has said he has said, hLs 
 observations and written memoranda not being mixed up with what his 
 biographer thinks he himself thought, uttered and recorded. Mr. Thomas 
 goes about the biographer's business in fresh fashion, complacently announced 
 by way of introduction to the volume. 'I have not thought it necessary or 
 desirable,' he writes, 'to indicate in all cases what is his (Sir John Robin- 
 son's) and what is my own. If there is anj'thing amusing or entertaining 
 in these pages, I am quite content that my dear old chief should have the 
 credit of it. The dulness I take upon myself.' Here is generosity! Here 
 is magnanimity I It is true that in the performance of his task Mr. Thomas 
 occasionally falls from his high estate. More than once he airily alludes 
 to 'our diary' — 'our notes,' as if he had prepared them in collaboration with 
 his chief. Possibly conscious for a moment of this indiscretion, and revert- 
 ing to a more generous mood, he, approaching a particular narrative. Intro- 
 duces it with the remark, 'the incident may be given in the diarist's own 
 words.' The procedure is perhaps not unusual with the earlier biographers. 
 With Mr. Thomas the lapse is rare. When he does let the hapless subject 
 speak for himself, h^ is relegated to small type. For the rest it is Mr. Thom- 
 as who loquitur, retelling poor Robinson's cherished stories as if they 
 were his own, sometimes with heavy hand binishing off the bloom. Even 
 in these depressing circumstances there is no mistaking Robinson's sly 
 humor, his gift of graphic characterization. The worst of it is that, happen- 
 ing in the very same page upon some banal remark, some pompous platitude, 
 the alarmed reader, recognizing Mr. Thomas, hastily turns over half a dozen 
 pages, and possibly misses a handful of the genuine ore. These are hard lines, 
 unjust to Robinson, unfair to the public. It is plain to see from the few 
 unmutilat'ed extracts from Robinson's manuscript which illuminate the book, 
 that the materials at hand for a delightfiil biography were abur.dant. For 
 nearly forty yeai-s the manager of the Daily News lived in the very heart 
 of things. He was behind most scenes of public life, was more or less in- 
 timately acquainted with the principal personages figuring in it. His sym-
 
 760 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part I 
 
 pattiies were bountifully wide, his observation alert, his sense of humor keen. 
 He loved his newspaiJer work with almost passionate affection. For him 
 titty years of Fleet Street was worth a cycle of Cathay. That he habitually 
 made notes of what he saw and heard with a Aiew to publication in bio- 
 graphical form is undoubted: Mr. Thomas, impregnable in the chain armor of 
 complacency, positively admits it. 'Robinson' he says, 'did leave some diaries 
 ^our diaries — more or less fragmentary, and a number of thick, closely writ- 
 ten volumes of jottings in his own handwriting, descriptive of events of which 
 he had been an eye-witness, and people he had seen and known.' Where is 
 this treasure trove? Presumably ix)rtions the biographer was good enough to 
 regard as worth adapting are filtered through the wordy pages of larger type. 
 Happily the material is go good, its original literary form so excellent, that even 
 this unparalled atrocity cannot quite spoil the book. We who knew Robinson 
 on his throne on liouverie Street and at the well known table in the dining 
 room of the Reform Club, rich in the recollections of William Black, Payn, 
 and Sala ; who watched him enjoying himself like a boy at theatre first 
 nights; who recognized his rare capacity as a newspaper man; who knew 
 the kind heart hidden behind a studiously cultured severity of manner in 
 business relations — we, perhaps, jealously cherish his memory, and regret 
 the surprising chance that has made possible this slight upon it." 
 
 The plaintiff claimed damages for libel in respect of this review. 
 The defendants pleaded that the words complained of were incapable 
 of a defamatory meaning; and further, that they were written and 
 published as a criticism and fair comment upon the plaintiff's book 
 without any malice towards the plaintiff, and were a fair and bona 
 fide criticism upon the book which was a matter of public interest. 
 
 At the trial the plaintiff's case was first, that the language of the 
 review itself was such as to furnish evidence that the writer was not 
 in truth criticizing the book, but was maliciously attacking the au- 
 thor; and, secondly, that there was evidence outside the review that 
 the defendant Lucy, in writing the criticism, was actuated by malice 
 towards the plaintiff. As extrinsic evidence of malice the plaintiff 
 relied upon the strained relations between Lucy and himself before the 
 criticism was published ; on the fact that the criticism was published 
 as a separate article under the heading "Mangled Remains," and was 
 not included in that part of the journal usually devoted to the reviews 
 of books under the heading "Our Booking Office" ; and on the an- 
 swers and demeanour of Lucy in the witness box at the trial. At the 
 close of the plaintiff's case counsel for the defendants submitted that 
 there was no case to go to the jury, upon the grounds that the article 
 was incapable of defamatory meaning, and that there was no evidence 
 that it exceeded the limits of fair comment. The judge declined to 
 withdraw the case from the jury, who found a verdict for the plaintiff 
 with £300 damages. The defendants appealed.*'^ 
 
 Collins, M. r. * * * 'phe defendants do not complain of mis- 
 direction other than that involved in holding that there was any evi- 
 dence fit for the consideration of a jury. They ask for judgment on 
 the ground that there was nothing in the article which any reasonable 
 jury could find to fall outside the limits of fair comment, or in the 
 
 87 The statement of the case is abridged, and parts of the opinion are omit- 
 ted.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 761 
 
 alternative they ask for a new trial on the ground that the verdict was 
 against the weight of evidence. * * * 
 
 I have already said that extrinsic evidence of malice, which I have 
 attempted to summarize, was allowed to go to the jury. The defend- 
 ants contended that this evidence amounted to nothing, that no rea- 
 sonable jury could act upon it, but they also raised a contention, which 
 alone, as it seems to me, gives any importance to this case. Their point 
 was that if the article itself, apart from the extrinsic evidence, did 
 not raise a case for the jury that the bounds of fair comment had 
 been overstepped, proof of actual malice on the part of the writer 
 could not affect the question or disturb his immunity. This is a 
 formidable contention. It involves the assertion that fair comment 
 is absolute, not relative, and must be measured by an abstract standard ; 
 that it is a thing quite apart from the opinions and motives of its author 
 and his personal relations towards the writer of the thing criticized. 
 It involves the position also that an action based on a criticism is 
 wholly outside the ordinary law of libel, of which maHce, express or 
 implied, has always been considered to be the gist. 
 
 The basis of this contention, such as it is, appears to be a miscon- 
 ception of the effect of the gloss, if I may so phrase it, first put upon 
 the law of libel in relation to fair comment in the dicta of Crompton, 
 J., and Blackburn, J., in Campbell v. Spottiswoode, 3 B. & S. 769, at 
 pp. 778, 780, decided in 1863, and subsequently approved in Merivak 
 V. Carson, 20 Q. B. D. 275, decided in 1887. * * * «« In cases of 
 
 6 8 "What is the principle upon which the defence [of fair comment] is 
 founded, and what are the limits of its application? 
 
 "As to the first point there are two rival theories. The one is that ex- 
 pounded by the Court of Common Pleas (Willes, Byles, and Brett, J.J.) in 
 Henwood v. Harrison (1S72) L. R. 7 C. P. 606. The Court there says (at 
 p. 622): 'The principle upon which these cases are founded is an universal 
 one, that the public convenience is to be preferred to private interests, and 
 that communications which the interests of society require to be unfettered 
 may freely be made by persons acting honestly without actual malice, not- 
 withstanding that they involve relevant comments condemnatory of individ- 
 uals.' And the Court therefore came to the conclusion (at p. 62.5) 'that the 
 fair and honest discussion of, or comments upon, a matter of public interest 
 is in point of law privileged, and that it is not the subject of an action, un- 
 less the plaintiff can establish malice.' In other words, the Court in that 
 case held that the defence of "fair comment' is merely a branch of the defence 
 of 'qualitied privilege' in the ordinary sense. 
 
 "The rival view was first expounded by Blackburn and Crompton, JJ., in 
 Campbell v. Spottiswoode (1863) .3 B. & S. 769, 32 L. J. Q. B. 185, and has since 
 received the adhesion of the Court of Appeal in Merivale v. Carson (1SS7) 
 20 Q. B. D. 27.5. In the first of these cases, Blackburn. J., puts the matter 
 thus: 'I think it of considerable consequence to bear in mind that the case 
 is not one of privilege, properly so called, but the question is whether the ar- 
 ticle complained of is a libel or not.' And Crompton, J., says: 'The first 
 question is libel or no libel, which is for the jury; and they have to say 
 whether the writing complained of goes beyond fair comment:' if it does not 
 it is no libel.' • * * 
 
 "What then would be the logical solution of the matter? That the true 
 basis of the defence of 'fair comment' is that laid down in Henwood v. 
 Harrison, and not that laid down in (:anipl)ell v. Si>ottiswoode and Merivale 
 v. Carson. Both Blackburn, J., in the former case, and Bowen, L. J., iu the
 
 762 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 privilege, properly so called, nothing that falls outside the privilege 
 is protected by it, and if defamatory it must be otherwise justified. 
 The occasion being- privileged, the extent of the privilege may var>' 
 according to the nature of the case and the limits of the right or duty 
 which is the basis of the privilege. But this is precisely the position 
 in the case where the right exercised is one shared by the rest of the 
 public, and not one limited to an individual or a class. The extent of 
 the right has to be ascertained, and in respect of any communication 
 which falls within it the immunity, if it be not absolute, can be dis- 
 placed only by proof of malice. In the case of comment on literary 
 works the occasion is created by the publication, and a right then arises 
 to criticize honestly, however adversely. No such occasion arises in 
 respect of a private unpublished letter. If a writer were to get hold 
 of a private letter of a well known author and publish a damnatory 
 article on the author's literary style and taste, as evidenced by the 
 letter, it seems to me that he w^ould have no immunity from the ordi- 
 nary law in respect of defamatory writings. The only difference then, 
 in the legal incidents of ordinary privilege, limited to individuals on 
 the one hand and the right in the public to criticize on the other, would 
 seem to me that one might, with somewhat less latitude than the other, 
 though not perhaps, with perfect accuracy, be described as "priv- 
 ilege." * * * 
 
 latter, distinguish the defence of 'fair comment' from that of 'privilege,' 
 properly so called, by saying that the latter is the peculiar right of a par- 
 ticular individual under particular conditions, a true privile.gium ; while 'fair 
 comment' is the right of everj- member of the public. With the greatest 
 deference to the opinion of these two great lawyers, is that distinction sound? 
 It may possibly be correct as regards what is known as 'absolute privilege' — 
 the privilege of a Member of Parliament, a Judge upon the Bench, and the 
 like. But is not 'qualified privilege' the equal right of all the world? It is 
 the occasion which is privileged and not the man. Every one has an equal 
 right to use defamatory language in giving the character of a servant, in 
 making complaint of a subordinate to his superior, and the like. It does 
 not depend upon his position in life, or upon his being a member of any par- 
 ticular class. It is based solely upon public utility. It is hard to see any 
 logical distinction between the defence of 'fair comment' and that of 'quali- 
 fied privilege' in the ordinary sense. It is to the public advantage that public 
 matters and the actions of public men should be fully and freely discussed, 
 and, therefore, although in such discussion defamatory language may be used, 
 it is privileged. The 'occasion' which gives rise to the 'privilege' is tbe dis- 
 cussion of matters of public importance, and of those alone: in which sense 
 the privilege is limited by the 'occ^ision' just as any other kind of 'qualified 
 privilege.' The true view would therefore seem to be that the decision in 
 Henwood v. Harrison is right — that 'fair comment' is only a form of "quali- 
 fied privilege,' and that proof of actual malice will do away with the pro- 
 tection which would otherwise prevail. But how? Surely not by importing 
 a kind of defamatory flavour into that which would otherwise not be de- 
 famatory, but on a different principle. Certain occasions justify the use of 
 defamatory words, but on public grounds alone. If a man tries to make 
 use of the occasion as a 'cloke of maliciousness,' he forfeits the special pro- 
 tection which he would otherwise enjoy, because tbe raison d'etre of his 
 defamatory statement is not a bona fide exercise of a public right, but a de- 
 sire to gratify his private spite." 
 
 Mr, Francis K. Y. Radcliffe, 23 Law Quart. Rev. 07 (1907).
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 763 
 
 If the analysis be strictly carried out it will be found that the two 
 rights, whatever name they are called by, are governed by precisely 
 the same rules. The only practical difference is, that in an action 
 based on a criticism of a published work the transaction begins, by the 
 admission on the part of the plaintiff, implied from the averment by 
 him of publication of the work criticized, that the comment came into 
 existence on a protected occasion. He is placed, therefore, in pre- 
 cisely the same position as he would have been in had he sued in 
 respect of a defamatory writing prima facie unprotected and therefore 
 actionable, but had gone on to aver facts which created a privilege 
 strictly so called. ®® Beginning thus at this stage in the transaction 
 he would have accepted the onus of proving malice in fact. If he had 
 veiled the fact that the writing criticized had become matter of public 
 interest by publication it would have been prima facie libellous, and 
 the defendant would have had to plead such a publication as would 
 let in the right to comment on a matter of public interest in order 
 to bring himself within the protection. * * * 
 
 It is of course possible for a person to have a spite against another 
 and yet to bring a perfectly dispassionate judgment to bear upon his 
 literary merits; but, given the existence of malice, it must be for the 
 jury to say whether it has warped his judgment. Comment distorted 
 by malice cannot in my opinion be fair on the part of the person who 
 makes it. I am of opinion, therefore, that evidence of malice actuating 
 the defendant was admissible, that the learned judge was right in let- 
 ting the evidence in this case go to the jury. 
 
 But I am also of opinion on a close examination of the alleged libel 
 that, apart from the extrinsic evidence of malice, the learned judge 
 could not have withdrawn the case from the jury. One point made by 
 the plaintiff would, I think, of itself suffice to establish this position. 
 The defendant Lucy says in the alleged libel "it is plain to see from 
 the few unmutilated extracts * * * that the materials at hand 
 for a delightful biography were abundant." This statement was de- 
 scribed by the plaintiff in a letter to the editor of "Punch" as "simply 
 untrue." A short statement was thereupon published in the issue of 
 December 7, in which the defendant, while accepting the plaintiff's 
 statement as to the paucity of materials, quotes a passage from the 
 preface to the book dealing with the existence of materials, and con- 
 cludes thus: "Toby, M. P., had at the time of writing no knowledge 
 of the subject beyond the definite statements quoted in the biographer's 
 own words. He regrets that, accepting them in their ordinary sense, 
 he received and conveyed an impression of Mr. Thomas's literary 
 methods which turns out to have been erroneous." He is thus in 
 the difficulty of having to admit a misstatement of fact in respect of 
 which, to put it at the lowest, a question must arise for the jury 
 
 69 Accord : Henry v. Moberly (189.3) 6 Ind. App. 490. 3.3 N. E. 9S1, where the 
 point, on a question of privilege, is elaborately considered.
 
 7G4 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 whether the passage he reHed upon justifies the statement. I think 
 also that the learned judge could not have properly held that there 
 was no evidence fit for the consideration of the jury as to some of 
 the innuendoes averring imputations of discreditable motives. I am 
 of opinion, therefore, that we could not direct judgment for the de- 
 fendants without usurping the functions of the jury. Neither can we 
 say that the evidence is so slight as to justify us in ordering a new 
 trial on the ground that the verdict is against the weight of the evi- 
 dence. 
 
 A point was made by the defendants' counsel that the plaintiff had 
 admitted that he did not rely upon evidence of malice outside that 
 which was to be inferred from the article itself. Some thing to this 
 effect certainly appears in the Times report, but it has not found its 
 way into the judge's note, and the point of personal spite was forcibly 
 put by the plaintiff''s counsel throughout the whole case, which the 
 judge refused to withdraw from the jury without any limitation as 
 to any of the evidence given. I think, therefore, that we should not 
 be justified in treating this answer as excluding all extrinsic evidence 
 of malice from the discussion. Libel or no libel, I need hardly add, is 
 pre-eminently a question for the jury where there is any evidence fit 
 for their consideration.'^" 
 
 Appeal dismissed. 
 
 VI. Other Acts at Perii, 
 
 (A) Keeping His Fire 
 
 ANONYMOUS. 
 (Court of Common Pleas, 1583. Cro. Eliz. 10, 78 Reprint, 276.) 
 
 Snagg moved this case, and demanded the opinion of the Judges in 
 it. J. S. with a gun at the door of his house shoots at a fowl, and by 
 this fireth his own house, and the house of his neighbour; upon which 
 he brings an action on the case generally, and doth not declare upon the 
 custom of the realm, as 2 Hen. 4, viz. for negligently keeping his 
 fire. 
 
 The question was, if this action doth lie? And all the Court held it 
 did, for the injury is the same, although this mischance was not by a 
 common negligence, but by misadventure:^^ and if he had counted 
 upon the custom of the realm, as 2 Hen. 4, the action had not been 
 well brought ; yet "consuetudo regni est communis lex." 
 
 7 Cozens-Hardy, L. J., and Sir Gorell Barnes, President, agreed with tiie 
 judgment of the Master of the Rolls. 
 
 71 "If my fire by misfortune burns the goods of another man, he shall 
 have his action on the case against me. If a hre Ijreaks out suddenly in juy 
 house, I not knowing it, and it burns my goods and also my neighbor's house,.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 765 
 
 TUBERVIL V. STA:\IP. C 
 
 (Court of King's Bench, 1697. 1 Salk. 13, 91 Reprint, 13.) 
 
 Case on the custom of the reahn quare neghgenter custodivit ignem 
 suum in clauso suo, ita quod per flammas blada quer. in quodam clauso 
 ipsius quer. combusta fuerunt. After verdict pro quer. it was object- 
 ed, the custom extends only to fire in his house, or curtilage (like goods 
 of guests), which are in his power. Non alloc. For the lire in his 
 field is his fire as well as that in his house ; he made it, and must see it 
 does no harm, and answer the damage if it does. Every man must 
 use his own so as not to hurt another ; but if a sudden storm had risen 
 which he could not stop, it was matter of evidence, and he should have 
 shewed it. And Holt, Rokesby, and Eyre against the opinion of Tur- 
 ton, who went upon the difference between fire in an house which is in 
 a man's custody and power, and fire in a field which is not properly 
 so ; and it would discourage husbandry, it being usual for farmers to 
 burn stubble, etc. But the plaintiff had judgment according to the 
 opinion of the other three.* 
 
 FAHN V. REICHART. 
 
 (iSupreme Court of Wisconsin, 1S59. 8 Wis. 255, 76 Am. Dec. 237.) 
 
 The complaint averred that the defendant on the 1st of April, 1858, 
 carelessly set fire to a large log pile on his own lands and about three 
 feet from the boundary of the plaintifif's lands ; that the fire continued 
 to burn for three days, when the wind blew hard, and blew the sparks 
 
 he shall have his action on the case against me. So, if the fire is caused 
 by a servant or a guest, or any person x^'ho entered the house with my con- 
 sent. But otherwise, if it is caused by a stranger who entered the house 
 against my will." Rolle's Abr. Action on the Case, B., tit. "Fire." 
 
 * "The short name of the action ('for negligent garder son feue') is a mis- 
 leading one; it means merely 'for failing to keep in his fire,' and the re- 
 sponsibility was absolute." John H. Wigmore, 7 Harv. Law Rev. 315, 448 
 (1893); 3 Anglo-Am. Legal Essays (1909) 474, .511. Compare Jenks' Short 
 Hist. Eng. Law (1912) 311. 
 
 Ten years after Tubervil v. Stamp, the Statute of 6 Anne, c. 31, § 6, pro- 
 vided that for the space of three years no action should be maintained 
 "against any person in whose house or chamber any fire shall accidentally be- 
 gin." This temporary act was declared in 1711 to "have been found useful 
 and beneficial" and was then made perpetual. In 1774, the exemption from 
 liability for accidental fires was extended to the person J'iij, whose house, 
 chamber, stable, bam, or other building, or on whose estate any fire shall 
 accidentally begin." Stat. 14 Geo. Ill, c. 78, § 86. 
 
 For the historical bearings of the doctrine see Professor Wigmore's article 
 on "Responsibility for Tortious Acts," 7 Harv. Law Rev. 315, 448 (1893) ; 3 
 Anglo-American Legal Essays, 474, 511. 
 
 For the effect of the statutes of 1711 and 1774 on the rule in America, see 
 Lansing v. Stone (1862) 37 Barb. (N. Y.) 15. Compare Meld v. New York 
 Central Ry. Co. (1865) 32 N. Y. 339, 349.— [iid.
 
 766 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 and fire from the log pile, about twelve rods, to a straw stack of the 
 plaintiff's, close to the plaintiif's barn, and so burnt the stack and barn 
 with its contents. The answer denied the complaint. The verdict was 
 for the defendant, and the plaintiff sued out this writ of error. The 
 only point complained of was whether the instruction of the court was 
 proper or not.'^^ 
 
 Cole, J. We do not think that the plaintiff in error could have been 
 prejudiced by the charge of the circuit court. For suppose the evi- 
 dence had been clear and incontestible, that the defendant in error by 
 himself or sen-ants, had set fire to the logs and brush upon his own 
 land, and that the fire had been communicated to the plaintiff's barn, 
 and destroyed it ; still the action might not be sustained. A man may 
 burn logs and brush upon his own land. The act is not unlawful or 
 necessarily attended with injurious consequences to his neighbors. So 
 the jury would not only have to find that the defendant caused the fire 
 to be set there, but also that there was negligence or carelessness in 
 putting the fire at that place at the time. An action will not lie for 
 any injury resulting from doing a lawful act in a lawful manner. "A 
 possible damage to another in the cautious and prudent exercise of a 
 lawful right is not to be regarded, and if a loss is the consequence, it 
 is damnum absque injuria." Clark v. Foot, 8 Johns. (N. Y.) 421 ; 
 Panton v. Holland, 17 Johns. (N. Y.) 92, 8 Am. Dec. 369; Thurston 
 V. Hancock, 12 Mass. 220, 7 Am. Dec. 57. 
 
 The defendant could not be held answerable in damages for the 
 reasonable and proper exercise of a lawful right, attended by a cau- 
 tious regard for the rights of others, when there is no negligence, un- 
 skillfulness or malice in the act done. The charge seems to be predi- 
 cated upon the idea that the defendant would be liable if he set on fire 
 the brush and log heaps upon his own land, and the plaintiff's barn 
 was burned from the sparks and cinders from this fire thus existing. 
 But if the defendant was not guilty of negligence in the care and man- 
 agement of the fire set by him, he would not be liable. * * * 
 
 Judgment affirmed.''^ 
 
 7 2 The statement of the case is abridged and part of the opinion is omit- 
 ted. 
 
 73 Accord: Clark v. Foot (1811) 8 Johns. (N. Y.) 421; Stuart v. Hawley 
 (1856) 22 Barb. (X. Y.) 619. And see Professor Burdicli's remark: "In this 
 country, the common-law liability for fire has never been enforced. A person 
 does not start a fire on his land at his peril. If it spreads beyond his prem- 
 ises and harms others, his liability for the harm must be .i,'rounded on his 
 neglijrence." Burdick on Torts (3d Ed.) 509. See also Mr. Justice Gray's 
 resume of the doctrine in St Louis & San Francisco Ry. v. Mathews (1896) 
 165 L. S. 1, 5, 6, 9, 10, 17 Sup. Ct. 243, 41 L. Ed. 611.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 7G7 
 
 SECKERSON v. SINCLAIR. 
 (Supreme Court of North Dakota, 1913. 24 N. D. 625, 140 N. W. 239.) 
 
 Appeal from a judgment for $1,528.73 and interest thereon from 
 the time of the injury, in all $1,664, for damages occasioned by a fire 
 alleged in one count of the complaint to have been negligently set by 
 the defendant, and in another to have been negligently allowed by him 
 to spread from his land to that of the plaintiff. 
 
 Bruck, J. * * * ^* The proposed instruction was also errone- 
 ous in that in it the court was requested to instruct the jury that the 
 plaintiffs could not recover — 
 
 "unless the juiy found that the fire was set by the defendant to the stubble, 
 and negligently permitted to escape from the stubble to the prairie, and 
 thence to and over and upon the lands of the plaintiffs, or any of them, and 
 that it destroyed the alleged proi)erty." 
 
 This proposed instruction told the jury that, if the defendant set 
 the fire, he was not liable unless he negligently permitted it to escape. 
 This is not the law. Setting fire to prairie land in the month of March 
 renders the one who does so absolutely liable. It is not even necessary, 
 indeed, that it should have been done with any negligent or malicious 
 purpose. Section 2061, R. C. 1905 ; 19 Cyc. 981 ; Thoburn v. Camp- 
 bell, 80 Iowa, 338, 45 N. W. 769 ; Conn v. May, 36 Iowa, 241 ; Dun- 
 leavy v. Stockwell, 45 111. App. 230. We know that counsel contends 
 that section 2061 does not specify straw stacks, but it does specify 
 grass or stubble lands. To say that setting fire to a straw stack, which 
 is in the midst of stubble, and, in turn, sets fire thereto, is not setting 
 fire to the stubble itself is an absurdity. Kelley v. Anderson, 15 S. D. 
 107, 87 N. W. 579." * * * 
 
 Judgment for plaintiff, if interest remitted from date of injury to 
 the verdict.'^ ^ 
 
 74 Only so much of the case is given as relates to the one point 
 7 5 Compare: St. Louis & San Francisco Ry. v. Mathews (1897) 165 U. S. 
 1, 22, 17 Sup. Ct. 243, 251 (41 L. Ed. 611). The question was whether a statute 
 which made a railway company absolutely liable for damages by lire com- 
 municated by its locomotives to the property of others was constitutional. 
 Mr. Justice Gray, delivering the opinion, remarked: 
 
 "The learning and diligence of counsel have failed to discover an instance 
 in which a statute, making railroad companies absolutely liable for damages 
 by tire communicated from their locomotive engines to the property of others, 
 has been adjudged to be unconstitutional, as to companies incorporated be- 
 fore or since its enactment. This review of the authorities leads to the fol- 
 lowing conclusions: First. The law of England, fi-om the earliest times, 
 held any one lighting a fire upon his own premises to the strictest accounta- 
 bility for damages caused by its spreading to the property of others. Second. 
 The earliest statute which declared railroad corporations to be absolutely 
 responsible, independently of negligence, for damages by fire communicated 
 from their locomotive engines to proi^erty of others, was passed in Massa- 
 chusetts in 1840, soon after such engines had become common. Third. In 
 England, at the time of the passage of that statute, it was undetermined 
 whether a railroad corporation, without negligence, was Liable to a civil ac-
 
 768 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 (B) Liability for Animals 
 
 NOYES V. COLBY. 
 (Supreme Court of Judicature of New Hampshire, 1855. 30 N. H. 143.) 
 
 Trespass for breaking and entering the plaintiff's close. Plea, the 
 general issue. 
 
 The plaintiff proved that towards night, on June 27, the defendant's 
 cow was grazing on the plaintiff's land. The defendant oft'ered to 
 
 tion, as at common law, for damages to property of others by fire from its 
 locomotive engines ; and the result that it was not so liable was subsequent- 
 ly reached after some conflict of judicial opinion, and only when the acts 
 of Parliament had expressly authorized the corporation to use locomotive 
 engines upon its railroad, and had not declared it to be resiwnsible for such 
 damages. Fourth. From the time of the passage of the ]Massachusetts stat- 
 ute of 1840 to the present time, a period of more than half a century, the 
 validity of that and similar statutes has been constantly upheld in the courts 
 of every State of the Union in which the question has arisen. 
 
 "In this court, the constitutionality of such a statute has never been directly 
 drawn into judgment. But it appears to have been assumed in Grand Trunk 
 Hallway v. Richardson (1875) 91 U. S. 454, 472, 23 L. Ed. ^,56, and it rests upon 
 principles often affirmed here. * * * The motives which have induced, and the 
 reasons which justify, the legislation now in question, may be summed up 
 thus: Fire, while necessary for many uses of civilized man, is a dangerous, 
 volatile and destructive element, which often escapes in the form of sparks, 
 capable of being wafted afar through the air, and of destroying any combustible 
 property on which they fall ; and which, when it has once gained headway, 
 can hardly be arrested or controlled. Railroad corporations, in order the 
 better to carry out the public object of their creation, the sure and prompt 
 transportation of passengers and goods, have been authorized by statute to 
 use locomotive engines propelled by steam generated by fires lighted upon 
 those engines. It is within the authority of the T^egislature to make adequate 
 provision for protecting the property of others against loss or injury by sparks 
 from such engines. The right of the citizen not to have his property burned 
 without compensation is no less to be regarded than the right of the cor- 
 poration to set it on fire. To require the utmost care and diligence of the 
 railroad corporations in taking precautions against the escape of fire from 
 their engines might not afford sullicient protection to the owners of property 
 In the neighborhood of the railroads. When both parties are equally faultless, 
 the Legislature may proi>erly consider it to be just that the duty of insuring 
 private property against loss or injury caused by the use of dangerous in- 
 struments should rest iiiwn the railroad company, which employs the instru- 
 ments and creates the peril for its own profit, rather than upon the owner of 
 the property, who has no control over or interest in those instruments. The 
 very statute now in question, which makes tlie railroad company liable to 
 damages for property so destroyed, gives it, for its protection against such 
 damages, an insural)le interest in the property in danger of destruction, and 
 the right to obtain insurance thereon in its own behalf ; and it may obtain in- 
 surance upon all such property generally, without specifying any particular 
 prui>erty. Eastern Railroad v. Relief Ins. Co. (18(J8) 98 Mass. 420. The stat- 
 ute is not a penal one, imposing punishment for a violation of law; but it 
 is purely remedial, making the party, doing a lawful act for its own profit, 
 liable in damages to the innocent party injured thereby, and giving to that 
 party the whole damages, measured by the injurv suffered. Grand Trunk 
 Railway v. Richardson (1875) 91 U. S. 454, 472, "23 L. Ed. 356; Huntington 
 V. At (rill (1892) 146 U. S. 657, 13 Sup. Ct. 224, 36 L. Ed. 1123. The statute 
 is a constitutional and valid exercise of the legislative power of the State, 
 and applies to all railroad corporations alike."
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 7G9 
 
 prove that on June 27 he pastured this cow in a certain pasture, and 
 that one Heath then pastured his cow in the same pasture; that on 
 the evening in question, when Heath drove his cow home, he let the 
 defendant's cow also out of pasture ; that he did this without any au- 
 thority, or the defendant's knowledge or assent ; and that Heath drove 
 the cow some distance from the pasture to a cross-roads, about 2(X) 
 feet from the plaintiff's land, when she strayed along the road and 
 into the plaintiff's land, which was unfenced. 
 
 On these facts, the defendant contended that he was not a trespass- 
 er merely because he owned the cow ; that he had done no wrongful 
 act ; that Heath's act, being without the plaintiff's knowledge or as- 
 sent, and without his authority, could not make him liable in trespass ; 
 that if there was any trespass, the action should have been against 
 Heath. 
 
 There was no dispute as to the facts. The court ruled that the action 
 could not be maintained, and a verdict was taken for the defendant.'^ ^ 
 
 Woods, C. J. "A man is answerable for not only his own trespass, 
 but that of his cattle also ; for if by his negligent keeping they stray 
 upon the land of another (and much more if he permits or drives them 
 on), and they there tread down his neighbor's herbage, and spoil his 
 corn or his trees, this is a trespass for which the owner must answer 
 in damages." 3 Black. Com-. 211. Such is the law as stated in the 
 words of the author of the Commentaries, which are themselves very 
 high authority on such subjects, and such has been the uniform prac- 
 tice and understanding of the law in all times, so far as the books 
 show, and it is therefore too late to inquire whether the remedy by 
 an action of trespass is founded upon the strictest logical propriety,^ ^ 
 where the cause of the damage is the negligence, and not the wilful 
 act of the owner of the mischievous beasts. 
 
 It is hardly necessary to remark, but for the course of the defend- 
 ant's argument, that the proposition quoted from Blackstone relates to 
 the case in which the beasts "stray upon the land of another," and 
 not to the case in which they are driven upon it by a stranger ; for 
 then the stranger is the author of the wrong, and the horse that he 
 rides, or drives, is the mere passive instrument in his hands, and the 
 owner of it, unless he have lent it for the purpose of the wrong, is as 
 wholly guiltless as any other person. For in that case, the beast does 
 not by the owner's negligent keeping stray upon the land of his neigh- 
 bors. 
 
 It is substantially upon this ground that Tewksbury v. Bucklin, 7 
 N. H. 518, was decided; in which it was held that a party having the 
 custody of the cattle was answerable for the trespass which they com- 
 mitted by straying upon another's inclosure. 
 
 76 The statement of the case is slightly abridged. 
 
 77 See Salrnond on Torts (2d Ed.) 164, note 13; Id. 197, note 10. 
 
 Hepb . TOBTS — 19
 
 770 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 Tiie case finds that the cow "strayed along the road," and commit- 
 ted the act complained of. It would not be just to hold the party to 
 the strict meaning of a single word, if it appeared by the context to 
 have been used inaccurately ; but it appears distinctly that the animal, 
 although driven by Heath some distance from the pasture in the direc- 
 tion of the locus in quo, was not driven upon it so as to be in his hands- 
 a mere instrument for committing a trespass. Heath's trespass was 
 upon the chattel of the defendant, but not upon the soil of the plain- 
 tilt. He abandoned the cow, and she being no longer in his custody, 
 "strayed," and involved the owner in the consequences ordinarily inci- 
 dent to permitting beasts to stray into the inclosures of others. 
 
 When Heath abandoned the cow, she was about twelve rods from 
 the lands of the plaintiff. From that period she was no longer under 
 the control of Heath, but was again in the legal possession of the de- 
 fendant, and under his general custody and control ; and like other 
 owners having the care and custody of their beasts at the time, he is 
 answerable in trespass for her act in straying upon the close in ques- 
 tion, and grazing there. * * * ^* 
 
 o BROWN, Esq., v. GILES. 
 
 (At Nisi Prius, 1823. 1 Car. & P. 118, 28 R. R. 769.) 
 
 This was an action against the defendant, for breaking the plaintiff's 
 close with dogs, &c., and trampling down his grass in a certain close, 
 called Bryant's close, in the parish of A., on divers days. The defend- 
 ant pleaded the general issue. 
 
 The usual notice not to trespass was proved ; and a witness proved, 
 that, after the notice, he saw the defendant walking down the turnpike 
 road, and his dog jumped into the field, called Bryant's close. 
 
 Park, J., was decidedly of opinion, that the dog jumping into the 
 field, without the consent of its master, not only was not a wilful tres- 
 pass, but was no trespass at all, on which an action could be main- 
 tained ; he should therefore nonsuit the plaintiff. 
 
 MASON V. KEELING. 
 
 (Court of King's Bench, 1699. 12 Mod. 332, 88 Reprint, 13.59.) 
 
 Action on the case ; in which the plaintiff declared that on the twen- 
 tieth of June, in the eleventh of the King, the defendant quendam 
 canem molossum valde ferocem did keep, and let him go loose unmuz- 
 zled per publica compita, so that pro defectu curse of the defendant 
 the plaintiff was bit and worried by the said dog, as he was peaceably 
 
 7 8 Part of the opinion is omitted.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 771 
 
 going about his business in such a street. There was another count, 
 in which it was laid that the defendant knew the dog ad inordend. 
 assuet. To the first count there was a demurrer, and to the second 
 not guilty. 
 
 And it was strongly insisted, that the laying it to be canem valde 
 ferocem, and suffered to go about the streets unmuzzled, and pro de- 
 fecto curse, supplied the want of sciens, &c., for it was said to be part 
 of the excellency of the law of England, that it leaves no man with- 
 out a remedy, that has suffered a wrong through the fault of an- 
 other. '^^ * * * 
 
 Gould, J. No doubt but in the case of sheep there ought to be a 
 sciens, because that is an accidental quality, and not in the nature of 
 a dog. And as to property of a dog, the books distinguish ; for a man 
 has a property in a dog that is a mastiff or spaniel, for the one is for 
 the guard of his house, the other for his pleasure; but this here is a 
 mongrel, and laid to be valde ferocem, and that must be an innate 
 fierceness, and not accidental ; and if a dog be assuet. to bite cows 
 and the master know it, that will not be sufficient knowledge tc make 
 him liable for his biting sheep. Besides, this case is distinguishable 
 in respect of the place, for the law takes notice of highway, and is a 
 security for passengers ; and it would be dangerous to keep such dogs 
 near the highway, where all sorts of people pass at all hours; and to 
 maintain this issue, they must give a natural fierceness in evidence. 
 
 Holt, C. J. If it had been said, that the defendant knew the dog 
 to be ferox, I should think it enough. The difference is between things 
 in which the party has a valuable property, for he shall answer for all 
 damages done by them; but of things in which he has no valuable 
 property, if they are such as are naturally mischievous in their kind, 
 he shall answer for hurt done by them without any notice ; but if they 
 are of a tame nature, there must be notice of the ill quality ; and the 
 law takes notice that a dog is not of a fierce nature, but rather the 
 contrary ; and the presumption is against the plaintiff ; for can it be 
 imagined a man would keep a fierce dog in his family wittingly? If 
 any beast in which I have a valuable property do danmge in another's 
 soil, in treading his grass, trespass will lie for it ; but if my dog go 
 into another man's soil, no action will lie. See the case of IMillan v. 
 Hawtree, 1 Jones, 131, that scienter is the git of the action; and so 
 is 1 Cro., where it was doubted whether the scienter should go to the 
 keeping or quality; nor does it appear here but it was an accidental 
 fierceness, or suppose it were an innate one to this dog particularly ; 
 and it had been given to the owner but an hour before, shall he take 
 notice of all the qualities of his dog at his peril, or shall he have his 
 action against the giver for bestowing him a naughty dog? In case a 
 dog bites pigs, which almost all dogs will do, a scienter is necessary. 
 1 Cro. 255. And I do not doubt but if it be generally laid that a dog 
 
 79 A large part of tlie argument is omitted.
 
 772 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 was used to bite animalia, and the defendant knew of it, it will be 
 enough to charge him for biting of sheep, &c. ; and by animalia shall 
 not be intended frogs or mice, but such in which the plaintiff has prop- 
 erty. 
 
 And judgment was given for the defendant by HoLT, Chief Justice, 
 and TuRTON, Justice; Gould, Justice, mutante opinionem suam,'"' 
 
 o MAY et ux. V. BURDETT. 
 
 (Court of Queen's Bench, 1846. 9 Q. B. 101, 115 Reprint, 1213.) 
 
 Lord Denman, C. J., now delivered the judgment of the Court. ®^ 
 This was a motion to arrest the judgment in an action on the case 
 for keeping a monkey which the defendant knew to be accustomed to 
 bite people, and which bit the female plaintiff. The declaration stated 
 that the defendant wrongfully kept a monkey, w^ell knowing that it was 
 of a mischievous and ferocious nature and used and accustomed to 
 attack and bite mankind, and that it was dangerous to allow it to be at 
 large; and that the monkey, whilst the defendant kept the same as 
 aforesaid, did attack, bite, and injure the female plaintiff, where- 
 by, &c. 
 
 It w^as objected on the part of the defendant that the declaration was 
 bad for not alleging negligence or some default of the defendant in not 
 properly or securely keeping the animal ; and it was said that, con- 
 sistently with this declaration, the monkey might have been kept with 
 due and proper caution, and that the injury might have been entirely 
 occasioned by the carelessness and want of caution of the plaintiff 
 herself. 
 
 80 In the report of this case in 1 Ld. Raym. 606, 608, it is stated that the 
 case was adjourned, and that afterwards the parties agreed, "and therefore 
 no judgment was given." 
 
 On opinion of Holt, C. J., as reported in 1 Ld. Eaym. 608, see the com- 
 ment of Willes, J., in Cox v. Burbidge (18G3) 13 C. B. N. S. 430, 440. And 
 see 2 Cyc. 370, 371, note 84. 
 
 81 The elaborate arguments of counsel are omitted. The declaration stated 
 that the defendant "before and at the time of the damage aud injury here- 
 inafter mentioned to the said Sophia the wife of the said Stephen aiay, wrong- 
 fully and injuriously kept a certain monliey, he the defendant well know- 
 ing that the said monkey was of a mischievous and ferocious nature and was 
 used and accustomed to attack and bite mankind, and that it was dangerous 
 and improper to allow the said monkey to be at large and uuconfined: which 
 said monkey, whilst the defendant kept the same as aforesaid, heretofore 
 and before the commencement of this suit, to wit on the 2nd of September 
 1844, did attack, bite, wound, lacerate and injure the said Sophia, then and 
 still being the wife of said Stephen iNIay, whereby the said Sophia became 
 and was greatly terrihed and alarmed, and became and was sick, sore, lame 
 and disordered, and so remained and continued for a long time, to wit from 
 the day and year last aforesaid to the time of the commencement of this 
 suit ; whereby, and in conseipience of the alarm and fright occasinnetl by 
 the said monkey so attacking, biting, wounding, lac-erating and injuring her 
 as aforesaid, the said Sophia has lieen greatly injured in her health," etc. 
 This case was tried on the issue raised by a plea of not guilty.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 773 
 
 A great many cases and precedents were cited upon the argument; 
 and the conclusion to be drawn from them appears to us to be that the 
 declaration is good upon the face of it; and that whoever keeps an 
 animal accustomed to attack and bite mankind, with knowledge that it 
 is so accustomed, is prima facie liable in an action on the case at the 
 suit of any person attacked and injured by the animal, without any 
 averment of negligence or default in the securing or taking care of it. 
 The gist of the action is the keeping the animal after knowledge of its 
 mischievous propensities. 
 
 The precedents, both ancient and modern, with scarcely an excep- 
 tion, merely state the ferocity of the animal and the knowledge of the 
 defendant, without any allegation of negligence or want of care. A 
 great many were referred to upon the argument, commencing with the 
 Register and ending with Thomas v. IMorgan, 2 C. M. & R. 496, 5 
 Tyr. 1085 ; and all in the same form, or nearly so. In the Register, 
 110, 111, two precedents of writs are given, one for keeping a dog 
 accustomed to bite sheep, and the other for keeping a boar accustomed 
 to attack and wound other animals. The cause of action, as stated in 
 both these precedents, is the propensity of the animals, the knowledge 
 of the defendant, and the injury to the plaintiff; but there is no allega- 
 tion of negligence or want of care. In the case of Mason v. Keeling, 
 1 Ld. Ray. [606], and 12 Mod. [332], much relied upon on the part 
 of the defendant, want of due care was alleged, but the scienter was 
 omitted; and the question was, not whether the declaration would be 
 good without the allegation of want of care, but whether it was good 
 without the allegation of knowledge, which it was held that it was not. 
 No case was cited in which it had been decided that a declaration stat- 
 ing the ferocity of the animal and the knowledge of the defendant was 
 bad for not averring negligence also ; but various dicta in the books 
 were cited to show that this is an action founded on negligence, and 
 therefore not maintainable unless some negligence or want of care is 
 alleged. 
 
 In Comyns' Digest, tit. "Action upon the Case for Negligence" (A 5), 
 it is said that "an action upon the case lies for a neglect in taking care 
 of his cattle, dog, &c ;" and passages were cited from the older autlior- 
 ities, and also from some cases at nisi prius, in which expressions were 
 used showing that, if persons suffered animals to go at large, knowing 
 them to be disposed to do mischief, they were liable in case any mis- 
 chief actually was done; and it was attempted to be inferred from this 
 that the liability only attached in case they were suffered to go at large 
 or to be otherwise ill secured. But the conclusion to be drawn from 
 an examination of all the authorities appears to us to be this : that a 
 person keeping a mischievous animal with knowledge of its propensi- 
 ties is bound to keep it secure at his peril, and that if it does mischief, 
 negligence is presumed, without express averment. The precedents as 
 well as the authorities fully warrant this conclusion. The negligence
 
 774 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 is in keeping such an animal after notice. The case of Smith v. Pelah, 
 2 Stra. 1264, and a passage in 1 Hale's Pleas of the Crown, 430,*- 
 put the liability on the true ground. It may be that if the injury was 
 solely occasioned by the wilfulness of the plaintiff after warning, that 
 may be a ground of defence, by plea in confession and avoidance ; but 
 it is unnecessary to give any opinion as to this ; for we think that the 
 declaration is good upon the face of it, and shows a prima facie lia- 
 bility in the defendant. 
 
 It was said, indeed, further, on the part of the defendant, that, the 
 monkey being an animal ferae naturae, he would not be answerable for 
 injuries committed by it if it escaped and went at large without any 
 default on the part of the defendant, during the time it had so escaped 
 and was at large, because at that time it would not be in his keeping 
 nor under his control; but we cannot allow any weight to this objec- 
 tion; for, in the first place, there is no statement in the declaration 
 that the monkey had escaped, and it is expressly averred that the in- 
 jury occurred whilst the defendant kept it: w^e are besides of opinion, 
 as already stated, that the defendant, if he would keep it, was bound to 
 keep it secure at all events. 
 
 The rule [to show cause why judgment on a verdict for the plaintiff 
 with £50 damages should not be arrested] will therefore be discharged. 
 
 FILBURN v. PEOPLE'S PALACE & AQUARIUM CO., Limited. 
 
 (In the Court of Appeal, 1890. 25 Q. B. Div. 258.) 
 
 The action was brought to recover damages for injuries sustained 
 by the plaintiff by his being attacked by an elephant, which was the 
 property of the defendants, and was being exhibited by them. The 
 learned judge left three questions to the jury: whether the elephant 
 was an animal dangerous to man ; whether the defendant knew the el- 
 ephant to be dangerous; and whether the plaintiff brought the attack 
 
 82 After stating that "if a man have a beast, as a bull, cow, horse, or dog, 
 used to hurt pe<:)ple, if the owner know not his quality, he is not punishable," 
 etc. Hale adds (citing authorities) that "these things seem to be agreeable 
 to law: (1) If the owner have notice of the quality of his beast, and it doth 
 any body hurt, he is chargeable with an action for it. (2) Though he have 
 no'particular notice, that he did any such thing before, yet if it be a beast 
 that is ferae naturue, as a lion, a bear, a wolf, yea an ape or monkey, if he 
 get loose and do harm to any person, the owner is liable to an action for 
 the damage, and so I knew it adjudged in Andrew Baker's case, whose child 
 was bit by a monkey, that broke his chain and got loose. (3) And therefore 
 in case of such a wild beast, or in case of a bull or cow, that doth damage, 
 whoro the owner knows of it, he imist at his peril keep him up safe fi'oni do- 
 ing hurt, for though he use his diligence to keep him up, if he escape and 
 do harm, the owner is liable to answer damages." 1 Hale's P. C. 439, part 1, c. 
 38, as quoted in 9 Q. B. 112, note (b).
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 775 
 
 on himself. The jury answered all three questions in the negative. 
 The learned judge entered judgment for the plaintiff for a sum 
 agreed upon in case the plaintiff should be entitled to recover. 
 
 The defendants appealed.^^ 
 
 Lord Esher, M. R. The only difficulty I feel in the decision of 
 this case is whether it is possible to enunciate any formula under which 
 this and similar cases may be classified. The law of England recog- 
 nizes two distinct classes of animals ; and as to one of those classes, it 
 cannot be doubted that a person who keeps an animal belonging to 
 that class must prevent it from doing injury, and it is immaterial 
 whether he knows it to be dangerous or not. As to another class, the 
 law assumes that animals belonging to it are not of a dangerous nature, 
 and any one who keeps an animal of this kind is not liable for the dam- 
 age it may do, unless he knew that it was dangerous. What, then, 
 is the best way of dealing generally with these different cases ? I sup- 
 pose there can be no dispute that there are some animals that every 
 one must recognize as not being dangerous on account of their nature. 
 Whether they are ferae naturae so far as rights of property are con- 
 cerned is not the question ; they certainly are not so in the sense that 
 they are dangerous. There is another set of animals that the law has 
 recognized in England as not being of a dangerous nature, such as 
 sheep, horses, oxen, dogs, and others that I will not attempt to enumer- 
 ate. I take it this recognition has come about from the fact that years 
 ago, and continuously to the present time, the progeny of these classes 
 has been found by experience to be hannless, and so the law assumes 
 the result of this experience to be correct without further proof. Un- 
 less an animal is brought within one of these two descriptions, — that is, 
 unless it is shown to be either harmless by its very nature, or to belong 
 to a class that has become so by what may be called cultivation, — it 
 falls within the class of animals as to which the rule is, that a man 
 who keeps one must take the responsibility of keeping it safe. It can- 
 not possibly be said that an elephant comes within the class of animals 
 known to be harmless by nature, or within that shewn by experience to 
 be harmless in this country, and consequently it falls within the class 
 of animals that a man keeps at his peril, and which he must prevent 
 from doing injury under any circumstances, unless the person to 
 whom the injury is done brings it on himself. It was, therefore, im- 
 material in this case whether the particular animal was a dangerous 
 one, or whether the defendants had any knowledge that it was so. 
 The judgment entered was in these circumstances right, and the appeal 
 must be dismissed. 
 
 LiNDLEY, L. J. I am of the same opinion. The last case of this 
 kind discussed was May v. Burdett,** but there the monkey which did 
 
 88 The argument in support of the appeal is omitted. 
 84 (1846) 9 Q. B. 101.
 
 776 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 the mischief was said to be accustomed to attack mankind, to the knowl- 
 edge of the person who kept it. That does not decide this case. We 
 have had no case cited to us, nor any evidence, to shew that elephants 
 in this country are not as a class dangerous ; nor are they commonly 
 known here to belong to the class of domesticated animals. Therefore 
 a person who keeps one is liable, though he does not know that the 
 particular one that he keeps is mischievous. Applying that principle 
 to this case, it appears that the judgment for the plaintiff was right, 
 and this appeal must be dismissed. 
 
 BowEN, L. J. I am of the same opinion. The broad principle that 
 governs this case is that laid down in Fletcher v. Rylands,®° that a per- 
 son who brings upon his land anything that would not naturally come 
 upon it, and which is in itself dangerous, must take care that it is kept 
 under proper control. The question of liability for damage done by 
 mischievous animals is a branch of that law which has been applied 
 in the same way from the times of Lord Holt ^^ and of Hale until 
 now. People must not be wiser than the experience of mankind. If 
 from the experience of mankind a particular class of animals is dan- 
 gerous, though individuals may be tamed, a person who keeps one of 
 the class takes the risk of any damage it may do. If, on the other 
 hand, the animal kept belongs to a class which, according to the ex- 
 perience of mankind, is not dangerous, and not likely to do mischief, 
 and if the class is dealt with by mankind on that footing, a person may 
 safely keep such an animal, unless he knows that the particular animal 
 that he keeps is likely to do mischief. It cannot be doubted that ele- 
 phants as a class have not been reduced to a state of subjection; they 
 still remain wild and untamed, though individuals are brought to a 
 degree of tameness which amounts to domestication. A person, there- 
 fore, who keeps an elephant, does so at his own risk, and an action can 
 be maintained for any injury done by it, although the owner had no 
 knowledge of its mischievous propensities. I agree, therefore, that 
 the appeal must be dismissed. 
 
 (C) Extra-H azardous Use 
 RYLANDS et al. v. FLETCHER. 
 
 (House of Lords, 1S68. L. R. 3 H. L. 330.) 
 
 This was a proceeding in error against a judgment of the Ex- 
 chequer Chamber, which had reversed a previous judgment of the 
 Court of Exchequer. 
 
 In November, 1861, Fletcher brought an action against Rylands & 
 Horrocks, to recover damages for an injury caused to his mines by 
 water overflowing into them from a reservoir which the defendants 
 
 OS For Kyhuids v. Ileteher (ISOS) see infra, p. 77G, in text. 
 
 t-e «ee Mu.sou v. Keeling (lU'JDj 12 INlod. 332, in text, ante, \). 770,
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES T77 
 
 had constructed. The declaration contained three counts, and each 
 count alleged negligence on the part of the defendants, but in this 
 House the case was ultimately treated upon the principle 'of deter- 
 mining the relative rights of the parties independently of any question 
 of personal negligence by the defendants in the exercise of them. 
 
 The cause came on for trial at the Liverpool Summer Assizes of 
 1862, when it was referred to an arbitrator, who was afterwards di- 
 rected, instead of making an award, to prepare a special case for the 
 consideration of the Judges. This was done, and the case was argued 
 in the Court of Exchequer in Trinity Term, 1865. The material facts 
 of the case were these : 
 
 The plaintiff was the lessee of certain coal mines known as the Red House 
 Colliery, under the Earl of Wilton. He had also obtained from two other 
 persons, Mr. Hulton and Mr. Whitehead, leave to work for coal under their 
 lands. The positions of the various properties were these: There was a 
 turnpike road leading from Bury to Bolton, which formed a southern boundary 
 to the properties of these different persons. A parish road, called the Old 
 Wood Lane, formed their northern boundary. These roads might be describ- 
 ed as forming two sides of a square, of which the other two sides were form- 
 ed by the lands of Mr. Whitehead on the east and Lord Wilton on the west. 
 The defendants' grounds lay along the turnpike road, or southern boundary, 
 stretching from its centre westward. On these grounds were a mill and a 
 small old reservoir. The proper grounds of the Red House Colliery also lay, 
 in part, along the southern boundary, stretching from its centre eastward. 
 Immediately north of the defendants' land lay the land of Mr. Hulton, and 
 still farther north that of Lord Wilton. On this land of Lord Wilton the 
 defendants, in 1860, constructed (with his Lordship's permission) a new 
 reservoir, the water from which would pass almost in a southerly direction 
 across a part of the land of Lord Wilton and the land of Mr. Hulton, and 
 so reach the defendant's mill. The line of direction from this new reservoir 
 to the Red Colliery mine was nearly southeast. 
 
 The plaintiff, under his lease from Lord Wilton, and under his agreements 
 with Messrs. Hulton and Whitehead, worked the mines under their respective 
 lands. In the course of doing so, he came upon old shafts and passages of 
 mines formerly worked, but of which the workings had long ceased ; the 
 origin and the existence of these shafts and passages were unknown. The 
 shafts were vertical, the passages horizontal, and the former especially seemed 
 tilled with marl and rubbish. 
 
 Defendants employed for the purpose of constructing their new reservoir 
 persons who were admitted to be competent as engineers and contractors 
 to perform the work, and there was no charge of negligence made against the 
 defendants personally. But in the course of excavating the bed of the new 
 reservoir, five old shafts, running vertically downwards, were met with in 
 the portion of the land selected for its site. The case found that "on the 
 part of the defendants there was no personal negligence or default whatever in 
 or about, or in relation to, the selection of the said site, or in or about the 
 planning or construction of the said reservoir ; but, in point of fact, reasonable 
 and proper care and skill were not exercised by, or on the part of, the per- 
 sons so employed by them, with reference to the shafts so met with as afore- 
 said, to provide for the sufficiency of the said reservoir to bear the pres-sure of 
 water which, when filled to the height proposed, it would have to bear." 
 
 The reservoir was completed at the beginning of December, IbOO, and on 
 the morning of the 11th of that month the reservoir, being then partially 
 tilled with water, one of the aforesaid vertical shafts gave way, and burst 
 downwards, in consequence of which the water of the reservoir flowed into 
 the old passages and coalworkings underaeatli, and by means of the under- 
 ground communications then existing between them and the plaintiff's work- 
 ings in the Red House Colliery, the colliery was flooded and the workings 
 thereof stopped.
 
 778 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 The question for the opinion of the Court was whether the plain- 
 tiff was entitled to recover damages by reason of the matters herein- 
 before stated. The Court of Exchequer, Air. Baron Bramwell dis- 
 senting, gave judgment for the defendants. ^^ That judgment was 
 afterwards reversed in the Court of Exchequer Chamber.^ ^ The case 
 was then brought on error to this House.* ^ 
 
 The Lord Chancellor (Lord Cairns). My Lords, in this case 
 the plaintiff (I may use the description of the parties in the action) is 
 the occupier of a mine and works under a close of land. The defend- 
 ants are the owners of a mill in his neighbourhood, and they propose 
 to make a reservoir for the purpose of keeping and storing water to 
 be used about their mill upon another close of land, which, for the pur- 
 poses of this case, may be taken as being adjoining to the close of the 
 plaintiff, although, in point of fact, some intervening land lay between 
 the two. Underneath the close of land of the defendants on which 
 they proposed to construct their reservoir there were certain old and 
 disused mining passages and works. There were five vertical shafts, 
 and some horizontal shafts communicating with them. The vertical 
 shafts had been filled up with soil and rubbish, and it does not appear 
 that any person was aware of the existence either of the vertical 
 shafts or of the horizontal works communicating with them. In the 
 course of the working by the plaintiff of his mine, he had gradually 
 worked through the seams of coal underneath the close, and had come 
 into contact with the old and disused works underneath the close of 
 the defendants. 
 
 In that state of things the reservoir of the defendants was construct- 
 ed. It was constructed by them through the agency and inspection of 
 an engineer and contractor. Personally, the defendants appear to have 
 taken no part in the works, or to have been aware of any want of se- 
 curity connected with them. As regards the engineer and the con- 
 tractor, we must take it from the case that they did not exercise, as 
 far as they were concerned, that reasonable care and caution which 
 they might have exercised, taking notice, as they appear to have taken 
 notice, of the vertical shafts filled up in the manner which I have men- 
 tioned. However, my Lords, when the reservoir was constructed and 
 filled, or partly filled, with water, the weight of the water bearing upon 
 the disused and imperfectly filled-up vertical shafts, broke through 
 those shafts. The water passed down them and into the horizontal 
 workings, and from the horizontal workings under the close of the 
 defendants it passed on into the workings under the close of the plain- 
 tiff, and flooded his mine, causing considerable damage, for which this 
 action was brought. 
 
 87 Fletcher v. Rylands (1SG5) 3 H. & C. 774, 140 R. R. 733, 143 R. R. 612. 
 8 8 Fletcher v. Rylands (1800) 4 H. & C. 203, 143 R. R. 611. 
 ■88 The argument of counsel is omitted.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 779 
 
 The Court of Exchequer, when the special case stating the facts 
 to which I have referred was argued, was of opinion that the plain- 
 tiff had established no cause of action. The Court of Exchequer 
 Chamber, before which an appeal from this judgment was argued, 
 was of a contrary opinion, and the judges there unanimously arrived 
 at the conclusion that there was a cause of action, and that the plain- 
 tiff was entitled to damages. 
 
 My Lords, the principles on which this case must be determined 
 appear to me to be extremely simple. The defendants, treating them 
 as the owners or occupiers of the close on which the reservoir was 
 constructed, might lawfully have used that close for any purpose for 
 which it might in the ordinary course of the enjoyment of land be 
 used; and if, in what I may term the natural user of that land, there 
 had been any accumulation of water, either on the surface or under- 
 ground, and if, by the operation of the laws of nature, that accumula- 
 tion of water had passed off into the close occupied by the plaintiff, 
 the plaintiff could not have complained that that result had taken place. 
 If he had desired to guard himself against it, it would have lain upon 
 him to have done so by leaving, or by interposing, some barrier be- 
 tween his close and the close of the defendants in order to have pre- 
 vented that operation of the laws of nature. 
 
 As an illustration of that principle, I may refer to a case which 
 was cited in the argument before your Lordships, the case of Smith v. 
 Kenrick, in the Court of Common Pleas, 7 C. B. 515. 
 
 On the other hand, if the defendants, not stopping at the natural 
 use of their close, had desired to use it for any purpose which I may 
 term a non-natural use, for the purpose of introducing into the close 
 that which in its natural condition was not in or upon it, for the pur- 
 pose of introducing water either above or below ground in quantities 
 and in a manner not the result of any work or operation on or under 
 the land; and if in consequence of their doing so, or in consequence of 
 any imperfection in the mode of their doing so, the water came to es- 
 cape and to pass off into the close of the plaintiff, then it appears to 
 me that that which the defendants were doing they were doing at 
 their own peril ; and if in the course of their doing it the evil arose to 
 which I have referred, the evil, namely, of the escape of the water and 
 its passing away to the close of the plaintiff and injuring the plaintiff, 
 then for the consequence of that, in my opinion, the defendants would 
 be liable. As the case of Smith v. Kenrick is an illustration of the 
 first principle to which I have referred, so also the second principle 
 to which I have referred is well illustrated by another case in the 
 same Court, the case of Baird v. Williamson, 15 C. B. N. S. 317, which 
 was also cited in the argument at the Bar. 
 
 My Lords, these simple principles, if they are well founded, as it ap- 
 pears to me they are, really dispose of this case. 
 
 The same result is arrived at on the principles referred to by Mr.
 
 780 TORTS THROUGH ACTS OP ABSOLUTE LIABILITY (Part 1 
 
 Justice Blackburn in his judgment in the Court of Exchequer Cham- 
 ber/" where he states the opinion of that Court as to the law in these 
 words : "We think that the true rule of law is that the person who, for 
 his own purposes, brings on his land and collects and keeps there 
 anything likely to do mischief if it escapes, must keep it in at his peril ; 
 and if he does not do so, is prima facie answerable for all the damage 
 which is the natural consequence of its escape. He can excuse himself 
 by shewing that the escape was owing to the plaintiff's default; or, 
 perhaps, that the escape was the consequence of vis major, or tlie act 
 of God ; but as nothing of this sort exists here, it is unnecessary to 
 inquire what excuse would be sufficient. The general rule, as above 
 stated, seems on principle just. The person whose grass or corn is 
 eaten down by the escaping cattle of his neighbour, or whose mine is 
 flooded by the water from his neighbour's reservoir, or whose cellar is 
 invaded by the filth of his neighbour's privy, or whose habitation is 
 made unhealthy by the fumes and noisome vapors of his neighbour's 
 alkali works, is damnified without any fault of his own ; and it seems 
 but reasonable and just that the neighbour who has brought something 
 on his own property (which was not naturally there), harmless to oth- 
 ers so long as it is confined to his own property, but which he knows 
 will be mischievous if it gets on his neighbour's, should be obliged to 
 make good the damage which ensues if he does not succeed in con- 
 fining it to his own property. But for his act in bringing it there no 
 mischief could have accrued, and it seems but just that he should at 
 his peril keep it there, so that no mischief may accrue, or answer for 
 the natural and anticipated consequence. And upon authority this 
 
 00 In his jucl?meut in the Exchequer Chamber, Mr. Justice Blackburn iu- 
 troduced his statement of this "true rule of law" with these remarks: 
 
 "The plaintiff, though free from all blame on his part, must bear the loss, 
 unless he can establish that it was the consequence of some default for which 
 the defendant's are resix)nsible. The question of law therefore arises, what is 
 the obligation which the law casts on a person who, like the defendants, law- 
 fully brings on his land something which, though harmless whilst it remains 
 there, will naturally do mischief if it escape out of his land. It is agreed on 
 all hands that he must take care to keep in that which he has brought on 
 the land and keeps there, in order that it may not escape and damage his 
 neighl>ors; but the question arises whether the duty which the law casts upon 
 him, under such circumstances, is an absolute duty to keep it in at his peril, 
 or is, as tlie majority of the Court of Exchequer have thought, merely a duty 
 to take all reasonable and prudent pi'ccautions in order to keep it in, but no 
 more. If the first be the law, the person who has brought on his land and 
 kept there something dangerous, and failed to kci^p it in, is responsiljle for 
 all the natural consequences of its escape. If the second be the limit of 
 his duty, he would not be answerq.ble except on proof of negligence, and con- 
 seijuently would not be answerable for escape arising from any latent de- 
 fect which ordinary prudence and skill could not detect. 
 
 "Supposing tbe second to be the correct view of the law. a further ques- 
 tion arises subsidiary to the first, viz., whether the defendants are not so far 
 identified with the contractors whom they employed as to be responsible for 
 the consefiuences of their want of care and skill in making the reservoir 
 in fact insudicient with reference to the old shafts, of the existence of which 
 they were aware, though they had not ascertained where the shafts went to."
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 781 
 
 we think is established to be the law, whether the things so brought be 
 beasts, or water, or filth, or stenches." *^ 
 
 My Lords, in that opinion I must say I entirely concur. Therefore, 
 I have to move your Lordships that the judgment of the Court of Ex- 
 chequer Chamber be affirmed, and that the present appeal be dismissed 
 with costs. 
 
 91 Having thiis stated his "true rule of law," Mr. Justice Blackburn, in 
 the, Exchequer Chamber, remarked as follows: 
 
 "The case that has most commonly occurred and which is most frequently 
 to be found in the books is as to the obligation of the owner of cattle whicli 
 he has brought on his laud to prevent their escaping and doing mischief. The 
 law as to them seems to be perfectly settled from early times ; the owner 
 must keep them in at his peril, or he will be answerable for the natural con- 
 sequences of their escape; that is, with regard to tame beasts, for the grass 
 they eat and trample upon, though not for any injury to the person of others, 
 for our ancestors have settled that it is not the general nature of horses to 
 kick, or bulls to gore; but if the owner knows that the beast has a \'icious pro- 
 pensity to attack man, he will be answerable for that too. 
 
 "As early as the Year Book, 20 Ed. 4, 11. placitum 10, Brian, C. J., lays 
 do'^Ti the doctrine in terms very much resembling those used bv Lord Holt 
 in Tenant v. Goldwin [1703] 2 Ld. Raym. 1089, 1 Salk. 360. which will be re- 
 ferred to afterwards. It was trespass with cattle. Plea, that the defendant's 
 land adjoined a place where defendant had common, that the cattle strayed 
 from the common, and defendant drove them back as soon as he could. It 
 was held a bad plea. Brian, C. J., says: 'It behoves him to use his common 
 so that he shall do no hurt to another man, and if the land in which he has 
 common be not enclosed, it behoves him to keep the beasts in the common and 
 out of the land of any other.' He adds, when it was proposed to amend by 
 pleading that they were driven out of the common by dogs, that although 
 that might give a right of action against the master of the dogs, it was no 
 defence to the action of trespass by the person on whose land the cattle went. 
 In the recent case of Cox v. Burbidge [1S63] 13 C, B, N, S. 438, 134 R. R. 
 586, 32 L. J. C. P. 89, Williams, J., says: 'I apprehend the law to be per- 
 fectly plain. If I am the owner of an animal in which by law the right 
 of property can exist, I am bound to take care that it does not stray 
 into the land of my neighbor, and I am liable for any trespass it may 
 commit, and for the ordinary consequences of that trespass. Whether or 
 not the escape of the animal is due to my negligence is altogether imma- 
 terial.' So in May v. Burdett (1S4G) 9 Q. B. 112, 72 R. R. 189, the Court, 
 after an elaborate examination of the old precedents and authorities, 
 came to the conclusion that 'a xjerson keeping a mischievous animal, with 
 knowledge of its propensities, is bound to keep it secure at his peril.' * * * 
 
 "As has been already said, there does not appear to be any difference in 
 principle between the extent of the duty cast on him who brings cattle on 
 his land to keep them in, and the extent of the duty imposed on him who 
 brings on his land water, filth, or stenches, or any other thing which will, 
 if it escape, naturally do damage, to prevent their escaping and injuring his 
 neighbor; and the case of Tenant v. Goldwiu, supra, is an express authority 
 that the duty is the same, and is, to keep them in at his i>eril." 
 
 Un the historical bearings of Mr. Justice Blackburn's statement of the 
 principle, see Professor Wigmore's remarks in "Tortious Responsibility," 7 
 Har\-. l>aw Rev. 454, 3 Select Essays, 51S. 
 
 See also Sir Frederick Pollock's comment on Rylands v. Fletcher, in 143 
 K. R. V, vi, and his reminder "that in many common law jurisdictions the 
 rule of unqualified liability declared by the House of Lords is not approved. 
 The latest important text-writer, Mr. Salmond, now Solicitor-General of Is'ew 
 Zealand, states the rule with evident reluctance and seems to regard it as 
 un illegitimate extension of the medieval doctrine as to damage done by 
 escaping cattle." The Law of Torts (3d Ed.) 1912, p. 203, note.
 
 782 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 Lord Cranworth. My Lords, I concur with my noble and learned 
 friend in thinking that the rule of law was correctly stated by Mr. Jus- 
 tice Blackburn in delivering the opinion of the Exchequer Chamber. 
 If a person brings, or accumulates, on his land anything which, if it 
 should escape, may cause damage to his neighbor, he does so at his 
 peril. If it does escape and cause damage, he is responsible, however 
 careful he may have been, and whatever precautions he may have taken 
 to prevent the damage. 
 
 In considering whether a defendant is liable to a plaintiff for dam- 
 age which the plaintiff may have sustained, the question in general is 
 not whether the defendant has acted with due care and caution, but 
 whether his acts have occasioned the damage. This is all well ex- 
 plained in the old case of Lambert v. Bessey, reported by Sir Thomas 
 Raymond. And the doctrine is founded on good sense. For when one 
 person, in managing his own affairs, causes, however innocently, dam- 
 age to another, it is obviously only just that he should be the party to 
 suffer. He is bound sic uti suo ut non lasdat alienum. This is the 
 principle of law applicable to cases like the present, and I do not dis- 
 cover in the authorities which were cited anything conflicting with it. 
 
 The doctrine appears to me to be well illustrated by the two modern 
 cases in the Court of Common Pleas referred to by my noble and 
 learned friend. I allude to the two cases of Smith v. Kenrick, 7 C. B. 
 564, and Baird v. Williamson, 15 C. B. N. S. 376. In the former the 
 owner of a coal mine on the higher level worked out the whole of his 
 coal, leaving no barrier between his mine and the mine on the lower 
 level, so that the water percolating through the upper mine flowed 
 into the lower mine, and obstructed the owner of it in getting his 
 coal. It was held that the owner of the lower mine had no ground 
 of complaint. The defendant, the owner of the upper mine, had a 
 right to remove all his coal. The damage sustained by the plaintiff 
 was occasioned by the natural flow or percolation of water from the 
 upper strata. There was no obligation on the defendant to protect the 
 plaintiff against this. It was his business to erect or leave a sufficient 
 barrier to keep out the water, or to adopt proper means for so con- 
 ducting the water as that it should not impede him in his workings. 
 The water in that case was only left by the defendant to flow in its 
 natural course. 
 
 But in the later case of Baird v. Williamson, the defendant, the 
 owner of the upper mine, did not merely suffer the water to flow 
 through his mine without leaving a barrier between it and the mine 
 below, but in order to work his own mine beneficially he pumped up 
 quantities of water which passed into the plaintiff's mine in addition, 
 to that which would have naturally reached it, and so occasioned him 
 damage. Though this was done without negligence and in the due 
 working of his own mine, yet he was held to be responsible for the 
 damage so occasioned. It was in consequence of his act, whether
 
 Ch. 2) ABSOLUTE TOUTS OTHER THAN TRESPASSES 783 
 
 skillfully or unskillfully performed, that the plaintiff had been dam- 
 aged, and he was therefore held liable for the consequences. The dam- 
 age in the former case may be treated as having arisen from the act 
 of God ; in the latter, from the act of the defendant. 
 
 Applying the principle of these decisions to the case now before 
 the House, I come without hesitation to the conclusion that the judg- 
 ment of the Exchequer Chamber was right. The plaintiff had a right 
 to work his coal through the lands of Mr. Whitehead and up to the 
 old workings. If water naturally rising in the defendants' land (we 
 may treat the land as the land of the defendants for the purpose of 
 this case) had by percolation found its way down to the plaintiff's 
 mine through the old workings, and so had impeded his operations, 
 that would not have afforded him any ground of complaint. Even if 
 all the old workings had been made by the plaintiff, he would have 
 done no more than he was entitled to do ; for, according to the prin- 
 ciple acted on in Smith v. Kenrick, the person working the mine under 
 the close in which the reservoir was made had a right to win and carry 
 away all the coal without leaving any wall or barrier against White- 
 head's land. But that is not the real state of the case. The defend- 
 ants, in order to effect an object of their own, brought on to their 
 land, or on to land which for this purpose may be treated as being 
 theirs, a large accumulated mass of water, and stored it up in a 
 reservoir. The consequence of this was damage to the plaintiff, and 
 for that damage, however skillfully and carefully the accumulation 
 was made, the defendants, according to the principles and authorities 
 to which I have adverted, were certainly responsible. 
 
 I concur, therefore, with my noble and learned friend in thinking 
 that the judgment below must be affirmed, and that there must be judg- 
 ment for the defendant in error. 
 
 Judgment of the Court of Exchequer Chamber afifirmed. 
 
 CHARING CROSS ELECTRICITY SUPPLY CO. v. HYDRAU- 
 LIC POWER CO. 
 
 (In the Court of Appeal. [1914] 3 K. B. 772.) 
 
 Appeal from a decision by Scrutton, J., reported [1913] 3 K. B. 
 442. 
 
 The plaintiffs were a company supplying electricity in the city of 
 London under a provisional order by authority of which they had 
 placed their cables in certain public streets. The defendants were 
 the owners of hydraulic mains containing water at a high pressure 
 used to supply hydraulic power. These mains had been laid in the 
 same streets, also under statutory authority. The action was brought 
 for damage to the plaintiffs' cables in four dift'erent streets. Water 
 Lane, Upper Thames Street, Cannon Street, and St. Swithin's Lane, 
 caused by the bursting of the defendants' mains. Two of the mains
 
 784 TORTS TUROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 which SO burst had been laid under a private Act which did not con- 
 tain the usual clause providing that nothing in the Act should exempt 
 the company from liability for nuisance. The other two had been laid 
 under a later Act which did contain such a clause. This later Act 
 provided also that the two Acts should be "read and construed to- 
 gether." The judge, in an elaborate finding of facts, found: 
 
 That the defendants were not guilty of any neglijrence either in the man- 
 ner of laying their mains or in respect of the materials of which the mains 
 were constrneted, and that they could not by any reasonable care have de- 
 tected the subsidences [which caused the breaks] before the bursts occurred. 
 
 Scrutton, J., held : (1) that the doctrine of Rylands v. Fletcher ap- 
 plied not only to cases in which the dangerous thing had escaped from 
 the defendant's land on to the plaintiff's land and done damage there, 
 but also to cases in which the site of the plaintiff's injury was occu- 
 pied by him only under a licence and not under any right of property 
 in the soil, and that in the absence of statutory authorization of the 
 nuisance the defendants were liable for the damage caused by the 
 bursts in their mains, notwithstanding that they had been guilty of 
 no negligence ; and (2) that the effect of the two Acts being read to- 
 gether as one Act was to take away the privilege which, down to the 
 passing of the later Act, the defendants had enjoyed, in respect of 
 the two first-mentioned mains, for not being liable for damage done 
 by their bursting in the absence of negligence, and that consequently 
 in the case of all four of the mains the defendants were liable as for 
 a nuisance. 
 
 The defendants appealed. 
 
 Bray, J. I am of the same opinion. ^^ Treating this case, first of 
 all, without regard to the statutory authority which the defendants 
 have, it seems to me quite clear that it comes within the principles of 
 Rylands v. Fletcher. It was said that it was not within those princi- 
 ples because Rylands v. Fletcher, is the case of the owners of adjoin- 
 ing closes of land, but, in my opinion, that is not so. The headnote 
 of Rylands v. Fletcher, L. R. 3 H. L. 330, as reported in the House 
 of Lords, is this, and I may say that I have looked through the speech- 
 es of the Lord Chancellor and the other learned Lords and it is abun- 
 dantly justified by what is said there: 
 
 "Where the owner of land, without wilfulness or negligence, uses his land 
 in the ordinary manner of its use, though mischief should thereby be oc- 
 casioned to his neighbour, he will not be liable in damages. But if he brings 
 upon his land anything which would not naturally come upon it, and which 
 is in itself dangerous, and may become mischievous if not kept under proi> 
 er control, though in so doing he may act without personal wilfulness or neg- 
 ligence, he will be liable in damages for any mischief thereby occasioned." 
 
 "For any mischief thereby occasioned," that is to say, not mischief 
 necessarily occasioned to the owner of the adjoining land, but any 
 
 82 The opinions of Lord Sumner and Kcnnetly, L. J., with whom Bray, J., 
 concurred, are omitted. The statement of the case is somewhat abridgedj and 
 the argument of counsel for the defendants is omitted.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 785 
 
 mischief thereby occasioned, Now ir the earlier part of that, it deals 
 with the case where he brings it upon his land. It seems to me it does 
 not matter whether it is upon his land; if he has a right, as the de- 
 fendants have here, to occupy this land for a certain purpose, namely, 
 for these pipes, it is equally his for the purpose of testing this prin- 
 ciple. Therefore I think that Rylands v. Fletcher applies, and, if it 
 applies, then the defendants undoubtedly have brought upon their 
 land, or land which they are permitted to occupy, something which 
 would not have naturally come upon it and which is in itself dan- 
 gerous and probably mischievous if not kept under proper con- 
 trol * * * ^' 
 Appeal dismissed. 
 
 NICHOLS v. MARSLAND. ^ 
 
 (Court of Exchequer, 1875. L. R. 10 Exch. 255. Court of Appeal, 1876. 2 
 
 Exch. Div. 1.) 
 
 The plaintiff sued as the surveyor for the County of Chester of 
 bridges repairable at the expense of the county. 
 
 The first count of the declaration alleged that the defendant was 
 possessed of lands and of artificial pools constructed thereon for re- 
 ceiving and holding, and wherein were kept, large quantities of water, 
 yet the defendant took so little and such bad care of the pools and the 
 water therein that large quantities of water escaped from the pools 
 and destroyed four county bridges, whereby the inhabitants of the 
 county incurred expense in repairing and rebuilding them. The sec- 
 ond count alleged that the defendant was possessed of large quantities 
 of water collected and contained in three artificial pools of the defend- 
 ant near to four county bridges, and stated the "breach as in the first 
 count. Plea, not guilty, and issue thereon. 
 
 At the trial before Cockburn, C. J., at the Chester Summer Assizes, 
 
 1874, the plaintiff's witnesses gave evidence to the following effect: 
 
 The defendant occupied a mansion-house and grounds at Henbury, in the 
 County of Chester. A natural stream called Bagbrook, which rose in high- 
 er lands, ran through the defendant's grounds, and after leaving them flowed 
 under the four county bridges in question. After entering the defendant's 
 grounds the stream was diverted and dammed up by an artificial emliank- 
 ment into a pool of three acres in area called "the upper pool." from which 
 it escaped over a weir in the embankment, and was again similarly dammed 
 up by an artificial embankment into the "middle pool," which was between 
 one and two acres in area. Escaping over a weir in the embankment, it was 
 again dammed up into "the lower ik)o1," which was between eight and niue 
 acres in area, and from which the stream escaped into its natural and orig- 
 inal course. 
 
 83 On this point of the case, also, the view of Scrutton, J., was Upheld. 
 "When the Legislature gave them [the defendants] these authorities, they did 
 not take away from the right of the owner of that surroundiug land any of 
 the rights which he otherwise had." Per Bray, J. 
 
 HEiPB . Torts — 50
 
 786 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 About five o'clock p. m. on the IStli of June, 1872, occurred a terrible thunder 
 storm, accompanied by heavy rain, which continued till about three o'clock 
 a. m. on the lUth. The raiuiall was greater and more violent than any with- 
 in the memory of the witnesses, and swelled the stream both above and in the 
 defendant's grounds. On the morning of the 19th it was found that during 
 the night the violence and volume of the water had carried away the artificial 
 embankments of the three pools, the accumulated water in which, being thus 
 suddenly let loose, had swelled the stream below the pools so that it carried 
 away and desti'oyed the county bridges mentioned in the declaration. At 
 the pools were paddles for letting off the water, but for several years they 
 had been out of working order. 
 
 Some engineers and other witnesses gave evidence that in their opinion 
 the weir in the upper ix)Ol was far too small for a pool of that size, and that 
 the mischief happened through the insutliciency of the means for carrying 
 off the water. It was not proved when these ornamental pools were con- 
 structed, but it appeared that they had existed before the defendant began 
 to occupy the property, and that no similar accident had ever occurred with- 
 in the knowledge of the witnesses. 
 
 After hearing the address of the defendant's counsel, the jury said 
 they did not wish to hear his witnesses, and that in their opinion the 
 accident was caused by vis major. In answer to Cockburn, C. J., they 
 found that there was no neghgence in the construction or maintenance 
 of the works, and that the rain was most excessive. Cockburn, C. J., 
 being of opinion that the rainfall, though extraordinary and unprece- 
 dented, did not amount to vis major or excuse the defendant from lia- 
 bility, entered the verdict for the plaintiff for £4092, the agreed 
 amount, reserving leave to the defendant to move to enter it for her 
 if the Court (who were to draw inferences of fact) should be of opin- 
 ion that the rainfall amounted to vis major, and so distinguished the 
 case from Rylands v. Fletcher, L. R. 3 H. L. 330. 
 
 A rule nisi having been accordingly obtained to enter the verdict for 
 the defendant on the ground that there was no proof of liability, the 
 plaintiff on showing cause to be at liberty to contend that a new trial 
 should be granted on the ground that the finding of the jury was 
 against the weight of evidence. 
 
 Mclntyre, O. C, for the plaintiff, showed cause. The defendant, 
 having for her own purposes and advantage stored a dangerous ele- 
 ment on her premises, is liable if that element escapes and injures the 
 property of another, even though the escape be caused by an earth- 
 quake or any form of vis major. [Cle;asby, B. Was not the flood 
 brought on to the defendant's land by vis major?] The pools were 
 made by those through whom the defendant claims, and if there had 
 been no pools the water of the natural stream would have escaped 
 without doing injury. The case falls within the rule laid down by the 
 judgment in Fletcher v. Rylands, L. R. 1 Ex. 265, 279, delivered by 
 Blackburn, J. : "We think that the true rule of law is, that the per- 
 son who for his own purposes brings on his lands, and collects and 
 keeps there anything likely to do mischief if it escapes, must keep it 
 in at his peril, and if he does not do so is prima facie answerable for 
 all the damage which is the natural consequence of its escape. He can 
 excuse himself by showing that the escape was owing to the plaintiff's
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 787 
 
 default, or perhaps that the escape was the consequence of vis major, 
 or the act of God." This passage was cited with approval by Lord 
 Cairns, C, and Lord Cranworth on appeal. L. R. 3 H. L. 330, 339, 
 340. [Cleasby, B. There the defendant brought the water on to his 
 own land. Not so here.] The intimation that vis major would per- 
 haps be an excuse is not confirmed by any decision or any other dic- 
 tum. But the facts here do not amount to vis major. If the weirs 
 had been larger, or the banks stronger, the mischief would not have 
 happened. Vis major means something which cannot be foreseen or 
 resisted, as an earthquake or an act of the Queen's enemies.®* 
 
 June 12. The judgment of the Court (Kelly, C. B., and Bram- 
 we;ll, and Cleasby, BB.) was read by 
 
 BramwELL, B. In this case I understand the jury to have found 
 that all reasonable care had been taken by the defendant, that the 
 banks were fit for all events to be anticipated, and the weirs broad 
 enough ; that the storm was of such violence as to be properly called 
 the act of God, or vis major. No doubt, as was said by Mr. Mclntyre, 
 a shower is the act of God as much as a storm ; so is an earthquake 
 in this country: yet every one understands that a storm, supernatu- 
 ral in one sense, may properly, like an earthquake in this country, be 
 called the act of God, or vis major. No doubt not the act of God or 
 a vis major in the sense that it was physically impossible to resist it, 
 but in the sense that it was practically impossible to do so. Had the 
 banks been twice as strong, or if that would not do, ten times, and ten 
 times as high, and the weir ten times as wide, the mischief might not 
 have happened. But those are not practical conditions, they are such 
 that to enforce them would prevent the reasonable use of property 
 in the way most beneficial to the community. 
 
 So understanding the finding of the jury, I am of opinion the de- 
 fendant is not liable. What has the defendant done wrong? What 
 right of the plaintiff has she infringed? She has done nothing wrong, 
 she has infringed no right. It is not the defendant who let loose the 
 water and sent it to destroy the bridges. She did indeed store it, and 
 store it in such quantities that, if it was let loose, it would do, as it 
 did, mischief. But suppose a stranger let it loose, would the defend- 
 ant be liable? If so, then if a mischievous boy bored a hole in a cis- 
 tern in any London house, and the water did mischief to a neighbor, 
 the occupier of the house would be liable. That cannot be. Then why 
 is the defendant liable if some agent over which she has no control 
 lets the water out? Mr. Mclntyre contended that she would be in 
 all cases of the water being let out, whether by a stranger or the 
 Queen's enemies, or by natural causes, as lightning or an earthquake. 
 Why? What is the difference between a reservoir and a stack of 
 chimneys for such a question as this? Here the defendant stored a 
 
 94 The argument of counsel is omitted.
 
 788 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 lot of water for her own purposes ; in the case of the chimneys some 
 one has put a ton of bricks fifty feet high for his own purposes ; both 
 equally harmless if they stay where placed, and equally mischievous 
 if they do not. The water is no more a wild or savage animal than 
 the bricks while at rest, nor more so when in motion : both have the 
 same property of obeying the law of gravitation. Could it be said that 
 no one could have a stack of chimneys except on the terms of being 
 liable for any damage done by their being overthrown by a hurricane 
 or an earthquake? If so, it would be dangerous to have a tree, for a 
 wind might come so strong as to blow it out of the ground into a 
 neighbor's land and cause it to dO' damage ; or a field of ripe wheat, 
 which might be fired by lightning and do mischief. 
 
 I admit that it is not a question of negligence. A man may use all 
 care to keep the water in, or the stack of chimneys standing, but would 
 be liable if through any defect, though latent, the water escaped or the 
 bricks fell. But here the act is that of an agent he cannot control. 
 
 This case differs wholly from Fletcher v. Rylands, L. R. 1 Ex. 265, 
 279. There the defendant poured the water into the plaintift''s mine. 
 He did not know he was doing so; but he did it as much as though 
 he had poured it into an open channel which led to the mine without 
 his knowing it. Here the defendant merely brought it to a place 
 whence another agent let it loose. I am by no means sure that the 
 likeness of a wild animal is exact. I am by no means sure that if a 
 man kept a tiger, and lightning broke his chain, and he got loose and 
 did mischief, that the man who kept him would not be liable. But this 
 case and the case I put of the chimneys, are not cases of keeping a 
 dangerous beast for amusement, but of a reasonable use of property 
 in a way beneficial to the community. I think this analogy has made 
 some of the difficulty in this case. Water stored in a reservoir may be 
 the only practical mode of supplying a district and so adapting it for 
 habitation. I refer to my judgment in Fletcher v. Rylands,®^ and I 
 repeat that here the plaintiff had no right that has been infringed, and 
 the defendant has done no wrong. The plaintiff's right is to say to 
 the defendant. Sic utere tuo ut alienum non Isedas, and that the de- 
 fendant has done, and no more. 
 
 The ChiivF Baron and my Brother Cleasby agree in this judg- 
 ment. * * * 
 
 Rule absolute. 
 
 [In the Court of Appeal.] 
 
 Appeal from a judgment of the Court of Exchequer (Kelly, C. B., 
 and Bramwell and Cleasby, BB.) making absolute a rule to enter the 
 verdict for the defendant. 
 
 The judgment of the Court (Cockburn, C. J., Jamus and Hel- 
 lish, L. JJ., and Baggallay, J. A.) was read by 
 
 5 See (1SC5) 3 Hurl. & C. 7S8, ^4 L. J. Exch. ISl.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 789 
 
 Mkllish, L. J. * * * The appellant relied upon the decision 
 in the case of Rylands v. Fletcher. In that case the rule of law on 
 which the case was decided was thus laid down by J\Ir. Justice Black- 
 burn in the Exchequer Chamber: "We think the true rule of law is 
 that the person who for his own purposes brings on his lands and col- 
 lects and keeps there anything likely to do mischief if it escapes, must 
 keep it in at his peril, and if he does not do so, is prima facie answer- 
 able for all the damage which is the natural consequence of its escape. 
 He can excuse himself by showing that the escape was owing to the 
 plaintiff's default; or perhaps that the escape was the consequence 
 of vis major, or the act of God; but as nothing of the sort exists here 
 it is unnecessary to inquire what excuse would be sufficient." It ap- 
 pears to us that we have two questions to consider : First, the question 
 of law, which was left undecided in Rylands v. Fletcher, — Can the 
 defendant excuse herself by showing that the escape of the water was 
 owing to vis major, or, as it is termed in the law books, the "act of 
 God?" And, secondly, if she can, did she in fact make out that the 
 escape was so occasioned? 
 
 Now, with respect to the first question, the ordinary rule of law is 
 that w'hen the law creates a duty and the party is disabled from per- 
 forming it without any default of his own, by the act of God, or the 
 Kmg's enemies, the law will excuse him ; but when a party by his own 
 contract creates a duty, he is bound to make it good notwithstanding 
 any accident by inevitable necessity. We can see no good reason why 
 that rule should not be applied to the case before us. The duty of 
 keeping the water in and preventing its escape is a duty imposed by 
 the law, and not one created by contract. If, indeed, the making a 
 reservoir w^as a wrongful act in itself, it might be right to hold that a 
 person could not escape from the consequences of his own wrongful 
 act. But it seems to us absurd to hold that the making or the keeping 
 a reservoir is a wrongful act in itself. The wrongful act is not the 
 making or keeping the reservoir, but the allowing or causing the wa- 
 ter to escape. If, indeed, the damages were occasioned by the act of 
 the party without more — as where a man accumulates water on his 
 own land, but, owing to the peculiar nature or condition of the soil, 
 the water escapes and does damage to his neighbor — the case of Ry- 
 lands V. Fletcher, establishes that he must be held liable. The accu- 
 mulation of water in a reservoir is not in itself wrongful ; but the 
 making it and suffering the water to escape, if damage ensue, consti- 
 tute a wrong. But the present case is distinguished from that of Ry- 
 lands V. Fletcher, in this, that it is not the act of the defendant in 
 keeping this reservoir, an act in itself lawful, which alone leads fO the 
 escape of the water, and so renders wrongful that which but for such 
 escape would have been lawful. It is the supervening vis major of 
 the water caused by the flood, which, superadded to the water in the 
 reservoir (which of itself would have been innocuous), causes the dis-
 
 790 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 aster. A defendant cannot, in our opinion, be properly said to have 
 caused or allowed the water to escape, if the act of God or the Queen's 
 enemies was the real cause of its escaping without any fault on the 
 part of the defendant. If a reservoir was destroyed by an earthquake, 
 or the Queen's enemies destroyed it in conducting some warlike opera- 
 tion, it would be contrary to all reason and justice tO' hold the owner 
 of the reservoir liable for any damage that might be done by the escape 
 of the water. We are of opinion, therefore, that the defendant was 
 entitled to excuse herself by proving that the water escaped through 
 the act of God. 
 
 The remaining question is, did the defendant make out that the es- 
 cape of the water was owing to the act of God? Now the jury have 
 distinctly found, not only that there was no negligence in the construc- 
 tion or the maintenance of the reservoirs, but that the flood was so 
 great that it could not reasonably have been anticipated, although, if it 
 had been anticipated, tlie effect might have been prevented ; and this 
 seems to us in substance a finding that the escape of the water was 
 owing to the act of God. However great the flood had been, if it had 
 not been greater than floods that had happened before and might be 
 expected to occur again, the defendant might not have made out that 
 she was free from fault ; but we think she ought not to be held liable 
 because she did not prevent the effect of an extraordinary act of na- 
 ture, which she could not anticipate. In the late case of Nugent v. 
 Smith, 1 C. P. D. 423, we held that a carrier might be protected from 
 liability for a loss occasioned by the act of God, if the loss by no rea- 
 sonable precaution could be prevented, although it was not absolutely 
 impossible to prevent it. 
 
 It was indeed ingeniously argued for the appellant that at any rate 
 the escape of the water was not owing solely to the act of God, because 
 the weight of the water originally in the reservoirs must have con- 
 tributed to break down the dams, as well as the extraordinary water 
 brought in by the flood. We think, however, that the extraordinary 
 quantity of water brought in by the flood is in point of law the sole 
 proximate cause of the escape of the water. It is the last drop which 
 makes the cup overflow. 
 
 On the whole we are of opinion that the judgment of the Court of 
 Exchequer ought to be affirmed. 
 
 Judgment affirmed.®' 
 
 8 8 Fart of the opinion is omitted.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 791 
 
 BOX V. JUBB et al. C 
 
 (High Court of Justice, Exchequer Division, 1S79. 4 Exch. Div. 70.) 
 
 Case stated in an action brought in the county court of Yorkshire, 
 
 to recover damages by reason of the overflowing of the defendants' 
 
 reservoir. The case as stated, but slightly abridged, was as follows : 
 
 1. The defendants are the owners of a mill, and for its necessary supply 
 of water have a reservoir, which has been so used for many years. 2. The 
 plaintiff is the teuant of premises adjoiuiDg the reservoir. 3. The reservoir 
 is supplied with water from, and discharges its surplus water into, a main 
 drain or watercourse. The inlet and the outlet have proper doors or sluices, 
 so as (when required) to close the communication between the reseiToir and 
 the water course. 4. The defendants have the right to use this water course 
 by obtaining a supply of water from it aud discharging their surplus water 
 into it, but have otherwise uo control over the watercourse, which does not 
 belong to them. 5. In December, 1S77, the plaintiff's premises were flooded 
 by reason of the overflowing of the defendants' reservoir. 6. This over- 
 flowing was caused by the emptying of a large quantity of water from a 
 reservoir, the property of a third party, Into the main drain or watercourse 
 at a point considerably above the defendants' premises, aud by an obstruc- 
 tion in the watercourse below the outlet of the defendants' reservoir, where- 
 by the water from the watercourse was forced through the doors or sluices 
 (which were closed at the time) into tlie defendants' reservoir. 7. This ob- 
 struction was caused by circumstances over which the defendants had no 
 control, and without their knowledge; and had it not been for such obstruc- 
 tion the ovei"flowing of the reservoir would not have happened. 8. The de- 
 fendants' reservoir, and the communications between it and the main drain 
 or watercourse, and the doors or sluices, are constructed and maintalvied in 
 a proper manner, so as to prevent the overflowing of the reservoir under all 
 ordinary circumstances. 9. No negligence or wrongful act is attributable 
 to either party. 
 
 Under the circumstances the judge of the county court was of opin- 
 ion that the defendants were liable for the damage sustained by the 
 plaintiff, and accordingly gave judgment for the plaintiff. 
 
 The question for the opinion of the Court, having regard to the 
 facts set out in the case, was whether the defendants were liable for 
 the damage sustained by the plaintiff by reason of the flooding of his 
 premises, such flooding being caused by water from a reservoir be- 
 longing to a third party, over which the defendants had no control, 
 and without any knowledge or negligence on defendants' part, the 
 overflowing of the defendants' reservoir being occasioned by the act 
 of a third party, over whom the defendants had no control, and no 
 wrongful act or negligence being attributable to the defendants, and 
 the direct cause of the damage being the obstruction in the. main drain 
 or watercourse, which was caused by circumstances over which the 
 defendants had no control and without their knowledge. 
 
 Kelly, C. B. I think this judgment must be reversed. * * * 
 The case is abundantly clear on this, proving beyond a doubt that the 
 defendants had no control over the causes of the overflow, and no 
 knowledge of the existence of the obstruction. The matters com- 
 plained of took place through no default or breach of duty of the de-
 
 792 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 fendants, but were caused by a stranger over whom and at a spot 
 where they had no control. It seems to me to be immaterial whether 
 this is called vis major or the unlawful act of a stranger; it is sufficient 
 to say that the defendants had no means of preventing the occurrence. 
 I think the defendants could not possibly have been expected to antici- 
 pate that which happened here, and the law does not require them to 
 construct their reservoir and the sluices and gates leading to it to meet 
 any amount of pressure which the wrongful act of a third person may 
 impose. The judgment must be entered for the defendants. 
 
 Pollock, B. I also think the defendants are entitled to judgment. 
 Looking at the facts stated, that the defendants had no control over 
 the main drain, and no knowledge of or control over the obstruction, 
 apart from the cases, what wrong have the defendants done for which 
 they should be held Hable? The case of Rylands v. Fletcher, L. R. 3 
 H. L. 330, is quite distinguishable. The case of Nichols v. Marsland, 
 L. R. 10 Ex. 255, 14 Eng. R. 538, is more in point. The illustrations 
 put in that case clearly go to show that if the person who has collected 
 the water has done all that skill and judgment can do he is not liable 
 for damage by acts over which he has no control. In the judgment of 
 the Court of Appeal, 2 Ex. D. 1, at p. 5, Mellish, L. J., adopts the prin- 
 ciple laid down by this Court. He says : "If indeed the damages were 
 occasioned by the act of the party without more — as where a man ac- 
 cumulates water on his own land, but owing to the peculiar nature or 
 condition of the soil the water escapes and does damage to his neighbor 
 . — the case of Rylands v. Fletcher, establishes that he must be held 
 liable." Here this water has not been accumulated by the defendants, 
 but has come from elsewhere and added to that which was properly 
 and safely there. For this the defendants, in my opinion, both on 
 principle and authority, cannot be held liable. 
 
 Judgment for the defendants.*^ 
 
 BAKER V. SNELL. 
 
 (In the Court of Appeal. [1908] 2 K. B. 825.) 
 
 The plaintiff was a housemaid in the employment of the defendant, 
 a licensed victualler. The defendant kept upon his premises a dog 
 which was known by him to be savage. It was the duty of the defend- 
 ant's potman to let the dog out early in the morning, and then chain 
 it up again before the plaintiff and the barmaids came downstairs. On 
 the occasion in question the potman brought the dog into the kitchen 
 where the plaintiff and the barmaids were at breakfast, and said, "I 
 
 87 The statement of facts is abridged and part of the opinion of Kelly, 
 C. B., is omitted.
 
 fc 
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 793 
 
 will bet the dog will not bite any one in the room." He then let the dog 
 go and said, "Go it, Bob." The dog then flew at the plaintiff and bit 
 her. It had previously bitten the plaintiff and other persons to the 
 defendant's knowledge. The plaintiff thereupon commenced this ac- 
 tion for damages in the Bow County Court. The county court judge 
 held that the act of the potman was in fact an assault, for which the 
 defendant was not liable, and he accordingly nonsuited the plaintiff. 
 The plaintiff appealed, and the Divisional Court ordered a new trial; 
 Channell, J., on the ground that it was a question for the jury whether 
 the potman was acting within the scope of his employment, and Sutton, 
 ]., on the ground that the owner of an animal known to him to be 
 savage keeps it at his peril and is liable for any injury done by it, 
 even though the injury is directly brought about by the wilful act of a 
 third person.^^ 
 
 The defendant appealed. 
 
 FarwEll, L. J. I take the same view as Channell, J., did as re- 
 gards the potman's authority, but I do not agree with him in thinking 
 that the liability of the keeper of a savage animal does not extend to 
 damage directly brought about by the intervening voluntary act of 
 a third party. Sutton, ]., also did not agree with him, because he bases 
 his judgment upon May v. Burdett, 9 Q. B. 101. The cases, in my 
 opinion, establish that the law recognizes two classes of animals — 
 animals ferje naturae and animals mansuet^ naturae. Any animal of 
 the latter class when known to its owner to be dangerous falls within 
 the former class, and any one who keeps an animal of that nature does 
 a wrongful act and is liable for the consequences under whatever cir- 
 cumstances arising, except where the plaintiff by his own conduct has 
 brought the injury upon himself. That is laid down in Jackson v. 
 Smithson, 15 L. J. (Ex.) 311. The exact point of that decision was 
 that an action for injury caused by a ram known to its owner to be 
 dangerous would lie without any averment of negligence, because the 
 wrongful act was keeping a savage beast. The same principle was 
 laid down by Lord Denman in May v. Burdett, 9 Q. B. 101. Lord 
 Denman in his judgment refers with approval to a passage in Hale's 
 Pleas of the Crown, vol. 1, p. 430b, which concludes as follows: 
 "And therefore in case of such a wild beast, or in case of a bull or 
 cow, that doth damage, where the owner knows of it, he must at his 
 peril keep him safe from doing hurt, for though he use his diligence 
 to keep him up, if he escape and do harm, the owner is liable to an- 
 swer damages." It appears to me to be absolutely immaterial if the 
 keeper of a dangerous animal keeps it at his own peril in all circum- 
 stances whether the injury arises from the actual negligence of the 
 
 8 8 For the case in the Divisional Court, see [1908] 2 K. B. 352. In the Court 
 cf Appeal the opinion of Cozens-Hardy, M. K., with whom Farwell, L. J., 
 concurred, is omitted.
 
 794 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Parti 
 
 owner or from the act of a third person. The wrong is in keeping the 
 fierce beast, and the person who keeps it is prima facie responsible 
 for the injury arising from his wrongful act, and such prima facie 
 responsibility can be got rid of only in the manner pointed out by 
 Blackburn, J., namely, by shewing that the escape was due to the plain- 
 tiff's own default, or perhaps was caused by vis major or the act of 
 God. The wrongful act of a third person is no defence. 
 
 Kennedy, L. J. This case I agree should go down for a new trial. 
 But I desire to add, in regard to certain other points which have been 
 dealt with both here and in the Court below, that, as at present ad- 
 vised, I agree with the view of Channell, J., which I think is in ac- 
 cordance with the authorities. There is no doubt that the keeper of 
 a ferocious dog, if he knows it to be ferocious, is in exactly the same 
 category as the keeper of a naturally wild animal. That appears from 
 the judgment of Bowen, L. J., in Filburn v. People's Palace and 
 Aquarium Co., 25 O. B. D. 258. He says : "If from the experience 
 of mankind a particular class of animals is dangerous, though individ- 
 uals may be tamed, a person who keeps one of the class takes the risk 
 of any damage it may do. If, on the other hand, the animal kept be- 
 longs to a class which according to the experience of mankind, is not 
 dangerous, and not likely to do mischief, and if the class is dealt with 
 by mankind on that footing, a person may safely keep such an animal, 
 unless he knows that the particular animal that he keeps is likely to 
 do mischief." I infer from that that a dog known by its owner to 
 be dangerous is exactly in the same position as an animal ferse na- 
 turae. But there is nothing culpable or wrong in keeping an animal 
 ferae naturae. That appears from Jackson v. Smith son, 15 L. J. (Ex.) 
 311. Piatt, B., there says: "No doubt a man has a right to keep 
 an animal which is ferse naturae and no one has a right to interfere 
 with him until some mischief happens." But then it is said that di- 
 rectly the animal does do mischief the person who keeps him is liable, 
 and I do not doubt that that is true in this sense, that it does not lie 
 on the injured party to allege and prove affirmatively any want of care 
 on the part of the keeper. The gist of the action is the scienter, and 
 in Jackson v. Smithson it was held a good declaration that an animal 
 known by the defendant to be ferocious was kept by him and did dam- 
 age. The same thing was decided in May v. Burdett. There also 
 the declaration was held good although there was no allegation of neg- 
 ligence. But the very language of Lord Denman which has been re- 
 ferred to by the Master of the Rolls appears to me to be in favour of 
 the view of the law expressed by my Brother Channell, because he 
 (Lord Denman) states the result of the authorities to be "that who- 
 ever keeps an animal accustomed to attack and bite mankind, with 
 knowledge that it is so accustomed, is prima facie liable in an action 
 on the case at the suit of any person attacked and injured by the 
 animal without any averment of negligence or default in the securing
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 795 
 
 or taking care of it." The very introduction of the term "prima 
 facie" shews that, in the opinion of Lord Denman, there may be an 
 -answer to the action ; that the keeping of such an animal with knowl- 
 edge of its propensities is not conclusive, although the keeper is prima 
 facie liable. Those words could not, in my opinion, be properly used if 
 the view is correct that whatever happens the owner is liable — if, 
 for example, to use Channell, J.'s, illustration, the animal was set on 
 by a thief to bite a policeman who was following him. That being so, 
 upon the whole, as at present advised, I am inclined to agree with my 
 Brother Channell in declining to accept the view intimated by Bram- 
 well, B., in Nichols v. Marsland, L. R. 10 Ex. 255, that the liability of 
 the keeper of a savage animal extends to damage directly brought about 
 through the intervening voluntary act of a third person. * * * ^'* 
 
 Granted that it is not unlawful for a man to keep an animal ferae 
 naturae, but, if it injures his neighbour, the keeper of the animal is 
 prima facie liable for the result, the question here is whether the 
 intervening criminal act of a third person is one of those things which, 
 if proved by the defendant to have been the direct cause of the injury, 
 would absolve the owner from his prima facie liability. The inclination 
 of my own opinion is that it would. It is not necessary to decide the 
 point in this case, but speaking for myself, with great deference to the 
 other members of the Court, I should have thought that not only on 
 grounds of justice, but according to the law as stated by Lord Denman 
 and Blackburn, J., if it could be shewn that it was the criminal act 
 of a third party which made the animal dangerous, and the injury, 
 to the plaintiff was the direct result of that act, the keeper of the an- 
 imal would have a good defence to an action such as the present. 
 
 Appeal dismissed.^ °° 
 
 RICKARDS v. LOTHIAN. 
 
 (Judicial Committee of the Privy Council. [1913] A, C. 263.) 
 
 The judgment of their Lordships was delivered by 
 Lord JMoulton (after stating the facts and delivering the judg- 
 ment of their Lordships on the plaintiff's contention that the defend- 
 ant ought to have foreseen the probabiHty of the malicious act and 
 taken precautions against it).^ * * * The principal contention, 
 
 99 Kennedy, L. J., here quoted the rule of law announced by Blackburn, .T., 
 in Fletcher v. Rvlands and adoiited by Lord Cairns when that case was be- 
 fore the House of Lords ([ISOS] L. R. 3 H. L. 339, .340), griven in the text infra. 
 
 100 For comments on Baker v. Snell, see the article by Mr. Beven in 22 
 Harvard Law Rev. 40.5 (1909), the remarks of Sir Frederick Pollock in 25 Law 
 Quarterly Rev. 317 (1909), "The Dog and the Potman: or 'Go it, Bob," " and of 
 Mr. Salmond, Torts (2d Ed.) .388, note (1910). 
 
 1 The facts and the judgment of the Judicial Committee of the Privy Coun- 
 cil are set forth in the report of this case in its relation to the doctrine of 
 legal cause. See p. 877, infra.
 
 796 TORTS THROUGH ACTS OF ABSOLUTE LIABILITY (Part 1 
 
 however, on behalf of the plaintiff was based on the doctrine customa- 
 rily associated with the case of Fletcher v. Rylands.- It was con- 
 tended that it was the defendant's duty to prevent an overflow from 
 the lavatory basin, however caused, and that he was liable in damages 
 for not having so done, whether the overflow was due to any negli- 
 gent act on his part or to the malicious act of a third person. 
 
 The legal principle that underlies the decision in Fletcher v. Rylands 
 was well known in English law from a very early period, but it was 
 explained and formulated in a strikingly clear and authoritative man- 
 ner in that case and therefore is usually referred to by that name. It 
 is nothing other than an application of the old maxim "Sic utere tuo 
 ut alienum non Isedas." s * * * 
 
 The argument [in Fletcher v. Rylands] took place on a special case 
 stated by an arbitrator setting forth the facts and the contentions of 
 the parties. It was heard in the first instance before the Court of 
 Exchequer, which by a majority decided in favour of the defendants, 
 Bramwell, B., dissenting. Error was brought from this judgment, and 
 the Court of Exchequer Chamber (consisting of Willes, Blackburn, 
 Keating, Mellor, Montague Smith, and Lush, JJ.) reversed the deci- 
 sion of the Court of Exchequer by a unanimous judgment which was 
 read by Blackburn, J. On appeal to the House of Lords the judg- 
 ment of the Exchequer Chamber was affirmed; both Cairns, L. C, 
 and Lord Cranworth (who delivered the judgments on the hearing of 
 the appeal) expressly approving of Blackburn, J.'s, statement of the 
 law on the subject in the judgment appealed from. The formulation 
 of the principle which is to be found in that judgment is therefore of 
 the highest authority as well from the fact that it received the express 
 approval of the ultimate tribunal as from the eminence to the judges 
 who took part in the decision. 
 
 So far as is necessary for the present case the law on the point is 
 thus laid down by Blackburn, J. : 
 
 "We think that the true rule of the law is that the person who, for his own 
 pur]X)ses, brin.^s on his land and collects and keeps there anythins? likely to 
 do mischief if it escapes, must keep it in at his peril ; and if he dot^s not do 
 so, is prima facie answerable for all the damage which is the natural con- 
 sequence of its escape. He oan excuse himself by showing that the escape 
 was owing to the plaintiff's default; or, perhaps, that the escape was the 
 consequence of vis major, or the act of God; but as nothing of this sort ex- 
 ists here, it is unnecessary to inquire what excuse would be sufiicient." 
 
 It will be seen that Blackburn, J., with characteristic carefulness, 
 indicates that exceptions to the general rule may arise where the es- 
 cape is in consequence of vis major, or the act of God, but declines 
 to deal further with that question because it was unnecessary for the 
 decision of the case then before him. A few years later the question 
 
 2 (I.SOG) L. II. 1 Ex. 2G5 ; (ISGS) L. R. 3 II. L. OHO. See ante, p. 777. 
 8 Lord Mo'dton here stated the facts of Fletcher v. Rylands.
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 797 
 
 of law thus left undecided in Fletcher v. Rylands came up for decision 
 in a case arising out of somewhat similar circumstances.* * ''' * 
 
 Their Lordships agree with the law as laid down in the judgments 
 above cited, ^ and are of opinion that a defendant is not liable on the 
 principle of Fletcher v. Rylands for the damage caused by the wrong- 
 ful acts of third persons. 
 
 But there is another ground upon which their Lordships are of 
 opinion that the present case does not come within the principle laid 
 down in Fletcher v. Rylands. It is not every use to which land is put 
 that brings into play that principle. It must be some special use bring- 
 ing with it increased danger to others and must not merely be the ordi- 
 nary use of the land or such a use as is proper for the general benefit 
 of the community. To use the language of Lord Robertson in East- 
 ern and South African Telegraph Co. v. Cape Town Tramways Com- 
 panies, [1902] A. C. 393, the principle of Fletcher v. Rylands "sub- 
 jects to a high liability the owner who uses his property for purposes 
 other than those which are natural." This is more fully expressed 
 by Wright, J., in his judgment in Blake v. Woolf, [1898] 2 Q. B. 426. 
 In that case the plaintiff was the occupier of the lower floors of the 
 defendant's house, the upper floors being occupied by the defendant 
 himself. A leak occurred in the cistern at the top of the house which 
 without any negligence on the part of the defendant caused the plain- 
 tiff's premises to be flooded. In giving judgment for the defendant 
 Wright, J., says : "The general rule as laid down in Rylands v. Fletch- 
 er is that prima facie a person occupying land has an absolute right 
 not to have his premises invaded by injurious matter, such as large 
 quantities of water which his neighbour keeps upon his land. That 
 general rule is, however, qualified by some exceptions, one of which is 
 that, where a person is using his land in the ordinary way and damage 
 happens to the adjoining property without any default or negligence 
 on his part, no liability attaches to him. The bringing of water on to 
 such premises as these and the maintaining a cistern in the usual way 
 seems to me to be an ordinary and reasonable user of such premises 
 as these were ; and, therefore, if the water escapes without any negli- 
 gence or default on the part of the person bringing the water in and 
 owning the cistern, I do not think that he is liable for any damage that 
 may ensue." * 
 
 4 His Lordship here stated, first, the case of Niohols v. Marsland (1S76) 2 
 Ex. D. 1, and then Box v. Jubb (1879) 4 Ex. D. 7G, and quoted at some length 
 from their judgments. 
 
 5 The reference is to Nichols v. Marsland and Box v. Jubb. See ante. 
 
 *In Blake v. Woolf, [1898] 2 Q. B. 42G, the defendant was the landlord of 
 premises which were let out in flats, and had a cistern on the fourth floor; 
 the plaintiff bef-ame tenant of the ground floor and took his supply of water 
 from the defendant. A leakage from this cistern was noticed by the plaintiff, 
 who informed the defendant. The latter sent an independent plumber to put 
 the cistern to rights. The plumber was competent, but through his negligence 
 there was an escape of water from the cistern which damaged plaintiff's 
 goods on the ground floor.
 
 798 TORTS THROUGH ACTS OP ABSOLUTE LIABILITY (Part 1 
 
 This is entirely in agreement with the judgment of Blackburn, J,, 
 in Ross V. Fedden (lS72j L. R. 7 Q. B. 661. In that case the de- 
 fendants were the occupiers of the upper floor of a house of which the 
 plaintiff occupied the lower floor. The supply and overflow pipes of 
 a water-closet which was situated in the defendants' premises and was 
 for their use and convenience got out of order and caused the plain- 
 tiff's premises to be flooded. Negligence was negatived. In giving 
 judgment in favour of the defendants Blackburn, J., says : "I think it 
 is impossible to say that defendants as occupiers of the upper story 
 of a house were liable to the plaintiff under the circumstances in the 
 case. The water-closet and the supply pipe are for their convenience 
 and use, but I cannot think there is any obligation on them at all haz- 
 ards to keep the pipe from bursting or otherwise getting out of order. 
 The cause of the overflow was the valve of the supply pipe getting 
 out of order and the escape pipe being choked with paper, and the 
 judge has expressly found that there was no negligence; and the only 
 ground taken by the plaintiff is that the plaintiff' and defendants being 
 occupiers under the same landlord, the defendants being the occupiers 
 of the upper story contracted an obligation binding them in favour of 
 the plaintiff, the occupier of the lower story, to keep the water in at 
 their peril. I do not agree to that; I do not think the maxim, 'Sic 
 utere tuo ut alienum non Isedas' applies. Negligence is negatived ; and 
 probably, if the defendants had got notice of the state of the pipe and 
 valve and had done nothing, there might have been ground for the 
 argument that they were liable for the consequences ; but I do not 
 think the law casts on the defendants any such obligation as the plain- 
 tiff contends for." 
 
 Their Lordships are in entire sympathy with these views. The pro- 
 vision of a proper supply of water to the various parts of a house is 
 not only reasonable, but has become, in accordance with modern san- 
 itary views, an almost necessary feature of town life. It is recognized 
 as being so desirable in the interests of the community that in some 
 form or other it is usually made obligatory in civilized countries. 
 Such a supply cannot be installed without causing some concurrent 
 danger of leakage or overflow. It would be unreasonable for the law 
 to regard those who install or maintain such a system of supply as 
 doing so at their own peril, with an absolute liability for any damage 
 resulting from its presence even when there has been no negligence. 
 
 It would be still more unreasonable if, as the respondent contends, 
 such liability were to be held to extend to the consequences of mali- 
 cious acts on the part of third persons. In such matters as the domes- 
 tic supply of water or gas it is essential that the mode of supply should 
 be such as to permit ready access for the purpose of use, and hence 
 it is impossible to guard against wilful mischief. Taps may be turned 
 on, ball-cocks fastened open, supply pipes cut, and waste-pipes blocked. 
 Against such acts no precaution can prevail. It would be wholly un- 
 reasonable to hold an occupier responsible for the consequences of
 
 Ch. 2) ABSOLUTE TORTS OTHER THAN TRESPASSES 799 
 
 such acts which he is powerless to prevent, when the provision of the 
 supply is not only a reasonable act on his part, but probably a duty. 
 Such a doctrine would, for example, make a householder liable for the 
 consequences of an explosion caused by a burglar breaking into his 
 house during the night and leaving a gas tap open. There is, in their 
 Lordships' opinion, no support either in reason or authority for any 
 such view of the liability of a landlord or occupier. In having on his 
 premises such means of supply he is only using those premises in an 
 ordinary and proper manner, and, although he is bound to exercise 
 all reasonable care, he is not responsible for damage not due to his 
 own default, whether that damage be caused by inevitable accident or 
 the wrongful acts of third persons.® 
 
 6 For the conclusion of this judgment, see the report of this case in con- 
 nection with the doctrine of legal cause, infra, p. 883.
 
 PART II 
 
 CAUSAL RELATION 
 
 CHAPTER I 
 
 THE EXISTENCE OF A CAUSAL RELATION, AND ITS 
 
 AFFIRMATIVE SHOWING AS PART OF THE 
 
 PLAINTIFF'S PRIMA FACIE CASE 
 
 It would be obviously opposed to any possible conception of justice 
 that any one should be required to answer for a harm unless he had 
 actually caused it. It is therefore always a vital prerequisite tO' recov- 
 ery to establish that the plaintiff's harm was caused by the defend- 
 ant's alleged misconduct. 
 
 Francis H. Bohlen, "Contributory Negligence," 21 Harv. Law Rev. 
 234 (1907) 
 
 When the wrongful act of the defendant is actionable per se, the 
 rule of remoteness determines the measure of liability, though not the 
 existence of it. When, on the other hand, the wrong is not actionable 
 without proof of actual damage, the rule of remoteness determines 
 not merely the measure of damages, but also the existence of the cause 
 of action. If all the damage proved is too remote, the defendant is 
 under no liabilitv at all. 
 
 John W. Salmond, Law of Torts (2d Ed.) 105 (1910). 
 
 Now, the word "cause" has various meanings, and shades of mean- 
 ing. Philosophically speaking, the sum of all the antecedents of any 
 event, constitutes its cause. Ordinarily however, we consider each 
 separate antecedent of an event as a cause for such event, provided 
 however that the event could not have happened except for such ante- 
 cedent. Taking this view of cause and effect, there may be many 
 causes conjointly and consecutively contributing to produce one and 
 the same final result. And these causes may differ vastly in their 
 proximity or remoteness to or from such final result. But still, any 
 
 (SOO)
 
 Ch. 1) AS PRIMA FACIE CASE 801 
 
 one of them may, as we think, be selected as the responsible cause for 
 such final result, provided it be selected in accordance with the rules 
 of law settled and established by the numerous adjudications of the 
 courts. * * * 
 
 In the burning of prairie grass, like the case at bar, the number of 
 causes and effects that may intervene between the first cause and the 
 final result is illimitable. Each blade of grass is a separate and dis- 
 tinct entity, and the burning of each blade is both an effect and a 
 cause. It is the effect of the burning of the blades immediately pre- 
 ceding it, and the cause, along with other blades, of the burning of the 
 blades immediately succeeding it. And yet all these causes and ef- 
 fects are so intimately interlinked and blended with each other that 
 we look upon the whole of them as constituting but one grand, united, 
 continuous and single whole. We look upon the whole fire as only one 
 fire, and the whole of these separate causes as merely one cause. 
 
 Valentine. J., in Atchison, T. & S. F. R. Co. v. Bales (1876) 16 Kan. 
 252, 256, 258. 
 
 FOGG V. INHABITANTS OF NAHANT. 
 
 MAY V. SAME. 
 
 (Supreme Judicial Court of Massachusetts, 1868. 98 Mass. 578.) 
 
 Two actions of tort; for personal injuries sustained by the plaintiff 
 Fogg, and for injury of a carriage owned by the plaintiff May, alleged 
 to have been caused by a defect in a highway which the defendants 
 were bound to keep in repair. These actions were tried together in 
 the superior court, before Putnam, J., who refused a request for a 
 ruling that the evidence was not sufficient to support them, and, after 
 verdicts for the plaintiffs, reported the cases, with all the evidence, 
 to this court, new trials to be granted if the ruling requested should 
 have been given. 
 
 Hoar, j. * * * The place where the accident happened was at 
 the foot of a hill, where the road, which was narrow, made a sharp 
 curve, and with a gutter and stones near to the travelled path. Wheth- 
 er the road, by reason of its steepness, narrowness, and the turn which 
 it made, and the position and depth of the gutter, was reasonably safe 
 and convenient for travellers, or whether persons using due care 
 would be exposed to danger in passing over it, we think was properly 
 left to the jury as a question of fact, and that their finding upon it is 
 not open for revision upon this report. There was certainly some 
 evidence, proper for the consideration of the jury, which tended to 
 support the plaintiffs' case. 
 
 But, upon another point in the case, after mature and careful con- 
 sideration, and with all the aid which the very able arguments of coun- 
 sel have afforded us, we are unable to satisfy ourselves that the ver- 
 dict is consistent with the law applicable to the evidence. 
 Hepb. Torts — 51
 
 802 CAUSAL RELATION (Part 2 
 
 The liability of the town for an injury to a traveller, occasioned by 
 a defect or want of repair in a highway, depends upon proof that 
 the defect caused the injury. If a want of due care on the part of the 
 person injured contribute to cause the injury, he cannot recover. And 
 if, without fault or negligence on his part, his horses have escaped 
 from his control, and have run away or become wholly unmanageable, 
 so that no care can be exercised by him in respect to them ; and this 
 condition of things is not produced by a defect in the way ; the town is 
 not responsible for what may happen in consequence, even if the car- 
 riage upsets at a place where the way is defective. 
 
 By the uncontradicted evidence offered by the plaintiffs, it appeared 
 that, at the time the accident happened, which, it is alleged was caused 
 by the defect in the way, the horses were, and for some time had 
 been, out of the control of their driver ; and there was nothing in the 
 evidence to show that, but for this fact, the accident would have hap- 
 pened. 
 
 The plaintiffs' first witness testified that one of the horses driven 
 at the time of the accident had the habit of throwing his tail over the 
 rein, and, when doing it, would make a little start and quicken his pace 
 a short distance, and then slacken off and relieve the rein. The plain- 
 tiff Fogg, who was also examined as a witness, made the same state- 
 ment in substance, and said that he usually let the horse take his own 
 course when he threw his tail over the rein. Both of these witnesses 
 testified, in effect, that at the time of the accident the horse threw his 
 tail over the rein as they were approaching the top of the hill ; that 
 the driver stooped forward and took hold of the tail, and tried to 
 lift it and extricate the rein, but in so doing bent down the dasher of 
 the carriage so that he was obliged to desist, and did not get the rein 
 out ; that the horses quickened their pace, the one with the rein under 
 his tail galloping; that they went over the top of the hill, and about 
 twenty rods down on the other side, to the point where the road 
 turned to the right, the driver and the plaintiff Fogg both pulling on 
 the right hand rein, in order to turn the horses round the curve ; but 
 that, in spite of their united efforts, the horses bore to the left, the 
 wheels went into the gutter, and the carriage upset. * * * 
 
 Assuming, therefore, as the plaintiffs' counsel contends, that the 
 horses, though spirited, were safe and proper horses to drive, it ap- 
 pears that by misfortune they were, at the time when the accident 
 happened, entirely freed from any efficient control or guidance of 
 their driver ; that in this condition they went at a rapid rate and for 
 a considerable distance, down a steep and narrow road; that the at- 
 tempt to regain the mastery of the rein was unavailing; and that the 
 efforts of two men were not sufficient to keep them in the path. 
 Whether, at the moment of the upset, the rein had become freed from 
 the horse's tail, was immaterial. There was no proof or pretence that 
 the driver had regained his control of it in season to obtain any control 
 of the horses, or to have any power to guide them.
 
 Ch. 1) AS PRIMA FACIE CASE 803 
 
 These facts bring- the case within the rule laid down in Davis v. 
 Dudley, 4 Allen, 557, which we have had recently occasion to re- 
 consider and apply in Titus v. Xorthbridge, 97 Mass. 258, 93 Am. Dec. 
 91, and Horton v. Taunton, 97 Mass. 266, note. 
 
 New trials granted.^ 
 
 SOWLES v. .AIOORE et al. 
 (Supreme Court of Vermout, 1893. 65 Vt. 322, 26 Atl. 629, 21 L. Et A. 723.) 
 
 Tyler, J. This was an action of trespass on the case, brought to 
 recover the value of a pair of horses which were drowned in Lake 
 Champlain through the alleged negligence of the defendants in not 
 properly guarding an opening in the lake, where they had been taking 
 ice, near a line of public travel. The plaintiff's evidence tended to 
 show that his son had occasion to drive onto the lake on the day of the 
 accident ; that the wind was blowing, and the ice was glare ; that in 
 turning the team around the sled slewed, and brought the pole against 
 the horses' legs, frightening them ; that they escaped from the driver, 
 and ran rapidly from 40 to 60 rods, and into the opening, which was 
 20 or 30 feet long by 40 to 60 feet wide, and but little guarded. The 
 statute (R. L. § 4321) does not prescribe the manner in which such 
 openings shall be guarded. It imposes a fine upon persons who, in 
 localities where people are. accustomed to travel, make openings, and 
 do not place suitable guards around them. The jury found, by special 
 verdicts, that the opening was not properly guarded, and that the 
 plaintiff's servant was in the exercise of due care in respect to the 
 team, and the management of it. 
 
 . The errors assigned were in the court's submitting to the jury to 
 find whether the horses would not have run into the opening if it 
 had been properly guarded; whether the guards would have stopped 
 them, considering their fright, and the speed with which they were 
 running ; and in the instructions that the plaintiff must make out that 
 the horses were drowned by reason of the failure of the defendants 
 to properly guard the opening; that if the guards would not have pre- 
 vented the casualty the plaintiff could not recover, although he was in 
 the exercise of due care, and the defendants were negligent; that if 
 the jury were satisfied, by a fair balance of evidence, that the horses 
 would have been turned away by a suitable guard, then the defendants' 
 negligence caused the damage. 
 
 These instructions did not contain a new proposition of law. It is a 
 general rule that negligence must not only be alleged and proved, but 
 it must also be shown that it caused the injury complained of. When 
 injury on the part of the plaintiff and negligence on the part of the 
 defendant concur, the plaintiff cannot, nevertheless, recover, if the 
 
 1 The statement of facts is slightly abridged and parts of the opinion are 
 omitted.
 
 804 CAUSAL RELATION (Part 2 
 
 defendant could not, by the exercise of due care, have prevented the 
 accident from occurring. Shear. & R. Neg. § 8. In cases that arose 
 under our former statute, rendering towns liable for injuries caused 
 by defective highways, it was not sufficient to prove the existence of 
 defects. It must also have been shown that the defects caused the 
 injuries alleged. Lester v. Pittsford, 7 Vt. 158. Were the horses in 
 such fright, and running at such speed, that they would have been 
 turned from their course by such guards as reasonably prudent men 
 would have erected? This was a material question of fact for the 
 jury to decide before they could say whether or not the defendants' 
 negligence in respect to a guard was the cause of the casualty. Both 
 questions were involved in the instruction that the plaintiff must make 
 out "that the horses were drowned by reason of the failure of the 
 defendants to properly guard the hole." Suppose damages were claim- 
 ed of a town, caused by an alleged defective railing upon a bridge. 
 Could the question be excluded from the consideration of a jury, 
 upon proper evidence, whether, from the nature of the accident, a suit- 
 able railing could have prevented it? We think not. In Titcomb v. 
 Railroad Co., 12 Allen (Mass.) 254, the negligence alleged was the want 
 of railings to the approaches to a highway bridge which the defendant 
 was bound to maintain over its railroad at a crossing. Among other 
 things the court instructed the jury that, if they were satisfied that 
 the injury to the plaintiff would not have occurred if the fence or 
 railing had been sufficient, they must find- a verdict for her. In con- 
 sidering this subject the supreme court said: "So far as such a fence 
 would be effectual to guard against injury from the frightening of a 
 horse about to enter upon the bridge, by the approach of a train of 
 cars passing under the bridge, the plaintiff was entitled to that protec- 
 tion. Not that the defendant was bound to maintain a barrier that 
 would in all cases stop the progress of a frightened horse about to 
 enter upon the bridge, but it was bound to maintain and keep in repair 
 a suitable and proper fence at the place; and if the discharge of this 
 duty would have prevented the occurrence of the present injury, and 
 the plaintiff is shown to have been without fault on her part, the rail- 
 road company may properly be charged in the present action. The 
 fact whether such a fence would have prevented the occurrence of 
 the injury may be a difficult one for the jury to find, but the burden 
 is on the plaintiff to show this, and if she can establish it the defendant 
 may be held liable for the injuries sustained. The case of a horse being 
 frightened is one of the cases of casualty which may and often does 
 occur, and is entirely consistent with a reasonable degree of care and 
 prudence on the part of the traveler. Such traveler has a right, in 
 case of such occurrence, to the protection which such a fence as the 
 law requires the railroad company to maintain would have given. 
 If such a fence would have been unavailing, and the injury would 
 still have occurred, the traveler cannot say his injury was occasioned 
 by any neglect of the railroad company, and he must bear the loss;
 
 Ch. 1) AS PRIMA FACIE CASE 805 
 
 but, if otherwise, the liability attaches to the party bound to maintain 
 the fence as an appendage to the bridge." In Wilson v. Atlanta, 60 
 Ga. 473, it was alleged that an injury was caused by the defendant's 
 negligence in not providing a railing upon a street. An instruction 
 was held proper, that the questions whether or not there was negH- 
 gence in putting up the railing, and whether such negligence caused 
 the injury to the plaintiff, might be tested by the inquiry whether the 
 plaintiff would not have been injured even if the railing had been con- 
 structed. In Ilfrey v. Railway Co., 76 Tex. 63, 13 S. W. 165, the 
 plaintiff" sought to charge the defendant with liability by reason of its 
 maintaining an embankment which, as alleged, caused the destruction 
 of the plaintiff's house by water. It was held competent for the trial 
 court to consider evidence tending to show that the house would have 
 been swept away by the storm, regardless of the embankment ; to find 
 that fact from a preponderance of the evidence ; and that the embank- 
 ment was not the proximate cause of the destruction. In Railroad 
 Co. V. Bailey, 11 Ohio St. 333, it was alleged that the defendant neg- 
 ligently ran its train so as to kill the plaintiff's horses. It was held 
 error for the court to refuse an instruction to the jury that, though 
 the defendant was negligent, the plaintiff must fail in his action if the 
 jury believed from the evidence that due care, had it been used, would 
 not have prevented the injury. A corresponding proposition was con- 
 tained in Judge Steele's charge in Walker v. Westfield, 39 Vt. 246, 
 which was construed by this court to mean that, though the plaintiffs 
 were not in the exercise of due care, if "such want of care did not 
 contribute to the accident, then it is of no consequence in the case, and 
 will not prevent a recovery." We find the instructions fully sus- 
 tained, both by reason and authority. * * * 2 
 Judgment affirmed. 
 
 WEEKS V. McNULTY et al. 
 
 (Supreme Court of Tennessee, 1S98. 101 Tenn. 495, 48 S. W. 809, 43 L. R. A. 
 
 185, 70 Am. St. Rep. 693.) 
 
 Action to recover damages for the death of plaintiff's husband, 
 Arthur Weeks, through the alleged negligence of the defendants. The 
 declaration alleged that the defendants were the owners and pro- 
 prietors of the Hotel Knox, a public inn in the city of Knoxville, and 
 had negligently permitted this hotel to be in an unsafe condition. 
 More specifically, it was alleged, in a second count of the declaration, 
 that the defendant had failed to provide fire escapes, as ordered by an 
 ordinance of the city of Knoxville, or other reasonable means of 
 escape from the building. The defendants pleaded not guilty. The 
 trial resulted in a verdict and judgment for the defendants. The 
 plaintiff appealed. 
 
 2 JPart of the opinion is omitted.
 
 806 CAUSAL RELATION (Part 2 
 
 It appeared that on the evening of April 7, 1897, Arthur Weeks, a 
 travelhng salesman from Rochester, New York, reached Knoxville, 
 registered at the Hotel Knox, and was assigned to Room 49 on the 
 third floor. About 3 o'clock in the morning following, Hotel Knox 
 was destroyed by fire, and Weeks perished in the flames. The fire 
 was first discovered by the night watchman of the hotel, who im- 
 mediately gave the alarm, ascended the stairway leading to the second 
 and third floors, knocked upon the doors, and made every eft'ort to 
 arouse the guests. All the guests escaped, excepting Weeks and 
 one other. One of the guests, as he passed out, heard some one in 49 
 pounding at the door, and noticed that he had kicked out one of the 
 panels. It is also shown that persons occupying rooms on the same 
 floor with Weeks, immediately contiguous, and across the hall in 
 opposite and diagonal directions, all received the alarm, and succeeded 
 in making their escape. The building was provided with a front and 
 a rear stairway, but had no fire escapes. South of the Hotel Knox, 
 and immediately adjoining, was the banking house of the Third Na- 
 tional Bank, only one story in height; and several of the guests leaped 
 upon its roof from the burning hotel building. This mode of escape 
 was accessible to deceased, since his window overlooked the roof, but 
 it was not shown that he had knowledge of it. 
 
 McAlister, J. * * * The fourth assignment is that the court 
 erred in excluding the ordinance of the city of Knoxville requiring 
 the owners and keepers of hotels to erect fire escapes thereon. The 
 objection offered to this testimony was that the ordinance in question 
 contemplated that notice to erect fire escapes must be given to the 
 owner of the property by the board of public works, and that no such 
 notice was given to the owner and proprietor of Hotel Knox. The 
 declaration, as already observed, alleged that the defendants had failed 
 to provide fire escapes for Hotel Knox, "as ordered by an ordinance 
 of the city of Knoxville." * * * 
 
 We do not however decide the effect of the breach of the ordinance 
 in fixing civil liability, nor do we adjudicate the proper construction 
 of the ordinance offered in evidence, since neither question is neces- 
 sarily involved in this case, for the following reason, namely : There 
 is no proof in the record even tending to show that the deceased lost 
 his life in consequence of the failure to construct fire escapes as pro- 
 vided by the city ordinance. The principle is recognized in all the 
 cases that a liability cannot be predicated alone upon the breach of 
 an ordinance, but it must affirmatively appear that the injury sustained 
 resulted proximately from said breach. * * * 
 
 After a very attentive reading of the record in this cause, we have 
 failed to discover any causal connection between the death of plaintiff's 
 intestate and the failure of defendants in error to erect fire escapes, 
 as required by the ordinance. It is not shown that deceased was at 
 a window, or in any position where a fire escape would have aft'orded 
 him any benefit whatever. There is evidence tending to show that de-
 
 Ch. 1) AS PRIMA FACIE CASE 807 
 
 ceased had locked himself in his room, and was heard beating on his 
 door, trying to make his escape. It is shown that one of the windows 
 of his room overlooked the Third National Bank Building, and that 
 deceased could, and with entire safety to himself, have escaped by 
 leaping to the roof of that building, as many others similarly situated 
 successfully did escape. As already stated, it is not shown that de- 
 ceased knew of this avenue of escape, and we cannot perceive how 
 he would have benefited by fire escapes under the circumstances sur- 
 rounding him. We are therefore of opinion that if the contention of 
 counsel for plaintiff in error in respect of the proper construction of 
 this ordinance were correct, and that its breach would constitute 
 actionable negligence, these questions are mere abstractions in this 
 case, since no causal connection between the violation of the ordinance 
 and the injuries sustained by the plaintiff is shown. * * * 
 No reversible error. Affirmed.^ 
 
 AIKEN V. CITY OF COLUMBUS. 
 
 (Supreme Court of Indiana, 1906. 167 Ind. 139, 78 N. E. 657, 12 L. R. A. 
 
 [N. S.] 416.) 
 
 GiLLETT, J. By appellant's complaint in this action appellee was 
 sought to be charged wnth negligence in the management of its public 
 lighting system, whereby appellant's intestate was killed, on his own 
 premises, by coming in contact with a live wire, belonging to appellee, 
 which had fallen from its electric light pole in the adjoining street. A 
 demurrer was sustained to the complaint, and from the judgment 
 which followed appellant appeals. 
 
 It is contended by counsel for appellee that, as it does not appear 
 that the city made any use of said system other than for the purpose 
 of lighting its streets, it was acting in a governmental capacity, and 
 is therefore not to be held liable for the negligence of its employes and 
 servants in the management of the property. * * * 
 
 We are satisfied that we are within the authorities in holding, as we 
 do, that a city or town is answerable ex delicto for any direct invasion 
 of the rights of third persons in the management of its public lighting 
 system. While the doctrine of immunity of municipal corporations 
 in matters purely governmental is too well established upon the au- 
 thorities to be shaken, yet we are of opinion that public policy requires 
 that the doctrine should be kept strictly within limits, to the end that 
 so far as possible corporate liability may prompt those charged with 
 responsibility in the government of cities and towns to be alert to pre- 
 vent wrongs to third persons in the maintenance of municipal prop- 
 erty. 
 
 3 Tne statement of facts Is abridged and parts of the opinion are omitted.
 
 808 CAUSAL RELATION (Part 2 
 
 The point is made, however, that although it appears that the fall of 
 the wire was the proximate cause of the death of appellant's intestate, 
 and that said wire had become weak and rotten, in which respect ap- 
 pellee is charged with negligence, yet it is not alleged that the wire 
 fell by reason of such defective condition. Although it is clear from a 
 reading of the complaint that this was an assumed fact, yet the omis- 
 sion of the allegation renders the complaint insufficient, and an affirm- 
 ance must follow. * * * 
 
 Judgment affirmed.* 
 
 WILLIAMS V. GREAT WESTERN RY. CO. 
 
 (Court of Exchequer, 1874. L. R. 9 E-xch. 157.) 
 
 Action to recover damages for personal injuries suffered by the 
 plaintiff through the defendants' negligence. 
 
 The case was tried before Keating, J., at the Denbighshire Summer 
 Assizes, 1873, and the following facts appeared : At the place where 
 the accident occurred the defendants' line ran for some distance on 
 the level across a piece of open ground, and for a space of 150 yards 
 was wholly unfenced. At a point in this unfenced part it was crossed 
 by a public carriage road on the level, and at another point about thir- 
 ty yards oft', by a public foot path, also on the level, which struck off 
 from the road some little distance before it reached the line. 
 
 On the 22d of December, 1871, the plaintiff, a child of four and a 
 half years old, was found lying on the rails by the foot path, with one 
 foot severed from his body. There was no evidence to show how the 
 child had come there beyond this, that he had been sent on an errand 
 a few minutes before from the cottage where he lived, which lay by 
 the roadside, at about 300 yards distance from the railway, and far- 
 ther from it than the point where the foot path diverged from the 
 road. It was suggested on the part of the defendants that he had 
 gone along the road, and then, reaching the railway, had strayed down 
 the line ; and on the part of the plaintiff, that he had gone along the 
 open foot path, and was crossing the line when he was knocked down 
 and injured by the passing train. The learned judge thought there 
 was no evidence to go to the jury of liability on the defendants, and 
 nonsuited the plaintiff, reserving leave to him to move to enter a ver- 
 dict for £250, the amount at which the jury had, by consent, assessed 
 the damages, if there was any evidence for the jury in support of the 
 declaration. 
 
 Pollock, B. The question in this case is whether there was any evi- 
 dence that ought to have been left with the jury. I should be sorry 
 
 * Only so much of the case is given as relates to the one point. 
 
 Compare: City of Crawfordsville v. Van Cleave (190G) 39 Ind. App. 574, 77 
 N. K. lir.», where a causal connection which counsel had assumed to be too 
 clear for words was held to be not shown for the purpose of tlie demurrer.
 
 Ch. 1) AS PRIMA FACIE CASE 809 
 
 to think that we were extending the rule on the subject of negHgence 
 which was laid down by Willes, J., in the case of Daniel v. Metro- 
 politan Ry. Co. (Law Rep. 3 C. P. 216, at page 222), in terms which 
 were approved of in the Exchequer Chamber and the House of Lords 
 (Law Rep. 3 C. P. 591 ; Id. 5 H. L. 45), although the decision itself 
 was reversed. "It is not enough for the plaintiff to shew that there 
 has been an accident upon the defendants' line, and thence to argue 
 that the company are liable even prima facie. It is necessary for the 
 plaintiff to establish by evidence circumstances from which it may 
 fairly be inferred that there is reasonable probability that the accident 
 resulted from the want of some precaution which the defendants 
 might and ought to have resorted to; and I go further and say that 
 the plaintiff should also shew with reasonable certainty what particu- 
 lar precautions should have been taken." 
 
 Can we, consistently with the rule so laid down, hold that there was 
 evidence which might have been submitted to the jury? Now as to 
 there being a non-performance of what was enjoined by the Act of 
 Parliament, there is no doubt about it; and it is not for us to specu- 
 late on what was the precise intention of the legislature when they 
 required that there should be a gate or stile on a footpath crossing on 
 a level. It is sufficient to say that the defendants have neglected to 
 comply with the enactment. 
 
 Then can it be inferred with reasonable probability that the accident 
 occurred by reason of this negligence, so as to make this a question 
 for the jury? I was at first impressed with the view that this was 
 like the case in which it has been held that where there is an even 
 balance of the evidence, so that no inference can be properly drawn 
 one way more than the other, the judge must not leave the question 
 to the jury. The real question is, whether the negligence can reason- 
 ably be so connected with the accident as to allow of a jury saying 
 that it did in fact give occasion to it. Upon the whole, I think that 
 there was evidence which might be left to the jur}', and the rule must 
 therefore be made absolute. 
 
 AmphlETT, B. ]My opinion has fluctuated during the argimient, but 
 I have come to a conclusion satisfactory to my own mind that the ver- 
 dict should be entered for the plaintiff. We start with the fact that 
 the defendants have failed to comply with the express provisions of 
 the statute, and this is an act of gross negligence. I think nothing 
 turns on the neglect at the carriage way. But the child was in fact 
 found upon the foot way, and the proper presumption is that it met 
 with the; accident on the footway, and whilst it was crossing the line. 
 Then the child being lawfully on the foot way, and the defendants being 
 guilty of a breach of duty, the only question is whether there is rea- 
 sonable ground for connecting this breach of duty with the accident. 
 It is not necessary to decide this as a jury; it is enough to say that 
 I think it was clearly a case which ought to be submitted to a jury. 
 There are many supposable circumstances under which the accident
 
 810 CAUSAL RELATION (Part 2 
 
 may have happened, and which would connect the accident with the 
 neglect. If the child was merely wandering about, and he had met 
 with a stile he would probably have been turned back; and one at 
 least of the objects for which a gate or a stile is required is to warn 
 people of what is before them, and to make them pause before reach- 
 ing a dangerous place like a railroad. The rule must be made abso- 
 lute. 
 
 Rule absolute.^ 
 
 6 In Hayes v. Michigan Cent. R. R. Co. (1884) 111 U. S. 228, 4 Sup. Ct. 369, 
 28 L. Ed. 410, the facts were as follows: An eight j'ear old boy, bright and 
 well grown, but deaf and dumb, had been run over by a train of the defend- 
 ant railway company. There was no contributory negligence in the boy. 
 The particular negligence charged against the defendant was its omission to 
 build a fence along its right of way through a city park, as required by a city 
 ordinance. The trial court directed a verdict for the defendant. On error, 
 this judgment was revereed by the Supreme Court, where Mr. Justice Math- 
 ews, delivering the opinion, remarked: 
 
 "It is further argued that the direction of the court below was right, be- 
 cause the want of a fence could not reasonably be alleged as the cause of the 
 injury. In the sense of an efficient cause, causa causans, this is, no doubt, 
 strictly true i but that is not the sense in which the law uses the term in this 
 connection. The question is, was it causa sine qua non; a cause, which if 
 it had not existed, the injury would not have taken place, an occasional cause, 
 and that is a question of fact, unless the causal connection is evidently not 
 proximate. Milwaukee & St. Paul R. R. Co. v. Kellogg (1S7(3) 94 U. S. 469, 24 
 1j. Ed. 256. The rule laid down by Willes, J., in Daniel v. ^Metropolitan R. 
 Co. (1868) L. R. 3 C. P. 216, 222, and approved by the Exchequer Chamber (1868) 
 L,. R. 3 C. P. 591, and by the House of Lords (1871) L. R. 5 H. L. 45, was this: 
 'It is necessary for the plaintiff to establish by evidence, circumstances fro)n 
 which it may be fairly inferred that there is a reasonable probability that 
 the accident resulted from the want of some precaution which the defendants 
 might and ought to have resorted to;' and in the case of Williams v. Great 
 Western R. Co. (1874) L. R. 9 Exch. 157, where that rule was applied to a 
 case similar to the present, it was said, page 162: 'There are many sup- 
 posable circumstances under which the accident may have happened and 
 which would connect the accident with the neglect. If the child was merely 
 wandering about and he had met \rith a stile, he would probably have been 
 turned back ; and one at least of the objects for which a gate or stile is re- 
 quired, is to warn people of what is before them and make them pause before 
 reaching a dangerous place like a railroad.' 
 
 "The evidence of the circumstances, showing negligence on the part of the 
 defendant, which may have been the legal cause of the injury to the plain- 
 titf, according to the rule established in Railroad Co. v. Stout (1873) 17 Wall. 
 657 (84 U. S.) 21 L. Ed. 745, and Randall v. B. & O. R. R. Co. (18S.3) 109 U. 
 S. 478, 3 Sup. Ct. 322, 27 L. Ed. 1003, should have been submitted to the jury; 
 and for the error of the Circuit Court in directing a verdict for the defendant, 
 the judgment is reversed and a new trial awarded."
 
 Ch. 2) THE TESTS OF LEGAL CAUSE 811 
 
 CHAPTER II 
 THE TESTS OF LEGAL CAUSE 
 
 SECTION 1.— THE "PROXIMATE CAUSE" 
 
 "In jure non remota causa, sed proxima, spectatur:" It were in- 
 finite for the law to judge the causes of causes, and their impulsions 
 one of another: therefore, it contenteth itself with the immediate 
 cause; and judgeth of acts by that, without looking to any further 
 degree. 
 
 Francis Bacon, The Maxims of the Law, Reg. 1 (1596).^ 
 
 Guesswork perhaps would have taught us that barbarians will not 
 trace the chain of causation beyond its nearest link, and that, for 
 example, they will not impute one man's death to another unless that 
 other has struck a blow which laid a corpse at his feet. All the evi- 
 dence however points the other way : I have slain a man if but for 
 some act of mine he might perhaps be yet alive. Very instructive is 
 a formula which was still in use in the England of the thirteenth 
 century; one who was accused of homicide and was going to battle 
 was expected to swear that he had done nothing whereby the dead 
 man was "further from life or nearer to death." Damages which the 
 modern English lawyer would assuredly describe as "too remote" 
 
 1 14 Bacon's Works (Spedding Bd.) 1S9. 
 
 "This maxim, with its gloss, is frequently cited as 'an all-sufficient state- 
 ment of thQ reasons for every decision upon a question of legal cause.' In- 
 deed the expression 'proximate cause' is generally used instead of 'legal 
 cause,' and it is often under the former head that one must look in digest for 
 authorities on causation. This use of the maxim as a universal solvent of 
 ditficulties has been productive of infinite confusion and error. Taking the 
 words in their natural signification, the maxim is not a correct statement of 
 the law. Taken literally, the maxim would be understood as implying that 
 the antecedent which is nearest in space or time is invariably to be regarded 
 as the legal cause; and it might also be understood as putting material 
 antecedents, forces of nature, on an equal footing with voluntary and re- 
 sponsible human actors. But it is a mistake to supix)se that contiguity in 
 space or nearness in time are legal tests of the existence of causal relation. 
 iSo doubt these elements are often important to be considered in determining 
 the question of fact as to the existence of such relation: but lack of contigui- 
 ty or nearness would not, as matter of law, conclusively establish that the 
 defendant's tort was not the cause of the damage. Bacon's language has re- 
 peatedly been criticized." Professor Jeremiah Smith, "Legal Cause in Actions 
 of Tort." 25 Harv. Law Rev. 106.
 
 812 CAUSAL RELATION (Part 2 
 
 were not too remote for the author of the Leges Ilenrici. At your 
 request I accompany you when you are about your own affairs; my 
 enemies fall upon and kill me; you must pay for my death. You 
 take me to see a wild-beast show or that interesting spectacle a 
 madman ; beast or madman kills me ; you must pay. You hang up 
 your sword ; some one else knocks it down so that it cuts me ; you 
 must pay. In none of these cases can you honestly swear that you 
 did nothing that helped to bring about death or wound. 
 2 Pollock and Maitland, Hist. Eng. Law (2d ed.) 470. 
 
 We have, then, to deal with the primitive notion which instinctively 
 visits liability on the visible offending source, whatever it be, of a vis- 
 ible evil result. The notion, as applied to persons, is that of the 
 schaedliche Alann, a person from whom some evil result has pro- 
 ceeded. * * * An example showing an exceptionally late sur- 
 vival of these ideas, and at the same time the transition to different 
 standards [is found in the following instance, drawn from Frisian 
 Chronicles of 1439] : 
 
 "Owen Alwerk was brewing beer. During his absence the child 
 of Swein Pons came in and stood by the kettle. The kettle slipped 
 from its hook, and the liquid burned the child so that it died on the 
 third day. The relatives of the child pursued Alwerk, who fled to 
 the house of a friend for refuge. The master of the house opposed 
 the entrance of the pursuers, and an affray ensued, in which the 
 master by inadvertence killed his own nephew. The affair was laid 
 before six men as judges; and they decided at first that Alwerk must 
 pay the head money for the dead child and for the dead nephew, 
 and must besides make a pilgrimage to Rome. But Alwerk opposed 
 the judgment, and to such a good purpose that they altered it to this 
 effect, — that he should be absolved without more from the child's 
 death, and from the nephew's if he swore that he did not urge on the 
 master of the house to fight." 
 
 John H. Wigmore, "Responsibility for Tortious Acts." ^ 
 
 2 In 3 Select Essays in Anglo-American Legal History, 483, reprinted frou) 
 7 Harv. Law Rev. 319 (1S94). 
 
 An instance of the "but-for" rule in legal causation, affirmatively applied 
 in modern law, is found in Gilman v. Noyes (1876) 57 X. H. 627: The bars into 
 r.'s pasture had been nejj;ligently left down by D. As a result, P.'s sheep got 
 out of the pasture. They were never found. The evidence tended to show 
 that they had been devoured by bears. The jury were instructed that if the 
 sheep escaped in consequence of the bars being left down by D., and would 
 not have been killed but for this act by I)., he was liable. The reviewing 
 court held this instruction erroneous. See infra, "Intervening Agency as a 
 Test of Legal Cause." See also Professor Bohlen's remarks in 21 Harv. Law 
 Kev. 234-235 (1908).
 
 Ch. 2) THE TESTS OF LEGAL CAUSE 813 
 
 Although Lord Bacon, long ago, referred to this question of re- 
 moteness, it has been left in very great vagueness as to what consti- 
 tutes the limitation. * * * It is a vague rule, and as Bramwell, 
 B., said, it is something like having to draw a line between night and 
 day; there is a great duration of twilight when it is neither night nor 
 day. 
 
 Blackburn, J., in Hobbs v. London & Southwestern Railway Co. 
 (1875) L.R. lOQ. B. Ill, 121. 
 
 Lord Bacon, in interpreting this maxim, says : "It were infinite 
 for the law to consider the causes of causes, and their impulsion of 
 each other; therefore it contenteth itself with the immediate cause, 
 and judgeth of acts by that, without looking to any farther degree." 
 Maxims of Law, 1. The law indeed is not to inquire into the causes 
 of causes, but it is anxiously to inquire for the true cause, and to 
 distinguish between the cause and that which is ordinarily incidental 
 to it. Some idea of what Lord Bacon means is furnished by the 
 first case which he gives in illustration. An annuity was granted pro 
 consilio impenso et impendendo. The grantee was committed for 
 treason, so that the grantor could not have access to him for counsel. 
 It was held that the annuity was not determined, the involuntary, 
 compulsory imprisonment being a sufficient excuse, into the cause of 
 which the law would not inquire. 
 
 So a familiar illustration may be found in an indictment for homi- 
 cide, where the defence is insanity. If the insanity be shown, the 
 law wall not inquire as to the cause of the insanity, to show that it 
 had its origin in the misconduct of the defendant. 
 
 So if a building insured were destroyed by fire resulting from 
 the negligence of the owner's servants, it would not be competent to 
 show that their habits of negligence were the result of the inattention 
 and lax discipline of the master. 
 
 That is to say, a distinct substantive cause being shown, the law 
 will not go behind it and inquire as to its cause. It does not "consider 
 the causes of causes." And this is the meaning and the extent of 
 meaning of this familiar maxim of causa proxima. It is certainly true, 
 that it is not always easy to determine what is the efficient, procuring 
 cause. But the difficulty is not in the rule, but because our conclusions 
 are drawn always with imperfect instruments, and often from an im- 
 perfect view of the facts. It is also true that, philosophically, we know 
 little of the relation of cause and efifect. But it is equally true that, in 
 all the highest practical affairs of life, we recognize and act upon this 
 relation ; and that, when so acting, we seek the true, efficient, pro- 
 curing cause, and not that nearest in point of time or space. 
 
 Thomas, J., in Marble v. City of Worcester.^ 
 
 3 (18.55) 4 Grav (Mass.) :;9."). 411. See Professor Beale's "true reading of 
 this maxim," 9 Harv. Law liev. SO, 81 (lS9.j).
 
 814 CAUSAL RELATION (Part 2 
 
 SECTION 2.— PROBABILITY OF RESULT AS A TEST OF 
 
 LEGAL CAUSE 
 
 GREENLAND v. CHAPLIN. 
 
 (Court of Exchequer, 1850. 5 Exch. 243, 82 R. R. 655.) 
 
 Case for negligence in navigating the defendant's steam-boat, where- 
 by it struck against another steam-boat, on which the plaintiff was 
 a passenger, and, in consequence, his leg was broken. Plea, Not 
 guilty. 
 
 At the trial, before Pollock, C. B., at the Middlesex sittings after 
 last Michaelmas Term, it appeared that the plaintiff was a passenger 
 on board a steam-boat called the "Sons of the Thames," which was 
 going from Westminster to London Bridge. The defendant's steam- 
 boat, called the "Bachelor," was going the same way, and as the 
 vessels approached the Adelphi Pier, the "Bachelor" struck the "Sons 
 of the Thames" on the bow, where the anchor was carried, and, in 
 consequence, it fell upon and broke the plaintiff's leg. There was 
 conflicting evidence as to the degree of negligence attributable to the 
 respective steam-boats, and especially as to the propriety of the mode 
 in which the anchor on board the "Sons of the Thames" was carried 
 in the bow of the vessel. The learned Judge told the jury, that if 
 they were of opinion that the collision was owing to the bad naviga- 
 tion of the "Bachelor," they should find a verdict for the plaintiff; 
 but if they thought that there was any negligence, either in the stow- 
 age of the anchor, or in the plaintiff putting himself in the place 
 where he was, on board the "Sons of the Thames," they should find 
 for the defendant. The jury having found a verdict for the plaintiff, 
 with £200 damages, 
 
 Shee, Serjt., in last Hilary Term obtained a rule nisi to set aside 
 the verdict, as against evidence, no objection being taken as to the 
 mode in which the question was left to the jury.* 
 
 Pollock, C. B. (after holding on other grounds that the rule should 
 be discharged). But here I may again state,^ that it occurs to me 
 there is considerable doubt, — and at present I guard myself against 
 
 * The argnment of counsel is omitted, and only so much of the opinion 
 is given as relates to the one point 
 
 6 In the course of the argument Pollock, C. B., had asked this question of 
 counsel: "Can it be said that a person guilty of negligence is responsible for 
 all the possible consequences, which he could never have foreseen, and 
 which no one would have anticipated? For instance, if a person chooses to 
 walk in a crowded street with an open knife under his coat, and another 
 person negligently runs against him, is that other person to be responsil)le for 
 all the injury which the knife may inflict on the person who carries itV" The 
 answer was a reference to Flower v. Adam (1810) 2 Taunt. 314, 11 R. R. 501.
 
 Ch. 2) THE TESTS OF LEGAL CAUSE 815 
 
 being supposed to decide with reference to any case wbich may here- 
 after arise; but, at the same time, I am desirous that it may be un- 
 derstood that I entertain considerable doubt, — whether a person who 
 is guilty of negligence is responsible for all the consequences which 
 may under any circumstances arise, and in respect of mischief which 
 could by no possibility have been foreseen, and which no reasonable 
 person would have anticipated. Whenever that case shall arise, I 
 shall certainly desire to hear it argued, and to consider whether the 
 rule of law be not this : that a person is expected to anticipate and 
 guard against all reasonable consequences, but that he is not, by the 
 law of England, expected to anticipate and guard against that which 
 no reasonable man would expect to occur. I beg to say that, in 
 expressing this doubt whether the responsibility for consequential 
 damage extends to the extreme case to which I have adverted, I 
 am expressing my own opinion only, and not that of the rest of the 
 Court.« 
 
 ETEN V. LUYSTER. 
 
 (Court of Appeals of New York, 1875. 60 N. Y. 252.) 
 
 Allen, J-'' The plaintiff was, at the time of the forcible entry by 
 the defendants, and the commission of the wrongs complained of, 
 in possession of the premises, as the tenant of one Morrison, under a 
 hiring for a term which had not expired. Morrison was the immediate 
 lessee of the owner (to whose title, in fee, the defendants had suc- 
 ceeded), under a hiring for a year, by written lease, containing a cove- 
 nant, by the lessee, to vacate the premises on having two months' no- 
 tice, in writing, and being paid $200, as an equivalent for moving and 
 giving up the lease. 
 
 By an instrument under seal, * * * Morrison, in consideration 
 of $300. canceled the lease to him, and waived any further notice to 
 quit, and agreed to vacate the premises on or before the 1st day of 
 July, 1868. On the first or second day of August, the defendants 
 
 6 m Kigby V. Hewitt (1850) 5 Ex. 240, 82 R. R. 652, 653, Pollock, C. B., had 
 remarked: "I am disposed not quite to acquiesce to the full extent in the 
 proiX)sition, that a person is responsible for all the possible consequences of 
 his negligence. I wish to guard against laying down the proposition so 
 universally ; but of this I am quite clear, that every person who does a wrong, 
 is at least responsible for all the mischievous consequences that may reason- 
 ably be expected to result, under ordinary circumstances, from such miscon- 
 duct." 
 
 Referring to these two cases, Sir Frederick Pollock remarked, in 1905: "In 
 Kigby v. Hewitt and Greenland v. Chaplin, we have, it is believed, the first 
 clear statement of the rule as to consequential damage which is now gen- 
 erally accepted, namely 'that a person is expected to anticipate and guard 
 against all reasonable consequences, but that he is not, by the law of Eng- 
 land, expected to anticipate and guard against that which no reasonable man 
 would expect to occur.' " See Preface to 82 R. R. v-vi. 
 
 7 The statement of the case and parts of the opinion are omitted.
 
 S16 CAUSAL RELATION (Part 2 
 
 entered upon the premises occupied by the plaintiff, tore down and 
 ruined a building which the plaintiff had erected thereon, and removed 
 his chattels and personal property. There being no prohibition against 
 subletting in the lease to Morrison, he had a right to sublet the whole 
 or any part of the premises. Jackson v. Silvernail, 15 Johns. 278; 
 vSame v. Harrison, 17 Johns. 66; Roosevelt v. Hopkins, 33 N. Y. 81. 
 The plaintiff, the sublessee, by the contract of hiring, acquired a valid 
 term in and a right to the possession of the part of the demised prem- 
 ises let to him for the time agreed upon, subject, only to be defeated 
 by the expiration of the term of Morrison, or a re-entry by the owner 
 of the fee, and supreme landlord, for some condition of the demise 
 broken. He held the premises, subject to the conditions of the orig- 
 inal lease to Morrison, and the conditions of his own hiring, and, 
 with these limitations, his right to hold for the term granted to him 
 was perfect. 
 
 As landlords, the defendants had no right of entry, and their forci- 
 ble dispossession of the plaintiff was a trespass for which the plaintiff' 
 had an action; and the proceedings for his removal by summary 
 process, under the landlord and tenant act, having been reversed, the 
 warrant furnished no protection to them, and constituted no defence 
 to the action. 2 R. S. 516, § 49; Hayden v. Florence Sewing 
 ^Machine Co., 54 N. Y. 221. The statute expressly gives an action 
 to the tenant in such case. 
 
 The plaintiff' was only entitled to recover such damages as were 
 the direct consequences of the acts of the defendants, and those acting 
 under their direction and by their authority. This would exclude 
 from the consideration of the jury all damages resulting from the acts 
 of, or want of proper care of the property by, the plaintiff'. The act 
 complained of was the wrongful removal and destruction of the plain- 
 tiff's property in his absence, and there was no evidence that any 
 part of the loss was caused by his act, or could have been prevented 
 by him. The question of contributory negligence is not in the case. 
 The plaintiff owed no duty to the defendants, and was not called upon 
 to gather up the fragments of his scattered and broken chattels, but 
 was at liberty to leave them where the defendants left them, and look 
 to the latter for their value. They were out of his possession by the 
 tortious act of the defendants, by whom, and whose acts, they were 
 lost or destroyed. The plaintiff complains of the pulling down and 
 destruction of his building, and the taking and conversion of his per- 
 sonal property, as well as the damages sustained by a loss of his busi- 
 ness.^ The latter claim was excluded from the consideration of the 
 jury by the court, but evidence of the other items of loss and damage 
 were clearly within the allegations of the complaint, and admissible. 
 
 8 It appeared in the case that "part of this house had been used by plain- 
 lift as a stable, and his evidence teiKhnl to show that he kept, in a tin box, 
 inside a feed box, in the stiible, a .sum of money, alx)ut $2,000. This was lost in 
 the removal." And see Eisele v. Oddie (C. C. 1904) 12S Fed. 941, 949.
 
 Ch. 2) THE TESTS OF LEGAL CAUSE 
 
 817 
 
 For all loss occasioned by the trespass, whether in the destruction of 
 the chattels or the loss of money that was kept upon the premises, 
 the plaintiff was entitled to recover. That the money was kept in an 
 unusual place did not take it out of the protection of the law, or affect 
 the liability of the defendants for their tort. They acted at their 
 peril, and must respond for the consequences. The loss of the money, 
 although the defendants may not have suspected its presence, was 
 the direct and necessary consequence of the acts of the defend- 
 ants. * * * 
 
 All concur ; Rapallo, J., expresses no opinion as to the right of the 
 plaintiff to recover for the money lost, but concurs in opinion in all 
 other respects. 
 
 Judgment [for the plaintiff] affirmed. 
 
 SMITH V. LONDON & S. W. RY. CO. 
 
 (Court of Common Pleas, Hilary Term, 1870. L. R. 5 C. P. 98. In the 
 Exchequer Chamber, Michaelmas Term, 1870. L. R. 6 C. P. 14.) 
 
 This was an action for negligence, and the declaration contained 
 three counts, of which the second and only material one was as fol- 
 lows : 
 
 "That the time of the committing by the defendants of the griev- 
 ances in this count mentioned, the plaintiff v^'as possessed of a cottage 
 and premises, and the defendants were possessed of and had the care 
 and management of a railway running near the said cottage and prem- 
 ises, with banks belonging thereto, and part of the said railway, and 
 were possessed of locomotive engines containing burning substances, 
 which were used by the defendants for conveying carriages along this 
 railway. Yet, by the negligence and improper conduct of the de- 
 fendants, and the want of due care on the part of the defendants in 
 the keeping and management of their said railway engines and banks, 
 quantities of cut grass and hedge trimmings were heaped up on the 
 said railway and banks, and became and were ignited, and a fire was 
 occasioned which spread over and along a stubble-field, near the said 
 railway unto the said cottage and premises, and set fire to the same, 
 and thereby the same and the plaintiff's furniture, &:c., then being 
 in and near the said cottage and premises, were burnt and destroyed, 
 and the plaintiff lost the use and enjoyment of the same." 
 
 The defendants pleaded not guilty, and issue was joined thereon. 
 
 The case was tried before Keating, J., at the Dorchester summer 
 assizes in 1869, when it appeared that about fourteen days previous 
 to the 3d of August, 1868, the defendants' servants, after cutting 
 the grass and trimming the banks and hedges at the sides of the line, 
 had raked the cut grass and hedge-trimmings into heaps near the line 
 Hepb. Torts — 52
 
 818 CAUSAL RELATION (Part 2 
 
 and there left them, and that owing to the extreme heat of the weather 
 these heaps had become very dry and inflammable. On the 3d of 
 August, at about 1 p. m., two trains (an up train and a down train) 
 belonging to the defendants, passed the spot in question, and im- 
 mediately afterwards tlie heaps were on fire; and, in consequence of 
 a high wind prevailing at the time, the fire consumed the adjoining 
 hedge, and, notwithstanding the utmost efforts of the company's serv- 
 ants and others to subdue it, passed over a stubble-field and a public 
 road, and communicated to the plaintiff's cottage, which was about 200 
 yards from the line, and destroyed it with the furniture therein. One 
 of the witnesses for the plaintiff stated that at the time referred to 
 there were fires all about the country ; but whether he meant on the 
 sides of the railway or not, did not clearly appear. There was no 
 evidence to show that the company's engines were improperly con- 
 structed, or that they were negligently or improperly worked. 
 
 On the part of the plaintiff it was contended that there was evi- 
 dence from which the jury might fairly assume that the fire was caused 
 by sparks or burning cinders from one of the engines which had just 
 before passed the spot ; and that there was negligence on the part of the 
 company's servants in allowing such inflammable material to remain 
 on the banks of their railway for so long a time in so dry a season, 
 and therefore they were responsible for the damage resulting from it. 
 
 For the defendants it was contended, on the authority of Vaughan 
 V. Taff Vale Ry. Co., 3 H. & N. 743, 28 L. J. Ex. 41, in error 5 H. 
 & N. 679, 29 L. J. Ex. 247, that the defendants were not responsible 
 for damage resulting from the cause suggested, in the absence of evi- 
 dence to show that their engines were improperly constructed or had 
 been negligently or improperly worked; and that there was no evi- 
 dence of negligence to go to the jury. 
 
 The learned judge declined to nonsuit ; and a verdict was found for 
 the plaintiff for the sum claimed, leave being reserved to the defendants 
 to move to enter a verdict for them, or a nonsuit, if the Court should 
 be of opinion that there was no evidence of negligence which ought 
 to have been submitted to the jury, — the Court to be at liberty to draw 
 inferences, and to amend the pleadings. 
 
 Kingdon, Q. C, in Michaelmas Term last, obtained a rule nisi. 
 
 BrUTT, J. I am of opinion that there was no evidence to go to the 
 jury of negligence on the part of the defendants. I cannot help feel- 
 ing that great difficulty is thrown upon the judges who are called upon 
 to determine questions of this sort, which make them too much judges 
 of facts. I take the rule of law in these cases to be that which is laid 
 down by Alderson, B., in Blyth v. Birmingham Waterworks Company, 
 11 Ex. 784, 25 L. J. Ex. 213: "Negligence is the omission to do some- 
 thing which a reasonable man, guided upon those considerations which 
 ordinarily regulate the conduct of human affairs, would do, or doing 
 something which a prudent and reasonable man would not do. The 
 defendants might have been liable for negligence, if, unintentionally,
 
 Ch. 2) THE TESTS OF LEGAL CAUSE 819 
 
 they omitted to do that which a reasonable person would have done, or 
 did that which a person taking reasonable precautions would not have 
 done. A reasonable man would act with reference to average circum- 
 stances in ordinary years." That being the rule, the question here is 
 whether the defendants by their servants have done or omitted to do 
 something which reasonable men placed under such circumstances as 
 they were placed in would have done or omitted to do. The case of 
 the plaintiff, as put by Mr. Cole on moving, and also in his argument 
 to-day, is this : Conceding that there is no ground for saying that the 
 defendants' engines were not of the best possible construction, or 
 that there was negligence in the mode of working them, they were 
 bound to take notice that such engines do emit sparks and burning 
 cinders ; and, as they were driving them through the country in an 
 exceptionally dry season, they ought not to have permitted such com- 
 bustible materials as rummage or hedge-trimmings to remain on the 
 banks of their railway ; they ought, as reasonable men, to have con- 
 templated that sparks from their engines might set them on fire, and 
 that, if they did, the fire might extend to the plaintiff's property. I 
 quite agree that the defendants ought to have anticipated that sparks 
 might be emitted from their engines, notwithstanding they are of the 
 best construction, and were worked without negligence ; and that 
 they might reasonably have anticipated that the rummage and hedge- 
 trimmings allowed to accumulate might be thereby set on fire. But 
 I am of opinion that no reasonable man could have foreseen that the 
 fire w^ould consume the hedge and pass across a stubblefield, and so 
 get to the plaintiff's cottage at the distance of 200 yards from the rail- 
 way, crossing a road in its passage. It seems to me that no duty was 
 cast upon the defendants, in relation to the plaintiff's property, because 
 it was not shown that that property was of such a nature and so situate 
 that the defendants ought to have known that by permitting the rum- 
 mage and hedge-trimmings to remain on the banks of the railway 
 they placed it in undue peril. If that had been shown, I should have 
 thought that the case fell within the principle laid down by Cock- 
 burn, C. J., in Vaughan v. Taff Vale Ry. Co., 5 H. & X. 679, 685, 29 
 L. J. Ex. 247, for then the defendants must have been taken to have 
 known that the course which was pursued by their servants was calcu- 
 lated to endanger the adjoining property. But, bringing one's knowl- 
 edge of ordinary English country life to bear upon the subject, I am 
 of opinion, as matter of fact, that no reasonable man could suppose, — 
 or at least eight out of ten would fail to suppose, — that, if by any means 
 the rummage and hedge-trimmings on the side of the railway were 
 set on fire, the fire would extend to a stubble-field adjoining, and so 
 proceed to a cottage at the distance before mentioned. We read of 
 such fires in the American prairies; but it would never occur, as it 
 seems to me, to the mind of the most prudent person that such an ex- 
 traordinary conflagration could be caused in this country in the man- 
 ner here spoken of by the witnesses. I think the defendants cannot
 
 820 CAUSAL RELATION (Part 2 
 
 reasonably be beld responsible for not having contemplated such an 
 extraordinary combination of circumstances, or such a result. For 
 these reasons I am of opinion that there was no such evidence of neg- 
 ligence on their part as could properly be left to the jury. 
 
 The Common Pleas having discharged the rule to enter a verdict 
 for the defendant or a non-suit, an appeal was brought. 
 
 [In the Exchequer Chamber] 
 
 Kelly, C. B. I certainly entertained some doubts during the argu- 
 ment as to whether the judgment of the Court below could be sus- 
 tained ; but when I consider the facts, I cannot but feel that it is a 
 case in which there was some evidence of negligence on the part of 
 the defendants, and negligence which caused the injury complained of. 
 It appears that about the time that the spot in question was passed by 
 an engine which, as we know, would emit sparks which would fall 
 on the adjoining ground, a fire was discovered on the defendants' ground 
 adjoining the line. It appears that it had been a dry summer and 
 the hot weather had continued for many weeks before the occurrence : 
 and probably with a view to prevent mischief, the defendants had 
 caused the grass that grew by the line and the fence to be cut, and 
 the cuttings of the grass and hedge were placed in small heaps on the 
 ground between the rails and the hedge. On the other side of the 
 hedge was a stubble-field of a considerable extent which would be ex- 
 tremely dry, and at a distance of two hundred yards across a road was 
 the cottage belonging to the plaintiff. This was the state of facts. 
 The trimmings caught fire, there was a strong south-east wind blowing ; 
 and though we have no proof of the exact progress of the fire, be- 
 cause the company's servants who had seen it were not called, it 
 appears to have extended to and through the hedge and across the 
 field to the plaintiff's cottage which was burnt. The question for u" 
 is, how all this occurred. There is some doubt how the fire originated, 
 but there was ample evidence for the jury, which would have bee i 
 rightly left to them, that it originated from sparks from the engine 
 falling on the dry heaps of trimmings, and thence extending to the 
 hedge and stubblefield. If .that was so, the question arises whether 
 there was any negligence in the defendants. 
 
 Now it can scarcely be doubted that the defendants were bound in 
 such a summer, knowing that trains were passing from which sparks 
 might fall upon them, to remove these heaps of trimmings; and, at 
 any rate, it was a question for the jury whether it was not negligent of 
 them not to do so. I think, therefore, there was a case for the jury 
 on which they might reasonably have found that the defendants were 
 negligent in not removing the trimmings as soon as possible, and that 
 this was the cause of the injury. Then comes the question raised by 
 Brett, J., to which at first I was inclined to give some weight. He puts 
 it thus : "I c|uite agree that the defendants ought to have anticipated 
 that sparks might be emitted from their engines, notwithstanding that
 
 Ch. 2) THE TESTS OF LEGAL CAUSE 821 
 
 ihey were of the best construction, and were worked without negH- 
 gence, and that they might reasonably have anticipated that the rum- 
 mage and hedge-trimmings allowed to accumulate might be thereby set 
 on fire. But I am of opinion that no reasonable man would have 
 foreseen that the fire would consume the hedge and pass across a stub- 
 ble-field, and so get to the plaintiff's cottage at the distance of 200 
 yards from the railway, crossing a road in its passage." It is because I 
 thought, and still think, the proposition is true that any reasonable man 
 might well have failed to anticipate such a concurrence of circum- 
 stances as is here described that I felt pressed at first by this view of 
 the question ; but on consideration I do not feel that that is a true test 
 of the liability of the defendants in this case. It may be that they did 
 not anticipate, and were not bound to anticipate, that the plaintiff's 
 cottage would be burnt as a result of their negligence ; but I think the 
 law is, that if they were aware that these heaps were lying by the side 
 of the rails, and that it was a hot season, and that therefore by being 
 left there the heaps were likely to catch fire, the defendants were bound 
 to provide against all circumstances which might result from this, and 
 v/ere responsible for all the natural consequences of it. I think, then, 
 there was negligence in the defendants in not removing these trim- 
 mings, and that they thus became responsible for all the consequences 
 of their conduct, and that the mere fact of the distance of this cottage 
 from the point where the fire broke out does not affect their liability, 
 and that the judgment of the court below must be affirmed. 
 
 Channell, B. I am of the same opinion. I quite agree that where 
 there is no direct evidence of negligence, the question what a reason- 
 able man might foresee is of importance in considering the question 
 whether there is evidence for the jury of negligence or not, and this 
 is what was meant by Bramwell, B., in his judgment in Blyth v. Bir- 
 mingham Waterworks Co., 11 Ex. 781; 25 L. J. (Ex.) 212, referred 
 to by Mr. Kingdon; but when it has been once determined that there 
 is evidence of negligence, the person guilty of it is equally liable for 
 its consequences, whether he could have foreseen them or not. 
 
 Blackburn, J. I also agree that what the defendants might reason- 
 ably anticipate is, as my Brother Channell has said, only material 
 with reference to the question whether the defendants were negligent 
 or not, and cannot alter their liability if they were guilty of negligence. 
 I have still some doubts whether there was any evidence that they were 
 negligent, but as all the other judges are of opinion that there was evi- 
 dence that they were, I am quite content that the judgment of the 
 Court below should be affirmed. I do not dissent, but I have some 
 doubt * * * if there was evidence of negligence; if the negli- 
 gence were once established, it would be no answer that it did much 
 more damage than was expected. If a man fires a gun across a road 
 where he may reasonably anticipate that persons will be passing, and 
 hits some one, he is guilty of negligence, and liable for the injury he 
 has caused ; but if he fires in his own wood, where he cannot reason-
 
 822 CAUSAL RELATION (Part 2 
 
 ably anticipate that any one will be, he is not liable to any one whom 
 he shoots, which shows that what a person may reasonably anticipate 
 is important in considering whether he has been negligent; but if a 
 person fires across a road when it is dangerous to do so and kills a man 
 who is in receipt of a large income, he will be liable for the whole 
 damage, however great, that may have resulted to his family, and can- 
 not set up that he could not have reasonably expected to have injured 
 any one but a laborer.* 
 Judgment affirmed. 
 
 MILWAUKEE & ST. P. RY. CO. v. KELLOGG. 
 (Supreme Court of the United States, 1876. 94 U. S. 469, 24 L. Ed. 256.) 
 
 Error to the Circuit Court of the United States for the District of 
 Iowa. 
 
 Mr. Justice; Strong delivered the opinion of the court. 
 
 This was an action to recover compensation for the destruction by 
 fire of the plaintifif's saw-mill and a quantity of lumber, situated and 
 lying in the State of Iowa, and on the banks of the river Mississippi. 
 That the property was destroyed by fire was uncontroverted. From 
 the bill of exceptions, it appears : 
 
 That the "plaintiff alleged the fire was negligently communicatod from the 
 defendants' steamboat 'Jennie Brown' to an elevator built of pine lumber, 
 and one hundred and twenty feet high, owned by the defendants, and stand- 
 ing on the bank of the river, and from the elevator to the plaintiff's saw-mill 
 and lumber piles, while an unusually strong wind was blowing from the ele- 
 vator towards the mill and lumber. On the trial, it was admitted that the 
 defendants owned the steamboat and elevator : that the mill was five hundred 
 and thirty-eight feet from the elevator, and that the nearest of the plaintiff's 
 piles of lumber was three hundred and eighty-eight feet distant from 
 it. • * •" 
 
 The verdict of the jury was: 
 
 1st, that the elevator was burned from the steamer "Jennie Brown" ; 2d, 
 that such burning was caused by not using ordinary care and prudence in 
 landing at the elevator, under circumstances existing at tliat particular time; 
 and, '6(1, that the burning of the mill and lumber was the unavoidable con- 
 sequence of the burning of the elevator. 
 
 The only reasonable construction of the verdict is, that the fault of 
 the defendants — in other words, their want of ordinary care and 
 prudence — consisted in landing the steamer at the elevator in the 
 circumstances then existing, when a gale of wind was blowing towards 
 it, when the elevator was so combustible and so tall. If this is not the 
 meaning of the verdict, no act of negligence, of want of care, or of 
 fault has been found. And this is one of the faults charged in the 
 declaration. It averred, that, while the wind was blowing a gale from 
 
 *The concurring opinion of Martin, B., Pigott, B., and Lush, J., are omitted. 
 Bramwell, B.. concurred, without opinion.
 
 Ch. 2) THE TESTS OF LEGAL CAUSE 823 
 
 the steamboat towards and in the direction of the elevator, the de- 
 fendants carelessly and negligently allowed, pennitted, and counselled 
 (or, as stated in another count, "directed") the steamboat to approach 
 and lie alongside of or in close proximity to the said elevator. This 
 is something more than nonfeasance: it is positive action, the result, 
 consequence, or outworking, as the jury have found it, of the want of 
 such care as should have been exercised. * * * 
 
 The next exception is to the refusal of the Court to instruct the jury 
 as requested, that "if they believed the sparks from the 'Jennie Brown' 
 set fire to the elevator through the negligence of the defendants, and 
 the distance of the elevator from the nearest lumber pile was three hun- 
 dred and eighty-eight feet, and from the mill five hundred and twenty- 
 eight feet, then the proximate cause of the burning of the mill and lum- 
 ber was the burning of the elevator, and the injury was too remote 
 from the negligence to afford a ground for a recovery." This proposi- 
 tion the Court declined to affirm, and in lieu thereof submitted to the 
 jury to find whether the burning of the mill and lumber was the result 
 naturally and reasonably to be expected from the burning of the eleva- 
 tor ; whether it was a result which, under the circumstances, would nat- 
 urally follow from the burning of the elevator; and whether it was 
 the result of the continued effect of the sparks from the steamboat, 
 without the aid of other causes not reasonably to be expected. All this 
 is alleged to have been erroneous. The assignment presents the oft- 
 embarrassing question, what is and what is not the proximate cause of 
 an injury. The point propounded to the Court assumed that it was 
 a question of law in this case ; and in its support the two cases of Rvan 
 V. New York Central Railroad Co., 35 N. Y. 210, 91 Am. Dec. '49, 
 and Pennsylvania Railroad Co. v. Kerr, 62 Pa. 353, 1 Am. Rep. 431, 
 are relied upon. Those cases have been the subject of much criticism 
 since they were decided ; and it may, perhaps, be doubted whether 
 they have always been quite understood. If they were intended to 
 assert the doctrine that when a building has been set on fire through 
 the negligence of a party, and a second building has been fired from 
 the first, it is a conclusion of law that the owner of the second has 
 no recourse to the negligent wrong-doer, they have not been accepted 
 as authority for such a doctrine, even in the States where the decisions 
 were made. Webb v. Rome, Watertown & Ogdensburg Railroad Co., 
 49 N. Y. 420, 10 Am. Rep. 389 and Pennsylvania Railroad Co. v. 
 Hope, 80 Pa. 373, 21 Am. Rep. 100. And certainly they are in conflict 
 with numerous other decided cases. Kellogg v. Chicago & X^orth- 
 western Railroad Co., 26 Wis. 224, 7 Am. Rep. 69 ; Perley v. Eastern 
 Railroad Co., 98 Mass. 414, 96 Am. Dec. 645; Higgins v. Dewey, 
 107 Mass. 494, 9 Am. Rep. 63 ; Fent v. Toledo, Peoria & Warsaw 
 Railroad Co., 59 111. 349, 14 Am. Rep. 13. 
 
 The true rule is, that what is the proximate cause of an injury is 
 ordinarily a question for the jury. It is not a question of science or 
 of legal knowledge. It is to be determined as a fact, in view of the
 
 824 CAUSAL RELATION (Part 2 
 
 circumstances of fact attending it. The primary cause may be the 
 proximate cause of a disaster, though it may operate through succes- 
 sive instruments, as an article at the end of a chain may be moved by 
 a force apphed to the other end, that force being the proximate cause 
 of the movement, or as in the oft-cited case of the squib thrown in the 
 market-place, 2 Bl. Rep. 892. The question always is. Was there an 
 unbroken connection between the wrongful act and the injury, a con- 
 tinuous operation? Did the facts constitute a continuous succession 
 of events, so linked together as to make a natural whole, or was there 
 some new and independent cause intervening between the wrong and- 
 the injury? It is admitted that the rule is difficult of application. But 
 it is generally held, that, in order to warrant a finding that negligence, 
 or an act not amounting to wanton wrong, is the proximate cause of 
 an injury, it must appear that the injury was the natural and probable 
 consequence of the negligence or wrongful act, and that it ought to 
 have been foreseen in the light of the attending circumstances. These 
 circumstances, in a case like the present, are the strength and direction 
 of the wind, the combustible character of the elevator, its great height, 
 and the proximity and combustible nature of the saw-mill and the 
 piles of lumber. 
 
 Most of these circumstances were ignored in the request for in- 
 struction to the jury. Yet it is obvious that the immediate and insep- 
 arable consequences of negligently firing the elevator would have been 
 very different if the wind had been less, if the elevator had been a 
 low building constructed of stone, if the season had been wet, or if 
 the lumber and the mill had been less combustible. And the defendants 
 might well have anticipated or regarded the probable consequences of 
 their negligence as much more far-reaching than would have been 
 natural or probable in other circumstances. We do not say that even 
 the natural and probable consequences of a wrongful act or omission 
 are in all cases to be chargeable to the misfeasance or nonfeasance. 
 They are not when there is a sufficient and independent cause operat- 
 ing between the wrong and the injury. In such a case the resort of 
 the sufferer must be to the originator of the intermediate cause. But 
 when there is no intermediate efficient cause, the original wrong must 
 be considered as reaching to the effect, and proximate to it. The in- 
 quiry must, therefore, always be whether there was any intermediate 
 cause disconnected from the primary fault, and self-operating, which 
 produced the injury. Here lies the difficulty. But the inquiry must 
 be answered in accordance with common understanding. In a succes- 
 sion of dependent events an interval may always be seen by an acute 
 mind between a cause and its effect, though it may be so imperceptible 
 as to be overlooked by a common mind. Thus, if a building be set 
 •on fire by negligence, and an adjoining building be destroyed with- 
 out any negligence of the occupants of the first, no one would 
 doubt that the destruction of the second was due to the negligence 
 that caused the burning of the first. Yet in truth, in a very legiti-
 
 Ch. 2) THE TESTS OF LEGAL CAUSE 
 
 825 
 
 mate sense, the immediate cause of the burning of the second was the 
 burning of the first. The same might be said of the burning of the 
 furniture in the first. Such refinements are too minute for rules of 
 social conduct. In the nature of things, there is in every transaction a 
 succession of events, more or less dependent upon those preceding, 
 and it is the province of a jury to look at this succession of events or 
 facts, and ascertain whether they are naturally and probably connected 
 with each other by a continuous sequence, or are dissevered by new 
 and independent agencies, and this must be determined in view of 
 the circumstances existing at the time. 
 
 If we are not mistaken in these opinions, the Circuit Court was cor- 
 rect in refusing to affirm the defendants' proposition, and in submit- 
 ting to the jury to find whether the burning of the mill and lumber was 
 a result naturally and reasonably to be expected from the burning of the 
 elevator, under the circumstances, and whether it was the result of the 
 continued influence or effect of the sparks from the boat, without the 
 aid or concurrence of other causes not reasonably to have been expected. 
 The jury found, in substance, that the burning of the mill and lumber 
 was caused by the negligent burning of the elevator, and that it was 
 the unavoidable consequence of that burning. This, in effect, was find- 
 ing that there was no intervening and independent cause between the 
 negligent conduct of the defendants and the injury to the plaintiff. 
 The judgment must, therefore, be affirmed. 
 
 Judgment affirmed.^ 
 
 WOOD V. PENNSYLVANIA R. CO. 
 
 (Supreme Court of Pennsylvania, 1896. 177 Pa. 306, 35 Atl. 699, 35 L. R. A. 
 
 199, 55 Am. St. Rep. 728.) 
 
 The action was against the Pennsylvania Railroad Company. The 
 facts as stated by the court below were as follows : 
 
 On the 26th of October, 1893, the plaintiff, having bought a return 
 ticket, went as a passenger upon the railroad of the defendant com- 
 pany from Frankford to Holmesburg. After spending the day there, 
 attending to some matters of business, he concluded to come back 
 upon a way train, due at Holmesburg at 5 minutes after 6 in the eve- 
 ning. While waiting for this train, the plaintiff stood on the platform 
 of the station, which was on the north side of the tracks, at the eastern 
 end of the platform, with his back against the wall at the comer. To 
 the eastward of the station, a street crosses the railroad at grade. How 
 far this crossing is from the station does not appear from the evi- 
 dence. It was not so far away, however, but that persons on the plat- 
 form could see objects at the crossing. For at least 150 yards to the 
 eastward of the crossing the railroad is straight, and then curves to 
 
 8 Parts of the opinion are omitted.
 
 826 CAUSAL RELATION (Part 2 
 
 the right. About 6 o'clock an express train coming from the east 
 upon the north track passed the station, and the plaintiff, while stand- 
 ing in the position described, was struck upon the leg by what proved 
 to be the dead body of a woman, and was injured. The headlight of 
 the approaching locomotive disclosed to one of the witnesses who 
 stood on the platform two women in front of the train at the street 
 crossing, going from the south to the north side of the tracks. One 
 succeeded in getting across in safety, and the other was struck just 
 as she reached the north rail. How the woman came to be upon the 
 track there is nothing in the evidence to show. There was evidence 
 that no bell was rung or whistle blown upon the train which struck 
 the woman before it came to the crossing, and some evidence that it 
 was running at the rate of from 50 to 60 miles an hour. 
 
 Upon this state of facts, the trial judge entered a nonsuit. The 
 court in banc having. afterwards refused to take off the nonsuit, the 
 case was appealed from the Common Pleas of Philadelphia County. 
 
 Dean, J. (after stating the facts). Was the negligence of defend- 
 ant the proximate cause of plaintiff's injury? Judge Pennypacker, 
 delivering the opinion of a majority of the court below, concluded it 
 was not, and refused to take off the nonsuit. Applying the rule in 
 Hoag V. Railroad Co., 85 Pa. 293, 27 Am. Rep. 653, to these facts, the 
 question on which the case turns is: "Was the injury the natural and 
 probable consequence of the negligence, — such a consequence as, under 
 the surrounding circumstances, might and ought to have been foreseen 
 by the wrongdoer as likely to flow from his act?" As concerns the 
 situation of plaintiff at the time of his injury, and the relation of that 
 fact to the cause, whether near or remote, we do not consider it im- 
 portant. He was where he had a right to be, — on the platform of the 
 station. That he had purchased a ticket for passage on defendant's 
 road, and was waiting on its platform for his train, has no particular 
 bearing on the question. The duty of defendant to him at that time was 
 to provide a platform and station, safe structures, for him and others 
 .who desired to travel. In this particular its duty was performed. The 
 injury is not in the remotest degree attributable to the platform or 
 the station. It is sufficient to say, when there, he was not a trespasser 
 on defendant's property, and therefore his action does not fall for 
 that reason ; but he is in no more favorable situation as a suitor than 
 if he had been walking alongside the railroad, on the public highway, 
 or at any other place where he had a right to be. 
 
 The rule quoted in Hoag v. Railroad Co., supra, is, in substance, the 
 conclusion of Lord Bacon, and the one given in Broom's Legal Max- 
 ims. It is not only the well-settled rule of this state, but is, generally, 
 that of the United States. Prof. Jaggard, in his valuable work on 
 Torts, after a reference to very many of the cases decided in a large 
 number of the states, among them Hoag v. Railroad Co., comes to this 
 conclusion : "It is admitted that the rule is difficult of application. But 
 it is generally held that, in order to warrant a finding that negligence.
 
 Ch. 2) THE TESTS OF LEGAL CAUSE 827 
 
 or an act not amounting to wanton wrong, is a proximate cause of 
 an injury, it must appear that the injury was the natural and probable 
 consequence of the negligence or wrongful act, and that it ought to 
 have been foreseen in the light of the attending circumstances." Jag. 
 Torts, c. 5. Judge Cooley states the rule thus : "If the original act 
 was wrongful, and would naturally, according to the ordinary course of 
 events, prove injurious to some others, and result, and does actually 
 result, in injury, through the intervention of other causes not wrong- 
 ful, the injury shall be referred to the wrongful cause, passing through 
 those which were innocent." Cooley, Torts, 69. This, also, is in sub- 
 stance the rule of Hoag v. Railroad Co. All the speculations and re- 
 finements of the philosophers on the exact relation of cause and effect 
 help us very little in the determination of rules of social conduct. The 
 juridical cause, in such a case, as we have held over and over, is best 
 ascertained in the practical affairs of life by the application to the 
 facts of the rule in Hoag v. Railroad Co. 
 
 Adopting that rule as the test of defendant's liability, how do we 
 determine the natural and probable consequences, which must be fore- 
 seen, of this act? We answer in this and all like cases: from com- 
 mon experience and observation. The probable consequence of cross- 
 ing a railroad in front of a near and approaching train is death, or 
 serious injury. Therefore, acting from an impulse to self-preserva- 
 tion, or on the reflection that prompts to self-preservation, we are de- 
 terred from crossing. Our conduct is controlled by the natural and 
 probable consequence of what our experience enables us to foresee. 
 True, a small number of those who have occasion to cross railroads 
 are reckless, and, either blind to or disregardf ul of consequences, cross, 
 and are injured, killed, or barely escape. But this recklessness of the 
 very few in no degree disproves the foreseeableness of the consequences 
 by mankind generally. Again, the competent railroad engineer knows 
 from his own experience and that of others in like employment that 
 to approach a grade highway crossing with a rapidly moving train 
 without warning is dangerous to the lives and limbs of the public using 
 the crossing. He knows death and injury are the probable conse- 
 quences of his neglect of duty ; therefore he gives warning. But does 
 any one believe the natural and probable consequence of standing 50 
 feet from a crossing, to the one side of a railroad, when a train is ap- 
 proaching, either with or without warning, is death or injury? Do 
 not the most prudent, as well as the public generally, all over the land, 
 do just this thing every day, without fear of danger? The crowded 
 platforms and grounds of railroad stations, generally located at cross- 
 ings, alongside of approaching, departing, and swiftly passing trains, 
 prove that the public, from experience and observation, do not, in that 
 situation, foresee any danger from trains. They are there because, in 
 their judgment, although it is possible a train may strike an object, 
 animate or inanimate, on the track, and hurl it against tliem, such a 
 consequence is so highly improbable that it suggests no sense of dan-
 
 828 CAUSAL RELATION (Part 2 
 
 ger. They feel as secure as if in their homes. To them it is no more 
 probable than that a train at that point will jump the track and run 
 over them. If such a consequence as here resulted was not natural, 
 probable, or foreseeable to anybody else, should defendant, under the 
 rule laid down in Hoag v. Railroad Co., be chargeable with the conse- 
 quence? Clearly, it was not the natural and probable consequence of 
 its neglect to give warning, and therefore was not one which it was 
 bound to foresee. The injury, at most, was remotely possible, as dis- 
 tinguished from the natural and probable consequences of the neg- 
 lect to give warning. As is said in Railroad Co. v. Trich, 117 Pa. 399, 
 11 Atl. 627, 2 Am. St. Rep. 672: "Responsibility does not extend to 
 every consequence which may possibly result from negligence." 
 
 What we have said thus far is on the assumption the accident was 
 caused solely by the negligence of defendant, or by the concurring 
 negligence of defendant and the one killed going upon the track with a 
 locomotive in full view. This being an action by an innocent third 
 person, he cannot be deprived of his remedy because his injury resulted 
 from the concurrent negligerwze of two others. He fails because his 
 injury was a consequence so remote that defendant could not reason- 
 ably foresee it. * * * 
 
 Judgment affirmed.^" 
 
 10 Fart of the opinion is omitted. 
 
 Accord: Evansville & T. H. R. Co. v. Welch (1900) 25 Ind. App. 308, 58 N. 
 E. SS, 81 Am. St. Rep. 102: (A locomotive, negligently run by D. at a danger- 
 ous speed over public grade crossings in a town, struck S. on one of these 
 crossings. The impact of the locomotive hurled the body of S. through tlie 
 air and against P., who was standing on the platform of the station waiting 
 for a train. Said Henley, J., delivering the opinion: "It is possible that per- 
 sons may be injured in the manner in which appellee received his injury. 
 Surticient proof of this is the fact that appellee was so injured. But such an 
 injury cannot be said to be one which the most prudent man would have an- 
 ticipated. The manner in which appellee was injured was unusual and ex- 
 traordinary and contrary to common experience. It was such an injury as 
 could not have been foreseen or reasonably anticipated as the probable re- 
 sult of appellant's negligent acts. Under such circumstances there is no lia- 
 bility.) Richards v. Rough (1SS4) 53 Mich. 212, 18 N. W. 785; Hoag v. Lake 
 Shore, etc., R. Co. (1S77) 85 Pa. St. 293, 27 Am, Rep. 653; Sjogren v. Hall 
 (1884) 53 Mich. 274, 18 N. W, 812 ; Mitchell v. Chicago, etc., R. Co. (1883) 51 
 Mich. 236, 16 N. W. 388, 47 Am. Rep. 566 ; Wabash, etc., R. Co. v. Locke (1887) 
 112 Ind. 404, 14 N. E. 391, 2 Am. St. Rep. 193 ; City of Allegheny v. Zimmer- 
 man (ISSO) 95 Pa. 287, 40 Am. Rep. 049; Stewart v. Strong (1897) 20 Ind. 
 App. 44, 50 N. E. 95." 
 
 But see Alabama G. S. R. Co. v. Chapman (1887) 80 Ala. 615, 2 South. 738: 
 (The defendant's train, running through a town too fast to be stopped prompt- 
 ly, struck a cow on an embankment. The body of the cow was hurled off the 
 track by the impact of the locomotive, hit the ground, bounced, and hit the 
 plaintiff, who was walking along a footpath at the bottom of the embankment. 
 Said Clopton, J., delivering tbe opinion: It is insisted that the act of the 
 defendant was only the remote cause of the injury. When the cow was 
 thrown by the engine, it struck the ground, bounced, and fell against plain- 
 tiff. The bounce and fall of the cow was the immediate cause, but it was 
 merely incidental, and was not an independent agency, which had no connec- 
 tion with the act of the defendant. The direct cause was put in operation by 
 the force of the engine, which continued until the injury; and injuries, di- 
 rectly produced by instrumentalities thus put in oi)eratiou and continued, are
 
 Ch. 2) THE TESTS OF LEGAL CAUSE 829 
 
 CHRISTIANSON v. CHICAGO, ST. P., M. & O. RY. CO. 
 
 (Supreme Court of Minnesota, 1S9G, 67 Minn. 94, 69 N. W. 640.) 
 
 The action was by Christiansen against the railway company, to re- 
 cover for personal injuries caused by the alleged negligence of the de- 
 fendant's servants. There was a verdict for the plaintiff. From an 
 order refusing a new trial the defendant appealed. 
 
 Mitchell, J. * * * ^^ The plaintiff was in defendant's employ 
 as a section hand. On the day in question, he and two other sectionmen 
 started easterly on a hand car, to meet their section foreman. In the 
 meantime, another section crew, with plaintiff's section foreman, had 
 started westerly from another point, on another hand car. When the 
 two cars came within a short distance of each other, those on the west- 
 bound signaled those on the east-bound car to go back. Thereupon 
 those on the latter car turned back, and both cars proceeded westerly, 
 the car on which plaintiff was going ahead, and the other car follow- 
 ing. It appears from the evidence that those on the rear car had, 
 before starting out that morning, imbibed several drinks of whisky; 
 and that, while both cars were going westerly, some of them once or 
 twice signaled to those on the forward car as if wanting them to go 
 faster. The only significance of this is that it may in part, at least, 
 account for the conduct of those on the rear car. This part of the 
 railroad was a downgrade of from 52 to 58 feet to the mile, and the 
 track was wet and somewhat slippery. The cars were running down 
 this grade at a rate of speed variously estimated at from 10 to 20 
 miles an hour. The front car, on which plaintiff was, was of old style, 
 not capable of as great a rate of speed as the rear car; and, owing to 
 the nature of its gearing, the handles attached to the lever moved very 
 rapidly ; so much so that it was difficult for one standing on the car to 
 hold on to them. Plaintiff was standing on the rear end of the car, 
 with nothing to hold on to except these handles. The other two men 
 were on the front end of the car where the brake was. The usual dis- 
 tance at which hand cars kept apart, according to the rules of the com- 
 pany, was "three telegraph poles," which would be 540 feet. At the 
 rate of speed at which it was going, the rear car could not have been 
 brought to a stop by the application of the brake in less than 100 feet. 
 The cars had traveled in this way about a mile and a quarter, the rear 
 
 proximate consequences of the primary act, though they may not have been 
 contemplated or foreseen. The relation of cause and effect between the pri- 
 mary cause and the injury is established by the connection and succession of 
 the intervening circumstances. If the cow was thrown from the track by the 
 negligence of defendant, the injury cannot be regarded as a purely accidental 
 occurrence for which no action lies.) East Tennessee, V. & G. R. Co. v. Lock- 
 hart (1885) 79 Ala. 315 ; Alabama (i. S. R. Co. v. Arnold (1SS7) 80 Ala. G15, 2 
 South. 337. •■ 
 
 See also Columbus R. Co. v. Newsome (1914) 142 Ga. 674, 83 S. E. 506, L. 
 R. A. 1915B, 1111. 
 
 11 i'arts of the opinion, on other matters, are omitted.
 
 830 CAUSAL RELATION (Part 2 
 
 car gaining on the forward one, until it got within 60 feet of it. The 
 plaintiff testified that at this point he looked back, and, seeing the other 
 car so near, and going so fast, became dizzy, lost his balance, and 
 fell off. It is perhaps unimportant whether his fall was the result of 
 fright caused by seeing the other rapidly moving car so near, or 
 whether he accidentally lost his hold on the handle of the lever, and 
 lost his balance. The fact is undisputed that he did fall off. We 
 think the evidence shows that, after the men on the rear car saw him 
 fall, they did all they could to stop their car ; but going, as they were, 
 at so great a rate of speed, and being within 60 feet of the front car, it 
 was impossible for them tO' avoid colliding with the plaintiff. The 
 result was that the car ran upon him while lying on the track, and in- 
 flicted very severe injuries. * * * 
 
 That, under the evidence, the question of the negligence of those on 
 the rear car was for the jury, we have no doubt. The usual practice, 
 in accordance with the rules of the company, for hand cars, when going 
 in the same direction, to maintain a distance between them of "three 
 telegraph poles," was founded upon the plainest dictates of common 
 prudence. The faster the cars were going, and the greater the dis- 
 tance required to stop the rear car, the greater was the necessity for 
 the observance of this rule, so as to avoid injury in case of accident 
 to the front car or those riding upon it. But in this case, although the 
 cars were going at a high rate of speed on the downgrade and a slip- 
 pery track, those on the rear car allowed it to come within only a little 
 over half the distance of the front car in which they could have stopped 
 had any accident befallen the front car or its occupants. The jury 
 were amply justified in finding that, in so doing, the occupants of the 
 rear car were guilty of negligence. 
 
 The main contention, however, of defendant's counsel, is that, con- 
 ceding that those on the rear car were negligent, yet plaintiff's injuries 
 were not the proximate result of such negligence ; or, perhaps to state 
 their position more accurately, that it is not enough to entitle plaintiff 
 to recover that his injuries were the natural consequence of this 
 negligence, but that it must also appear that, under all the circum- 
 stances, it might have been reasonably anticipated that such injury 
 would result. With this legal premise assumed, counsel argues that 
 those on the rear car could not have reasonably anticipated that plain- 
 tiff would fall from the car. It is laid down in many cases and by 
 some text-writers that, in order to warrant a finding that negligence 
 (not wanton) is the proximate cause of an injury, it must appear that 
 the injury was the natural and probable consequence of the negligent 
 act, and that it (the injury) was such as might or ought, in the light of 
 attending circumstances, to have been anticipated. Such or similar 
 statements of law have been inadvertently borrowed and repeated in 
 some of the decisions of this court, but never, we think, where the 
 precise point now under consideration was involved. • Hence such 
 statements are mere obiter. The doctrine contended for by counsel
 
 Ch. 2) THE TESTS OF LEGAL CAUSE 831 
 
 would establish practically the same rule of damages resulting from 
 tort as is applied to damages resulting from breach of contract, under 
 the familiar doctrine of Hadley v. Baxendale, 9 Exch. 341. This mode 
 of stating the law is misleading, if not positively inaccurate. It con- 
 founds and mixes the definition of "negligence" with that of "proxi- 
 mate cause." What a man may reasonably anticipate is important, and 
 may be decisive, in determining whether an act is negligent, but is not 
 at all decisive in determining whether that act is the proximate cause 
 of an injury which ensues. If a person had no reasonable ground to 
 anticipate that a particular act would or might result in any injury, to 
 anybody, then, of course, the act would not be negligent at all ; but, if 
 the act itself is negligent, then the person guilty of it is equally liable 
 for all its natural and proximate consequences, whether he could have 
 foreseen them or not. Otherwise expressed, the law is that if the 
 act is one which the party ought, in the exercise of ordinary care, to 
 have anticipated was liable to result in injury to others, then he is 
 liable for any injury proximately resulting from it, although he could 
 not have anticipated the particular injury which did happen. Conse- 
 quences which follow in unbroken sequence, without an intervening 
 efficient cause, from the original negligent act, are natural and proxi- 
 mate; and for such consequences the original wrongdoer is respon- 
 sible, even though he could not have foreseen the particular results 
 which did follow. Bevan, Neg. p. 97; Hill v. Winsor, 118 Mass. 251; 
 Smith V. Railway Co., L. R. 6 C. P. 14. For citation of cases on this 
 question, see 16 Am. & Eng. Enc. Law, p. 436 et seq. ; also, Shear. & 
 R. Neg. § 28 et seq. Tested by this rule, we think that it is clear that 
 the negligence of those on the rear car was the proximate cause of 
 plaintiff's injuries ; at least, that the evidence justified the jury in so 
 finding. Counsel admitted on the argument that if, by derailment or 
 other accident, the front car had been suddenly stopped, and a colli- 
 sion and consequent injuries to plaintiff had resulted, the negligence of 
 those on the rear car would have been the proximate cause. But we 
 can see no difference in principle between the case supposed and the 
 present case. The causal connection between the negligent act and the 
 resulting injury would be the same in both cases. The only possible 
 difference is that it might be anticipated that the sudden stoppage of 
 the car was more likely to happen than the falling of one of its occu- 
 pants upon the track.j * * * 
 Order affirmed. 
 
 tCompare Wilson v. Northern Pac. Ry. Oo. (1915, N. D.) 153 N. W. 429: (A 
 prairie fire negligently started by tlie railway company, threatened the de- 
 struction of Wilson's homestead. His wife, acting in his absence, and usinj 
 reasonable efforts to save the property, overexerted herself and thereby suffer- 
 ed a serious injury.)
 
 832 CAUSAL RELATION (Part 2 
 
 McCAHILL V. NEW YORK TRANSP. CO. 
 
 (Court of Appeals of New York, 1911. 201 N. Y. 221, 9-i N. E. 616, 48 L. R. 
 A. [N. S.] 131, Ann. Cas. 1912A, 961.) 
 
 The administratrix of John McCahill, deceased, sued the New York 
 Transportation Company for his death, and obtained judgment in the 
 trial court. The judgment was affirmed in the Appellate Division, and 
 the defendant appeals to this court. 
 
 HiscocK, J. One of the appellant's taxicabs struck respondent's 
 intestate on Broadway, in the city of New York, in the nighttime un- 
 der circumstances which, as detailed by the most favorable evidence, 
 permitted the jury to find that the former was guilty of negligence and 
 the latter free from contributory negligence. As a result of the acci- 
 dent the intestate was thrown about 20 feet, his thigh broken and his 
 knee injured. He immediately became unconscious, and was shortly 
 removed to a hospital, where he died on the second day thereafter of 
 delirium tremens. A physician testified that the patient when brought 
 to the hospital "was unconscious or irrational rather than unconscious. 
 * * * He rapidly developed delirium tremens. * * * j should 
 say with reasonable certainty the injury precipitated his attack of de- 
 lirium tremens, and understand I mean precipitated, not induced." 
 And, again, that in his opinion "the injury to the leg and the knee 
 hurried up the delirium tremens." He also stated : "He might have 
 had it (delirium tremens) anyway. Nobody can tell that." Of coursei* 
 it is undisputed that the injuries could not have led to delirium tremens 
 except for the pre-existing alcoholic condition, of the intestate, and 
 under these circumstances the debatable question in the case has been 
 whether appellant's negligence was, legally speaking, the proximate 
 cause of intestate's death. It seems to me that it was, and that the 
 judgment should be affirmed. 
 
 In determining this question, it will be unnecessary to quote defini- 
 tions of proximate cause which might be useful in testing an obscure, 
 involved, or apparently distant relationship between an act and its al- 
 leged results, for the relationship here is perfectly simple and obvious. 
 The appellant's automobile struck and injured the traveler. The in- 
 juries precipitated, hastened, and developed delirium tremens, and 
 these caused death. There can be no doubt that the negligent act di- 
 rectly set in motion the sequence of events which caused death at the 
 time it occurred. Closer analysis shows that the real proposition urged 
 by the appellant is that it should not be held liable for the results which 
 followed its negligence, either, first, because those results would not 
 have occurred if intestate had been in a normal condition ; or, secondly, 
 because his alcoholism might have caused delirium tremens and death 
 at a later date even though appellant had not injured him. This propo- 
 sition cannot be maintained in either of its branches which are some- 
 what akin.
 
 Ch. 2) THE TESTS OP LEGAL CAUSE 833 
 
 The principle has become famihar in many phases that a neghgent 
 person is responsible for the direct effects of his acts, even if more 
 serious, in cases of the sick and infirm as well as in those of healthy 
 and robust people, and its application, to the present case is not made 
 less certain because the facts are somewhat unusual and the intestate's 
 prior disorder of a discreditable character. Tice v. Munn, 94 N. Y. 
 621 ; Crank v. Forty-Second Street, M. & St. N. Ave. Ry. Co., 53 Hun, 
 425, 6 N. Y. Supp. 229, affirmed 127 N. Y. 648, 27 N. E. 856 ; Allison 
 V. C. & N. W. R. R. Co., 42 Iowa, 274 ; Owens v. K. C. & C. Ry. Co., 
 95 Mo. 169, 182, 8 S. W. 350, 6 Am. St. Rep. 39. The principle is also 
 true, although less familiar, that one who has negligent^'' forwarded 
 a diseased condition, and thereby hastened and prematurely caused 
 death, cannot escape responsibility, even though the disease probably 
 would have resulted in death at a later time without his agency. It is 
 easily seen that the probability of later death from existing causes for 
 which a defendant was not responsible would probably be an important 
 element in fixing damages, but it is not a defense. 
 
 Turner v. Nassau Electric R. R. Co., 41 App. Div. 213, 58 K. Y. 
 Supp. 490, was a case singularly similar to this one, except that there 
 the physician ventured the opinion that delirium tremens would not 
 have ensued except for the accident resulting from defendant's negli- 
 gence, whereas in. the present case there is no opinion on this point. 
 I think, however, that no presumption can be indulged in for the benefit 
 of the present appellant that delirium tremens would have occurred 
 without its agency. In that case a judgment in favor of the intestate's 
 representative was sustained on the ground that the accident precipi- 
 tated the delirium tremens which resulted in the death. 
 
 In Louisville, etc., R. R. Co. v. Jones, 83 Ala. 376, 382, 3 South. 902, 
 904, it was said that if an intestate "had pneumonia or incipient pneu 
 monia at the time she received the injury, and it could be known that 
 she would ultimately die of that disease, this would not necessarily, 
 and as a matter of law, relieve the railroad of all responsibility. If the 
 injury was caused by the negligence of the railroad company, * * * 
 and if it contributed to and hastened her death, then the corporation 
 would not be guiltless." 
 
 In Jeff'ersonville, etc., R. R. Co. v. Riley, 39 Ind. 568, it was said 
 with reference to a request to charge made by the defendant and de- 
 nied : "If it was intended to have the court say to the jury that when 
 a person has a tendency to insanity or disease, and receives an injury 
 which produces death, but which would not have produced death in a 
 well person (the plaintiff cannot recover), the charge was rightly re- 
 fused. If death was the result of the pre-existing circumstances, and 
 the injury had nothing to do with producing or accelerating the result, 
 then the injury would not be the cause of death." See, also, Owens 
 V. K. C. & C. Ry. Co., 95 Mo. 169, 182, 8 S. W. 350, 6 Am. St. Rep. 
 39; Foley v. Pioneer, etc., Co., 144 Ala. 178, 183, 40 South. 273. 
 Hept.Tobts — 53
 
 834 CAUSAL RELATION (Part 2 
 
 The responsibility of a person accelerating the death of another al- 
 ready suffering from a disorder which at a later period of itself might 
 have caused death has been considered in criminal cases and deter- 
 mined in a manner which is adverse to the contention of the appellant 
 here. * * * ^^ 
 
 I think the judgment should be affirmed, with costs. 
 
 Vann, J.^^ I concur because so far as appears the decedent might 
 be living yet if he had not been injured by the negligence of the de- 
 fendant. * * * 
 
 The injuries were of a very serious nature, and he died on the third 
 day after he was hurt, but still the physicians who saw him at the 
 hospital were of the opinion that he would have recovered if delirium 
 tremens had not set in on the day following the accident. They testi- 
 fied, in substance, that he died from that disease, precipitated or hast- 
 ened by the injuries he had sustained. One of them swore that he 
 might have died from delirium tremens even if he had not been injured, 
 and the jury could have found from the evidence that he would not 
 have had that disease at all but for the injuries. Hence they could 
 properly find, as they are presumed to have found, that the injuries 
 were a proximate cause of his death, because otherwise he would not 
 have died when he did, but might have lived for months or for years. 
 Non constat, he might be living still. Even if he had the seeds of a 
 fatal disease in his system, yet would have continued to live for a 
 longer or shorter period if he had not been injured, and the injuries 
 caused the disease to develop prematurely and result in death sooner 
 than it otherwise would, his death was caused by the accident within 
 the meaning of the statute. The acceleration of death causes death 
 according to both the civil and the criminal law. Clover, Clayton & 
 Co. v. Hughes, L. R. (App. Cas. 1910) 242 ; Hopkins v. Commonwealth, 
 117 Ky. 941, 80 S. W. 156, 4 Ann. Cas. 957; Powell v. State, 13 Tex. 
 App. 244, 254; Winter v. State, 123 Ala. 1, 11, 26 South. 949; Rogers 
 v. State, 60 Ark. 76, 79, 29 S. W. 894, 31 L. R. A. 465, 46 Am. St. 
 Rep. 154; Baker v. State, 30 Fla. 41, 71, 11 South. 492: Rex v. Martin, 
 5 C. & P. 128, 130; Rex v. Webb, 1 M. & Rob. 405; People v. Moan, 
 65 Cal. 532, 537, 4 Pac. 545 ; State v. Morea, 2 Ala. 275, 279. 
 
 In Clover, Clayton & Co. v. Hughes, recently decided by the House 
 of Lords, a workman suffering from serious aneurism, or abnormal 
 dilitation of an artery, was engaged in tightening a nut when he fell 
 dead from rupture of the aneurism, and it was held a death resulting 
 from accident, because it was caused by a strain operating upon a con- 
 dition of body which was such as to make the strain fatal. 
 
 12 Hiscock, J., here referred to Hale's Plens of the Crown, pa.s:e 428; 
 Bishop's Criminal Law (5th Bd.) § GHT ; Commonwealth v. Fo.k (1S5G) 73 Ma-^s. 
 (7 (iray) 585; State v. Smith (1887) 73 Iowa. 32. 41, 34 N. W. 597, GOl; Kex 
 V. Martin (1832) 5 C. & P. 128, 130; Resina v. I'lummer (1844) 1 C. & K. GOO, 
 607. 
 
 13 Parts of the opinion of Vann, J., are omitted.
 
 Ch. 2) THE TESTS OF LEGAL CAUSE 835 
 
 In People v. Moan the court said : "If a patient is lying in the last 
 stages of consumption, with a tenure upon life that cannot possibly 
 continue for a day, it is homicide to administer a poison to him by 
 which his life is ended almost immediately. So in the case we are 
 now considering, if Finck, by excessive indulgence in intoxicating 
 drinks, had reduced himself to a wreck and brought his life to the 
 brink of the grave, it was a wrongful act for the defendant to acceler- 
 ate his death by violence. Perhaps blows delivered with equal force 
 on the head of a strong man in the enjoyment of robust health would 
 not have been attended by any serious consequences; but upon a life 
 impaired as Finck's was by self-abuse they may have accelerated his 
 death ; and but for the blows the man would not have died, at least not 
 at the time he did. This makes the defendant criminally responsi- 
 ble." * * * 
 
 A person with an incurable disease may be so injured as to aggra- 
 vate the trouble and hasten it to a fatal result. In such a case death is 
 owing to two concurring causes, disease and violence, neither of which 
 would have caused death when it occurred without aid from the other. 
 One cause may be more efficient than the other, yet, unless acting 
 alone, it would have resulted in death, not in the future, but, when 
 death actually came, it is not of itself the proximate cause. While in 
 this case delirium tremens was not caused by the accident, it was set 
 in motion by the accident and thus became an effective agency of death, 
 the same as if the decedent had had heart disease, but would have con- 
 tinued to live a while longer had it not been set in motion and hurried 
 to a fatal end by violence. 
 
 The judgment should be affirmed.^* 
 
 Judgment affirmed. 
 
 SCHEFFER v. RAILROAD CO. 
 
 (Supreme Court of the United States, 1881. 105 U. S. 249, 26 L. Ed. 1070.) 
 
 Error to the Circuit Court of the United States for the Eastern 
 District of Virginia. 
 
 Mr. Justice Miller delivered the opinion of the court. 
 
 The plaintiffs, executors of Charles Scheffer, deceased, brought 
 this action to recover of the Washington City, Virginia Midland, and 
 Great Southern Railroad Company damages for his death, which 
 they allege resulted from the negligence of the company while car- 
 rying him on its road. The defendant's demurrer to their declara- 
 tion was sustained, and to reverse the judgment rendered thereon 
 they sued out this writ of error. 
 
 The statute of Virginia under which the action was brought is, as 
 to the question raised on the demurrer, identical with those of all the 
 
 14 Gray and Collin, J J., concurred with Hiscock, J.; Cullen, C. J., and 
 Werner, .T., concurred with Hiscock and Vann, J.T. Ilaight, .7., was aliscnt
 
 836 CAUSAL RELATION (Part 2 
 
 other States, giving the right of recovery when the death is causeil by 
 such default or neglect as would have entitled the party injured to 
 recover damages if death had not ensued. 
 
 The declaration, after alleging the carelessness of the officers of 
 the company, by which a collision occurred between the train on 
 which Scheffer was and another train, on the seventh day of Decem- 
 ber, 1874, proceeds as follows: 
 
 •'VVtiereby said sleeping-car was rent, brol^en, torn, and shattered, and by 
 means wliereof the said Charles Scheffer was cut, bruised, maimed, and dis- 
 figured, wounded, lamed, and injured about his head, face, neck, back, and 
 spine, and by reason whereof the said Charles Scheffer became and was sick, 
 sore, lame, and disordered in mind and body, and in his brain and spine, and 
 by means whereof phantasms, illusions, and forebodings of unendurable evils 
 to come upon him, the said Charles Scheffer, were produced and caused upon 
 the brain and mind of him, the said Charles Schefi'er, which disease, so pro- 
 duced as aforesaid, baffled all medical skill, and continued constantly to dis- 
 turb, harass, annoy, and prostrate the nervous system of him, the said Charles 
 Scheffer, to wit, from the seventh day of December, A. D. 1S74, to the eighth 
 day of August, 1875, when said phantasms, illusions, and forebodings, pro- 
 duced as aforesaid, overcame and prostrated all his reasoning powers, and 
 induced him, the said Charles Scheffer, to take his life in an effort to avoid 
 said phantasms, illusions, and forebodings, which he then and there did, 
 whereby and by means of the careless, unskilful, and negligent acts of the 
 said defendant aforesaid, the said Charles Scheffer, to wit, on the eighth day 
 of August, 1875, lost his life and died, leaving him surviving a wife and chil- 
 dren." 
 
 The Circuit Court sustained tlie demurrer on the ground that the 
 death of Scheffer was not due to the negligence of the company in 
 the judicial sense which made it liable under the statute. That the 
 relation of such negligence was too remote as a cause of the death to 
 justify recovery, the proximate cause being the suicide of the dece- 
 dent, — his death by his own immediate act. In this opinion we con- 
 cur. 
 
 Two cases are cited by counsel, decided in this Court, on the sub- 
 ject of the remote and proximate causes of acts where the liability 
 of the party sued depends on whether the act is held to be the one 
 or the other ; and, though relied on by plaintiffs, we think they both 
 sustain the judgment of the Circuit Court. 
 
 The first of these is Insurance Company v. Tweed, 7 Wall. 44, 19 
 L. Ed. 65. In that case a policy of fire insurance contained the usual 
 clause of exception from liability for any loss which might occur "by 
 means of any invasion, insurrection, riot, or civil commotion, or any 
 military or usurped power, explosion, earthquake, or hurricane." An 
 explosion took place in the Marshall warehouse, which threw down 
 the walls of the Alabama warehouse, — the one insured, situated across 
 the street from Marshall warehouse, — and by this means, and by 
 the sparks from the Eagle Mill, also fired by the explosion, facilitated- 
 by the direction of the wind, the Alabama warehouse was burned. 
 This Court held that the explosion was the proximate cause of the 
 loss of the Alabama warehouse, because the fire extended at once 
 from the Marshall warehouse, where the explosion occurred. The
 
 Ch. 2) THE TESTS OF LEGAL CAUSE 837 
 
 Court said that no new or intervening cause occurred between the 
 explosion and the burning of the Alabama warehouse. That if a new 
 force or power had intervened, sufificient of itself to stand as the 
 cause of the misfortune, the other must be considered as too remote. 
 
 This case went to the verge of the sound doctrine in holding the 
 explosion to be the proximate cause of the loss of the Alabama ware- 
 house ; but it rested on the ground that no other proximate cause was 
 found. 
 
 In Milwaukee & St. Paul Railway Co. v. Kellogg, 94 U. S. 469, 24 
 L. Ed. 256, the sparks from a steam ferryboat had, through the neg- 
 ligence of its owner, the defendant, set fire to an elevator. * * * ^^ 
 
 Bringing the case before us to the test of these principles, it pre- 
 sents no difficulty. The proximate cause of the death of Scheffer was 
 his own act of self-destruction. It was withm the rule in both these 
 cases a new cause, and a sufficient cause of death. 
 
 The argument is not sound which seeks to trace this immediate 
 cause of the death through the previous stages of mental aberration, 
 physical suffering, and eight months' disease and medical treatment 
 to the original accident on the railroad. Such a course of possible or 
 even logical argument would lead back to that "great first cause least 
 understood," in which the train of all causation ends. 
 
 The suicide of Scheffer was not a result naturally and reasonably 
 to be expected from the injury received on the train. It was not the 
 natural and probable consequence, and could not have been foreseen 
 in the light of the circumstances attending the negligence of the of- 
 ficers in charge of the train. 
 
 His insanity, as a cause of his final destruction, was as little the 
 natural or probable result of the negligence of the railway officials, 
 as his suicide, and each of these are casual or unexpected causes, in- 
 tervening between the act which injured him, and his death. ^"^ 
 
 Judgment affirmed. 
 
 15 Mr. Justice Miller here stated the facts in Milwaukee & Pit. Paul Ry. Co. 
 V. Kellosg and quoted part of the opinion. Reference was made also to 
 McDonald v. Snelling (18G7) 14 Allen (Mass.) 290, 92 Am. Dec. 70S, as being 
 to the same effect. 
 
 16 Compare Daniels v. New York, N. H. & H. R. Co. (1903) 183 Mass. .393, 
 67 N. E. 424, G2 L. R. A. 751: (The succession was as follows: August 12, 
 a blow on the head in a railway accident caused by the negligence of the 
 defendant railway company ; some weeks later, insomnia, melancholy, and 
 delirium : on October 3d, suicide through a planned act. The testimony tend- 
 ed to establish insanity resulting from the blow on the head. A recovery 
 was denied. Said Knowlton, C. J.: "All agree that death self caused in an 
 uncontrollable frenzy, without knowledge or appreciation of the physical 
 nature of the act. would not be death by suicide, or by one's own hand, with- 
 in the meaning of such a provision in a policy (of insurance). * * * ^\n 
 act of suicide resulting from a moderately intelligent power of choice, even 
 though the choice is determined by a disordered mind, should l)e deemed a 
 new and independent, efficient cause of the death that immediately ensues. 
 We are of opinion that the term 'rational volition,' used in the charge, was 
 understood by the jury to mean volition attended by the powei"s of reason, to
 
 838 CAUSAL RELATION (Part 2 
 
 BROWN V. AMERICAN STEEL & WIRE CO. 
 
 (Appellate Court of Indiana, 1909. 43 lud. App. 5G0, SS N. E. SO.) 
 
 Myers, J. Appellant brought this action against appellee to recover 
 damages for the alleged negligent killing of William Cruse, appel- 
 lant's intestate. From the amended complaint, which was in one par- 
 agraph, it appears that on January 27, 1903, appellee was engaged 
 in the manufacture of nails, and other metal goods, at Anderson, 
 Ind., and on that day said decedent was in its employ as a helper in 
 and about one of its nail machines, the cogs, gearing, belting, etc., 
 of which machine appellee had negligently and carelessly failed and 
 omitted to guard ; that while said machine was being operated, said 
 decedent was caught by said unguarded cogs, etc., and thereby greatly 
 and seriously injured; "that such described injuries so received by 
 said decedent through and by the carelessness and negligence of the 
 defendant in the manner aforesaid did cause and produce the death 
 of the said William Cruse, decedent, on or about October 30, 1903." 
 The sufficiency of the complaint is not before us. Appellee answered 
 the complaint in two paragraphs ; one in denial ; the other averring 
 a compromise and settlement with the decedent for all claims by rea- 
 son of the injuries so sustained by him. * * * ^'^ 
 
 In the case at bar the facts are undisputed. * * * While the 
 decedent was w^orking about said machine, he was caught in said un- 
 guarded cogs. His right arm from near his wrist up to a little below 
 his shoulder was severely cut and mashed. He received a cut about 
 three inches long, triangular shaped, on top of his head, a cut on the 
 side of his head near his temple, and a cut on his back just below 
 the right shoulder, about three inches wide and four inches long, and 
 deep enough to expose a rib and his spinal column. His hips were 
 severely bruised and injured. Immediately after the accident he was 
 taken to a hospital, where his wounds were dressed by surgeons, and 
 
 consider and judge of the act in all its relations, — moral as well as physical, 
 — and that the charge was in this respect too favorable to the plaintiff. The 
 burden of proof was on the plaintiff to show that the death was caused by 
 the collision. All the evidence tended to show tliat the deceased, with de- 
 liberate purpose, planned to take his own life; that he closed the door, and 
 locked it, with a view to exclude others and prevent interruption ; and that 
 he then took the napkin, and used it effectively to strangle himself. All this 
 points to an understanding of the physical nature and effect of his act, and to 
 a wilful and intelligent purpose to accomplish it. That he was insane, so as 
 to be free from moral responsibility, is not enough to make the defendant 
 liable. We are unable to discover any evidence that he was acting without 
 volition, under an uncontrollable impulse, or that he did not understand the 
 physical nature of his act. In the absence of any afRrraative evidence for 
 the plaintiff on this point, the jury should have been instructed to render 
 a verdict for the defendant") 
 
 17 Part of the opinion, giving tlie history of the action, and discussing cer- 
 tain questions in procedure, is omitted. The case was tried twice. The first 
 trial resulted in a verdict for the plaintiff; the second, in a verdict for the 
 defendant.
 
 Ch. 2) THE TESTS OF LEGAL CAUSE 839 
 
 where he remained until the latter part of August. From the hospi- 
 tal he went to a private boarding house in Anderson, and about the 
 middle of September he went to the home of his father at Xora, Ind., 
 and remained there until the day of his death, October 31st. For 
 five years continuously and immediately prior to said accident the 
 decedent was strong and healthy, and from the time of the accident 
 until his death was physically weak and unable to do any work. It 
 appears that on the same day, and shortly after the accident, he be- 
 came unconscious, and remained in that condition for several hours ; 
 that at times during the two weeks next following the day of the 
 injury he would become insensible, and did not recognize his son. 
 At intervals thereafter, until he died, he was unable to recognize 
 members of his own family. After the accident, and after he had 
 gained consciousness, and when in his best physical and mental con- 
 dition, he would continually complain of pain in his head ; that the 
 side of his head was heavy, and at times complained of being dizzy. 
 At times he complained about not knowing what he was doing. He 
 was melancholy. His talk was incoherent. Occasionally he would 
 start a sentence directed to one subject and close it with reference 
 to some other subject. He was constantly rubbing his head. He 
 frequently could not remember the names of his children. The un- 
 disputed evidence is that at the time of his death he was a person of 
 unsound mind. It was agreed by the parties: 
 
 "That on the 31st day of October, 1903. in the evening of that day, Mr. 
 Cruse, the decedent in this case, left his father's home in Xora, situated in 
 Marion county, Ind., and was not heard of or seen for three weeks from that 
 date, at which time he was found near Xora in a corn field, lying between two 
 corn rows, with his coat and vest removed and lying close to him, with his 
 own pocket knife oi^en in or near to his hand, and with his throat cut, sever- 
 ing the jugular vein, with some three cuts in the throat, and that his property, a 
 watch and some money, was intact in his pocket, and that he was dead. It 
 is further agreed that he took his own life, and died from the effects of the 
 knife wounds, self-inflicted." 
 
 Appellant's authority to bring and maintain this action rests solely 
 upon the statute (section 285, Burns' Ann. St. 1908), which provides 
 that : "When the death of one is caused by the wrongful act or omis- 
 sion of another, the personal representatives of the former may main- 
 tain an action therefor against the latter, if the former might have 
 maintained an action, had he or she (as the case may be) lived, against 
 the latter for an injury for the same act or omission." Under this 
 statute the death must have been "caused by the wrongful act or 
 omission of another." * * * ^* 
 
 From the cases bearing upon the subject now being considered the 
 rule seems to be that an action under the statute may be maintained 
 
 18 The court here stated the facts of Scheffer v. Railroad Co. (ISSi) 105 
 U. S. 249. 2t> L. Ed. 1070, and of Daniels v. N. Y. R. Co. (1903) 183 Mass. 393, 
 67 X. E. 424, 62 L. R. A. 751, and quoted parts of these opinions.
 
 840 CAUSAL RELATION (Part 2 
 
 when the death is self-inflicted, only where it is the result of an un- 
 controllable influence, or is accomplished in delirium or frenzy, caused 
 by the defendant's negligent act or omission, and without conscious 
 volition of a purpose to take life; for then the act would be that of 
 an irresponsible agent. Daniels v. New York, etc., R. Co., 183 Mass. 
 393, 67 N. E. 424, 62 L. R. A. -751; Scheffer v. Railroad Company, 
 105 U. S. 249, 26 L. Ed. 1070; Goodlander Mill Co. v. Standard Oil 
 Co., 63 Fed. 4C0. 405, 11 C. C. A. 253, 27 L. R. A. 583; Chicago, 
 etc., Ry. Co. v. Elliott, 55 Fed. 949, 951, 5 C. C. A. 347, 20 L. R. A. 
 582; Ronker v. St. John, 21 Ohio Cir. Ct. R. 39; Maguire v. Shee- 
 han, 117 Fed. 819, 54 C. C. A. 642, 59 L. R. A. 496. While the 
 rule is general that an intervening responsible agent cuts off the 
 line of causation from the original negligence, yet we are not un- 
 mindful of "the qualification that, if the intervening act is such 
 as might reasonably have been foreseen or anticipated as the nat- 
 ural and probable result of the original negligence, the original neg- 
 ligence will, notwithstanding such intervening act, be regarded as 
 the proximate cause of the injury." Nickey v. Steuder, 164 Ind. 
 189, 7Z N. E. 117. The burden was on appellant to prove that dece- 
 dent's death was caused by the neglect of appellee to guard the cog- 
 wheels. It is not enough to show negligence and the injury, but in 
 addition appellant must also show that appellee's negligence proxi- 
 mately caused Cruse's death. The decedent's right to damages, had 
 he lived, was a common-law right, limited to the damage sustained, 
 attributable to the negligence of appellee. Appellant's right to re- 
 cover, being statutory, depends upon whether her decedent could have 
 maintained an action, had he lived, against appellee for a self-inflicted 
 injury, as the active, operative, continuing, and the probable and nat- 
 ural sequence of the original injury. 
 
 In actions of this character the evidence must be such as to war- 
 rant the jury in finding that the decedent in taking his life acted 
 "without volition, under an uncontrollable impulse, or that he did 
 not understand the physical nature of his act." Daniels v. New York, 
 etc., R. Co., 183 Mass. 393, 67 N. E. 424, 62 L. R. A. 751. Turning 
 again to the record in this case, we find no evidence as to the dece- 
 dent's strength of mind during a few weeks immediately prior to his 
 death, but, assuming that his improved condition in that respect a few 
 weeks before the day of the suicide continued, taken in connection 
 with the agreed facts heretofore set out in this opinion, instead of 
 showing a want of conscious volition, strongly indicates that the de- 
 cedent had a mind capable of conceiving a purpose of taking his life, 
 as well as a knowledge of the means which would certainly carry his 
 purpose into effect. This conclusion from the evidence leaves an 
 essential fact to support a verdict for plaintiff unsustained by the 
 evidence; and, this being true, the trial court did not err in directing 
 a verdict for the defendant. Louisville, etc., Ry. Co. v. Nitsche, 126
 
 Ch. 2) THE TESTS OF LEGAL CAUSE 841 
 
 Ind. 229, 26 N. E. 51, 9 L. R. A. 750, 22 Am. St. Rep. 582; Cole 
 V. German Savings & Loan Society, 124 Fed. 113, 122, 59 C. C. A. 
 593, 63 L. R. A. 416. 
 Judgment affirmed. 
 
 SECTION 3.— INTERVENING AGENCY AS A TEST OF 
 
 LEGAL CAUSE 
 
 WOOLLEY V. SCOVELL. - 
 
 (Court of King's Bench, 1828. 3 Man. & R. 105, 32 R. R. 716.) 
 
 Case for negligence in throwing a bag of wool from a lofty ware- 
 house into a yard, whereby the wool fell upon the plaintiff, who was 
 in the yard, and injured him. Plea, not guilty. At the trial before 
 Lord Tenterden, C. J., at the sittings at Guildhall after last Term, the 
 following facts appeared: 
 
 The defendant was the occupier of a warehouse the windows of which 
 opened into a yard. Having occasion to remove a bag of wool from an up- 
 per floor of the warehouse, the defendant, for the purpose of saving time and 
 expense, directed his servants to throw the wool out of the window of the 
 warehouse. Before the bag was dropped from the window, one of the defend- 
 ant's servants called out to warn passengers. The plaintiff, who happened 
 to be in the yard, looked up and saw the wool as it was thrust out of the 
 window; he then ran across the yard, thinking, as he afterwards said, t«at 
 he should have time to escape. The wool, however, fell upon him, and he sus- 
 tained a considerable injury. The learned Judge told the jury, that if they 
 were of opinion that the plaintiff ran wantonly or carelessly into danger, 
 they ought to find a verdict for the defendant; but that if they thought the 
 plaintiff had lost his presence of mind by the act of the defendant, and 
 in the confusion produced by the situation in which he found himself, had 
 run into the danger, they ought) to give their verdict for the plaintiff. 
 
 The jury found a verdict for the plaintiff, damages il50. 
 
 Sir J. Scarlett now moved to set aside the verdict, on the ground 
 of misdirection: The rule laid down by the learned Judge was very 
 humane, but it is submitted that it was not founded in law. The law 
 should not vary according to the nerves of parties. It is true that 
 with respect to ships, the loss must be borne by the party who was 
 first in the wrong; but there the other party has not the entire con- 
 trol over the motions of his vessel, which depend upon the winds and 
 waves. (Bayley, J. You complain of that part of the direction in 
 which the jury were told, that if the plaintiff was deprived of his 
 presence of mind by the wrongful act of the defendant, he was en- 
 titled to their verdict; not that the facts of the case did not warrant 
 such an inference.) 
 
 Lord Tenterden, C. J. The first fault was the throwing of the 
 wool from the window instead of lowering it by the usual mode, by 
 a crane. This, the defendant admitted, he did to save time.
 
 842 CAUSAL RELATION (Part 2 
 
 BaylEy, J. I think the direction was right. Whether the plaintiff 
 was deprived of his presence of mind by the act of the defendant, 
 was a question for the jury. 
 
 LiTTLEDALE, J. I have no doubt whatever that the direction was 
 right. It is not surprising that the plaintiff should have been alarmed, 
 and should thereby have lost his self-possession ; and this alarm was 
 occasioned by the wrongful act of the defendant. 
 
 Rule refused. 
 
 MUNSEY v. WEBB. 
 
 (Supreme Court of the United States, 1913. 231 U. S. 150, 34 Sup. Ct. 44, 
 
 58 L. Ed. 162.) 
 
 Mr. Justice Holmes delivered the opinion of the court: 
 
 This is an action brought against the owner of a building for caus- 
 ing the death of the plaintiff's intestate in an elevator in which the 
 deceased was being carried to his place of employment. Negligent 
 construction and negligent management of the elevator are alleged. 
 The plaintiff had a verdict against a request by the defendant that 
 one be directed for him, the judgment was affirmed by the court of 
 appeals {?)7 App. D. C. 185), and the defendant brought the case here. 
 
 The elevator car did not quite fill the well, or shaft, and the bottom 
 of the floor that it was approaching projected at right angles into the 
 well about 3% inches. The car was equipped with a collapsible door, 
 which was open at the time of the accident, and the boy in charge did 
 not have his arm across the space as he had been instructed to do. 
 Between the fourth and fifth floors the deceased fell, and his head 
 was caught between the projecting bottom of the fifth floor and the 
 floor of the car and was crushed. The negligence relied upon is the 
 leaving of the door open and failure to guard the space ; the not 
 having a flange or piece of metal inclining from the projecting floor 
 to the shaft wall, and the failure to use an emergency switch, the 
 ([uickest means of stopping the car, the boy in charge not having been 
 instructed in the use of it. 
 
 The plaintiff in error argued at some length that there was no neg- 
 ligence, because the fall of deceased was something wholly out of 
 the ordinary course, and not to be foreseen ; or that, if there was 
 negligence in any sense, it was not the proximate cause of the death, 
 but merely a passive condition made harmful by the fall. Neither 
 argument can be maintained. It is true that it was not to be antici- 
 pated specifically that a man should drop from internal causes into 
 the open door of the car. But the possibility and the danger that in 
 some way one in the car should get some part of his person outside 
 the car while it was in motion was obvious, and was shown to have 
 been anticipated by the door being there. In some circumstances, at
 
 Ch. 2) THE TESTS OF LEGAL CAUSE 843 
 
 least, it was a danger that ought to be and was guarded against. It 
 is said that the danger was manifest only when the car was crowded, 
 and that' the door was needed only for that. If the duty to have the 
 car shut on all sides had been created with reference only to condi- 
 tions different in kind from those of the accident, it may be that the 
 plaintiff could not avail himself of a requirement imposed alio in- 
 tuitu. The Eugene F. Moran, 212 U. S. 466, 476, 53 L. Ed. 600, 604, 
 29 Sup. Ct. 339. But the accident was similar in kind to those against 
 which the door was provided, and we are not prepared to say, con- 
 trary to the finding of the jury, that the duty to keep it shut or to 
 guard the space with the arm did not exist in favor of all travelers 
 in an elevator having the structure that we have described. It was 
 not necessary that the defendant should have had notice of the par- 
 ticular method in which an accident would occur, if the possibility 
 of an accident was clear to the ordinarily prudent eye, Washington 
 & G. R. Co. v. Hickey, 166 U. S. 521, 526, 527, 41 L. Ed. 1101-1103, 
 17 Sup. Ct. 661, 1 Am. Neg. Rep. 758. 
 
 If there was negligence, it very properly could be found to have 
 been the proximate cause of the death. See Milwaukee & St. P. R. 
 Co. v. Kellogg, 94 U. S. 469, 24 L. Ed. 256. Even if it were true 
 that the neglect was merely a passive omission, the deceased was in- 
 vited into the elevator, and the principle of the trap cases would ap- 
 ply. Corby v. Hill, 4 C. B. N. S. 556, 563, 27 L. J. C P. N. S. 318. 
 4 Jur. N. S. 512, 6 Week. Rep. 575; Sweeny v. Old Colony & N. 
 R. Co., 10 Allen (Mass.) 368, 374, 87 Am. Dec. 644. But that is not 
 the case. The defendant is sued for having crushed the head of 
 the deceased by forces that he put in motion. He replies that it 
 would not have happened but for the unforeseen fall of the deceased 
 without the defendant's fault, and to this the plaintiff rejoins and the 
 jury has found that the defendant was bound to take the easy pre- 
 caution which he had provided against any and all ways by which 
 a passenger's body could get outside the car while it was going up. 
 Hayes v. Michigan C. R. Co., Ill U. S. 228. 241, 28 L. Ed. 410, 
 415, 4 Sup. Ct. 369; Choctaw, O. & G. R. Co. v. Holloway, 191 U. 
 S. 334, 339, 48 L. Ed. 207, 210, 24 Sup. Ct. 102. The whole ques- 
 tion comes down to whether we are prepared to say as matter of law, 
 against the finding of the jury, that, in an elevator constructed as 
 this was, with a special source of danger in the shaft outside the 
 car, to require the defendant to guard the door space in transitu, at 
 his peril, is too strict a rule. We cannot go so far. McDonald v. 
 Toledo Consol. Street R. Co., 20 C. C. A. 322, 43 U. S. App. 79, 74 
 Fed. 104, 109. 
 
 There was, perhaps, evidence sufficient to warrant a finding that 
 there was negligence in not stopping the car after the fall and be- 
 fore the harm was done, and a finding on that ground would not 
 open the questions that have been discussed ; but we have preferred 
 to deal with the case on the matters principally argued, as they seem
 
 844 CAUSAL RELATION (Part 2 
 
 to offer the most obvious reasons for the verdict, and therefore have 
 assumed that the jury found the facts and standard of conduct to 
 be as we have supposed. 
 Judgment affirmed. 
 
 TUTTLE et ux. v. ATLANTIC CITY R. CO. 
 
 (Court of Errors and Appeals of New Jersey, 1901. 66 N. J. Law, 327, 
 49 Atl. 450, 54 L. R. A. 5S2, 88 Am. St. Rep. 491.) 
 
 This action was by Samuel Tuttle and his wife against the At- 
 lantic City Railroad Company to recover damages because of a per- 
 sonal injury sustained by Mrs. Tuttle through the alleged negligence 
 of the defendant. The judgment below was for the plaintiff, and 
 the defendant brings error. The facts were as follows : 
 
 The defendant maintained a freight yard on the south side of Mechanic 
 Street, in the city of Camden. A flying drill was being made in this yard, 
 and a car was derailed and dashed across Mechanic Street, and broke through 
 the front of the house opiwsite, belonging to a Mrs. Brennan. At this time, 
 Mrs. Tuttle was on the sidewalk near the Brennan house, and saw the car 
 coming across the street at full speed. Becoming frightened, she started to 
 run, and when three or four doors below, fell and injured her left knee.i9 
 
 At the close of the plaintiff's case, a motion for a nonsuit was 
 made, upon the ground that if any negligent conduct had been proved 
 on the part of the defendant, by reason of this car getting away from 
 where it belonged, the plaintiff was guilty of contributory negligence 
 in going away from a place of safety to a place of insecurity ; that 
 she was at a safe distance from the car, and there was no occasion for 
 her to rem.ove from it. This motion was denied. 
 
 Vroom, J. (after stating the facts). The testimony of the plain- 
 tiff was that she was in front of Mrs. Brennan's door, or had just 
 passed it, when she saw the car coming over; and it was further 
 disclosed by the testimony that this car, in coming across the street, 
 was not running on any track. Is it reasonable, even, to suppose 
 that the plaintiff could have had any means of knowing the direction 
 the car would take? She was rightfully on the street, and the un- 
 usual sight of a car crashing across the street at full speed pre- 
 cluded any possibility of reflection as to the best thing to do. Acting 
 under the impulse of fear, she ran, and, just as the car crashed into 
 the Brennan house, she fell. 
 
 The real question in issue in the case and to be determined by 
 the jury was whether the plaintiff (Mrs. Tuttle), seeing the car 
 approaching at great speed across this street, was justified in run- 
 ning to escape from what she supposed was an imminent danger. 
 
 In the case of Stokes v. Saltonstall, 13 Pet. 181, 10 L. Ed. 115, 
 which was an action brought to recover damages sustained by the 
 wife of the plaintiff by the upsetting of a stage coach in which she 
 
 19 The statement of the case is abridged.
 
 Ch. 2) THE TESTS OF LEGAL CAUSE 845 
 
 was a passenger, the question was whether the stage was upset by the 
 neghgence of the driver or by the act of the plaintiff and his wife 
 in rashly and improperly springing from it. The court held that "if 
 the want of proper skill or care of the driver placed the passengers 
 in a state of peril, and they had at that time a reasonable ground 
 for supposing that the stage would upset, or that the driver was 
 incapable of managing his horses, the plaintiff was entitled to re- 
 cover; although the jury may believe, from the position in which 
 the stage was placed from the negligence of the driver, the attempt 
 of the plaintiff and his wife to escape may have increased the peril 
 or even caused the stage to upset, and although they also find that 
 the plaintiff' and his wife would probably have sustained little or no 
 injury if they had remained in the stage." 
 
 And in the case of Jones v. Boyce, 1 Stark. 493, which was an 
 action against a coach proprietor for so negligently conducting the 
 coach that the plaintiff, an outside passenger, was obliged to jump 
 off the coach, in consequence of Vvhich his leg was broken, Lord 
 Ellenborough held : "To enable the plaintiff to sustain the action it 
 is not necessary that he should have been thrown off the coach ; 
 it is sufficient if he was placed, by the misconduct of the defendant, 
 in such a situation as obliged him to adopt the alternative of a dan- 
 gerous leap, or to remain at a certain peril. On the other hand, if 
 the plaintiff's act resulted from a rash apprehension of danger, which 
 did not exist, and the injury he sustained is to be attributed to rash- 
 ness and imprudence, he is not entitled to recover." 
 
 The doctrine is concisely stated in 1 Shearm. & R. Negl. *89 : 
 "If one is placed, by the negligence of another, in such a position 
 that he is compelled to choose instantly, in the face of grave and 
 apparent peril, between two hazards, and he makes such a choice 
 as a person of ordinary prudence placed in such a position might 
 make, the fact that if he had chosen the other hazard he would have 
 escaped injury, is of no importance." 
 
 The contention of the defendant company was that the plaintiff 
 was in a safe place, and that, while it was true that the sight of a 
 car coming as this one did was unusual, still that there was nothing 
 attendant upon it which should lead one in a safe position precipitately 
 to leave it. The counsel for the defendant at the trial requested the 
 judge to charge that, "if the jury believe that Mrs. Tuttle was at a 
 safe location before the injury complained of, and was afterwards 
 injured by removing from such safe place, she cannot recover"; but 
 this matter was correctly disposed of in the charge that "safe place" 
 is a term which is not easy to define. To charge that in this case she 
 was "in a safe place" would be to charge that the circumstances which 
 brought about this fright and terror under which she seems to have 
 acted were not sufficient to warrant her in removing from that spot, 
 and seeking another, which, in her judgment, — and perhaps a mis- 
 taken judgment, — she might have deemed safer. There is hardly
 
 846 CAUSAL RELATION (Part 2 
 
 enough evidence in this case to know whether it was exactly safe 
 where she stood. It turned out afterwards to have been a safe 
 place. But who could tell beforehand how many splinters from this 
 car would fly in all directions, how many cobblestones or other things 
 would fly around? You do not know, when you see a car coming, 
 just what the end will be, and would naturally seek, possibly, a safer 
 place than you think you occupy, although, after it is all over, you 
 may find that where you stood was a safe place." This is not a case 
 involving the question whether an action can be sustained for mental 
 anguish or injury unaccompanied by injury to the person. That this 
 would not afiford a ground of action is well settled. ^^ 
 
 In the case under consideration the negligence of the defendant in 
 permitting the derailing and escape of the car is too plain for argu- 
 ment, and it was such negligence as caused the plaintiff in terror to 
 attempt to escape the peril by running, and in so doing she fell, and 
 was injured. The true rule governing cases of this character may 
 be stated as follows: That if a defendant, by negligence, puts 
 the plaintiff under a reasonable apprehension of personal physical 
 injury, and plaintiff, in a reasonable effort to escape, sustains 
 physical injury, a right of action arises to recover for the physi- 
 cal injury and the mental disorder naturally incident to its occurrence. 
 The case below was properly submitted to the jury, and the judgment 
 below should be afiirmed. 
 
 JACKSON V. WISCONSIN TELEPHONE CO. 
 
 (Supreme Court of Wisconsin, 1894. 88 Wis. 243, 60 N. W. 430, 
 
 26 L. R. A. 101.) 
 
 Action against the telephone company to recover damages for a 
 barn and its contents, burned, as plaintiff claims, by reason of defend- 
 ant's negligence. 
 
 Near the city of Eau Claire there is a plateau about eighty feet above 
 the level of the surrounding country. In August, 1889, two large 
 frame buildings, about 325 feet distant from each other, stood upon 
 this plateau, one being a county fair building known as Floral Hall, 
 and the other being the barn of the plaintiff. These buildings were 
 about the same height, and upon the top or ridge of each there stood 
 a flagpole or mast twenty to thirty feet in height. Prior to the year 
 1888 the defendant had constructed a telephone line from the high- 
 way running past the fair grounds. In September, 1888, the defend- 
 ant placed a telephone in Floral Hall, and connected it with No. 12 
 wire with its telephone line on the highway. This connecting wire 
 ran from the highway first to the flagpole upon the plainlift''s barn, 
 and was there tied to the pole ; from thence it ran directly to Floral 
 
 2 The opinion on thiis point is omitted.
 
 Ch. 2) THE TESTS OF LEGAL CAUSE 847 
 
 Hall. The plaintiff gave no permission to attach the wire to his barn, 
 and testified that he had no knowledge that it was so attached. A 
 ground wire from the telephone in the interior of Floral Hall ran 
 up to the flagstaff, and thence a distance of about 376 feet to the 
 ground, where it was attached to an iron water pipe. Some time 
 in the fall of 1888 the defendant took out the telephone from Floral 
 Hall, together with the insulated wire in the interior of the building. 
 The ground wire was left intact, and so was the wire from Floral 
 Hall to the barn. The wire from the highway to Jackson's barn 
 was taken down, but it was claimed by the plaintiff's witnesses that 
 a considerable piece of said wire at the barn end thereof was left 
 resting upon the roof of the barn. 
 
 On the night of August 20th, 1889, there was considerable rain. 
 At about 4 o'clock in the morning there was a flash of lightning, 
 which was described by the witnesses as a blinding flash, and which 
 was thought by them to have descended upon Floral Hall. In a few 
 minutes the roof of plaintiff's barn was in flames, and the barn and 
 its contents were destroyed. The plaintiff's claim is that the lightning 
 struck Floral Hall, and was conducted by the wire to plaintiff's barn, 
 and set it on fire, and that the defendant was negligent in leaving the 
 wire thus attached to the barn. Much expert evidence was adduced 
 on both sides as to the probability of lightning passing over such a 
 wire and destroying the barn. A motion for a nonsuit was overruled, 
 as was also a motion to direct a verdict for defendant. 
 
 The jury returned a special verdict, finding: 
 
 (1) That the defendant connected the plaintiff's barn with Floral Hall by 
 means of a telephone wire attached to the flagstaff of the barn and to the 
 flagstaff on Floral Hall, without any intermediate attachment; (2) that the 
 defendant left the wire so located on the plaintiff's barn that a iwrt'ion of 
 the same rested on the roof ; (3) that the barn was thereby subjected to dan- 
 ger of being destroyed by Are caused by lightning electricity passing over such 
 wire from Floral Hall t'o the barn ; (4) that the fire was caused by lightning 
 electricity so passing over said wire ; (5) that in so leaving the bam con- 
 nected with Floral Hall the defendant's servants were guilty of want of or- 
 dinary care ; (6) that such want of ordinary care was the proximate cause 
 of the fire; (7) that this result was one which a person reasonably well skill- 
 ed in the defendant's business might reasonably have expected would prob- 
 ably occur ; (8) that the plaintiff did not give defendant peiTuission to attach 
 the wire to his bam; (9) that plaintiff did not know, before the fire, that his 
 barn was connected with Floral Hall by the wire; (10) that he did not know 
 of the danger before the fire; (11) that the plaintiff's damages were $9,258. ^i 
 
 From a judgment for the plaintiff upon this verdict the defendant 
 appeals. 
 
 WiNSLOw, J. It was strenuously and ably argued by the appel- 
 lant's counsel that the evidence did not show that the negligent act 
 of defendant was the proximate cause of the burning of plaintiff's 
 barn. The rule is well settled in this state that, in order to render 
 a negligent act the proximate cause of an injury, it must appear 
 
 21 The stjitement of the case is slightly abridged, and a part of Mr. Ju.stice 
 Winslow's' opinion Is omitted.
 
 848 CAUSAL RELATION (Pari. 2 
 
 "that the injury was the natural and probable consequence of the 
 negligence or wrongful act, and that it ought to have been foreseen 
 in the light of the attending circumstances.'' Atkinson v, Goodrich 
 Transp. Co., 60 Wis. 141, 156, 18 N. W. 764, 50 Am. Rep. 352; Mar- 
 vin V. C, U. & St. P. R. Co., 79 Wis. 140, 47 N. W. 1123, 11 L. 
 R. A. 506. The jury found all the elements necessary to constitute 
 the negligent act of the defendant the proximate cause of the burning 
 of the barn within this rule, and the question is whether the evidence 
 justifies such finding. 
 
 It is said that the striking of a building by lightning is a very in- 
 frequent occurrence, and that it could not be reasonably anticipated 
 by any one. It is true that the number of buildings which are struck 
 by lightning, as compared with the whole number of buildings in 
 any given locality, is very small ; but this fact by no means seems 
 to us to be the final or controlling test of the question of probability. 
 In this case there was a building situated upon a high plateau from 
 eighty to ninety feet above the level of the surrounding country, with 
 a flagpole upon the roof about twenty-five feet in height. Now, there 
 are some facts of common knowledge known to every reasonable 
 person who has passed the age of childhood. Among these facts 
 are that in this latitude there are at certain seasons of the year fre- 
 quent and violent thunderstorms; that at such times the clouds are 
 heavily charged with electricity, which constantly finds its way to 
 the earth in what we call strokes of lightning; that these lightning 
 strokes, in the great majority of cases, strike prominent objects, such 
 as trees, poles, and high buildings, and follow them to the ground ; 
 that fire is frequently the result of such strokes. These facts are well 
 known to all persons, and no proof of them by expert evidence is 
 necessary. Can we say, as matter of law, in view of these well-known 
 facts, that it was entirely improbable that a building situated, as 
 Floral Hall was, upon the highest ground ni the vicinity, with a flag- 
 pole upon it, should be struck by a discharge of lightning, simply 
 because many buildings in such situations escape the stroke for years ? 
 We think not. 
 
 But it is said that it was simply a matter of conjecture whether the 
 bolt which struck Floral Hall and shattered the flagi)ole was the bolt 
 which set the fire, or whether the barn was fired by an independent 
 stroke of lightning descending upon the barn at or about the same 
 time that Floral Hall was struck. In considering this question, ref- 
 erence to the evidence is necessary. The evidence seems very con- 
 clusive that the barn was fired by a stroke of lightning, and that 
 Floral Hall was struck by lightning and its flagpole shattered a very 
 few minutes — perhaps only seconds — before the blaze broke out on 
 the roof of the barn. These two facts are not open to doubt under 
 the evidence. There were two witnesses sleeping in buildings on the 
 fair grounds within a few hundred feet of the hall. Both testify 
 that they were awake and saw the flash of lightning, and that it was
 
 Ch. 2) THE TESTS OF LEGAL CAUSE 849 
 
 right in the direction of Floral Hall. They immediately went out. 
 found the barn burning and the flagpole on Floral Hall shattered, 
 while tlie flagpole on the barn was uninjured. Tliese witnesses, as 
 well as several others who claim to have seen the flash, say that there 
 was but one flash, one report, one "straight streak of lightning," "like 
 a streak of hot iron." There was also evidence that the flagpole 
 was only shattered down to about the place where the wire leading to 
 the barn was fastened, and that the ground wire, which seems to have 
 been attached to the flagpole just below the barn wire, was burned 
 for a distance of four or five feet from the pole. No damage was 
 done to Floral Hall beyond the shattering of the pole. If these facts 
 were all true, it would seem that they pointed pretty satisfactorily to 
 the conclusion that the bolt which struck Floral Hall was the same 
 bolt which fired the barn. Certainly a verdict to that effect, based 
 on the evidence establishing these facts, could not be said to be based 
 on conjecture. 
 
 It is, however, argued that it is entirely improbable, if not well- 
 nigh impossible, that a bolt of lightning striking one building could 
 be conducted by a telephone wire over a span of 300 feet to another 
 building, at least in sufficient quantity to fire the second building. 
 This raises a scientific question, necessarily depending largely upon 
 the opinions of expert witnesses. A considerable number of such wit- 
 nesses were examined on both sides. The experts called by the plain- 
 tiff testified that if the loose end of the wire was left resting on the 
 roof of the barn, and the roof and sides were wet with rain, the 
 wire and wet barn would form a relatively good conductor of elec- 
 tricity; that such a wire would carry sufficient electricity to start a 
 fire, and would form, under the circumstances, a good path to the 
 ground ; that a part, at least, of the bolt would probably follow this 
 path to the ground ; and that all these facts have been known for 
 years, and the danger to the barn resulting therefrom was reason- 
 ably to be anticipated. On the other hand, an equal number of 
 experts upon the other side were of opinion that it would be very 
 improbable, if not impossible, for such a wire, under the circum- 
 stances, to carry sufficient lightning to set the bam on fire, and that 
 the lightning would undoubtedly seek some shorter path to the earth. 
 We cannot undertake to compare and decide which class of experts 
 were the best qualified to speak authoritatively upon this scientific ques- 
 tion. They all qualified themselves so as to make their testimony 
 admissible as expert evidence. Nor can we undertake to decide this 
 question of science ourselves. It was properly a question for the 
 jury after having heard the circumstances of the case and the opin- 
 ions of the experts, and we cannot say that the jury have decided 
 wrongly upon the question. 
 
 The further argument is made that the stroke of lightning was 
 the "act of God," for which no one is responsible. Certainly a stroke 
 Hepb. Torts — 54
 
 SoO CAUSAL RELATION (Part 2 
 
 of lightning is an "act of God ;" but that is not the question here 
 presented, or rather another element — i. e. the negligence of man — is 
 added to the question, which materially alters its scope. If I, owning 
 a high mast or building, which I know is so situated as to be very 
 likely to be struck by lightning, construct an attractive path for the 
 lightning to my neighbor's roof, so that his house is destroyed by a 
 bolt which strikes my mast or building, shall I escape liability for 
 my negligent or wrongful act by pleading that the lightning was the 
 act of God? Certainly not. I invited the stroke of one of the most 
 destructive powers of nature, and negligently turned its course to my 
 neighbor's property. The principle is the same as that "involved in 
 the case of Borchardt v. Wausau Boom Co., 54 Wis. 107, 11 N. W. 
 440, 41 Am. Rep. 12. The lightning stroke is in no greater degree 
 the act of God than the usual freshets occurring in a river. 
 
 Our conclusion is that the court properly refused to grant a non- 
 suit, and also properly refused to direct a verdict for the defend- 
 ant. * * * 
 
 By the; Court. Judgment afifirmed. 
 
 Newman, J, The cause of damages is proximate only when it 
 jiiight reasonably have been expected by a man of ordinary intelli- 
 gence and prudence that such damages would result from that cause. 
 Atkinson v. Goodrich Transp. Co., 60 \^^is. 141, 18 N. W. 764, 50 
 Am. Rep. 352. The damages, as a consequence of the negligent act 
 or omission,, must be both natural and probable. Barton v. Pepin 
 Co. Agr. Society, 83 Wis. 19, 52 N. W. 1129. It cannot be said of 
 any particular building that it is probable that it will be struck by 
 lightning. The chances are very largely against it. It could not 
 have been foreseen as likely to happen that either Floral Hall or the 
 plaintiff's barn would be struck by lightning. That might be, in the 
 course of nature, but could not be anticipated as probable. The neglect 
 of the defendant to remove the wire did not increase the danger or 
 probability that either building would be struck. At most, it only 
 rendered it possible that, in case either was struck, fire might be com- 
 municated to the other. It could not be the cause of either building 
 being struck. It was a condition, rather than the cause, of the dam- 
 ages. If a cause at all, it was a remote cause. 
 
 PiNNEY, J. I concur in the foregoing opinion by Mr. Justice New- 
 man. 
 
 E. T. & H. K. IDE V. BOSTON & M. R. CO. 
 
 (Supreme Court of Vermont, 1909. 83 Vt. GO, 74 Atl. 401.) 
 
 Action to recover damages for the destruction by fire of a gristmill 
 and outbuildings. The verdict and judgment were for the plaintiff. 
 The fire was alleged to have been communicated by a locomotive en- 
 gine on a railroad operated by the defendant as lessee. The statute
 
 Ch. 2) THE TESTS OF LEGAL CAUSE 851 
 
 which governs reads as follows : "A person or corporation owning or 
 operating a railroad shall be responsible in damages for a building 
 or other property injured by fire communicated by a locomotive engine 
 on such road, unless due caution and diligence are used and suitable 
 expedients employed to prevent such injury. Said person or corpora- 
 tion shall have an insurable interest in the property along its route, 
 and may procure insurance thereon." 
 
 Haseltox, j. * * * Under the statute, the burden was on the 
 plaintiff to show by a fair balance of proof that the fire was "com- 
 municated" by one of the defendant's engines, and, if that fact was 
 established, the plaintiff was entitled to recover unless the defendant 
 showed affirmatively by the same measure of proof that it used "due 
 caution and diligence" and employed "suitable expedients" to pre- 
 vent the injury. Cleaveland v. Grand Trunk Ry. Co., 42 Vt. 449; 
 Farrington v. Rutland R. Co., 72 Vt. 24, 47 Atl. 171. * * * 
 
 The fire was first seen on the roof of an old blacksmith shop owned 
 by the plaintiff standing on the easterly side of the railroad track and, 
 to about one-third of its extent, on the right of way of the rail- 
 road. * * * 
 
 After this fire was so far overcome that, as some of the evidence 
 tended to show, it was thought to have been put out, it started up 
 again, and the wind, which had been blowing towards the east, changed 
 its course and blew strongly towards the west, carrying fire to a shed 
 on the west side of the track, and thence to a storehouse and factory 
 of the Cushman & Rankin Company, and thence to the gristmill and 
 outbuildings of the plaintiff above referred to. The plaintiff's evi- 
 dence tended to show that the fire on the roof of the blacksmith shop 
 was communicated to it from one of the defendant's locomotives, and, 
 all questions of negligence on the part of both parties and of inter- 
 vening causes being for the time left out of consideration, the entire 
 conflagration stands as an integral effect of the cause which started 
 the fire on the roof of the blacksmith shop. Isham v. Dow's Estate, 
 70 Vt. 588, 41 Atl. 585, 45 L. R. A. 87, 67 Am. St. Rep. 691. The 
 defendant quotes from Ryan v. New York Central R. Co., 35 N. Y. 
 210, 91 Am. Dec. 49, and also cites Pennsylvania R. R. v. Kerr, 62 
 Pa. 353, 1 Am. Rep. 431. These cases, however, are pretty generally 
 discredited. See with regard to them [Milwaukee, etc., Ry. Co. v. Kel- 
 logg, 94 U. S. 469, 474, 24 L. Ed. 256, and what is said of them in 
 Isham v. Dow's Estate, 70 Vt^ 588, 41 Atl. 585, 45 L. R. A. 87, 67 
 Am. St. Rep. 691. As appears from the Isham Case, these cases are 
 not followed here. 
 
 We do not understand, considering the argument of the defendant 
 as a whole, that the doctrine of these cases is relied on. The defend- 
 ant's real claim in this regard, as appears from the brief in its behalf, 
 is that there were intervening causes in view of which the fire which 
 started the blaze on the blacksmith shop cannot be regarded as the 
 proximate cause of the loss for which recovery is sought. The claim
 
 852 CAUSAL RELATION (Part 2 
 
 is that there were two intervening causes : One, the conduct of the 
 plaintiff in its doings and omissions in respect to the blacksmith shop 
 after the fire had been practically subdued ; and the other the change 
 of the wind and the increase in its velocity. QThe sudden change in 
 the force and direction of the wind cannot be regarded as an interven- 
 ing agency. On the question of whether or not one's conduct in setting 
 a fire is or is not negligent, the condition of the grounds and premises, 
 as to dryness or wetness, the time of starting the fire, whether in the 
 evening or morning, the condition of the air, whether still or windy, 
 and, if there is a wind, the direction in which it is blowing, may some- 
 times be proper matters for consideration. But when negligence in 
 setting out a fire is established, as in the discussion of this point we 
 are to assume it to have been here, changes in the direction and force 
 of the wind and in other conditions may carry the result of the neg- 
 ligence further than it would otherwise have gone, and yet liability Jf^ 
 attach for the consequent injuries, although entirely unforeseen. The 
 distinction is clearly made in Isham v. Dow's Estate, 70 Vt. 588, 591, 
 41 Atl. 585, 586, 45 L. R. A. 87, 67 Am. St. Rep. 691. It is there said: 
 "On the question of what is negligence, it is material to consider what 
 a prudent man might reasonably anticipate; but, when negligence is 
 once established, that consideration is entirely immaterial on the ques- 
 tion of how far that negligence imposes liability." Gilson v. Canal 
 Co., 65 Vt. 213, 26 Atl. 70, 36 Am. St. Rep. 802, is to the same effect. 
 So is Stevens v. Dudley, 56 Vt. 158. 
 
 Among the cases cited in Gilson v. Canal Co., 65 Vt. 213, 26 Atl. 
 70, 36 Am. St. Rep. 802, is the case of Smith v. London & Southwest- 
 ern Ry. Co., L. R. 6 C. P. 14. That was a case of fire communicated 
 from a locomotive engine. The fire broke out between the rails aijd 
 a hedge, from thence spread to a stubble field beyond, and from the 
 stubble field was carried by a high wind over a road to the plaintiff's 
 cottage, which, was burned. The cottage was 200 yards from the 
 place where the fire started. Notwithstanding a concurrence of cir- 
 cumstances which, as the court recognized, no one could have been ex- 
 pected to foresee, the court held that, since the fire was negligently 
 set, the railway company was liable, since, after all, the injury pro- 
 ceeded from the original fire through the operation of natural causes. 
 Doubtless such an extraordinary phenomenon in nature as in legal 
 acceptation is an act of God would be an intervening cause. Stevens 
 V. Dudley, 56 Vt. 158, 167. But in this latitude we know no winds 
 which can be counted on to blow for any length of time with a force 
 and direction practically unvaried except for some extraordinary vio- 
 lence of nature. Such winds as we ordinarily know, such winds as 
 the evidence here relates to, are not intervening agents. Milwaukee, 
 etc., Ry. Co. v. Kellogg, 94 U. S. 469, 24 L. Ed. 256; Chicago, etc., 
 R. Co. v. Eesh. 158 Ind. 423, 63 N. E. 794; Union Pacific Rv. Co. v. 
 McCoUum, 2 Kan. App. 319, 43 Pac. 97; Chicago, etc., R. Co. v.
 
 Ch. 2) THE TESTS OF LEGAL CAUSE 853 
 
 Williams, 131 Ind. 30, 30 X. E. 696; Perley v. Eastern R. Co., 98 
 Alass. 414, 96 Am. Dec. 645 ; Florida, etc., Ry. Co. v. Welch, 53 Fla. 
 145, 44 South. 250, 12 Ann. Cas. 210. * * * 22 
 
 ISHAM V. DOW'S ESTATE. 
 
 (Supreme Court of Vermont, 189S. 70 Yt. 5SS, 41 Atl. 585, 45 L. R. A. 87, 
 
 67 Am. St. Rep. 691.) 
 
 Action by Charity Isham against the estate of Isaiah Dow. On 
 request, the plaintiff stated what her evidence would tend to prove ; 
 and the court ruled that such facts, if established, would not entitle 
 plaintiff to recover and excluded the evidence, and directed a verdict 
 for the defendant. 
 
 RowELL, J. Dow, the intestate, a poor gunner, as he knew, with 
 eyesight much impaired, knowing that the plaintiff and her children 
 were alone in her husband's house, unlawfully, wantonly, and ma- 
 liciously shot at and wounded her husband's dog, lying peaceably in 
 close proximity to the house, on the land of a third person, whereupon 
 the dog sprang up, rushed wildly and rapidly towards the house, en- 
 tered it through an open door into the room where the plaintiff was, 
 ran violently and forcibly against her, knocking her down and injuring 
 her ; and the question is whether the estate is liable for it. 
 
 The defendant says that, in order to recover, the plaintiff must es- 
 tablish two things, namely, negligence on the part of Dow, and that her 
 injury resulted proximately therefrom, and that the case shows nei- 
 ther, as it does not show that Dow owed her any legal duty, nor that 
 his act was the proximate cause of her injury. 
 
 But we cannot adopt this view. The intestate unlawfully, wantonly, 
 and maliciously shot at the dog, intending, we will assume, to kill it, 
 but not knowing whether he would or not, and not knowing what 
 would happen if he did not ; and by his wanton act the dog was set 
 wildly in motion, and that motion, thus caused, continued, without the 
 intervention of any other agency, and without power on his part to 
 control it, until the plaintift''s injury resulted therefrom. In these 
 circumstances the law treats the act of intestate as the proximate cause 
 of the injury, whether the injury was, or could have been foreseen, 
 or not, or was or not the probable consequence of the act ; for the 
 necessary relation of cause and eft'ect between the act and the injury 
 is established by the continuous and connected succession of the inter- 
 vening events. This is the universal rule when the injurious act is 
 wanton. In 16 Am. & Eng. Enc. Law, 434, the true principle is 
 said to be that he who does such an act is liable for all the conse- 
 quences, however remote, because the act is quasi criminal in its 
 
 22 i'arts of the opinion are omitted.
 
 854 CAUSAL RELATION (Part 2 
 
 character, and the law conclusively presumes that all the consequences 
 were foreseen and intended. 
 
 But it is not necessary, in this state, certainly, that the act should 
 be wanton, in order to impose liability for all the injurious conse- 
 quences. If it is voluntary, and not obligatory, it is enough. In 
 Mncent v. Stinehour, 7 Vt. 66, 29 Am. Dec. 145, it is said that for such 
 an act the doer is answerable for any injury that may happen by rea- 
 son thereof, whether by accident or carelessness. In Wright v. Clark, 
 50 Vt. 130, 28 Am. Rep. 496, the defendant shot at a fox that the plain- 
 tiff's dog had driven to cover, and accidentally hit the dog ; and he was 
 held liable, because the shooting at the fox was voluntary, and fur- 
 nished no excuse for hitting the dog, though he did not intend to 
 hit him. The same rule was applied at nisi prius, without exception, 
 in Taylor v. Hayes, 63 Vt. 475, .21 Atl. 610, where the defendant 
 shot at a partridge, and accidentally hit a cow. So, in Bradley v. 
 Andrews, 51 Vt. 530, the defendant voluntarily discharged an ex- 
 plosive missile into a crowd, and hurt the plaintiff' ; and it was held 
 that, as the act was voluntary and wrongful, the defendant was liable, 
 and that his youth and inexperience did not excuse him. The rule is 
 the same here in negligence cases, and may be formulated thus : When 
 negligence is established, it imposes liability for all the injurious con- 
 sequences that flow therefrom, whatever they are, until the interven- 
 tion of some diverting force that makes the injury its own, or until 
 the force set in motion by the negligent act has so far spent itself as 
 to be too small for the law's notice. But, in administering this rule, 
 care must be taken to distinguish between what is negligence, and 
 what the liability for its injurious consequences. On the question of 
 what is negligence, it is material to consider what a prudent man 
 might reasonably have anticipated ; but, when negligence is once estab- 
 lished, that consideration is entirely immaterial on the question of 
 how far that negligence imposes liability. 
 
 This is all well shown bv Stevens v. Dudley, 56 Vt. 158. and Gilson 
 V. Canal Co., 65 Vt. 213, 26 Atl. 70, 36 Am. St. Rep. 802. The rule 
 is the same in England, as will be seen by referring to the leading 
 case of Smith v. Railway Co., L. R. 6 C. P. 14, in the Exchequer 
 Chamber. In Sneesby v. Railway Co., 1 O. B. Div. 42, a herd of 
 plaintiff's cattle were being driven along an occupation road to some 
 fields. The road crosses a siding of the defendant's railway on a 
 level, and when the cattle were crossing the siding the defendant's serv- 
 ants negligently sent some trucks down the siding among them, which 
 separated them from tlic drovers, and so frightened them that a few 
 rushed away from the control of the drovers, fled along the occupa- 
 tion road to a garden some distance off. got into the garden through a 
 defective fence, and thence on to another track of the defendant's rail- 
 way, and were killed ; and the question was whether their death was 
 not too remote from the negligence to impose liability. The court 
 said : That the result of the negligence was twofold : First, that the
 
 Ch. 2) THE TESTS OF LEGAL CAUSE 855 
 
 trucks separated the cattle ; and, second, that the cattle were fright- 
 ened, and became infuriated, and were driven to act as they would not 
 have done in their natural state. That everything that occurred or 
 was done after that must be taken to have occurred or been done 
 continuously. And that it was no answer to say that the fence was 
 imperfect, for the question would have been the same, had there been 
 no fence there. There liability was made to depend, not on the near- 
 ness of the wrongful act, but on the want of power to divert or avert 
 its consequences, and it continued until the first impulse spent itself 
 in the death of the cattle. See Ricker v. Freeman, 50 N. H. 420, 9 
 Am. Rep. 267; Railroad Co. v. Chapman, 80 Ala. 615, 2 South. 738. 
 
 Ellis v. Cleveland, 55 Vt. 358, is not in conflict with the Vermont 
 cases above cited, as is supposed ; for there there was no causal con- 
 nection between the wrongful act and the injury complained of, and 
 so there could be no recovery. As illustrative of nonliability for dam- 
 age flowing from an intermediate and independent cause operating 
 between the wrongful act and the injury, see Holmes v. Fuller, 68 
 Vt. 207, 34 Atl. 699. 
 
 Ryan v. Railroad Co., 35 N. Y. 210, 91 Am. Dec. 49, is relied 
 on by the defendant. Railroad Co. v. Kerr, 62 Pa. 353, 1 Am. Rep. 
 431, is a similar case. It is said in Railroad Co. v. Kellogg, 94 U. S. 
 474, 24 L. Ed. 256, that these cases have been much criticised ; that 
 if they were intended to hold that when a building has been negligentlv 
 set on fire and a second building is fired from the first, it is a conclu- 
 sion of law that the owner of the second has no remedy against the 
 negligent wrongdoer, they have not been accepted as authority for 
 such a doctrine even in the states where they were made, and are in 
 conflict with numerous cases in other jurisdictions. * * * 
 
 Judgment reversed and cause remanded.-^ 
 
 SCOTT V. SHEPHERD. 
 
 (Court of Common Pleas, 1772. 2 W. Bl. 892, .3 Wils. 403.) 
 [See ante, p. 56, for a report of the case.] 
 
 VANDENBURGH v. TRUAX. 
 
 (Supreme Court of New York, 1847. 4 Denio, 404, 47 Am. Dec. 268.) 
 
 A negro boy, about 16 or 18 years old. was the plaintiff's ostler; 
 the boy was seen in the street at Schenectady, near the plaintiff's store, 
 approaching the defendant with a stone in his hand, and appearing, 
 as the witness said, to be very angry; the defendant not appearing, 
 
 23 A part of the opinion, referring to other authoritie.s on the doctrine of 
 Ryan v. Railroad Co. (1SU6) 35 N. Y. 210, 01 Am. Dec. 40, is omitted.
 
 856 CAUSAL RELATION (Part 2 
 
 to the witness, to be angry. The negro did not attempt to throw, or 
 stril<e with the stone. The defendant took hold of the negro, and told 
 him to throw the stone down ; and it may be inferred from the case 
 that he did throw it down, though the fact is not expressly stated. 
 The boy got loose from the defendant and ran away. The defendant 
 took up a pick-axe and followed the boy, who fled into the plaintiff's 
 store, and the defendant pursued him there, with the pick-axe in his 
 hand. The back door of the store was shut, so that the boy could not 
 get out there without being overtaken ; and he ran behind the counter, 
 as the witness believed, to save himself from being struck with the 
 pick-axe. In fleeing behind the counter, the boy knocked out the 
 cock, or faucet, from a cask of wine, and about two gallons of the 
 liquor, of the value of $4, were spilt and lost. For that injury 
 the action was brought. The justice gave judgment for the plaintiff 
 for $4 damages, which was affirmed by the Common Pleas. The de- 
 fendant brings error. 
 
 Bronson, C. J. * * * In the case of the lighted squib which 
 was thrown into the market house, the debate was upon the form of 
 the remedy. The question was whether the plaintiff could maintain 
 trespass vi et armis, or whether he should not have brought an ac- 
 tion on the case. His right to recover in some form, seems not to 
 have been disputed. Scott v. Shepherd, 2 W. Bl. 892 ; s. c, 3 Wils. 
 403. In that case, the impulse was given to inanimate matter ; while 
 here, a living and rational being was moved by fear. But still, there 
 is in some respects a striking analogy between the two cases. There 
 the force which the defendant gave to the squib was spent when it 
 fell upon the standing of Yates ; and it was afterwards twice put in 
 motion and in new directions, first by Willis and then by Ryall, before 
 it struck the plaintiff and put out his eye. But as the throwing of the 
 squib was a mischievous act, which was likely to do harm to some 
 one; and as the two men who gave the new impulses to the missile 
 acted from terror and in self-defense, the defendant was held an- 
 swerable as a trespasser for the injury which resulted to the plaintiff. 
 Now here, although the negro boy may have been wrong at the first, 
 yet when he had thrown down the stone, and was endeavoring to get 
 away from the difiiculty into which he had brought himself, the de- 
 fendant was clearly wrong in following up the quarrel. When the 
 boy ran upon the cask of wine, he was moved with terror produced by 
 the illegal act of the defendant; he was fleeing for his life, from a 
 man in hot pursuit, armed with a deadly weapon. The injury which 
 the plaintiff sustained was not the necessary consequence of the wrong 
 done by the defendant ; nor was it so in the case of the lighted squib. 
 But, in both instances, the wrong was of such a nature that it might 
 very naturally result in an injury to some third person. It is true 
 that the boy might have gone elsewhere, instead of entering the plain- 
 tiff's store; and it is equally true that Willis and Ryall might have 
 thrown the squib out of the market house, which was open on both
 
 Ch. 2) THE TESTS OF LEGAL CAUSE 857 
 
 sides and at one end, instead of tossing it across the market house 
 among the people there assembled. But in the one case as well as in 
 the other, the innocent agents were moved by fear, and had no time to 
 reflect upon the most prudent course of conduct. It was quite natural, 
 however, that the boy should flee to his employer for protection. And 
 finally, the proximate cause of the injury was, in both cases, an intel- 
 ligent agent. 
 
 In Guille v. Swan, 19 Johns. 381, 10 Am. Dec. 234, the immediate 
 actors in the wrong which was done to the plaintiff, were moved by 
 their sympathy for the defendant, who had brought himself into a 
 perilous condition by ascending in a balloon. The balloon descended 
 into the plaintiff's garden, which was near where it had gone up, and 
 a crowd of the people, seeing the defendant hanging out of the car in 
 great peril, rushed into the garden to relieve him, and in doing so 
 trod down the plaintifif's vegetables and flowers. For the wrong done 
 by the crowd, as well as for the injur)' done by himself, the defendant 
 was held answerable as a trespasser. Although the ascent was not 
 an illegal it was a foolish act, and the defendant ought to have fore- 
 seen that injurious consequences might follow. The case seems not 
 to have been put upon the ground of a concert of action between 
 the defendant and the multitude ; but on the ground that the defend- 
 ant's descent, under such circumstances, would ordinarily and natural- 
 ly draw a crowd of people about him, either from curiosity, or for the 
 purpose of rescuing him from a perilous situation. It was added, 
 however, that if the defendant had beckoned to the crowd to come 
 to his assistance, they would all have been cotrespassers ; and the 
 situation in which the defendant had voluntarily and designedly placed 
 himself was equivalent to a direct request to the crowd to follow him. 
 
 If the cases of the squib and the balloon have not gone beyond the 
 limits of the law, the defendant is answerable for the injury which he 
 has brought upon the plaintiff. And there is nearly as much reason 
 for holding him liable for driving the boy against the wine cask, and 
 thus destroying the plaintiff's property, as there would be if he had 
 produced the same result by throwing the boy upon the cask, in which 
 case his liability could not have been questioned. * * * 
 
 Judgment affirmed.^* 
 
 GIBNEY V. STATE. ^ 
 
 (Court! of Appeals of New York, 1S0.3. 137 N. Y. 1, 33 N. E. 142. 19 L. K. A. 
 
 365, 33 Am. St. Rep. 690.) 
 
 The plaintiff with her husband and child were crossing a bridge 
 over the Erie Canal. They met an acquaintance on the bridge, and the 
 parents stopped to talk with him. The child remained within a few 
 feet of them and suddenly fell through an opening in the railing of the 
 
 2* Parts of tlie opinion are omitted.
 
 858 CAUSAL RELATION (Part 2 
 
 bridge into the canal below. The father plunged into the canal to 
 recover the child, and both father and son were drowned. A claim 
 was presented to the Board of Claims for damages for the death of 
 the husband, and a judgment in favor of the claimant was entered. 
 There was an appeal by the State.^^ 
 
 Andrews, C. J. We have decided on the appeal brought for award 
 of damages for the death of the infant son of the plaintiff, that the 
 evidence authorized a finding of negligence on the part of the state au- 
 thorities in permitting the opening in the bridge, through which the 
 boy fell into the canal, to remain unguarded, and also the further find- 
 ing that there was no contributory negligence on the part of the par- 
 ents of the child, and we therefore affirmed the award. The present 
 appeal is from an award made for damages sustained by the widow 
 and next of kin, arising from the drowning of the plaintiff's husband 
 and the father of the child, in an attempt to rescue the child from the 
 canal, into which the child had fallen. * * * 
 
 It is contended by the attorney-general that the negligence of the 
 state in permitting the bridge to remain in an unsafe condition, while it 
 may have been the cause of the death of the boy, cannot be regarded 
 as the cause of the death of the father, although it occurred in an at- 
 tempt to save the life of the child. It is doubtless true that except 
 for the peril of the child, occasioned by his falling through the bridge 
 into the canal, there would have been no connection between the neg- 
 ligence of the state and the drowning of the father. But the peril to 
 which the child was exposed was, as has been found, the result of the 
 negligence of the state, and the peril to which the father exposed him- 
 self was the natural consequence of the situation. It would have been 
 in contradiction of the most common facts in human experience if 
 the father had not plunged into the canal to save his child. But while 
 the immediate cause of the peril to which the father exposed himself 
 was the peril of the child, for the purpose of administering legal reme- 
 dies, the cause of the peril in both cases may be attributed to the cul- 
 pable negligence of the state in leaving the bridge in a dangerous con- 
 dition. 
 
 There is great difficulty in many cases in fixing the responsible cause 
 of an injury. When there is a break in the chain of causes by the 
 intervention of a new agency, and then an injury happens, is it to be 
 attributed to the new element, and is this to be treated as the originat- 
 ing cause to the exclusion of the antecedent one, without which no 
 occasion would have arisen for the introduction of a new element? It 
 is impossible to formulate a rule on the subject capable of definite and 
 easy application. 
 
 The general rule is that only the natural and proximate results of a 
 wrong are those of which the law can take notice. But where a conse- 
 quence is to be deemed proximate within the rule is the point of diffi- 
 
 2 5 Tlie statement of the facts is abridged.
 
 Ch. 2) THE TESTS OF LEGAL CAUSE 859 
 
 culty. In this case these elements are present: Culpable negligence 
 on the part of the state ; the falling of the child into the canal through 
 the opening which the state negligently left in the bridge; the natural 
 and instinctive act of the father in plunging into the canal to rescue 
 the child ; the drowning of both ; the fact that such an accident as that 
 which befell the child might reasonably have been anticipated as the 
 result of the condition of the bridge, and the further consideration 
 that a parent or other person on seeing the child in the water would in- 
 cur every reasonable hazard for its rescue. We think it may be justly 
 said that the death both of the child and parent was the consequence 
 of the negligence of the state, and that the unsafe bridge was in a legal 
 and juridical sense the cause of the drowning of both. 
 
 We can see no sound distinction between this case and the Eckert 
 Case, 43 N. Y. 502, 3 Am. Rep. 721. In that case a railroad train was 
 being propelled at a dangerous speed. The negligence was active. In 
 this case it consisted of an omission ; that is, in the failure to originally 
 construct the bridge properly, or permitting it to become dangerous. 
 We do not perceive how the difference in the circumstances of the 
 negligence affects the question of proximateness between the cause and 
 the result so as to distinguish in this respect the two cases. 
 
 The Balloon Case, 19 Johns. 381, 10 Am. Dec. 234, and the case of 
 Thomas v. Winchester, 6 N. Y. 397, 57 Am. Dec. 455, give support to 
 our conclusion. 
 
 The judgment should be affirmed.^® 
 
 BINFORD v. JOHNSTON. 
 
 (Supreme Court of Indiana, 1882. 82 Ind. 426, 42 Am. Rep. 508.) 
 
 Elliott, J. The case made by the appellee's complaint, briefly 
 
 stated, is this : 
 
 Two sons of appellee, Allen and Todd, aged twelve and ten years respec- 
 tively, bought of the appellant, a dealer in such articles, pistol cartridges 
 loaded with powder and ball. The boys purchased the cartridges for use in 
 a toy pistol, and were instructed by appellant how to make use of them in 
 this pistol ; the appellant knew the dangerous character of the cartridges. 
 knew the hazard of using them as the boys proposed, and that the lads were 
 untit to be entrusted with articles of such a character; shortly after the 
 sale, the toy pistol, loaded with one of the cartridges, was left by Allen and 
 Todd lying on the floor of their home. It was picked up by their brother 
 Bertie, who was six years of age, and discharged, the ball striking Todd and 
 inflicting a wound from which he died. 
 
 A man who places in the hands of a child an article of a dangerous 
 character and one likely to cause injury to the child itself or to others, 
 is guilty of an actionable wrong. If a dealer should sell to a child 
 
 2« Accord: Eckert v. Long Island Ry. Co. (1S7S) 43 N. Y. 502, 3 Am. Rep. 
 721 ; rerpich v. Leetonia Mining Co. (1912) 118 Miim, 508, 137 N. W. 12.
 
 860 CAUSAL RELATION (Part 2 
 
 dynamite, or other explosives of a similar character, nobody would 
 doubt that he had committed a wrong for which he should answer, in 
 case injury resulted. So, if a druggist should sell to a child a deadly 
 drug, likely to cause harm to the child or injury to others, he would 
 certainly be liable to an action. 
 
 The more difiicult question is whether the result is so remote from 
 the original wrong as to bring the case within the operation of the 
 maxim "Causa proxima, et non remota, spectatur." It is not easy to 
 assign limits to this rule, nor to lay down any general test which will 
 enable the courts to determine when a case is within or without the 
 rule. It is true that general formulas have been frequently stated, but 
 these have carried us but little, if any, beyond the meaning conveyed 
 by the words of the maxim itself. 
 
 The fact that some agency intervenes between the original wrong 
 and the injury does not necessarily bring the case within the rule; on 
 the contrary, it is firmly settled that the intervention of a third person 
 or of other and new direct causes does not preclude a recovery if the 
 injury was the natural or probable result of the original wrong. Bill- 
 man V. Indianapolis, &c., R. R. Co., 76 Ind. 166, 40 Am. Rep. 230. 
 This doctrine remounts to the famous case of Scott v. Shepherd, 2 W. 
 Black. 892, commonly known as the "Squib case." The rule goes so 
 far as to hold that the original wrong-doer is responsible, even though 
 the agency of a second wrong-doer intervened. This doctrine is en- 
 forced with great power by Cockburn, C. J., in Clark v. Chambers, 7 
 Cent. L. J. 11 [3 Q. B. D. 327 (1878)] ; and is approved by the text- 
 writers. Cooley, Torts, 70; Addison, Torts, § 12. 
 
 Although the act of the lad Bertie intervened between the original 
 wrong and the injury, we cannot deny a recovery if we find that the 
 injury was the natural or probable result of appellant's original wrong. 
 In Henry v. Southern Pacific R. R. Co., 50 Cal. 176, it was said : "A 
 long series of judicial decisions has defined proximate, or immediate 
 and direct damages to be the ordinary and natural results of the negli- 
 gence ; such as are usual, and as therefore might have been expected." 
 Lord Ellenborough said in Townsend v. Wathen, 9 East, 277, that 
 "Every man must be taken to contemplate the probable consequences 
 of the act he does." In Billman v. Indianapolis, &c., R. R. Co., supra, 
 very many cases are cited declaring and enforcing this doctrine, and 
 we deem it unnecessary to here repeat the citations. Under the rule 
 declared in, the cases referred to, it is clear that one who sells danger- 
 ous explosives to a child, knowing that they are to be used in such a 
 manner as to put in jeopardy the lives of others, must be taken to con- 
 template the probable consequences of his wrongful act. It is a prob- 
 able consequence of such a sale as that charged against appellant, that 
 the explosives may be so used by children, among whom it is natural 
 to expect that they wall be taken, as to injure the buyers or their asso- 
 ciates. A strong illustration of the principle here affirmed is afforded 
 by the case of Dixon v. Bell, 5 M. & S. 198. In that case the defendant
 
 Ch. 2) THE TESTS OP LEGAL CAUSE 861 
 
 sent a child for a loaded gnn, desiring that the person who was to 
 deliver it should take out the priming. This was done ; but the gun 
 was discharged by the imprudent act of the child, the plaintiff injured, 
 and it was held that the defendant was liable. In Lynch v. Nurdin, 
 1 O. B. 29, the doctrine of the case cited was approved, and the same 
 judgment has been pronounced upon it by other courts as well as by 
 the text-writers. Carter v. Towne, 98 Mass. 567, 96 Am. Dec. 682 ; 
 \\' barton, Xeg. 851 ; Shearman & Redf. Neg. (3d Ed.) 596. * * * 
 Judgment [for the plaintiff] affirmed.^^ 
 
 CLARK V. \\^ALLACE. ^ 
 
 (Supreme Court of Colorado, 1911. 51 Colo. 437, 118 Pac. 973, 
 ; Ann. Cas. 1913B, 349.) 
 
 MussER, J. This writ of error was sued out to review a judgment 
 in favor of Wallace, who was defendant below. Clark owned 160 
 acres of standing peas, upon which he was feeding and fattening about 
 1,200 sheep. The sheep and peas were in charge of a herder, in the 
 employ of Clark. The herder lived there with his wife and two chil- 
 dren. On a certain day, Wallace, who had a ranch nearby, was en- 
 gaged in dipping sheep, and it became necessary for him to have more 
 help. He caused Clark's herder to be asked to come over and help in 
 dipping the sheep, and stated that he would pay the herder. After a 
 time, the herder came over. While he was at Wallace's, a fire started 
 in or near Clark's field of peas. It was evidently started by the herd- 
 er's wife, or boy, or both. There was a high wind blowing, and the 
 fire soon got beyond control, and extended to the field of peas, and 
 destroyed them. Clark brought an action to recover from Wallace the 
 damages sustained by him on account of the loss of the peas. After 
 the evidence was in, the court instructed the jury to render a verdict 
 in favor of Wallace, which was done, and upon this verdict judgment 
 was entered against Clark. 
 
 We will not stop to consider whether or not Wallace would be liable 
 for any damage that might have resulted to Clark in consequence of the 
 herder being induced to leave his work. If Wallace was liable for any 
 damage at all, which we do not determine, it was only for such damage 
 as was "the actual, natural, and approximate result of the wrong com- 
 mitted." Clifford v. D., S. P. & P. R. R., 9 Colo. 333, 12 Pac. 219. 
 "The rule is general that a person is not to be held responsible in dam- 
 ages for the remote consequences of his act, or indeed for any but those 
 which are proximate or natural." 8 Am. & Eng. Ency. of Law, 561. 
 In D. & R. G. R. R. Co. v. Sipes, 26 Colo. 17, 55 Pac. 1093, it is said 
 that proximate cause is "that cause which, in natural and continued se- 
 
 2 7 Part of the opinion is omitted.
 
 862 CAUSAL RELATION (Part 2 
 
 quence, unbroken by any efficient, intervening cause, produced the re- 
 sult complained of, and without which that result would not have 
 occurred ;" or "that cause which immediately precedes and directly 
 produces an effect, as distinguished from a remote, mediate, or pre- 
 disposing cause." 
 
 Whether an act was the proximate cause of damage is ordinarily a 
 question for the jury; but, when the facts are undisputed, and are sus- 
 ceptible of but one inference, the question is one of law for the court. 
 D. & R. G. R. R. Co. V. Sipes, supra. The only damage that Clark 
 sought to recover, and of which there was any evidence, was that which 
 he had sustained by reason of the burning of the peas. It cannot be 
 said that the natural result of the herder's absence was that some mem- 
 ber of his family would start a fire and that the wind would be high, 
 and would fan that fire, so that it would extend to and destroy the 
 peas. It cannot be said that the herder's absence, in natural and con- 
 tinued sequence, unbroken by any efficient, intervening cause, produced 
 the result complained of ; for the setting out of the fire by his family 
 was not a natural and continued sequence of the herder's absence; 
 hut it was an efficient, intervening cause, coming in after the absence 
 of the herder, and could not have been anticipated as a natural result 
 of the absence. It cannot be said that, if the herder had been present, 
 the fire would not have been started, or the wind not have been high. 
 The cause of the fire was not the absence of the herder, but it was 
 plainly the action of his family, and this action was not the natural and 
 legitimate sequence of his absence. The fire might have been started 
 just as well with him present, on some portion of the 160 acres of peas, 
 and the wind would have blown just as hard. 
 
 The substantial facts in this case are undisputed ; but if the evidence 
 on the part of the plaintiff be alone considered, there is but one infer- 
 ence to be drawn from it, and that is that the absence of the herder 
 was not the proximate cause of the destruction of the peas. The 
 judgment is therefore affirmed. 
 
 Judgment affirmed. 
 
 FERGUS LANE v. ATLANTIC WORKS. ^ 
 (Supreme Judicial Court of Massachusetts, 1872. Ill Mass. 136.) 
 
 Tort. The declaration was as follows : 
 
 "And the plaintiff says that the defendants carelessly left a truck, loaded 
 with iron, in Marion Street, a public hi>rh\vay in Boston, tor the space of 
 twenty minutes and more; and the iron on said tinick was so carelessly and 
 negligently placed that it would easily fall off ; and that the plaintiff was 
 walking in said highway, and was lawfully in said highway, and lawfully 
 using said highway, and in the exercise of due care; and said iron upon said 
 truck was thrown and fell therefrom upon the plaintiff in consequence of the 
 defendants' carelessness, and the plaintiff was severely bruised and crip- 
 pled," &c.
 
 Ch. 2) THE TESTS OF LEGAL CAUSE 863 
 
 The plaintiff introduced evidence,^^ under a general denial, that the 
 defendants left a truck with a bar of iron on it standing in front of 
 their works on Marion Street, which was a public highway in Boston ; 
 that the iron was not fastened, but would easily roll off the truck; 
 that the plaintiff', then seven years old, and a boy about the same age 
 named James Conners, were walking, between six and seven in the 
 evening, on the side of Marion Street opposite the truck and the de- 
 fendants' works ; that Horace Lane, a boy 12 years old, being near the 
 truck, called to them to come over and see him move it ; that the plain- 
 tiff and Conners said they would go over and watch him do it ; that 
 they went over accordingly ; that the plaintiff' stood near the truck to 
 see the wheels move, as Horace Lane took hold of the tongue of the 
 truck ; that Horace Lane moved the tongue somewhat ; that the iron 
 rolled off and injured the plaintift''s leg ; and that neither the plaintiff 
 nor Conners touched the iron or truck at all. 
 
 The defendants introduced evidence tending to show that the iron 
 was fastened securely on the truck, which was drawn from the defend- 
 ants' works into the street at four o'clock in the afternoon ; that the 
 boys removed the fastenings ; that Horace Lane placed the boys one on 
 each side of the truck ; that he turned the tongue of the truck round ; 
 that he and Conners then took hold of the iron and rolled it off ; that 
 the plaintiff had his hands on the iron or on the truck when the iron 
 rolled off on him ; and that the boys were engaged in the common en- 
 terprise of rolling off the iron and moving the truck. There was no 
 evidence that Horace Lane had any lawful purpose or object in mov- 
 ing the truck, or any right to meddle with it. 
 
 The defendants requested the judge to give, besides other ruHngs, 
 the following : 
 
 "2. In order to make the plaintiff a participator or joint actor with 
 Horace Lane, in his conduct in meddling with the truck for an unlaw- 
 ful purpose, it was not necessary for him to have actually taken hold 
 of the tongue, or the iron, or the truck, to help or aid in moving it. 
 It is enough if he joined with him in a common object and purpose 
 voluntarily, went across the street on his invitation for that avowed 
 purpose, and stood by the truck to encourage and aid, by his presence, 
 word or act, the accomplishment of that purpose. 
 
 "3. While it is true that negligence alone on the part of Horace 
 Lane, which contributed to the injury combining with the defendants' 
 negligence, would not prevent a recovery, unless the plaintiff's negli- 
 gence also concurred as one of the contributory causes also; yet, if the 
 fault of Horace Lane was not negligence, but a voluntary meddling 
 with the truck or iron, for an unlawful purpose, and wholly as a sheer 
 trespass, and this culpable conduct was the direct cause of the injury 
 which would not have happened otherwise, the plaintiff' cannot re- 
 cover." 
 
 2 8 The statement of facts is abridged and the opinion of Colt, J., is omitted.
 
 864 CAUSAL RELATION (Part 2 
 
 The judge did not give the ruling requested, but gave rulings, which, 
 so far as they are now material, were as follows : 
 
 "The city ordinance is proper to be put in evidence and to be con- 
 sidered by the jury upon the question of negligence, although it is 
 not conclusive proof that the defendants were in point of fact negli- 
 gent in the act of leaving the truck there. It is a matter of evidence, to 
 be weighed with all the other evidence in the case. 
 
 "If the sole or the direct cause of the accident was the act of Horace 
 Lane, the defendants are not responsible. If he was the culpable cause 
 of the accident, that is to say, if the accident resulted from the fault of 
 Horace Lane, they are not responsible. But if Horace Lane merely 
 contributed to the accident, and if the accident resulted from the joint 
 negligence of Horace Lane in his conduct in regard to moving the truck 
 and the negligence of the defendants in leaving it there, where it was 
 thus exposed, or leaving it so insecurely fastened that this particular 
 danger might be reasonably apprehended therefrom, then the interme- 
 diate act of Horace Lane will not prevent the plaintiff from recovering, 
 provided he himself was in the exercise of due and reasonable care. 
 If the plaintiff himself participated in the act of Horace Lane no 
 further than to go there and be a witness to this transaction which 
 Horace Lane proposed to perform, crossing over the street by his in- 
 vitation, and witnessing him move this truck, that would not make him 
 such a participator in the wrongful act of Horace Lane as to prevent 
 his recovery, provided he himself was in the exercise of reasonable 
 care. 
 
 '■'If, however, he was actually engaged in the wrongful act of Hor- 
 ace Lane, if he was actually engaged in disturbing this truck, and mov- 
 ing the fastenings which had been put upon it in order to prevent it 
 from being disturbed, and was actively participating in the act of 
 Horace Lane, then he cannot recover. But if the act of the plaintiff 
 was limited to crossing the street for the purpose of witnessing the 
 act done by Horace Lane, in answer to his invitation, and no active 
 participation was taken by the plaintiff other than that, it would not 
 prevent his recovery, provided he himself was in the exercise of due 
 and reasonable care." 
 
 At the close of his charge to the jury the judge read the second rul- 
 ing 'prayed for by the defendants, and said: 
 
 "If the plaintiff took an active participation in it, as I before in- 
 structed you, or went there as a joint actor, for the purpose of en- 
 couraging Horace Lane in it, he cannot recover. If he went there at- 
 tracted by curiosity only, at the invitation of the party who was about 
 to move the truck, Horace Lane, then he may recover ; provided, you 
 are further satisfied that, in what he did, he was in the exercise of the 
 due and reasonable care that should be expected of a person of his 
 age. 
 
 The jury returned a verdict for the plaintiff for $6,000, and the de- 
 fendants alleged exceptions.
 
 Ch. 2) THE TESTS OP LEGAL CAUSE 865 
 
 Colt, J. In actions of this description, the defendant is hable for 
 the natural and probable consequences of his negligent act or omission. 
 The injury must be the direct result of the misconduct charged; but 
 it will not be considered too remote if, according to the usual experi- 
 ence of mankind, the result ought to have been apprehended. 
 
 The act of a third person, intervening and contributing a condition 
 necessary to the injurious effect of the original negligence, will not ex- 
 cuse the first wrong-doer, if such act ought to have been foreseen. 
 'J'he original negligence still remains a culpable and direct cause of the 
 injury. The test is to be found in the probable injurious consequences 
 which were to be anticipated, not in the number of subsequent events 
 and agencies which might arise. 
 
 Whether in any given case the act charged was negligent, and wheth- 
 er the injury suffered was, within the relation of cause and eft"ect, 
 legally attributable to it, are questions for the jury. They present 
 oftentimes difficult questions of fact, requiring practical knowledge and 
 experience for their settlement, and where there is evidence to justify 
 the verdict it cannot be set aside as matter of law. Tlie only question 
 for the Court is, whether the instructions given upon these points stat- 
 ed the true tests of liability. * * * .j. 
 
 3. The last instruction asked was rightly refused. Under the law as 
 laid down by the Court the jury must have found the defendants guilty 
 of negligence in doing that from which injury might reasonably have 
 been expected, and from which injury resulted; that the plaintiff was 
 in the exercise of due care ; that Horace Lane's act was not the sole, 
 direct, or culpable cause of the injury; that he did not purposely roll 
 the iron upon the plaintiff; and that the plaintiff was not a joint actor 
 with him in the transaction, but only a spectator. This supports the ver- 
 dict. It is immaterial whether the act of Horace Lane was mere neg- 
 ligence or a voluntary intermeddling. It was an act which the jury 
 have found the defendants ought to have apprehended and provided 
 against. McDonald v. Snelling, 14 Allen, 290, 295 ; Powell v. Deveney, 
 3 Cush. 300; Barnes v. Chapin, 4 Allen, 444; Tutein v. Hurley, 98 
 Mass. 211 ; Dixon v. Bell, 5 M. & S. 198; Mangan v. Atterton, L. R. 
 1 Ex. 239; Illidge v. Goodwin, 5 C. & P. 190; Burrows v. March 
 Gas Co., L. R. 5 Ex. 67, 71 ; Hughes v. Macfie, 2 H. & C. 744. 
 
 Exceptions overruled. 
 
 tPart of the opinion, on other points, is omitted. On the principle in the 
 last instruction compare the remark of Gibson. J., in Murphy v. Great North- 
 ern Ry. Co., [1897] 2 I. R. 301, 312: "The defendants mij?ht be liable if the 
 [baggage] truck was set in motion either accidentally or by that occasional 
 negligence which, as Tyord Ilalsliui-j- has remarked, is one of the ordinary 
 incidents of human life, and wliich under the circumstances they ought to 
 have anticipated." And see Noiton v. Chandler & Co. (191")) 221 Mass. 99, 108 
 N. E. 897: (A defective revolving door to D.'s store is spun so fast by the 
 hurrj- of S. that P., another customer passing through, is hurt.) 
 
 Hepb . ToBTS — 55
 
 866 CAUSAL RELATION (Part 2 
 
 IMcDOWALL V. GREAT WESTERN RY. CO. ^ 
 
 (High Court of Justice, King's Bench Division. [1902] 1 K. B. G18. Court of 
 
 Appeal. [1903] 2 K. B. 331.) 
 
 The action was brought by an infant, suing by her next friend, to 
 recover damages in respect of injuries sustained by her through 
 the alleged negligence of the defendants. It was tried before Ken- 
 nedy, J., and a jury, and, the jury having answered specific questions 
 put to them by the judge and assessed the damages at £17S, the case 
 was adjourned for further consideration. 
 
 The following statement of facts is taken from the written judg- 
 ment of Kennedy, J. : 
 
 "The claim is for damages for serious injuries inflicted on the plain- 
 tiff, a girl of nineteen years of age, in July, 1900, by a brake van be- 
 longing to the defendants and under the management of their serv- 
 ants at Pembroke. 
 
 "The defendants, as part of their railway system at Pembroke, have 
 a branch called the Hobbs Point Branch, which is an offshoot of the 
 main line and is chiefly used as a siding. The Hobbs Point Branch 
 line crosses on a level a highway with a gate on either side across 
 the line of railway. For some distance from the highway to the 
 eastward there is a steepish gradient in the railway line of about 
 one in fifty-five, descending to a point where the line crosses the 
 highway. In the course of the gradient is what is termed a 'catch- 
 point,' which would arrest and divert any railway trucks and car- 
 riages which from any cause happened to run down the incline to- 
 wards the highway and would prevent them, as the defendants' witness 
 phrased it, from 'running wild.' On the day before the accident a 
 servant of the company had taken an engine with five trucks and a 
 brake-van along the Hobbs Point Branch from the railway station, 
 intending to leave them there as on a siding until they were required. 
 He drew them beyond and to the westward of the catch-point, that 
 is to say, to a position on the incline between the catch-point and the 
 highway, and there left them, after putting on the brake in the van 
 and properly spragging, as the operation is called, that is, securing by 
 means of pieces of wood, the wheels of the trucks. The van was 
 attached to the trucks by the screw coupling, which was not screwed 
 up tight, but sufficiently tight, if not interfered with, to hold the yan 
 in connection with the trucks. The position would not have been 
 a safe one in regard to the highway if these precautions had not 
 been taken, but with the spraggs on the trucks and the brake on the 
 van it would have been safe, as the jury have found by their verdict, 
 if things had remained as they were when the trucks and the 
 van were left in this condition. The defendants' evidence shewed 
 that the reason why the trucks and the van were not left to the east- 
 ward of the catch-point was that they wished by going further to the
 
 Ch. 2) THE TESTS OF LEGAL CAUSE 8G7 
 
 westward to have an extra space of line for shunting other carriages 
 to be brought afterwards on to the branch from the mainhne The 
 Hobbs Point Branch was separated on the one side from some open 
 ground belonging to the defendants by a wire fence, and on the other 
 it was bounded by a field which was separated from the high road 
 by a garden. For years the defendants had been troubled by boys 
 trespassing on this part of the line and playing in and about the 
 vehicles left standing upon it. 
 
 "The day after the shunting operations some boys appear to have 
 come on the line where the trucks and van were and to have amused 
 themselves by playing with the vehicles and their fastenings. They 
 were seen doing this or, at all events, they were seen on and close 
 to the van, and they seem carelessly to have unfastened the screw 
 coupling of the van, and partially to have released the brake. In con- 
 sequence of this the van, loosed from the trucks, ran down the in- 
 cline, smashed the gate which separated the railway from the high- 
 way, as well as a gate higher up, and knocked down and seriously 
 injured the plaintift" who was passing along the highway. 
 
 "It was to recover damages for the negligence of the defendants, 
 
 which, as the plaintiff alleged, caused these injuries, that the action 
 
 was brought. It was tried before me sitting with a jury at the last 
 
 assizes at Haverfordwest. The jury assessed the damages at £.175, 
 
 and returned answers to specific questions which I left to them. The 
 
 questions and the answers were as follows : 
 
 "(1) 'Was the van, in regard to the persons using the highway where the 
 plaintiff was, in a safe position, as and where it was left by the defendants' 
 servants on the 20th of July, unless interfered with afterwards?' The jury 
 said, 'Yes.' (2) 'Would the accident to the plaintiff have happened if the 
 van had not been interfered with'?' Answer, 'No.' (3) 'Was the interference 
 the act of trespassers, and, if so was the interference with the wilful intent 
 of causing the van to descend the incline, or merely negligent?' Answer, 'Yes; 
 the act of trespassers with negligence.' (4) 'Was the danger of such inter- 
 ference causing injury to persons using the highway known to the defend- 
 ants at the time the van was left and kept where it was, and might it have 
 been sufficiently guarded against by the exercise of reasonable care and 
 skill on the part of the defendants?' Answer, 'Yes; it was known and could 
 have been guarded against by the exercise of reasonable care on the part 
 of the defendants.' (5) 'Was the occurrence of the injury to the plaintiff 
 materially and effectively caused by want of reasonable care and skill on 
 the part of the defendants' servants in placing and keeping the van as and 
 where it was placed by them, either (a) in regard to its position, apart from 
 interference by trespassers; or (b) in regard to its danger if interfered with; 
 or (c) in any other way?' To that the jury answer, 'Yes ; the company were 
 negligent in not placing the van to the east of the catch-point;' and then 
 they assess the damages as I have stated." 
 
 Kennedy, J., read the following judgment: In this case the ma- 
 terial facts may be shortly stated. [The learned judge stated the 
 facts as above ?et out, and continued :] 
 
 I did not give judgment at the time, but reserved the case, which 
 is in some respects peculiar, for further consideration ; and the ques- 
 tions of law arising upon the case have been fully argued before me. 
 * * * The finding of the jury in answer to the fourth question,
 
 868 CAUSAL RELATION (Part 2 
 
 namely, that the defendants, at the time of placing and keeping the 
 van where they did, knew of the danger to those on the highway of 
 such interference as caused the plaintiff's hurt, appears to me to be 
 conclusive. The position in which, with this knowledge, they placed 
 and kept the van was one of danger because, if the interference hap- 
 pened so as to set the vehicles in motion, there was nothing there to 
 stop the van running down the incline and crashing through the in- 
 tervening gates and over the highway. There was a catch-point which 
 had been placed to prevent and which would in fact have prevented, 
 such a disaster. With a knowledge of the danger the defendants, for 
 the convenience of their traffic arrangements, preferred not to use 
 this obvious and effective safeguard. There was, I think, quite suf- 
 ficient evidence to justify the finding of the jury of defendants' knowl- 
 edge of the existence of the danger which the defendants' servants 
 thus needlessly imposed upon persons using the highway. 
 
 For years, according to the defendants' witnesses, they had been 
 troubled by boys playing with and on the trucks and carriages left 
 stationary at this part of the line. This portion of the branch is 
 bounded on one side by a wire fence, which separated it from some 
 open ground of the defendants, and on the other side by a field, which 
 was separated from the highroad by a garden. To the knowledge 
 of the defendants boys used to get into the trucks, and even to unlock 
 the doors of the vans on the siding, for the purpose either of theft or 
 amusement. If the defendants knew of this systematic, or at any 
 rate, very frequent interference, it does not appear to me to be other- 
 wise than reasonable for the jury to say that they must be taken 
 to have known, as one of the risks involved, that the trucks and vans 
 kept in position on the down grade only by temporary means, which 
 apparently were easily movable, might, if uncontrolled by the catch- 
 point, cause mischief to the users of the highway. If, as the jury 
 have found, the risk of interference by trespassers with the trucks 
 and vans in this locality was a risk known to the defendants, and if 
 the consequent danger of their movement down the incline to the 
 highway was also a known risk, and if, further, this danger might 
 have been guarded against by the exercise by the defendants of rea- 
 sonable care, as the jury have also found, I can see no legal reasons 
 upon which the defendants can claim immunity merely because the 
 boys were trespassers. I may point out that in Engelhart v. Fer- 
 rant (1897) 1 Q. B. 240, the act which immediately caused the plain- 
 tiff's hurt was an unauthorized and improper act on the part of the 
 person who did it ; and in Lynch v. Nurdin, 1 Q. B. 29, Lord Denman 
 said (1 Q. B. at p. 35) : "If I am guilty of negligence in leaving anything 
 dangerous in a place where I know it to be extremely probable that 
 some other person will unjustifiably set it in motion to the injury of 
 a third, and if that injury should be so brought about, I presume 
 that the sufferer might have redress by action against both or cither 
 of the two, but unquestionably against the first." In this case the
 
 Ch. 2) THE TESTS OF LEGAL CAUSE 869 
 
 van as placed was not a cause of danger, but the defendants knew 
 in effect that it might become a cause of danger, for they knew the 
 risk of the interference which would create danger, and yet they 
 omitted to take a reasonable precaution to prevent its consequences. 
 Therefore, as it seems to me, the principle of liability as stated in 
 the passage which I have read from Lord Denman's judgment, applies. 
 
 1 give judgment for the plaintiff for the amount found by the 
 jury in their verdict. 
 
 From this judgment the defendant appealed.^® 
 
 [In the Court of Appeal] 
 
 Rome;r, L. J. Clearly, as found by the jury when this train was 
 left where it was by the railway company, with the precautions taken 
 by them, it was perfectly safe. It was not left in any condition in 
 which it could be said that there was any negligence on the part of 
 the railway company under the circumstances, unless you can find 
 some evidence of negligence by reason of the evidence relating to 
 the mischievous boys ; in other words, unless it is plain that the 
 evidence relating to the mischievous boys turned that act which was 
 otherwise a proper act on the part of the company into a negligent 
 one. Upon that, having considered that evidence, it does not appear 
 to me that upon it the jury could reasonably find that the railway 
 company ought, under the circumstances in which they left this train, 
 reasonably to have anticipated that the boys would do or might have 
 done what they in fact did, or that there was at the time, known to 
 the company, any such risk of the particular acts of the boys which 
 caused the accident as called upon the railway company to take fur- 
 ther precautions against those particular acts; and that being so, 
 it appears to me that the findings upon which the learned judge be- 
 low acted cannot be relied upon on behalf of the plaintiff, and that 
 the appeal ought to succeed. 
 
 Stirling, L. J. I am of the same opinion. The real question in 
 this case is whether the findmgs of the jury in answer to the fourth 
 and fifth questions which were put to them by the learned judge can 
 be supported. In answer to the first three questions the jury have 
 found that the van was in a safe position as and where it was left 
 by the defendants' servants, unless interfered with afterwards, and 
 that the accident would not have happened if the van had not been 
 interfered with, and that the interference was the act of trespassers, 
 who acted negligently. Then what really happened was that some 
 boys got into or on the van and undid the brake and couplings, and 
 that this led to the accident. 
 
 Now, was there any evidence to shew that the company ought rea- 
 sonably to have anticipated such an occurrence? The learned judge, 
 twice in the course of his judgment, states what the facts are. He 
 
 2 9 Tart of the opinion of Kennedy, J., is omitted.
 
 870 CAUSAL RELATION (Part 2 
 
 says that for years the defendants had been troubled by boys tres- 
 passing on this part of the hne and playing in and about vehicles 
 standing upon it, and later he says that, to the knowledge of the 
 defendants, the boys used to get into trucks and vans and unlock 
 the doors of the vans on the siding. That is the whole length the 
 evidence went. Nothing further has been called to our attention. 
 That had gone on for years, and no accident of any kind had oc- 
 curred. In these circumstances it does not seem to me a fair infer- 
 ence to draw that the company ought to have reasonably anticipated 
 any such act as was actually done by the boys in this case, or the 
 result which came from it. Upon that ground I think the appeal 
 ought to be allowed.^" 
 
 ALEXANDER v. TOWN OF NEW CASTLE. 
 
 (Supreme Court of Indiana, 18SS. 115 Ind. 51, 17 N. E. 200.) 
 
 This action was brought by Alexander to recover for personal in- 
 juries sustained by him through the alleged negligence of the defend- 
 ant. The complaint charged that the town allowed an excavation to 
 be made in the side of one of the streets, and negligently suitered this 
 excavation to remain open and uninclosed, whereby the plaintiff, with- 
 out fault on his part, fell into this excavation and was injured. The 
 town answered : First, in denial ; secondly, that the plaintiff had a 
 warrant for the arrest of one Heavenridge, and as special constable 
 was taking Heavenridge to jail, under an order from a justice of 
 the peace, and in doing so attempted to pass the excavation in ques- 
 tion, that when opposite the same Heavenridge seized the plaintiff 
 and threw him into the excavation, whereby he was injured as charged 
 in the complaint, and Heavenridge was enabled to escape.^ ^ 
 
 A demurrer to this answer, on the ground of insufficiency of facts 
 to constitute a defense, was overruled. 
 
 NiBLACK, C. J. (after stating the facts). Complaint is first made 
 of the overruling the demurrer to the second paragraph of the an- 
 swer, and this complaint is based upon the claim that, as the pit or 
 excavation so wrongfully and negligently permitted to remain open 
 and uninclosed afforded Heavenridge the opportunity of throwing the 
 plaintiff into it as a means of escape, it was, in legal contemplation, 
 the proximate cause of the injuries which the plaintiff received. 
 
 However negligent a person, or a corporation, may have been in 
 some particular respect, he, or it, is only liable to those who may have 
 been injured by reason of such negligence, and the negligence must 
 have been the proximate cause of the injury sued for. 
 
 30 The opinion of Vaushan Williams, L. J., with whom Romer and Stirling, 
 L. J J., concurred, is omitted. 
 
 81 The statteiiiont of the case is abridged, and only so much of the opinion 
 is given us relates to the one point.
 
 Ch. 2) THE TESTS OF LEGAL CAUSE 871 
 
 Where some independent agency has intervened and been the irt>- 
 mediate cause of the injury, the party guihy of negligence in the 
 first instance is not responsible. On that subject Wharton, in his 
 work on the Law of Negligence, at section 134, says: "Supposing 
 that if it had not been for the intervention of a responsible third 
 party the defendant's negligence would have produced no damage to 
 the plaintiff, is the defendant liable to the plaintiff"? This question 
 must be answered in the negative, for the general reason that causal 
 connection between negligence and damage is broken by the interposi- 
 tion of independent responsible human action. I am negligent on 
 a particular subject-matter as to which I am not contractually bound. 
 Another person, moving independently, comes in, and either negli- 
 gently or maliciously so acts as to make my negligence injurious to 
 a third person. If so, the person so intervening acts as a non-con- 
 ductor, and insulates my negligence, so that I cannot be sued for the 
 mischief which the person so intervening directly produces. He is 
 the one who is liable to the person injured. I may be liable to him 
 for my negligence in getting him into difficulty, but I am not liable 
 to others for the negligence which he alone was the cause of making 
 operative." 
 
 So, if a house has been negligently set on fire, and the fire has 
 spread beyond its natural limits by means of a new agency ; for ex- 
 ample, if a high wind arose after its ignition, and carried burning 
 brands to a great distance, thus causing a fire and a loss of property 
 at a place which would have been safe but for the wind, the loss so 
 caused by the wind will be set down as a remote consequence, for 
 which the person setting the fire should not be held responsible. 1 
 Thompson, Negligence, 144. * * * ^^ 
 
 Heavenridge was clearly an intervening, as well as an independent, 
 human agency in the infliction of the injuries of which the plaintiff 
 complained. The circuit court, consequently, did not err in overruling 
 the demurrer to the second paragraph of the answer. * * * 
 
 Judgment [for the defendant] affirmed. 
 
 32 JNiblack, C. J., here referred to the following cases, with the remark, 
 "Our cases are in harmony with the general principles herein annonncetl:" 
 Smith V. Thomas (18G4) 2.3 Ind. 69 ; Pennsylvania Co. v. Hensil (18S0) 70 Ind. 
 569, 36 Am. Kep. 188; City of Greencastle v. Martin (1881) 74 Ind. 449, 39 
 Am. Kep. 93; Billman v. Indianapolis, etc.. R. R. Co. (J881) 76 Ind. 166, 40 
 Am. Rep. 230; City of Crawfordsville v. Smith (1881) 79 Ind. .308. 41 Am. Rep. 
 612; Terre Haute, etc., R. R. Co. v. Buck (1884) 96 Ind. .346. 49 Am. Rep. 168; 
 Bloom V. Franklin Life Ins. Co. (1884) 97 Ind. 478, 49 Am. Rep. 469; Pennsyl- 
 vania Co. V. Whitlock (1884) 99 Ind. 16, 50 Am. Rep. 71.
 
 S72 CAUSAL RELATION (Part li 
 
 ANDREWS V. KINSEL. O 
 
 (Supi'eme Court of Georgia, 1901. 114 Ga. 390, 40 S. E. 300, 
 
 88 Am. St. Rep. 25.) 
 
 LiCwrs, J. Andrews & Co. sued Kinsel for $500 damages, making 
 by their petition substantially the following case : The plaintiffs rented 
 from the defendant a storehouse in the city of Columbus, in which 
 they transacted a mercantile business; and it was the duty of the 
 defendant, as the landlord of the plaintiffs, to keep the premises in 
 good repair. The defendant also owned the storehouse adjoining that 
 rented by the plaintiffs, a partition wall dividing the two stores. On 
 a named day the defendant, by his agents and servants, entered his 
 storehouse adjoining the plaintiffs' place of business for the purpose 
 of making certain repairs thereon, and in making the repairs the par- 
 tition between the two storehouses was removed, or partly removed, 
 leaving the store of the plaintiffs exposed and unprotected ; and upon 
 leaving the place at night the defendant's agents and servants negli- 
 gently and carelessly left open two rear windows in the store next 
 to that of the plaintiffs, thereby rendering it easy to effect an en- 
 trance into the plaintiffs' store through the rear windows and the 
 opening in the partition. On the night in question a burglar or 
 burglars did gain entrance to the plaintiff's' store in the manner de- 
 scribed, and steal from the plaintiff's a large quantity of merchandise, 
 to their damage as aforesaid. No notice was given to the plaintiff's 
 that the partition had been removed or that the windows had been 
 left open, and this, also, is alleged to have been negligence. The de- 
 fendant filed a demurrer to the petition, which was overruled, and 
 he also filed an answer, in which he denied liability, and denied that 
 he had been negligent as alleged. The case went to trial, and, at the 
 •conclusion of the evidence for the plaintiffs, the court, on motion of 
 defendant's counsel, granted a nonsuit. To this ruling the plaintiffs 
 excepted, and the defendant filed a cross-bill of exceptions in which 
 he assigned error upon the overruling of his demurrer. 
 
 1. As, in our opinion, the court below should have sustained the 
 demurrer filed by the defendant, and the refusal to do so was reversi- 
 ble, the writ of error issued upon the main bill of exceptions will, 
 under the ruling of this court in Rives v. Rives, 113 Ga. 392, 39 S. 
 E. 79, be dismissed. 
 
 2. It is unnecessary to argue, or to cite authorities to sustain, the 
 well-settled legal principle that, to enable one to recover for damages 
 resulting from the negligent conduct of another, it must appear that 
 the negligence of the defendant was the proximate cause of the in- 
 jury sustained. It is also a well-recognized principle that where 
 there has interv^ened between the defendant's negligent act and the 
 injury an independent illegal act of a third person, producing the 
 injury, and without which it would not have happened, the latter is
 
 Ch. 2) THE TESTS OF LEGAL CAUSE 873 
 
 properly held the proximate cause of the injury, and the defendant 
 is excused. 8 Am. & Eng. Enc. Law (2d Ed.) 580. As is stated 
 in 1 Shear. & R. Xeg. (5th Ed.) § 25, "The defendant's negligence 
 may put a temptation in the way of another pe'-son to commit a 
 wrongful act by which the plaintiff is injured, and yet the defend- 
 ant's negligence may be in no sense a cause of the injury." Thus, in 
 Tennessee, a defendant was held not liable for the negligent failure 
 to keep a night watch on guard over the property of the plaintiff, as 
 a result of which an incendiary set fire to the property. State v. 
 Ward, 9 Heisk. 133. In New York it is held that the relation of 
 cause and eft'ect between the negligence of the defendant and the 
 injury to the plaintiff' cannot be made out by including the independ- 
 ent illegal acts of third persons, and that the defendant cannot be 
 made accountable for the unauthorized illegal acts of other persons, 
 although his own conduct may have indirectly induced or incited the 
 commission of the acts. Olmsted v. Brown, 12 Barb. 662. And in 
 Grain v. Petrie, 6 Hill, 524, 41 Am. Dec. 765, the following language 
 is used : "To maintain a claim for special damages, they must appear 
 to be the legal and natural consequences arising from the tort, and 
 not from the wrongful act of a third party remotely induced thereby." 
 See, also, Shugart v. Egan, 83 111. 56, 25 Am. Rep. 359; Bo^worth 
 V. Brand. 1 Dana (Ky.) 377 : Carpenter v. Railroad Co., 13 App. 
 Div. 328, 43 N. Y. Supp. 203. 
 
 This principle is also well established in Georgia by the cases of 
 Belding v. Johnson, 86 Ga. 177, 12 S. E. 304, 11 L. R. A. 53, and 
 Henderson v. Coal Co., 100 Ga. 568, 28 S. E. 251, 40 L. R. A. 95. 
 In the former case it was held that a widow could not recover dam- 
 ages of a barkeeper for the homicide of her husband, who was killed 
 in an encounter with a third person; the quarrel leading up to the 
 encounter having been the result of intoxication produced by liquor 
 illegally sold to the slayer of plaintiff's husband by the barkeeper. 
 In the Henderson Case the lessee of a convict was held not liable for 
 the criminal act of the convict, by which a third party suffered dam- 
 age, although the lessee negligently placed it in the power of the con- 
 vict to commit the crime. These cases, it will be seen, are closely in 
 point. The rule is aptly and rather quaintly stated in Whart. Neg. 
 (2d Ed.) § 134, in the following language: "I am negligent on a par- 
 ticular subject-matter as to which I am not contractually bound. An- 
 other person, moving independently, comes in and either negligently 
 or maliciously so acts as to make my negligence injurious to a third 
 person. If so, the person so intervening acts as a nonconductor, and 
 insulates my negligence, so that I cannot be sued for the mischief 
 which the person so intervening directly produces." 
 
 Applying these principles to the case now before us, it is manifest 
 that the plaintiffs did not make out a cause of action by their petition. 
 Granting as true all of their allegations as to the negligence of the
 
 874 CAUSAL RELATION (Part 2 
 
 defendant, it is also true, upon the face of their pleadings, that there 
 intervened as a direct cause between the negHgence of the defendant 
 and the damage sustained by themselves the independent criminal act 
 of a responsible human agency. The demurrer to the petition should 
 have been sustained. 
 
 Writ of error on main bill of exceptions dismissed. Judgment on 
 cross bill reversed. All the justices concurring. 
 
 WATSON V. KENTUCKY & INDIANA BRIDGE & R. CO. et al. 
 
 (Court of Appeals of Kentucky, 1910. 137 Ky. 619, 126 S. W. 146.) 
 
 Settle, J. This action was instituted by the appellant, John Wat- 
 son, in the court below against the appellees, Kentucky & Indiana 
 Bridge & Railroad Company, hereinafter called the Bridge & Rail- 
 road Company, the Southern Railway Company, the Southern Rail- 
 way Company in Kentucky, and the Union Tank Line Company, to 
 recover $20,000 damages for injuries sustained to his person on the 
 night of June 14, 1907, from an explosion of gas caused, as alleged, 
 by the negligence of the appellees. It was, in substance, alleged in 
 the petition as amended — 
 
 that wliile a tank car, owned by the appellee Union Tank Line Company, 
 and tilled with a highly explosiA^e substance known as gasoline, was being 
 transported through a populous section of the city of Louisville over the 
 roadbed of the appellee Bridge & Railroad Company, it was derailed and 
 its valve broken, thereby causing all the gasoline to escape and flow in large 
 quantities on the street and into the gutters; that from the gasoline thus 
 flowing and standing in jwols upon the street and gutters ttiere arose and 
 spread over the neighborhood of the place of derailment and into the houses of 
 the residents thereof, great quantities of highly explosive and combustible 
 gas which, three hours after the derailment of the tank car, exploded witli 
 force from contact with a lighted match thrown on the street by one Chas. 
 Duerr, who claimed to have used it in igniting a cigar; that the explosion 
 threw appellant from his bed and almost demolished his hoiise, from the ruins 
 of which he was taken unconscious and bleeding with a fractured jaw and 
 one cheek nearly torn from his face. It was further charged in the petition 
 that the explosion and appellant's consequent injuries resulted from the neg- 
 ligence of all the appellees ; the negligence of the I 'uion Tank Line Com- 
 jiany lying, as alleged, in its failure to provide the tank car with proper 
 trucks and main valve; that of the Bridge & Railroad Company in failing to 
 maintain in a safe condition the roadbed and track at the point of derail- 
 ment; in permitting the tank car to remain at the place of derailment in its 
 wrecked condition an unreasonable time, and in allowing i.gnorant and careless 
 meddling on the part of their servants with the main valve of the tank after 
 it was !)roken, whereby the flow of the gasoline from the tank was increased 
 instead of diminished. 
 
 All the material averments of the petition were specifically denied 
 by the answer of the appellees. 
 
 As on the trial the proof failed to show that either the Southern 
 Railway Company, or the Southern Railway Company in Kentucky, 
 was charged with the duty of maintaining the roadbed or tracks at 
 the place of derailment or that they had handled or had anything to
 
 Ch.2) THE TESTS OF LEGAL CAUSE 875 
 
 do with the tank car in question, appellant, at the conclusion of all 
 the evidence, dismissed the action without prejudice as to those two 
 appellees. At the conclusion of appellant's evidence, the appellees 
 Bridge & Railroad Company and Union Tank Line Company moved 
 the court peremptorily to instruct the jury to find for them. The mo- 
 tion was overruled, but being renewed by appellees after the intro- 
 duction of all the evidence, it was sustained, and the jury, in obedi- 
 ence to the peremptory instruction then given by the court, returned 
 a verdict in behalf of appellees, upon which judgment was entered 
 in their favor for costs. Appellant, being dissatisfied with that judg- 
 ment and the refusal of the Circuit Court to grant him a new trial, 
 has appealed. * * * 
 
 The lighting of the match by Duerr having resulted in the explo- 
 sion, the question is, was that act merely a contributing cause, or 
 the efficient and, therefore, proximate cause of appellant's injuries? 
 The question of proximate cause is a question for the jury. In hold- 
 ing that Duerr in lighting or throwing the match acted maliciously 
 or with intent to cause the explosion, the trial court invaded the prov- 
 ince of the jury. There was, it is true, evidence tending to prove 
 that the act was wanton or malicious, but also evidence conducing to 
 prove that it was inadvertently or negligently done by Duerr. It 
 was therefore for the jury and not the court to determine from all 
 the evidence whether the lighting of the match was done by Duerr 
 inadvertently or negligently, or whether it was a wanton and malicious 
 act. As said in Alilwaukee Railroad Co. v. Kellogg, 94 U. S. 469, 
 24 L. Ed. 256: "The true rule is that what is the proximate cause 
 of the injury is ordinarily a question for the jury. It is not a ques- 
 tion of science or legal knowledge. It is to be determined as a fact 
 in view of the circumstances of fact attending it." Sydnor v. Arnold, 
 
 122 Ky. 557, 92 S. W. 289, 28 Ky. Law Rep. 1252. In Thompson 
 on Negligence, § 161, it is said: "On principle, the rule must be 
 here, as in other cases, that, before the judge can take the question 
 away from the jury and determine it himself, the facts must not only 
 be undisputed, but the inference to be drawn from those facts must 
 be such that fair-minded men ought not to differ about them. It 
 must be concluded that this is so, when it is considered that proxi- 
 mate cause is a cause which would probably, according to the experi- 
 ence of mankind, lead to the event which happened, and that remote 
 cause is a cause which would not, according to such experience, lead 
 to such an event. Now, whether a given cause will probably lead to 
 a given result is plainly to be determined by the average experience 
 of mankind; that is, by a jury rather than by a legal scholar on the 
 bench." 
 
 No better statement of the law of proximate cause can be given 
 than is found in 21 Am. & Eng. Ency. of Law (2d Ed.) 490, quoted 
 with approval in Louisville Home Telephone Company v. Gasper, 
 
 123 Ky. 128, 93 S. W. 1057, 29 Ky. Law Rep. 578, 9 L. R. A. (N.
 
 876 CAUSAL RELATION (Part 2 
 
 S.) 548: "It is well settled that the mere fact that there have been 
 intervening causes between the defendant's negligence and the plain- 
 lift's injuries is not sufticient in law to relieve the former from lia- 
 bility; that is to say, the plaintiil's injuries may yet be natural and 
 proximate in law, although between the defendant's negligence and 
 the injuries other causes or conditions, or agencies, may have op- 
 erated, and, when this is the case, the defendant is liable. So the 
 defendant is clearly responsible where the intervening causes, acts, 
 or conditions were set in motion by his earlier negligence, or nat- 
 urally induced by such wrongful act or omission, or even, it is gen- 
 erally held, if the intervening acts or conditions were of a nature the 
 happening of which was reasonably to have been anticipated, though 
 they may have been acts of the plaintift' himself. An act or omission 
 may yet be negligent and of a nature to charge a defendant with 
 liability, although no injuries would have been sustained but for some 
 intervening cause, if the occurrence of the latter might have been 
 anticipated. * * * ^ proximate cause is that cause which nat- 
 urally led to and which might have been expected to produce the 
 result. * * * Xhe connection of cause and eft'ect must be estab- 
 lished. It is also a principle well settled that when an injury is 
 caused by two causes concurring to produce the result, for one of 
 which the defendant is responsible, and not for the other, the defend- 
 ant cannot escape responsibility. One is liable for an injury caused 
 by the concurring negligence of himself and another to the same 
 extent as for one caused entirely by his own negligence." Black's 
 Law & Practice, §21; Thompson on Negligence, §§ 47-52; Whit- 
 aker's Smith on Negligence, 27; 29 Cyc. 488-502. 
 
 If the presence on Madison street in the city of Louisville of the 
 great volume of loose gas that arose from the escaping gasoline was 
 caused by the negligence of the appellee Bridge & Railroad Company, 
 it seems to us that the probable consequences of its coming in con- 
 tact with fire and causing an explosion was too plain a proposition to 
 admit of doubt. Indeed, it was most probable that some one would 
 strike a match to light a cigar or for other purposes in the midst of 
 the gas. In our opinion, therefore, the act of one lighting and throw- 
 ing a match under such circumstances cannot be said to be the efficient 
 cause of the explosion. It did not of itself produce the explosion, 
 nor could it have done so without the assistance and contribution re- 
 sulting from the primary negligence, if there was such negligence, 
 on the part of the appellee Bridge & Railroad Company in furnish- 
 ing the presence of the gas in the street. This conclusion, however, 
 rests upon the theory that Duerr inadvertently or negligently lighted 
 and threw the match in the gas. This view of the case is sustained 
 by the following leading cases, all decided by this court : Sydnor v. 
 Arnold, 122 Ky. 557, 92 S. W. 289, 28 Ky. Law Rep. 1252; Louis- 
 ville Gas Co. V. Gutenkuntz, 82 Ky. 432; Whitman-McNamara To- 
 bacco Co. V. Warren, 66 S. W. 609, 2Z Ky. Law Rep. 2120; Louis-
 
 Ch. 2) THE TESTS OF LEGAL CAUSE 877 
 
 ville Home Telephone Co. v. Gasper, 123 Ky. 128, 93 S. W. 1057, 
 29 Ky. Law Rep. 578, 9 L. R. A. (N. S.) 548. The cases supra 
 are, indeed, in point of fact and principle so analogous to the case 
 under consideration as to completely control its determination, and 
 to render further discussion of it unnecessary. 
 
 If, however, the act of Duerr in lighting the match and throwing 
 it into the vapor or gas arising from the gasoline was malicious, and 
 done for the purpose of causing the explosion, we do not think ap- 
 pellees would be responsible, for while the appellee Bridge & Rail- 
 road Company's negligence may have been the efficient cause of the 
 presence of the gas in the street, and it should have understood 
 enough of the consequences thereof to have foreseen that an explo- 
 sion was likely to result from the inadvertent or negligent lighting 
 of a match by some person who was ignorant of the presence of the 
 gas or of the eftect of lighting or throwing a match in it, it could 
 not have foreseen or deemed it probable that one would maliciously 
 or wantonly do such an act for the evil purpose of producing the 
 explosion. Therefore, if the act of Duerr was malicious, we quite 
 agree with the trial court that it was one which the appellees could 
 not reasonably have anticipated or guarded against, and in such case 
 the act of Duerr, and not the primary negligence of the appellee 
 Bridge & Railroad Company, in any of the particulars charged, was 
 the efficient or proximate cause of appellant's injuries. The mere fact 
 that the concurrent cause or intervening act was unforeseen will not 
 relieve the defendant guilty of the primary negligence from liability, 
 but if the intervening agency is something so unexpected or extraordi- 
 nary as that he could not or ought not to have anticipated it, he will 
 not be liable, and certainly he is not bound to anticipate the criminal 
 acts of others by which damage is inflicted and hence is not liable 
 therefor. 29 Cvc. 501-512; Sofield v. Sommers, 9 Ben. 526, 22 Fed. 
 Cas. 769, Cas. No. 13,157; Andrews v. Kinsel, 114 Ga. 390, 40 S. 
 E. 300, 88 Am. St. Rep. 25. * * * 
 
 For the reasons indicated, the judgment is affirmed as to the Union 
 Tank Line Company, but reversed as to the Bridge & Railroad Com- 
 pany, and cause remanded for a new trial consistent with the opin- 
 ion. ^^ 
 
 RICKARDS v. LOTHL^N. ^ 
 
 (Judicial Committee of the Privy Council. [1913] App. Cas. 2a3.) 
 Appeal from an order of the High Court of Australia (May 22. 
 1911), reversing a judgment of the Supreme Court of Victoria (Au- 
 gust 7, 1910), and restoring a judgment of the County Court at Mel- 
 bourne (April 29, 1910).=^* 
 
 33 Parts of the opinion are omitted. 
 
 3 4 The statement of the case is abridged, and the arguments of counsel and 
 parts of the opinion are omitted.
 
 878 CAUSAL RELATION (Part 2 
 
 The judgment of their Lordships was delivered by 
 
 Lord Moulton. The appellants in this case are the personal rep- 
 resentatives of Harry Rickards, who was the defendant in an action 
 for damages brought by the respondent against him in the Melbourne 
 County Court for damages occasioned to the stock in trade of the 
 plaintiff, who was the tenant of the second floor of certain premises 
 belonging to the defendant, by an overflow from a lavatory basin 
 situated on an upper floor of the same premises. Though the sum 
 involved is not large, the legal questions raised by the case are of 
 considerable importance, and the litigation has been characterized by 
 remarkable differences of judicial opinion upon them. Upon the 
 findings of the jury, the judge at the trial directed judgment to be 
 entered for the plaintiff for £156, the amount of the damages found 
 by the jury. On appeal to the Supreme Court of Victoria that judg- 
 ment was set aside and judgment entered for the defendant, in ac- 
 cordance with the views of a majority of that Court. This decision 
 was reversed on appeal by the High Court of Australia in accordance 
 with the views of a majority of that Court, and the present appeal is 
 brought by leave from that decision of the High Court of Australia. 
 The circumstances out of which the action arose were as follows : 
 
 The defendant was the lessee under a long building lease of a 
 building in Melbourne used for business purposes, and the plaintiff 
 was tenant under him of part of the second floor of such building. 
 On the fourth floor there was a room used as a men's lavatory in 
 which was fixed a wash-hand basin supplied with water by a screw-down 
 tap situated immediately over it and connected by a pipe with the 
 mains of the Metropolitan Water Supply System. The basin had 
 the usual arrangements for getting rid of the water, namely, a vent- 
 hole provided with a plug at the bottom of the basin and holes situated 
 near its upper edge to act as an overflow. Through these holes the 
 overflowing water passed down a pipe which connected with the 
 wastepipe from the hole at the bottom of the basin, some little distance 
 below its upper end. It was common ground that the basin and fit- 
 tings above described were of ordinary construction and such as are 
 in common use, and it was proved that on their erection they had 
 been inspected and passed by the officials of the Metropolitan Board 
 of Works in the regular way. The lavatory was intended for the 
 use of the tenants of the upper floors and persons in their employment. 
 
 The defendant employed one Smith as a caretaker of the building, 
 and part of his business was to see that the lavatory was in good work- 
 ing order. On August 18, 1909, he was on duty until 10:20 p. m. He 
 gave evidence that at that hour he went to the lavatory and found it 
 in proper order. On the plaintiff arrWing on the premises the fol- 
 lowing morning he found that his stock in trade there (which consisted 
 mainly of school-books) was seriously damaged by water, and on 
 examination it was discovered that the water tap of the basin had been
 
 Ch. 2) THE TESTS OF LEGAL CAUSE 879 
 
 turned full on and the waste-pipe plugged so that there had been 
 an overflow from the basin to the extent of the full supply which the 
 tap was capable of giving, and that this overflow had flooded the rooms 
 below. There was no direct evidence as to the length of time that the 
 water had been running in this way, but the extent of the overflow was 
 so great that it seems to have been accepted by all parties at the trial 
 that it must have continued for some hours. It was for the damage 
 thus caused to the plaintiff's stock in trade that the action was brought. 
 
 On examining the basin it was found that the waste-pipe had been 
 plugged up with various articles, such as nails, penholders, string, 
 and soap, and that the obstruction was situated so far down the pipe 
 that it covered its junction with the waste-pipe from the overflow 
 holes. It therefore blocked both waste-pipes. The manner in which 
 the plugging v/as effected furnished strong evidence that it had been 
 intentionally done ; indeed, the materials had been so tightly rammed 
 together that it was difficult to clear the pipe. For the purposes of 
 the trial the capacity of the waste-pipes for carrying off the water 
 which the tap was capable of supplying was tested after the pipe had 
 been cleared. It was found that at the ordinary pressure of the system 
 during the daytime the waste-pipes were able to carry off all the water 
 which the tap could supply even when fully open, but that during the 
 night the pressure rose somewhat and that at the night pressure the 
 waste-pipes were not sufficient to take off the whole of the water 
 which the tap could supply. The plaintiff gave no evidence to shew 
 what fraction of the water which the tap was capable of so supplying 
 during the night would fail to pass away by the waste-pipes if they 
 were clear and unobstructed, but it would seem probable that the 
 amount of the overflow in such circumstances would only be a com- 
 paratively small fraction of the water issuing out of the tap and that 
 the major portion would pass off by the waste-pipes. 
 
 In his plaint the plaintiff claimed to recover the damage done to his 
 stock in trade as injury caused by water through the carelessness of 
 the defendant, his servants or agents, in the construction, maintenance, 
 management, and control of the lavatory basin and its pipes, &c., and 
 alternatively as injury arising from a breach by the defendant of an 
 implied covenant for quiet enjoyment. At the trial he was permitted 
 to add a third alternative whereby he claimed to recover such damage 
 as injury caused by the defendant wrongfully permitting large quanti- 
 ties of water to escape from the said basin and to flow into the prem- 
 ises occupied by the plaintiff. By his defence the defendant denied 
 the allegations of negligence, covenant, and duty, and further denied 
 that if any such covenant existed there had been any breach of it. 
 
 At the trial evidence was called on both sides and the above facts 
 were proved. The claim upon implied covenant was obviously unsus- 
 tainable and was apparently abandoned. The substantial case sought 
 to be made on behalf of the plaintiff was twofold — first, that Smith
 
 880 CAUSAL RELATION (Part 2 
 
 (for whose actions the defendant was responsible) was guilty of neg- 
 ligence in leaving the tap turned on and in omitting to discover that 
 the waste-pipe was choked ; and, secondly, that the defendant was 
 guilty of negligence in not placing a lead safe with an outlet pipe on 
 the floor of the lavatory underneath the basin. Smith was called as 
 witness on behalf of the defendant and gave evidence that the basin 
 was in proper condition when he left it on the evening before, and 
 the tap turned off, and, as will presently be seen, the jury accepted his 
 evidence. With regard to the second point, namely, whether it was 
 necessary or usual to put a lead safe in such a lavatory, the evidence 
 was very conflicting,' the views of the various expert witnesses called 
 for the parties dift'ering widely. 
 
 The learned judge summed up very carefully and at considerable 
 length, calling the attention of the jury to the whole of the evidence 
 given. In the course of his summing up he directed them that "if 
 this" (i. e., the plugging up) "were a deliberately mischievous act of 
 some outsider, unless it were instigated by the defendant himself, 
 the defendant would not be responsible. He would not be responsible 
 for a malicious act under those circumstances, because he could not 
 guard against malice." This direction was in substance repeated in 
 that part of the summing up which dealt with the question of the neces- 
 sity of placing a lead safe in the lavatory. Referring to the conten- 
 tion of the defendant that the damage was caused not by the absence 
 of a safe but by deliberate mischief, he said: "If it was, then the de- 
 fendant would not be responsible because the person who deliberately 
 tried to flood the place could overcome the precautions. He could stop 
 the plug of the basin, he could stop the overflow, and could very 
 easily stop the escape from the lead floors. Nobody is expected to 
 guard against deliberate malice or mischief." 
 
 At the end of the summing up the judge handed the following writ- 
 ten paper to the jury: 
 
 "Questions for the jury. To be taken in reference to the evidence and the 
 judge's direction. 
 
 '•(1) Was the defendant, or any of his servants or agents guilty of ne.i^li- 
 genceV (a) In not providing a reasonalily suOieient escape for water in case 
 of an overflow resulting from accident or negligence having regard to tlie 
 nature of the use of the rooms beneath? (b) In leaving the tap turned on 
 on the night of the 18th August. 1909, or in omitting to discover on that night 
 that the waste-pipe was choked? 
 
 "(2) Was such negligence Uf any) the cause of the injury to the plaintiff's 
 goods? 
 
 "(3) Damages in any case?" 
 
 And the jury returned the following written answers: 
 
 "(1) Yes. (a) We are of opinion that a lead safe was necessary on the floor 
 of this particular lavatory, and that same would minimize risk, (b) Xo. We 
 believe the evidence of Smith (caretaker), who asserts that the lavatory was 
 in thorough order when he ceased duties. 
 
 "(2) Yes, it was. 
 
 "('■'<) We assess the damage done to Lothian's property at £1.50. 
 
 "We are of opinion that this was the malicious act of some person."
 
 Ch. 2) THE TESTS OF LEGAL CAUSE 881 
 
 * * * These questions were not happily framed. For example 
 the word "negligence" in 1 (a) is used twice, and evidently refers to 
 two different things in the two places where it occurs. In the earlier 
 part of the question it must refer to negligence in the construction 
 of the apparatus, but in the latter part it must refer to negligence in 
 user. But this is not the most serious defect in these questions. There 
 is also a fatal omission. The judge had directed the jury that if the 
 act was malicious the defendant w'ould not be liable unless he instigat- 
 ed it, which was not even suggested. Yet this issue was not put to 
 them, nor, indeed, was any question asked bearing upon it. It is 
 evident that this omission puzzled the jury. The course they took was, 
 on the whole, one directed by common sense. They found a verdict 
 upon that vital issue, although it had not been separately left to them, 
 and they then proceeded to answer the questions specifically put to 
 them. As their language shews, these questions related solely to the 
 issue of negligence — the first asking as to its existence, the second 
 as to the damage being a consequence of it, and the third as to the 
 amount of that damage. It is difficult to understand the answer of the 
 jury to the second question, in view of the finding that the act was 
 malicious, because if the act was malicious the negligence in not provid- 
 ing the lead safe could not be legally speaking, the cause of the dam- 
 age. But there can be no doubt of the meaning of the finding as to 
 the act having been malicious, and therefore their Lordships con- 
 sider that the only reasonable interpretation to be put upon the answer 
 to the second question is that the jury thought that the negligence in 
 omitting to provide a lead safe was physically the cause of the damage 
 in the sense that the provision of a lead safe would have prevented 
 the damage if the overflow had been due to negligence or accident. 
 
 Their Lordships are of opinion that there was abundant evidence 
 to support the finding of the jury that the plugging of the pipes was 
 the malicious act of some person and indeed it is difficult to see how 
 upon the evidence any other conclusion could reasonably have been 
 arrived at. The answers to the question 1 (a) and (b) were also an- 
 swers which the jury were competent to give upon the evidence, and 
 no objection can be taken to them. * * * They found that it was 
 negligent to omit to provide a lead safe on the floor of this particular 
 lavatory. Their Lordships are satisfied that a finding so express and 
 so carefully limited cannot be impugned. 
 
 It is clear that on these findings the plaintiff did not make good his 
 claim as a claim in an ordinary action of negligence. To sustain such 
 a cause of action it must be shewn that the negligence is the proximate 
 cause of the damage. The proximate cause of the damage here was 
 the malicious act of a third person. The only negligence which the 
 jury found in this case was the omission to provide against accident 
 by placing a lead safe under the lavatory. Such automatic devices 
 are security against accident or negligent user, but they are inoperative 
 Hepb . TOBTS — 56
 
 882 CAUSAL RELATION (Part 2 
 
 against intentional and mischievous acts. The person who did the 
 maHcious act in this case was obHged to do three distinct things to 
 secure the success of his plan, namely, to open the screw tap to its 
 utmost limit, to block the waste-pipe from the bottom of the basin, 
 and to block the waste-pipe from the overflow holes. It cannot be 
 doubted that the presence of a lead safe would have formed no 
 obstacle to his plan, because the outlet from that safe could have 
 been blocked up as easily as the two waste-pipes. The arguments on 
 behalf of the plaintiff in the Courts of Appeal were therefore mainly 
 directed to bringing the case under one of two other well-known types 
 of action, namely : 
 
 (1) It was contended that the defendant ought to have foreseen the 
 probability of such a malicious act and to have taken precautions 
 against it, and that he was liable in damages for not having done so. 
 
 i(2) It was contended that the defendant was liable apart from neg- 
 ligence on the principles which are usually associated with the well- 
 known case of Fletcher v. Rylands, L. R. 1 Ex. 265, and L. R. 3 H. 
 L. 330. 
 
 In the argument on the first of these points, Lynch v. Nurdin (1841) 
 1 Q. B. 29, Cooke v. Midland Great Western Railway of Ireland, 
 [1909] A. C. 229, and other decisions of the same type were relied 
 upon. There is, however, a short and conclusive answer to this con- 
 tention. To make good such a cause of action the plaintiff must shew 
 that the defendant ought to have reasonably anticipated the likelihood 
 of a deliberate choking of the pipe so that it became his duty to take 
 precautions to prevent such an act causing damage to others. This 
 is an issue of fact in which the burden is upon the plaintiff, and he 
 has obtained no finding from the jury in support of it. It is perhaps 
 irrelevant to consider who is responsible for this omission, because 
 it is for the plaintiff to see that the questions necessary to enable him 
 to support his case are asked of the jury. But in this case the defend- 
 ant specifically requested the judge to put the question whether the de- 
 fendant ought reasonably to have anticipated the deliberate choking 
 of the pipe, and the plaintiff's counsel did not support the request, but 
 accepted the questions framed by the judge. The absence of this 
 finding is fatal to this part of the plaintiff's case, and it is not neces- 
 sary, therefore, to inquire into it further. But it must be pointed out 
 that there was no evidence which could have supported such a find- 
 ing, and moreover, that the only duty incumbent upon the defendant 
 in such a case would have been to take reasonable precautions to pre- 
 vent such an act causing damage, and throughout the whole of the 
 case there was no suggestion of any precaution which would have 
 had that effect; nor was there any finding by the jury that the defend- 
 ant had in this respect omitted to do anything which he should have 
 done. The only omission found against him was of something wholly 
 irrelevant from this point of view. It is impossible, therefore, to sup-
 
 Ch. 2) ^ THE TESTS OF LEGAL CAUSE 883 
 
 port the plaintiff's claim so far as it is based upon the legal principles 
 illustrated by the above class of cases. * * * ^^ 
 
 On the above grounds their Lordships are of opinion that the di- 
 rection of the learned judge at the trial to the effect that "if the 
 plugging up were a deliberately mischievous act by some outsider un- 
 less it were instigated by the defendant himself, the defendant would 
 not be responsible," was correct in law, and that upon the finding 
 of the jury that the plugging up was the malicious act of some person 
 the judge ought to have directed the judgment to be entered for the 
 defendant. 
 
 The appeal must therefore be allowed and judgment entered for the 
 defendant in the action with costs in all the Courts, and the plaintiff 
 must pay the costs of this appeal and their Lordships will humbly 
 advise His Majesty accordingly. ^ 
 
 SECTION 4.— CO-OPERATIVE AGENCIES AND LEGAL 
 
 CAUSE 
 
 COREY V. HAVENER. 
 
 SAME V. ADAMS. 
 (Supreme Judicial Court of Massachusetts, 1902. 182 Mass. 250, 65 N. E. 69.) 
 
 Corey brought two actions of tort against different defendants for 
 injuries to the plaintiff caused by the alleged negligence of both de- 
 fendants, each operating a separate gasoline motor tricycle at an 
 illegal and dangerous rate of speed and thus causing the horse which 
 plaintiff was driving to take fright, so that plaintiff lost control of 
 the horse and was injured in consequence. 
 
 At the time of the accident causing the injuries complained of, the 
 plaintiff was driving slowly along a public street in Worcester. The 
 defendants came up from behind, on motor tricycles, which emitted 
 smoke and made a loud noise, frightening the plaintiff's horse. The 
 defendants passed at a high rate of speed, one on each side of the 
 plaintiff's wagon. 
 
 The two cases were tried together. On cross-examination the plain- 
 tiff and each of his witnesses were asked if he could tell which defend- 
 ant or which motor cycle caused the plaintiff's horse to talce fright, 
 and each witness was unable to tell. 
 
 35 Lord Moulton here reviewed the facts and the decision of Fletcher v. 
 Itylands (1866) L. R. 1 lOx. 265, and (1868) L. R. 3 H. L. ;«0, and held that its prin- 
 ciple did not apply in the present; case. For this part of the judgment see 
 ante, p. 795.
 
 884 CAUSAL RELATION (Part 2 
 
 The defendants requested the judge to instruct the jury that tlie 
 evidence showing that they were on two separate vehicles entirely 
 independent of each other, and there being two different suits for 
 the same injury, the burden was on the plaintiff to show which one, 
 if either, v\'as to blame; and that if it was not clearly shown which 
 one of the defendants caused the accident, the plaintiff could not 
 recover. This instruction the judge refused to give. 
 
 The jury found for the plaintiff in each case, and in each assessed 
 the damages at $700. The defendants alleged exceptions. 
 
 LaThrop, J, * * * fi-jg verdict of the jury has established the 
 fact that both of the defendants were wrongdoers. It makes no dif- 
 ference that there was no concert between them, or that it is impossible 
 to determine what portion of the injury was caused by each. If each 
 contributed to the injury, that is enough to bind both. Whether each 
 contributed was a question for the jury. Railroad Co. v. Shanly, 
 107 Mass. 568, 578, and cases cited. 
 
 It makes no difference that the defendants were sued severally, 
 and not jointly. If two or more wrongdoers contribute to the injury, 
 they may be sued either jointly or severally. McAvoy v. Wright, 137 
 Mass. 207. The first request for instructions was, therefore, rightly 
 refused. 
 
 Nor was there any error in refusing to give the second request. If 
 both defendants contributed to the accident, the jury could not single 
 out one as the person to blame. There being two actions, the plaintiff 
 was entitled to judgment against each for the full amount. There 
 is no injustice in this, for a satisfaction of one judgment is all that 
 the plaintiff is entitled to. Elliott v. Hayden, 104 Mass. 180; Savage 
 v. Stevens, 128 Mass. 254; Luce v. Dexter, 135 Mass. 23, 26; Mc- 
 Avov V. Wright, 137 Mass. 207; Galvin v. Parker, 154 Mass. 346, 
 28 N. E. 244; Worcester Co. v. Ashworth, 160 Mass. 186, 189, 35 
 N. E. 773. 
 
 Exceptions overruled. 
 
 38 
 
 SALISBURY et al. v. PIERCHENRODER. 
 
 (Supreme Judicial Court of Massachusetts, 1871. 106 Mass. 458, 
 
 8 Am. Rep. ;]54.) 
 
 Tort for injuries to a building owned and occupied by the plaintiffs 
 on the north side of Avon Street in I'oston. The parties stated the 
 following case for the judgment of the superior court: 
 
 Tlie defendant was lessee and occupant of an adjoining building on the 
 same street, and susi)ended what was called a banner-sign, bearing his name 
 urK)n the banner, across the street, uixni a wire i*oi)e, one end of which was 
 fastened by an iron bolt to his l)uikling, and the other end in like manner to 
 a building on tlie south side of the street The sign was made of net-work 
 
 3u Tlie statement of tlie case is abridged, and part of the opinion is omitted.
 
 Ch. 2) THE TESTS OF LEGAL CAUSE 885 
 
 tor tlie purpose of diminishing its resistance of the wind, and due care was 
 used in it's construction and fastening. Tlie lowest part of it was at least 
 twenty feet above the pavement of the street; and it did not interfere with 
 the ordinary enjoyment of the neighl)orinj? estates: hut it was hung there in 
 violation of an ordinance of the city of Boston, which rendered the defend- 
 ant liable to a penalty for each day during which it remained suspended. On 
 iSeptember S, 1809, in what was connnonly known as the "great gale" of that 
 year, which was a gale of extraordinary violence, the wind blew the sign 
 away, and the movement of the sign, which remained attached to the roi)e, 
 jerked the iron holt out of the building on the south side of the street, and 
 hurled it aci'oss the street and through the glass of a window in the plain- 
 tiffs' building, thus doing the injuries for which they souglit to recover. The 
 plaintiffs' window was properly constructed, and they were in no way charge- 
 able with negligence. 
 
 Chapman, C. J. If the defendant's sign had been rightfully placed 
 where it was, the qtiestion would have been presented whether he had 
 used reasonable care in securing it. If he had done so, the injury 
 would have been caused, without his fault, by the extraordinary and 
 unusual gale of wind which hurled it across the street and against the 
 plaintiffs' window. The party injured has no remedy for an injury of 
 this character, because it is produced by the vis major. For example, 
 a chimney or roof, properly constructed and secured with reasonable 
 care, may be blown off by an extraordinary gale, and injure a neigh- 
 boring building; but this is no ground of action. 
 
 But the defendant's sign was suspended over the street in violation^ 
 of a pttblic ordinance of the city of Boston, by which he was subject 
 to a penalty. Laws & Ordinances of Boston (ed. 1863), 712. He 
 placed and kept it there illegally, and this illegal act of his has con- 
 tributed to the plaintiffs' injury. The gale would not of itself have 
 caused the injury, if the defendant had not wrongfully placed this 
 substance in its way. 
 
 It is contended that the act of the defendant was a remote, and not 
 a proximate cause of the injury. But it cannot be regarded as less 
 proximate than if the defendant had placed the sign there while the 
 gale was blowing ; for he kept it there till it was blown away. In 
 this respect it is like the case of Dickinson v. Boyle, 17 Pick. 78, 
 28 Am. Dec. 281. The defendant had wrongfully placed a dam across 
 a stream on the plaintiff's land, and allowed it to remain there; and 
 a freshet came and swept it away ; and the defendant was held liable 
 for the consequential damage. It is also, in this respect, like the 
 placing of a spout, by means of which the rain that subsequently falls 
 is carried upon the plaintiff's land. The act of placing the spout does 
 not alone cause the injury. The action of the water must intervene, 
 and this may be a considerable time afterwards. Yet the placing of 
 the spout is regarded as the proximate cause. So the force of gravi- 
 tation brings down a heavy substance, yet a person who carelessly 
 places a heavy substance where this force will bring it upon another's 
 head does the act which proximately causes the injury produced by it. 
 The fact that a natural cause contributes to produce an injury, which 
 could not have happened without the unlawful act of the defendant,
 
 886 CAUSAL RELATION (Part 2 
 
 does not make the act so remote as to excuse him. The case of 
 Dickinson v. Boyle rests upon this principle. See, also, Woodward 
 V. Aborn, 35 Me. 271, 58 Am. Dec. 699, where the defendant wrong- 
 fully placed a deleterious substance near the plaintiffs' well, and an 
 extraordinary freshet caused it to spoil the water; also Barnard v. 
 Poor, 21 Pick. 378, where the plaintiffs' property was consumed by 
 a fire carelessly set by the defendant on an adjoining lot; also Pitts- 
 burgh City V. Grier, 22 Pa, 54, 60 Am. Dec. 65 ; Scott v. Hunter, 
 46 Pa. 192, 84 Am. Dec. 542; Polack v. Pioche, 35 Cal. 416, 423, 95 
 Am. Dec. 115. 
 
 Judgment for the plaintiff's affirmed. 
 
 DAVIS V. GARRETT. 
 (Court of Common Pleas, 1830. 6 Bing. 716, 130 Reprint, 1456, 31 R. R. 524.) 
 
 The plaintiff delivered to the defendant on board his barge 114 
 tons of lime to be conveyed from the Medway to London. The 
 master of the barge deviated unnecessarily from the usual course. 
 Afterwards, and while the barge was thus out of her course, a tempest 
 wetted the lime, and the barge took fire in consequence. The master 
 was compelled, for the preservation of himself and the crew, to run 
 the barge ashore, where both the lime and the vessel were utterly 
 destroyed. 
 
 In an action to recover the value of the lime, there was a verdict 
 for the plaintiff. 
 
 Taddy, Serjt., obtained a rule nisi for a new trial, or to arrest 
 the judgment, on the ground, first, that the deviation by the master 
 of the barge was not a cause of the loss of the lime sufficiently prox- 
 imate to entitle the plaintiff to recover, inasmuch as the loss might 
 have been occasioned by the same tempest if the barge had proceeded 
 in her direct course ; and secondly, that the declaration contained 
 no allegation of any undertaking on the part of the defendant to 
 carry the lime directly to London; an allegation which, it was con- 
 tended, on the authority of Max v. Roberts, 12 East, 89, was es- 
 sential to the plaintiff's recovery.* 
 
 TiNDAL, C. J. There are two points for the determination of the 
 Court upon this rule; first, whether the damage sustained by the 
 plaintiff was so proximate to the wrongful act of the defendant as to 
 form the subject of an action; and, secondly whether the declara- 
 tion is sufficient to support the judgment of the Court for the plaintiff. 
 
 As to the first point, it appeared upon the evidence that the master 
 of the defendant's barge had deviated from the usual and customary 
 course of the voyage mentioned in the declaration without any jus- 
 tifiable cause ; and that afterwards, and whilst such barge was out of 
 her course, in consequence of stormy and tempestuous weather, the 
 
 ♦The statement of the case is abridged.
 
 Ch. 2) THE TESTS OF LEGAL CAUSE 887 
 
 sea communicated with the hme, which thereby became heated, and 
 the barge caught fire, and the master was compelled for the preser- 
 vation of himself and the crew to run the barge on shore, where 
 both the lime and the barge were entirely lost. 
 
 Now the first objection on the part of the defendant is not rested, 
 as indeed it could not be rested, on the particular circumstances which 
 accompanied the destruction of the barge ; for it is obvious, that 
 the legal consequences must be the same, whether the loss was im- 
 mediately, by the sinking of the barge at once by a heavy sea, when 
 she was out of her direct and usual course, or whether it happened 
 at the same place, not in consequence of an immediate death's wound, 
 but by a connected chain of causes producing the same ultimate event. 
 It is only a variation in the precise mode by which the vessel was 
 destroyed, which variation will necessarily occur in each individual 
 case. 
 
 But the objection taken is, that there is no natural or necessary 
 connection between the wrong of the master in taking the barge 
 out of its proper course, and the loss itself ; for that the same loss 
 might have been occasioned by the very same tempest, if the barge 
 had proceeded in her direct course. 
 
 But if this argument were to prevail, the deviation of the master, 
 which is undoubtedly a ground of action against the owner, would 
 never, or only under very peculiar circumstances, entitle the plaintiff to 
 recover. For if a ship is captured in the course of deviation, no one 
 can be certain that she might not have ];)een captured if in her prop- 
 er course. And yet, in Parker v. James, 4 Camp. 112, where the 
 ship was captured whilst in the act of deviation, no such ground of 
 defence was even suggested. Or, again, if the ship strikes against 
 a rock, or perishes by storm in the one course, no one can predicate 
 that she might not equally have struck upon another rock, or met 
 with the same or another storm, if pursuing her right and ordinary 
 \oyage. 
 
 The same answer might be attempted to an action against a de- 
 fendant who had, by mistake, forwarded a parcel by the wrong con- 
 veyance, and a loss had thereby ensued; and yet the defendant in 
 that case would undoubtedly be liable. 
 
 But we think the real answer to the objection is, that no wrong- 
 doer can be allowed to apportion or qualify his own wrong ; and that 
 as a loss has actually happened whilst his wrongful act was. in oper- 
 ation and force, and which is attributable to his wrongful act, he 
 cannot set up as an answer to the action the bare possibility of a 
 loss, if his wrongful act had never been done. It might admit of 
 a different construction if he could shew, not only that the same loss 
 might have happened, but that it must have happened if the act com- 
 plained of had not been done; but there is no evidence to that extent 
 in the present case. 
 
 Rule discharged.
 
 888 CAUSAL RELATION (Part 
 
 WALD V. PITTSBURGH, C, C. & ST. I.. R. CO. 
 
 (Supreme Court of Illiuois, 1896. 162 111. 545, 44 N. E. 8SS, 35 L. K. A. 356, 
 
 53 Am. St. Rep. 332.) 
 
 This was an action by Wald against the railway company to re- 
 cover the value of the plaintiff's trunk and its contents, constituting 
 his personal baggage, which had been lost in the great Johnstown 
 flood in 1889, while in the possession of the defendant as a common 
 carrier. The facts were as follows : 
 
 On May 30, 1889, the plaintiff bought a ticket at Cincinnati for passage by 
 the so-called "Limited Express Train" over defendant's road to New York 
 City. The limited express was a fast train, arriving in New York City two 
 hours sooner than the regular day express. The tickets for this limited train 
 consisted of two printed slips, — one, the railroad ticket, being green; the 
 other, the special limited sleeping-car ticket, being purple. No pa.?senger could 
 travel by the limitetl without having both of these tickets. It was necessary 
 to present these tickets at Cincinnati to some agent of the railroad company, 
 in order to have a trunk checked to New York. Plaintiff did so present his 
 tickets, and had his trunk checked at Cincinnati for New York. From Cin- 
 cinnati to Pittsburgh passengers and their baggage for both the limited and 
 day express traveled on the same train. This was the case with plaintiff and 
 his baggage. Both left Cincinnati at tbe same time. At Pittsburgh the Cin- 
 cimiati sleei^er, carrying passengers for the limited train, was attached to- 
 the regular limited express, which had come from Chicago, and the Cincinnati 
 baggage for the limited train was transferred at Pittsburgh from the bag- 
 gage car of the Cincinnati express to the baggage car of the limited train. 
 In order to have baggage intended for the limited express so transferred 
 at Pittsburgh, it was the practice of the railroad company to attach to each 
 trunk at Cincinnati a white pasteboard tag in addition to the regular brass 
 check, and, unless such a white tag had been so attached, a trunk remained 
 on the baggage car from Cincinnati, and went through by tlie day express 
 from Pittsburgh to New Yoi'k. In the present case no such white tag had 
 been attached to plaintiff's trunk at Cincinnati, and as a result, while plain- 
 tiff's car was transferred at Pittsburgh to the limited express, his trunk re- 
 mainetl on the day express, which followed along some time after the limited. 
 This day express, carrying plaintiff's baggage, was overtaken by the flood 
 at Johnstown, Pa., and the baggage car, with the entire contents, including 
 plaintilf's trunk, was lost. The limited express on which plaintiff traveled 
 passed beyond the point of danger before the flood came, and w-as uninjured. 
 Tliere was some conflict in the testimony as to whether or not it was defend- 
 ant's fault that the wliite tag was not placed on plaintiff's trunk at Cincin- 
 nati. It is agreed "that there was no negligence in the management of the 
 train, or in the care of the baggage while on the train." 
 
 On the trial of the case before a jury, at the close of all the evidence 
 the court instructed the jury, as requested by defendant, that plain- 
 tiff was not entitled to recover, and that a verdict should be returned 
 for defendant. On the verdict so returned judgment was entered, 
 and this judgment was afifirmed by the appellate court. The case is 
 brought to this court imder a certificate of importance. ^^ 
 
 MagrudER, C. J. (after stating the facts). Appellee's contention 
 is that the flood by reason of which appellant's baggage was lost was 
 an act of God, and that it is not liable for such loss under the well- 
 
 3T The opinion of the Appellate Court will be found in Wald v. Pittsburg, 
 C, C. & St. U K. Co. (1895) 60 111. App. 460.
 
 Ch. 2) THE TESTS OF LEGAL CAUSE 889 
 
 established rule that "a common carrier, liable as an insurer for the 
 property intrusted to him for the purpose of transportation, is, never- 
 theless, excused from responsibility for losses which are caused by an 
 act of God." 1 Am. & Eng. Enc. Law (2d Ed.) p. 592. It is appel- 
 lant's contention that the railroad company should, by placing- a white 
 tag on his trunk at Cincinnati, or by some other means, have provided 
 that it should travel with him by the same train throughout the jour- 
 ney ; that it did not do so ; that, as a result of its negligence in so fail- 
 ing properly to check his trunk, it was separated from him during 
 the journey, and was lost; and that, even if this flood was an act of 
 God, yet the appellee's negligence in failing properly to check the 
 trunk concurred with the act of God, and thereby made appellee liable 
 for the resulting loss or damage. 
 
 1. The Johnstown flood, as it is called, by reason of which appel- 
 lant's baggage was lost, was an act of God. In Long v. Railroad Co., 
 147 Pa. 343, 23 Atl. 459, 14 L. R. A. 741, 30 Am. St. Rep. 732, which 
 w^as an action brought to recover the value of two trunks and their 
 contents delivered to the Pennsylvania Railroad Company in Cincin- 
 nati for transportation to Washington, and where it appears that the 
 trunks lost w^ere contained in the baggage car of the day express which 
 was destroyed by the Johnstown flood, so called, on Alay 31, 1889, the 
 supreme court of Pennsylvania held, upon substantially the same evi- 
 dence which is found in the record in the case at bar, that said flood 
 was "an inevitable accident, properly described as actus Dei." In the 
 Long Case, however, there was no question as to whether or not the 
 goods lost were upon the right train ; that is to say, the point was not 
 there made that the personal baggage of the passenger had been 
 shipped upon a different train from that on which the passenger took 
 passage. 
 
 2. There is some conflict among the authorities as to the liability of 
 a common carrier where the loss of goods in its or his possession is 
 due, not solely and only to an act of God, but to an act of God combined 
 with the negligence of the carrier. Many cases hold — and such seems 
 to be the tendency of the decisions in this state^that a common car- 
 rier is not exempt from liability for a loss which takes place because of 
 an act of God, if such carrier has been guilty of any previous negli- 
 gence or misconduct which brings the property in contact with the de- 
 structive force of the actus Dei, or unnecessarily exposes it thereto. 
 A loss or injury is due to the act of God when it is occasioned exclu- 
 sively by natural causes, such as could not be prevented by human care, 
 skill, and foresight ; and where property committed to a common car- 
 rier is brought by the negligence of the carrier under the operation of 
 natural causes that work its destruction, or is, by the negligence of the 
 carrier, exposed to such cause of loss, the carrier is responsible. "It 
 is universally agreed that, if the damage is caused by the concurring 
 force of the defendant's negligence and some other cause for which he 
 is not responsible, including the act of God, * * * ^\^q defendant
 
 890 CAUSAL RELATION (Part 2 
 
 IS nevertheless responsible if his negligence is one of the proximate 
 causes of the damage." 1 Shear. & R. Neg. (4th Ed.) § 39. The doc- 
 trine is thus clearly stated by the supreme court of Missouri in Wolf 
 V. Express Co., 43 Mo. 421, 97 Am. Dec. 406: "The act of God which 
 excuses the carrier must not only be the proximate cause of the loss, 
 but the better opinion is that it must be the sole cause. And where 
 the loss is caused by the act of God, if the negligence of the carrier 
 mingles with it as an active and cooperative cause, he is still respon- 
 sible." 
 
 In line with this principle, many authorities hold that, where the un- 
 necessary delay of the carrier subjects the goods in his possession to 
 a loss by an act of God which they would not otherwise have met with, 
 the delay is of itself such negligence as will make him liable for the 
 loss. Railroad Co. v. Curtis, 80 111. 324; Michaels v. Railroad Co., 30 
 N. Y. 564, 86 Am. Dec. 415 ; Read v. Spaulding, 30 N. Y. 630, 86 Am. 
 Dec. 426; McGraw v. Railroad Co., 18 W. Va. 361, 41 Am. Rep. 696; 
 Deming v. Railroad Co., 48 N. H. 455, 2 Am. Rep. 267 ; Read v. Rail- 
 road Co., 60 Mo. 199; Davis v. Garrett, 6 Bing. 716; Williams v. Grant, 
 1 Conn. 487, 7 Am. Dec. 235; Crosby v. Fitch, 12 Conn. 410, 31 Am. 
 Dec. 745 ; Rodgers v. Railroad Co., 67 Cal. 607, 8 Pac. 377 ; Salisbury 
 V. Herchenroder, 106 Mass. 458, 8 Am. Rep. 354; Pliggins v. Dewey, 
 107 Mass. 494, 9 Am. Rep. 63 ; Railroad Co. v. Anderson, 94 Pa. 360, 
 39 Am. Rep. 787; Baltimore & O. R. Co. v. Sulphur Springs Independ- 
 ent School Dist., 96 Pa. 65, 42 Am. Rep. 529. We are inclined to 
 think that this is the correct doctrine. There are cases which hold to 
 the contrary, among which are the leading cases of Denny v. Railroad 
 Co., 13 Gray (Mass.) 481, 74 Am. Dec. 645 and Morrison v. Davis, 20 
 Pa. 171, 57 Am. Dec. 695, upon the ground that such delay, whethei 
 justifiable or not, should not be regarded as the proximate, but only as 
 the remote, cause of the loss. It will be found, however, upon exam- 
 ination, that most of these cases are cases where mere delay, witliout 
 other negligence, brings the property lost within the operation of the 
 natural cause defined to be an act of God. 1 Am. & Eng. Enc. Law 
 (2d Ed.) p. 596. 
 
 In the case at bar, when the appellant bought his tickets for a pass- 
 age upon the limited express train, and applied to have his baggage 
 checked, there was an implied undertaking on the part of appellee that 
 his baggage should go on the same train on which he took passage ; 
 and appellee was bound to send his baggage on the same train on which 
 he went, unless the appellant gave some direction, or did something, or 
 omitted to do something, which authorized appellee to send his baggage 
 by some other train. "The implied undertaking of the passenger car- 
 rier as to transporting baggage is that passenger and baggage shall go 
 together, since all baggage is taken with reference to the wants of a 
 particular journey. * * * Nor ought the carrier, without permis- 
 sion, to send the baggage by later trains or a diiTerent route, unless in 
 a strong case of necessity. We need hardly add that if, through the
 
 Ch. 2) THE TESTS OP LEGAL CAUSE 891 
 
 carrier's own action, passenger and baggage become separated, the 
 carrier bears the risk." Schouler, Bailm. & Car. (2d Ed.) § 675 ; Wil- 
 son V. Raih'oad Co., 56 Me. 60, 96 Am. Dec. 435 ; Fairfax v. Railroad 
 Co., 7Z N. Y. 167, 29 Am. Rep. 119; Railroad Co. v. Tapp, 6 Ind. App. 
 304, ZZ N. E. 462. 
 
 It was a question of fact in this case whether or not appellee was 
 guilty of a violation of its implied undertaking or contract to send the 
 baggage on the same train with appellant ; in other words, whether or 
 not appellee was guilty of negligence in not taking proper steps to have 
 the baggage carried by the train on which appellant traveled, and to 
 have it so carried throughout the whole length of the journey; or 
 whether the failure to have the baggage transferred to the baggage 
 car of the limited express train at Pittsburg was in any way the fault 
 of the appellant. We think that the court erred in not submitting this 
 question of fact to the jury, and in directing a verdict for the defend- 
 ant without permitting the jury to pass upon such question. If appel- 
 lant's trunk had been transferred at Pittsburg to the baggage car at- 
 tached to the limited express train from Chicago, as was done with the 
 sleeping car in which appellant was traveling, the trunk would have 
 passed through the place of danger before the flood occurred, and 
 would not have been destroyed or lost by reason of the flood. If the 
 appellee was guilty of negligence in failing to put the trunk upon the 
 right train, — upon the train where its implied contract with appellant 
 required it to put the trunk, — it was guilty of negligence which brought 
 the trunk in direct contact with the force known as an act of God. "If 
 the superior force would have produced the same damage whether the 
 defendant had been negligent or not, his negligence is not deemed the 
 cause of the injury." Shear. & R. Neg. (4th Ed.) § 39. But here it 
 cannot be said that the flood would have caused the loss if the trunk 
 had been transferred to the limited express train at Pittsburg. 
 
 It is said, however, that the contract of transportation was made at 
 Cincinnati, Ohio ; that such a contract, and the liabilities of the parties 
 under it, are governed by the law of the place where the contract is 
 made; that the contract to transport appellant's trunk, having been 
 made in Ohio, must be governed by the law of Ohio ; that, by the law 
 of that state, loss of goods in the possession of a common carrier, oc- 
 curring by reason of an act of God, even though such loss would not 
 have been met with but for unnecessary delay on the part of the car- 
 rier, relieves the carrier of liability for the loss ; and that the case of 
 Daniels v. Ballantine, 23 Ohio St. 532, 13 Am. Rep. 264, which was 
 introduced in evidence, shows what the law of Ohio is upon this sub- 
 ject. If the doctrine of lex loci contractus is applicable to this case, and 
 if the case referred to is the law of Ohio, we do not think that the 
 contention set up can be maintained, because the doctrine of' the Dan- 
 iels Case is not applicable here. In that case the action was brought 
 to recover the value of a barge, which defendant contracted to tow by 
 means of a steam tug from Bay City, Mich., to Buffalo, N. Y., and
 
 S92 CAUSAL RELATION (Part 2' 
 
 which was lost in a storm on Lake Erie. It appears that after the voy- 
 age was begun the defendants delayed on the route three days, and then 
 began the voyage again, and while on such delayed voyage the barge 
 and tug were overtaken by the storm and lost. The court expressly 
 states that the defendants in that case were not common carriers, and 
 that, although they had such control of the barge as was necessary to 
 enable them to move it, yet the plaintiffs had possession of it, "and 
 for most purposes it remained in their custody and care." 
 
 The case, however, presents an instance of mere delay without other 
 negligence. If, in the case at bar, the trunk had been placed upon the 
 right train, and that train had been delayed on the way, and by reason 
 of such delay had come in contact with the flood, then, perhaps, there 
 would be a resemblance between this case and the Ohio case. But 
 here the delay did not result simply from a halting or stopping in the 
 movement of a train which was carrying the trunk in pursuance of the 
 contract of carriage, but it resulted from negligence in failing to keep 
 an implied contract to carry the trunk upon a particular train, and in 
 violating that contract by carrying the trunk upon a different train 
 from the one agreed upon ; that is, upon the assumption that the facts 
 would show no excuse for not keeping the contract. It is like a devia- 
 tion from the usual course by the master of a vessel, during which a 
 cargo is injured by a storm at sea. In such case the deviation is re- 
 garded as a sufficiently proximate cause of the loss to entitle the freight- 
 er to recover, as it brings the vessel in contact with the storm, in itself 
 the act of God. Davis v. Garrett, 6 Bing. 716. Here was a deviation 
 from the contract by the use of one agency of transportation not 
 agreed upon, instead of the use of another agency of transportation 
 which was agreed upon, thereby bringing the property in transit in 
 contact with the flood, in itself the act of God. In Davis v. Garrett, 
 supra, it was urged that there was no natural or necessary connection 
 between the wrong of the master in taking the barge out of its proper 
 course and the loss itself, "for that the same loss might have been oc- 
 casioned by the very same transit if the barge had proceeded in her 
 direct course" ; but the court held the objection untenable, and Tindall, 
 C. J., there said : "The same answer might be attempted to an action 
 against a defendant who had by mistake forwarded a parcel by the 
 wrong conveyance, and a loss had thereby ensued; and yet the defend- 
 ant in that case would undoubtedly be liable." 
 
 The language last quoted is precisely applicable to the case at bar, 
 which is not a case of delay in the transportation of goods being carried 
 by the right conveyance, as in Daniels v. Ballantine, supra, but a case 
 of neglect in forwarding a trunk by the wrong conveyance, to wit, by 
 the day express, instead of the limited express. Of course, in all that 
 is here said it is not intended to express any opinion as to whether the 
 failure to ship the trunk by the right train at Pittsburg was or was not 
 the fault of the appellee, in view of the conflict in the testimony as to 
 the circumstances attending the checking and shipment of the trunk.
 
 Ch. 2) THE TESTS OF LEGAL CAUSE 893 
 
 But, if there was nothing in such circumstances which excused appel- 
 lee from its implied obligation to ship the trunk from Pittsburg upon 
 the train carrying appellant eastward from that point, then we think 
 that the property was unnecessarily exposed to the destructive power 
 of the flood in question through the previous negligence or misconduct 
 of appellee, and consequently that appellee is not excused. Williams 
 V. Grant, 1 Conn. 487, 7 Am. Dec. 235. Hence the case should have 
 been allowed to go to the jury under the instructions asked by appellant 
 upon this question. 
 
 For the reason thus indicated, the judgments of the appellate court 
 and of the superior court of Cook county are reversed, and the cause 
 is remanded to said superior court for further proceedings in accord- 
 ance with the views herein expressed. Reversed and remanded. 
 
 FOTTLER v. MOSELEY. 
 
 (Supreme Judicial Court of Massacliusetts, 1904. 185 Mass. 563. 70 X. E. 1040.) 
 
 Fottler brought this action in tort for deceit, alleging that, in reli- 
 ance upon certain false representations by the defendant, a broker, as to 
 the stock of the Franklin Park Land Improvement Company, the plain- 
 tiff had revoked an order for the sale of his shares in that company, 
 by the defendant, whereby, through a subsequent diminution in the 
 selling price of this stock, the plaintiff had suff'ered loss. There was 
 a verdict for the defendant, and the plaintiff alleged exceptions. 
 
 Knowlton, C. J. The parties and the court seem to have assumed 
 that the evidence was such as to warrant a verdict for the plaintiff, 
 under the law stated at the previous decision of this case, reported in 
 179 Mass. 295, 60 N. E. 788, if the diminution in the seUing price of 
 the stock came from common causes. The defendant's contention is 
 that the embezzlement of an officer of a corporation, being an unlawful 
 act of a third person, should be treated as a new and independent cause 
 of the loss, not contemplated by the defendant, for which he is not 
 liable. To create a liability, it is never necessary that a wrongdoer 
 should contemplate the particulars of the injury from his wrongful 
 act, nor the precise way in which the damages will be inflicted. He 
 need not expect even that damage will result at all, if he does that 
 which is unlawful, and which involves a risk of injury. An embezzler 
 is criminally liable, notwithstanding that he expects to return the money 
 appropriated after having used it. H the defendant fraudulently in- 
 duced the plaintiff' to refrain from selling his stock when he was about 
 to sell it, he did him a wrong; and a natural consequence of the wrong, 
 for which he was liable, was the possibility of loss from diminution 
 in the value of the stock from any one of numerous causes. Most, if 
 not all, of the causes which would be likely to affect the value of the 
 stock, would be acts of third persons, or at least conditions for which
 
 894 CAUSAL RELATION (Part 2 
 
 neither the plaintiff nor the defendant would be primarily responsible. 
 Acts of the officers, honest or dishonest, in the management of the cor- 
 poration, would be among the most common causes of a change in 
 value. The defendant, if he fraudulently induced the plaintiff to keep 
 his stock, took the risk of all such changes. The loss to the plaintiff 
 from the fraud is as direct and proximate, if he was induced to hold 
 his stock until an embezzlement was discovered, as if the value had 
 been diminished by a fire which destroyed a large part of the property 
 of the corporation, or by the unexpected bankruptcy of a debtor who 
 owed the corporation a large sum. Neither the plaintiff nor the de- 
 fendant would be presumed to have contemplated all the particulars of 
 the risk of diminution in value for which the defendant made himself 
 liable by his fraudulent representations. It would be unjust to the 
 plaintiff in such a case, and impracticable, to enter upon an inquiry as 
 to the cause of the fall in value, if the plaintiff suffered from the fall 
 wholly by reason of the defendant's fraud. The risk of a fall, from 
 whatever cause, is presumed to have been contemplated by the defend- 
 ant when he falsely and fraudulently induced the plaintiff to retain 
 his stock. 
 
 We do not intimate that these circumstances, as well as others, may 
 not properly be considered in determining whether the plaintiff was 
 acting under the inducement of the fraudulent representations in con- 
 tinuing to hold the stock up to the time of the discovery of the embez- 
 zlement. The false representations may or may not have ceased to 
 operate as an inducement as to the disposition of his stock before that 
 time. Of course, there can be no recovery except for the direct re- 
 sults of the fraud. But if the case is so far established that the plain- 
 tiff, immediately upon the discovery of the embezzlement, was entitled 
 to recover on the ground that he was then holding the stock in reliance 
 upon the fraudulent statements, and if the great diminution in value 
 came while he was so holding it, the fact that this diminution was 
 brought about by the embezzlement of an officer leaves the plaintiff's 
 right no less than if it had come from an ordinary loss. 
 
 Exceptions sustained. 
 
 GREEN- WHEELER SHOE CO. v. CHICAGO, R. I. & P. RY. CO. 
 
 (Supreme Court of Iowa, 1906. 130 Iowa, 123, 106 N. W. 498, 5 L. R. A. 
 
 [N. S.] 882, 8 Ann. Cas. 45.) 
 
 This action was brought against the railway company to recover the 
 value of two parcels of goods delivered by plaintiff to defendant at 
 Ft. Dodge, Iowa, one parcel to go to Booneville, Mo., and the other to 
 Chanute, Kan., one of which it is alleged was lost and the other dam- 
 aged by defendant's negligence. The case was tried on an agreed 
 statement of facts and judgment was rendered for defendant. Plain- 
 tiff appeals.
 
 Ch. 2) THE TESTS OF LEGAL CAUSE 895 
 
 McClain, C. J. In the agreed statement on which the case was 
 tried without other evidence being introduced it is stipulated that 
 the defendant was guilty of negligent delay in the forwarding of the 
 goods of plaintiff from Ft. Dodge to Kansas City, where they were 
 lost or injured on May 30, 1903, by a flood which was so unusual and 
 extraordinary as to constitute an act of God, and that if there had been 
 no such negligent delay the goods would not have been caught in the 
 flood referred, to or damaged thereby. 
 
 We have presented for our consideration, therefore, the simple 
 question whether a carrier who by a negligent delay in transporting 
 goods has subjected them, in the course of transportation, to a peril 
 which has caused their damage or destruction, and for the consequence 
 of which the carrier would not have been liable had there been no neg- 
 ligent delay intervening, is liable for the loss. On this question there is 
 a well-recognized conflict in the authorities. In several well-considered 
 cases decided by courts of high authority it was decided, while the ques- 
 tion was still new, that the negligent delay of the carrier in transpor- 
 tation could not be regarded as the proximate cause of an ultimate loss 
 by a casualty which in itself constituted an act of God, as that term 
 is used in defining the carrier's exemption from liability, although had 
 the goods been transported wath reasonable diligence they would not 
 have been subjected to such casualty, and these cases are very similar 
 to the one before us inasmuch as the loss in each instance was due to 
 the goods being overtaken by an unprecedented flood for the conse- 
 quence of which the carrier would not be responsible. Morrison v. 
 Davis, 20 Pa. 171, 57 Am. Dec. 695 ; Denny v. New York Cent. R. Co., 
 13 Gray (Mass.) 481, 74 Am. Dec. 645; Railroad Co. v. Reeves, 10 
 Wall. 176, 19 L. Ed. 909; Daniels v. Ballantine, 23 Ohio St. 532, 13 
 Am. Rep. 264; Hunt v. Missouri, K. & T. R. Co. (Tex. Civ. App.) 74 
 S. W. 69; Gleeson v. Virginia Midland R. Co., 5 Mackey (D. C.) 356. 
 These cases are predicated upon the view that if the carrier could not 
 reasonably have foreseen or anticipated that the goods would be over- 
 taken by such a casualty as a natural and probable result of the delay, 
 then the negligent delay was not the proximate cause of the loss, and 
 should be disregarded in determining the liability for such loss. A 
 similar course of reasoning has been applied in other cases, where the 
 loss has been due immediately to some cause such as accidental fire in- 
 volving no negligence on the part of the carrier and within a valid 
 exception in the bill of lading, but the goods have been brought within 
 the peril stipulated against by negligent delay in transportation. Hoad- 
 ley v. Northern Transp. Co., 115 Mass. 304, 15 Am. Rep. 106; Yazoo 
 & M. V. R. Co. V. Millsaps, 76 Miss. 855, 25 South. 672, 71 Am. St. 
 Rep. 543 ; General Fire Extinguisher Co. v. Carolina & N. W. R. Co., 
 137 N. C. 278, 47 S. E. 208. For similar reasons it has been held that 
 loss of or injury to the goods by reason of their inherent nature, as by 
 freezing or the like, will not render the carrier liable, even after negli- 
 gent delay in transportation, if such casualty could not have been fore-
 
 S96 CAUSAL RELATION (Part 2 
 
 seen or anticipated as the natural and probable consequence of such 
 delay. Michigan Cent. R. Co. v. Burrows, 33 Mich. 6; Herring v. 
 Chesapeake & W. R. Co., 101 Va. 778, 45 S. E. 322. 
 
 On the other hand, it was held by the Court of Appeals of New- 
 York in a case arising out of the same flood which caused the destruc- 
 tion of the goods involved in Denny v. New York Cent. R. Co., 13 
 Gray (Mass.) 481, 74 Am. Dec. 645, supra, that the preceding negligent 
 delay on the part of the carrier, in consequence of which the goods 
 were overtaken by the flood, was sufficient ground for holding the car- 
 rier to be liable for the loss. Michaels v. New York Cent. R. Co., 30 
 N. Y. 564, 86 Am. Dec. 415 ; Read v. Spaulding, 30 N. Y. 630, 86 Am. 
 Dec. 426. And the same court has adhered to this view in case of a 
 loss by fire covered by valid exception in the bill of lading. Condict 
 V. Grand Trunk R. Co., 54 N. Y. 500. The Illinois Supreme Court has 
 consistently followed the rule of the New York cases in holding that 
 negligent delay subjecting the goods to loss by the Johnstown flood ren- 
 dered the carrier liable (Wald v. Pittsburg, C, C. & St. L. R. Co., 162 
 111. 545, 44 N. E. 888, 35 L. R. A. 356, 53 Am. St. Rep. 332) and like- 
 wise that similar delay rendered the carrier liable for damage to the 
 goods by freezing. Michigan Cent. R. Co. v. Curtis, 80 111. 324. The 
 Alabama and Kentucky courts have held that a destruction by fire 
 within a valid exception in the bill of lading would not excuse the car- 
 rier if by negligent delay in transportation the goods had been sub- 
 jected to such casualty. Louisville & N. R. Co. v. Gidley, 119 Ala. 
 523, 24 South. 753 ; Hernsheim v. Newport News & M. V. Co., 35 S. 
 W. 1115, 18 Ky. Law Rep. 227. In Missouri the Supreme Court has 
 followed or approved of what may be designated as the New York 
 rule, under a variety of circumstances. Davis v. Wabash, St. L. & P. 
 R. Co., 89 Mo. 340, 1 S. W. 327; Pruitt v. Hannibal & St. J. R. Co., 62 
 Mo. 527 ; Read v. St. Louis, K. C. & N. R. Co., 60 Mo. 199. And the 
 St. Louis Court of Appeals in that state has applied the same rule in 
 case of a loss by freezing. Armentrout v. St. Louis, K. C. & N. R. Co., 
 1 Mo. App. 158. But the Kansas City Court of Appeals in a case of 
 loss by flood has followed the Massachusetts and Pennsylvania cases. 
 Moffatt Com. Co. v. Union Pac. R. Co., 113 Mo. App. 541, 88 S. W. 
 117. And the St. Louis Court of Appeals seems to have recently 
 recognized the same rule. Grier v. St. Louis Merchants' Bridge Ter- 
 minal R. Co., 108 Mo. App. 565, 84 S. W. 158. In West Virginia the 
 Supreme Court has held that negligent delay renders the carrier liable 
 for a subsequent loss by freezing. McGraw v. Baltimore & O. R. Co., 
 18 W. Va. 361, 41 Am. Rep. 696. In Minnesota the court has recently 
 reviewed the whole question in a case involving the loss of goods by 
 the same flood which caused the loss for which the present suit is 
 brought and has reached the conclusion that the previous negligent de- 
 lay of the carrier wdiich caused the goods to be subjected to the peril 
 of the flood "concurred and mingled with the act of God" to such an 
 extent that the carrier was precluded from relying upon the act of
 
 Ch. 2) THE TESTS OF LEGAL CAUSE 897 
 
 God as a defense. Bibb Broom Corn Co. v. Atchison, T. & S. F. R. 
 Co., 94 Minn. 269, 102 N. W. 709, 69 L. R. A. 509, 110 Am. St. Rep. 
 361,3 Ann. Cas. 450. 
 
 The irreconcilable conflict in the authorities is recognized by text- 
 writers, and while the weight of general authority has in many cases 
 been said to support the rule announced in Massachusetts and Penn- 
 sylvania cases (1 Thompson, Negligence, § 74; Schouler, Bailments 
 [Ed. 1905] § 348; Hale, Bailments and Carriers, 361; 6 Cyc. 382; 
 notes in 36 Am. St. Rep. 838), other authorities prefer the New York 
 rule (Hutchinson, Carriers [2d Ed.] § 200; Ray, Negligence of Im- 
 posed Duties, 177). In the absence of any express declaration of this 
 court on the very point, and in view of the fact that in most recent 
 cases the conflict of authority is still recognized (see 5 Cur. Law, 517) 
 it seems necessary that the reasons on which the two lines of cases are 
 supported shall be considered in order that we may now reach a con- 
 clusion which shall be satisfactory to us. Mere negligence will not ren- 
 der one person liable to another for a loss which the latter would not 
 have sustained had there been no such negligence, unless the negligence 
 consists in some violation of a duty which the one person owes to the 
 other. Dubuque Wood & Coal Ass'n v. City and County of Dubuque, 
 30 Iowa, 176; St. Louis, I. M. & S. R. Co. v. Commercial Ins. Co., 
 139 U. S. 223, 11 Sup. Ct. 554, 35 L. Ed. 154. And, on the other 
 hand, it is well settled that if the negligence of one person with refer- 
 ence to the duty owed to another concurs with an accidental cause re- 
 sulting in injury to another to whom such duty is owed the negligent 
 person must answer for the consequences as though his negligence 
 were the sole cause of the loss. Savannah, F & W. R. Co. v. Commer- 
 cial Guano Co., 103 Ga. 590, 30 S. E. 555 ; Thomas v. Lancaster Mills, 
 71 Fed. 481, 19 C. C. A. 88; New Brunswick Steamboat Co. v. Tieres, 
 24 N. J. Law, 697, 64 Am. Dec. 394; Tierney v. New York Cent. & H. 
 R. R. Co., 76 N. Y. 305 ; Williams v. Grant", 1 Conn. 487, 7 Am. Dec. 
 235 ; 1 Thompson, Negligence, §§ 68, 7Z. 
 
 The real difficulty seems to be in determining to what extent, if at 
 all, it is necessary that the negligent party must have been able to 
 foresee and anticipate the result of his negligent act in order to render 
 him liable for the consequences thereof resulting from a concurrence 
 of his negligence and another cause for which he is not responsible. 
 In an action on contract the party who is at fault is only liable for 
 such consequences as arise according to the usual course of things from 
 his breach, or such as may reasonably be supposed to have been in the 
 contemplation of both parties at the time the contract was made as 
 the probable result of the breach. Hadley v. Baxendale, 9 Exch. 341 ; 
 Sedgwick, Elements of Damage, 17. But in an action for tort, and the 
 present action is of that character, recovery is not limited to the con- 
 sequences within the contemplation of the parties or either of them, 
 but includes all the consequences "resulting by ordinary natural se- 
 Hepb. Torts — 57
 
 898 CAUSAL RELATION (Part 2 
 
 quence, whether foreseen by the wrongdoer or not, provided that the 
 operation of the cause of action is not interrupted by the intervention 
 of an independent agent or overpowering force, and that but for the 
 operation of the cause of action the consequence would not have en- 
 sued." Sedgwick, Elements of Damage, § 54. It is true that for the 
 purpose of determining whether the injury suffered by the party com- 
 plaining was the natural and probable result of the wrong complained 
 of a convenient test is to consider whether in general such a result 
 might have been foreseen as the consequence of the wrong, but it is 
 not necessary "that the injury in the precise form in which it in fact re- 
 sulted should have been foreseen. It is enough that it now appears to 
 have been the natural and probable consequence." Hill v. Winsor, 
 118 Mass. 251; Schumaker v. St. Paul & D: R. Co., 46 Minn. 39, 42, 
 48 N. W. 559, 12 L. R. A. 257. And see Railroad Co. v. Kellogg, 94 
 U. S. 469, 24 L. Ed. 256; McPeek v. Western Union Tel. Co., 107 
 Iowa, 356, 78 N. W. 6?>, 43 L. R. A. 214, 70 Am. St. Rep. 205 ; Hoag 
 V. Railroad Co., 85 Pa. 293, 27 Am. Rep. 653 ; Empire State Cattle Co. 
 V. Atchison, T. & S. F. R. Co. (C. C.) 135 Fed. 135 ; Chicago, St. P., M. 
 & O". R. Co. V. Elliott, 55 Fed. 949, 5 C. C. A. 347, 20 L. R. A. 582 ; 
 Miller V. St. Louis, I. M. & S. R. Co., 90 Mo. 389, 2 S. W. 439; Smith 
 V. Railroad, L. R. 6 C. P. 21 ; 1 Thompson, Negligence, § 59. 
 
 Now, while it is true that defendant could not have anticipated this 
 particular flood and could not have foreseen that its negligent delay in 
 transportation would subject the goods to such a danger, yet it is now 
 apparent that such delay did subject the goods to the danger, and that 
 but for the delay they would not have been destroyed ; and defendant 
 should have foreseen, as any reasonable person could foresee, tliat the 
 negligent delay would extend the time during which the goods would 
 be liable in the hands of the carrier to be overtaken by some such 
 casualty, and would therefore increase the peril that the goods should 
 be thus lost to the shipper. This consideration that the peril of acci- 
 dental destruction is enhanced by the negligent extension of time dur- 
 ing which the goods must remain in the carrier's control and out of the 
 control of the owner, and during which some casualty may overtake 
 them, has not, we think, been given sufficient consideration in the cases 
 in which the carrier has been held not responsible for a loss for which 
 he is not primarily liable, but which has overtaken the goods as a con- 
 sequence of the preceding delay in their transportation. 
 
 It is not sufficient for the carrier to say by way of excuse that while 
 a proper and diligent transportation of the goods would have kept them 
 free from the peril by which they were in fact lost it might have sub- 
 jected them to some other peril just as great. He cannot speculate on 
 mere possibilities. A pertinent illustration is furnished by the well- 
 settled rule with reference to deviation which is that if the carrier 
 transports the goods over some other route than that specified in the 
 contract or reasonably within the contemplation of the parties, he 
 must answer for any loss or damage occurring during such deviation,
 
 CIl. 2) THE TESTS OF LEGAL CAUSE 899 
 
 although it is from a cause which would not in itself render him liable. 
 In such a case it is said "that no wrongdoer can be allowed to appor- 
 tion or qualify his own wrong, and that as a loss has actually happened 
 whilst his wrongful act was in operation and force, and which is at- 
 tributable to his wrongful act, he cannot set up as an answer to the 
 action the bare possibility of a loss if his wrongful act had never been 
 done. It might admit of a different construction if he could show, not 
 only that the same loss might have happened, but that it must have 
 happened if the act complained of had not been done." Davis v. Gar- 
 rett, 6 Bing. 716. And see Merchants' D. Transp. Co. v. Kahn, 76 
 111. 520; Crosby v. Fitch, 12 Conn. 410, 31 Am. Dec. 745; U. S. Exp. 
 Co. v. Kountze, 8 Wall. 342, 19 L. Ed. 457, 6 Cyc. 383. It is true that 
 the analogy to the case of a deviation is denied in the case which an- 
 nounce the rule of the Pennsylvania and Massachusetts cases but the 
 distinction attempted to be made that a deviation amounts to a con- 
 version rendering the carrier absolutely liable is too technical to be 
 considered as persuasive. The analogy between the two classes of 
 cases has been recognized in Constable v. National Steamship Co., 154 
 U. S. 51, 14 Sup. Ct. 1062, 38 L. Ed. 903, and in Hutchinson, Carriers 
 (2d Ed.) § 200. This court has expressed itself in favor of the lia- 
 bility of the carrier in classes of cases very analogous to that of devia- 
 tion. Where goods were shipped with the agreement that they 
 should be carried to their destination without change of cars, and in 
 violation of this contract the goods were unloaded at Chicago which 
 was not their destination, for the purpose of transporting them in 
 other cars, and they were destroyed by the Chicago fire, it was held 
 that the carriers were liable although the loss by fire was within a 
 valid exemption from liability contained in the bill of lading. Robin- 
 son V. Merchants' Dispatch Transp. Co., 45 Iowa, 470; Stewart v. 
 Merchants' Dispatch Transp. Co., 47 Iowa, 229, 29 Am. Rep. 476. 
 
 Certainly the act of the carrier in unloading the goods at Chicago, 
 instead of carrying them through to their destination in the cars in^ 
 which they were originally loaded, would not amount even to a tech- 
 nical conversion, nor could it have been anticipated that the result of 
 such an act would be the destruction of the goods; nevertheless this 
 court reached the conclusion that such a departure from the terms of 
 the contract rendered the carrier liable for a loss for which it would 
 not have been liable had it resulted without such departure. We think 
 that in principle tiicse cases support the general proposition that the 
 wrongful act of the carrier which in fact subjects the goods to loss 
 renders him liable for such loss although the circumstances under 
 which it occurred could not have been anticipated. This is plainly 
 right, for the detention due to the transfer of the goods to the other 
 cars did increase thei hazard of fire ; but it is equally true in the case 
 before us that the negligent delay increased the hazard of the loss by 
 flood. As supporting the same view we may also refer to Hewett v. 
 Chicago, B. & Q. R. Co., 63 Iowa, 611, 19 N. W. 790, in which it was
 
 900 CAUSAL RELATION (Part 2 
 
 held that neghgent delay in forwarding goods which were liable to 
 damage by freezing rendered the carrier accountable for the loss thus 
 resulting. In that case it is said that while the carrier is responsible 
 for such damages only as are the proximate consequence of his own 
 acts and is not accountable for such loss as is occasioned by the inter- 
 vention of the vis major, yet "one of the undertakings of the common 
 carrier is that he will not expose the property entrusted to his care to 
 any improper hazards or extraordinary perils, and if, by his act or 
 omission, it is exposed to perils or hazards which ordinary foresight 
 could have apprehended and provided against, he is accountable for 
 such injury as may be occasioned by such exposure." See, also, 
 Whicher v. Steam Boat Ewing, 21 Iowa, 240. 
 
 We are satisfied that the sounder reasons, supported by good au- 
 thority, require us to hold that in this case the carrier is liable for the 
 loss of and damage to plainti^'s goods, and the judgment of the trial 
 court is therefore reversed.* 
 
 * Accord, among later cases: Alabama G. S. R. Co. y. Quarles & Coutnrie 
 (l»0(j) 145 Ala. 436, 40 South. 120, 5 L. R. A. (N. S.) 867, 117 Am. St. Rei). 54, 
 8 Ann. Cas. 308 ; Wabash R. Co. v. Sharpe (1906) 76 Neb. 424, 107 N. W. 758, 
 124 Am. St. Rep. 823 ; Alabama G. S. R. Co. v. J. A. Elliott & Son (1907) 150 
 Ala. 381, 43 South. 738, 9 L. R. A. (N. S.) 1264, 124 Am. St. Rep. 72 ; Central of 
 Georgia R. Co. v. Sigma Lumber Co. (1910) 170 Ala. 627, 54 South. 205, Ann. 
 Cas. 1912D, 965; Tate v. Missouri Pac. Ry. Co. (1910) 157 111. App. 105; 
 Sunderland Bro.s. Co. v. Chicago, B. & Q. R. Co. (1911) 89 Neb. 660, 131 N. 
 W. 1047 ; Jonesboro, L. C. & E. R. Co. v. Dunnavant (1915, Ark.) 174 S. W. 1187. 
 
 Contra, among later cases: Rodgers v. Missouri I'ac. R. Co. (1907) 75 Kan. 
 222, 88 Pac. 885, 10 L. R. A. (N. S.) 658, 121 Am. St. Rep. 416, 12 Ann. Cas. 
 441: (P. delivered to D. a railway company, at Frankfort, Mo., on May 22, 
 1903, a carload of corn, for transiX)rtation and delivery to P.'s agent at 
 Kansas City, Mo. Through D.'s negligence this loaded car remained at 
 Frankfort until May 28, when it was hauled to its destination. It was there 
 destroyed by "the unprecedented flood of May .30, 1903." The court reviews 
 the authorities and holds the defendant not liable. The cases permitting a 
 recovery are disapproved as ignoring "the justice and policy" of the proxi- 
 mate cause principle.) And see the comment on this case in Henry v. Atchi- 
 son, T. & S. F. R. Co. (1910) 83 Kan. 104, 109 Pac. 1005, 28 L. R. A. (N. S.) 1088.
 
 PART III 
 
 TORTS THROUGH ACTS OF CONDITIONAL 
 
 LIABILITY 
 
 CHAPTER I 
 NEGLIGENCE 
 
 SECTION 1.— THE PLACE OF NEGLIGENCE IN THE FIELD 
 
 OF TORTS 
 
 I. Origin ojf Our Doctrine of Ne:guge:nce 
 
 The original notion of a tort to one's person or property was an In- 
 jury caused by an act of a stranger, in which the plaintiff did not in 
 any way participate. A battery, an asportation of a chattel, an entry 
 upon land were the typical torts. If, on the other hand, one saw fit 
 to authorize another to come into contact with his person or property, 
 and damage ensued, there was, without more, no tort. The person 
 injured took the risk of all injurious consequences, unless the other ex- 
 pressly assumed the risk himself, or unless the peculiar nature of one's 
 calling, as in the case of a smith, imposed a customary duty to act with' 
 reasonable skill. * * * 
 
 It is believed that the view here suggested will explain the following 
 passage in Blackstone, which has puzzled many of his readers: "If a 
 smith's servant lames a horse while he is shoeing him, an action lies 
 against the master, but not against the servant." ^ This is, of course, 
 not law to-day, and probably was not law when written. Blackstone 
 simply repeated the doctrine of the Year-Books. The servant had not 
 expressly assumed to shoe carefully ; he was, therefore, no more liable 
 than the surgeon, the barber, and the carpenter, who had not under- 
 taken, in the cases already mentioned. This primitive notion of legal 
 liability has, of course, entirely disappeared from the law. An as- 
 
 1 1 HI. Com. 431. 
 
 (901)
 
 902 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 sumpsit ^ is no longer an essential allegation in these actions of tort, 
 and there is, therefore, little or no semblance of analogy between- 
 these actions and actions of contract. 
 
 Tames Barr Ames, "History of Assumpsit," 2 Harv. Law Rev. 3, 4 
 (1888).^ 
 
 In later days, slowly and with difficulty, the court gave an action 
 against the clumsy smith who lames the horse that he is shoeing, against 
 the stupid surgeon who poisons the wound that he should cure. Such 
 persons could not be charged with breaking the king's peace by force 
 and arms. We may well doubt whether Bracton or any contemporary 
 lawyer would have told them that they had committed no tort; we 
 may perhaps doubt whether they could not have successfully sued in 
 some of the local courts ; but the king's justices were not as yet busied 
 with these questions, and such records of the lowlier tribunals as are 
 in print do not hold out much encouragement to the investigator 
 who is in search of a medieval law of negligence, though he might 
 find some rules, probably severe rules, about damage done by straying 
 cattle, goring oxen, biting dogs and fire. Hardly a germ is to be found 
 of any idea which will answer to the Roman culpa or become our mod- 
 ern negligence. 
 
 Pollock and Maitland, ''History of English Law," vol. 2, 527 (1899). 
 
 The word "negligentia" as used in earlier times, meant apparently 
 (as has been seen in the action for fire) * merely "failure to do" a 
 duty already determined to exist; thus, though the Courts constantly 
 said that "a man is bound to keep his cattle in at his peril," he is some- 
 times said to be held for "defaut de bon garde" — meaning, not care- 
 less keeping, but merely failure to keep as bound; and the misappre- 
 
 2 "The earliest cases in which an 'assumpsit' was laid in the declaration were 
 cases against a ferryman who undertook to carry the plaintiff's horse over the 
 river, but who overloaded the boat, whereby the horse was drowned; against 
 surgeons who undertook to cure the plaintiff or his animals, but who adminis- 
 tered contrary medicines or otherwise unskillfuUy treated their patient; 
 against a smith for laming a horse wliile shoeing it; against a barber who un- 
 dertook to shave the beard of the plaintiff with a clean and wholesome razor, 
 but who performed his work negligently or unskillfuUy to the great injury 
 of the plaintiff's face ; against a carpenter who undertooli to build well and 
 faithfully, but who built' unskillfuUy. In all these cases, it will be observed, 
 the plaintiff' sought to recover damages for a physical injury to his person 
 or property caused by the active misconduct of tlie defendant. The state- 
 ment of the 'assumpsit' of the defendant was for centuries, it is true, deemed 
 essential in the count. But the actions were not originally, and are not 
 to-day, regarded as actions of contract. They have always sounded in 
 tort." James Barr Ames, 2 Harv. Law Rev. 2, 3 Anglo-Am. Leg. Essays, 2G0. 
 
 3 Keprlnted in 3 Anglo-American Legal Essays, 2G1, 262. 
 * See ante, "Other Acts at reril,"
 
 Ch. 1) NEGLIGENCE 903 
 
 hension of this was probably the source of Blackstone's well known 
 misstatement that the action was for "negligently keeping" his cattle. 
 It seems, then, that the action on the case based on a mere negligent 
 doing was of little or no consequence until the 1800's, and that it then 
 came about, partly through the principle of consequential damage noted 
 above, and partly through the growing application of the test of negli- 
 gence in Trespass. 
 
 John H. Wigmore, "Tortious Responsibility," 7 Harv. Law Rev. 453 
 (1894).^ 
 
 The action on the case was stretched to cover a large number of of- 
 fences. It thus, in common speech, became the parent of many special 
 actions ; though these differed from the older actions in this important 
 point, that, as they were all commenced by the same writ, the plaintiff 
 could not, even before the abolition of forms of action, be nonsuited 
 for confusing one with the other. Thus we get the so-called actions of 
 Trover, Nuisance, Assumpsit, Malicious Prosecution, Seduction, Def- 
 amation and Deceit; some of which, (e. g. Nuisance, Malicious Pros- 
 ecution, and Deceit) have to be rather carefully distinguished from 
 older remedies for similar offences, which had, for one reason or anoth- 
 er, become obsolete or inconvenient. But it is worth remarking that no 
 variation of the Action on the Case acquired the title of "Negligence" ; 
 and the reason is substantial and interesting. For if we look at those 
 early examples of writs or declarations in Case which contain allega- 
 tions of negligence, we shall find that, with scarcely an exception, they 
 are confined to cases in which the ground of the action was an undertak- 
 ing by the defendant and a failure to perform that undertaking. It is fa- 
 miliar knowledge, to all who have studied the history of Contract in 
 English Law, that the grafting of the doctrine of Consideration onto 
 this form of action gave us our law of simple contract. In other words, 
 as the late Professor Ames has so brilliantly demonstrated,*^ the insti- 
 tution of the simple contract grew out of the action of Assumpsit, 
 which alleged negligence on the part of the defendant. But what is 
 this but to say that, so far as we can see, the Common Law refused to 
 recognize negligence, i. e. omission of a positive duty, as the ground 
 of legal liability ; except where the defendant had expressly taken 
 upon himself such duty, or where (as in the case of surgeons, common 
 
 5 Keprinted in 3 Anglo-American Lregal Essays, 517. 
 
 6 Harvard l>a\v Keview, ii, pp. 1, etc. ; Select Essays in A.-A. L. H. iii, 259. 
 "i'rofessor Ames seems to think that charges of deceit and malice were more 
 common than charges of negligence in this direction. But charges of neg- 
 ligence are not uncommon (see Fitzherbert, Natura Brevium, 94b ; Rastell. 
 Entries, ff. 3b, 3d, Sa, 9a, 13a, 463b, 4G3c, 463d; Aston, pp. 13, 16, 56, etc.) 
 And the point is, that charges of negligence were only made in actions really 
 conti'actual. Actions for breach of a prescriptive duly would fall under this 
 description ; for prescription at the common law was based on a lost grant. 
 But here, again, the allegation was usually of malice and deceit." 26 Law 
 Quarterly Kev. 162, note.
 
 t)04 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 carriers, innkeepers, &c.) his profession or calling was deemed a "hold- 
 ing out" to that effect ? * * * 
 
 The substantial result appears to be that, until the end of the eight- 
 eenth century, no one, apart from statute and the possible case of Nui- 
 sance, could be held civilly liable for the mere omission to perform 
 any positive duty ; unless he had, expressly or by implication, under- 
 taken to perform that duty. The well known decision in Ashby v. 
 White, 2 Ld. Raym. 938, 1 Sm. L. C. (11th Ed.) 240, 92 Re- 
 print, 126, forbids us to say that a wilful refusal to perform 
 a common law duty was not actionable ; but Ashby v. White occupied 
 a somewhat solitary position until the end of the eighteenth century. 
 With the appearance of changed industrial conditions in the early nine- 
 teenth century, the Law of Negligence began to expand ; but, with all 
 allowance for this recent expansion, the legal scope of non-contractual 
 negligence is still far narrower than is commonly supposed. * * * 7 
 
 Edward Jenks, "On Negligence and Deceit in the Law of Torts," 26 
 Law Quarterly Review, 160, 165 (1910). 
 
 So. far from being a specific tort, Negligence in itself is not a tort 
 at all, but is merely one of the commonest grounds of liability in spe- 
 cific torts. Putting aside the few cases, such as Malicious Prosecution 
 and Deceit, where there is no liability without intentional wrong doing, 
 there is no class of tort that cannot be committed negligently as well 
 as intentionally, e. g. trespass to the person. Conversely, every act 
 which is a tort if committed negligently, will be equally a tort if com- 
 mitted intentionally.^ It would seem, then, that to classify Negligence 
 among specific torts, is like a classification which would put contracts 
 for valuable consideration among specific contracts, such as Sale, Hire, 
 and Insurance.'' 
 
 It is true that in some of the cases we read of an "action for 
 negligence." This is due to the fact that, excluding Trespass, and a 
 few of the actions (originally Actions on the Case) which received dis- 
 tinctive names, e. g. Libel, Trover, Deceit, &c., no systematic classifi- 
 cation of torts was attempted by the Common Law. There was no ne- 
 
 7 "In all probability it was the general introduction of industrial machin- 
 ery, and especially of mechanical transit, which, for the first time in the His- 
 tory of tlie English Law of Tort, produced the purely non-contractual and non- 
 trespassory action founded on negligence." Edward Jenks, 26 Law Quarterly 
 Keview, l(j5 (lUlO). And see the remarks of the same author in his "Short 
 History of English Law," 311, 312 (1912). 
 
 8 Hut the effect of the historic forms of action in creating causes of action 
 which stiu endure is to be kept in mind in considering the present doctrine 
 of torts in many American States. See the cases given infra, "Negligence 
 Distinguished from Other Torts."— Ed. 
 
 » However, "nearly all writers in Tort treat negligence as a specific ground 
 of action." 
 
 Compare Sir Frederick Pollock's Classification of Torts, in Law of Torts 
 (7th Ed.) pp. 7, '20.— Ed.
 
 Ch. 1) NEGLIGENCE 905 
 
 cessity to specify in pleading whether a special Action on the Case was 
 an action for damage to the person, or to the property, or to some 
 other interest affected by the wrong. All fell equally under the head- 
 ing "Actions on the Case." But when it was recognized that (in the 
 absence of intention) damage to the plaintiff was not a ground of lia- 
 bility, unless there was negligence on the part of the defendant, negli- 
 gence came to be spoken of as the "gist of the action" ; and an action for 
 negligence became a common type of Action on the Case. 
 
 The treatment of negligence as a special kind of tort is therefore 
 a survival of a classification of torts based on the forms of action. 
 
 J. C. Miles "On the Treatment of Negligence," Digest Eng. Civil 
 Law, 545 (1910). 
 
 II. Neglige;nce Distinguished from Other Forms of Tort 
 
 MITCHIL V. ALESTREE. 
 
 (Court of Kings Bench, 1676. 1 Vent. 29-5, 86 Reprint, 190.) 
 
 In an action upon the case brought against the defendant, for that 
 he did ride an horse into a place called Lincoln's Inn Fields (a place 
 much frequented by the King's subjects, and unapt for such purposes) 
 for the breaking and taming of him, and that the horse was so unruly, 
 that he broke from the defendant, and ran over the plaintiff, and griev- 
 ously hurt him. to his damages, &c. 
 
 Upon not guilty pleaded, and a verdict for the plaintiff, it was moved 
 by Simpson in, arrest of judgment, that here is no cause of action: for 
 it appears by the declaration, that the mischief which happened was 
 against the defendant's will, and so damnum absque injuria; and then 
 not shewn what right the King's subjects had to walk there; and if a 
 man digs a pit in a common into which one that has no right to come 
 there, falls in, no action lies in such case. 
 
 Curia, contra. It was the defendant's fault, to bring a wild horse 
 into such a place where mischief might probably be done, by reason 
 of the concourse of people. Lately, in this court an action was brought 
 against a butcher, who had made an ox run from his stall and gored 
 the plaintiff; and this was alleged in the declaration to be in default 
 of penning him. 
 
 Wylde said, If a man hath an unruly horse in his stable, and 
 leaves open the stable door, whereby the horse goes forth and does 
 mischief ; an action lies against the master. 
 
 TwiSDEX. If one hath kept a tame fox, which gets loose and goes 
 wild, he that hath kept him before shall not answer for the damage the 
 fox doth after he hath lost him, and he hath resumed his wild nature. 
 Vide Hobart's Reports, 134, the case of Weaver and Ward. 
 
 Judgment for the plaintiff.
 
 906 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 DAY V. EDWARDS. 
 (Court of King's Beuch, 1794. 5 Term R. 648, 101 Repriut, 361.) 
 
 This was an action on the case, wherein the plaintiff declared, that 
 whereas on a certain day he was possessed of a certain four-wheeled 
 carriage called a landaulet, and of a horse drawing the same along the 
 King's highway, called, &c. and the defendant on the same day, &.c. 
 was possessed of a certain cart and horse drawing the same along the 
 highway aforesaid, and which were then and there under the direction 
 of the said defendant, nevertheless the said defendant then and there 
 so furiously, negligently and improperly drove the said cart and horse 
 of him the said defendant, that by and through the furious, negligent, 
 and improper conduct of the said defendant in that behalf, the said 
 cart was then and there, to wit, &c. driven and struck with great force 
 and violence upon and against the said carriage of the plaintiff, and 
 thereby, then and there overturned and damaged the same, to the loss 
 of the plaintiff', &c. 
 
 To this there was a special demurrer, assigning for causes, that the 
 plaintiff, by his said declaration, complained against the defendant as 
 if the supposed cause of action in the declaration mentioned had been 
 a mere consequential injury, whereas it appeared to have been an im- 
 mediate and direct trespass committed by the defendant on the property 
 of the plaintiff; that the plaintiff complained against the defendant, as 
 in a plea of trespass on the case, whereas the declaration ought to have 
 been in a plea of trespass vi et armis : that the defendant was not, by 
 the said declaration, positively charged with any of the facts therein con- 
 tained, and the same were only charged by way of recital, whereas they 
 ought to have been positively averred upon him ; and also, that it was 
 not alleged that the supposed trespass was committed with force and 
 arms nor against the peace, &c. Joinder in demurrer. 
 
 Baldwin in support of the demurrer was stopped by the Court. 
 
 Wood contra. The action on the case for consequential damage is 
 properly conceived, because the act of driving along the highway, in 
 consequence of which the injury arose, was a legal one in itself, al- 
 though negligently exercised. And where the act itself is legal, and an 
 injury happens from an improper exercise of it, an action on the case 
 is the proper remedy. If the declaration indeed had alleged that the 
 defendant had driven against the plaintiff, there might have been some 
 ground for contending that trespass should have been brought : but 
 all that is here stated is, that he droVe furiously along the highway, in 
 consequence of which the mischief ensued. Vide Slater v. Baker, 2 
 Wils. 359, and Scott v. Shepherd, 2 Black. Rep. 892, and 3 Wils. 403. 
 
 Lord Kenyon, C. J. The distinction between the actions of tres- 
 pass vi et armis and on the case is perfectly clear. If the injury be 
 committed by the immediate act complained of, the action must be tres-
 
 Ch. 1) NEGLIGENCE 907 
 
 pass; if the injury be merely consequential upon that act, an action 
 upon the case is the proper remedy. In 1 Str. 636, it is said, "If a man 
 throw a log into the highway, and in that act it hits me, I may maintain 
 the trespass, because it is an immediate wrong : but if, as it lies there, 
 I tumble over it, and receive an injury, I must bring an action upon 
 the case." In the present case the plaintiff complains of the immediate 
 act, therefore he should have brought trespass. 
 Pdr Curiam. Judgment for the defendant. 
 
 LEAME V. BRAY. 
 
 (Court of King's Bench, 1803. 3 East 593, 102 Reprint, 724.) 
 
 This was an action of trespass, in which the plaintiff declared that 
 the defendant with force and arms drove and struck a single-horse 
 chaise which the defendant was then driving along the king's high- 
 way with such great force and violence upon and against the plain- 
 tift''s curricle drawn by two horses, and upon and against the said 
 horses so drawing, &c., and in which said curricle the plaintiff was 
 then and there riding with his ser\'ant, which servant was then driv- 
 ing the said curricle and horses along the king's highway aforesaid, 
 that by means thereof the plaintiff's servant was thrown out of the 
 curricle upon the ground, and the horses ran away with the curricle, 
 and while the horses were so running away with the curricle the 
 plaintiff, for the preservation of his life, jumped and fell from the 
 curricle upon the ground and fractured his collar bone, &c. Plea, not 
 guilty. 
 
 It appeared in evidence at the trial before Lord Ellenborough, C. 
 J., at the last sittings at Westminster, that the accident described in the 
 declaration happened in a dark night, owing to the defendant driving 
 his carriage on the wrong side of the road, and the parties not being 
 able to see each other; and that if the defendant had kept his right 
 side there was ample room for the carriages to have passed without 
 injury. But it did not appear that blame was imputable to the de- 
 fendant in any other respect as to the manner of his driving. It was 
 therefore objected for the defendant, that the injury having happened 
 from negligence, and not wilfully, the proper remedy was by an action 
 on the case and not of trespass vi et armis; and the plaintiff was 
 thereupon nonsuited. 
 
 Gibbs and Park shewed cause against a rule for setting aside the 
 non-suit. * * * 
 
 Lord Ellenborough, C. J. The true criterion seems to be ac- 
 cording to what Lord C. J. de Grey says in Scott v. Shepherd, whether 
 the plaintiff received an injury by force from the defendant. If the 
 injurious act be the immediate result of the force originally applied by
 
 908 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 the defendant, and the plaintiff be injured by it, it is the subject of 
 an action of trespass vi et armis by all the cases both ancient and 
 modern. It is immaterial whether the injury be wilful or not. As in 
 the case alluded to by my Brother Grose, where one shooting at butts 
 for a trial of skill with the bow and arrow, the weapon then in use, 
 in itself a lawful act, and no unlawful purpose in view ; yet hav- 
 ing accidentally wounded a man, it was holden to be a trespass, 
 being an immediate injury from an act of force by another. Such 
 also was the case of Weaver v. Ward, in Hob. 134, where a like 
 unfortunate accident happened whilst persons were lawfully exer- 
 cising themselves in anus. So in none of the cases mentioned in Scott 
 V. Shepherd, 2 Black. 895, did wilfulness make any difference. If the 
 injury were received from the personal act of another, it was deemed 
 sufficient to make it trespass. In the case of Day v. Edwards, 5 Term 
 Rep. 649, the allegation of the act having been done furiously was 
 understood to imply an act of force immediately proceeding from the 
 defendant. As to the case of Ogle v. Barnes, 8 Term Rep. 188, I 
 incline to think it was rightly decided ; and yet there are words there 
 which imply force by the act of another ; but, as was observed, it 
 does not appear that it must have been the personal act of the de- 
 fendants ; it is not even alleged that they were on board the ship at 
 the time : it is said indeed that they had the care, direction, and man- 
 agement of it; but that might be through the medium of other per- 
 sons in their employ on board. That therefore might be sustained as 
 an action on the case, because there were no words in the declaration 
 which necessarily implied that the damage happened from an act of 
 force done by the defendants themselves. I am not aware of any 
 case of that sort where the party himself sued having been on board 
 this question has been raised. But here the defendant himself was 
 present, and used the ordinary means of impelling the horse forward, 
 and from that the injury happened. And therefore there being an im- 
 mediate injury from an immediate act of force by the defendant, the 
 proper remedy is trespass ; and wilfulness is not necessary to constitute 
 trespass. 
 
 LawrKxcU, J. I am of the same opinion. It is more convenient 
 that the action should be trespass, than case ; because if it be laid in 
 trespass, no nice points can arise upon the evidence by which the 
 plaintiff may be turned round upon the form of the action, as there 
 may in many instances if case be brought; for there if any of the 
 witnesses should say that in his belief the defendant did the injury 
 wilfully, the plaintiff' will run the risk of being nonsuited. But in 
 actions of trespass the distinction has not turned either on the law- 
 fulness of the act from whence the injury happened, or the design of 
 the party doing it to commit the injury : but, as mentioned by I\Ir. Jus- 
 tice Blackstone in the case of Scott v. Shepherd, 2 Black. Rep. 895, 
 on the difference between injuries direct and immediate, or mediate
 
 Ch. 1) NEGLIGENCE 909 
 
 and consequential; in the one instance the remedy is by trespass, in 
 the other bv case. The same principle is laid down in Reynolds v. 
 Clarke, 2 Ld. Raym. 1402. * * * 
 
 LE Blaxc, J. * * * If the defendant had simply placed his 
 chaise in the road, and the plaintiff had run against it in the dark, 
 the injury would not have been direct, but in consequence only of 
 the defendant's previous improper act. Here however the defendant 
 was driving the carriage at the time with the force necessary to move 
 it along, and the injury to the plaintiff happened from that immediate 
 act : therefore the remedy must be trespass : and all the cases will 
 support that principle. It is chiefly in actions for running down vessels 
 at sea that difficulties may occur ; because certainly the force which 
 occasions the injury is not so immediate from the act of the person 
 steering. The immediate agents of the force are the wind and waves, 
 and the personal act of the party rather consists in putting the vessel 
 in the way to be so acted upon : and w^hether that may make any dif- 
 ference in that case I will not now take upon me to determijie. But 
 here, where the personal force is immediately applied to the horse 
 and carriage, the things acted upon and causing the damage, like a 
 finger to the trigger of a gun, the injury is immediate from the act 
 of driving, and trespass is the proper remedy for an immediate injury 
 done by one to another : but where the injury is only consequential 
 from the act done, there it is case. 
 
 Rule absolute.^" 
 
 MORETON v. HARDERN et al. 
 (Court of King's Bench, 1825. 4 Barn. & C. 223, 107 Reprint, 1042.) 
 
 Case. Plea, general issue. At the trial, it appeared that the defend- 
 ants were the proprietors of a stage coach travelling from Congleton 
 to Manchester. The plaintiff, at the time wdien the accident happened, 
 was driving a cart along the highroad. The coach was driven by the 
 defendant Hardern, and the coachman employed by the proprietors to 
 drive w^as sitting by his side. The coach ran against the plaintiff, and 
 thereby caused the injury stated in the declaration. It did not appear 
 that Hardern saw the plaintiff at the time. The jury found a verdict 
 for the plaintiff, damages £200, and that the accident was occasioned by 
 the negligence of the defendant Hardern. A nonsuit w-as thereupon 
 entered and the plaintiff" had leave to move to enter a verdict in his 
 favor for £200. A rule nisi for that purpose was obtained. 
 
 BaylEy, J. I am of opinion that this rule must be made ab- 
 solute. The second count of the declaration alleges that the defend- 
 ants were possessed of a certain coach and horses, which w^ere under 
 
 10 Ttie opinion of Grose, J., and part of the opinions of Lawrence and Le 
 Blanc, J. J., are omitted.
 
 910 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 their care and management, and that they so carelessly and improperly 
 governed and directed the said horses and coach, that through their cai-e- 
 lessness, negligence, and improper conduct the coach ran against the 
 plaintiff, and injured him. The objection made to that count was that as 
 one of the defendants was driving, the injury was immediate, and that, 
 consequently, the action should have been trespass, and not case. It is 
 sufficient answer to say that the plaintiff had a right to sue all the de- 
 fendants, and that trespass clearly would not lie against them all. Such 
 an action might, perhaps, have been maintained against Hardern, but 
 not against the other defendants. It was long vexata qugestio whether 
 an action on the case could be brought when the defendant was per- 
 sonally present and acting in that which occasioned the mischief. 
 Early in my professional experience, case was the form of action 
 usually adopted for such injuries. In Lord Kenyon's time a doubt 
 was raised upon the point, and he thought that where the act was im- 
 mediately injurious, trespass was the only action that could be main- 
 tained for that injury. Leame v. Bray [3 East, 593] was an action 
 of trespass. At the trial Lord Ellenborough thought it should have 
 been case, but on further consideration this court was of opinion that 
 trespass was maintainable, but they did not decide that an action on 
 the case would have been improper. Looking at the other cases on 
 the subject it is difficult to say that an action on the case will not lie 
 for an injury sustained through the negligent driving of a coach, al- 
 though one of the proprietors was the person guilty of that neg- 
 ligence. In Ogle V. Barnes, 8 T. R. 188, which was a case for neg- 
 ligently steering a ship, the declaration alleged that the ship was under 
 the care of Barnes, one of the defendants, and of certain servants of 
 the defendants, and that through their negligence the injury was sus- 
 tained, and it was never urged that the action should have been trespass 
 and not case, because one of the defendants was on board, but on the 
 ground of the injury being immediate. In Rogers v. Imbleton, 2 N. 
 R. 117, (which was decided after Leame v. Bray,) it was alleged that 
 the defendant was driving a cart, and took such bad care of the cart 
 and horse, that it ran with great force against the plaintift"'s horse. To 
 that there was a demurrer, upon the authority of Leame v. Bray, the 
 action being in case, but the court was clearly of the opinion that case 
 would lie, and the demurrer was overruled. In Huggett v. Mont- 
 gomery, 2 N. R. 446, although the defendant was on board, yet the 
 ship was not under his immediate care and management, but under 
 that of a pilot, and on that ground, case was held to be the proper 
 form of action. It is not necessary to say that trespass could not, in 
 this case, have been sustained against Hardern. No doubt that action 
 lies when the injury is inflicted by the wilful act of the defendant, 
 but is also clear that case will lie where the act is negligent, and not 
 wilful. Here the report says, that the injury was occasioned by the 
 negligent driving of the defendant Hardern. I think, therefore, that as
 
 Ch. 1) NEGLIGENCE 911 
 
 the plaintiff had a right to sue all the proprietors of the coach, and as 
 trespass would not lie against them all, case was the proper form of 
 action to be adopted. 
 Rule absolute/^ 
 
 SIMON et al. v. HExNRY et al. 
 (Supreme Court of New Jersey, 1898. 62 N. J. Law, 486, 41 Atl. 692.) 
 
 In this action there was a judgment for defendants. Rule to show 
 cause why a new trial should not be granted. 
 
 Dixon, J The plaintiffs were the owners of a factory on the 
 corner of Gardner street and the boulevard in the town of Union, 
 Hudson county ; and the defendants contracted with the authorities of 
 the town to construct a public sewer in the boulevard. To make the 
 necessary trench, the removal of trap rock was required, and the de- 
 fendants removed it by blasting with dynamite. The plaintiffs claim- 
 ed that the concussion resulting from the blasts cracked the walls of 
 their factory, and they brought this suit to recover compensation for 
 the damage. The court charged the jury, in substance, that if, in 
 the prosecution of the work, the defendants had exercised reasonable 
 care and skill, they could not be held responsible. On this topic the 
 learned judge said to the jury: 
 
 "Keasonable care * * * is that care which reasonably prudent men ac- 
 quainted with this character of work, * * * acting cautiously and pru- 
 dently, with a desire to avoid injury to others, would exercise in the per- 
 formance of it. * * * You can take into consideration all the circum- 
 stances, as bearing on the question whether the defendants have exercised 
 that care or not, — the character of the soil, the character of the rock, what 
 they used in blasting the rock, how they blasted it, the manner of doing it, 
 whether too much of explosives was used, whether the drill holes were too far 
 apart, whether they endeavored to take out too much rock at! one time, in 
 length or in depth, the ijroximity to the building, and the injury. All of the 
 conditions there are for you to determine, as bearing upon the question of 
 the exercise of reasonable care. Blasting close by a building necessarily 
 would require a high degree of care — perhaps the highest degree of care — 
 to protect the building from injury. It all comes under the term 'reasonable,' 
 after all, dei>ending upon all the circumstances surrounding it." 
 
 Under this charge the jury found for the defendants, and the plain- 
 tiffs now seek to set aside the verdict, on the ground, mainly, that 
 the defendants are responsible even though they did exercise reason- 
 able care and skill. To support this position, they rely chiefly on the 
 case of McAndrews v. Collerd, 42 N. J. Law, 189, 36 Am. Rep. 508. 
 where the court of errors held that one who maintains a public nui- 
 sance is liable for the damage thereby caused, notwithstanding his 
 exercise of all possible skill and care to prevent harm. To come with- 
 in the range of this decision, the plaintiffs must make out that the 
 
 11 The statement of facts is abridged. The arguments of counsel and the 
 opinions of Holroyd and Littledale, JJ., concurring with Bayley, J., are omit- 
 ted.
 
 912 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 blasting of rock by dynamite in the construction of a public sewer 
 through a highway is per se a nuisance. The evidence in this case by 
 no means tended to establish such a proposition. On the contrary, 
 it was to the effect that blasting was the only practicable mode of 
 removing the rock ; that dynamite was an explosive often used in 
 such work; and that, if used with reasonable care and skill, it was 
 as safe as other explosives. The proposition therefore would fall, 
 unless it should be held that the building of public sewers in streets 
 laid over rock would necessarily create a nuisance ; and for this the 
 plaintiffs do not contend. Nor do we think it accords with common 
 experience that the careful and skillful use of these explosives in- 
 volves more danger to person or property than such use of various 
 other forces which science has discovered, and which, in their general 
 effect, promote the convenience and progress of society, and are there- 
 fore recognized as lawful agencies. In McAndrews v. CoUerd, ubi 
 supra, the nuisance consisted, not in the use of explosives, but in the 
 maintenance of a magazine where a large quantity was stored. In 
 Booth V. Railroad Co., 140 N. Y. 267, 35 N. E. 592, 24 L. R. A. 105, 
 37 Am. St. Rep. 552, and in French v. \'ix., 143 N. Y. 90, Z7 N. E. 
 612, it was held that the temporary use of explosives in the blasting 
 of rock, provided reasonable care be exercised, is lawful, and damage 
 resulting from concussion thereby produced is damnum absque injuria. 
 \\'e find no contrary decision. On this point, therefore, the plaintiffs 
 have no cause of complaint.^ ^ * * * 
 The rule to show cause is discharged. 
 
 O'BRIEN v. LOOMIS. 
 
 (St. IxMiis Court of Appeals, Missouri, 1S90. 43 Mo. App. 29.) 
 
 This was a joint action against father and son, the latter an infant 
 of about ten years, to recover damages, for an injury to the plaintiff, 
 caused by a gunshot wound, inflicted by the son. A demurrer by the 
 father having been sustained, final judgment was rendered upon it in 
 his favor, and the case proceeded against the son alone. The answer 
 contained a general denial. There was a verdict, with judgment for 
 $2,500, from which the defendant prosecutes this appeal. Errors were 
 assigned in the following instructions, among others: 
 
 "If the jury find from the evidence in this case that the act of the boy 
 in shooting plaintiff was either intentional or done without the exercise of 
 ordinary care on the part of the defendant, and was a nesHsent act, consid- 
 eriii},' his ajre and discretion, then plaintiff is entitled to recover." 
 
 "If the jury find from the evidence that the defendant Henry T^oomis shot 
 plaintiff" with a bullet fired from the gun mentioned in the evidence ; and 
 if the jury further find from the evidence tliat the said Henry Ixiomis in- 
 tentionally fired said gun at the plaintiff", intending to wound or injure the 
 
 li I'arts of the opinion are omitted.
 
 Ch. 1) NEGLIGENCE 913 
 
 plaintiff, then plaintiff is entitled to recover such dainases as the .iury may 
 Relieve from the evidence will be a fair compensation to her for the injury 
 received." is 
 
 Thompson, J. We are of opinion that there is a fundamental er- 
 ror running through these instructions, in that they authorize a re- 
 covery on the hypothesis of the injury having been "intentional." or 
 that the gun was fired "intentionally" at the plaintiflf, the defendant 
 "intending to wound and injure her" ; whereas the petition does not 
 allege that the injury was wilful or intentional, but alleges that it was 
 negligent. Rectirring to the petition, it will be seen that it is un- 
 fortunate in having been drawn to charge both the father and the son, 
 and in being the petition on which the case proceeded after final judg- 
 ment had been rendered for the father on demurrer. It charges that 
 the defendant, Henry, was "reckless," and that he "had little or no 
 discretion," and it also charges that the injury happened "through his 
 said reckless habit and want of discretion" ; and it does not charge 
 that it happened in any other manner. Webster defines the word 
 "reckless," as "rashly or indifferently negligent ; careless ; heedless ; 
 mindless." The petition, therefore, claims damages for an injury the 
 result of negligence, and the instruction authorizes the jury to give 
 damages on the hypothesis of wilfulness, and an intent to injure. We 
 are of opinion that this case falls within the well-settled rule that the 
 issues made by the pleadings cannot be broadened by the instructions. 
 
 It is true that, under our system, as at common law, the plaintiff 
 may bring an action for a direct injury, such as shooting and wound- 
 ing, by a petition in the form of a declaration in the common-law ac- 
 tion of trespass, charging in the barest terms that the defendant un- 
 lawfully and wrongfully inflicted the injury upon the plaintiff', and 
 that he can then recover on proof that the injury — provided it be the 
 direct injury alleged — was the result of negligence merely. Conway 
 V. Reed, 66 Mo. 346, 27 Am. Rep. 354. The reason was that in the 
 case of a direct injury proceeding from the plaintiff to the defendant, 
 nothing excused it short of proof that the injury was unavoidable. 
 Weaver v. W^ard, Hobart, 134. That a plaintiff could sue in tres- 
 pass and recover for a direct injury, either on proof that the injury 
 was intentional or negligent has been familiar learning to the pro- 
 fession ever since the celebrated "Squib Case," Scott v. Sheppard, 2 
 W. Bl. 892. See Morgan v. Cox, 22 Mo. Z7Z, 66 Am. Dec 623; 
 Castle V. Duryee, *41 N. Y. (2 Keyes) 169. 
 
 But the policy of our code of procedure is to require the party to 
 state in his pleadings his real ground of action or defense; and, if he 
 chooses one ground, he cannot so enlarge it as to recover on another. 
 This is in accordance with what is said on one of the opening pages 
 of a standard work in respect of actions for damages for negligence : 
 
 13 The statement of the facts is abridged. 
 Hepb. Torts — 58
 
 914 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 "It is clear that a plaintiff may elect between suing upon a charge 
 of wilful injury, or a mere charge of negligence, wherever the facts 
 are susceptible of a double construction. It does not lie with the 
 defendant to insist that he has been criminal instead of merely care- 
 less. In making his election, however, the plaintiff must remember 
 that he will be bound by it. If the complaint sets up a case of wilful 
 injury, it cannot be sustained by evidence of mere negligence, however 
 gross ; while, on the other hand, if it charges negligence only, the 
 plaintiff cannot put in evidence, the only relevancy of which consists 
 in proving intentional injury, such as would sustain an entirely differ- 
 ent action." Shearman and Redfield on Negligence (4th Ed.) § 7. 
 
 We have been able to find no case, decided in this state, in which a 
 party sued on the theory of negligence and recovered on the theory of 
 wilfulness or malice, nor indeed any case where such a thing was 
 attempted. But this is probably evidence of an understanding on the 
 part of the profession that such a thing cannot be done. We have, 
 however, been referred to several decisions of the supreme court of 
 Indiana, which proceed on the distinction between actions grounded 
 on negligence and actions grounded on wilfulness, which is stated by 
 the above-named authors. Pennsylvania Co. v. Sinclair, 62 Ind. 301, 
 30 Am. Rep. 185 ; Pennsylvania Co. v. Smith, 98 Ind. 42 ; Cincinnati, 
 etc., R. Co. V. Eaton, 53 Ind. 307; Terre Haute, etc., R. Co. v. Graham, 
 95 Ind. 286, 48 Am. Rep. 719. In Pennsylvania Co. v. Smith, supra, 
 it is held that under an averment of negligence there can be no recovery 
 for a wilful injury. 
 
 The decisions in this state present many analogous rulings, which 
 go to show that such a recovery cannot be had. Thus Hubbard v. 
 Railroad, 63 Mo. 68, is to the effect that a plaintiff cannot sue in 
 trespass for a wrongful entering and recovery on proof that posses- 
 sion was obtained by fraud. In Martin v. Miller, 20 Mo. 391 (which 
 was an action commenced before the code), it was held that the plain- 
 tiff could not set out in his declaration that, on a certain day of 
 the month, in a certain year, the defendant, "wrongfully, negligently 
 and unjustly," set out a certain fire which did damage to the plaintiff, 
 and then recover by merely proving that that day was Sunday, and 
 that the defendant, in setting the fire, was at work on Sunday in 
 violation of the statute. And cases in this state are numerous, where 
 it has been held that a plaintiff cannot sue for damages for negli- 
 gence consisting of a particular thing, and then recover for negligence 
 consisting in something else. That the action for negligence is es- 
 sentially dift'erent from the action for a wilful and intentional injury, 
 is suggested by the last of the above instructions, where the learned 
 judge correctly told the jury that contributory negligence was a de- 
 fense in the former case, but not in the latter. 
 
 If, then, the issues made by the pleadings were not large enough 
 to embrace the hypothesis of a wilful or intentional injury, it was 
 error for the court to instruct the jury on such a theory, although
 
 Ch. 1) NEGLIGENCE 915 
 
 the evidence, in a proper state of the pleadings, might have warrant- 
 ed such an instruction ; for our procedure is very strict to the effect 
 that it is error to submit to the jury an issue of fact not made by 
 the pleadings. ]\Ielvin v. Railroad, 89 Mo. 106, 1 S. W. 286; Kenney 
 V. Railroad, 70 Mo. 252; Benson v. Railroad, 78 Mo. 504, 513; 
 Fulkerson v. Thornton, 68 ]\Io. 468. 
 
 BARRETT v. CLEVELAND, C, C. & ST. L. RY. CO. 
 (Appellate Court of Indiana, 1911. 48 Ind. App. 668, 96 N. E. 490.) 
 
 Action against the railway company to recover damages for break- 
 ing down a tile drain on the right of way and under the tracks of 
 the defendant From a judgment for the defendant, the plaintiff 
 appeals. 
 
 Adams, j, * * * Xhe sufficiency of the complaint, therefore, 
 is the only question to be determined upon this appeal. Preliminary 
 to the consideration of the main question, however, the nature of 
 the action set forth in the complaint must be determined. It will be 
 noted that the act complained of is that the tile in the ditch was 
 negligently, willfully, and purposely broken by the appellee at a point 
 under its main track and on its right of way. It is clear that an act 
 could not be done both willfully and negligently. Willfulness and 
 negligence are diametrically opposite to each other. One imports 
 inattention, inadvertence, and indifference, while the other imports 
 intention, purpose, and design. There can be no negligence with in- 
 tent, and no willfulness without intent. It does not strengthen a 
 pleading to allege both negligence and willfulness. The action must 
 be predicated upon one theory or the other. Miller v. Miller, 17 Ind. 
 App. 608, 609, 47 N. E. 338; Louisville, etc., R. Co. v. Bryan, 107 
 Ind. 51, 54, 7 N. E. 807. "'The pleader is not at liberty to leave 
 his pleading open to different constructions, and then take his choice 
 between them.' [Van Etten v. Hurst (1844), 6 Hill (N. Y.) 311, 41 
 Am. Dec. 748.] Facts must be stated directly and positively, and 
 not indirectly nor in the alternative." Langsdale v. Woollen, Adm'r, 
 120 Ind. 78, 80, 21 N. E. 541. * * * in Gregory, Adm'r, v. 
 C, C, C. & I. Ry. Co., 112 Ind. 387, 14 N. E. 229, it is said: 
 "There is a clear distinction between the cases which count upon neg- 
 ligence as a ground of action and those which are founded upon acts 
 of aggressive wrong or willfulness, and a pleading should not be tol- 
 erated which proceeds upon the idea that it may be good either for 
 a willful injury or as a complaint for an injury occasioned by negli- 
 gence. It should proceed upon one theory or the other, and is to be 
 judged from its general tenor and scope." In the same case, at 
 page 387, of 112 Ind., at page 229 of 14 N. E., it is said: "It is 
 only necessary to charge in a complaint which seeks redress for a 
 willful injury that the injurious act was purposely and intentionally
 
 916 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 committed with the intent willfully and purposely to inflict the injury 
 complained of." * * * 
 
 To constitute a willful injury, the act which produced it must have 
 been intentional, or must have been done under such circumstances 
 as evinced a reckless disregard for the safety of others, and a will- 
 ingness to inflict the injury complained of. It involves conduct which 
 is quasi criminal. Louisville, etc., R. Co. v. Bryan, 107 Ind. 51, 7 
 N. E. 807. The breaking of the tile is declared in the complaint be- 
 fore us to have been done negligently and willfully. As we have 
 seen, the injury could not have resulted from both negligence and 
 willfulness, and it is for the court to determine the theory of the 
 complaint from its tenor and scope, without reference to the charac- 
 terization of the act complained of. In this we are not greatly aided 
 by the averments of the complaint. It is not shown in what manner 
 the tile was broken, nor the means employed in the breaking, but it 
 is averred that the same was broken under the main track, and upon 
 the appellee's right of way. This, as well as the fact that the word 
 "negligently" is given precedence, would seem to negative the idea 
 of willfulness. It is highly improbable that appellee would seek to 
 injure the appellant at a place and in a manner involving danger and 
 inconvenience to it, when the same thing might have been done more 
 easily elsewhere on the right of way. We are, therefore, constrained 
 to hold that the words "willfully and purposely" do not control, but 
 that the complaint is one for injury occasioned by negligence. Miller 
 V. Aliller, supra; Chicago, etc., Ry. Co. v. Hedges, Adm'x, 105 Ind. 
 398, 7 N. E. 801 ; Cleveland, etc., Ry. Co. v. Asbury, 120 Ind. 289, 
 
 22 N. E. 140; Louisville, etc., Ry. Co. v. Schmidt, 106 Ind. 7Z, 5 
 N. E. 684; Sherfey, AdnVr, v. Evansville, etc., R. Co., 121 Ind. 427, 
 
 23 N. E. 273.^* 
 
 SECTION 2.— ELEMENTS OF A PRIMA FACIE CASE IN 
 
 NEGLIGENCE 
 
 I. The: Defendant's Duty to Use Car^ 
 
 (A) hi General 
 
 GILES v. WALKER. 
 
 (Queen's Bench Division, 1890. 24 Q, B. Div. C5G.) 
 
 Appeal from the Leicester County Court. 
 
 The defendant, a farmer, occupied land which had originally been 
 forest land, but which had some years prior to 1883, when the defend- 
 ant's occupation of it commenced, been brought into cultivation by the 
 
 n I'arts of the opinion are omitted.
 
 Ch. 1) NEGLIGENCE 917 
 
 then occupier. The forest land prior to cultivation did not bear 
 thistles; but immediately upon its being cultivated thistles sprang 
 up all over it. The defendant neglected to mow the thistles periodi- 
 cally so as to prevent them from seeding, and in the years 1887 and 
 1888 there were thousands of thistles on his land in full seed. The 
 consequence was that the thistle seeds were blown by the wind in 
 large quantities on to the adjoining land of the plaintiff, where they 
 took root and did damage. The plaintiff sued the defendant for such 
 damage in the county court. The judge left to the jury the question 
 whether the defendant in not cutting the thistles had been guilty 
 of negligence. The jury found that he was negligent, and judgment 
 was accordingly entered for the plaintiff. The defendant appealed. 
 
 Toller, for the defendant. The facts of this case do not establish 
 any cause of action. The judge was wrong in leaving the question 
 of negligence to the jury. Before a person can be charged with 
 negligence, it must be shewn that there is a duty on him to take 
 care. But here there is no such duty. The defendant did not bring 
 the thistles on to his land ; they grew there naturally. (He was stop- 
 ped by the Court.) 
 
 R. Bray, for the plaintiff. * * * The case resembles that of 
 Crowhurst v. Amesham Burial Board, 4 Ex. D. 5, where the de- 
 fendants were held responsible for allowing the branches of their 
 3'ew trees to grow over their boundary, whereby a horse of the 
 plaintiff, being placed at pasture in the adjoining field, ate some of 
 the yew twigs and died. 
 
 Lord Coleridge, C. J. I never heard of such an action as this. 
 There can be no duty as between adjoining occupiers to cut the 
 thistles, which are the natural growth of the soil. The appeal must 
 be allowed. 
 
 T.ORD EshEr. M. R. I am of the same opinion. 
 
 Appeal allowed.^^ 
 
 15 Accord: Harndon v. Stnltz (1904) 124 Iowa, 734, 100 N. W. 851: (P. com- 
 plains that 1). bas allowed noxious weeds to grow in large quantities upon his 
 land in close proximity to the division line between the farms of P. and D., 
 and that the wind has carried the seeds over P.'s land, to his damage.) 
 
 Langer v. Goode (1911) 21 N. D. 462, 131 N. W. 258, Ann. Cas. 1913D, 429: 
 (P. sued to recover his damage because D. had neglected to destroy wild mus- 
 tard seed growing in his fann. A statute required that every person destroy 
 upon all lands owned or occupied by him all wild mustard there growing, 
 when the board of county commissioners had prescribed the time and manner 
 of destruction. "Therefore," said P>urr, J., delivering the opinion, "no duty 
 devolves upon any one to destroy these noxious weeds until the board of 
 county commissioners prescribes the time and manner of destruction. It being 
 concedetl that such action was never taken by the board, then no duty devolv- 
 ed upon the defendant.")
 
 918 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 HADWELL V. RIGHTON. 
 
 (King's Bench Division. [1907] 2 K. B. 345.) 
 
 Appeal from the Birmingham County Court. 
 
 The plaintiff was riding a bicycle at the rate of about six miles 
 an hour down a highway called Bordesley Park Road, when he saw 
 in front of him, on the footpath three fowls. When he got abreast 
 of the fowls all three suddenly fluttered up, and one of them flew 
 into the spokes of his bicycle and he was upset, with the result that 
 he suffered personal injuries and his bicycle was damaged. The 
 fowls were the property of the defendant, who occupied premises 
 on the side of the road opposite to the footpath on which the fowls 
 were immediately before the accident. The cause of the fowls start- 
 ing to fly across the road was that they were frightened by a dog 
 which came out of the premises adjoining those of the defendant on 
 which the fowls were kept, and either ran at or barked at them. The 
 plaintiff was riding carefully, and the accident happened through no 
 fault of his. The defendant knew that the fowls were in the habit 
 of straying out into the road. The county court judge held that the 
 damage was too remote a consequence of their being allowed to 
 stray there, and gave judgment for the defendant. The plaintiff ap- 
 pealed. 
 
 Avory, K. C, and Siniey, for the plaintiff. The owner of an ani- 
 mal is liable for its trespasses. He keeps it at his peril, and if it 
 escapes from his premises he is responsible for any damage that natu- 
 rally results from its escape. * * * The case of Lee v. Riley 
 (1865) 18 C. B. (N. S.) 722, supports the plaintift"'s contention. There 
 the defendant's mare strayed into a field of the plaintiff' in which 
 was a horse. From some unexplained cause the animals quarrelled, 
 and the defendant's mare kicked the plaintiff's horse and damaged 
 it. It was held that the damage was not too remote. And the case 
 of Ellis V. Loftus Iron Co. (1874) L. R. 10 C. P. 10, where the 
 facts were very similar, was decided in the same way. * * * 
 
 Bray, J. I am of the same opinion. We cannot decide this case 
 in the plaintiff's favor without overruling Cox v. Burbidge, 13 C. B. 
 (N. S.) 430. We have no power to overrule it, nor should I be in- 
 clined to exercise that power if we could. It is said that the fowl 
 was trespassing. But the cases which were relied upon as shewing 
 that that would give a cause of action were cases in which the plain- 
 tiff was the owner of the soil on which the trespass was committed, 
 and are consequently not in point, for here the cyclist had no interest 
 in the soil of the highway. The plaintiff's case could only be rested 
 on the ground of negligence, as in the case of Harris v. Mobbs, 3 
 Ex. D. 268, where the defendant left a house van on the gras- 
 sy side of the highway for the night, and a horse being driven 
 along the road was frightened by it and bolted. Denman, J., there
 
 Ch." 1) NEGLIGENCH 919 
 
 held the defendant responsible for the consequences, but he did so 
 on the ground that the jury had in effect found "that there was an 
 unreasonable and dangerous occupation of a part of the highway 
 amounting to an obstruction and preventing of its free user by the 
 public to an extent which was unreasonable." Where is there any- 
 thing dangerous in letting fowls stray on a highway? The business 
 of farming could not be conveniently carried on if such an act were 
 not permissible. Homesteads are usually near a road, and it is prac- 
 tically impossible to keep fowls in. I should not hesitate to find 
 that there was no danger at all in allowing them so to stray. Such 
 an accident as this I have never heard of before. And, in the ab- 
 sence of anticipated danger, there is no room for the suggestion of 
 negligence. 
 
 Appeal dismissed.^* 
 
 PITTSBURG, FT. W. & C. RY. CO. et al. v. BINGHAM. 
 (Supreme Court of Ohio, 1876. 29 Ohio St. 364.) 
 
 The original action was brought by the defendant in error, as the 
 personal representative of her deceased husband, against the railway 
 company, under the act requiring compensation to be made for caus- 
 ing death by a wrongful act, neglect or default. The deceased was 
 at the defendant's station-house in Massillon, on December 5, 1870, 
 and while there was struck by a portion of its roof, torn off by the 
 wind, and blown, during a violent storm, from the building, with 
 such force against him as to cause his death. The defendants were 
 charged with negligence in the construction and maintenance of the 
 station-house. 
 
 Issue was joined upon the question of negligence. The evidence 
 tended to show that the deceased, at the time of receiving the injury 
 resulting in his death, was at this passenger station, not for the pur- 
 pose of transacting any business with the company, its agents or serv- 
 ants, or with any one rightfully there, nor on business in any wise 
 connected with the operation of the road; but being out of employ- 
 ment was there for pastime or pleasure, or as a place of safety dur- 
 ing the continuance of a violent storm. After the testimony was 
 concluded, the court instructed the jury: 
 
 That if the deceased was at, in or near the said depot, not on any business, 
 but "was there by the tacit permission of, and without objection from." the 
 company operating the road, "its aj-'ents and servants, and there peaceably and 
 innocently, relying upon such station-house as a place of security," and was 
 free from negligence contributing to his injury- and consequent death, and 
 ordinary care and skill was not employed in the construction and mainte- 
 nance of the station-house, but from want of such care and skill it was de- 
 fectively and insufficiently constructed, and huprudently and negligently main- 
 tained and used, and by reason thereof the deceased lost his life, the company 
 was liable. 
 
 16 The opinion of I'hillimore, J., is omitted.
 
 920 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part ? 
 
 The defendant excepted to that part of the charge that held it 
 to be the duty of the company to have exercised due care in the con- 
 struction and maintenance of the building, if the deceased entered 
 and was there by "mere permission and without objection"; and from 
 a judgment against it, carried the cause to the district court, where 
 the judgment of the common pleas was affirmed. A petition in 
 error is now prosecuted to reverse both judgments.^^ 
 
 BoYNTON, J. We find in the record of the present case among the 
 questions argued, but one deserving consideration ; and that one may 
 be stated as follows : "Is a railroad company bound to exercise ordi- 
 nary care and skill in the erection, structure, or maintenance of its sta- 
 tion-house or houses, as to persons who enter or are at the same, not 
 on any business with the company or its agents, nor on any business 
 connected with the operation of its road; but are there without objec- 
 tion by the company, and therefore by its mere sufferance or permis- 
 sion ? " * * * 
 
 Actional negligence exists only where the one whose act causes or 
 occasions the injury owes to the injured person a duty, created either 
 by contract or by operation of law, which he has failed to discharge. 
 In Burdick v. Cheadle, 26 Ohio St. 393, 20 Am. Rep. 767, the owner 
 of a store building had leased it to a tenant, who was in occupancy of 
 the same, selling goods therein. Certain shelvings and fixtures not prop- 
 erly secured, fell, and injured the plaintiff, a customer of the tenant, 
 for which injury the customer brought action against the landlord. It 
 was said by Mcllvaine, J., that there was no privity between the owner 
 of the property and the plaintiff, and that the former owed no duty to 
 the latter which was violated by a careless construction or fastenings 
 of the fixtures ; and that the fact that the room was kept open for the 
 customers of the tenant did not aft'ect the question. 
 
 But the question naturally arises, to what extent does the right of a 
 railroad company to the control and use of its real property differ from 
 that of a general owner of land not burdened or encumbered with a 
 public charge? What restrictions and limitations are imposed upon 
 the use and enjoyment of the real property of the company that do 
 not exist in the case of ownership of property not employed for public 
 purposes? These questions are not difficult to answer. The right to 
 the possession and control of the property of a railroad corporation 
 for all purposes contemplated by its charter, and to enable it to accom- 
 plish the objects for which it was created, is indispensable to the prop- 
 er discharge of the duties it owes to the public. By accepting a grant 
 of corporate power from the state, it bound itself to do and perform 
 certain things conducive to the public welfare. And these things con- 
 sist principally in the duty to carry and transport persons and property 
 from one point on its road to another, under such reasonable rules and 
 
 17 The statement of tlie facts is abridged and parts of the opinion are omit- 
 ted.
 
 Ch. 1) NEGLIGENCE 921 
 
 regulations as it may prescribe to itself, or as may be prescribed by 
 more general law. The obligation to carry, thus assumed, can not be 
 disregarded or rejected at pleasure. It is an indispensable condition to 
 the right to exercise corporate functions. The duty to carry is correl- 
 ative to the existence of the corporate power of the company, and ceas- 
 es only with the surrender of its corporate privileges. It is, therefore, 
 a right that the public have to enter upon the premises of the company 
 at points designed or designated for receiving passengers, and upon 
 compliance with the rules governing the transportation of persons to 
 be carried over its road to such points thereon as they may desire. The 
 right of the public to enter is coextensive with the duty of the company 
 to receive and carry. It, however, cannot be extended beyond this. 
 For all purposes not connected with the operation of its road, the right 
 of the company to the exclusive use and enjoyment of the corporate 
 property is as perfect and absolute as is that of an owner of real prop- 
 erty not burdened with public or private easements or servitudes. * * * 
 
 His [the deceased's] presence at the depot was uninvited, and the 
 company did not owe him the duty to keep its station-house in a safe 
 and secure condition. Its negligence, if any, was necessarily negligence 
 of omission, negligence in having omitted the exercise of ordinary care 
 to ascertain the dangerous character of the building. If the question 
 was between the company and its employes, whose duty it was to oc- 
 cupy the building, or if it arose between the company and those who 
 came to take passage on its cars, or to accompany a friend about to de- 
 part, or to await the arrival of one expected, or to engage in any busi- 
 ness connected with the operation of the road, or business with those 
 engaged in its service and having a legal right to be and remain there ; 
 or, if the company had possessed knowledge, in fact, of the dangerous 
 character or condition of the building, and gave no notice thereof to 
 those it permitted to enter or occupy, other considerations would arise. 
 It, however, is not charged with intentional wrong, nor with that gross 
 or reckless misconduct that is difficult to distinguish from it, and 
 therefore is equivalent to it. All it could have done, when the storm 
 approached, to save the deceased from harm, was to see that he left 
 the building and thereby escaped the danger. This was not a legal 
 duty. He was injured by no act of the company, or its servants or 
 agents, occurring at the time. The fault w^as of past origin and nega- 
 tive in character, consisting in not previously overhauling the building, 
 ascertaining its defects and weaknesses, and supplying the needed 
 strength and support. For this omission, or its resulting consequences, 
 a stranger has no right to call it to account. 
 
 Judgment of the district court and of the common pleas reversed, 
 and cause remanded.
 
 922 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 LANE V. cox. 
 
 (In the Court of Appeal. [1897] 1 Q. B. 415.) 
 
 The defendant was owner of a house which he let unfurnished to a 
 weekly tenant. There were no covenants to repair on the part of either 
 the landlord or the tenant. The plaintiff was a workman, who came upon 
 the premises at the request of the tenant for the purpose of moving 
 some furniture. While so employed the plaintiff was injured owing 
 to the defective state of the staircase in the house. There was evidence 
 that at the time the house was let the staircase was in an unsafe con- 
 dition. The plaintiff brought this action to recover damages for the 
 injuries he had sustained, and it was tried before the Lord Chief Jus- 
 tice, who entered a nonsuit. The plaintiff appealed. 
 
 Lord EshEr, M. R. * * * There was evidence that the de- 
 fendant was owner of the house, but that it was let at the time of the 
 accident to a tenant who was in possession of it. There was evidence 
 that at the time the house was let it was in an unsafe condition. The 
 plaintiff was in the house to remove furniture of the tenant's, and he 
 sustained an injury owing to the defect in the staircase. \The question 
 is raised whether the defendant under these circumstances is liable to 
 the plaintiff. There was no contractual relation between the plaintiff 
 and the defendant, and it was not like the case of a person who keeps 
 a shop to which he intends people to come. 
 
 f It is said however that the defendant was guilty of negligence which 
 red~to the accident because he left the house in a defective condition^ 
 (__It has been often pointed out that a person cannot be held liable for 
 negligence unless he owed some duty to the plaintiff and that duty was 
 neglected-^ There are many circumstances that give rise to such a duty, 
 as, for instance, in the case of two persons using a highway, where 
 proximity imposes a duty on each to take reasonable care not to inter- 
 fere with the other. So if a person has a house near a highway, a duty 
 is imposed on him towards persons using the highway; and similarly 
 there is a duty to an adjoining owner or occupier, and if by the negligent 
 management of his house he causes injury, in either of these cases he is 
 liable. In this case the negligence alleged is letting the house in an 
 unsafe condition. It has been held that there is no duty imposed on a 
 landlord, by his relation to the tenant, not to let an unfurnished house 
 in a dilapidated condition, because the condition of the house is the 
 subject of contract between them. If there is no duty in such a case 
 to the tenant, there cannot be a duty to a stranger. There was, there- 
 fore, no duty on the part of the defendant to the plaintiff, and there 
 could be no liability for negligence, and the nonsuit was rigiit. 
 
 Lopes, L. J. I am of the same opinion. What is complained of 
 in this case is a defect in a staircase of a house let by the defendant to 
 a tenant. It is said that the lessor is liable for an injury sustained by 
 a workman employed by the tenant. There is no liability either on the
 
 Ch. 1) NEGLIGENCE 923 
 
 landlord or the tenant to put or keep the demised premises in repair, 
 unless such liability is created between them by contract. No cofitrac- 
 tual relation in this respect is implied on the letting of an unfurnished 
 house. A landlord who lets a house in a dangerous or unsafe state in- 
 curs no liability to his tenant, or to the customers or guests of the ten- 
 ant, for any accident which may happen to them during the term, un- 
 less he has contracted to keep the house in repair. That disposes of 
 this case so far as any liability of the landlord arising out of contract 
 is concerned. But then it is said that the claim of the plaintiff may be 
 grounded on the negligence of the defendant. There cannot be a lia- 
 bility for negligence unless there is a breach of some duty ; and no duty 
 exists in this case to the tenant, and none can be alleged to strangers. 
 The case differs entirely from those in which property is in a danger- 
 ous state by reason of which an injury happens to one of the public 
 on a highway, or to the occupier of an adjoining house. I think the 
 appeal should be dismissed. 
 
 RiGBY, Iv. J., concurred. 
 
 Appeal dismissed.^® 
 
 18 Part of opinion of Lord Esher, M. R., is omitted. 
 
 Compare: Cavalier v. Pope, [1906] A. C. 42S: (D., the owner of a dilapidated 
 house, rented it furnished, on an oral agreement, to H. The floor of the 
 liitchen being out of repair, H. and his wife, W., threatened t'o leave, but re- 
 mained after D. had promised H. to repair it. No repairs were made and as 
 a result W. fell through the kitchen floor and was hurt. An action by H. 
 and W. against D. resulted in a verdict of £25 for H. and £75 for W. The 
 trial judge entered judgment accordingly, holding that, although W. could not 
 recover against D. in contract, she could recover in tort. The Court of Ap- 
 peal [one judge dissenting] reversed this decision as to the £75 and entered 
 judgment for D. on W.'s claim, and against D. on H.'s claim. There was an 
 appeal to the House of Lords. 
 
 Lord James of Hereford. "My Lords, I have with regret arrived at the 
 conclusion that this appeal must fail. In my opinion, the verdict for the ap- 
 pellant cannot be maintained. There was but one contract and that was made 
 with the husband. The wife cannot sue upon it. Then, is there any other 
 form in which her claim can be maintained? It was ably argued at the 
 Bar that, as the premises belonged to the defendant, he must be taken to be in 
 possession of them, and that, therefore, a duty arose to maintain them in 
 a condition tliat would not cause injury to anyone who came upon them. 
 But there seems to be a fallacy in this argument. The defendant was not 
 in actual possession of the house in question and did not occupy it. The 
 plaintiffs were the occupiers and the statement of claim so alleges. No duty 
 is cast' upon a landlord to effect internal repairs unless he contracts to do so. 
 Then all that remains on which to found liability is the contract, and it was 
 urged that the contract to repair placed the premises constructively in the 
 I)ossession of the defendant and under his conti-ol. But the actual posses- 
 sion by the plaintiffs seems to negative this constructive control. The case 
 so presented also does not come within the claim on the contract under 
 which the husband has recovered. I therefore feel that the judgment of the 
 majority of the Court of Appeal must be maintained. I regret this result, be- 
 cause the female plaintiff was injured entirely through tlie failu.re of the 
 defendant's agent to fulflll the contract he made. But moral responsibility, 
 however clearly established, is not identical with legal liability." The order of 
 the Court of Appeal was affirmed, and the appeal dismissal.)
 
 924: TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3" 
 
 J RICHARDSON v. BABCOCK & WILCOX CO. 
 
 (Circuit Court of Appeals of the United States, First Circuit, 1910. 175 Fed. 
 
 897, 99 C. C. A. 3o.3.) 
 
 Aldrich, District Judge. The records before us present two cases 
 of Mrs. Richardson, administratrix, against the Babcock & Wilcox 
 Company, one for the death of her husband and the other for conscious 
 suffering. Both cases are controlled by the conclusion which we reach, 
 that of nonliability. The liability in personal injury cases speaking 
 generally, springs either from relationship or duty, as, for instance, in 
 one class of cases, the obligation grows out of the relationship between 
 employer and employe. The obligation of the employer is to furnish 
 a reasonably safe place and reasonably safe appliances, and the obli- 
 gation of the employe is to exercise reasonable care. And the rule of 
 care is that which a person, similarly situated, would exercise, and this 
 means ordinary care and prudence. These obligations result from the 
 relationship through implication of law. The same is true of the lia- 
 bility of the carrier for hire. And as to one who, in the exercise of 
 his right or business, injures a member of the public, who is in the 
 exercise of his right, or while in the line of duty, it is the duty in 
 respect to the relative rights which creates or implies the obligation to 
 exercise reasonable care. If, in view of relationship or duty, a given 
 party fails to discharge his obligation, the liability results in tort. 
 
 There are several counts in each writ. Some of them allege that the 
 plaintiff" was in the employ of the New York, New Haven & Hart- 
 ford Railroad Company, and was in the line of duty, and that he was 
 injured through the defendant's negligence; and some of the counts 
 expressly allege that he was not in the employ or service of the defend- 
 ant. Therefore we assume that the plaintiff's case is not within the 
 rules which govern where the existing relationship is that of em- 
 ployer and employe, and this assumption is made because the relation- 
 ship from which the ordinary implied obligations arise is wholly want- 
 ing. 
 
 The evidence shows that at the time of the accident the defendant 
 was installing heavy boilers in the power house of the New York, New 
 Haven & Hartford Railroad Company in Readville, IMass., under spe- 
 cial contract. Mr. Richardson was a stationary engineer in the em- 
 ploy of the railroad company in its railroad shops at Readville, and on 
 the day in question had occasion to pass from one part of the shops 
 to another part, on business connected with his duty to the railroad, 
 his employer. When he came to a doorway, through which he would 
 ordinarily pass on such a journey, he found that the defendants were 
 lowering a section of tubing, some eighteen feet in length, which had 
 entered the doorway some three or four feet. When Mr. Richardson 
 reached this point he stepped on stringers and passed safely over or 
 by the tubing into the yard beyond. There was some lack of harmony
 
 Ch. 1) NEGLIGENCE 925 
 
 in the evidence as to just how far the tubing had entered the door- 
 way, and just how much of an obstruction it was; but we pass over 
 the details of such controversy as of no controlhng consequence, be- 
 cause Mr. Richardson had passed safely beyond the obstruction, into 
 an open yard between the buildings, and because we think the case is 
 controlled by what followed. 
 
 Those in the employ of the defendant w^ere having some difficulty 
 in passing the tubing through the doorway, and, without any request 
 from the defendant's servants for him to do so, and without any 
 duty by reason of the relationship between him and the defendant as 
 their employe, or as the employe of the railroad, because the defend- 
 ants were doing the work under special contract, ]\Ir. Richardson vol- 
 unteered to lend a helping hand, and. w^hile lifting, as the tubing was 
 beginning to pass through the doorway, it started down an incline and 
 a rope parted, and ]\Ir. Richardson was jammed between the tubing 
 and the doorway and fatally injured. Thus it appears that ^^Ir. Rich- 
 ardson was not injured while in the line of duty. He had passed the 
 place of hazard in safety, and, departing from his duty, returned to 
 help another. 
 
 The law does not furnish redress in damages for every misfortune. 
 In order to create liability for personal injury, the plaintiff must not 
 only show that he was in the exercise of due care, but that the defend- 
 ant was lacking in some duty which it owed to him, either as an em- 
 ploye or as a member of the public. This case, as already observed, is 
 not within the class governed by the rules of ordmary care, because 
 there was no contractual relationship between Air. Richardson and the 
 defendant. Xor is it the case of invitation, where a member of the 
 public by invitation comes to help. The facts plainly show, and there 
 was no dispute about it, that he took hold to help, as men oftentimes 
 give a lift at the wheel wdien they find a neighbor stuck in the mud ; 
 and under such circumstances there is no liability on the part of the 
 neighbor for an injury received, unless the injured party establishes 
 gross negligence, willfulness, or wantonness in respect to his safety. 
 In a legal sense the plaintiff's intestate was a volunteer, a stranger to 
 the operations involved in moving the heavy articles in question, and 
 so far as the relationship and the duties between the parties are con- 
 cerned, this case is within the principle of Currier v. Trustees of Dart- 
 mouth College, 117 Fed. 44, 54 C. C. A. 430, and. while that case had 
 some strong suggestions of invitation, it was said by Judge Putnam, 
 speaking for the Court of Appeals, that the plaintiff was "of the class 
 of those who must take care of themselves, except as against wanton- 
 ness or willfulness, or except under peculiar conditions of some undis- 
 covered danger." We think it very plain, and so plain that we need 
 not cite authorities, that if a plaintiff recovers at all under the circum- 
 stances of this case, it must be on the ground that the defendant was 
 grossly negligent in the selection of appliances, or that there was some 
 wanton or willful conduct which caused the hurt. It is apparent that
 
 926 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 counsel drawing the writs were aware of the distinction between 
 a case like this and the case of an injured employe, because in several 
 of the counts they alleged that Richardson was not in the employ of 
 the defendants, and that the defendants were grossly negligent. 
 
 The Circuit Court directed a verdict upon the ground of contril)u- 
 tory negligence ; but it is a familiar rule that an order for a verdict 
 may be sustained, not only upon the reason expressed but upon any 
 ground which warrants the result. We think there was no evidence 
 of gross negligence in this case in respect to appliances, and there was 
 no suggestion of wanton or wilful conduct on the part of the defend- 
 ant. Therefore the plaintiff was not entitled to go to the jury, and the 
 situation justifies the order directing a verdict for the defendant. 
 Having reached this conclusion, there is no occasion for dealing with 
 the question of contributory negligence. 
 
 In each case: The judgment of the Circuit Court is affirmed, with 
 costs. 
 
 CARLISLE & CUMBERLAND BANKING CO. v. BRAGG. 
 (In the Court of Appeal. [1911] 1 K. B. 489.) 
 
 Application by plaintiffs for judgment or a new trial in an action 
 tried before Pickford, J., with a jury. 
 
 The action was upon a document which purported to be a continu- 
 ing guarantee by the defendant, up to the amount of il50, of the pay- 
 ment by one Rigg to the plaintiffs of any sum which might, at any time 
 thereafter, be or become due from him to the plaintiffs on the general 
 balance of his banking account with them. The defendant in his de- 
 fence denied that he signed the guarantee upon which the action 
 was brought, and alleged that if he did, his signature to the same was 
 fraudulently obtained by Rigg, who falsely represented to him that 
 the said guarantee was an insurance paper. The evidence, so far as 
 material to this report, appeared to be in substance as follows. 
 
 The signature to the document was in fact the defendant's. Before 
 the document was signed, the plaintiffs had required from Rigg a guar- 
 antee of his overdraft with them. On the occasion when the document 
 was signed the defendant and Rigg had been drinking together. Rigg 
 produced a paper, and asked the defendant to sign it ; he did not read 
 it to the defendant, or tell him it was a guarantee. He told the defend- 
 ant that the paper which the defendant had signed on a previous day 
 had got wet and blurred in the rain. The defendant did not read the 
 paper which he was asked to sign, and stated in evidence that he did 
 not know that it was a guarantee ; that he thought that Rigg was re- 
 ferring to a paper which he, the defendant, had previously signed con- 
 cerning some insurance matter, and that the paper which he was asked 
 by Rigg to sign was to the same effect as that paper. Rigg, having pro- 
 cured the defendant's signature to the document, subsequently forged
 
 Ch. 1) NEGLIGENCE 927 
 
 the signature of an attesting witness to it, and handed it to the plain- 
 tiffs. It was not disputed that Rigg was indebted to the plaintiffs on his 
 banking account to the amount claimed in the action. The questions 
 left by the learned judge to the jury and their answers thereto were as 
 follows : 
 
 (1) Was the defendant induced to sign tlie guarantee by the fraud of Rigg? 
 — Yes. (2) Did the defendant Ivnow that the document which he signed was 
 a guarantee? — No. (3) Was the defendant negligent in signing the guarantee? 
 — Yes. (4) Was Rigg the agent of the bank? — No. 
 
 Upon these findings, the learned judge, on the authority of Swan 
 V. North British Australasian Co. (1862) 7 H. & N. 603, (1863) 2 H. 
 & C. 175, gave judgment for the defendant. 
 
 Vaughan Williams, L. J. In my opinion the judgment of Pick- 
 ford, J., in this case was quite right. He held that the finding of neg- 
 ligence by the jury was immaterial, and he did so after discussing the 
 case of Foster v. Mackinnon, L. R. 4 C. P. 704, and coming to the con- 
 clusion that the doctrine there laid down as regards negligence really 
 has reference to the particular case of a negotiable instrument, to an 
 action on which the defence that the defendant was induced to sign 
 the instrument by fraud and misrepresentation as to its nature is set 
 up as against a bona fide holder for value. As I understand it, that 
 doctrine is limited to negotiable instruments, and that was really the 
 judgment of Pickford, J., in this case. 
 
 Now let me deal with the matter apart from any question of nego- 
 tiable instruments. In this case the finding of the jury is that the sig- 
 nature of the defendant to this document was obtained by fraud. The 
 jury was asked "Was the defendant induced to sign the guarantee by 
 the fraud of Rigg?" They answered that he was. They then were 
 asked : "Did the defendant know that the document he signed was a 
 guarantee?" They answered in the negative. It seems to me that on 
 these findings alone the defendant would be entitled to say in respect 
 of this guarantee that it was not in contemplation of the law signed by 
 him. His signature was obtained by fraud, and it is manifest on the 
 evidence and the findings of the jury, that he was not intending to sign 
 any such document. What he was intending to sign was some document 
 with reference to insurance. It appears to me that under the circum- 
 stances of this case the mere fact that the jury have found that there 
 was negligence on the part of the defendant does not raise such an 
 estoppel as prevents the defendant from setting up the defence that 
 he never signed the guarantee and that his signature to the document 
 was obtained from him by fraud ; that he did not know of its nature, or 
 intend to sign a document of that description. If the document 
 in question had not been a guarantee, but a bill of exchange, and the 
 question had arisen what was the position of a holder for value with- 
 out notice of the fraud, the matter might have been different, because 
 the law merchant, and now the statute law, puts persons who in such 
 circumstances take bills of exchange and such like instruments in tlie
 
 928 TORTS THEOUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 position that they have to prove that they gave value for the bill or 
 other like instrument honestly, but, if they prove that, it does not mat- 
 ter that it was originally procured by fraud. 
 
 The only other thing which I wish to say is on the question of neg- 
 ligence. I do not know whether the jury understood that there could 
 be no material negligence unless there was a duty on the defendant to- 
 wards the plaintiff. Even if they did understand that, in my opinion in 
 the case of this instrument, the signature to which was obtained by 
 fraud, and which was not a negotiable instrument, Pickford, J., was 
 right in saying that the finding of negligence was immaterial. I wish 
 to add for myself that in my judgment there is no evidence whatso- 
 ever to shew that the proximate cause of the plaintiffs' advancing mon- 
 ey on this document was the mere signature of it by the defendant. In 
 my opinion the proximate cause of the plaintiffs' making the advance 
 was that Rigg fraudulently took the document to the bank, having 
 fraudulently altered it by adding the forged signature of an attesting 
 witness, and but for Rigg having done those things, the plaintiffs would 
 never have advanced the money at all. Under these circumstances I 
 think the appeal fails and must be dismissed. 
 
 BucKLKY, L. J. * * =!= There remains the question whether the 
 defendant is estopped. On that question I agree that the existence 
 of negligence may be relevant. I do not wish to add anything 
 to wh.at Vaughan Williams, L. J., has said on the subject. I do not 
 think that there was in this case proof of any such negligence as would 
 avail the plaintiffs as between themselves and the defendant. The de- 
 fendant did not owe any duty to the plaintiffs, and the act of the de- 
 fendant was not the act which involved the plaintiffs in loss. What 
 involved the plaintiff's in loss was the act of Rigg, a rogue, who ob- 
 tained from the defendant his signature to an instrument which he 
 never intended to sign, and having thus defrauded the defendant, pro- 
 ceeded to do another act, which was what caused the plaintiffs loss. 
 He took the document thus fraudulently obtained, and pretended to the 
 plaintiffs that it was a genuine guarantee given by the defendant. In 
 point of fact it was not. He knew how he had procured it and that he 
 had forged the signature of an attesting witness. It was that act which 
 involved the plaintiffs in loss. Upon these grounds I think the appeal 
 fails and should be dismissed. 
 
 Application dismissed.^® 
 
 19 Fart of the opinion of Buckley, L. J., and the opinion of Kennedy, L. .7., 
 are omitted.
 
 Ch. 1) NEGLIGENCE 929 
 
 BARRETT v. CLEVELAND, C, C. & ST. L. RY. CO. 
 
 (Appellate Court of ludiaim, 1911. 48 Ind. App. 66S, 96 N. E. 490.) 
 
 Barrett brought this action against the railway company to recover 
 damages for the breaking down of a tile drain on the right of way 
 and under the tracks of the defendant. After alleging that the de- 
 fendant was a corporation operating a line of railway over and 
 through the lands of the plaintiff in Rush county, the complaint 
 averred : 
 
 "That before said railway was constructed there was a good and sufficient 
 tile drain across the lauds of plaintiff, running from a westerly to an easter- 
 ly direction to the lands of Frederick Leisure, and thence to Blue river ; that 
 said drain was ample and sufficient properly to drain said lauds of plaintiif, 
 but tliat said defendant constructed its said railway across said lands from 
 a northeasterly to a southwesterly direction over and across said tile drain; 
 that on or about April 1, 1906, said railway company negligently, willfully 
 and purposely broke the tile in said drain at a point under its main track, 
 on its right of way on said lands, thereby causing said drain to cave in and 
 obsti'uct the free flow of water therethrough; that, as a further obstruction 
 to the flow of water through said drain, said railway company, by its officers, 
 agents and employes, filled said drain with dirt and gravel, so as wholly to 
 obstruct the flow of water through said drain, and thereby caused the water 
 that should flow through said drain to back and overflow the lands of plaintitf, 
 so as to render said lands uuflt for farming or for any purpose whatever; 
 that before said drain was so broken and filled by defendant, said 
 lands were fertile, dry and veiy productive, and in fit and proper con- 
 dition to raise all kinds of farm products, but by the action of defendant, 
 aforesaid, said lands were rendered wet and unfit for farming or for any 
 other purpose: that by reason of the action of defendant, its agents and em- 
 ployes, said plaintiff's lands and all growing crops thereon were overflowed 
 each and every year since tlie obstruction was made, and a large tract of 
 land, to wit, twenty-five acres, was rendered useless and of uo value, to the 
 injury and damage of the plaintiff in the sum of $1,000." 
 
 A demurrer to this complaint, for want of facts sufficient to consti- 
 tute a cause of action, being overruled, the defendant answered in 
 two paragraphs. The first was in denial; the second set out certain 
 affirmative facts. A demurrer to this second paragraph of the an- 
 swer was carried back by the court, and sustained to the complaint. 
 The plaintiff thereupon refused to plead further and elected to stand 
 by his exception to carrying the demurrer back, and sustaining it to 
 the complaint. Judgment was rendered against the plaintiff for costs. 
 
 Adams, J.^° * * * 'plig error relied on for reversal in this . 
 court relates to the overruling of appellant's demurrer to the sec- 
 ond paragraph of answer, and the action of the court in carrying said 
 demurrer back, and sustaining it to the complaint. 
 
 If there was no error in sustaining the demurrer to the complaint, 
 then the action of the court in overruling the demurrer to thf second 
 
 2 The statement of facts is abridged, and only so much of the opinion is 
 given as relates to the one point. 
 
 Hepb.Tobts — 59
 
 930 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 paragraph of answer would not be error, even if said paragraph were 
 bad, under the well-recognized rule that a bad answer is good enough 
 for a bad complaint. Alexander v. Spaulding (1903) 160 Ind. 176, 
 66 N. E. 694; Grace v. Cox (1896) 16 Ind. App. 150, 44 N. E. 
 813. * * * -^ 
 
 The question then for determination is. Does the complaint state 
 a cause of action for negligence? * * * fhe complaint only 
 states that, before the construction of appellee's railroad, there was 
 a good and sufficient tile drain from the lands of appellant through 
 the lands of another, and thence to the outlet ; that at a subsequent 
 date the appellee broke down the tile under its main track, and on 
 its right of way, and also filled up the ditch. It is not shown how or 
 from whom the right of way was obtained. It is not shown that the 
 appellee had any knowledge of the existence or the location of the 
 tile ditch. No contractual or prescriptive right is claimed by the ap- 
 pellant, and it does not appear that the ditch was a natural water 
 course or a public drain. 
 
 The evident theory of the complaint is that appellee, having come 
 into possession of a right of way across which a private tile drain 
 extended, and through which appellant secured an outlet for the 
 surface water accumulating upon his lands, was bound to keep such 
 tile drain open and in working order for the benefit of appellant. The 
 law does not impose such a burden upon the appellee. This subject 
 was fully discussed in the well-considered case of Cleveland, etc., R. 
 Co. v. Huddleston, 21 Ind. App. 621, 52 N. E. 1008, 69 Am. St. Rep. 
 385, and the principle stated as follows : "An artificial waterway may 
 not be constructed or maintained, except by authority of law, or un- 
 der a contract, in any case where it imposes a burden upon the prop- 
 erty of an adjacent owner." In the same case, 21 Ind. App. 625, 
 52 N. E. 1010, 69 Am. St. Rep. 385, the court quoted with approval 
 the following from O'Connor v. Fond du Lac, etc., Ry. Co., 52 Wis. 
 526, 9 N. W. 287, 38 Am. Rep. 753: "The company has only ob- 
 structed a ditch which drained or carried oft surface water from the 
 plaintiff's premises. We do not think the defendant was bound to 
 keep that ditch open on its own land for the convenience of the plain- 
 tiff ; in other words, the owner of the land is under no legal obliga- 
 tion to provide a way for the escape of mere surface water coming 
 onto his land from the land of his neighbor, but has the right to 
 change the surface of the ground so as to interfere with or obstruct 
 the flow of such water." See, also, Jean v. Pennsv. Co., 9 Ind. App. 
 56, 36 N. E. 159; New York, etc., R. Co. v. 'Speelman, 12 Ind. 
 
 21 In the omitted portion of the opinion the ooiu't considers the question 
 whether the complaint sliows a cause in neiili.irence or a cause for intentional 
 injury, and reached tlie conclusion that the cause alleg:ed is for nej^liirenf e. 
 On the principle involved, see ante, "The I'lace of Negligence in the Field of 
 Torts."
 
 Ch. 1) NEGLIGENCE 931 
 
 App. 372, 40 N. E. 541; Cairo, etc., R. Co. v. Stevens, 73 Ind, 278, 
 38 Am. Rep. 139; Clay v. Pittsburg, etc., Ry. Co., 164 Ind. 443, 73 
 N. E. 904; Atchison, etc., R. Co. v. Hammer, 22 Kan. 763, 31 Am. 
 Rep. 216. 
 
 The complaint does not state a cause of action, and there was no 
 error in carrying back and sustaining a demurrer thereto. Judgment 
 affirmed. 
 
 HURLEY V. EDDINGFIELD. ^ 
 
 (Supreme Court of Indiana, 1901. 156 Ind. 416, 59 N. E. 1058, 53 L. R, 
 A. 135, 83 Am. St. Kep. 198.) 
 
 Action by Hurley, as administrator, against Eddingfield. From a 
 judgment in favor of the defendant, the plaintiff appeals. 
 
 Baker, J. The appellant sued appellee for $10,000 damages for 
 wrongfully causing the death of his intestate. The court sustained 
 appellee's demurrer to the complaint, and this ruling is assigned as 
 error. 
 
 The material facts alleged may be summarized thus : At and for 
 years before decedent's death appellee was a practicing physician at 
 Mace, in Montgomery county, duly licensed under the laws of the 
 state. He held himself out to the public as a general practitioner of 
 medicine. He had been decedent's family physician. Decedent be- 
 came dangerously ill, and sent for appellee. The messenger informed 
 appellee of decedent's violent sickness, tendered him his fee for his 
 services, and stated to him that no other physician was procurable in 
 time, and that decedent relied on him for attention. No other physi- 
 cian was procurable in time to be of any use, and decedent did rely on 
 appellee for medical assistance. Without any reason whatever, appel- 
 lee refused to render aid to decedent. No other patients were requir- 
 ing appellee's immediate service, and he could have gone to the relief 
 of decedent if he had been willing to do so. Death ensued, without 
 decedent's fault, and wholly from appellee's wrongful act. The al- 
 leged wrongful act was appellee's refusal to enter into a contract of 
 employment. 
 
 Counsel do not contend that, before the enactment of the law regu- 
 lating the practice of medicine, physicians were bound to render pro- 
 fessional service to every one who applied. Whart. Neg. § 731. The 
 act regulating the practice of medicine provides for a board of ex- 
 aminers, standards of qualification, examinations, licenses to those 
 found qualified, and penalties for practicing without license. Acts 
 1S97, p. 255 ; Acts 1899, p. 247. The act is a preventive, not a com- 
 pulsive, measure. In obtaining the state's license (permission) to prac- 
 tice medicine, the state does not require, and the licensee does not en- 
 gage, that he will practice at all or on other terms than he may choose
 
 932 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 to accept. Counsel's analogies, drawn from the obligations to the 
 public on the part of innkeepers, common carriers, and the like, are 
 beside the mark.* 
 Judgment affirmed. 
 
 ♦ITnrley v. E(klin?f1old, althonsh not a negligence case, indicates the scope of 
 /the priiu iple in negligence which is under examination here. 
 
 See also: Union Pacific R. Co. v. Cappier (1903) GO Kan. 649, 72 Pac. 281, 
 69 L. R. A. 51.3: While trespassing on defendant's railway track C. was 
 struck hy a freight car pushed by a locomotive ; a leg and an arm were cut 
 off hy the Avheels. The engine was stopped and the wounded man was moved 
 to the side of tlie right of way, when the engine and the crew left. \vith(nit 
 Immediately binding up C.'s wounds or trying to stop the blood. But they 
 telei)honcd from the railway yards for an ambulance, which reached C. about 
 30 minutes later. He died a few hours after reaching the hospital. In an 
 action to recover damages for C.'s death, Smith, J., delivering the opinion, 
 remarks as follows: "We are unable, however, to approve the doctrine that 
 when the acts of a trespasser lilmself result in his injury, where his own 
 negligent conduct is alone the cause, those in charge of the instrument which 
 inflicted the hurt, being innocent of wrongdoing, are nevertheless blamable in 
 law if they neglect to administer to the sufferings of him whose woiuids we 
 might say were self-imposed. With the liumane side of the question courts 
 are not concerned. It is the omission or negligent discharge of legal duties 
 only which come \Adthin the sphere of judicial cognizance. For withholding 
 relief from the suffering, for failure to respond to the calls of worthy char- 
 ity, or for faltering in the bestowment of brotherly love on the unfortunate, 
 penalties are found not in the laws of men, but in that higher law, the viola- 
 tion of \Ahich is condemned by the voice of conscience, whose sentence of pun- 
 ishment for the recreant act is swift and sure. In the law of contracts it is 
 now well understood that a promise founded on a moral obligation will not be 
 enfoi'ced in the courts. Bishop states that some of the older authorities rec- 
 ognize a moral obligation as valid, and says: 'Such a doctrine, carried to its 
 legitimate results, would release the trilmnals from the duty to administer 
 the law of the land, and put in the place of law the varying ideas of morals 
 w^hich the changing incumbents of the bench might from time to time enter- 
 tain.' Bishop on Contracts, § 44. Ezelle's injuries were inflicted, as the 
 court below held, without the fault of the yardmaster, engineer, or flreman 
 in charge of the car and locomotive. The railway company was no more re- 
 sponsible than it would have been had the deceased been run down l)y the 
 ears of, another i-ailroad company on a track parallel with that of plaintiff' in 
 error. If no duty was imposed on the servants of defendant below to take 
 charge of and care for the wounded man in such a case, how could a duty 
 arise under the circumstances of the case at bar?" 
 
 For limitations, see Bradshaw v. Frazier (1901) 113 Iowa 579. 85 N. W. 
 752. 55 Ia R. a. 258, 86 Am. St. Rep. 394 (involving an abuse of legal process), 
 and Depue v. Flatau (1907) 100 Minn. 299, 111 i\. W. 1, 8 L. It. A. (N. S.) 
 485 (P., on a very cold night, was invited by D. to remain at his house for 
 supper. While there P. was taken suddenly ill and fell to the floor. He asked 
 permission to remain over night, but L). refused. D. assisted P. to get into 
 his sleigh, and, as he could not hold the reins, D. threw them over P.'s shoul- 
 ders. He was found the next morning, about a mile from D.'s house, nearly 
 frozen to death, having been again attacked by his ailment and fallen from 
 the sleigh). 
 
 Compare the remark of Prof. James Barr Ames in 22 Harv. Law Review, 
 112 (1908): "As I am walking over a bridge a man falls into the water. He 
 cannot swim and calls for heip. I am strong and a good swimmer, or, if you 
 please, there is a rope on the bridge, and I might easily throw him an end 
 and pull him asliore. I neither juui]v in nor throw him the rope, but see him 
 drown. Or, again, I see a child on tlie raih-oad track too young to ai)preciate 
 the danger of the approaching train. I might easily save the child, but do 
 nothing, and the child, tliough it lives, loses both legs. Am I guilty of a 
 crime, and must I make compensation to the widow and children of the man 
 drowned and to the wounded child? Macaulay, in <ommenting upon his In-
 
 Ch. 1) NEGLIGENCE 933 
 
 (B) Legal Degrees of Care 
 WILSON V. BRETT. 
 
 (Court of Exchequer, 1S43. 11 Mees. & W. 113, 03 R. R. 528.) 
 
 Case. Plea, not guilty. At the trial, before Rolfe, B., it appeared 
 that the plaintiff had entrusted his horse to the defendant, request- 
 ing him to ride it to Peckham, for the purpose of showing it for sale 
 to a Mr. IMargetson. The defendant accordingly rode the horse to 
 Peckham, and for the purpose of showing it, took it into the East 
 Surrey Race Ground, where Mr, Margetson was engaged with others 
 playing the game of cricket: and there, in consequence of the slip- 
 pery nature of the ground, the horse slipped and fell several times, 
 and in falling broke one of his knees. It was proved that the de- 
 fendant was a person conversant with and skilled in horses. The 
 learned Judge in summing up, left it to the jury to say whether the 
 nature of the ground was such as to render it a matter of culpable 
 negligence in the defendant to ride the horse there; and told them, 
 that under the circumstances, the defendant, being shown to be a 
 person skilled in the management of horses, was bound to take as 
 much care of the horse as if he had borrowed it; and that, if they 
 thought the defendant had been negligent in going upon the ground 
 wdiere the injury was done, or had ridden the horse carelessly there, 
 they ought to find for the plaintiff. The jury found for the plaintiff, 
 damages £5. 10s. 
 
 Byles, Serjt., now moved for a new trial, on the ground of mis- 
 direction : There was no evidence here that the horse was ridden 
 in an unreasonable or improper manner, except as to the place where 
 he was ridden. The defendant was admitted to be a mere gratuitous 
 bailee; and there being no evidence of gross or culpable negligence, 
 
 dian Criminal Code, puts the case of a surgeon refusing to go from Calcutta 
 to Meerut to perform an operation, although it shoukl be absolutely cei'tain 
 that this surgeon was the only person in India who could perform it and 
 that, if it were not performed, the person who required it would die. We 
 may suppose again that the situation of imminent danger of death was creat- 
 ed liy the act, but the innocent act, of the person who refuses to prevent the 
 death. The man, for example, whose eye was penetrated by the glancing 
 shot of the careful pheasant hunter, stunned by the shot, fell face downward 
 into a shallow pool by which he was standing. The hunter might easily save 
 him, but lets him drown. In the first three illustrations, however revolting 
 tlie conduct of the man who declined to interfere, he was in no way respon- 
 sible for the perilous situation, he did not increase the peril, he took away 
 nothing from the person in jeopardy, he simply failed to confer a benelit upon 
 a stranger. As the law stand-s to-day tliere would be no legal liability, eitlier 
 civilly or criminally, in any of these cases. The law does not compel active 
 benevolence between man and man. It is left to one's conscience whether 
 he shall be the good Samai'itan or not." 
 
 And see the remarks of Carpenter, C. J., in Buch v. Amory Mfg. Co. (1898) 
 69 N. H. 257, 44 Atl. 809, 811, 76 Am. «t. Uep. 163.
 
 934 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 the learned Judge misdirected the jury, in stating to them that there 
 was no difference between his responsibihty and that of a borrower. -- 
 
 Parks, B. I think the case was left quite correctly to the jury. 
 The defendant was shown to be a person conversant with horses, 
 and was therefore bound to use such care and skill as a person con- 
 versant with horses might reasonably be expected to use : if he did 
 not, he was guilty of negligence. The whole effect of what was 
 said by the learned Judge as to the distinction between this case and 
 that of a borrower, was this; that this particular defendant, being 
 in fact a person of competent skill, was in effect in the same situation 
 as that of a borrower, who in point of law represents to the lender 
 that he is a person of competent skill. In the case of a gratuitous 
 bailee, where his profession or situation is such as to imply the pos- 
 session of competent skill, he is equally liable for the neglect to 
 use it. 
 
 RoLFE, B. The distinction I intended to make was, that a gratu- 
 itous bailee is only bound to exercise such skill as he possesses, where- 
 as a hirer or borrower may reasonably be taken to represent to the 
 party who lets, or from whom he borrows, that he is a person of 
 competent skill. If a person more skilled knows that to be danger- 
 ous which another not so skilled as he does not, surely that makes 
 a difference in the liability. I said I could see no difference between 
 negligence and gross negligence — that it was the same thing, with the 
 addition of a vituperative epithet, and I intended to leave it to the jury 
 to say whether the defendant, being, as appeared by the evidence, a 
 person accustomed to the management of horses, was guilty of cul- 
 pable negligence. 
 
 Rule refused. ^^ 
 
 22 The statement is abriflged. The opinions of Lord Ahiugrer, C. B., and 
 Alderson, B., are omitted. 
 
 23 "It is further complained that the Lord Chief Justice misdirected the 
 jury because he made no distinction in this case between gross and ordinary 
 negligence. No information, however, has been given us as to the meaning 
 to be attaclied to gross negligence in this case ; and I quite agree with the 
 dictum of Lord Cranworth in Wilson v. Brett (181:3) 11 M. & W. 113, that 
 gross negligence is ordinary negligence with a vituperative epithet, — a view 
 held by the E.xchequer Chamber. Beal v. South Devon Railway Company 
 (18(v4) 3 H. & C. 337. Confusion has arisen from regarding negligence as a 
 positive instead of a negative word. It is really the absence of such care 
 as it was the duty of the defendant to use. A bailee is only bound to use 
 the ordinary care of a man, and so the absence of it is called gross negli- 
 gence. A person who undertakes to do some work for reward to an artit'le 
 nmst exercise the care of a skilletl workman, and the absence of such care 
 in him is negligence. 'Gross,' therefore, is a word of description, and not a 
 definition, and it would have been only introducing a source of confusion to 
 use the expression, 'gross negligence,' instead of the equivalent, a want of 
 due care and skill in navigathig the vessel, which was again and again used 
 l>y the Ivord Chief Justice in his summing up."' AVilles, J., in Grill v. Iron 
 Screw Collier Co. (istitj) L. K. 1 C. P. (JUO, (Jli.'. 
 
 "The theory that there are three degrees of negligence, described by the 
 teiTus, 'sliglit,' 'ordinary,' and 'gross,' has been introduced into the common 
 law from some of the commentators on the Roman law. It may be doubted
 
 Ch. 1) NEGLIGENCE 935 
 
 :meredith v. reed. 
 
 (Supreme Court of Indiana, 1806. 26 Ind. ?.34.) 
 
 Action to recover damages due to the alleged negligence of the de- 
 fendant. The jury returned a verdict for the defendant, on which 
 judgment was entered. 
 
 Gregory, C. J. * * * In I\Iay, 1865, the defendant owned a 
 stallion, which had previously been let to mares, but, owing to the 
 sickness of the owner, was not so let during the spring of 1865. 
 He was a gentle stallion, and had never been known by the owner 
 to be guilty of any vicious acts. Not being in use, he had been kept 
 up in a stable for four or five months. He was secured in the stable 
 by a strong halter and chain fastened through an iron ring in the 
 manger. The stable door was securely fastened on the inside by a 
 strong iron hasp, passed over a staple, and a piece of chain passed 
 two or three times through the staple over the hasp, and the ends 
 firmly tied together with a strong cord. It was also fastened on the 
 
 if these terms can be usefully applied in practice. Their meaning is not 
 fixed, or capable of being so. One degree, thus descrilied. not only may be 
 confounded with another, but it 'is quite impracticable exactly to distinguish 
 them. Their signification necessarily varies according to circumstances, to 
 whose influence the courts have been forced to yield, until there are so 
 many real exceptions that the rules themselves can scarcely be said to have 
 a general operation. In Storer v. Goweu (1841) 18 Me. 177, the Supreme Court 
 of Maine say: "How much care will, in a given case, relieve a party from the 
 imputation of gross negligence, or what omission will amount to the charge, is 
 necessarily a question of fact, depending on a great variety of circumstances 
 which the law cannot exactly define.' Mr. Justice Story (Bailments, § 11) 
 says: 'Indeed, what is common or ordinary diligence is more a matter of 
 fact than of law.' If the law furnishes no definition of the terms gross neg- 
 ligence, or ordinary negligence, which can be applied in practice, but leaves 
 it to the juiT to determine, in each case, what the duty was, and what omis- 
 sions amount to a breach of it, it would seem that imperfect and confessedly 
 unsuccessful attempts to define that duty had better be abandoned. Recently the 
 judges of several courts have expressed their disapprobation of these attempts 
 to fix the degrees of diligence by legal definitions, and have complained of 
 the impracticability of applying them. Wilson v. Brett (1843) 11 Mees. & Wels. 
 113 ; Wylde v. Pickford (1841) 8 Mees. & Wels. 443. 461, 462 ; Hinton v. Dib- 
 bin (1842) 2 Q. B. 646, 651. It must be confessed that the ditiiculty in defin- 
 ing gross negligence, which is api)arent in perusing such cases as Tracv et al. 
 V. Wood (ISL'2) 3 Mason, 132, Fed. Cas. No. 14.1:^.0. and Foster v. Essex Bank 
 (1S21) 17 Mass. 479, 9 Am. Dec. 168, would alone be sufficient to justify these 
 complaints. It may be added that some of the ablest commentators on the 
 Roman law, and on the Civil Code of Franc-e, have wholly repudiated this 
 theijry of three degrees of diligence, as unfounded in principles of natural 
 justice, useless in practice, and presenting iuextrioable embarrassments and 
 difficulties. See TouUier's Droit Civil, 6th vol., p. 2.39, &c.; 11th vol., p. 203, 
 &c.: Makeldey, Man. Du Droit Romain, 191. &c." Per Mr. Justice Curtis, 
 in The New World v. King (1853) 16 How. (U. S.) 469, 474, 14 L. Ed. 1019. 
 
 "Counsel make frefjuent use of the phrase 'gross negligence' in their discus- 
 sion of this case. In this state, as is well known, the actionable character 
 of negligence is not dependent upon its 'degree,' and the ancient difi'erentiatiou 
 into 'gross,' 'ordinary,' and 'slight' has come to mean little more than a mat- 
 ter of comparative enii)hasis in the discussion of tostiniony." Weaver, .T., 
 in Denny v. Chicago, etc., Ry. Co. (1911) 150 Iowa, 460, l.'iO N. W. 363, 364.
 
 936 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 outside by a piece of timber, one end of which was planted in the 
 ground, while the other rested against the door. The horse was thus 
 secured on the day and night the injury occurred. The gate of the 
 inclosure surrounding the stable was shut and fastened as usual. 
 About 11 o'clock that night the horse was found loose on the high- 
 way, and did the injury complained of. Early the following morning 
 the outside gate was found open ; the stable door was found open, 
 with the log prop lying some distance to one side, and the chain 
 which had been passed through the staple was gone, and the cord 
 with which it had been tied was 'found cut and the pieces lying on 
 the floor. * * * 
 
 It is contended, on the one hand, that ordinary care was all the 
 law required of the defendant in this case. On the other it is claimed 
 that the utmost care was necessary to free him from liability. Or- 
 dinary care is all that the law required in the case in judgment. What 
 is ordinary care in some cases, would be carelessness in others. The 
 law regards the circumstances surrounding each case, and the nature 
 of the animal or machinery under control. Greater care is required 
 to be taken of a stallion than of a mare ; so in the management of 
 a steam engine, greater care is necessary than in the use of a plow. 
 Yet it is all ordinary care ; such care as a prudent, careful man 
 would take under like circumstances. The degree of care is always 
 in proportion to the danger to be apprehended. The case at bar was 
 properly sent to the jury, and the verdict is fully sustained by the 
 evidence. 
 
 The judgment is affirmed, with costs.^* 
 
 HILL V. CITY OF GLENWOOD. 
 (Supreme Court of Iowa, 1904. 124 Iowa, 479, 100 N. W. 522.) 
 
 Action to recover damages due to the negligence of the defendant, 
 the city of Glenwood. Judgment for plaintiff and defendant ap- 
 peals. 
 
 Weaver, J. The plaintiff claims to have been injured upon one 
 of the public walks of the city of Glenwood, and that such injury 
 was occasioned by reason of the negligence of the city in the main- 
 tenance of the walk at the place of the accident, and without fault 
 on his own part contributing thereto. From verdict and judgment 
 in his favor for $665, the city appeals. In this court the appellant 
 makes no claim that the city was not negligent, but a reversal is sought 
 on other grounds. * * * 
 
 It was shown without dispute that plaintiff had been blind for many 
 years, and this fact is the basis of the criticism upon the charge given 
 
 -* i'arts of the opiuiou are omitted.
 
 Ch. 1) NEGLIGENCE 937 
 
 to the jury. In the third paragraph of the charge, the court, definmg 
 negligence, said : 
 
 "(3) Negligence is defined to be the want of ordinary care; that is, such 
 care as an ordinary prudent person would exercise under like circumstances. 
 There is no precise definition of ordinary care, but it may be said that it is 
 such care as an ordinarily prudent person would exercise under like circum- 
 stances, and should be proportioned to the danger and peril reasonable to be 
 apprehended from a lack of proper pnidence. This rule ai)plies alike to both 
 parties to this action, and may be used in determining whether either was 
 negligent." 
 
 In the eighth paragraph, referring to the plaintiff's duty to exercise 
 care for his own safety, the following language is used : 
 
 "(8) It must also appear from the evidence that the plaintiff did not in any 
 way contribute to the happening of the accident in question by any negligence 
 on his pai't ; that is, by his own want of ordinary care. Tlie plaintiff, on his 
 part, was under obligation to use ordinary care to prevent injury when passing 
 over any sidewalk, and if he failed so to do, and his failure in any way con- 
 tributed to the happening of the accident in question, then lie cannot recover 
 herein. The evidence shows without dispute that he was blind, and this fact 
 should be considered by you in detenuining what ordinary care on his part 
 would require when he was attempting to pass over one of the sidewalks 
 of this city." 
 
 Counsel for appellant does not deny that the rules here laid down 
 would be a correct statement of the law of negligence and contribu- 
 tory negligence as applied to the ordinary case of sidewalk accident, 
 but it is urged that the conceded fact of plaintiff's blindness made it 
 the duty of the court to say to the jury that a blind person who 
 attempts to use the public street "must exercise a higher degree of 
 care and caution than a person ordinarily would be expected or re- 
 quired to use had he full possession of his sense of sight." 
 
 We cannot give this proposition our assent. It is too well estab- 
 lished to require argument or citation of authority that the care which 
 the city is bound to exercise in the maintenance of its streets is ordi- 
 nary and reasonable care, the care which ordinarily marks the con- 
 duct of a person of average prudence and foresight. So, too, it is 
 equally well settled that the care which a person using the street is 
 bound to exercise on his own part to discover danger and avoid acci- 
 dent and injury is of precisely the same character, the ordinary and 
 reasonable care of a person of average prudence and foresight. The 
 streets are for the use of the general public without discrimination ; 
 for the weak, the lame, the halt and the blind, as well as for those 
 possessing perfect health, strength and vision. The law casts upon 
 one no greater burden of care than upon the other. It is true, how- 
 ever, that in determining what is reasonable or ordinary care we 
 must look to the circumstances and surroundings of each particular 
 case. As said by us in Graham v. Oxford, 105 Iowa, 708. 75 N. W. 
 474: "There is no fixed rule for determining what is ordinary care 
 applicable to all cases, but each case must be determined according to 
 its own facts."
 
 938 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 In the case before us the plaintiff's blindness is simply one of the 
 facts which the jury must give consideration in finding whether he 
 did or did not act with the care which a reasonably prudent man would 
 ordinarily exercise when burdened by such infirmity. In other words, 
 the measures which a traveler upon the street must employ for his own 
 protection depend upon the nature and extent of the peril to which he 
 knows, or in the exercise of reasonable prudence ought to know, he is 
 exposed. The greater and more imminent the risk, the more he is 
 required to look out for and guard against injury to himself ; but the 
 care thus exercised is neither more nor less than ordinary care — the 
 care wdiich men of ordinary prudence and experience may reasonably 
 be expected to exercise under like circumstances. See cases cited in 
 21 A. & E. Enc. Law (2d Ed.) 465, note 1. In the case at bar the 
 plaintiff was rightfully upon the street, and if he was injured by rea- 
 son of ihe negligence of the city, and without contributory negligence 
 on his part, he was entitled to a verdict. In determining whether he 
 did exercise due care it was proper for the jury, as we have already 
 indicated, to consider his blindness, and in view of that condition, and 
 all the surrounding facts and circumstances, find whether he exercised 
 ordinary care and prudence. If he did, he was not guilty of contribu- 
 tory negligence. This view of the law seems to be fairly embodied 
 in the instructions to which exception is taken. If the appellant be- 
 lieved, as it now argues, that the charge should have been more spe- 
 cific, and dwelt with greater emphasis upon the fact of plaintiff's 
 blindness as an element for the consideration of the jury in finding 
 whether he exercised reasonable care, it had the right to ask an in- 
 struction framed to meet its views in that respect. No such request 
 was made, and the omission of the court to so amplify the charge on 
 its own motion was not error.-^ 
 
 DIMAURO V. LINWOOD ST. RY. CO. 
 
 (Supreme Judicial Court of Massachusetts, 1908. 200 Mass. 147, 85 N. E. S9i.) 
 
 Action by Dimauro, brought under Revised Laws Mass. c. Ill, § 
 267,-" to recover for the alleged wrongful death of the plaintift''s in- 
 testate. Verdict ordered for the defendant, and the plaintiff appeals. 
 
 25 A portion of the opinion, on other points, is omitted. 
 
 26 This statute provided that "if a corporation which operates a railroad 
 or a street railway, hy reason of its nejrli^'ciice or hy reason of the unfitness or 
 gross negligence of its agents or servants wliile engaged in its business, causes 
 the death of a passenger, or of a person wiio is in the exercise of due care and 
 who is not a passenger or in the employ of such corporation, it sliall be punished 
 by a fine of not less than $.'00 nor more than .frj,0(U>. * * * Such corporation 
 shall also be liatile in damages in the sum of not less than .$500 nor more than 
 .i;5,000, which shall be assessed wilh reference to the degree of culpaiiility of 
 the corporation or of its servant's or agents, and shall be rcx;overeil in an ac- 
 tion of tort commenced within one year after the injury which caused the 
 death, by executor or administrator of the deceased," etc. Rev. Laws Mass. 
 (lUUli) c* 111, § 207.
 
 Ch. 1) NEGLIGENCE 039 
 
 LoRixG, J. We are of opinion that the evidence did not warrant 
 a finding of gross neghgence on the part of the defendant's servants. 
 
 In view of the argument made in the case at bar we repeat what has 
 been decided: (1) It was decided in Banks v. Braman, 188 Mass. 367, 
 
 74 N. E. 594, that gross neghgence under Rev. Laws, c. Ill, § 267, 
 is not the same thing as a wanton act which dis])enses with proof by 
 a plaintiff of the fact that his neghgence was not a contributory cause 
 of the accident. See in this connection Lanci v. Boston Elevated Ry. 
 Co., 197 Mass. 32, 83 N. E. 1, a note to Dolphin v. Worcester Consol- 
 idated St. Ry., 189 Mass. 270, 272, 75 N. E. 635, and a note to Fitz- 
 maurice v. N. Y., N. H. & H. R. R., 192 Mass. 159, 162, 78 N. E. 
 418,6 L. R. A. (N. S.) 1146, 116 Am. St. Rep. 236, 7 Ann. Cas. 586. 
 (2) Gross negligence, as distinguished from ordinary negligence, was 
 created by the act under which this action was brought (Rev. Laws, 
 c. Ill, § 267), and exists by force of the provisions of that statute. 
 See Dolphin v. Worcester Consolidated St. Ry., 189 Mass. 270, 273, 
 
 75 N. E. 635. (3) In Dolphin v. Worcester Consolidated St. Ry., ubi 
 supra, where the degree of care due was the highest degree of care, 
 the defendant being a carrier and the plaintiff one of its passengers, it 
 was held by the court that gross negligence means a gross failure to 
 exercise the highest degree of care. Where the duty owed by the de- 
 fendant is to exercise ordinary care, gross negligence has been defined to 
 be "a materially greater degree of negligence than the lack of ordinary 
 care." See Lanci v. Boston Elevated Ry. Co., supra ; Brennan v. 
 Standard Oil Co., 187 Mass. 376, 378, 7Z N. E. 472; Manning v. 
 Conway, 192 Mass. 122, 125, 78 N. E. 401. In such a case gross neg- 
 ligence may also be defined to be a failure to exercise a slight degree 
 of care. 
 
 The evidence introduced by the plaintiff showed that one Paciello, 
 his intestate, was killed by a car of the defendant railway under the 
 following circumstances. He was a member of a gang of some 25 to 
 30 Italians engaged in digging a trench for sewer pipes. This trench 
 was in a public way between Linwood, a station on a steam rail- 
 road, and the town of Whitinsville. In this same public way the 
 tracks of the defendant railway were laid. On the day in question a 
 heap of gravel and cobblestones, some three feet high in the middle 
 of the heap, had been made by the dumping of material which came 
 from the digging of the trench. Several teams had dumped loads at 
 this point before the team in question came there to dump its load. 
 The method of dumping had been for the successive teams to drive up 
 on to the gravel previously dumped, and then dump its load. The 
 plaintift"s intestate and another Italian, Delgrosso by name, were dig- 
 ging in the trench when the team in (|uestion drove up on to the heap 
 of gravel. It was a four-wheel dump cart. Paciello and Delgrosso 
 left the trench to help dump this load of gravel. The horses and 
 cart had come to a stop parallel to the defendant's track, with the 
 tracks on the left of the team as the team stood facing Linwood.
 
 940 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 Rosetti, the foreman of the gang, stood at the front of the team, 
 prying up the forward end of the dump cart with an iron bar. Paciello 
 and Delgrosso Avere at the back of the cart, one on each side of it, 
 bearing down on that end to help dump the gravel. 
 
 The evidence put the hub of the rear wheel of the dump cart "about 
 3 to 4 feet from the track," and the overhang of the defendant's car 
 at 10 to 12 inches. This left a clearance of 2 to 3 feet between the 
 hub of the wheel and the defendant's car. Paciello was on the side of 
 the dump cart facing toward Linwood, that is to say, with his back 
 toward Whitinsville, where the car in question was coming from. He 
 was bending over, bearing down on the end of the car (as we have 
 said), wdien Rosetti the foreman called out to him, "Guarda tevo per 
 carro," or "Guarda tevo del carro," which being translated means 
 "Look out for the car" or "Look out for the cart." Thereupon Pa- 
 ciello straightened up, looked round over his right shoulder, and in 
 doing so brought his body over the line of the outside of the defend- 
 ant's car, was struck on the hip, rolled over and was killed by the rear 
 wheels. Rosetti's exact words were: "He moved his body or the 
 car would not have touched him." The distance from the place where 
 Paciello was struck to the place where he lay dead was 8 to 10 feet, 
 and the back end of the car, when it came to a stop, was 10 to 12 
 feet from the body of Paciello where it lay dead. The car was 28 
 feet long, so that from the place where Paciello was struck to the 
 place where the car stopped was about 50 feet. 
 
 Rosetti testified that he saw the defendant's car when it was 100 
 feet away, and that he then called out for it to stop. Seeing that there 
 was no change in its speed he signaled it to stop by raising his hand, 
 but the car continued to come on at the same rate of speed. He also 
 testified that the motorman was looking in his direction all the time. 
 
 It was proved that the defendant had issued an order, properly 
 posted, that cars "should not run exceeding 4 miles an hour by the 
 sewer construction." 
 
 In addition there was evidence from an expert as to a hypothetical 
 case, covering what the jury were warranted in finding to be the facts 
 in the case at bar, that a motorman with a slack brake chain ought 
 to have been able to stop the car running 4 miles an hour within 20 
 feet, and at 5 miles an hour within 27 feet. 
 
 The only testimony as to the speed at which the defendant's car was 
 running, in addition to Avhat has been stated, came from Delgrosso, 
 who said that the car was coming all the time at the same rate of 
 speed ; "in a hurry ; fast." 
 
 This warranted a finding that the defendant's car was going faster 
 than 5 miles an hour. That fact in connection with the defendant's 
 rule that its cars should not run over 4 miles an hour while going by 
 sewer construction, would have warranted a finding that the motorman 
 was negligent within the rule established in Stevens v. Boston Elevated 
 R., 184 Alass. 476, 69 N. E. 338.
 
 Ch. 1) NEGLIGENCE 94] 
 
 But the question here is whether the evidence warranted a finding 
 of gross neghgence on the part of the motorman, and we are of opin- 
 ion that it did not. It is true that the jury were warranted in finding 
 that the motorman saw or ought to have seen Paciello. But it is also 
 true that there was a clearance of 2 to 3 feet between the hub of the 
 wheel and the motorman's car, and that Paciello would not have 
 been hurt if he had stayed where he was and not swung himself out 
 into the line of the side of the car just as the car reached him. To 
 run. a car at something over 5 miles an hour under these circumstances 
 is not, in our opinion, evidence of gross negligence. 
 
 The plaintift"'s counsel contended that the evidence in the case at 
 bar was stronger than that in the following cases : Com. v. Vermont & 
 Massachusetts Ry., 108 i\Iass. 9, 11 Am. Rep. 301 ; Tilton v. Boston & 
 Albany R. R., 169 Mass. 253, 47 N. E. 998 : Young v. N. Y., N. H. 
 & H. R. R., 171 Mass. 33, 50 N. E. 455, 41 L. R. A. 193 ; Walsh v. 
 Boston & Maine R. R., 171 Mass. 52-56, 50 N. E. 453; Lutolf v. 
 United Electric Light Co., 184 :Mass. 53-58, 67 N. E. 1025 ; Hartford 
 V. N. Y., N. H. & H. R. R., 184 Mass. 365, 68 N. E. 835 ; Hale v. 
 N. Y., N. H. & H. R. R., 190 Mass. 85, 76 N. E. 656. We have ex- 
 amined these cases and find that they do not support that contention. 
 
 Exceptions overruled. 
 
 WALTHER V. SOUTHERN PAC. CO. %^ 
 
 (Supreme Court of California, 1911. 159 Cal. 769, 116 Pae. 51, 37 L. R. A. 
 
 [N. S.] 769.) 
 
 The plaintiff's intestate was killed, on March 28, 1907, in the de- 
 railment of a Southern Pacific passenger train. The accident occurred 
 in the defendant's yard, and was caused by the train running from 
 the main track into an open switch at a speed of some 45 miles an hour. 
 The switch had been left open by the switch foreman, who, with his 
 crew, were working on the siding at the time, and who had neglected 
 to keep himself advised of the whereabouts of the train, which was 
 long overdue, and had left the switch open in violation of the rules of 
 the defendant. Deceased was an employe of defendant, but at the 
 time of the accident and for some months next preceding the same 
 was absent on leave. At the time of the accident he was returning 
 from a journey to an Eastern state to his home in California. He 
 was riding on a pass, good until jMarch 31, 1907, which had been 
 issued to him by defendant for the purposes of his journey. It was 
 found by the trial court, in accord with a stipulation of the parties, 
 that the pass was issued to him as an employe, "in accordance with the 
 long established practice of the company, and one well known to its 
 employes, to furnish passes from time to time to its employes." There 
 was no other consideration for such pass. It contained the following 
 statements, subscribed by the deceased : "This is a free pass based
 
 942 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 8 
 
 upon no consideration wliatever. The person accepting and using this 
 pass, in consideration of receiving the same, agrees that the Southern 
 Pacific Company shall not be liable under any circumstances, whether 
 of negligence — criminal or otherwise — of its agents or others, for any 
 injury to the person, or for any loss or damage to the property of the 
 individual using this pass ; and that as to such person the company 
 shall not be considered as a common carrier, or liable as such." 
 
 This action was brought by plaintifif to recover the damage caused 
 her by the death of her husband, being based upon section Z77 , Code 
 of Civil Procedure, which provides that, when the death of a person 
 not being a minor is caused by the wrongful act or neglect of another, 
 his heirs or personal representatives may maintain an action for dam- 
 ages against the person causing the death, or, if such person be em- 
 ployed by another person who is responsible for his conduct, then also 
 against such person. In her complaint she alleged that the accident 
 and the consequent death of deceased were caused by the "gross neg- 
 ligence" of defendant, and these allegations were found by the trial 
 court, which tried the case without a jury, to be true. Damages were 
 assessed at the sum of $8,000, and judgment was given in favor of 
 plaintiff for that amount. This is an appeal by defendant from such 
 judgment. 
 
 Angellotti, J, * * * The ultimate question presented by this 
 appeal is whether the provision in the pass purporting to exempt de- 
 fendant from liability for the negligence of its agents precluded a re- 
 covery under the circumstances of this case. * * * 
 
 We think that the question of public policy in regard to such con- 
 tracts of exemption, even as to passengers carried gratuitously, has 
 been settled in this state by legislative enactment. Section 2175, Civil 
 Code, provides : "A common carrier cannot be exonerated, by any 
 agreement made in anticipation thereof, from liability for the gross 
 negligence, fraud, or wilful wrong of himself or his servants." Aside 
 from the question of the meaning of the term "gross negligence" as 
 used in this section, it is earnestly contended that the section has no 
 application in the case of one carried without consideration of any 
 kind, and that as to such a passenger the carrier is not a common 
 carrier at all. We arc of the opinion that the question of considera- 
 tion cuts no figure in determining the applicability of the section. 
 Section 2168, Civil Code, contained in the same chapter, which is en- 
 titled "Common Carriers in General," declares that "every one who 
 offers to the public to carry persons, property, or messages, excepting 
 only telegraphic messages, is a common carrier of whatever he thus 
 offers to carry," and, of course, the defendant was under this defini- 
 tion a common carrier of persons. As such, under other provisions 
 of the same chai)ter and other chapters, it was entitled to refuse to 
 carry any person except upon compliance with certain requirements, 
 including the payment of a prescribed reasonable compensation, but 
 at the time of this accident at least it could legally waive any of these
 
 Ch. 1) NEGLIGENCE 943 
 
 requirements on the part of the passenger, and could receive and 
 carry him for a reduced or different consideration, or aUogether with- 
 out consideration. 
 
 But, on whatever terms a common carrier of persons voluntarily 
 receives and carries a person, the relation of common carrier and pas- 
 senger exists. This is recognized by some of the authorities uphold- 
 ing the exemption from liability for negligence provision in the case 
 of a passenger carried gratuitously. See Rogers v. Kennebec Steam- 
 boat Co., supra [86 Me. 261, 29 Atl. 1069, 25 L. R. A. 491]. The 
 sole inquiry in this regard is, as has been said, whether the person 
 was law^fully on the vehicle (see Ohio & Miss. R. Co. v. Muhling, 30 
 111. 9, 81 Am. Dec. 336), has been voluntarily received by the com- 
 mon carrier on any terms for the purpose of carriage, and is not, as 
 was the case in Sessions v. Southern Pacific Co., 159 Cal. 599, 114 
 Pac. 982, a mere trespasser on the vehicle. 
 
 The voluntary waiver of all claim for compensation for carriage 
 of a person does not take away from the status of the carrier as a 
 common carrier so far as the person carried is concerned, any more 
 than would a special reduction in the amount of compensation charged 
 or a special concession as to some other authorized requirement ac- 
 complish such effect. The carrier is still a common carrier as to 
 such person, with all the obligations of a common carrier, except in 
 so far as those obligations are limited by contract provisions which 
 are not inhibited by law. Other sections of our Civil Code permit 
 such limitations as to certain matters not here involved, but section 
 2175 expressly prohibits limitations of liability for gross negligence 
 on the part of the common carrier or his servants, wdiatever, as we 
 read the various sections bearing upon this matter, may be the terms 
 upon w^hich it receives and undeitakes to carry a passenger. 
 
 This brings us to a consideration of the question of the meaning 
 of the term "gross negligence," as used in section 2175, Civil Code, 
 for under the views already stated the exemption provision in the 
 pass of deceased was not effectual to free defendant from liability for 
 damages resulting from "gross negligence" of the defendant or its 
 servants, within the meaning of the term "gross negligence," as used 
 in said section. The contention of learned counsel for defendant is 
 that these words, in the connection in which they are used, imply 
 something in the nature of willful wrong, and do not include any- 
 thing in the nature of a mere omission to exercise care without knowl- 
 edge that such omission will probably result in injury to others. Sec- 
 tion 2175 was, as it now stands, a part of the original Civil Code 
 adopted in the year 1872. This Code contained two sections declar- 
 ing that there are three degrees of care and diligence, "slight," "or- 
 dinary," and "great," and three degrees of negligence, "slight," "ordi- 
 nary," and "gross." "Slight care" was defined as that "which is such 
 as persons of ordinary prudence usually exercise about their own 
 affairs of slight importance," and "gross negligence" was defined as
 
 9-4'i: TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 that "which consists in the want of sHght care and diligence." Sec- 
 tions 16 and 17. These sections were repealed outright in 1874, but 
 such repeal cannot alTect the question of the construction of the 
 words "gross negligence" in section 2175, Civil Code, as it is the in- 
 tention of the Legislature at the time of the adoption of the latter 
 section that must control. 
 
 We see no warrant for holding that the term "gross negligence" 
 as used therein was intended to miean other than the "gross negligence" 
 defined in section 17 of the same act "to establish a Civil Code," 
 which was simply "the want of slight care and diligence." This must 
 necessarily have been the view of this court in Donlon Bros. v. South- 
 ern Pacific Co., 151 Cal. 763, 766, 91 Pac. 603, 11 L. R. A. (N. S.) 
 811, 12 Ann. Cas. 1118, for an examination of the record shows that 
 there could have been no other ground for the expression of opinion 
 "that there was sufficient evidence in the case warranting the jury in 
 finding that the defendant was guilty of gross negligence occasioning 
 the loss and injury complained of." It was also recognized in Mer- 
 rill V. Pacific Transfer Co., 131 Cal. 582, 589, 63 Pac. 915, upon 
 evidence that was utterly destitute of anything in the nature of a 
 showing of willful or wanton wrong, that the question whether or 
 not the common carrier was guilty of gross negligence was one for 
 the jury to pass upon under proper instructions. But regardless of 
 these expressions of opinion, both of which were made under such 
 circumstances that they may reasonably be claimed not to constitute 
 binding authority on the question, we are satisfied that the definition 
 of the "gross negligence" of section 2175, Civil Code, must be found 
 in sections 16 and 17 of the Civil Code, as the same were adopted in 
 1872. 
 
 Accepting this definition of gross negligence, it cannot reasonably 
 be contended that the evidence was not legally sufficient to support 
 the finding of the trial court that the deceased was killed by the gross 
 negligence of defendant's servants. The question of the existence 
 of such gross negligence was one for the trial court, and, the facts 
 being legally sufficient to warrant the inference drawn, an appellate 
 court cannot properly disturb the conclusion reached by that tribunal. 
 
 The conclusion we have arrived at upon the points already discussed 
 renders it unnecessary to consider other questions argued in the briefs, 
 and compels an affirmance of the judgment. 
 
 The judgment is affirmed.^'' 
 
 2 7 The statement is abridged and parts of the opinion are omitted. Sloss 
 and Shaw, JJ., concurred. Beatty, C. J., dissented on the ground that the 
 opinion lays down too broad a rule, because "the issuance of a free pass to a 
 railway employ^ rests upon a valuable consideration."
 
 Ch. 1) NEGLIGENCE 945 
 
 GEORGE N. PIERCE CO. v. WELLS EARGO & CO. 
 
 (Circuit Court of Appeals of the United States, Second Circuit, 1911. 
 189 I'ed. 501, 110 C. C. A. 645.) 
 
 Ward, Circuit Judge. The plaintiff, a manufacturer, brought this 
 action at law to recover of the defendant, an express company, the 
 value of a car load of automobiles and appurtenances which it had 
 delivered to the defendant to be carried from Buffalo to San Fran- 
 cisco. The defendant admitted its liability, and the trial judge di- 
 rected the jury to find a verdict in favor of the plaintiff for $50, the 
 agreed value of the shipment, with interest and costs. The plaintiff 
 took out this writ of error to the judgment entered on the verdict on 
 the ground that the jury should have been directed to find a verdict 
 for the actual value of the shipment, which was over the sum of $15,- 
 000. 
 
 The bill of lading under which the goods were carried provided : 
 " * * * Nor shall said company be liable for any loss of or dam- 
 age to said property in any event or for any cause whatever unless 
 said loss or damage shall be proved to have been caused by or to have 
 resulted from the fraud or gross negligence of said company or its 
 servants ; nor in any event shall said company be held liable beyond 
 the sum of fifty dollars, at not exceeding which sum the said prop- 
 erty is hereby valued, unless a dift"erent value is hereinabove stat- 
 ed. * * *" 
 
 There is nothing against public policy in the first clause above quot- 
 ed. The federal courts recognize no difference between gross and 
 ordinary negligence. Railway Co. v. Arms, 91 U. S. 489, 23 L. Ed. 
 374. In all cases negligence is failure to exercise the care appropriate 
 to the circumstances of the particular case. Greater care is called 
 for in transporting eggs than in transporting pig iron. Therefore the 
 clause, though it exempts the defendant from its liability as insurer, 
 which is lawful, does not exempt it from the consequences of its own 
 fraud or negligence, which would be unlawful as against public pol- 
 icy. It remained liable for its negligence to the full amount agreed 
 upon. Such a contract is valid in the federal courts. * * * 
 
 The judgment is affirmed.^ ^ 
 
 2s Only so much of the case is given as relates to the one point. 
 
 JNoyes, Circuit Judge, dissented, on the ground that the weight of author- 
 ity in this country is to the effect that the same principles of public policy 
 which condemn total exemptions from liability for negligence condemn par- 
 tial exemptions, and that such limitations, as distinguished from agreed valu- 
 ations, are invalid. 
 
 Hepb. Torts — 60
 
 946 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 II. De;fsndant's Failure; to Use Care 
 SHERMAN V. WESTERN TRANSP. CO. 
 
 (Supreme Court of New York, 1861. 62 Barb. 150.) 
 
 This action, on the issues raised by a general denial, was referred 
 to a ref er\;e, who found : 
 
 That the plaintiff and the defendant, in the boating season of 1859 were 
 each lawfully navigating the Erie Canal, the plaintiff with the canal boat 
 Sarah, the defendant with tlie Rosebud : that while these boats were pass- 
 ing each otlier, the tow-line of the plaintiff's boat Sai"ah caught underneath 
 the defendant's boat Rosebud, without any fault on the part of the plaintiff', 
 and in conse(iuence the horses of the plaintiff were drawn into the canal and 
 one of them was drowned and the other injured: that the plaintiff's tow-line 
 caught on some part of the l)ottom of the defendant's hoat as the boats were 
 passing; and that the defendant was careless and negligent in not having 
 the bottom of bis boat in such condition at all times wliile navigating the ca- 
 nal as to i>ermit tow-lines to pass underneath it without catching; and that 
 tlie injury in question occurred in consequence of this negligence. 
 
 Upon this report judgment was entered for the plaintiff; the de- 
 fendant appealed. 
 
 MuLLiN, J.^** * * * It is of the essence of negligence that the 
 party charged should have knowledge that there was a duty for him 
 to perform, or he must have omitted to inform himself as to what 
 his duty was, in a given case. Knowledge is presumed in a great 
 number of cases, and the party will not be permitted to prove that he 
 had not knowledge of his duty. Every man is presumed to know the 
 law ; and hence, when the law imposes a duty on a man, it presumes 
 that he knew of it ; and it will not permit him to prove that he did 
 not. When the specific duty is not imposed, by either the statute 
 or the common law, the party alleging negligence must show that the 
 accused was cognizant of the duty he is charged with having neg- 
 lected. It is not necessary that this should be established by direct 
 evidence ; it may be, and almost universally is, inferred from the 
 nature of the duty, or the facts and circumstances of the case. 
 
 1 am not aware of any statute requiring those navigating boats on 
 the canals to have the bottoms of such boats so made as to permit 
 tow-lines to pass under them without obstruction. But the duty is 
 most obvious the moment a person becomes acquainted with the man- 
 ner in which canal boats pass each other in the canal. And the per- 
 son omitting to keep the bottom of his boat in the condition required 
 to permit the free passage of the tow-line of another boat under her 
 is responsible for whatever damages naturally and necessarily flow 
 from his neglect. 
 
 To perfect his liability several things must concur: 1. Pie must be 
 the owner, lessee, or captain of the boat. 2. The bottom of his boat 
 
 2 Tarts of the opinion are omitted. The statement of facts has been 
 abridged.
 
 Ch. 1) NEGLIGENCE 947 
 
 must be such as not to permit the free passage of the towing hne. 
 3. He must have known of it before the accident a sufficient length 
 of time to enable him to avoid the injury; or, 4. The defect must 
 have continued so long as to satisfy a court or jury that if he had 
 l)aid proper attention to his boat he must have discovered it. 5. 
 Damage must have been sustained by reason of the defect. 
 
 There is no question made, in this case, but that the defendant is 
 the proper party defendant, if the action can be maintained. The 
 towing line of the plaintiff's boat was caught on the bottom of the 
 defendant's boat, and damages have been sustained by the plaintiff 
 by reason of the catching of said line. Three of the four conditions 
 necessary to be proved in order to maintain the suit have been estab- 
 lished, in this case, and it only remains to inquire whether the referee 
 was justified in finding the fourth. 
 
 When did the catch attach to said boat? There is no proof that 
 it was put on by the defendant, or anyone in its employ. It is not 
 proved that it w^as on an hour before the accident happened ; nor that 
 it was know^n to be there by the defendant, or any of its agents, 
 until the moment it occurred. 
 
 I admit it w^as the duty of the defendant to so construct the boat 
 as that towing lines could pass freely under it, and that it should 
 cause examination to be made, from time to time, to see that the bot- 
 tom of the boat continued in such condition. The boat, in passing 
 through a lock, or over a stone or other hard substance in the bottom 
 of the canal, might tear up the planking on the bottom so as to catch 
 and retain a rope passing along it. The end of a plank might have 
 become loosened and sprung off — a spike or bolt might become loose 
 and be projected beyond the surface of the plank and catch and re- 
 tain a towing line — and the defect not have existed ten minutes before 
 the accident. 
 
 It is not shown, in this case, but that the injury was occasioned in 
 one of the ways suggested, and from a cause originating wdthin the 
 period named. 
 
 Nor can we presume that the bottom of this boat was known to 
 the defendant to be in a condition not to allow the free passage of 
 towing lines, for such a length of time as to have made it their duty 
 to put it in proper order. If they had such knowledge, they were 
 guilty of negligence in not putting the boat in good order. But neg- 
 ligence is never presumed. 1 Cowen & Hill's Notes, 298, 478. 
 
 In the case of Olmsted v. The Watertowni and Rome Railroad Com- 
 pany, decided at the general term in this district in October, 1855, 
 the plaintiff sued the defendant for damages for negligence in killing 
 his horse. The negligence charged consisted in the company's not 
 maintaining a fence of the requisite height along the side of their 
 road, whereby the horse strayed on to the railroad track and was killed 
 by an engine. The only evidence of a defect in the fence w^as that 
 one of the stakes which supported the upper rail was split, and one
 
 948 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 of the rails had fallen down, so that it was as low as the rail next 
 below it, thus leaving the fence, at that point, below the required 
 height of a sufficient fence. It was further proved that there were 
 marks of the horse's foot on the top of the upper rail, showing, as 
 the plaintiff's counsel argued, that the horse had gone over at that 
 place. It was insisted on the part of the defendant, that there was no 
 evidence of negligence ; that it did not appear that the fence had been 
 defective an instant before the horse had passed over; but on the con- 
 trary, the marks of the horse's foot being left on the rail demonstrated 
 that he had struck in passing over, and thus splitting the stake, and let- 
 ting down the bar. The court so held, and reversed the judgment of 
 the county court affirming that of the justice, which was in favor of 
 the plaintiff, for the value of the horse. 
 
 The principle decided in that case is decisive of this. The defective 
 condition of the bottom of the boat may not have existed sufficiently 
 long to have imposed any duty, in reference to it, on the defendant. 
 x\nd if its condition was not known, or had not existed long enough 
 to charge the defendant with notice of the defect, it was not guilty 
 of neglect. And there is no evidence in this case from which any 
 such inference can be drawn. * * * 
 
 The judgment must therefore be reversed, and a new trial ordered; 
 costs to abide the event. 
 
 New trial granted. 
 
 INDIANAPOLIS TRACTION CO. v. PRESSELL. 
 
 (Appellate Court of Indiana, 1906. 39 Ind. App. 472, 77 N. E. 357.) 
 
 Action against the traction company for damages sustained by a 
 
 passenger in alighting from the defendant's open car. The complaint 
 
 in its first paragraph alleged that the only exit from the car was at its 
 
 side, by means of a single step extending the full length of the car; 
 
 that this step was two feet above the top of the rail ; that at a certain 
 
 point plaintiff informed the conductor that she wished to alight ; that 
 
 the conductor accordingly stopped the car to enable her to alight, but 
 
 that 
 
 "Owing to the condition of the streets, and the surface of the earth at said 
 point, said step stood at a point three feet above the leA'el of the eartli, upon 
 which plaintiff wasi compelled to step in disonibarking: that the defendant, 
 notwithstanding its duty to furnish and piovide a safe place of exit, * * • 
 negligently, carelessly, and wrongfully failed and refused to furnish and pro- 
 vide any additional step or steps, or any contrivance other than said single 
 step, whereby the egress of plaintiff from said car might be made in safety ; 
 that the plaintiff, in the due and proper exercise of care, attempted to dis- 
 emliark from said car at said point, l)ut because of said negligence of the de- 
 fendant, and its failure and refusal to do and perform its said duties, this 
 plaintiff" was thrown, and fell heavily upon the earth." 
 
 A demurrer to each paragraph of the complaint was overruled by the 
 court, and a trial by jury resulted in a verdict and judgment for the 
 plaintiff for $1000. The defendant appealed.
 
 Ch. 1) NEGLIGENCE 949 
 
 Wiley, J. * * * ^o By section 5454, Burns' 1901 (section 4147, 
 R. S. 1881), it is required that a street railway track within city lim- 
 its "shall conform exactly to the established grade of such street." 
 There is no allegation in the complaint that appellant's track at the 
 place of injury did not conform to the established grade. We may 
 assume, therefore, as against the pleading, that it did. There is no 
 fact averred which shows a negligent construction or operation of 
 the car, and neither is there any negligence charged as to the con- 
 struction of the track. As appellee approached the point where "she 
 desired to alight, she gave the signal for the car to stop. She avers 
 that it did stop, and that she immediately undertook to get off. It 
 is not averred that the car stopped at any improper or dangerous 
 place, or that there was a safer or more convenient place for it to 
 stop. There are no facts pleaded from which it can be said that appel- 
 lant could have anticipated, or with reasonable care have prevented, 
 the accident. It appears from the complaint that the cause of the 
 accident was the distance from the step of the car to the surface of 
 the street, and that that distance was so great that appellee fell, etc. 
 The surface of the street at that point was lower than the top of the 
 rail. Assuming that the track was laid to conform to the established 
 grade of the street, it appears that the surface of the street had not 
 been maintained in that condition. Appellant is not charged with the 
 maintenance of streets occupied by its tracks, outside of that part of 
 the street actually occupied by it. It is not averred that appellant was 
 old or infirm, or that she required any assistance in alighting from the 
 car. Ordinarily it is not the duty of those in charge of a street car 
 to aid passengers to get on and off, but such duty would only arise 
 where there is an apparent necessity for such assistance, and such 
 necessity is brought to the attention of the servants. If there is any 
 negligence charged in the first paragraph, it is the failure of appel- 
 lant to furnish an extra step to enable appellee to alight safely. The 
 facts exhibited do not justify us in holding that such a legal duty de- 
 volved upon appellant. In Young v. Missouri Pac. R. Co. (1902) 93 
 Mo. App. 267, it was said : "We know of no law, nor has our atten- 
 tion been called to any, w'hich required the defendant to furnish port- 
 able steps for the use of its passengers in entering or leaving any of 
 its cars." See, also, Barney v. Hannibal, etc., R. Co. (1895) 126 Mo. 
 372, 28 S. W. 1069, 26 L. R. A. 847; Texas, etc., R. Co. v. Frev 
 (1901) 25 Tex. Civ. App. 386, 61 S. W. 442. In this paragraph there 
 are no facts pleaded which show that there was any necessity existing 
 
 3 The statement is abridged. Only so much of the opinion is given as re- 
 lates to the one point. The court expressed an opinion nlso that the plaintiff 
 was guilty of contributory negligence, on the ground that the plaintiff "is 
 deemed actually to have seen what she could have seen, if she had looked; 
 and also, if she did not look, or if she did look, but did not heed what she saw, 
 such conduct was negligent on her part."
 
 950 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 which would require appellant to furnish an extra step at the place 
 of the accident. * * * 
 
 The judgment is reversed, and the trial court is directed to sustain 
 the demurrer to each paragraph of the complaint. 
 
 / SCOTT V. LONDON & ST. KATHERINE DOCKS CO. 
 
 (Court of Exchequer Chamber, 1S65. 3 Hurl. & C. 596, 140 R. R. 627.) 
 
 This was an appeal against the decision of the Court of Exchequer 
 in making absolute a rule to set aside the verdict for the defendants 
 and for a new trial. 
 
 The declaration stated that the defendants were possessed of a 
 warehouse, and of a certain crane or machine for lowering goods 
 therefrom, and at the time of the grievances committed by them as 
 hereinafter mentioned, they, by their servants in that behalf, were 
 lowering by the said crane or machine from the said warehouse cer- 
 tain bags of sugar on to the ground and stone pavement in the docks 
 of the said company, and on and along which the plaintiff was then 
 lawfully passing; and the defendants, by their servants, so negligently, 
 carelessly and improperly lowered the said bags of sugar and con- 
 ducted themselves in that behalf that the same came and fell upon and 
 against the plaintiff : Whereby the plaintiff was greatly wounded, 
 bruised, hurt and permanently injured, &c. Plea. Not guilty, and 
 issue thereon. 
 
 At the trial, before Martin, B., at the London sittings after Trinity 
 
 Term, 1864, the plaintiff deposed as follows : 
 
 "I am an officer of the cuistoms. I am an auxiliary examiner. I superin- 
 tend weighing gootls. On the 10th of January I had performed duty at the 
 East Quay of tlie London Docks. I was directed to go from tihe East Quay 
 to the Spirit Quay by Mr. Lilley, the surveyor. I went to tlie Spirit Quay 
 in order to do duty. I proceeded on my way. There are wareliouses on the 
 Spirit Quay. I went to the entrance of one of the warehouses, and could not 
 lind Mr. Lilley. I was told he was in anotlier warehouse. I was proceeding 
 to where I was told he was at the time of the accident. I proceeded to the 
 first door I met upon the quay. I went into the warehouse of which it was 
 the door. I met a labouring man about two yards within the waroliouse. I 
 asked him if Mr. Lilley was there. He said. 'No. sir; yon will find him in the 
 ]X.ext doorway.' In passing from one doorway to the other I was felled to the 
 ground by six bags of sugar falling on me. (lie then de.scribed the injuries 
 he had received. I No one but myself was at the place. 1 had no warning. 
 There was no fence or barrier. No one called out. I heard the rattling of a 
 chain." 
 
 At the conclusion of the plaintiff's examination in chief the learned 
 Judge expressed his opinion that, even assuming that the bags of 
 sugar were being dealt with by the servants of the defendants in the 
 course of their employment, and that the plaintiff was lawfully pass- 
 ing through the docks, there was not sufficient evidence of negligence 
 on the part of the defendants to entitle him to leave the case to the
 
 Ch. 1) NEGLIGENCE 951 
 
 jury; and his Lordship then directed the jury to find a verdict for 
 the defendants. 
 
 The SoHcitor-General, in the following Michaelmas Term, obtained 
 a rule nisi to set aside the verdict and for a new trial, on the ground 
 that there was evidence for the jury of negligence by the defendants' 
 servants ; which rule was made absolute in the same Term : whereupon 
 the defendants brought this appeal. 
 
 Field (]\Iurphy with him) argued for the defendants: There was 
 no evidence of negligence which ought to have been submitted to the 
 jury. This case is distinguishable from Byrne v. Boadle, 2 H. & C. 
 722, because the place in which the accident occurred w^as not, as 
 there, a public highway, but a dock the property of a company, and the 
 public had no right to walk in front of the warehouses. If, upon the 
 evidence, the facts are as consistent with the absence of negligence as 
 with negligence, there is no evidence for the jury. * * * The ac- 
 cident may be accounted for in many ways consistent wath the ab- 
 sence of negligence. If a custom-house officer, in the performance of 
 his duty, boarded a ship and fell down an open hatchway, the fact of 
 the accident would be no evidence of negligence. (Blackburn, J. 
 There is an old pleading rule, that less particularity is required when 
 the facts lie more in the knov.dedge of the opposite party than of the 
 party pleading. Applying that here, is not the fact of the accident 
 sufficient evidence to call upon the defendants to prove that there was 
 no negligence?) 
 
 The Solicitor-General, for the plaintifif : It is conceded that where 
 the evidence is as equally consistent w^ith due care as with negligence, 
 there is no case for the jur}^ It is also conceded that it is not enough 
 to show a mere scintilla of evidence. No rule can be laid down that 
 the mere fact of an accident is evidence of negligence; for each case 
 must depend on its own circumstances. In determining what evi- 
 dence a plaintiff must give, regard must be had to what a person in 
 his position may be reasonably expected to give. Assuming that there 
 was negligence on the part of the defendants in hiring incompetent 
 servants, what more evidence could the plaintiff have given unless 
 he called adverse witnesses to prove facts peculiarly within the knowl- 
 edge of the defendants? * * * Xhe true test is, w^hether the case 
 is more consistent wdth negligence than care. Looking at the simple 
 fact that the bags of sugar fell violently upon the plaintiff, this case 
 is more consistent with negligence than care.^^ 
 
 Erle, C. J. The majority of the Court have come to the follow- 
 ing conclusions : 
 
 There must be reasonable evidence of negligence. But where the 
 thing is shown to be under the management of the defendant or his 
 servants, and the accident is such as in the ordinary course of things 
 does not happen if those who have the management use proper care, 
 
 31 The arguments of counsel are slightly abridged.
 
 952 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 it affords reasonable evidence, in the absence of explanation by the 
 defendants, that the accident arose from want of care. 
 
 We all assent to the principles laid down in the cases cited for the 
 defendants; but the judgment turns on the construction to be put on 
 the Judge's notes. As my Brother Mi;llor and myself read them 
 we cannot find that reasonable evidence of negligence which has been 
 apparent to the rest of the Court. 
 
 The judgment of the Court below must be afifirmed, and the case 
 must go down to a new trial, when the effect of the evidence will in 
 all probability be more correctly ascertained. 
 
 Judgment affirmed. ^- 
 
 32 "In Scott V. London Dock Co., the rule now known by the catch-word 'res 
 ipsa loquitur' was clearly laid dowu, it is thought for the first time, by the 
 Exchequer Chamber. The two judges who did not agree in the result do not 
 / appear to have dissented from tJie general statement of the law : they can 
 J hardly have thought, on the facts, that the falling of six bags of sugar on a 
 cjistoms officer did not call for some explanation; but the dissent is indi- 
 cated with seemingly studious obscurity, and may well be left in that condi- 
 tion." Sir Frederick Pollock. 140 R. R. vi. 
 
 Compare: Byrne v. Boadle (1S63) 2 H. & C. 722, 133 R. R. 701: (P. was 
 walking in a public street past the shop of D., a dealer in flour, when a bar- 
 rel of flour fell upon P. from a window in D.'s premises, above his shop. 
 Pollock, C. B., remarked: "The learned counsel was quite right in saying 
 that there are many accidents from which no presumption of negligence can 
 arise, but I think it would be wrong to lay down as a rule that in no case 
 can presumption of negligence arise from the fact of an accident. Suppose 
 in this case the barrel had rolled out of the warehouse and fallen on the 
 plaintiff, how could he possibly ascertain from what cause it occurred? It 
 is the duty of persons who keep barrels in a warehouse to take care that they 
 do not roll out, and I think that such a case \^■ould, beyond all doubt, afford 
 prima facie evidence of negligence. A barrel could not roll out of a ware- 
 house without some negligence, and to say that a plaintiff who is injured by 
 it must call witnesses from the warehouse to prove negligence seems to me 
 preposterous. * * * ^^ man is passing in front of the premises of a dealer 
 in flour, and there falls do^^^l upon him a barrel of flour. I think it appai'ent 
 that the barrel was in the custody of the defendant who occupied the prem- 
 ises, and who is responsible for the acts of his servants who had the controul. 
 of it; and in my opinion the fact of its falling is prima facie evidence of 
 negligence, and the i)laintiff who was injured by it is not bound to show that 
 it could not fall without negligence, but if there are any facts inconsistent 
 with negligence it is for the defendant to prove them.") 
 /^ Kearney v. London, etc., Ry. Co. (1S71) L. R. 6 Q. B. 760 : (As P. was pass- 
 ing along a highway under D.'s railway bridge — a girder bridge resting on a 
 perpendicular bric-k wall with pilasters — a brick fell from the top of the wall 
 and struck him. There was no assignable cause except the slight vibration 
 caused by a passing train. The bridge had been built and in use for three 
 years.) 
 
 Cincinnati, etc., Ry. Co. v. South Fork Coal Co. (1905) 71 C. C. A. 316, 130 
 Fed. 528, 1 L. R. A. (N. S.) 533: (Defendant's train, following another of de- 
 fendant's trains, ran into it with such force that the engine of the rear train 
 telescoi)ed. several oil cars in the forward train. The oil escaped and spark.s 
 from tlie engine fell on it and started a fire which spread to and destroyed 
 the plaintiff's property 50 feet away. Said Lurton, J., delivering the opinion 
 of the Circuit Court of Appeals: "According to all human experience such 
 a collision cannot occur ^^^thout something abnormal. It may be that that 
 abnormal cau.se may be one for which the defendant may not be legally liable, 
 but the question is whether the burden of showing this to be the fact is not 
 legally shifted to the defendant by evidence showing a state of things most 
 unlikely to occur unless caused by the absence of due care. It cannot be iin-
 
 Ch. 1) NEGLIGENCE 953 
 
 MULLEN V. ST. JOHN. 
 
 (Commission of Appeals of New York, 1874. 57 N. Y. 5G7, 15 Am. Rep. 530.) 
 
 This was an action to recover damages for injuries sustained by 
 the plaintiff, by the falHng of a building in Brooklyn. 
 
 The defendants were the owners of a building called the Hamilton 
 ]\Iarket, standing on the corner of Hamilton avenue and Van Brunt 
 street, in the city of Brooklyn. It was built in 1854, of brick, w^as 
 leased to the defendants in 1863, and purchased by them in 1866. On 
 the 26th of June, 1870, the building being then unoccupied, a part of 
 its walls fell outward into Van Brunt street, and the plaintiff', who was 
 on the sidewalk, about twenty-five feet from the rear of the building, 
 was knocked down by the bricks and mortar, and received injuries 
 for which this action was brought. There was a verdict in favor of 
 the plaintiff, with a judgment thereon. The defendant appealed. 
 
 DwiGHT, C. The question in the present case arises upon the 
 
 charge of the judge, which is in the following terms, as far as an 
 
 exception was taken, to Avit : 
 
 "When the plaintiff proved that the building fell into the street and injured 
 her, she had made out a case, in the absence of any explanation on the part 
 of the defendants, as buildings do not usually or necessarily fall, and it is 
 for the jury to say, under all the evidence, whether that explanation, on the 
 part of the defendants, is reasonably made." 
 
 This passage is an extract from the charge, and was preceded by a 
 statement, that when the cause of an accident is under the management 
 of a person, and the accident is one which does not happen in the 
 ordinary course of things if those who have this management use 
 ordinary care, it is a reasonable presumption, in the absence of any 
 explanation, that the accident resulted from a w^ant of such care. 
 It was followed by w^ords to this effect : If the defendant by the ex- 
 ercise of ordinary care — the care a prudent person exercises in his 
 own affairs — could have discovered and remedied this defect so as 
 
 reasonable to ascribe to negligence the happening of a catastrophe, which 
 was not likely to occur if due care had been exercised, until the cause is ex- 
 plained by other evidence. If, therefore, the nature of the accident is such 
 as to make it altogether probable that it was caused by negligence, it makes a 
 case which falls within the maxim res ipsa loquitur. Manifestly, a presumi>- 
 tion of negligence does not arise upon mere evidence of an injury sustained. 
 The inference logically as well as legally deducible is necessjirily dependent 
 upon the nature of the accident, the surrounding circumstances which char- 
 acterize it and the relation of the parties. 21 Am. & Eng. Ency. of Law, 521. 
 Many accidents do not speak for themselves. The maxim res ipsa loquitur 
 does not, therefore, apply when the circumstances in evidence are of doubtful 
 solution. That there should not be unifonnity of opinion as to the applica- 
 bility of the maxim is due not only to the infinite variety of circumstances 
 under which injuries are inflicted, but to differences in respect of the standard 
 of diligence applicable in different situations. In cases between pas.sengers 
 and carriers it has been most often applied, and sometimes in such sweeping 
 terms as sut;gest application only to an action for breach of contract, rather 
 than one grounded upon tort."
 
 954 TORTS THROUGH ACTS OP CONDITIONAL LIABILITY (Part 3 
 
 to have prevented this accident, then he is liable. If he could not, by 
 such ordinary care, then he is not liable. The whole of the charge 
 must be considered, and the question is, whether any erroneous rule 
 was announced to the jury. 
 
 The solution of this question wall depend upon the fact, whether 
 there was any duty imposed upon the owners of the building in re- 
 spect to persons passing along the highway, and whether a presump- 
 tion of negligence can be raised from the circumstances under which 
 its fall occurred. In regard to the question of duty there can be 
 no reasonable doubt. If a person erects a building upon a city street, 
 or an ordinary highway, he is under a legal obligation to take reason- 
 able care that it shall not fall into the street and injure persons law- 
 fully there. It cannot be affirmed that he is liable for any injury 
 that may occur, whether by inevitable accident or the wrongful act 
 of others. It is not to be disputed however that he is liable for want 
 of reasonable care. * * * 
 
 Assuming the foregoing propositions to be true, it may be further 
 insisted that the question, whether an owner has used reasonable 
 care or not, will depend on all the circumstances of the case. Build- 
 ings properly constructed do not fall without adequate cause. If 
 there be no tempest prevailing or no external violence of any kind, 
 the fair presumption is, that the fall occurred through adequate caus- 
 es, such as the ruinous condition of the building, which could scarcely 
 have escaped the observation of the owner. The mind is thus led to 
 a presumption of negligence on his part, which may, of course, be 
 rebutted. In the absence of explanatory evidence, negligence may 
 be presumed. * * * 33 
 
 In the case at bar the walls of the building, without any special 
 circumstances of storm or violence, fell into the street. There was 
 some evidence tending to show that it was out of repair. Without 
 laying any stress upon the affirmative testimony, it is as impossible 
 to conceive of this building so falling unless it was badly constructed 
 or in bad repair, as it is to suppose that a seaworthy ship would go 
 to the bottom in a tranquil sea and without collision. The mind, 
 necessarily, seeks for a cause for the fall. That is, apparently, the 
 bad condition of the structure. This, again, leads to the inference of 
 negligence which the defendant should rebut. 
 
 The same principle prevails in the Roman law. Thus, it is laid 
 down in 1 Domat on Civil Law (1557): "If tiles fall from the 
 roof of a house, which was in good case, and by the bare effect of 
 a storm, the damage which may happen by such fall is an accident, 
 for which the proprietor or tenant of the house cannot be made ac- 
 countable. But, if the roof was in a bad condition, he who was bound 
 
 83 111 an omitted portion of the oi)inion, the Conrt referred I0 and quoted 
 from Kearney v. London, etx:, Ky. (1.S71) L. U. G Q. B. 7(i0 : liyrne v. lioadle 
 (18(;:{) 2 II. A: C. 722: Scott v. London Dock Company (1805) 3 IL & C. r.'Mi, 
 the fact.s of which api)ear ante.
 
 Ch. 1) NEGLIGENCE 955 
 
 to keep it in repair may be liable to make good the damage that has 
 bappened, according to the circumstances." 
 
 The case of Losee v. Buchanan, 51 N. Y. 476, 10 Am. Rep. 623. 
 is not opposed to these views. There the question was, whether one 
 was liable for the explosion of a steamboiler which he had operated 
 with care and skill ; or, in other words, whether he was bound, at 
 all events, to prevent the effects of an explosion from injuring another. 
 The present question is one simply of presumptions in the law of evi- 
 dence, which was not at all involved in Losee v. Buchanan, supra ; 
 while that case holds that there must be evidence of negligence, it 
 does not at all prescribe the mode of proving it, which, as has been 
 abundantly shown, may in such cases as the present be by presump- 
 tion. The cases concerning the management of railroads concur with 
 this view ; holding that where the company has the control of the 
 car and the track, and the car leaves the track, the presumption of 
 negligence may arise. Edgerton v. New York & Harlem Railroad 
 Co., 39 N. Y. 227; Curtis v. Rochester & Syracuse Railroad Co., 18 
 N. Y. 534, 75 Am. Dec. 258. 
 
 There was no error in the charge of the judge, and the judgment 
 of the court below should be affirmed. 
 
 Judgment affirmed. 
 
 PIEHL V. ALBANY RY. ^ 
 
 (Supreme Coin-t of New York, Appellate Division, 1S9S. 30 App. Div. 166, 
 
 51 N. Y. yupp. 755.) 
 
 . The action was against the Albany Railway, to recover damages 
 for the death of the plaintiff's intestate, caused, as alleged, by the 
 defendant's negligence. The defendant operated a street railway 
 by means of electrical power, and had a power house in which five 
 steam engines were used to generate this power. On November 12, 
 1895, the fly wheel, 18 feet in diameter and weighing 50,000 pounds, 
 attached to one of these engines, burst, while in operation, and one 
 of its fragments was thrown across a public street into a saloon, and 
 there struck and killed the plaintiff's intestate. 
 
 Landon, J. Upon the former appeal from a judgment in favor of 
 the plaintiff' entered upon the verdict of a jury, the single question 
 presented by the record was whether the evidence supported the find- 
 ing that the bursting of the fly wheel was due to the negligence or 
 incompetency of the defendant's servant in charge of the engine, and 
 we held that it did not. 19 App. Div. 471, 46 N. Y. Supp. 257. Upon 
 the trial now under review the plaintiff was nonsuited at the close 
 of her case. She asked to go to the jury, upon all the facts in the 
 case, upon the questions whether the defendant was negligent, or 
 was maintaining and operating a nuisance, and her request was de- 
 nied. The question whether the explosion was due to the negligence
 
 956 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 or incompetency of the defendant's servant in charge is not now 
 urged. The learned counsel for the plaintiff insists (1) that the fact 
 that the fly wheel burst is of itself presumptive evidence of negli- 
 gence ; (2) that its maintenance and operation in the midst of a dense- 
 ly inhabited part of the city was a nuisance ; (3) that the evidence 
 tended to show that the engine was out of order at the time of the 
 explosion, and some time prior to it, and that defendant knew it. 
 
 The general rule is that proof of an accident is not of itself proof 
 of negligence. There are some exceptions to the rule. Thus, in 
 Hogan V. Railway Co., 149 N. Y. 23, 43 N. E. 403, it is said that, 
 "if a person erects a building, bridge, or other structure upon a city 
 street or an ordinary highway, he is under a legal obligation to take 
 reasonable care that nothing shall fall into the street and injure per- 
 sons lawfully there. This being so, it is further assumed that build- 
 ings, bridges, and other structures properly constructed do not or- 
 dinarily fall upon the wa3^farer. So, also, if anything falls from them 
 upon a person lawfully passing along the street or highway, the ac- 
 cident is prima facie evidence of negligence," — citing Mullen v. St. 
 John, 57 N. Y. 567, 15 Am. Rep. 530; Volkmar v. Railway Co., 134 
 N. Y. 418, 31 N. E. 870, 30 Am. St. Rep. 678, and cases there cited. 
 It is also presumed in favor of a passenger that a well constructed 
 and managed railway train will not leave the track. Edgerton v. 
 Railroad Co., 39 N. Y. 227; Curtis v. Railway Co., 18 N. Y. 534, 75 
 Am. Dec. 25§ ; Guldseth v. Carlin, 19 App. Div. 588, 46 N. Y. Supp. 
 357; Gerlach v. Edelmeyer, 47 N. Y. Super. Ct. 292, affirmed 88 N. 
 Y. 645. Also, if a passenger is injured by some unusual action or 
 defect in the appliances of conveyance, that the carrier is negligent. 
 Poulsen v. Railroad Co., 18 App. Div. 221, 45 N. Y. Supp. 941; 
 Gilmore v. Railroad Co., 6 App. Div. 119, 39 N. Y. Supp. 417. The 
 traveler upon the highway ought to be reasonably free from the inflic- 
 tion by others of injuries by external violence, and hence, when a 
 span wire supporting defendant's trolley broke and injured plain- 
 tiff, the defendant should be put to an explanation. Jones v. Rail- 
 way Co., 18 App. Div. 267, 46 N. Y. Supp. 321 ; Clarke v. Railroad 
 Co., 9 App. Div. 51, 41 N. Y. Supp. 78; Gall v. Railway Co. (Super. 
 N. Y.) 5 N. Y. Supp. 185; Cole v. Bottling Co., 23 App. Div. 177, 
 48 N. Y. Supp. 893. Some injuries are of such a nature that the 
 first thought that occurs to the mind is that nothing but carelessness 
 or willfulness could have produced them. The law adopts the same 
 idea. "Res ipsa loquitur." Stallman v. Steam Co., 17 App. Div. 
 397, 45 N. Y. Supp. 161. Sometimes the situation is such as to sug- 
 gest negligence, and the defendant alone is able, or is presumed to 
 be able, to furnish the facts. W'intringham v. Haves, 144 N. Y. 1, 
 38 N. E. 999, 43 Am. St. Rep. 725 ; Collins v. Benn'ett, 46 N. Y. 490. 
 
 Now, in all these cases, although the burden rests upon the plain- 
 tiff to prove negligence, he does prove it, prima facie, by proving 
 what happened, not what caused it to happen. This fly wheel burst.
 
 Ch. 1) NEGLIGENCE 957 
 
 There is no affirmative proof of negligence, other than the explosion. 
 There is evidence showing the situation of the power house, and a 
 general description of the fly wheel and engine, and of their uses. 
 The engine with its fly wheel, was used in generating the electrical 
 power by which the defendant operated its street cars, and had been 
 so used for two years before the explosion. It was purchased from 
 the manufacturers. In such case the authorities are to the effect 
 
 • 
 
 that the mere fact of the explosion is not prima facie evidence of 
 negligence. Losee v. Buchanan, 51 N. Y. 476, 10 Am. Rep. 623; 
 Cosulich V. Oil Co., 122 N. Y. 118, 25 N. E. 259, 19 Am. St. Rep. 
 475; Reiss v. Steam Co., 128 N. Y. 103, 28 N. E. 24. Why dis- 
 tinguish this class of cases from the others? The better question is, 
 why make it an exception to the general rule? I assume it is not 
 excepted, because such are the limitations upon human foresight that 
 every reasonable care does not always prevent accidents, and that 
 such is the nature of steam and electricity, and of the engines by or 
 upon which they operate, that, when such an explosion as this occurs, 
 our experience, or even expert experience, is not sufficiently uniform 
 to justify us in presuming that negligence is the cause. The explo- 
 sion does not, in fact, speak for itself and tell us its cause. * * * 
 Judgment affirmed.^* 
 
 3 4 Compare: Griff en v. Manioe (1901) 166 X. T. ISS, 59 N. E. 925, 52 L. R. 
 A. 922, S2 Am. St. Rep. 6.30, where Cullen, J., discussing the principle, re- %/ 
 ma rived: 
 
 "In Mullen v. St. John [1874] 57 K Y. 567 [15 Am. Rep. 530], it was 
 held that the falling of an adjacent Imilding into the street whereby the 
 plaintiff traveling on tlie street Avas injured, was prima facie evidence of neg- 
 ligence. In Piehl v. Albanv Railwav Co. [1898] 30 App. Div. 166 [51 N. Y. 
 Supp. 755], affirmed [1900] 162 N. Y. 617 [57 N. E. 1122], a fly wheel was dis- 
 rupted and a portion of it cast across the street into a *iloon, killing the 
 plaintiff's intestate. It was held that the mere bursting of the fly wheel was 
 not sufficient to warrant an inference of negligence. These two cases pro- 
 ceeded on the differing views that this court took as to the nature of the re- 
 spective accidents, not on the situation of the parties. I think it may be 
 safely said that we would not have held the defendant liable in the latter 
 case had Piehl been killed in tlie street, or in the earlier case, the defendant 
 exempt, had the plaintiff been injured while In a neighboring building. To 
 put it tersely, the court thought that in the absence of tempest or external 
 violence a building does not ordinarily fall without negligence ; while it also 
 thought that the disruption of a fly wheel proceeds so often from causes which 
 science has been unable to discover or against which art cannot guard, that 
 negligence cannot be inferred from the occurrence alone. Authority is not 
 wanting on the point. In Green v. Banta [1882] 48 N. Y. Super. Ct. 156, a 
 workman was injured by the breaking down of a scaffold. In a suit against 
 his master, the court charged: 'The fact that the scaffold gave way is some 
 evidence — it is what might be called prima facie evidence — of negligence on 
 the part of the person or persons who were bound to provide a safe and projv 
 er scaffold.' This charge was held correct by the General Term of the Su- 
 I'cnor Court of the citv of New York and the decision affirmed bv this court, 
 97 N. Y. 627. In Mulcaims v. City of Janesville (1886) 67 Wis. 24, 29 N. W. 
 5(j5, the fall of a wall was held prosum])tive evidence of negligence in a suit 
 by a servant against his master. In Smith v. Boston Gasliglit Co., 129 Mass. 
 318, it was held that the escape of gas from the pipes of a gas company was 
 prima facie evidence of negligence. In tliat case there seems to have been no 
 contractual relations whatever between the parties. In Peck v. N. Y. Central
 
 958 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 / PATTON V. TEXAS & P. RY. CO. 
 
 (Supreme Court of the United States, 1901. 179 U. S. 65S, 21 Sup. Ct. 275, 
 
 45 L. Ed. 361.) 
 
 Patton brought this action against the railway company to re- 
 cover for injuries sustained by him while in its employment as fire- 
 man. A judgment in his favor was reversed by the Circuit Court 
 of Appeals. 9 C. C. A. 487, 23 U. S. App. 319, 61 Fed. 259. On 
 a second trial in the Circuit Court the judge directed a verdict for 
 the defendant, upon which judgment was rendered. This judgment 
 was affirmed by the Circuit Court of Appeals. 37 C. C. A. 56, 95 
 Fed. 244. Thereupon the plaintiff brought error. 
 
 The facts were that the plaintiff' was a fireman on a passenger 
 train of the defendant, running from El Paso to Toyah and return. 
 Some three or four hours after one of those trips had been made, 
 
 R. R. Co. (1901) 165 N. Y. ?,47, 59 N. E. 206, which was an action for injury 
 to plaintiff's property by fire, it was said: 'But while it was necessary for 
 the plaintiff to affirmatively establish negligence on the iiart of the defendant, 
 eitlier in the condition or in the operation of its engine, for which the mere 
 occurrence of the fire was not sufficient, it was not necessary that he should 
 prove either the specific defect in the engine or the particular act of miscon- 
 duct in its management or operation constituting the negligence causing the 
 injury complained of. It was sufficient if he proved facts and circumstances 
 from which the jury might fairly infer that the engine was either defective 
 in its condition or negligently operated.' This is the principle which under- 
 lies the maxim of "res ipsa loquitur." When the facts and circumstances 
 from which the jury is asked to infer negligence are those immediately at- 
 tendant on the occurrence, we speak of it as a case of 'res ipsa loquitur' ; 
 when not immediately connected with the occurrence, then it is an ordinary 
 case of circumstantial evidence. In Benedick v. Potts (1S08) 8.S Md. 52. 40 
 Atl. 1067, 41 L. R. A. 478, it is said: 'In no instance can the bare fact that 
 an injury has happened, of itself and divorced from all the surrounding cir- 
 cumstances, justify the inference that the injury was caused by negligence. 
 It is true that direct proof of negligence is not necessary. Like any other 
 fact, negligence may be estalilished by the proof of circumstances from which 
 its existence may be inferred. * * * This phrase (res ipsa lo<]uitur), 
 which literally translated means that 'the thing speaks for itself,' is merely 
 a short way of saying that the circumstances attendant upon an accident are 
 theniselves of such a chnracter as to justify a jury in inferring negligence as 
 the cause of that accident.' 
 
 "Returning now to the case before us, it appears that the deceased was pres- 
 ent by the implied invitation of the defendant, extended to him and all others 
 who might have lawful business on the premises, to use the elevator as a 
 means of proceeding from one story to another. The defendant, therefore, 
 owed the plaintiff the duty of using at least reasonnble care in seeing that 
 the premises were safe. Tlie death of tlie ]ilaintiff's intestate was caused by 
 the fall of the counterbalance weights. Tliese weights were held in a frame, 
 to which was attached a rope or calile passing around a drum. The weights 
 fell down from the frame and the rope was thrown oft" the drum. That no 
 such accident coidd ordinaiMly have occurred had tlie elevator machinery been 
 in proper condition and propeiiy operated seems to me very itlain. The court 
 was, therefore, justified in permitting the jury to infer negligence from tlie 
 accident, construing, as I do, the term accident to include not only the injury 
 J)ut the attendant circumstances." 
 
 See also 29 Cvc. 590. tlie notes to Mullen v. St. John (1874) 57 N. Y. 567, 
 15 Am. Kep. 'jW, in N. Y. Ann. Dig. 289, and Key Xo. "Negligence," §§ 121 
 (2), 136(6).
 
 Ch. 1) NEGLIGENCE 959 
 
 and while the engine of which he was fireman was being moved in 
 the railroad yards at El i'aso, plaintitit" attempted to step off the 
 engine, and in doing so the step turned, and he fell so far under 
 the engine that the wheels passed over his right foot. Plaintiff al- 
 leged that the step turned because the nut which held it was not 
 securely fastened; that the omission to have it so fastened was neg- 
 ligence on the part of the company, for which it was liable. 
 
 Mr. Justice BrDWEr. The plaintift"'s contention is that the trial 
 court erred in directing a verdict for the defendant, and in failing 
 to leave the question of negligence to the jury. * * * 
 
 Upon these facts we make these observations : First. That while 
 in the case of a passenger the fact of an accident carries with it 
 a presumption of negligence on the part of the carrier, a presump- 
 tion which, in the absence of some explanation or proof to the con- 
 trary, is sufficient to sustain a verdict against him, for there is prima 
 facie a breach of his contract to carry safely (Stokes v. Saltonstall, 
 13 Pet. 181, 10 L. Ed. 115 ; New Jersey R. & Transp. Co. v. Pollard, 
 22 Wall. 341, 22 L. Ed. 877; Gleeson v. Virginia Midland R. Co., 
 140 U. S. 435, 443, 35 L. Ed. 458, 463, 11 Sup. Ct. 859), a different 
 rule obtains as to an employe. The fact of accident carries with 
 it no presumption of negligence on the part of the employer; and 
 it is an affirmative fact for the injured employe to establish that the 
 employer has been guilty of negligence (Texas & P. R. Co. v. Bar- 
 rett, 166 U. S. 617, 41 L. Ed. 1136, 17 Sup. Ct. 707). Second. 
 That in the latter case it is not sufficient for the employe to show 
 that the employer may have been guilty of negligence ; the evidence 
 must point to the fact that he was. And where the testimony leaves 
 the matter uncertain and shows that any one of half a dozen things 
 may have brought about the injury, for some of which the employer 
 is responsible and for some of which he is not, it is not for the jury 
 to guess between these half a dozen causes and find that the negli- 
 gence of the employer was the real cause when there is no satis- 
 factory foundation in the testimony for that conclusion. If the em- 
 ploye is unable to adduce sufficient evidence to show negligence on 
 the part of the employer, it is only one of the many cases in which 
 the plaintiff' fails in his testimony; and no mere sympathy for the 
 unfortunate victim of an accident justifies any departure from set- 
 tled rules of proof resting upon all plaintiffs. Third. That while the 
 employer is bound to provide a safe place and safe machinery in which 
 and with which the employe is to work, and while this is a positive 
 duty resting upon him, and one which he may not avoid by turn- 
 ing it over to some employe, it is also true that there is no guaranty by 
 the employer that place and machinery shall be absolutely safe. Hough 
 V. Texas & P. R. Co., 100 U. S. 213, 218, 25 L. Ed. 612, 615; Balti- 
 more & O. R. Co. V. Baugh,.149 U. S. 368, 386, Z7 L. Ed. 772, 780, 
 13 Sup. Ct. 914; Baltimore & P. R. Co. v. Mackey, 157 U. S. 72, 
 87, 39 L. Ed. 624, 630, 15 Sup. Ct. 491; Texas & P. R. Co. v.
 
 9G0 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 Archibald, 170 U. S. 665, 669, 42 L. Ed. 1188, 1190, 18 Sup. Ct. 177. 
 He is bound to take reasonable care and make reasonable effort ; 
 and the greater the risk which attends the work to be done and 
 the machinery to be used, the more imperative is the obligation rest- 
 ing upon him. Reasonable care becomes, then, a demand of higher 
 supremacy ; and yet, in all cases, it is a question of the reasonable- 
 ness of the care; reasonableness depending upon the danger attending 
 the place or the machinery. 
 
 The rule in respect to machinery, which is the same as that in 
 respect to place, was thus accurately stated by Mr. Justice Lamar, 
 for this court, in Washington & Georgetown Railroad v. McDade, 
 135 U. S. 554, 570, 34 L. Ed. 235, 241, 10 Sup. Ct, 1044: 
 
 "Neither individuals nor corporations are bound, as employers, to 
 insure the absolute safety of machinery or mechanical appliances which 
 they provide for the use of their employes. Nor are they bound to 
 supply the best and safest or newest of those appliances for the pur- 
 pose of securing the safety of those who are thus employed. They 
 are, however, bound to use all reasonable care and prudence for the 
 safety of those in their service, by providing them with machinery 
 reasonably safe and suitable for the use of the latter. If the employer 
 or master fails in this duty of precaution and care, he is responsible 
 for any injury which may happen through a defect of rnachinery 
 which was, or ought to have been, known to him, and was unknown 
 to the employe or servant." 
 
 Tested by these rules we do not feci justified in disturbing the 
 judgment, approved as it was by the trial judge and the several judges 
 of the Circuit Court of Appeals. Admittedly, the step, the rod, the 
 nut, were suitable and in good condition. Admittedly, the inspectors 
 at El Paso and Toyah were competent. Admittedly, when the en- 
 gine started on its trip from El Paso the step was securely fastened, 
 the plaintiff himself being a witness thereto. The engineer used 
 it in safety up to the time of the engine's return to El Paso. The 
 plaintiff was not there called upon to have anything to do with the 
 engine until after it had been inspected and repaired. He chose, for 
 his own convenience, to go upon the engine and do his work prior 
 to such inspection. No one can say from the testimony how it hap- 
 pened that the step became loose. Under those circumstances it would 
 be trifling with the rights of parties for a jury to find that the plain- 
 tiff had proved that the injury was caused by the negligence of the 
 employer. 
 
 The judgment is affirmed.^ ° 
 
 sn The statement of tlie facts is slightly abridged and part of the opinion 
 is omitted.
 
 Ch. 1) NEGLIGENCE 9G1 
 
 CARNEY V. BOSTON ELEVATED RY. CO. 
 
 (Supreme Judicial Court of Massachusetts, 1912. 212 INIass. 179, 98 N. E. 
 605, 42 L. R. A. [N. S.] 90, Ann. Cas. 19130, 302.) 
 
 Action against the Elevated Railway for damages because of a per- 
 sonal injury through the defendant's alleged negligence. There was a 
 judgment for defendant ; the plaintiff brings exceptions. 
 
 She:ldon, J. The plaintiff was injured while she was riding in an 
 open surface car beneath the defendant's elevated structure. She 
 heard the rumble of an elevated train over her car, "saw the sparks 
 flying," Ipoked up and was struck in the eye by a spark, which could be 
 found to have been a minute piece of hot iron, about as large as the 
 fine end of a pin, coming from the elevated road, and, as we assume, 
 from the contact shoe of the train which was passing thereon. The 
 structure was properly in the street and the defendant was authorized 
 to operate its road by electricity. There was no evidence that it was 
 a frequent occurrence for sparks to fall from its passing trains into 
 the street, or indeed that this had ever before happened. There was 
 nothing to indicate that the defendant ought to have foreseen this dan- 
 ger and to have guarded against it or given warning of its existence. 
 There was no evidence that there was any practicable method or de- 
 vice for checking the emission of sparks from its trains or its electrical 
 apparatus, or preventing their fall to the street, which the defendant 
 had failed to adopt. There was nothing to show any lack of proper 
 care on the part of the defendant in the operation of its trains or cars. 
 Under these circumstances it is manifest that the cases of Woodall v. 
 Boston Elev. St. Ry., 192 Mass. 308, 78 N. E. 446, and Walsh v. Bos- 
 ton Elev., 192 Mass. 423, 78 N. E. 451, cannot help the plaintiff. The 
 ground on which those cases were decided, that there was evidence of 
 an existing danger and of negligence on the part of the defendant in 
 not providing an appliance to prevent the falling of sparks into the 
 street, and in not applying to the railroad commissioners for the ap- 
 proval of a plan to accomplish that object, is lacking here. Either she 
 has chosen, or the facts of the case have compelled her, to rest her 
 claim simply upon the ground that she has been injured by a spark 
 falling on her eye and that this spark came from a train of the defend- 
 ant lawfully operated upon its elevated railroad. 
 
 She contends accordingly that these facts present a case for the ap- 
 plication of the doctrine res ipsa loquitur — that negligence of the de- 
 fendant may be inferred from the bare fact that she has been injured 
 in the manner stated. It is true no doubt that the cause of her injury 
 could be found to have come from the operation of apparatus which 
 had been furnished and applied by the defendant and was wholly un- 
 der its management and control. McDonough v. Boston Elevated Ry., 
 208 Mass. 436, 94 N. E. 809; Le Barron v. East Boston Ferry Co., 11 
 Hepb.Toets — 61
 
 962 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 Allen, 312, 317, 87 Am. Dec. 717; Miller v. Ocean Steamship Co., 118 
 N. Y. 199, 23 N. E. 462 ; Gleeson v. Virginia Midland R. R., 140 U. S. 
 435, 11 Sup. Ct. 859, 35 L. Ed. 458; Scott v. London Dock Co., 3 H. 
 & C. 596; Kearney v. London, Brighton & South Coast Ry., L. R. 5 
 Q. B. 411. But this single circumstance is not always enough. Where 
 as here the cause of the accident has come from the lawful operation 
 by lawful means of an authorized instrumentality, and where any dam- 
 age or injury that has resulted may have come without any negligence 
 of the defendant, but may have arisen merely as an unavoidable acci- 
 dent from the careful and skillful exercise of its lawful rights in spite 
 of the obsen-ance of all proper precautions, there no liability can arise 
 without some affirmative evidence of negligence. In such a case the 
 happening of the accident with the resulting injury is as likely to have 
 come without the fault of the defendant as to have been due to its neg- 
 ligence, and the presumption of fact upon which the doctrine res ipsa 
 loquitur is based does not arise ; the inference of negligence cannot be 
 drawn without some evidence to support it. Beattie v. Boston Elev. 
 St. Ry., 201 Mass. 3, 6, 86 N. E. 920; Minihan v. Boston Elev. St. Ry., 
 197 Mass. 367, 373, 83 N. E. 871 ; Thomas v. Boston Elev. St. Ry., 193 
 Mass. 438, 79 N. E. 749; Wadsworth v. Boston Elev. St. Ry., 182 
 Mass. 572, 574, 66 N. E. 421 ; Clare v. New York & New England R. 
 R., 167 ]\Iass. 39, 44 N. E. 1054; Graham v. Badger, 164 Mass. 42. 47, 
 41 N. E. 61. For this reason we recently have held that in the absence 
 of a statutory liability a railroad company is not liable, without evidence 
 of negligence on its part, for damage done by fire caused by sparks 
 from its locomotive engines. Wallace v. N. Y., N. H. & H. R. R., 208 
 Mass. 16, 94 N. E. 306. 
 
 For the same reasons, in two cases closely resembling that which is 
 here presented, it was held that no inference of negligence could be 
 drawn from the happening of the accident, and the plaintiflF was not al- 
 lowed to recover. Searles v. Manhattan Ry., 101 N. Y. 661, 5 N. E. 
 66; Wiedmer v. New York Elev. R. R., 114 N. Y. 462, 21 N. E. 1041. 
 In the last cited case, the court said that the evidence disclosed a single 
 colorless fact, the emission of a coal smaller than a pinhead, and that 
 the rule res ipsa loquitur has not been extended for enough to authorize 
 from this fact an inference of actionable negligence. 
 
 It is perfectly consistent with the evidence that the defendant has 
 taken all the precautions that were suggested in Woodall v. Boston 
 Elev. St. Ry., 192 Mass. 308. 78 N. E. 446, or which since have been 
 discovered to be possible. If so, it has not been guilty of negligence. 
 It follows that the judge at the trial acted rightly in ordering a verdict 
 in its favor. 
 
 Exceptions overruled.
 
 Ch. 1) NEGLIGENCE 9G3 
 
 III. PLAiNTiifif's Actual Damagi^ 
 ASHBY V. WHITE. 
 
 (Court of King's Bench, 1703. Holt, 5L'4, 2 r^. Raym. 938, 90 Reprint, 
 
 IISS, 92 Reprint, 126.) 
 
 In an action upon the case against the constables of Ailesbury, the 
 plaintiff declared, that such a" day the late King's writ issued and was 
 delivered to the Sheriff of B. for election of members of Parliament 
 in his county; whereupon the said sheriff made out his precept or 
 warrant to the defendants, being constables of A., to chuse two 
 burgesses for that borough, which precept was delivered to the said 
 constables ; and that in pursuance thereof, the burgesses were duly 
 assembled, etc., and the plaintiff', being then duly qualified to vote 
 for the election of two burgesses, offered to give his voice to Sir T. 
 L. and S. M. Esq. ; to be burgesses of Parliament for the said bor- 
 ough; but the defendants knowing the premisses, with malice, etc., 
 obstructed him from voting, and refused and would not receive his 
 vote, nor allow it; and that two burgesses were chose, without 
 allowing or receiving his voice. 
 
 After a verdict for the plaintiff on not guilty pleaded, it was moved 
 in arrest of judgment by Serjeant Whitacre, that this action was not 
 maintainable. And for the difficulty it was ordered to stand in the 
 paper, and was argued Trin. 1 Q. Anne by Mr. Weld and Mr. 
 Mountague for the defendants, and this term judgment was given 
 against the plaintiff, by the opinion of Powell, Powys, and Gould, 
 Justices, Holt, Chief Justice being of opinion for the plaintiff. * * * 
 
 Holt, Chief Justice. The single question in this case is, whether, 
 if a free burgess of a corporation, who has an undoubted right to 
 give his vote in the election of a burgess to serve in Parliament, be 
 refused and hindered to give it by the officer, if an action on the case 
 will lie against such officer. * * * 
 
 And I am of opinion, that this action on the case is a proper action. 
 My brother Powell indeed thinks, that an action upon the case is 
 not maintainable because there is no hurt or damage to the plain- 
 tiff; but surely every injury imports a damage, though it does not 
 cost the party one farthing, and it is impossible to prove the con- 
 trary; for a damage is not merely pecuniary, but an injury imports 
 a damage, when a man is thereby hindered of his right. As in an 
 action for slanderous words, though a man does not lose a penny by 
 reason of the speaking them, yet he shall have an action. So if a 
 man gives another a cuff on the ear, though it cost him nothing, no 
 not so much as a little diachylon, yet he shall have his action, for 
 it is a personal injury. So a man shall have an action against another 
 for riding over his ground, though it do him no damage ; for it is 
 an invasion of his property, and the other has no right to come there.
 
 964 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 And in these cases the action is brought vi et armis. But for invasion 
 of another's franchise, trespass vi et armis does not He, but an action 
 of trespass on the case; as where a man has retorna brevium, he 
 shall have an action against any one who enters and invades his 
 franchise, though he lose nothing by it. So here in the principal 
 case, the plaintiff is obstructed of his right, and shall therefore have 
 his action. And it is no objection to say, that it will occasion multi- 
 plicity of actions; for if men will multiply injuries, actions must be 
 multiplied too; for every man that is injured ought to have his 
 recompence. * * * So the case of Hunt and Dowman, 2 Cro. 
 478, where an action on the case is brought by him in reversion 
 against lessee for years, for refusing to let him enter into the house, 
 to see whether any waste was committed. In that case the action is 
 not founded on the damage, for it did not appear that any waste 
 was done, but because the plaintiff was hindered in the enjoyment 
 of his right, and surely no other reason for the action can be sup- 
 posed. * * * f 
 
 tThe statement of facts is from Holt, 524; tbe rest of the case is from 
 Lord Raymond. 
 
 The opiiious of Gould and Powell, J J., reported in Lord Raymond, are 
 omitted ; only a portion of Chief Justice liolt's opinion is given. 
 
 The judgment of the King's Bench, for the defendant, "was reversed in 
 the House of Lords and judgment given for the plaintrBC by fifty Lords 
 agahist sixteen." See 2 Ld. Raym. 958, 92 Reprint, i;:58. 
 
 The principle of Ashby v. "White has a wider range than negligence case. 
 For its application in a negligence case, see Clifton v. Hooper (1S44) 6 Q. B. 
 468, 115 Reprint, 175. 
 
 See the remarks of IMr. Justice Story, in Webb v. Portland Mfg. Co. (1838) 
 3 Sumn. 189, Fed Cas. No. 17,322: "I can very well understand that no ac- 
 tion lies in a case where there is a damnum abs(iue injuria, that is, where 
 there is a damage done without any wrong or violation of any right of the 
 plaintitf. But I am not able to understand how it can correctly be said, in 
 a legal sense, that an action will not lie, even in case of a wrong or violation 
 of a right, unless it is followed by some perceptible damage, which can be es- 
 tablished, as a matter of fact ; in other words, that injuria sine damno is 
 not actionable. See Mayor of Lynn v. Mayor of London, 4 Term R. l.'tO. 141, 
 143, 144 ; Com. Dig. 'Action on the Case,' B, 1, 2. On the contrary, from 
 my earliest reading, I have considered it laid up among the very elements 
 of the common law that, wherever there is a wrong, there is a remedy to 
 redress it; and, that every injury imports damage in the nature of it; and, 
 if no other damage is established, the party injured is entitled to a verdict 
 for nominal damages. A fortiori this doctrine applies where there is not only 
 a violation of a right of the plaintiff, but the act of the defendant, if con- 
 tinued, may become the foundation, by lapse of time, of an adverse right in 
 the defendant; for then it assumes the character, not merely of a violation 
 of a right tending to diminish its value, but it goes to the absolute destruction 
 and extinguishment of it. Under such circumstances, unless the party in- 
 jured can protect his right from such a violation by an action, it is plain that 
 it may be lost or destroyed, witliout any possible remedial redress. In my 
 judgment, the common law countenances no such inconsistency, not to call 
 it by a stronger name. Actual, perceptible damage is not indispensable as 
 the foundation of an action. The law tolerates no farther inqniry tlian 
 whether there has been tbe violation of a right. If so, the party injured is 
 entitled to maintain his action for nominal damages, in vindication of his 
 right, if no other damages are fit and proper to remunerate him." 
 
 But see the reasoning of Baron Parlie in Embrey v. Owen (1851) (! Kx. 
 353, 368, 86 R. R. 331, 343: "It was very ably argued before us by the learned
 
 Ch. 1) NEULIGEXCB 965 
 
 HOBSON et al. v. THELLUSON. 
 
 (Court of Queen's Bench, 1S67. L. R. 2 Q. B. G12.) 
 
 Declaration against the defendant as sheriff of Yorkshire for not 
 duly executing a writ of fi. fa. at the suit of the plaintiffs against the 
 goods of John Bower, and for falsely returning that Bower had no 
 goods in the defendant's bailiwick whereon the defendant could levy. 
 Pleas: (1) Not guilty; (2) that there were not at the time, or after 
 the delivery of the writ, any goods of Bower in the defendant's baili- 
 wick whereon the defendant could have levied ; (3) that the plaintiffs 
 sustained no damage by reason of the matters alleged in the declara- 
 tion. Issue joined. 
 
 At the trial, it appeared that the plaintiffs obtained judgment for 
 i284 against John Bower, a cloth merchant at Huddersfield, and a 
 trader within the bankruptcy laws ; and a writ of fi. fa. was issued and 
 lodged in London with the undersheriff for Yorkshire on the 23d of 
 May, 1866 ; and a warrant was sent down to Air. Thornton, an officer 
 of the sheriff' at Huddersfield, by the evening post of that day, and was 
 delivered at his office there at half past seven in the morning of the 
 24th of May. Jaggar, the assistant to Air. Thornton, went to the office 
 about a quarter past nine. Jaggar opened the warrants, and on coming 
 to the warrant against Bower's goods, which he had reason the day be- 
 fore to expect, he at once sent off one Sizer to watch Bower's ware- 
 house, which was 400 or 500 yards off ; and on Mr. Thornton coming 
 in about five minutes afterwards Jaggar went off himself to the ware- 
 house with the warrant. He got to the warehouse at twenty-five min- 
 utes past nine, and found the outer door fastened with two locks. Si- 
 zer was left, and remained on the watch till just before ten o'clock, 
 when he withdrew in consequence of a message from Thornton, the 
 door being still locked. Bower, it appeared, had had notice of the writ, 
 
 counsel for the plaintiffs, that the plaintiffs had a right to the full flow of the 
 water in its natural course and abundance, as an incident to their property in 
 the land through which it flowed ; and that any abstraction of the water, 
 however inconsiderable, by another riparian proprietor, and though produc- 
 tive of no actual damage, would be actionable, because it was an injury to a 
 right, and, if continued, would be the foundation for a claim of adverse right 
 in that proprietor. We by no means dispute the truth of this proposition, 
 with respect to every description of right. Actual perceptible damage is not 
 indispensable as the foundation of an action ; it is sufficient to show a viola- 
 tion of a right, in which case the law will presume damage ; injuria sine 
 damno is actionable, as was laid down in the case of Ashby v. White. 2 Ld. 
 Ray. 938, by Lord Holt, and in many subsequent casesj which are all referred 
 to, and the truth of the proposition powerfully enforced, in a veiT able judg- 
 ment of the late Mr. Justice Story in Webb v. Portland Mfg. Co., 8 Sumn. 
 Rep. 189, Fed. Cas. No. 17,322. But in applying this admitted rule to the 
 case of rights to running water, and the analogous cases of rights to air and 
 light, it must be considered what the nature of those rights is, and what is 
 a violation of them." In this case it was held that, as no actual damage had 
 been caused to the plaintiff by the defendant's act, there had been "no in- 
 jury in fact or in law in this ease, and consequently that the verdict for the 
 defendant ought not to be disturbed."
 
 966 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 and had had the warehouse kept closed in consequence; and he went 
 to the office of Mr. Learoyd, his attorney, on the morning of the 24th 
 of May, and told him that an execution was out against his, Bower's 
 goods ; and at Mr, Learoyd's suggestion a deed of assignment was 
 drawn up, in form schedule D to the Bankruptcy Act, 1861, and exe- 
 cuted by Bower at a few minutes before ten, by which Bower conveyed 
 all his goods to Robert Wood and Thomas Hirst, two of his creditors, 
 to be applied for the benefit of themselves and all the other creditors. 
 Thornton, the sheriff's officer, was at once informed of the deed, and 
 took possession of the goods in the warehouse by Learoyd's direction 
 on behalf of the trustees under the deed. Learoyd was not at this time 
 employed by the trustees, but he became their attorney soon after- 
 wards. Neither of the trustees assented to the deed at the time of exe- 
 cution, but Wood executed it on the afternoon of the 24th of May, and 
 Hirst a few days afterwards. A meeting of Bower's creditors was 
 held on the 4th of June as to what was the best course to pursue, and 
 most of the requisite assents to the deed were given on that day, but 
 the plaintiffs refused theirs ; and it was determined that no preference 
 of any kind should be allowed to any creditor, and bankruptcy was sug- 
 gested as the alternative if some arrangement was not come to. Meet- 
 ings were again held on the 12th and 19th of June, and on the last oc- 
 casion the plaintiffs agreed to suspend their proceedings, and it was 
 determined to wind up under the deed ; and the requisite assents hav- 
 ing been obtained, the deed was registered on the 21st of June. 
 
 The learned judge told the jury that a sheriff's officer might break 
 open the door of a warehouse, but was not bound in law to do so at 
 once ; and he left it to them to say whether the sheriff had used due 
 diligence in executing the warrant, that is, could the officer, with due 
 diligence, have made the levy before ten o'clock? If they thought the 
 officer ought to have broken the locks at once they would find for the 
 plaintiffs, otherwise for the defendant. The jury found for the de- 
 fendant, leave being reserved to move to enter a verdict for the plain- 
 tiffs, for such sum (if any) as the Court should think them entitled to, 
 the Court to have power to draw any inference of fact not inconsist- 
 ent with the finding of the jury as to the breaking of the locks. 
 
 A rule was obtained to enter the verdict for the amount of the judg- 
 ment, or for the costs of action and execution, or for nominal damages. 
 
 Blackburn, J, * * * ^° Notwithstanding the execution of 
 the deed, the sheriff might and ought to have levied on the goods dur- 
 ing any part of the 24th of May. Next comes the question, what dam- 
 age have the plaintiffs sustained? Prima facie, the damage is meas- 
 ured by the whole value of the goods which might have been seized. 
 But at ten o'clock, before the sheriff might and ought to have levied, 
 
 86 The argument of counsel, a portion of the opinion of Blackburn, J., and 
 the concurring opinion of ^lellor, .7,, are omitted.
 
 Ch. 1) NEGLIGENCE 9G7 
 
 Bower executed the deed of assignment of all his goods, and this was 
 for the very purpose of defeating and delaying the execution creditors, 
 and it was therefore an act of bankruptcy. * * * Therefore, at ten 
 in the morning of the 24th of May, before the sheriff was in default, 
 that had happened which would have been available as an act of bank- 
 ruptcy, and if the officer had proceeded afterwards to levy, instead of 
 taking possession under the deed, by section 74 of the Bankruptcy Act, 
 1861, he could not have sold till after three days, and then only by 
 public auction ; so that I cannot doubt, when drawing inferences of 
 fact, that if the sheriff had proceeded with the execution and had lev- 
 ied and had then advertised the sale, as he was bound to do under sec- 
 tion 74, the very first thing that would have happened would have been 
 that the execution would have been brought to the notice of the trus- 
 tees, or some other of the creditors, and they would infallibly have 
 made the present plaintiffs and their attorney fully aware of the deed, 
 setting it up in all probability, as in fact they did, as a valid transfer. 
 What, then, would have been the consequence of this state of facts? 
 Why, that by section 133 of the Bankruptcy Act of 1849 the plaintiffs 
 would have got no benefit at all from their execution ; for if they had 
 proceeded with it there would have been an adjudication of bankrupt- 
 cy, and then there would have been execution levied, but not completed 
 by sale until after notice of the previous act of bankruptcy. 
 
 Mr. Manisty says that these probable facts ought not to be taken 
 into consideration, and that we ought not to speculate on probabilities, 
 or whether or not the creditors would have made Bower a bankrupt. 
 If that position were followed out to its consequences, the damages 
 would in every case be the value of the goods which ought to have been 
 seized. But if you may take any facts into consideration which go to 
 show that the execution creditor would not have reaped the full ad- 
 vantage of his execution, I do not see why you may not take all the 
 facts that would probably occur as against the execution creditor's 
 prima facie presumption that the damages are the full value of the 
 goods. It appears to me, as a juryman, an absolute certainty that no- 
 tice of the act of bankruptcy would have been brought home to the 
 plaintiff's before sale; and balancing the weight of probabilities, I think 
 there is the strongest probability that had the defendant levied there 
 would have been an adjudication of bankruptcy; and I accordingly 
 draw the inference that the plaintiffs would have derived no benefit 
 from their execution had it been proceeded with. Consequently they 
 have suffered no damage from the defendant's breach of duty. 
 
 The question remains, are they entitled to a verdict for nominal dam- 
 ages? I think not. The one case is anomalous and exceptional, that 
 a creditor may maintain an action for nominal damages for an escape 
 on a ca. sa., although the custody of the debtor would have been of 
 no value to him, and the ground seems to be that the creditor has a 
 right to have the body of his debtor. Whether the reasoning is satis-
 
 9GS TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 factory or not, it has no application to the case of not levying on goods. 
 On the whole, therefore, it appears to me that the verdict for the de- 
 fendant must stand, and the rule be discharged. 
 Rule discharged. 
 
 J 
 
 SULLIVAN V. OLD COLONY ST. RY. CO. 
 
 (Supreme Judicial Court of Massachusetts, 190S. 200 Mass. 303, 86 N. E. 511.) 
 
 Tort. The first count in the declaration alleged that while the plain- 
 tiff was a passenger on an electric car of the defendant the car was de- 
 railed owing to the defendant's negligence "whereby the plaintiff was 
 jolted and in many ways injured externally and internally." * * * 
 The jury returned a verdict for the defendant, and the plaintiff alleged 
 exceptions. 
 
 She;ldon, J. No question was made at the trial but that the de- 
 fendant was liable for an injury done to the plaintiff by reason of its 
 car having left the track. But if no injury was caused by this to the 
 plaintiff, if he suffered no damage whatever from the defendant's neg- 
 ligence, then he would not be entitled to recover. Although there has 
 been negligence in the performance of a legal duty, yet it is only those 
 who have suffered damage therefrom that may maintain an action 
 therefor. Heaven v. Pender, 11 Q. B. D. 503, 507; Farrell v. Water- 
 bury Horse R. Co., 60 Conn. 239, 246, 21 Atl. 675, 22 Atl. 544; Salmon 
 V. Delaware, etc., R. Co., 38 N. J. Law, 5, 11, 20 Am. Rep. 356; 2 
 Cooley on Torts (3d Ed.) 791 ; Wharton on Negligence (2d Ed.) § 3. 
 In cases of negligence, there is no such invasion of rights as to entitle 
 a plaintiff' to recover at least nominal damages, as in Hooten v. Bar- 
 nard, 137 Mass. 36, and McAneany v. Jewett, 10 Allen, 151. * * * " 
 
 3 7 The statement of facts is abridged and part of the opinion is omitfed. 
 
 Compare the remark of Bowen, L. J., in Brunsden v. Humphrey (1884) 14 
 Q. B. D. 141, 149: "Actions for the negligent uiauagemeut of any animal, 
 or any personal or movable chattel, such as a ship or machine, or instrument, 
 ail are based upon the same principle, viz., that a person, who, contrary to 
 his duty, conducts himself negligently in the management of that which con- 
 tains in itself an element of danger to otliers is liable for all injury caused 
 by his want of care or sUill. Such an action is based upon the union of the 
 negligence and the injuries caused thereby, which in such an instance will as a 
 rule involve and have been accompanied by specific damage. Without re- 
 mounting to the Roman law, or discussing the refinements of scholastic juris- 
 prudence and the various uses that have been made, either by judges or 
 juridical writers, of the terms 'injuria' and 'damnum,' it is sufliciont to say 
 that the gist of an action for negligence seems to me to be the harm to i)er- 
 son or property negligently perpetrated. In a certain class of cases the mere 
 violation of a legal right imiwrts a damage. 'Actual perceptible damage,' 
 says Parke, B., in ICmbrey v. Owen [1851] Exch. 353, 368, 'is not indisi>ensa- 
 ble, as the foundation of an action; it is suHicient to shew the violation of a 
 right, in which case the law will presume damage.' But this principle is 
 not as a rule applicable to actions for negligence, which are not l)rougbt to 
 establisli a bare right, but to recover compensation for substantial injury. 
 'Generally speaking,' says Littledale, J., in Williams v. ISIorland [1824] 2 B. 
 & C. 91(3, 'there must be temporal loss or damage accruing from the wrongful
 
 Ch. 1) NEGLIGENCE 9G*J 
 
 IV. Whether Freedom from Contributory Fault is Part oe 
 
 THE Prima Facie Case in Negligence 
 
 LANE V. CROMBIE. 
 (Supreme Judicial Court of Massacliusett&, 1831. 12 Piclc 177.") 
 
 Action on the case, alleging negligence on the part of the defendants' 
 servant when driving a four-horse sleigh in the highway, whereby the 
 plaintiff was run over and injured. A verdict being found in favor of 
 the plaintiff, a motion was made to set it aside, for a misdirection.^* 
 
 Per Curiam. We consider the rule to be well settled, that to ena- 
 able a plaintiff to recover under such circumstances, he must not only 
 show some negligence and misconduct on the part of the defendant, 
 but ordinary care and diligence on his own part. Butterfield v. For- 
 rester, 11 East, 61 ; Harlow v. Humiston, 6 Cow. (N. Y.) 191; Smith 
 
 V. Smith, 2 Pick. 621, 13 Am. Dec. 464. 
 
 The judge who tried the cause so instructed the jury; but in the 
 course of the charge, he further stated to the jury, that the burden of 
 proof was upon the plaintiff to prove negligence in the defendants, 
 that being the gist of the case; but that when the defendants relied 
 upon the fact, that the plaintiff' conducted herself carelessly, the bur- 
 den of proof was upon the defendants to show that the plaintiff had 
 not used ordinary care. 
 
 The latter part of this direction, we think, was incorrect in point of 
 law, and that the burden of proof was upon the plaintiff to show that 
 the accident was not occasioned by her own negligence, in placing her- 
 self in a hazardous position, without due precaution. In the actual 
 state of the evidence, it is extremely probable that this direction made 
 no dift"erence in regard to the result ; still, if the evidence was such 
 that the jury might have decided the other way upon this point, without 
 going decidedly against the weight of the evidence, or in other words, 
 
 act of anotlier in order to entitle a party to maintain an action on the case.' 
 See Fay v. Prentice (1845) 1 C. B. So5"' [where Maule, J., in an action on the 
 case remarks: "I think there is no doubt that trespass woud lie here; Ijut 
 can the plaintiff maintain case without showing some consequential damage?"] 
 
 Accord: Commercial Bank v. Ten Eyck (1872) 48 N. Y. 305: (Action against 
 the cashier of a bank for neglect of duty. The neglect was proved, but there 
 was no evidence that the plaintiff had suffered damage.) 
 
 Lalaurie v. Southern Bank (1873) 25 La. Ann. 330: (A note for $60 made by 
 Lalaurie was deposited in the Southern Bank for collection. The employes 
 of the bank were not able to decipher the maker's signature, and guessing at 
 it entered the name in the bank book Icept for the purjiose as Labalos. As 
 a result, when the clerk of the maker called to pay the note, he was informed 
 by the cashier that no such note was deposited with the bank. A few days 
 later the note was protested. Early the next day the note was paid. The 
 maker sued to recover damages because of the protest due to the defendant's 
 negligence. The jury awarded him $500 damages and judgment was entered 
 for this by the trial court. "But," said the reviewing court, "no actual in- 
 jury or damage to the plaintiff has been proved.*') 
 
 88 The statement of the case is slightly abridged.
 
 970 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 if the evidence was doubtful and balanced, such a direction may have 
 had an influence to mislead the jury ; and therefore the Court are now 
 all of opinion, that the verdict must be set aside and a new trial 
 granted.^* 
 n 
 
 39 "The first error assigned, on which tlie plaintiff in error, the defendant 
 below, relies, is that the county court omitted to charge the jury that the 
 burden was on the plaintiff below of proving that, when tlie injury complained 
 of was committed, he was in the exercise of reasonable care and prudence. We 
 j accord, entirely, with the decisions, cited by him to show that, in this suit, 
 ^ the burden of showing that the injury was not attributable to the want of 
 reasonable care on his part, rested on the plaintiff. The reason of this rule is, 
 that the plaintiff' must prove all the facts which are necessary to entitle him 
 to recover, and this is one of those facts. It was necessary for tlae plain- 
 tiff" to prove, first, negligence on the part of the defendant, in respect to the 
 collision alleged, and, secondly, that the injury to tlie plaintiff" occurred in 
 consequence of that negligence. But in order to prove this latter part, the 
 plaintiff miist show that such injury was not caused, in whole, or in part, 
 by his own negligence ; for, although tlie defendant was guilty of negligence, 
 it the plaintiff's negligence contributed essentially to the injury, it is obvious 
 that it did not occur by reason of the defendant's negligence. Therefore 
 the plaintiff would not prove enough to entitle him to recover, by merely show- 
 ing negligence on the part of the defendant ; but he must go further and also 
 prove the injury to liave been caused by such negligence by showing a want 
 of concurring negligence on his own part, contributing materially to the in- 
 jury. Hence, to say that the plaintiff must show the latter, is only saying 
 that he must show that the injury was owing to the negligence of the de- 
 fendant. And as the defendant had a riglit to liave the jury informed, as to 
 what facts the plaintiff must prove in order to recover, he had a right to 
 require the court to instnict them, that it was incumbent on the plaintiff to 
 prove a want of such concurring negligence on his part." Per Storrs, J., 
 in Park v. O'Brien (1854) 23 Conn. 339, 345. 
 
 The decisions cited by the plaintiff in error were Lane v. Croiubie (1831) 
 12 Pick. I (Mass.) 177; Adams v. Carlisle (183S) 21 Pick. (Mass.) 140; Parker 
 V. Adams (1847) 12 Mete. (Mass.) 415, 4G Am. Dec. 694 ; Bosworth v. Swansey 
 (1845) 10 Mete. (Mass.) 363, 43 Am. Dec. 441. 
 
 Compare O'Connor v. Connecticut, etc., Co. (1909) 82 Conn. 120, 72 Atl. 934: (P. 
 sued for injuries sustained by him from a collision between liis cart and D.'s 
 street car. Tlie Supreme Court sustained a judgment in favor of P. under the ap- 
 plication of this i>rinciple : "We held in Fay v. Hartford St. Ry. Co. [1908] 81 
 Conn. 330, 71 Atl. 364, that under an answer denying the averments of the com- 
 plaint, in an action of this character, the jury were never at liberty to guess 
 or surmise the existence of the claimed negligence of the defendant, or due 
 care of the plaintiff, but that the burden rested upon the plaintiff to prove 
 them either by direct evidence, or by the proof of facts or circumstances 
 from which they could fairly and reasonably be inferred, and that, when 
 upon tlie trial there was no evidence from which the jury could reasonably 
 conclude that there was a prepon<lerance of proof of the nlloged negligence 
 of the defendant, or of the due care of the injured person, the court, if a non- 
 suit was not granted, should either direct a verdict for the deftnidant upon 
 his request, or, if a verdict should be returned for the plaintiff, should upon 
 motion set it aside as against the evidence.") 
 
 The doctrine that it is part of the plaintiff's prima facie case to show that 
 his damage was not caused l)y his own negligence is recognized in a number 
 of states. See 29 Cyc. 576, 577, and tlie cases cited there, and in the subse- 
 quent Annotation volumes, for the following jurisdictions: Connecticut, Idaho, 
 Illinois, Indiana (until 1899, when a statute excepted actions for negligence 
 causing jxirsonal injury or death), Iowa, Maine, Massachusetts, Michigan, 
 New York, North Carolina (until the statute of 1887, applicalile to all actions 
 for negligence; Revisal of 1905, S is:',), OUlalionia, -mvX N'r-rmont. The cases, 
 however, even in the same state, are not always in accord. See also Cent. 
 Dig. "Negligence," §§ 186-189, 229-232 ; Key-No. "Negligence,'' §§ 113, 122.
 
 Ch. 1) KEGLIGENCB 971 
 
 WAKELIN V. LONDON & S. W. RY. CO. 
 (House of Lords, 1886. L. R, 12 App. Cas. 41.) 
 
 Appeal from a decision of the Court of Appeal. 
 
 The action was brought by the administratrix of Henry Wakelin on 
 behalf of herself and her children under Lord Campbell's Act, 9 & 10 
 Vict. c. 93. 
 
 The statement of claim alleged that the defendant's line between 
 Chiswich Station and Chiswich Junction crossed a public footway, and 
 that on the 1st of May, 1882, the defendants so negligently and un- 
 skilfully drove a train on the line across the footpath and so neglected 
 to take precautions in respect of the train and the crossing that the 
 train struck and killed one Henry Wakelin, the plaintiff's husband, 
 whilst lawfully on the footpath. 
 
 The statement of defence admitted that on that day the plaintiff's 
 husband whilst on or near the footpath was struck by a train of the de- 
 fendants, and so injured that he died, but denied the alleged negligence ; 
 did not admit that the deceased was lawfully crossing the line at the 
 time in question ; and alleged that his death was caused by his own 
 negligence and that he might by the exercise of reasonable caution have 
 seen the train approaching and avoided the accident. 
 
 At the trial before Manisty, J., and a special jury in Middlesex in 
 December, 1883, the following evidence was given on behalf of the 
 plaintiff. It appeared from defendants' answers to interrogatories 
 that the crossing was a level crossing open to all foot passengers : 
 that the approaches to the crossing on each side of the line were guard- 
 ed by hand gates : that there was a slight curve at the crossing : that 
 assuming the deceased to have been crossing the line from the down 
 side and standing inside the hand gates but not on the line he could 
 have seen a train approaching on the down side at a distance of nearly 
 if not quite half a mile, but that when standing in the centre of the 
 line he could have seen a train approaching on the down side at a dis- 
 tance of more than one mile : that the body of the deceased was found 
 on the down side of the line and that he was run upon and killed by a 
 down train: that the engine carried the usual and proper headliglits 
 which were visible at the distances above mentioned : that the company 
 did not give any special signal or take any extraordinary precautions 
 while their trains were travelling over the crossing: that a watchman 
 in the company's employ was on duty from 8 a. m. to 8 p. m. to take 
 charge of the gates and crossing and amongst other duties to provide 
 for the safety of foot passengers. 
 
 Oral evidence was given that from the cottage where the deceased 
 lived it would take about ten minutes to walk to the crossing ; that he 
 left his cottage on the evening of the 1st of May after tea, and that he
 
 972 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 was never seen again till his body was found the same night on the 
 down line near the crossing. There was no evidence as to the circum- 
 stances under w^hich he got on to the line. 
 
 The defendants called no witnesses, and submitted that there was, 
 no case. Manisty, J., left the case to the jury wdio returned a verdict 
 for the plaintiff for £800. The Divisional Court (Grove, J., Huddle- 
 ston, B., and Haw^kins, J.) set aside the verdict and entered judgment 
 for the defendants. The Court of Appeal (Brett, M. R., and Bowen 
 and Fry, L. JJ.) on the 16th of May, 1884, affirmed this decision. In 
 the course of his judgment Brett, M. R., said that in his opinion the 
 plaintiff in this case was not only bound to give evidence of negligence 
 on the part of the defendants which was a cause of the death of the 
 deceased, but was also bound to give prima facie evidence that the de- 
 ceased was not guilty of negligence contributing to the accident ; and 
 that by reason of the plaintiff having been unable to give any evidence 
 of the circumstances of the accident she had failed in giving evidence 
 of that necessary part of her prima facie case. 
 
 From this decision the plaintiff appealed. 
 
 Lord Watson. My Lords, in the view which I take of the evi- 
 dence adduced at the trial before Manisty, J., it may not be absolutely 
 necessary to say anything in regard to the onus which attaches to the 
 plaintiff' in this and similar cases. I shall nevertheless express my opin- 
 ion upon the point, because it was discussed in the judgments deliv- 
 ered in the Court of Appeal, and has been fully and ably argued at 
 your Lordships' bar. 
 
 It appears to me that in all such cases the liability of the defendant 
 company must rest upon these facts, — in the first place that there was 
 some negligent act or omission on the paft of the company or their 
 servants which materially contributed to the injury or death com- 
 plained of, and, in the second place, that there was no contributory 
 negligence on the part of the injured or deceased person. But it does 
 not, in my opinion, necessarily follow^ that the whole burden of proof 
 is cast upon the plaintiff". That it lies with the plaintiff' to prove the 
 first of these propositions does not admit of dispute. Mere allegation 
 or proof that the company were guilty of negligence is altogether irrel- 
 evant; they might be guilty of many negligent acts or omissions, which 
 might possibly have occasioned injury to somebody, but had no con- 
 nection whatever with the injury for which redress is sought, and 
 therefore the plaintiff must allege and prove, not merely that they were 
 negligent, but that their negligence caused or materially contributed 
 to the injury. 
 
 I am of opinion that the onus of proving affirmatively that there was 
 contributory negligence on the part of the person injured rests, in the 
 first instance, upon the defendants, and that in the absence of evidence 
 tending to that conclusion, the plaintiff" is not bound to prove the 
 negative in order to entitle her to a verdict in her favor. That opin-
 
 Ch. ]) NEGLIGENCE 973 
 
 ion was expressed by Lord Hatherley and Lord Penzance in the Dub- 
 lin, Wicklow, and Wexford Railway Company v. Slattery, 3 App. Cas. 
 1169, 1180. I agree with these noble Lords in thinking that, whether 
 the question of such contributory negligence arises on the plea of "not 
 guilty," or is made the subject of a counter issue, it is substantially a 
 matter of defence, and I do not find that the other noble Lords, who 
 took part in the decision of Slattery's Case, said anything to the con- 
 trary. In expressing my own opinion, I have added the words "in 
 the first instance," because in the course of the trial the onus may be 
 shifted to the plaintiff so as to justify a finding in the defeHdants' 
 favour to which they would not otherwise have been entitled. 
 
 The difficulty of dealing with the question of onus in cases like the 
 present arises from the fact that in most cases it is well nigh impos- 
 sible for the plaintiff to lay his evidence before a jury or the Court 
 without disclosing circumstances which either point to or tend to rebut 
 the conclusion that the injured party was guilty of contributory negli- 
 gence. If the plaintift''s evidence were sufficient to shew that the neg- 
 ligence of the defendants did materially contribute to the injury, and 
 threw no light upon the question of the injured party's negligence, then 
 I should be of opinion that, in the absence of any counter-evidence 
 from the defendants, it ought to be presumed that, in point of fact, 
 there was no such contributory negligence. Even if the plaintiff''s evi- 
 dence did disclose facts and circumstances bearing upon that question, 
 which were neither sufficient per se to prove such contributor}' negli- 
 gence, nor to cast the onus of disproving it on the plaintiff", I should re- 
 main of the same opinion. Of course a plaintiff who comes into Court 
 with an unfounded action may have to submit to the inconvenience of 
 having his adversary's defence proved by his own witnesses ; but that 
 cannot affect the question upon whom the onus lies in the first instance. 
 As Lord Hatherley said in Dublin, \\'icklow & Wexford Railway 
 Company v. Slatterly, 3 App. Cas. 1169: "If such contributory negli- 
 gence be admitted by the plaintiff, or be proved by the plaintiff's wit- 
 nesses while establishing negligence against the defendants, I do not 
 think there is anything left for the jury to decide, there being no con- 
 test of fact." 
 
 In the present case, I think the appellant must fail, because no at- 
 tempt has been made to bring evidence in support of her allegations 
 up to the point at which the question of contributory negligence be- 
 comes material. The evidence appears to me to shew that the inju- 
 ries which caused the death of Henry Wakelin were occasioned by 
 contact with an engine or a train belonging to the respondents, and I 
 am willing to assume, although I am by no means satisfied, that it has 
 also been proved that they were in certain respects negligent. The 
 evidence goes no further. It affords ample materials for conjecturing 
 that the death may possibly have been occasioned by that negligence, 
 but it furnishes no data from which an inference can be reasonably 
 drawn that as a matter of fact it was so occasioned.
 
 974 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 I am accordingly of opinion that the order appealed from must be 
 affirmed.*" 
 
 Lord Blackburn. My Lords, I have had the advantage of perus- 
 ing in print the opinion just delivered by my noble and learned friend. 
 In it I perfectly agree. 
 
 Order appealed from affirmed, and appeal dismissed. 
 
 J WASHINGTON & G. R. CO. v. GLADMON. 
 (Supreme Court of the United States, 1872. 15 Wall. 401, 21 L. Ed. 114.) 
 
 Oliver Gladmon, by his next friend, brought an action in the Su- 
 preme Court of the District of Columbia against the railroad com- 
 pany to recover for personal injuries alleged to have been caused by 
 the defendant's negligence. Judgment for the plaintiff ; the defendant 
 sued out a writ of error. 
 
 Mr. Justice: Hunt. Oliver Gladmon, a child of the age of seven 
 years, while crossing a street in Georgetown, was injured by the cars 
 of the Company, the original defendant in this suit. Sufficient proof 
 was given to establish the negligence of the driver of the car, and 
 no point is raised on that branch of the case. The alleged errors arise 
 from refusals to give certain instructions upon the effect of the con- 
 duct of the child, and of the charge as actually made on that sub- 
 ject. The first prayer for instructions is stated in the record in the 
 words following: 
 
 "After the close of the testimony the defendants by their counsel asked 
 the court to give the following instructions to the jury: if the jury find from 
 the evidence that the plaintiff's injuries resulted from his attempting to cross 
 a street in front of an approaching car, driven by an agent' of defendants, 
 the burden of proof is on the plaintiff to show affirmatively, not only the 
 want of ordinary care and caution on the part of the driver, but the exercise 
 of due care and caution on his own part; and if the jury find from tlie evi- 
 dence that the negligence or want of due care or caution of the plaintiff 
 caused the accident, or even contributed to it, or that it could have been 
 avoided by the exercise of due care on his own part, then the plaintiff is not 
 entitled to recover, whether the driver of the car was guilty of negligence or 
 not, but the jury must find for defendant." 
 
 As applied to adult parties, the first branch of this proposition is 
 not correct. While it is true that the absence of reasonable care and 
 caution, on the part of one seeking to recover for an injury so re- 
 ceived, will prevent a recovery, it is not correct to say that it is in- 
 cumbent upon him to prove such care and caution. The want of 
 
 4 The opinions of Lord Halsbury, L. C, and Lord FitzGerald are omitted. 
 
 On the position taken by Brett, INI. R., in the Court of Appeal, see the re- 
 mark in Clerk «Sc Lindsell's Law of Torts (4th Ed.) 510, text and note: "Uix»u 
 the issue of contributory negligence the burden of proof at the commencement 
 of the trial is upon the defendant, and the plaintiff is not bound in the first 
 instance to give any evidence to negative the existence of it. * * * Lord 
 Esher has indeed uniformly held the contrary, but he seems to be the only 
 judge in this country who has supported that doctrine."
 
 Ch. 1) NEGLIGENCE 975 
 
 such care, or contributory negligence as it is termed, is a defense to 
 be proved by the other side. 
 
 The plaintiff may establish the negligence of the defendant, his own 
 injury in consequence thereof, and his case is made out. If there are 
 circumstances which convict him of concurring negligence, the de- 
 fendant must prove them, and thus defeat the action. Irrespective of 
 statute law on the subject, the burden of proof on that point does not 
 rest upon the plaintiff. Oklfield v. N. Y. & Har. R. R. Co., 3 E. D. 
 Smith (N. Y.) 103, affirmed 14 N. Y. 310; Johnson v. Hud. Riv. R. 
 R. Co., 20 N. Y. 65, 75 Am. Dec. 375 ; Button v. Same, 18 N. Y. 248 ; 
 Wilds V. Same, 24 N. Y. 430. In the case first cited Denio, J., says : 
 
 "I am of opinion that it is not a rule of law of universal applica- 
 tion that the plaintiff must prove affirmatively that his own conduct, 
 on the occasion of the injury, was cautious and prudent. The onus 
 probandi, in this as in most other cases, depends upon the position of 
 the aft'air as it stands upon the undisputed facts. Thus, if a carriage 
 be driven furiously through a crowded thoroughfare, and a person 
 is run over, he would not be obliged to prove that he was cautious and 
 attentive, and he might recover, though there were no witness of his 
 actual conduct. The natural instinct of self-preservation would stand 
 in the place of positive evidence, and the dangerous tendency of the 
 defendant's conduct would create so strong a probability that the 
 injury happened through his fault that no other evidence would be 
 required. * * * 'pj^g culpability of the defendant must be affirma- 
 tively proved before the case can go to the jury, but the absence of 
 any fault on the part of the plaintiff may be inferred from circum- 
 stances : and the disposition of men to take care of themselves and 
 keep out of difficulty may properly be taken into consideration." 
 
 The later cases in the New York Court of Appeals I think will show 
 that the trials have almost uniformly proceeded upon the theory that 
 the plaintiff' is not bound to prove affirmatively that he was himself 
 free from negligence, and this theory has been accepted as the true 
 one. Generally, as here, the proof which shows the defendant's neg- 
 ligence, shows also the negligence or the caution of the plaintiff. The 
 question of the burden of proof is, therefore, not usually presented 
 with prominence. In some of the States it has been held that the 
 plaintiff was bound to make affirmative proof of his freedom from 
 negligence. In many cases it is so held by virtue of local statutes. 
 Shear. & Red. Neg. §§ 43 and 44, and note, where the cases are col- 
 lected. * * * " 
 
 Upon the case, as it comes before us, the judgment must be af- 
 firmed. *- 
 
 4 1 In the omitted portion of the opinion, the court held that the charse 
 re(iucsted was properly refused because it ignored the difforenco in the rule 
 in regard to the negligence of an gdult and the negligence of a child of tender 
 years. 
 
 4 2 "By the settled law of this court, not controverted at the bar, contribu- 
 tory negligence on the part of the plaintiff need not be negatived or disproved
 
 97G TOUTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part o 
 
 by him, but the burden of proving it is upon the defendant." Mr. Justice 
 Grav, delivering the opinion in Texas, etc., Ry. Co. v. Volli (1S94) 151 U. S. 
 73, 74, 14 Sup. Ct. 239, 38 L. Ed. 78. 
 
 See, also, O'Hara v. Central R. Co. of New Jersey (1910) 183 Fed. 739, 106 
 C. C. A. 177: (Plaintiff's decedent was struck by defendant's train at a cross- 
 ing in New Jersey. The defendant's liability turned on the question of con- 
 tributory negligence in the decedent. Said Lacombe, J., delivering the opinion 
 of the Circuit Court of Appeals: "In the state coui'ts it is incumbent on the 
 plaintiff, in actions of this kind, to satisfy the jury as part of his case that 
 the person injured was free from contributory uegliTCUce. Evidence to estab- 
 lish this proposition is not always direct. The exercise of proper care may be 
 inferred from facts showing what occurred, even though death or other cause 
 may prevent the introduction of any proof as to the mental processes of the 
 person injured. . In the federal courts contributory negligence is an aflirma- 
 tive defense. The burden of establishing it rests on the defendant. This 
 rule does not ret^uire defendant to establish contributory negligence by wit- 
 nesses whom defendant calls to the stand. If the plaintiff's own witnesses 
 testify to undisputed facts from which that inference must be drawn, de- 
 fendant may rest on their testimony and ask for a dismissal ; but if the un- 
 disputed facts might reasonably support an inference as to the injured per- 
 son's conduct which would leave it doubtful whether he was or was not neg- 
 ligent, the question whether or not the defense is proved will be one for the 
 jury to determine.") 
 
 The doctrine of the principal case, treating contributory negligence as 
 regularly matter of defense, is the rule in the federal courts, and in most 
 of the state courts. See 29 Cyc. 575, 576, and the cases cited there, and in 
 the subsequent Annotation volumes, for the following jurisdictions: Alabama, 
 Arizona, Arkansas, California, Colorado, Delaware, District of Columbia, 
 Florida, Georgia, Indiana (since 1899, by stutute, if the action is for negligence 
 causing personal injury or death ; Act Feb. 17, 1S99, Burns' Rev. Stats. Ind. 
 [1914] § 362), Kansas, Kentucky, Louisiana, Maryland, IMinnesota, Mississippi, 
 Missouri, Montana. Nebraska, Nevada, New Hampshire, New Jersey. North 
 Carolina (since 1887. by statute, applicable to all actions for negligence; 
 Revisal of 1905, § 483), North Dakota, Ohio, Oregon, Pennsylvania, South 
 Carolina, Tennessee, Texas, Utah, Virginia, Washington, West Virginia, Wis- 
 consin, United States. The cases, however even in the same state, are not al- 
 ways in accord. 
 
 See, also. Cent. Dig. "Negligence," §§ 186-189, 229-232; Key-No. "Negli- 
 gence," §§ 113, 122. 
 
 Compare: Smith v. Delaware River Amusement Co. (1908), 76 N. J. Law, 
 46, 69 Atl. 970: (Minturn, J.: "The declaration alleges that * * * the 
 plaintiff purchased a ticket of admission to a grand stand in an amusement 
 park maintained by defendant * * * and that while leaving the stand 
 with other people she, without notice of the existence of any danger, walked 
 into a hole in the flooring and severely injured herself. * * * We can- 
 not say from an inspection of tliis declaration that it shows the plaintiff to 
 have contributed to her own injury ; nor will the law presume that she was 
 negligent in that respect. * * * The requirement in some jurisdictions 
 that the declaration shall allege that due care was exercised by the plaintiff, 
 or, in other words, that contributory negligence shall be negatived by an al- 
 legation of due care [Cooley on Torts. 673], has never been the rule in this 
 state ; but, on the contrary, it has l>een determined that a declaration is 
 good if it contains all that is necessary for the plaintiff to prove under a plea 
 of the general issue in order to entitle him to recover. Beardsley v. South- 
 mayd, 14 N. J. Law, 534. The plaintiff, therefore, is entitled to judgment on 
 the demurrer.")
 
 Ch. 1) NEGLIGENCE 977 
 
 WHALEN V. CITIZENS' GASLIGHT CO. 
 
 (Court of Appeals of New York, 1896. 151 N. Y. 70, 45 N. E. 363.) 
 
 Appeal from a judgment of the General Term of the City Court of 
 Brooklyn, which affirmed a judgment in favor of the plaintiff, en- 
 tered upon a verdict. 
 
 Haight, J. This action was brought to recover damages for a 
 personal injury. 
 
 On the 12th day of September, 1893, the defendant was engaged 
 in laying a gas pipe across the sidev/alk in Court street in the city of 
 Brooklyn, connecting its gas main in that street with the premises on 
 the northeast corner of Court and Sackett streets. For this purpose it 
 had obtained the consent of the city authorities for the removal of 
 the flagstones of the sidewalk in order to dig a trench in which to lay 
 the pipe. At the time of the accident complained of it had caused a 
 flagstone next to the building to be removed, and another flagstone, 
 four feet two inches in length by three feet four inches in breadth 
 and between three and four inches in thickness in the center of the 
 walk, to be taken up and placed upon an adjoining flagstone upon the 
 walk, and its employees were engaged in digging a pit next to the 
 house, intending to tunnel through the intervening space so as not to 
 necessitate the removal of any more of the sidewalk. The space be- 
 tween the two openings undisturbed was about five feet. Whilst the 
 w-alk was in this condition the plaintiff approached, tripped her foot 
 upon the flagstone that had been removed, fell upon it and sustained 
 the injury for which this action was brought. It was about a quarter 
 before eleven o'clock in the forenoon, and was a nice day. She was 
 about seventy years of age, and had been engaged in doing general 
 housework and sewing, and used to go out to wash, iron and clean 
 house. She testified that her eyesight was very good and that she 
 did not notice the flagstone or the excavation beside it as she came 
 near the place where she fell; that she was looking along the street as 
 she walked. 
 
 It is the well-settled law of this state that, in actions of this char- 
 acter, the absence of negligence on the part of the plaintiff contribut- 
 ing to the injury must be affirmatively shown by the plaintiff, and that 
 no presumption of freedom from such negligence arises from the mere 
 happening of an injury. Reynolds v. N. Y. C. & H. R. R. R. Co., 
 58 N. Y. 248; Weston v. City of Troy, 139 N. Y. 281, 34 N. E. 
 780. If this law as to be recognized and followed we are unable to 
 see how this judgment can be sustained ; for to hold otherwise would 
 practically overrule and annul the rule of contributory negligence. As 
 we have seen, it was a bright day and about eleven o'clock in the fore- 
 noon. The obstacle over which the plaintiff fell was a large flagstone 
 over four feet in length and three in breadth. There was nothing to 
 Hepb.Tokts — 62
 
 978 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 obscure her vision; her eyesight was good and she could see as she 
 was walking along the walk. It is not pretended that anything oc- 
 curred that momentarily obstructed her vision, and it is difhcult to con- 
 ceive how she could have avoided seeing the obstacle unless she was 
 heedlessly proceeding in utter disregard of the precautions usually 
 taken by careful and prudent people. 
 
 To our minds the negligence here is greater than that of the plain- 
 tiff in the Weston Case, supra. In that case the plaintiff stepped upon 
 a ridge of ice which was partially covered with snow. Andrews, C. J., 
 in delivering the opinion, says : "Whether the plaintiff saw the ridge 
 before stepping upon it does not appear. Nor was it shown whether 
 she was walking fast or slow, or what attention she was paying, if 
 any, to the condition of the sidewalk. If she discovered the ridge she 
 was not required to leave the sidewalk, but she might, without being 
 subject to the charge of negligence, using due care and prudence, have 
 kept on her way. But she could not heedlessly disregard the pre- 
 cautions which the obvious situation suggests and proceed as if the 
 sidewalk was free and unobstructed. The presumption which a way- 
 farer m.ay indulge, that the streets of a city are safe and which ex- 
 cuses him from maintaining a vigilant outlook for dangers and defects, 
 has no application where the danger is known and obvious." See, 
 also, Beltz v. City of Yonkers, 148 N. Y. 67, 42 N. E. 401, and cases 
 there cited. * * * *3 
 
 Judgment reversed.** 
 
 43 Tart of the opinion, on the question of assumption of risk, is omitted. 
 
 4 4 See the remark of Gray, J., in Specht v. Waterbm-y Co. ^91.3) 208 N. Y. 
 374, 380, 102 N. E. 569, 570 : "Notwithstanding that slie [planitiff's intestate, 
 a child six years of age, whose death had been caused by the alleged negli- 
 gence of the defendant in starting a fire on a vacant lot] may have been non 
 sui juris, the defendant was entitled to have it appear that she had acted 
 with such care as was commensurate with a child of her age. According to 
 the plaintiff his daughter was a bright, intelligent child and while, in the case 
 of the death of an injured person, less evidence is refpiired upon the question 
 of freedom from contributory negligence, nevertheless, evidence of facts cannot 
 be wholly dispensed with, upon which an inference might rest that tlie de- 
 ceased was fairly free from fault. Wendell v. N. Y. C. & H. R. R. R. Co. 
 [1883] 91 N. Y. 420." 
 
 Compare the remark of Strong, J, in Button v. Hudson River R. Co. (1858) 
 18 X. Y. 248, 251 : "The other point presents the question upon whom was 
 the burden of proof, in reference to negligence of the intestate conducing to 
 the injury — whether it belonged to the plaintifE to prove afSrmatively the ab- 
 sence, or to the defendants to prove affirmatively the presence, of such negli- 
 gence. In regard to all the circumstances essential to the cause of action the 
 plaintiff held and was required to sustain the affirmative. Among those cir- 
 cumstances were, that the defendants were negligent, and that the injury 
 resulted from that negligence. If the intestate was negligent, and his negli- 
 gence concurred with that of the defendants in producing the injury, the 
 plaintifE had no cause of action. The reason why no right of action would 
 exist is that, both the intestate and the defendants being guilty of negligence, 
 they were the common authors of what immediately flowed from it, and it 
 was not a consequence of the negligence of either. The court cannot accu- 
 rately, and will not undertake to, discriminate between them as to the extent 
 of the negligence of each and the share of the result produced by each ; uei-
 
 Ch. 1) NEGLIGENCE 979 
 
 HUDSON V. WABASH WESTERN RY. CO. 
 
 (Supreme Court of Missouri, 1S90. 101 Mo. 13, 14 S. W. 15.) 
 
 This action was against the railway company for damages for a per- 
 sonal injury alleged to have been caused by the defendant's negligence. 
 It appeared that the defendant's freight train had been negligently left 
 standing across a public street without a watchman to warn persons 
 using the crossing, that plaintiff tried to cross by climbing on to the 
 cars and stepping on the coupling pins, that as plaintiff was thus 
 crossing, the defendant suddenly and negligently started the train, 
 whereby plaintiff's foot was caught and crushed. The petition alleged 
 that "the plaintiff, without any fault on his part, was caught between 
 two of said cars, then and there, and had his foot smashed, torn and 
 
 ther, therefore, could allege against the other any wrong, and without a wrong 
 there can be no legal injurj'. In this view, the exercise of due care by the 
 intestate was an element of the cause of action. Without proof of it, it would 
 not appear that the negligence of the defendants caused the injury. * * * 
 It must not be understood that it was incumbent on the plaintiff, in the first 
 instance, to give evidence for the direct and .special object of establishing the 
 observance of due care by the intestate; it would be enough if the proof in- 
 troduced of the negligence of the defendants and the circumstances of the 
 injury, prima facie, established that the injury was occasioned by the negli- 
 gence of the defendants ; as such e^-idence would exclude the idea of a want 
 of due care by the intestate aiding to the result. Ordinarily, in similar ac- 
 tions, when there has been no fault on the part of the plaintiff, it will suffi- 
 ciently appear in showing the fault of the defendant, and that it was a cause 
 of the injury and when it does so, no further evidence on the subject is nec- 
 essary." 
 
 See also the reporter's note on the foregoing case (page 259): "Selden, J., 
 objected to an implication which he conceived to lurk in the opinion of Strong, 
 J. (but which Strong, J., disclaimed), that, in the absence of proof of any cir- 
 cumstances importing negligence on the part of the plaintiff, there might be 
 a presumption thereof which he is required to repel ; whereas his negligence 
 must be inferred from evidence, and is not to be presumed." 
 
 In Lee v. Troy Gaslight Co. (1SS5) 98 N. T. 115, the complaint alleged that 
 the plaintiff's horse had been killed by gas escaping from a leak in the gas 
 pipe under plaintiff's barn, and that the leak was occasioned by the negli- 
 gence of defendant's employes in twisting the pipe while engaged in chang- 
 ing its position. The defendant contended that the complaint was insufficient 
 because it nowhere alleged the absence of contributory negligence in the plain- 
 tiff. Said Finch, J., delivering the opinion: "Such separate and direct aver- 
 ment in the pleading was unnecessary. Hackford v. N. Y. C. R. R. Co. [1S71] 
 6 Lans. [N. Y.] 381, affirmed [1873] 53 N. Y. 654. Substantially that allegation 
 is always involved in the averment that the injury set out was occasioned by 
 the defendant's negligence. To prove that, it is necessary for the plaintiff to 
 show, and the burden is upon him to establish, that his own negligence did not 
 cau.se or contribute to the injury. Hale v. Smith [1879] 78 N. Y. 480. In the 
 multitude of eases of this general character we know of none which re<iuires 
 of the pleader any independent or explicit allegation that the plaintiff himself 
 was without fault" 
 
 For the application of this rule of pleading see. also, Rogardus v. MetroiX)li- 
 tan St. Ry. Co. (1901) 62 App. Div. 370, 70 N. Y. Supp. 1094 ; Klein v. Burleson 
 (1910) 138 App. Div. 407, 122 N. Y. Supp. 752.
 
 9S0 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 broken." The answer denied each and every allegation in the petition. 
 The following instruction was given : 
 
 "The court instructs tlie jury that defendant has not pleaded as a defense 
 in this case contributory negligence on the part of plaintiff; and therefore the 
 e][uestion whether plaintiff himself was negligent or not is not before the jury, 
 and must not be considered by it." 
 
 To this instruction the defendant excepted. The trial resulted in 
 a verdict for the plaintiff for $2,500 and judgment thereon.*^ 
 
 She;rwood, J. It is the unquestioned law of this state that con- 
 tributory negligence, strictly, is an affirmative defense, and, in or- 
 der to avail a defendant as a matter of pleading, it must be affirma- 
 tively pleaded. O'Connor v. Railway Co., 94 Mo. 155, 7 S. W. 106, 
 4 Am. St, Rep. 364, and cases cited; Donovan v. Railroad Co., 89 
 Mo. 147, 1 S. W. 232; Schlereth v. Railway Co., 96 Mo. 509, 10 
 S. W. 66. The contention is, however, made by the defendant that, 
 as the petition, among other things, alleged concerning plaintiff "that 
 by said negligent acts, and without any fault on his part, he was then 
 and there caught between two of said cars," etc., and the answer 
 denied this averment, that therefore the defense of contributory neg- 
 hgence was raised. This is a mistake. True, the case of Karle v. 
 Railroad Co., 55 Mo. 482, apparently supports this contention; but 
 the utterance there was only obiter, and should not be regarded as 
 possessing any authoritative value. * * * 
 
 But, while contributory negligence as a matter of defense has to 
 be pleaded in order for a defendant to avail himself of it by the in- 
 troduction of evidence to sustain that issue, yet it does not thence 
 follow that, if the plaintiff's own testimony shows circumstances of 
 contributory negligence which absolutely defeat his right of action, 
 and disprove his own case, that the defendant is not at liberty to take 
 advantage of such testimony, though produced by the adversary. On 
 the contrary, it is well settled in this state, as well as elsewhere, that 
 such advantage may be taken of the plaintiff's testimony, regardless 
 of whether the special defense be pleaded or not. ISIilburn v. Rail- 
 road Co., 86 Mo. 104, and cases cited; Schlereth v. Railway Co., 
 96 Mo. 509, 10 S. W. 66. When this occurs it is the duty of the 
 trial court to declare this result to the jury as a matter of law. 1 
 Shear. & R. Neg. (4th Ed.) 56, 112, note; 2 Ror. R. R. 1054, 1055. 
 
 This duty, it is claimed, the court should have performed, and 
 that the first instruction of the defendant, in the nature of a demur- 
 rer to the evidence, should have been given. The text-books lay it 
 down as undoubted law that the act of climbing over stationary cars, 
 without looking to see whether they were attached to an engine or 
 not, has been held so grossly negligent as to preclude a recovery for 
 
 4 5 The statement of the case is abridged. Parts of the opinion, on other 
 points, are omitted.
 
 Ch. 1) NEGLIGENCE 981 
 
 injuries received while making such attempt. 1 Thomp. Neg. 429; 
 2 Ror. R. R. 1055; Beach, Contrib. Neg. § 72. And the reported 
 cases take the same view of the matter. * * * *« 
 
 In the light of these authorities there seems no room to question 
 that the judgment should be reversed, and it is so ordered. 
 
 46 Accord : Orient Ins. Co. v. Northern Pac. Ry. Co. (190.5) 31 Mont. 502, 
 78 Pac. 1036. 
 
 And see Fitchbnrg: R. Co. v. Nichols (189S) 29 C. C. A. 500, 85 Fed. 945, 947, 
 where Pntnam, Circuit Judge, remarks : "The defendant below excepted to a 
 refusal of the court to rule that the burden was on the plaintiff below to 
 prove that he was not guilty of contributory negligence, claiming that the 
 case is excepted from the general rule of the federal courts, because the plain- 
 tiff below alleges in his declaration that he was 'in the exercise of due care.' 
 None of the numerous rulings of the Supreme Court to the effect that, on this 
 question, the burden is on the defendant, commencing with Railroad Co. v. 
 Gladmon [1872] 15 Wall. 401, 42 L. Ed. 114, have ever deemed it necessary 
 to notice the state of the pleadings in this particular; and the rule has been 
 constantly applied in this circuit to cases removed from the state courts, 
 where this allegation frequently appears. The rule has more relation to the 
 orderly trial of a case than to the state of the pleadings, and to shift from 
 and to it from time to time would cause a great judicial inconvenience, wholly 
 unnecessary, as the allegation referred to may better be regarded as surplus- 
 age than as leading to a variance." 
 
 Compare : Lake Erie & W. R. Co. v. Mackey (1895), 53 Ohio St. 370, 41 N. 
 E. 980, 29 L. R. A. 757, 53 Am. St Rep. 641. It was contended that the com- 
 plaint was not good, as against a general demurrer, because "the presumption 
 of contributory negligence arising from the facts stated is not overcome by 
 proper averments." The petition alleged in substance: That the plaintiff was 
 a minor of the age of nine years. That defendant's track through tlie village 
 of Coldwater intersects and crosses Main street at grade. That Main street 
 is a common thoroughfare and highway, the principal street of said village, 
 and the point of junction of both a public highway and street crossing, neces- 
 sarily much used and frequented by the public. On June 5, 1S90, the defend- 
 ant' did negligently and unlawfully, and without due care on the part of the 
 servants of said defendant in charge thereof, leave a long train of freight 
 cars, attached to a locomotive, standing upon and over, obstructing and block- 
 ing, said crossing, for a period of more than five minutes without any atten- 
 tion to said crossing or the consequences to the convenience or life and limb 
 of persons having occasion to pass such obstruction. That at the time afore- 
 said, during the hour of noon of said day, while said train was so unlawfully 
 standing on said crossing, the plaintiff, a child of tender years and immature 
 exi>erience and judgment, was lawfully passing along said street going to a 
 point beyond said crossing on Main street. When arri\-iug at said crossing, 
 and in full view of the engineer's position, aud in full view of any servant 
 being on the lookout or keeiiing watch o^•er said train, he found said crossing 
 so obstructed and blocked by said defendant's train. That after remaining 
 at said cros.sing for more than five minutes, and receiving no warning, plain- 
 tiff, in full view of the engineer's proper position, and within the knowledge 
 of ordinary prudence of defendant's servants, attempted to pass over and 
 cross such obstruction. While so passing over said cars, defendant's serv- 
 ants, without any care or attention to said crossing, or the consequence to 
 any one attempting to pass such unlawful obstruction, without due care, with- 
 out signal, without notice, without warning, did then and there imprudently, 
 carelessly negligently, and wrongfully start said cars suddenly and violently 
 backward, wherebj' said plaintiff's right foot was caught between the cou- 
 plings of t^^•o cars, and the injury followed. Held a sufficient statement as 
 against a demurrer for lack of facts.
 
 982 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 SECTION 3.— THE SCOPE OF THE DUTY TO USE CARE 
 
 I. In Rklation to thk Ownership or Possession of Property 
 
 (A) Duty of Care Tozvards a Trespasser 
 (a) In General 
 
 BLYTH V. TOPHAM. 
 (Court of King's Bench, 1607. Cro. Jac. 158, 79 Repi-int. 139.) 
 
 Action on the case ; for that he digged a pit in such a common, 
 by occasion whereof his mare, being straying there, fell into said pit 
 and perished. The defendant pleaded not guilty; and it was found 
 for him. 
 
 The plaintiff, to save costs, now moved in arrest of judgment upon 
 the verdict, that the declaration was not good ; for when the mare 
 was straying, and he shews not any right why his mare should be 
 in the said common, the digging of the pit is lawful as against him : 
 and although his mare fell therein, he hath not any remedy ; for it 
 is damnum absque injuria: wherefore an action lies not by him. 
 
 The whole Court was of that opinion. It was therefore judged 
 upon the declaration that the bill should abate, and not upon the 
 verdict. 
 
 PONTING v. NOAKES et al. 
 
 (Queen's Bench Division. [1894] 2 Q. B. 281.) 
 
 Appeal against the verdict and judgment for the plaintiff in an 
 action, tried before the deputy judge of Andover County Court and 
 a jury, to recover as damages the value of the plaintiff's horse, which 
 was alleged to have died through eating of the defendant's yew tree. 
 
 The following statement of the facts proved or admitted at the 
 trial is taken from the judgment of Charles, J.: 
 
 The plaintiff was a farmer and occupied a field separated from the premises 
 of the defendants by a fence. On the side of the fence next the plaintiff's field 
 was a ditch belonging to the defendants. On the defendants' land near the 
 fence grew a yew tree, the branches of which projected over the diteh, but not 
 beyond it. They did not overhang the plaintiff's field. At the distance of about 
 120 yards grew another yew tree in the garden of one Hunt, which overliung 
 the plaintiff's field, and in the hedge of the plaintiff's field, about fifty yards 
 from the defendants' yew tree, there was a small yew bush. On June '2~), 
 1893, the colt and several other horses were in the plaintill's field. On the 
 26th the colt was found dead five yards from the defendants' yew, and Ihere 
 was no doubt from the examination made of the body that it had died from
 
 Ch. 1) NEGLIGENCE 
 
 983 
 
 eating yew leaves. All the three trees, the defendants', Hunt's, and the plain- 
 tifif's yew bush, presented appearances of having been recently eaten. A vet- 
 erinary surgeun stated that it was a fact within his liuowledge that horses 
 have been Ivnown to walk a mile after eating yew leaves before dying, and 
 then to drop down dead. Such a case, however, he said, would be exception- 
 al : the animal most often drops down dead directly after the eating, or after 
 walking a short distance. 
 
 On the above evidence the deputy judge left the case to the jury, 
 who gave a verdict for damages claimed, and judgment for the plain- 
 tiff was given accordingly. The defendants appealed. 
 
 Horace Browne, for the defendants. * * * No duty on their 
 part to fence against their neighbour's cattle was shewn, nor was 
 there any duty to protect such cattle from having access to the tree. 
 The deputy judge, therefore, ought to have given judgment for the 
 defendants. 
 
 Charles, j. * * * Can it be said that there is any duty on a 
 man, either not to grow a poisonous tree so near the boundary of 
 his property as to be accessible to the stock of his neighbour, or, if 
 he does so. to take precautions to prevent any danger to the stock 
 arising? Now here it must be remembered that no liability on the part 
 of the defendants to fence against the cattle of their neighbour was 
 proved. Had any such liability been shown to exist, and had the fence 
 been defective, it might well have been found by the jury that the 
 colt had obtained access to the defendants' land through breach of his 
 obligation to fence, and the poisonous tree being immediately with- 
 in the fence that the eating of its leaves by the colt was the 
 natural consequence of the defendants' breach of duty. But, there 
 being no liability on the part of the defendants to repair the fence, 
 I do not see that they can be made responsible for the eating of those 
 yew leaves by an animal which, in order to reach them, had come 
 upon their land. The hurt which the animal received was due to 
 its wrongful intrusion. It had no right to be there, and its owner, 
 therefore, had no right to complain. The true test in such a case is 
 pointed out by Gibbs, C. J., in Deane v. Clayton, 7 Taunt. 489, at 
 p. 533, in a judgment which was emphatically approved by the Court 
 of Exchequer in Jordin v. Crump, 8 'M. & W. 782, though on the 
 facts proved in Deane v. Clayton, 7 Taunt. 489, at p. 533, the Court 
 were equally divided as to what judgment should be entered. We 
 must ask, he says, "in each case whether the man or the animal 
 which suffered had, or had not, a right to be where he was when he 
 received the hurt." If he had not, then (unless, indeed, the element 
 of intention to injure, as in Bird v. Holbrook, 4 Bing. 628, or of 
 nuisance, as in Barnes v. Ward, 9 C. B. 392, is present) no action is 
 maintainable. It was, however, urged that there was here something 
 in the nature of nuisance, and that the growing of this yew tree 
 so near to the boundary was actionable, in case damage was caused 
 by it, on the same ground as that on which Townsend v. Wathen. 
 9 East, 277, was decided. It was there held that if a man places traps
 
 9S-1 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part ^ 
 
 baited with flesh on his own ground so near to the premises of another 
 that dogs kept on his neighbour's premises must probably be attract- 
 ed by their instinct into the traps, and if in consequence his neigh- 
 bour's dogs are so attracted and are injured, an action Hes. But no 
 evidence whatever was offered in this case that the yew tree could be 
 regarded as a trap in this sense to the plaintiff's horses, and in the 
 absence of any such evidence it was, I think, the plaintiff's business 
 to keep his horses from going too near the tree, and not the defend- 
 ants' duty to take any precautions against their doing so. In the re- 
 sult, therefore, I think, that this appeal must be allowed, and judg- 
 ment entered for the defendant. 
 Judgment for the defendant.*^ 
 
 / 
 
 BAKER V. BYRNE. 
 (Supreme Court of New York, 1S71. 58 Barb. 4.3S.) 
 
 Appeal by the plaintiff from a judgment dismissing the complaint, 
 and from an order denying a motion for a new trial. 
 
 This action was brought by the plaintiff to recover damages for 
 an injury suffered by liim from falling down a hatchway of the 
 barge Pilgrim. It was admitted by the defence that the barge was 
 owned by the defendant George C. Byrne. The accident occurred 
 at Jersey City, New Jersey, in August, 1863. The plaintiff was then 
 mate, and in charge of the steamer Oriel. At the time of the in- 
 jury, there was next to the dock, in Jersey City, a steamer named 
 Carnac. The barge Pilgrim was lying next to the Carnac, and the 
 Oriel was lying outside of and next to the Pilgrim. The evidence 
 showed that there was no way of getting aboard the Oriel except 
 by going over the Carnac and Pilgrim, unless it was by means of a 
 small boat. 
 
 The plaintiff had been going over the Carnac and the Pilgrim to 
 get to his own boat for a day or two previous to the accident. The 
 accident occurred at about nine o'clock in the evening of August 23. 
 That evening was dark and the upper deck of the Pilgrim a little 
 wet and slippery, and the plaintiff went from the upper deck to the 
 main deck of the Pilgrim to pass over to his own boat. The hatch- 
 ways on board the Pilgrim were on the main deck. The plaintiff had 
 usually gone over the upper deck of the Pilgrim, and in doing so 
 would not have observed the hatchways. On the evening in ques- 
 tion, the hatchways of the Pilgrim had been left open, and the plain- 
 tiff fell through one of them, and thereby had his hip dislocated or 
 very much injured. 
 
 4 7 Only so much of the opinion is given as relates to the one point. In an 
 omitted portion, the question was raised whether Fletcher v. Rylands (18GG) 
 L. R. 1 Exch. 265 (1868) 3 H. L. 330, applies to the facts of this case. It was 
 answered in the negative.
 
 Ch. 1) NEGLIGENCE 985 
 
 The defense was a general denial, and a specific denial of any neg- 
 ligence in respect to the hatchways or any other part of the Pilgrim. 
 
 By the Court, Ingraham, P. J. The plaintiff, when crossing the 
 •defendant's vessel, had no right or license to be there, and the de- 
 fendants owed him no duty which threw on them the obligation to 
 close the hatches of their vessel at night, so as to protect a trespasser 
 from injury. 
 
 The principle on which persons are held liable for such acts, is that 
 they are in duty bound to keep their property in such a condition that 
 persons who are lawfully there shall not be injured; but it does not 
 extend to persons on the defendant's premises without right, or with- 
 out permission. 
 
 The cases of Roulston v. Clark, 3 E. D. Smith, 366, Bush v. 
 Brainard, 1 Cow. 78, 13 Am. Dec. 513, and Mentges v. New York 
 ■& H. R. Co., 1 Hilt. 425, are cases exemplifying this rule. 
 
 Judgment affirmed. 
 
 DUDLEY v. NORTHAMPTON ST. RY. CO. 
 
 (Supreme Judicial Court of Massachusetts, 1906. 202 Mass. 443, 89 N. E. 25, 
 
 23 L. R. A. LN. S.] 561.) 
 
 In this action a verdict was directed for the defendant, the North- 
 ampton Street Railway Company. The plaintiff excepts. 
 
 Shkldon, J. It was provided by the statutes in force at the time 
 of this accident that no person should operate an automobile or motor 
 cycle upon any public highway or private way laid out under authority 
 of statute unless he had been licensed to do so and unless his automo- 
 bile or motor cycle had been registered as prescribed. St. 1903, p. 507, 
 c. 473; St. 1905, p. 227, c. 311. But it was also provided by section 2 
 of the act last cited that "any automobile or motor cycle owned by a 
 nonresident of this state who has complied with the laws relative to 
 motor vehicles and the operation thereof of the state in which he re- 
 sides may be operated by such owner on the roads and highways of 
 this state for a period not exceeding fifteen days without the license," 
 etc., required in other cases. The first question presented in this case 
 is whether the plaintiff in operating his machine in this state on the 
 day of the accident was acting in violation of law. 
 
 He was a resident of Connecticut. He had complied with all the 
 laws of that state, and had a right to operate his machine on the high- 
 ways of this state for a period not exceeding 15 days. He came into 
 this state in his automobile on Wednesday, September 13th, and re- 
 mained here until the day of the accident, September 29th, except that 
 on September 14th he drove to West Suffield, Conn., returning to Mass- 
 achusetts the same evening, and that he went to Brattlcboro, Vt., on 
 one day to attend a fair, staying there that day, but not overnight. 
 Each of these absences was merely a temporary visit to the other
 
 9S6 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 state, made with no intention of a permanent stay, and followed by a 
 speedy return; and on each of these days he did actually operate his 
 machine in this state. After his return from Vermont and before 
 the accident, his machine needed repairs, and was kept in a repair gar- 
 age a day and a half for that purpose. 
 
 It is not necessary to determine whether the statute before us should 
 be interpreted as giving to nonresident owners of motor cars who have 
 complied with the laws of their own state merely one period of 15 days 
 after once coming into the state before being forbidden to operate 
 their machines on the roads of this state without a license under its au- 
 thority, and allowing only one total period of grace during the whole 
 of the license year, or whether it should be construed more liberally by 
 allowing nonresident owners to operate their cars without a license 
 for a period of not more than 15 days upon any and every occasion 
 when they shall come into this commonwealth. In either event, this 
 plaintiff had exceeded his privilege. He made one visit here ; and the 
 running of his 15 days was not interrupted by Hs temporary calls into 
 other states. Nor can the period be extended by not counting the days 
 on which his machine was laid up for repairs or on which for any 
 other reason he did not actually operate it. He had driven it into this 
 commonwealth ; within the meaning of the statute he was operating it 
 during the whole of his stay. By no process of computation can it be 
 claimed that his stay had lasted for less than 16 days. It follows that 
 he was acting unlawfully, in violation of the statutes referred to, at 
 the time of the collision between his machine and the defendant's trol- 
 ley car ; and it must be determined whether his violation of law is nec- 
 essarily fatal to his right of action. * * * 
 
 The legislature, in the opinion of a majority of the court, intended 
 to outlaw unregistered machines, and to give them, as to persons law- 
 fully using the highways, no other right than that of being exempt 
 from wanton or willful injury. They were to be no more travelers 
 than is a runaway horse. Richards v. Enfield, 13 Gray, 344; Higgins 
 V. Boston, 148 Mass. 484, 20 N. E. 105. The plaintiff as a mere tres- 
 passer upon the highway was there not only against the right of the 
 owner of the soil and so liable to an action by him, but also against the 
 rights of all other persons who were lawfully using the highway. He 
 was violating a law made for their protection against him ; according- 
 ly, he was a trespasser as to them. It follows that the defendant, which 
 was lawfully using the highway with its cars, owed to the plaintiff no 
 other or further duty than that which it would owe to any trespasser 
 upon its property, that is, not the duty of ordinary care, as those words 
 are commonly used, but merely the duty to abstain from injuring him 
 by wantonness or gross negligence. Sullivan v. Boston Elevated Ry., 
 199 Mass. 7Z, 76, 84 N. E. 844, 21 L. R. A. (N. S.) 36; Fitzmauricc v. 
 N. Y., N. H. & H. R. R., 192 Mass. 159, 162, 78 N. E. 418, 6 L. R. A. 
 (N. S.) 1146, 116 Am. St. Rep. 236, 7 Ann. Cas. 586; Massell v. Bos- 
 ton Elevated Ry., 191 Mass. 491, 493, 78 N. E. 108. * * *
 
 Ch. 1) NEGLIGENCE 987 
 
 Of course the defendant would have had no right to run its car into 
 the plaintiff's machine wantonly or recklessly ; and that is the point of 
 such cases as Welch v. Wesson, 6 Gray, 505, and McKeon v. N. Y., N. 
 H. & H. R. R., 183 Mass. 271, 67 N. E. 329, 97 Am. St. Rep. 437. 
 But there was no evidence in the case at bar to warrant a finding for 
 the plaintiff upon this ground. 
 
 Accordingly, the verdict for the defendant was rightly ordered ; and 
 we need not consider the somewhat doubtful question whether upon 
 the evidence it could have been found that the plaintiff's conduct at the 
 time of the collision was in other respects consistent with the exercise 
 of due care on his part. 
 
 Exceptions overruled.^^ 
 
 (b) Modifications of the Rule 
 
 McVOY V. OAKES et al. •^ 
 (Supreme Court of Wisconsin, 1895. 91 Wis. 214, 64 N. W. 748.) 
 
 The action was by McVoy, to recover damages for personal injuries 
 sustained by the plaintift''s ward, through the negligence of the de- 
 fendants. A demurrer to the complaint was overruled, and the 
 defendants appealed. The complaint, in addition to appropriate alle- 
 gations to show the liability of the defendants, if plaintiff is entitled to 
 recover at all, alleges, in substance, that on the 4th day of October, 
 1893, plaintiff's ward, a little boy seven years of age, while on his way 
 home from school, had traveled out of the public way, along the rail- 
 way track, for some distance, on account of such way being obstructed 
 by defendants' train of cars, when he climbed upon one of the cars by 
 invitation of the conductor, and was induced by such conductor to re- 
 main on such car while the train moved several hundred feet ; that the 
 cars stopped, and the boy then jumped off on the side furthest from 
 his home, and, as the cars moved back, he walked along the side of 
 the train, on a path commonly used and traveled by the public, by 
 consent of the defendants ; that, while so walking, he took hold of one 
 of the brake rods and proceeded in that way for a distance of 500 feet ; 
 that defendants' servants saw him as he was walking with the moving 
 train, with one hand hold of the brake rod, and recklessly and wanton- 
 ly caused the train to be propelled at a rapid and increasing rate of 
 speed, in such a way as to violently jerk him from his feet, and throw 
 him under the cars, and injure him. 
 
 Marshall, J. (after stating the facts). According to the allega- 
 tion of the complaint, defendants' servants, with knowledge that the 
 plaintiff's ward, a boy of such tender years that he could not be held to 
 a very high degree of care, too young certainly to be held guilty of 
 contributory negligence as a matter of law, was in a dangerous situa- 
 te Parts of the opinion are omitted.
 
 988 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 tion, recklessly and wantonly gave speed to the moving train, and 
 suddenly jerked the child from his feet, and threw him under the cars. 
 It needs no argument or citation of authority to support the proposi- 
 tion that such conduct, under the circumstances alleged, constitutes 
 actionable negligence. We do not deem it necessary to consider how 
 the boy happened to be in the position he was at the time of the injury. 
 Without any reference as to how he came to be in such situation, de- 
 fendants' servants at least owed to him the duty not to knowingly, reck- 
 lessly, and wantonly injure him. The order of the superior court is 
 affirmed, and the cause remanded for further proceedings according 
 to law. 
 
 J 
 
 PALMER V. GORDON. 
 
 (Supreme Judicial Ck)urt of Massachusetts, 1S99. 173 Mass. 410, 53 N. E. 900, 
 ^ 73 Am. St Kep. 302.) 
 
 In this action, the jury returned a verdict for the plaintiff, and the 
 defendant alleged exceptions. 
 
 Holmes, J. This is an action of tort for personal injuries. We 
 are to take it that the plaintiff, a boy, was a trespasser, with some other 
 boys, in the kitchen attached to the defendant's restaurant, and that 
 the defendant spilled water upon the stove for the purpose of frighten- 
 ing the boys away. He did not intend to scald them, but the water flew 
 from the stove upon the legs of the boys. The question raised by the 
 exceptions is whether the jury were warranted in finding the defendant 
 liable. 
 
 It will be seen that this case falls between the cases of spring guns 
 and the like, where the defendant is or may be in the same position as if 
 he had been personally present, and had shot the plaintiff, and the 
 cases where, as against trespassers or licensees, railroads are held en- 
 titled to run trains in their usual way without special precautions. 
 Chenery v. Railroad Co., 160 Mass. 211, 213, 35 N. E. 554, 22 L. R. A. 
 575. In the case at bar the defendant, although not contemplating or 
 intending actual damage, did an act specifically contemplating the plain- 
 tiff's presence, and directed against him. He left the safe position of 
 a landowner, simply pursuing his own convenience, and assuming that 
 no one would break the law, and thereby bring himself into danger. 
 
 Just as a man, may make himself liable to a negligent plaintiff by a 
 later negligence (Pierce v. Steamship Co., 153 Mass. 87, 89, 26 N. E. 
 415), he may make himself liable to a trespasser by an act that is done 
 with reference to the trespasser's presence, and that sufficiently clearly 
 threatens the danger which it brings to pass. A trespasser is not caput 
 lupinum. In the present case the only element of doubt was whether 
 the danger to the plaintiff was sufficiently obvious under the circum- 
 stances. That question properly was left to the jury. 
 
 Exceptions overruled.
 
 Ch. 1) NEGLIGENCE 989 
 
 HERRICK V. WIXOM. 
 (Supreme Court of Michigan, 1^99. 121 Mich. 384, 80 N. W. 117.) 
 
 This was an action of trespass on the case. The defendant was pos- 
 sessed of and managed a tent circus. On the afternoon of September 
 18, 1897, when the defendant was exhibiting his circus the plaintiff 
 went to the circus, and entered the tent, the entertainment being in 
 progress, and took a seat on the lower tier of seats. There was testi- 
 mony that the plaintiff entered without right. One feature of the en- 
 tertainment consisted in the ignition and explosion of a giant firecracker 
 attached to a pipe set in an upright position in one of the show rings. 
 This was done by one of the clowns. There is testimony to show that 
 plaintiff' sat 30 or 40 feet from the place where the cracker was ex- 
 ploded, but, when the same was exploded, a part of the firecracker 
 flew and struck plaintiff in the eye, putting it out, whereby he lost the 
 sight and use of the eye. For this injury action was brought against 
 defendant for damages as a result of defendant's negligence in per- 
 mitting a dangerous explosive to be used in a dangerous manner, which 
 subjected those present to hazard and risk of injury. Upon the trial 
 a verdict was rendered for the defendant, and judgment was entered 
 accordingly. Plaintiff brings error. * * * 
 
 The circuit judge charged the jury as follows: 
 
 "The negligence charged in this case, gentlemen, is that Mr. Wixom ex- 
 ploded a fii'ecracker, of the dimensions that tlie plaintiff claims this fire- 
 cracker was, in the inside of this tent, and in the presence of his audience. 
 They claim that was negligence. And that is the question for you to deter- 
 mine, under the evidence, and under the rules of law that I have given you 
 and that I shall give you hereafter. Now, you must further find, in order 
 that the plaintiff recover, that the plaintiff was in the tent, where he was 
 injured, by the invitation of some person having authority to allow him to 
 go in there. If he was a mere trespasser, who forced his way in, then the de- 
 fendant owed him no duty that would enable him to recover under the dec- 
 laration and proofs in this case. * * * 49 
 
 Montgomery, J. (after stating the facts). We think this instruc- 
 tion faulty in so far as it was intended to preclude recovery in any 
 event if the plaintiff was found to be a trespasser. It is true that a 
 trespasser who suffers an injury because of a dangerous condition of 
 premises is without remedy. But, where a trespasser is discovered 
 upon the premises by the owner or occupant, he is not beyond the pale 
 of the law, and any negligence resulting in injury will render the per- 
 son guilty of negligence liable to respond in damages. Beach, Contrib. 
 Neg. § 50; Whart. Neg. § 346; Marble v. Ross, 124 Mass. 44; Hous- 
 ton, etc., R. Co. v. Sympkins, 54 Tex. 615, 38 Am. Rep. 632; Brown v. 
 Lynn, 31 Pa. 510, 72 Am. Dec. 768; Needham v. Railroad Co., 37 Cal. 
 409; Davies v. Mann, 10 Mees. & W. 546; 1 Shear. & R. Neg. § 99. 
 In this case the negligent act of the defendant's servant was commit- 
 ted after the audience was made up. The presence of plaintiff' was 
 
 4 The statement of the case is abridged.
 
 990 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 known, and the danger to him from a negligent act was also known. 
 The question of whether a dangerous experiment should be attempted 
 in his presence, or whether an experiment should be conducted with 
 due care and regard to his safety, cannot be made to depend upon 
 whether he had forced himself into the tent. Every instinct of hu- 
 manity revolts at such a suggestion. 
 
 For this error the judgment will be reversed, and a new trial or- 
 dered. 
 
 DAVIS' ADM'R v. OHIO VALLEY BANKING & TRUST CO. 
 
 (Court of Appeals of Kentucky, 1908. 127 Ky. 800, 106 S. W. 843, 15 L. R. A. 
 
 [N. S.] 402.) 
 
 Carroll, J. Alleging that his intestate, Johnnie Davis, a boy about 
 12 years of age, was killed by the negligence of the servants of appel- 
 lee in operating an elevator in its building, this suit was brought by 
 the administrator to recover damages for his death. The petition 
 charged that decedent lost his life "by the gross negligence of the de- 
 fendant, its agents, servants, and employes while conducting and man- 
 aging the said elevator." In amended petitions it was alleged that the 
 decedent at the time of his death was, by the consent, knowledge, and 
 permission of the agents and servants of defendant, riding on top of 
 the elevator, and was there for the purpose of carrying dinner tO' his 
 sister, who was employed in one of the office rooms of the building in 
 which the elevator was located, and while in this dangerous position 
 was carried to the fourth floor of the building, and brought back to 
 the first floor, when the elevator was stopped, and while it was stand- 
 ing, and decedent was in the act of getting off, the employes of defend- 
 ant suddenly started the elevator, with the result before stated. The 
 answer, after controverting generally the affirmative matter in the peti- 
 tion, pleaded contributory negligence on the part of the decedent. * * 
 
 The elevator is situated on the ground floor of the building. The 
 elevator cage is constructed of iron openwork, through which any per- 
 son might be seen, and the top of the elevator was also made of open- 
 work, with probably a solid piece in the center of the top. A person 
 in the elevator could plainly see through the openwork a person riding 
 on the top of it. Immediately by the side of the elevator is a stairway 
 leading to the- upper stories of the building, and when the elevator is 
 standing at the ground floor a person on top of the elevator can crawl 
 through an open space in the net work surrounding the elevator shaft 
 onto the stairway. The elevator was in charge of a boy, but the rec- 
 ord does not show his age. In the elevator with the operator was an- 
 other boy, Johnnie Davis, who had been riding on top of the elevator, 
 was in the act of crawling out, feet foremost, to the stairway, when 
 the elevator, which at this moment was stationary on the ground floor, 
 was suddenly started. His head was caught by the elevator in its up-
 
 Ch. 1) NEGLIGENCE 991 
 
 ward movement, and almost severed from his body, death resulting in- 
 stantly. The proof showed that Johnnie Davis was 12 years of age; 
 that his sister was working in a telephone office in the building in which 
 the elevator was located; and that he had gone there on the day of 
 his death for the purpose of taking dinner to her, she being employed 
 in one of the top stories of the building that could be conveniently 
 reached by taking the elevator. The proof of one witness was that 
 Johnnie Davis was in the act of getting off of the elevator, which was 
 standing at the ground floor, through the opening in the shaft, when 
 it suddenly started; by another witness, who had been looking at the 
 elevator for a few minutes, that there were two boys in the elevator, 
 and one on top of the elevator; that it went up to about the fourth 
 story, and came down and stopped, and the boy on top of the elevator 
 was in the act of getting out when the elevator boy started it and killed 
 him. This witness said the boys in the elevator were laughing and 
 talking to the boy on top of the elevator, that he heard them as the ele- 
 vator went up and when it came down, that the boy on top did not try 
 to get out until the elevator stopped. Another witness, who came in 
 the building just as the accident happened, said he asked what was the 
 matter, and the elevator boy said : "I have killed little Johnnie Davis, 
 and didn't go to do it. We were just playing with the elevator, and 
 he went to get ofif and got killed." The boy who was in the elevator 
 when the accident happened said that John Gillum was the operator and 
 that Johnnie Davis was on top; that he went up to the second floor 
 and got on ; that he could have seen him if he had been looking, and 
 heard him talking at the fifth floor. He didn't know w^hether the boy 
 operating the elevator saw him when he started the elevator or not. It 
 will thus be seen that there was evidence conducing to establish two 
 propositions, first, that the operator was a boy ; second, that he knew 
 Johnnie Davis was riding on top of the elevator just before he was 
 killed, and could have seen him in the act of getting off if he had looked 
 before starting it on its upward journey. 
 
 Counsel for appellee insist that the little boy who was killed was a 
 trespasser, and that the operator owed him no duty except to prevent 
 injury to him after his peril was actually discovered. The correctness 
 of this principle, as applied to trespassers, will be conceded. It has 
 been so adjudged in a nuinber of cases by this court (C. & O. Ry. Co. 
 V. Barbour's Adm'r, 93 S. W. 24, 29 Ky. Law Rep. 339; Davis v. L. 
 H. & St. L. Ry. Co., 97 S. W. 1122, 30 Ky. Law Rep. 172), and we 
 have no disposition to modify it. But, under the evidence, Johnnie 
 Davis, although riding in a dangerous place not intended or set apart 
 for passengers, was not a trespasser when he was killed, or while rid- 
 ing on the top of the elevator. He was there with the knowledge, and 
 at least implied permission and consent, of the operator. The operator 
 may not have known that he was in the act of escaping from the top 
 of the elevator at the very time it was started, but he did know he was 
 there a few moments before, and, knowing his perilous position, it
 
 992 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 was his duty under the circumstances to have exercised ordinary care 
 for his safety. It would be a cruel and inhuman doctrine to announce 
 that a person operating a dangerous instrumentality like an elevator 
 might have actual knowledge of the fact that some person was riding 
 on it in an unsafe place, where he was likely to be injured at any time, 
 and yet not be responsible for his injury or death, on the theory that 
 at the very moment of the accident, caused by his sudden starting of 
 the machine, he did not actually know the person was yet in his peril- 
 ous position, although he could have known it merely by looking in 
 the direction. McVoy v. Oakes, 91 Wis. 214, 64 N. W. 748. Indeed 
 we might with propriety say that, although Davis be treated as a tres- 
 passer, and the rule of nonliability be applied to him that was laid down 
 in the Barbour and Davis Cases, yet, under the facts, this case should 
 have gone to the jury. A trespasser is not an outlaw, nor are persons 
 upon whose premises he intrudes at liberty to kill or cripple him at 
 pleasure. The same care must be taken to avoid injury to him after 
 his peril is discovered as is exercised towards other persons. The peril 
 of Davis was discovered when the operator knew he was riding on 
 top of the elevator. With this knowledge, it was his duty to have ex- 
 ercised ordinary care to prevent injury to him. We may safely add 
 that, when an employe in charge of a dangerous agency permits per- 
 sons to take places or positions in or about it that are hazardous, and 
 that he knows or should know may result in their injury or death, if 
 they remain where they are, the master will be responsible if the serv- 
 ant fails to exercise ordinary care to prevent injury to them. 
 
 Our attention is called by counsel for appellee to the case of Dalton's 
 Adm'r v. L. & N. R. Co., 56 S. W. 657, 22 Ky. Law Rep. 97. Dalton, 
 while riding on a freight train with the consent of the persons in 
 charge of it, was killed in a collision between the train he was riding 
 on and another train. In the course of the opinion, denying a recov- 
 ery, the court said : "The only obligation appellant owed to him was 
 not to injure him after knowledge of his danger. There is no allega- 
 tion that anything was omitted which might have been done for the in- 
 testate's safety after the danger was discovered." The material dis- 
 tinction between the cases is that in the Dalton Case, as well as in L. 
 & N. R. Co. V. Thornton, 58 S. W. 796, 22 Ky. Law Rep. 778, and in 
 Thornton v. L. & N. R. Co., 70 S. W. 53, 24 Ky. Law Rep. 854, noth- 
 ing was omitted which might have been done in the exercise of ordi- 
 nary care to prevent the injury after the danger was discovered. In 
 the case at bar the liability of appellee company grows out of the fail- 
 ure of its servant to exercise ordinary care to prevent injury to John- 
 nie Davis after his peril was discovered. Whether it did or not exer- 
 cise this degree of care was a question for the jury. * * * so 
 
 Wherefore the case is reversed, with directions for a new trial in 
 conformity with this opinion. 
 
 Parts of the opinion are omitted.
 
 Ch. 1) NEGLIGENCE 993 
 
 LYNCH V. NURDIN. 
 (Court of Queen's Bench, 1S41. 1 Q. B. 29, 113 Reprint, 1041, 55 R. R. 191.) 
 
 Case. The declaration stated that defendant, on &c., was possessed 
 of a cart, and of a horse then harnessed to the same. That defendant 
 carelessly behaved and conducted himself in and about the manage- 
 ment of said cart and horse, and carelessly, negligently, and improper- 
 ly left the said cart and horse in a certain common highway without 
 anybody to look after the same ; and the said cart and horse of de- 
 fendant, by and through his carelessness, negligence, and improper con- 
 duct in that behalf, then ran and struck with great force and violence 
 against plaintiff, then lawfully being in the said highway, and with 
 great force &c. : various injuries were then stated, by means of which 
 plaintiff became and was sick, lame &c. Pleas, Not guilty, and that 
 defendant was not possessed of the cart and the horse. Issues thereon. 
 Verdict for the plaintiff. A rule nisi for a new trial was obtained and 
 argued.^ ^ 
 
 Lord Denman, C. J.°^ This case was tried before my brother 
 Williams at the sittings in the Easter Term, 1839. It was an action of 
 tort for negligence by the defendant's servant, in leaving his cart and 
 horse for half an hour in the open street at the door of a house where 
 the servant remained during that period. The evidence for the plain- 
 tiff proved that, at the end of the first half hour, he, a child of very ten- 
 der age, being between six and seven years old, was heard crying, and, 
 on the approach of the witnesses, was found on the ground and a wheel 
 of the defendant's cart going over his leg, which was thereby frac- 
 tured. The defendant's counsel first applied for a nonsuit. The 
 learned judge refused the application; and no question was made be- 
 fore us that these facts afforded prima facie evidence of the mischief 
 having been occasioned by the negligence of the defendant's servant 
 in leaving the horse and cart. Witnesses were then called to establish 
 a defence by a fuller explanation of the facts that had occurred. They 
 proved that, after the servant had been about a quarter of an hour in 
 the house, the plaintiff, and several other children came up, and began 
 to play with the horse, and climb into the cart and out of it. While 
 the plaintiff was getting down from it, another boy made the horse 
 move, in consequence of which, the plaintiff fell and his leg was broken 
 as before mentioned. On this undisputed evidence, (for there was no 
 cross examination of the witnesses), the defendant's counsel claimed 
 the Judge's direction in his favor, contending that, as the plaintiff' had 
 obviously contributed to the calamity, it could not be said in point of 
 law to have been caused by the negligence of the defendant's servant. 
 
 ei The reporter's statement of the facts and the arguments of counsel are 
 omitted. 
 
 5 2 Part of the opinion, dealing with other questions, is omitted. 
 Hepb.Tobts— 63
 
 994 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 My learned brother, however, thought himself bound to lay all the 
 facts before the jury, and take their opinion on that general point. 
 They found a verdict for the plaintiff. It is now complained that such 
 direction was not given; and at all events the jury are said to have 
 given a verdict contrary to the evidence. The case came on in the new 
 trial paper last Term, and has been fully argued before us. * * * 
 
 A distinction may here be taken between the wilful act done by the 
 defendant in those cases, in deliberately planting a dangerous weapon 
 in his ground with the design of deterring trespassers, and the mere 
 negligence of the defendant's servant in leaving his cart in the open 
 street. But between wilful mischief and gross negligence the bound- 
 ary line is hard to trace : I should rather say, impossible. The law 
 runs them into each other, considering such a degree of negligence as 
 some proof of malice. It is then a matter strictly within the province 
 of a jury deciding on circumstances of each case. They would natu- 
 rally enquire whether the horse was vicious or steady : whether the oc- 
 casion required the servant to be so long absent from his charge, and 
 whether in that case no assistance could have been procured to watch 
 the horse: whether at that hour the street was likely to be clear or 
 thronged with a noisy multitude (it appeared in the present case that 
 Compton street was more thronged than usual, in consequence of a 
 neighbouring street being stopped) : especially whether large parties of 
 young children might be reasonably expected to resort to the spot. If 
 this last mentioned fact were probable, it would be hard to say that a 
 case of gross negligence was not fully established. 
 
 But the question remains, can the plaintiff then, consistently with the 
 authorities, maintain his action, having been at least equally in fault. 
 The answer is that, supposing that fact ascertained by the jury, but to 
 this extent, that he merely indulged the natural instinct of a child in 
 amusing himself with the empty cart and deserted horse, then we think 
 that the defendant cannot be permitted to avail himself of that fact. 
 The most blamable carelessness of his servant having tempted the 
 child, he ought not to reproach the child with yielding to that tempta- 
 tion. He has been the real and only cause of the mischief. He has 
 been deficient in ordinary care : the child, acting without prudence, or 
 thought, has, however, shown these qualities in as great a degree as he 
 could be expected to possess them. His misconduct bears no propor- 
 tion to that of the defendant which produced it. 
 
 For these reasons, we think that nothing appears in the case which 
 can prevent the action from being maintained. It was properly left to 
 the jury, with whose opinion we fully concur. 
 
 Rule discharged. ^^ 
 
 63 See the comment on this case by Collins, J., in Pontine v. Noakes (1894) 
 2 Q. B. 281, 290, and by Pollock, C. B., in Lygo v. Newbold (1853) 9 Exch. 303, 
 96 R. R. 727.
 
 Ch. 1) NEGLIGENCE 995 
 
 STOUT V. SIOUX CITY & P. R. CO. 
 
 (Circuit Court of the United States, D. Nebraska, 1872. 23 Fed. Cas. 180, 
 
 2 Dill. 294, 23 Fed. Cas. 183.) 
 
 SIOUX CITY & P. R. CO. V. STOUT. ^ 
 
 (Supreme Court of the United States, 1874. 17 Wall. 657, 21 L. Ed. 74.5.) 
 
 This was an action brought in the name of an infant, by his father 
 as next friend, to recover $15,000 damages from the railroad company 
 for an injury to the foot of the child, received while playing upon the 
 turntable of the defendant. The action was begun in a state court in 
 Nebraska, but was removed by the railroad company into the United 
 States Circuit Court. 
 
 The plaintiff's petition alleged that the defendant, at the time when 
 
 the injuries complained of were received, was operating a railroad 
 
 through the town of Blair, in Nebraska, and in connection with this 
 
 railroad used and operated a turntable which was 
 
 "so constructed and arranged as to be easily turned around and revolved in 
 a horizontal direction : that across the upper surface thereof there were fas- 
 tened two large and heavy bars of iron corresponding with the iron rails of 
 the railroad track used in connection with said turntable, and so placed and 
 arranged that when the turntable revolved, the ends of the iron bars running 
 across the face of the same passed by the ends of the rails on the railroad 
 track ; that said turntable was situated in a public place, and in immediate 
 proximity to a passenger depot of the defendant" ; that many children were 
 in the habit of going upon said turntable to play; that the turntable was un- 
 fastened and in no way protected to prevent it being turned around at the 
 pleasure of small children ; that the defendant had notice of these facts ; 
 that the plaintiff was a child of tender years without judgment or discretion, 
 and that in consequence of the carelessness and negligence of the defendant 
 in not locking said turntable, it was revolved, and wliile it was being so re- 
 volved by other children, "the plaintiff had his right foot caught between the 
 ends of one of the iron bars on said turntable and the end of one of said 
 rails upon the railroad track" and his foot was crushed and the plaintiff per- 
 manently injured. 
 
 The defendant's answer denied all the averments of the petition and 
 alleged that the plaintiff had no right upon the turntable, that he was a 
 trespasser, and that neither law, nor usage, nor reasonable prudence 
 required the defendant to keep its turntable locked or guarded. 
 
 A jury trial upon the issue thus arising resulted in a disagreement. 
 
 At a second trial the following charge was given by John F. Dillon, 
 
 Circuit Judge: 
 
 This is both a novel and important case. The injury for which this action 
 is brought happened in the tov^Ti of Blair, in this state, on the 29th day of 
 March, 1869. The plaintiff was then a boy of the tender age of six years and 
 two or three months. The undisputed testimony shows that the town of 
 Blair was, at that time, a new place, had been recently laid off, and contained 
 a population of about one hundred people. On the plat of the town of Blair 
 is a tract of land of variable width, extending almost the entire length of 
 the plat, owned and used by the defendants for their road-bed and depot 
 grounds, and which divides the town into two portions. The cross streets of 
 the town run up to this railroad ground and there stop, with tlie exception 
 of one or two streets, which were laid out across it. On this ground, which
 
 996 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 was not enclosed, was situated the defendant's depot house, and, about one- 
 quarter of a mile distant from the depot house, was located the turntable, on 
 which the plaintiff was injured. There were but few houses in the immediate 
 neighborhood of the turntable, and the plaintiff's parents lived in another 
 portion of the town, and about three-fourths of a mile distant from the turn- 
 table. 
 
 The circumstances under wliich the accident to the plaintiff occurred are 
 not in the main, if in any respect, in dispute. The plaintiff", without, as it 
 appears, the knowledge of his parents, started with one or two other boys to 
 go to the defendant's depot, about half a mile away, with no definite purpose 
 in view. "When the boys had arrived at the depot, it was proposed by some 
 of them to go to the turntable to play ; and the boys proceeded to the turn- 
 table, about a quarter of a mile distant, traveling along the defendant's i-oad- 
 b6d or track. When the boys had reached the turntable, which was not at- 
 tended or guarded by any employs of the company, and which was not then 
 fastened or locked, and which revolved easily on its axis, two of them com- 
 menced to turn it. and the plaintiff, in attempting to get upon it (being at the 
 time upon the railroad track), had the misfortune to get his foot caught be- 
 tween the end of the rail on the turntable, as it was revolving, and the end 
 of the iron rail on the main track of the defendant's road, and his foot was 
 badly cut and crushed, resulting in a serious and permanent injury. 
 
 There is the evidence of one witness (Quimby) then an employe of the com- 
 pany, that he had previously seen boys playing at the turntable, and had for- 
 bidden his children to play there. But this witness had no charge of the turn- 
 table, as he says, and did not, as he testified, comnuniicate the fact to any of 
 the officers or employes of the company having charge of the turntable. It 
 appears, from the plaintiff's testimony, that he had not before that day been 
 engaged in playing at the turntable. The turntable was constmcted on the 
 defendant's own land, and the testimony tends to show that it was constructed 
 in the usual and ordinary manner. 
 
 Now the ground of complaint against the defendant, as set out in the peti- 
 tion, is that the turntable, as it was constructed, was of a dangerous nature 
 and character, when unlocked or unguarded, and that being, as it is alleged, 
 in a place much resorted to by the public, and where children were wont to 
 go and play, it was the duty of the defendant to keep the same securely locked 
 or fastened, so as to prevent it from being turned or played with by children, 
 or to keep the same guarded, so as to prevent injuries such as befell the plain- 
 tiff. 
 
 The basis of this action, therefore, is that the defendant owed the plaintiff 
 a duty of this kind; that, in failing to discharge this duty, the defendant was 
 guilty of negligence ; that this neglect caused the injui-y to the plaintiff, and 
 that, therefore, the defendant is liable in damages therefor. 
 
 Now, if this action had been brought, under the circumstances disclosed in 
 the evidence, by an adult, who. himself, meddled with and set in motion the 
 turntable which caused the injury, we should have no hesitation in saying 
 that the law would not allow it to be maintained. And we confess that we 
 have had serious doubts whether, under the circumstances, the action was 
 any more maintainable, being brought by an infant of tender years. 
 
 On retlection it is our judgment, and we so instruct you, that this action 
 may be maintained, if certain facts be established by the evidence. 
 
 Jn the first place, it is alleged In the petition, and it must appear by the 
 evidence, that this turntable, in the condition, situation, and place where it 
 tlien was, was a dangerous machine, one which, if loft unguarded or unlocked, 
 would be likely to cause injury to children. You have heard described the 
 manner in which this turntable was constructed and left, and very much evi- 
 dence has been adduced to show that turntables are constructed and left in 
 this manner elsewhere; and the evidence is quite undisputed that it is not 
 the practice of railroads to guard or lock them. The circumstance that other 
 roads throughout the counti-y do not guard or fasten turntables (if you find 
 such to be the fact), is not conclusive in tlie defendant's favor that there was 
 or could be no negligence on its part as respects the turntable in question, 
 but, while not conclusive, it is still a very important fact or circumstance to 
 be considered by the jury in determining the question of tlie defendant's neg- 
 ligence.
 
 Ch. 1) NEGLIGENCE 997 
 
 This action rests, and rests alone, upon the alleged negligence of the defend- 
 ant, and this negligence consists, as alleged, in not keeping the turntable 
 guarded or locked. Negligence is the omission to do something which a rea- 
 sonable, prudent nian, guided I>y tliose considerations which ordinarily regu- 
 late the conduct of human affairs, would do: or doing something which a 
 prudent or reasonable man would not do, under all the circumstances sur- 
 rounding the particular transaction under judicial investigation. 
 
 If the turntable, in the manner it was constructed and left, was not dan- 
 gerous in its nature, then of course the defendants would not he guilty of 
 any negligence in not locking or guarding it. But even if it was dangerous 
 in its nature in some situations, you are further to consider whether, situated 
 as it was on the defendant's property, in a small town, and distant or some- 
 what remote from habitations, the defendants are guilty of negligence in not 
 anticipating or foreseeing, if left unlocked or unguarded, that injuries to the 
 children of the place would be likely to or would probably ensue. 
 
 The machine in question is part of the defendant's road, and was lawfully 
 constructed where it was. If the railroad company did not know, and had 
 no good reason to suppose, that children would resort to the turntable to play, 
 or did not know, or had no good reason to suppose, that if they resorted there, 
 they would be likely to get injured thereby, then you cannot find a verdict 
 against them. 
 
 But if the defendant did know, or had good reason to believe, under the cir- 
 cumstances of the case, that children of the place would resort to the turnta- 
 ble to play, and that if they did they would or might be injured, then, if they 
 took no means to keep the children away, and no means to prevent accidents, 
 they would be guilty of negligence, and would be answerable for damages 
 caused to children by such negligence. Counsel for the defendant disclaim 
 resting their defense on the ground that the plaintiff's parents were negligent. 
 or that the plaintiff (considering his tender age) was negligent, but rest tlieir 
 defense upon the ground that the company was not negligent, and claim that 
 the injury to the plaintiff was accidental, or brought upon himself. The de- 
 fendants are not insurers of the limbs of those, whether adults or children, 
 who may resort to their grounds ; and there are many injuries continually 
 happening which involve no pecuniary' liability to any one. 
 
 To find against the defendant you must find that it has been guilty of neg- 
 lect, of a wrong, of a want of due and proper care in the construction of ma- 
 chinery of a dangerous character, and, so leaving it exposed as before ex- 
 plained, that, as reasonable men, the officers of the road ought to have fore- 
 seen that an accident, happening as this happened, would probably occur, or 
 be likely to happen. 
 
 The second trial resulted in a verdict for the plaintiff for $7,500. 
 The court signed a bill of exceptions, a writ of error was sued out, 
 and the case was carried to the Supreme Court of the United States. 
 Here the opinion was delivered by 
 
 Mr. Justice; Hunt. * * * Was there negligence on the part 
 of the railway company in the management or condition of its turn- 
 table ? 
 
 On this point the judge charged the jury that to maintain the action 
 it must appear by the evidence that the turntable, in the condition, 
 situation and place where it then was, was a dangerous machine, 
 one which, if unguarded or unlocked, would be likely to cause injury 
 to children ; that if in its construction and the manner in which it 
 was left it was not dangerous in its nature, the defendant was not 
 liable for negligence ; that it was further to consider whether, sit- 
 uated as was the defendant's property, in a small town, somewhat 
 remote from habitations, there was negligence in not anticipating that 
 injury might occur if it was left unlocked or unguarded; that if
 
 998 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 it did not have reason to anticipate that children would be likely to 
 resort to it or that they would be likely to be injured if they did resort 
 to it, then there was no negligence. 
 
 The charge was an impartial and intelligent one. Unless the defend- 
 ant was entitled to an order that the plaintiff be nonsuited, or, as it 
 is expressed in the practice of the United States courts, to an order 
 directing a verdict in its favor, the submission was right. If, upon 
 any construction which the jury was authorized to put upon the 
 evidence, or by any inferences they were authorized to draw from 
 it, the conclusion of negligence can be justified, the defendant was 
 not entitled to this order, and the judgment cannot be disturbed. To 
 express it affirmatively, if from the evidence given it might justly 
 be inferred by the jury that the defendant, in the construction, loca- 
 tion, management or condition of its machine had omitted that care 
 and attention to prevent the occurrence of accidents which prudent 
 and careful men ordinarily bestow, the jury was at liberty to find 
 for the plaintiff. 
 
 That the turntable was a dangerous machine, which would be 
 likely to cause injury to the children who resorted to it, might fairly 
 be inferred from the injury which actually occurred to the plaintiff. 
 There was the same liability to injury to him, and no greater, that 
 existed with reference to all children. When the jury learned from 
 the evidence that he had suffered a serious injury, by his foot being 
 caught between the fixed rail of the road-bed and the turning rail 
 of the table, they were justified in believing that there was a proba- 
 bility of the occurrence of such accidents. 
 
 So, in looking at the remoteness of the machine from inhabited 
 dwellings, when it was proved to the jury that several boys from the 
 hamlet were at play there on this occasion, and that they had been 
 at play upon the turntable on other occasions, and within the ob- 
 servation and to the knowledge of the employes of the defendant, the 
 jury were justified in believing that children would probably resort 
 to it, and that the defendant should have anticipated that such would 
 be the case. 
 
 As it was in fact, on this occasion, so it was to be expected that 
 the amusement of the boys would have been found in turning this 
 table while they were on it or about it. This could certainly have 
 been prevented by locking the turntable when not in use by the com- 
 pany. It was not shown that this would cause any considerable ex- 
 pense or inconvenience to the defendant. It could probably have 
 been prevented by the repair of the broken latch. This was a heavy 
 catch which, by dropping into a socket, prevented the revolution of 
 the table. There had been one on this talkie weighing some eight 
 or ten pounds, but it had been broken off and had not been replaced. 
 It was proved to have been usual with railroad companies to have 
 upon their turntables a latch or bolt, or some similar instrument. The 
 jury may well have beheved that if the defendant had incurred the
 
 Ch. 1) NEGLIGEXCE 999 
 
 trifling expense of replacing this latch, and had taken the sHght 
 trouble of putting it in its place, these very small boys would not have 
 taken the pains to lift it out, and thus the whole difficulty have been 
 avoided. Thus reasoning, the jury would have reached the conclusion 
 that the defendant had omitted the care and attention it ought to 
 have given, that it was negligent, and that its negligence caused the 
 injury to the plaintiff. The evidence is not strong and the negli- 
 gence is slight, but we are not able to say that there is not evidence 
 sufficient to justify the verdict. We are not called upon to weigh, 
 to measure, to balance the evidence, or to ascertain how we should 
 have decided if acting as jurors. The charge was in all respects 
 sound and judicious, and there being sufficient evidence to justify 
 the finding we are not authorized to disturb jt. * * * ^* 
 
 Upon the whole case, the judgment must be affirmed. ^ 
 
 ^^ 
 
 lE 
 
 FROST V. EASTERN R. R. 
 
 / 
 
 (Supreme Court of New Hampshire, 1886. 64 N. H. 220, 9 Atl. 790, 10 Am. 
 
 St. Eep. 396.) 
 
 Case, for personal injuries from the alleged negligence of the de- 
 fendants in not properly guarding and securing a turn-table. The 
 plaintiff, Avho sues by his father and next friend, was seven years 
 old when the accident occurred. Plea, the general issue. A motion 
 for a nonsuit was denied, and the defendants excepted. Verdict 
 for the plaintiff. ^^ 
 
 Clark j. * * * 'Tiie ground of the action is, that the defend- 
 ants were guilty of negligence in maintaining a turn-table insecurely 
 
 5 4 Parts of the opinion of Justice Hunt are omitted. 
 
 "Ownership of property may carry with it the right of the owner to use, and 
 to exclude others from the use of, the property; but, however exclusive may be 
 the owner's rights, he is subject always to the maxim, 'Sic utere tuo ut alien- 
 um non Isedas.' Common prudence forbids that one may arrange, even on 
 his own premises, that which he knows, or in the exercise of common judg- 
 ment and prudence ought to know, will naturally attract others into unsus- 
 l>ected danger of great bodily harm. It is the apparent probability of danger, 
 rather than rights of property, that determines the duty and measure of 
 care required of the author of such a contrivance ; for ordinarily the duty 
 of avoiding known danger to others may, under some circumstances, operate 
 to require care tor persons who may be at the place of danger without right. 
 
 "The averments o^ this complaint bring the case within the influence of Rail- 
 road Co. V. Stout (1873) 17 'Wall. 657, 21 L. Ed. 745. which is a leading au- 
 thority in affirmation of the possible liabilitj' of railroad companies for neg- 
 ligence in cases of injury to infants trespassing on turntables. As appears 
 from cases cited in briefs of counsel, there has been a parting of the ways 
 of judicial opinion concerning the soundness of the decision in Stout's Case. 
 Some courts have repudiated, though numerous others have followed, it. 
 We adopt as sound the doctrine there announced concerning both the duty of 
 railroad companies towards infants, and the mode in which the (luestion of 
 negligence should be tried." Per Sharpe, J., in Alabama G. S. R. Co. v. 
 Crocker (1901) 131 Ala. 584, 31 South. 561, 563. 
 
 5 3 Only so much of the case is given as relates to the one iwint.
 
 1000 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part B 
 
 guarded, which, being wrongfully set in motion by older boys, caused 
 an injury to the plaintiff, who was at that time seven years old, and 
 was attracted to the turn-table by the noise of the older and larger 
 boys turning and playing upon it. The turn-table was situated on the 
 defendants' land, about sixty feet from the public street, in a cut 
 with high, steep embankments on each side ; and the land on each 
 side was private property and fenced. It was fastened by a toggle, 
 which prevented its being set in motion unless the toggle was drawn 
 by a lever, to which was attached a switch padlock, which being locked 
 prevented the lever from being used unless the staple was drawn. 
 At the time of the accident the turn-table was fastened by the toggle, 
 but it was a controverted point whether the padlock was then locked. 
 When secured by the toggle and not locked with the padlock, the 
 turn-table could not be set in motion by boys of the age and strength 
 of the plaintiff. 
 
 Upon these facts we think the action cannot be maintained. The 
 alleged negligence complained of relates to the construction and con- 
 dition of the turn-table, and it is not claimed that the defendants 
 were guilty of any active misconduct towards the plaintiff. The right 
 of a landowner in the use of his own land is not limited or qualified like 
 the enjoyment of a right or privilege in which others have an interest, 
 as the use of a street for highway purposes under the general law, or 
 for other purposes under special license (Aloynihan v. Whidden, 143 
 Mass. 287, 9 N. E. 645), where care must be taken not to infringe 
 upon the lawful rights of others. At the time of his injury the plain- 
 tiff was using the defendants' premises as a playground without right. 
 The turn-table was required in operating the defendants' railroad. 
 It was located on its own land so far removed from the highway as 
 not to interfere with the convenience and safety of the public travel, 
 and it was not a trap set for the purpose of injuring trespassers. Aid- 
 rich V. Wright, 53 N. H. 404, 16 Am. Rep. 339. Under these circum- 
 stances, the defendants owed no duty to the plaintiff; and there can 
 be no negligence or breach of duty where there is no act or service 
 which the party is bound to perform or fulfil. A landowner is not 
 required to take active measures to insure the safety of intruders, 
 nor is he liable for an injury resulting from the lawful use of his 
 premises to one entering upon them without right. A trespasser or- 
 dinarily assumes all risk of danger from the condition of the prem- 
 ises; and to recover for an injury happening to him he must show 
 that it was wantonly inflicted, or that the owner or occupant, being 
 present and acting, might have prevented the injury by the exercise 
 of reasonable care after discovering the danger. Clark v. Man- 
 chester, 62 N. H. 577; State v. Railroad, 52 N. H. 528; Sweeny v. 
 Railroad, 10 Allen, 368, 87 Am. Dec. 644; Morrisscy v. Railroad, 126 
 Mass. 377, 30 Am. Rep. 686; Severy v. Nickerson, 120 Mass. 306, 
 21 Am. Rep. 514; Morgan v. Hallowell, 57 Me. 375; Pierce v. 
 Whitcomb, 48 Vt. 127, 21 Am. Rep. 120; McAlpin v. Powell, 70 N.
 
 Ch. 1) NEGLIGENCE 1001 
 
 Y. 126, 26 Am. Rep. 555 ; St. L., V. & T. H. R. R. Co. v. Bell, 81 
 III. 76, 25 Am. Rep. 269; Gavin v. Chicago, 97 111. 66, 37 Am. Rep. 
 99; \\'ood V. School District, 44 Iowa, 27; Gramlich v. Wurst, 86 
 Pa. 74, 27 Am. Rep. 684 ; Cauley v. P. C. & St. Louis Railway Co., 
 95 Pa. 398, 40 Am. Rep. 664; Gillespie v. AIcGowan, 100 Pa. 144, 
 45 Am. Rep. 365 ; Mangan v. Atterton, L. R. 1 Ex. 239. The maxim 
 that a man must use his property so as not to incommode his neigh- 
 bor, only applies to neighbors who do not interfere with it or enter 
 upon it. Knight v. Abert, 6 Pa. 472, 47 Am. Dec. 478. To hold the 
 owner liable for consequential damages happening to trespassers from 
 the lawful and beneficial use of his own land would be an unreasonable 
 restriction of his enjoyment of it. 
 
 We are not prepared to adopt the doctrine of Railroad Co. v. Stout, 
 17 Wall. 657, 21 L. Ed. 745, and cases following it, that the owner 
 of machinery or other property attractive to children is liable for 
 injuries happening to children wrongfully interfering with it on his 
 own premises.^® The owner is not an insurer of the safety of infant 
 
 66 On the diversity of doctrine here see 29 Cyc. 447, 448, and the cases 
 there cited. 
 
 The "turntable" doctrine was elaborately considered in Ryan v. Towar 
 (1901) 128 Mich. 463, 87 X. W. 644. .55 L. R. A. 310, 92 Am. St. Rep. 481. The . 
 court, by a majority of one, ruled against the new doctrine. Said Hooker, ^ 
 J., speaking for the majority: "Mere toleration of a trespass does not alone 
 constitute a license even, certainly not an invitation. 1 Thomp. Xeg. (2d Ed.) 
 § 10-50, and note. The pedestrians who insist upon risking their lives by 
 making a footpath of a railroad track, and others who habitually shorten 
 distances by making footi>aths across the corners of village lots, are none the 
 less trespassers because the owners do not choose to resent such intrusion, 
 and be to the expense and trouble of taking effective measures to prevent 
 it. There is no more lawless class than children, and none more annoyingly 
 resent an attempt to prevent their trespasses. The average citizen has learn- 
 ed that the surest way to be overrun by children is to give them to under- 
 stiind that their presence is distasteful. The consequence is that they roam at 
 will over private premises, and, as a rule, this is tolerated so long as no dam- 
 age is done. The remedy which the law affords for the trifling trespasses of 
 children is inadequate. Xo one ever thinks of suing them, and to attempt 
 to remove a crowd of boys from private premises by gently lajing on of hands, 
 and using no more force than necessary to put them off, would be a roaring 
 farce, with all honors to the juveniles. For a coi-poration with an empty 
 treasury, and overwhelmed with debt, to be required to be to the expense of 
 preventing children from going across its lots to school, lest it be said that 
 it invited and licensed them to do so, is to our minds an unreasonable proix)si- 
 tion. As to this question of license or invitation, there is no difference be- 
 tween children and adults. * * * May a man keep a ladder, or a 
 grindstone, or a scythe, or a plow, or a reaper, without danger of being called 
 upon to reward trespassing children, whose parents owe and may be pre- 
 sumed to perform the duty of restraint? Does the new rule go still further, 
 and make it necessary for a man to fence his gravel pit or quarry? And, if 
 so, will an ordinary fence do, in view of the known propensity and ability of 
 boys to climb fences? Can a man nowadays safely own a small lake or tish- 
 pond? and must he guard ravines and precipices upon his land? Such is the 
 evolution of the law, less than 20 years after the decision of Railroad Co. v. 
 Stout (1873) 17 Wall. 057, 21 L. Ed. 745, when, with due deferenc-e, we think 
 some of the courts left the solid ground of the rule that trespassers cannot 
 recover for injuries received, and due merely to negligence of the persons 
 trespassed upon. * * * "
 
 1002 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 trespassers. One having in his possession agricultural or mechanical 
 tools is not responsible for injuries caused to trespassers by careless 
 handling, nor is the owner of a fruit tree bound to cut it down or 
 enclose it, or to exercise care in securing the staple and lock with 
 which his ladder is fastened, for the protection of trespassing boys 
 who may be attracted by the fruit. Neither is the owner or occupant 
 of premises upon which there is a natural or artificial pond, or a blue- 
 berry pasture, legally required to exercise care in securing his gates 
 and bars to guard against accidents to straying and trespassing chil- 
 dren. The owner is under no duty to a mere trespasser to keep 
 his premises safe ; and the fact that the trespasser is an infant cannot 
 have the effect to raise a duty where none otherwise exists. "The sup- 
 posed duty has regard to the public at large, and cannot well exist 
 as to one portion of the public and not to another, under the same 
 circumstances. In this respect children, women, and men are upon 
 the same footing. In cases where certain duties exist, infants may 
 require greater care than adults, or a different care ; but precautionary 
 measures having for their object the protection of the public must as a 
 rule have reference to all classes alike." Nolan v. N. Y. & N. H. & H. 
 Railroad Co., 53 Conn. 461, 4 Atl. 106. 
 
 There being no evidence to charge the defendants with negligence, 
 the motion for a nonsuit should have been granted. 
 
 COOKE V. MIDLAND GREAT WESTERN RY. OF IRELAND. 
 ^ (House of Lords. [1909] A. C. 229.) 
 
 A railway company kept a turntable unlocked on their land close to 
 a public road. The company's servants knew that children were in 
 the habit of trespassing and playing with the turntable, to which they 
 obtained easy access through a well-worn gap in a fence which the 
 railway company were bound by statute to maintain. A four year 
 old boy playing with other children on the turntable was seriously 
 hurt under circumstances disclosed in the opinions which follow. 
 The child by his father brought an action against the railway company 
 for the injury thus sustained. 
 
 At the trial before Lord O'Brien, C. J., the jury found a verdict 
 for the plaintiff for £550, and judgment was entered accordingly. The 
 jury found that the fence was in a defective condition through the 
 negligence of the defendants ; that the plaintiff was allured through 
 the hedge and up to the turntable by the negligence of the defendants ; 
 and that it was by reason of the defendants' negligence that the mis- 
 fortune occurred. This judgment was affirmed by the King's Bench 
 Division in Ireland (Palles, C. B., and Johnson, J. ; Kenny, J., dissent- 
 mg), but was set aside by the Court of Appeal in Ireland (Sir S.
 
 Ch. 1) NEGLIGENCE 1003 
 
 Walker, L. C, and Fitz Gibbon and Holmes, L. JJ.). Hence this 
 appeal by the plaintiff.^^ 
 
 Lord Macnaghte:n. My Lords, the only question before your 
 Lordships is this : Was there evidence of negligence on the part of 
 the company fit to be submitted to the jury? If there was, the ver- 
 dict must stand, although your Lordships might have come to a dif- 
 ferent conclusion on the same materials. 
 
 I cannot help thinking that the issue has been somewhat obscured 
 by the extravagant importance attached to the gap in the hedge, both 
 in the arguments of counsel and in the judgments of some of the 
 learned judges who have had the case under consideration. That there 
 was a gap there, that it was a good broad gap some three feet wide, 
 is, I think, proved beyond question. But of all the circumstances at- 
 tending the case it seems to me that this gap taken by itself is the least 
 important. I have some difficulty in believing that a gap in a road- 
 side fence is a strange and unusual spectacle in any part of Ireland. 
 But however that may be, I quite agree that the insufficiency of the 
 fence, though the company was bound by Act of Parliament to main- 
 tain it, cannot be regarded as the effective cause of the accident. 
 
 The question for the consideration of the jury may, I think, be 
 stated thus : Would not a private individual of common sense and 
 ordinary intelligence, placed in the position in which the company were 
 placed, and possessing the knowledge which must be attributed to 
 them, have seen that there was a likelihood of some injury happening 
 to children resorting to the place and playing with the turntable, and 
 would he not have thought it his plain duty either to put a stop to 
 the practice altogether, or at least to take ordinary precautions to pre- 
 vent such an accident as that which occurred ? 
 
 This I think was substantially the question which the Lord Chief 
 Justice presented to the jury. It seems to me to be in accordance with 
 the view of the Court of Queen's Bench in Lynch v. Nurdin, 1 Q. B. 
 29, and the opinion expressed by Romer and Stirling, L. JJ., in Mc- 
 Dowall V. Great Western Ry. Co., [1903] 2 K. B. 331. 
 
 The Lord Chancellor of Ireland puts Lynch v. Nurdin aside. He 
 holds that it bears no analogy to the present case, because the thing 
 that did the mischief there was a "cart in the public street — a nui- 
 sance." But no question of nuisance was considered in Lynch v. 
 Nurdin. That point was not suggested. The ground of the deci- 
 sion is a very simple proposition. "If," says Lord Denman, "I am 
 guilty 6f negligence in leaving anything dangerous in a place where 
 I know it to be extremely probable that some other person will un- 
 justifiably set it in motion to the injury of a third, and if that injury 
 should be so brought about, I presume that the sufferer might have 
 redress by action against both or cither of the two, but unquestionably 
 
 B7 The statement of the facts is abridged and the arguments of counsel 
 and parts of the opinions of Lord Macuaghten and Lord Loreburu, L. C, are 
 omitted.
 
 lOOi TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 against the first." If that proposition be sound, surely the character 
 of the place, though, of course, an element proper to be considered, is 
 not a matter of vital importance. It cannot make very much differ- 
 ence whether the place is dedicated to the use of the public or left 
 open by a careless owner to the invasion of children who make it 
 their playground. 
 
 I think the jury were entitled and bound to take into consideration 
 all the circumstances of the case, — the mode in which the turntable 
 was constructed ; its close proximity to the wall by which the plaintiff's 
 leg was crushed; the way in which it was left, unfenced, unlocked, 
 and unfastened; the history of this bit of ground and its position, 
 shut off as it was by an embankment from the view of the company's 
 servants at the station, and lying half derelict. Aher the construction 
 of the embankment it served no purpose in connection wath the com- 
 pany's undertaking, except that at one time a corner of it was used 
 as a receptacle for some timber belonging to the company, and after- 
 wards as a site for this turntable. In other respects, and apart from 
 these uses, it seems to have been devoted or abandoned to the suste- 
 nance of the railway inspector's goat and the diversion of the youth 
 of Navan. It is proved that in spite of a notice board idly forbidding 
 trespass it was a place of habitual resort for children, and that children 
 were frequently playing with the timber, and afterwards with the 
 turntable. At the date of the trial, twelve months after the acci- 
 dent, a beaten path leading from the gap bore witness both to the 
 numbers that flocked to the spot and to the special attraction that 
 drew children to it. It is remarkable that not a single word of cross 
 examination as to either of these points was addressed to the prin- 
 cipal witnesses for the plaintiff, Tully, the herd, and Gertrude Cooke, 
 the plaintiff's sister; nor was any explanation or evidence offered on 
 the part of the company. Now the company knew, or must be deemed 
 to have known, all the circumstances of the case and what was going 
 on. Yet no precaution was taken to prevent an accident of a sort that 
 might well have been foreseen and very easily prevented. They did 
 not close up the gap until after the accident. Then it was the first 
 thing thought of. But it was too late. They did not summon any of 
 the children who played there, or bring them before the magistrates, 
 as a warning to trespassers and a proof that they were really in 
 earnest in desiring to stop an objectional practice which had gone 
 on so long and so openly. They did not have their turntable locked 
 automatically in the way in which Mr. Barnes, C. E., whose evidence 
 is uncontradicted, says it is usual to lock such machines. -The table, 
 it seems, was not even fastened. There was a bolt; but if Cooke, 
 the father of the plaintiff is to be believed, the bolt was rusty and un- 
 workable. * * * 
 
 It seems to me that the Chief Justice would have been wrong if he 
 had withdrawn the case from the jury. I think the jury were entitled, 
 in view of all the circumstances, on the evidence before them, uncon-
 
 Ch. 1) NEGLIGENCE 1005 
 
 tradicted as it was, to find that the company were guilty of negligence. 
 I am therefore of the opinion that the finding of the jury should be 
 upheld, and judgment under appeal reversed, with pauper costs here, 
 and costs below ; and I move your Lordships accordingly. 
 
 I will only add that I do not think that this verdict will be followed 
 by the disastrous consequences to railway companies and landowners 
 which the Lord Chancellor of Ireland seems to apprehend. Persons 
 may not think it worth their while to take ordinary care of their own 
 property, and may not be compellable to do so ; but it does not seem 
 unreasonable to hold that, if they allow their property to be open to 
 all comers, infants as well as children of maturer age, and place upon 
 it a machine, attractive to children and dangerous as a plaything, they 
 may be responsible in damages to those who resort to it with their 
 tacit permission, and who are unable, in consequence of their tender 
 age, to take care of themselves. 
 
 Lord Collins. My Lords, this case has given rise to much differ- 
 ence of view, the Lord Chief Justice, who tried the case, the Lord 
 Chief Baron, and Johnson, J'., being in favour of the plaintiff, and 
 three judges of the Court of Appeal and Kenny, J., in the Divisional 
 Court, in favour of the defendants. I am of opinion that there was 
 evidence of actionable negligence fit for the consideration of a jury. I 
 think there was evidence that the turntable, fastened as it was only 
 by a bolt so easily withdrawn, was a dangerous thing for young chil- 
 dren to play with, and that the defendants, as reasonable men, ought 
 to have known it; and that, situate as it was in such a conspicuous 
 place, and frequented so largely by young people without remonstrance 
 by the defendants, with easy access from the Bridge Road through a 
 gap in the hedge and along a well-trodden path down the embank- 
 ment, it could hardly fail to present an irresistible attraction to young 
 persons. I think all these facts in combination were evidence from 
 which the jury might well infer not merely a license, but an invita- 
 tion, which fixed the defendants with a high responsibility towards 
 those people to whom such an invitation would mainly appeal, namely, 
 those who from their tender age would be deemed incapable of caution 
 and therefore of contributory negligence. I have not forgotten the 
 evidence that on one occasion persons playing on the spot were warned 
 off, or that there was a notice board near the gate leading from the 
 high road which may have contained a caution, but the bearing of 
 these facts was for the jury. I am aware of the mischief, so much 
 dwelt upon by Mr. Ronan in his brilliant argument, of making it diffi- 
 cult for landowners to admit the public to enjoy the amenities of their 
 private domains. But every case of this kind must be dealt with on 
 its special facts, and the line of legal immunity will. I think, be found 
 to coincide with the line of common sense, of which juries are very 
 capable judges. Tempting or even allowing children to make a play- 
 thing of a dangerous machine without taking adequate, or indeed any 
 precautions, against the probable danger of mischief through their
 
 1006 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part P. 
 
 imprudence is a form of benevolence which ought not to be encouraged. 
 The Supreme Court of America has afifirmed the Habihty of the rail- 
 way company in a case as nearly as possible identical in its facts with 
 that under appeal: Railway Co. v. Stout (1873) 17 Wall. 657, 21 L. 
 Ed. 745, and the principle of allurement in the case of children has 
 been recognized in our own Court of Appeal : Jewson v. Gatti, 2 Times 
 L. R. 441. 
 
 With unfeigned respect to the Court of Appeal, I think they have 
 hardly given sufificient weight to the special considerations applicable 
 in the case of young children as distinguished from adults. 
 
 Lord Loreburn, L. C. My Lords, I am content to act upon the 
 opinion of my learned and noble friend Lord Macnaghten, having 
 regard to the peculiar circumstances, namely that this place, on which 
 the defendants had a machine, dangerous unless protected, was to 
 the defendants' knowledge an habitual resort of children, accessible 
 from the high road near thereto, as well as attractive to the youthful 
 mind ; and that the defendants took no steps either to prevent the chil- 
 dren's presence or to prevent their playing on the machine, or to lock 
 the machine so as to avoid accidents, though such locking was usual. 
 I must add that I think this case is near the line. The evidence is 
 very weak, though I cannot say there was none. It is the combina- 
 tion of the circumstances to which I have referred which alone en- 
 ables me to acquiesce in the judgment proposed by my noble and 
 learned friend Lord Macnaghten. * * * ^^ 
 
 Order of the Irish Court of Appeal reversed, and the verdict and 
 judgment entered for the plaintiff by the Lord Chief Justice of Ire- 
 land restored, with pauper costs here and costs below. 
 
 ANDERSON v. FT. DODGE, D. M. & S. R. CO. 
 
 (Supreme Court of Iowa, 1911. 150 Iowa, 465, 130 N. W. 391.) 
 
 Weaver, J. The defendant operates an electric railway through 
 the city of Boone. At or near its station in that city and by the side 
 of one of its tracks the company maintains or uses a storage house or 
 building, the roof of which is about on a level with the roof of an 
 ordinary box car standing on the adjacent track. At the height of 
 four feet above the top of this building there are strung some of the 
 company's electric wires which do not appear to have been protected 
 by insulation. The injury of which plaintiff complains occurred May 
 22, 1909. He was then a lad of 12 years and 3 months. On the 
 evening in question a box car was standing near the storage building, 
 and plaintiff, with three other boys, was idling or playing in that 
 vicinity. Climbing to the top of the box car, one of his companions 
 dared or "stumped" plaintiff to follow him, and jumped across the 
 
 8 Lord Atkinson's opinion, concurring in the result, is omitted.
 
 Ch. 1) NEGLIGENCE 1007 
 
 intervening space to the roof of the building. Plaintiff performed the 
 feat, and in turning to jump back again came into contact with a 
 wire, receiving a severe shock, and, as he claims, resulting injury. Re- 
 covery of damages from the defendant is demanded on the theory 
 that it was negligent in the construction and maintenance of the 
 building and track and in its manner of caring for and managing its 
 said premises ; that it was also negligent, in that with knowledge of the 
 danger to be apprehended from said wires it placed and left its cars 
 in such manner as to invite children to play thereon, and expose them 
 to injur}'; and that it was further negligent in leaving the wires un- 
 covered without notice or warning to put the plaintiff or other persons 
 passing that way upon their guard to avoid injury. These allegations 
 are stated with many repetitions, but to the same substantial effect. 
 
 The plaintiff, who seems to be a boy of average intelligence and 
 quickness of perception, says he and other boys had frequently been 
 at or about this railway station, and had there indulged in more or 
 less of youthful sport and play. They had at times jumped back and 
 forth between the station platform and standing cars, but, so far as 
 the record shows, had never before attempted the jump from a car 
 top to the roof of the storage building. He says he did not play there 
 thinking he had any right to do so, and knew the railway men would 
 drive him off if they saw him. It does not appear that he was aware 
 of the wires strung above the roof, and either from heedlessness or 
 from the darkness of the evening failed to discover them before his 
 injury, though he says he knew there was danger in electric wires. 
 The testimony of the boys who were playing with plaintiff at the time 
 of his injury corroborates his story in most respects. The evidence 
 tends to show that the wires were not insulated, and were not guarded 
 to prevent contact with them by any person crossing the roof, and no 
 warning notice was posted there. There was also expert testimony 
 that the defendant's wires were strung lower than is usually done in 
 building such systems, and that they are "too low to be safe." 
 
 The motion for a directed verdict which the trial court sustained 
 was based on the grounds: (1) That the evidence did not tend to 
 show negligence on the part of the defendant. (2) That the evidence 
 did show plaintiff to have contributed to his injury by his own reck- 
 lessness and negligence. (3) That plaintiff at the time of his injury 
 was a trespasser and upon defendant's premises without license, and 
 that defendant owed him no duty or care under the circumstances as 
 shown and admitted by his own testimony. 
 
 Giving plaintiff the benefit of the most favorable construction which 
 can be placed upon the testimony, we are compelled to hold that he 
 failed to make a case upon which a verdict in his favor could be sus- 
 tained. It is true that the courts of the several states are arrayed in 
 apparently irreconcilable conflict upon the question how far, if at 
 all, the ancient doctrine which exonerates a property owner from the 
 duty of considering or caring for the safety of a trespasser upon his
 
 1008 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 premises is applicable where the injured person is a young child who 
 has been attracted to the place of danger by conditions and circum- 
 stances created or permitted by the owner, and especially where the 
 owner knows, or as a reasonable person ought to apprehend, the dan- 
 ger of resultant injury to children too young and inexperienced to un- 
 derstand the fact or meaning of trespass or to exercise judgment or 
 care for their own safety. This court has definitely committed itself 
 to the doctrine first clearly affirmed in this country by Dillon, J., in 
 Stout V. Railroad Co., 2 Dill. 294, Fed. Cas. No. 13,504, and affirmed 
 on appeal in 17 Wall. 657, 21 L. Ed. 745. That under some circum- 
 stances the rule as to injury to trespassers will not be applied to young 
 children who are led or attracted to the premises of another by the 
 act or omission of the owner. See Edgington v. Railroad Co., 116 
 Iowa, 410, 90 N. W. 95, 57 L. R. A. 561 ; Fishburn v. Railroad Co., 
 127 Iowa, 483, 103 N. W. 481. But the rule of these cases has never 
 been so far extended as to cover injuries received in the manner dis- 
 closed by this record. The plaintiff in this case was in his thirteenth 
 year, and, while it would perhaps be too much to say that we can 
 assume as a matter of law that a boy of such age is sufficiently mature 
 to be chargeable with contributory negligence, his evidence clearly 
 discloses that he appreciated the fact that he was a trespasser, and 
 that he would be ordered away if discovered. It shows, also, that he 
 knew the railroad was operated by electric power, and knew the dan- 
 gerous character of wires charged with electricity. So far as appears, 
 this roof had never been used by him or any of his companions as 
 a resort for play or frolic. There was nothing to suggest to the 
 railway company any necessity for guarding the roof of its building 
 against such visitors or to indicate the propriety of placarding its 
 property with notices or warning against injury from wires stretched 
 far above the ground where contact was possible only by climbing 
 to the top of its storehouse. 
 
 To say that a property owner must guard against such injury to a 
 trespassing boy simply because it is possible for him in a venturesome 
 spirit to climb into the zone of danger would be intolerable. In every 
 dooryard and on every street side are shade and ornamental trees. 
 To climb trees is as natural to the average boy as to a squirrel. Such 
 sport is always attended with danger that the climber may lose his 
 hold or break a branch and fall to his severe injury. Not infrequently 
 it may bring him to an elevation where he is exposed to contact with 
 wires carrying electric currents of greater or less intensity. If he 
 falls and breaks his bones, or if he receives a stunning shock of elec- 
 tricity, ought the owner of the tree to be held liable in damages be- 
 cause he did not guard it against the approach of the lad, or because 
 he did not give notice or warning in some way of the dangers to be ap- 
 prehended in climbing it? No court has ever gone to such an extent, 
 and the establishment of such rule would render the ownership of real 
 estate a very undesirable investment. See Merryman v. Railroad Co.,
 
 Ch. 1) NEGLIGENCE 1009 
 
 85 Iowa, 634, 52 N. W. 545 ; Masser v. Railroad Co., 68 Iowa, 602, 
 27 N. W. 776; Carson v. Railroad Co., 96 Iowa, 583, 65 N. W. 831 ; 
 Brown v. Canning Co., 132 Iowa, 634, 110 N. W. 12; Keefe v. Elec- 
 tric Co., 21 R. I. 575, 43 Atl. 542; Sullivan v. Railroad Co., 156 Mass. 
 378, 31 N. E. 128. 
 
 As the plaintiff's own case reveals him as a conscious trespasser 
 upon defendant's premises, and there is an utter absence of testimony 
 that defendant kept or maintained anything on the roof of its building 
 to attract or draw children thereto, or that it in any manner en- 
 couraged, invited, or permitted such use of the roof, he was not en- 
 titled to go to the jury, and the court did not err in directing a verdict 
 against him. The same result would have to be reached on the ground 
 of contributory negligence had there been anything in the record tend- 
 ing to show negligence on the part of the defendant. 
 
 Affirmed. 
 
 BJORK v. CITY OF TACOMA. ^ 
 
 (Supreme Court of Washington, 1913. 76 Wash. 225, 135 Pac. 1005, 
 
 48 L. R. A. [N. S.] 331.) 
 
 Ellis, J. In this action, the plaintiff seeks to recover damages on 
 account of the death of his minor son, alleged to have been caused 
 through the negligence of the defendant. It is admitted that the city 
 of Tacoma was, at the time of the accident in question, and for years 
 had been, the owner of and operating a water system for supplying 
 water to its inhabitants and, as a part of its system, maintained a 
 wooden flume carrying water from the sources of supply to its reser- 
 voir. This flume runs along the middle of an uninclosed right of 
 way between Clement and Alder streets in the city. The flume was 
 in the form of a box about 24 inches square, and the top, at the place 
 of the accident, was level with or a little above the surface of the 
 ground. Prior to 1908, before the city water pipes had been laid 
 along Clement avenue, residents of that district were accustomed, 
 with the city's permission and for pay, to obtain water from the flume 
 through a hole 24 inches square cut in the top of the flume. The 
 v.'ooden cover over this hole was on hinges and furnished with a 
 padlock, and the people so supplied with water were provided with 
 keys and required by the city to keep the cover at all times locked. 
 When the city water was piped to the various residences in this sec- 
 tion, this use of the flume was abandoned and the cover of the open- 
 ing was nailed down. At the time of the accident, the hinges had 
 rusted ofif, there was no padlock, and the nails which had held the 
 cover in place had rusted and were, as one witness testified, "stubs 
 of nails." One witness, a boy of ten, testified that this cover had been 
 off and the hole open continuously for two or three weeks. Other 
 Hepb. Torts — 64
 
 1010 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 witnesses contradicted this, and the plaintiff and his wife testified 
 that they had never seen it open at any time before the accident. The 
 water running in the flume was about 18 inches in depth. The right 
 of way was open so that any one who desired had access to it, and 
 it had become, prior to the accident, a regular playground for the 
 children of the neighborhood. The plaintilT lived with his family 
 on the east side of Clement avenue in sight of the flume, and there 
 was no fence or obstruction of any kind between his residence and 
 the flume right of way which ran parallel with and contiguous to tlie 
 avenue on the west. 
 
 On the morning of June 23, 1911, the deceased, a child a little un- 
 der three years old, and another boy of about the same age, were 
 playing along the flume. A witness who was working on the roof 
 of a house about 300 feet from the scene of the accident saw the 
 boys running along the flume, and, when they came to the spot where 
 the witness supposed the cover to be, they "took a jump," as he said, 
 and then ran back, repeating the performance. Finally he saw only 
 one of the boys running toward the Bjork house, evidently seeking 
 assistance, and Mrs. Bjork, the boy's mother, came out screaming and 
 ran toward the hole. Several persons, attracted by her cries, ran to 
 the place where the boy had fallen in, and one of them, surmising what 
 had happened, ran down to another opening in the flume near the 
 power house, where, with the assistance of one of the employes of the 
 power plant, he lifted the cover from that opening and found the 
 child lying face downward, drowned. 
 
 At the conclusion of the testimony on behalf of the plaintiiT, the 
 defendant moved for a nonsuit on the ground that the evidence failed 
 to establish actionable negligence on the city's part. The motion was 
 granted. From the judgment of nonsuit the plaintiff prosecutes this 
 appeal. 
 
 Eliminating the questions of notice to the city and contributory 
 negligence of the parents of the child, which, under the evidence, 
 were clearly for the jury, there is but one question presented for our 
 consideration : Was the opening in the flume, exposing a constantly 
 flowing stream of water beneath, in an unfenced right of way con- 
 tiguous for a long distance to a public street in the city and permit- 
 ted to be used as a common playground bv the children of the neigh- 
 borhood, a thing of such location and character as to be attractive 
 and alluring to small children so that danger therefrom should have 
 been reasonably anticipated and guarded against by the city? 
 
 The city, in the maintenance and operation of its waterworks, was 
 acting in a proprietary and not a governmental capacity. Its liability 
 must therefore be the same as that of a private owner under the same 
 circumstances. 
 
 That the child, a mere baby, was a technical trespasser, or at most 
 a mere licensee, is an immaterial circumstance. A child attracted 
 to premises open and unguarded in a populous neighborhood by things
 
 Ch. 1) NEGLIGENCE 1011 
 
 maintained thereon enticing to the childish curiosity and instincts 
 is not a culpable trespasser in any sound sense. This is against the 
 weight of authority when measured in mere numbers, which holds 
 the child to the rule applied to the adult who, when injured while tres- 
 passing upon the premises of a defendant, can recover damages only 
 when the injury was wanton or was due to recklessly careless con- 
 duct on the defendant's part. But, as said by a candid text-writer: 
 "This cruel and wicked doctrine, unworthy of a civilized jurispru- 
 dence, puts property above humanity, leaves entirely out of view 
 the tender years and infirmity of understanding of the child, in- 
 deed his inability to be a trespasser in sound legal theory, and visits 
 upon him the consequences of his trespass just as though he were an 
 adult, and exonerates the person or corporation upon whose property 
 he is a trespasser from any measure of duty towards him which they 
 would not owe under the same circumstances towards an adult." 1 
 Thompson on Negligence (2d Ed.) § 1026. The same writer, after 
 admitting the fact that in many jurisdictions the doctrine of trespass 
 as a defense, even as applied to small children, must be regarded as 
 established law, scathingly reprobating the doctrine as barbarous, says : 
 "Nevertheless, a few decisions of enlightened and humane courts are 
 found, more or less tending to the conclusion that the owner of any 
 machine or other thing which, from its nature, is especially attractive 
 to children, who are likely to play with it in obedience to their child- 
 ish instincts, and yet which is especially dangerous to them, is under 
 the duty of exercising reasonable care to the end of keeping it fast- 
 ened, guarded, or protected so as to prevent them from injuring them- 
 selves while playing or coming in contact with it." 1 Thompson on 
 Negligence (2d Ed.) § 1031. 
 
 The more humane rule, as expressed in another text, has met with 
 our unqualified approval: "The owner of land where children are 
 allowed or accustomed to play, particularly if it is unfenced, must 
 use ordinary care to keep it in a safe condition, for they, being with- 
 out judgment and likely to be drawn by childish curiosity into places 
 of danger, are not to be classed with trespassers, idlers, and mere 
 licensees." Shearman & Redfield on Negligence (6th Ed.) § 705. "A 
 child of tender years, who meets with an injury upon the streets or 
 upon the premises of a private owner, though a technical trespasser, 
 may recover for such injury if the thing causing it has been left ex- 
 posed and unguarded near the playgrounds or haunts of children and 
 is of such a character as to be alluring or attractive to them, or such 
 as to appeal to childish curiosity and instincts ; this on the principle 
 that children of tender years, 'being without judgment and likely to 
 be drawn by childish curiosity into places of danger, are not to be 
 classed with trespassers, idlers, and mere licensees.' " Haynes v. Seat- 
 tle, 69 Wash. 419, 125 Pac. 147. 
 
 The above quotation and the sustaining citations show that the 
 fact that the accident there involved happened in a public street was
 
 1012 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 not regarded as a controlling or even material circumstance. Ilwaco 
 Ry. & Nav. Co. v. Hedrick, 1 Wash. 446, 25 Pac. 335, 22 Am. St. 
 Rep. 169; McAllister v. Seattle Brewing & Malting Co., 44 Wash. 
 179, 87 Pac. 68. 
 
 We intentionally refrain from citing Nelson v. McLellan, 31 Wash. 
 208, 71 Pac. 747, 60 L. R. A. 793, 96 Am. St. Rep. 902, Akin v. Brad- 
 ley Eng. & Mach. Co., 48 Wash. 97, 92 Pac. 903, 14 L. R. A. (N. S.) 
 586, and Olson v. Gill Home Invest. Co., 58 Wash. 151, 108 Pac. 140, 
 ^-^ 27 L. R. A. (N. S.) 884, the dynamite cases, as sustaining this rule, 
 ■^ because, though they do sustain it in principle, the agency there in- 
 <^-' y \olved was so inherently dangerous as to render those cases in any 
 - '^y^^p^ent soundly sustainable upon the ground of reckless conduct on the 
 ^^i^"^iyefp«dants' part. 
 
 ^"^^x^^he turntable and machinery cases, however, are in no just sense 
 sui generis. They rest, as it seems to us, upon the one broad prin- 
 ciple common to all cases of injury from dangerous premises and all 
 cases of so-called "attractive nuisances" — that there is always a duty 
 due to society upon the owner of premises to take reasonable care 
 to so use his own as not to injure another, a failure to observe which 
 is negligence. 1 Thompson, Negligence (2d Ed.) §§ 1033 and 1036; 
 Hydraulic Works v. Orr, 83 Pa. 332; Bransom's Adm'r v. Labrot, 
 81 Ky. 638, 50 Am. Rep. 193; Union Pac. Ry. Co. v. McDonald, 152 
 U. S. 262, 14 Sup. Ct. 619, 38 L. Ed. 434; Biggs v. Consolidated 
 Barb-Wire Co., 60 Kan. 217, 56 Pac. 4, 44 L. R. A. 655. 
 
 We cannot say, as a matter of law, that the opening in the flume 
 was not in its nature a thing reasonably to be anticipated as enticing 
 to young children. Whether it was or not is a question for the jury. 
 This case is closely analogous to that of Pekin v. McMahon, Adm'r, 
 154 III. 141, 39 N. E. 484, 27 L. R. A. 206. 45 Am. St. Rep. 114. 
 That case arose from the drowning of a child of tender years in a 
 pond on uninclosed premises owned by the city. The pond was in a 
 populous part of the city near a driveway where children were ac- 
 customed to play. The city was held liable upon the doctrine of the 
 turntable cases, and the question whether the attractiveness of the 
 dangerous premises was such as to entice children and such as to 
 suggest to the defendant the probability of such an occurrence was 
 held one for the jury. See, also. Price v. Atchison Water Co., 58 
 Kan. 551, 50 Pac. 450, 62 Am. St. Rep. 625. 
 
 We are not impressed with the argument based upon Salladay v. 
 Old Dominion Copper Mining & Smelting Co., 12 Ariz. 124, 100 
 Pac. 441, in which it was held that maintaining an open flume on 
 private premises did not render the owner liable for the drowning 
 therein of a small child. The court seems to have been influenced by 
 the fact that there are many open flumes and ditches in Arizona neces- 
 sary to irrigation and mining, and held that it would be against pub- 
 lic policy to extend the doctrine of the turntable cases to such flumes
 
 Ch. 1) NEGLIGENCE 1013 
 
 and ditches. But, assuming the soundness of that decision, it seems 
 to us that a distinction between an open flume carrying a stream 
 of shallow water or an irrigating ditch, and an inclosed box with 
 an opening such as is here maintained on premises used as a common 
 playground in a populous city, may be soundly made, both by reason 
 of its location and its greater danger. A child falling into such a 
 hole obviously had no chance either of rescue or escape 
 
 The case of Gordon v. Snoqualmie Lumber & Shingle Co., 59 
 Wash. 272, 109 Pac. 1044, 29 L. R. A. (N. S.) 88, chiefly relied upon 
 by the respondent, though carrying the doctrine of immunity as a 
 matter of law to a considerable extent, by no means goes as far as 
 we are asked to extend it in this case. It was there held that the 
 safeguards were such and the location of the barrel of hot water 
 was such that the defendant could not reasonably be expected to an- 
 ticipate the danger. In fact, there was no danger if the plug in the 
 barrel had been secure, and there was no evidence imputing notice 
 to the defendant that the plug was not secure. That this was the 
 determinative factor in that case is shown by the following language 
 there used: "It is not shown what caused the plug to come out, and 
 there is no showing of notice or opportunity of notice to respondent 
 of a defective condition of the barrel or plug." 
 
 In the case before us, there was evidence that the hole had been 
 open continuously for two or three weeks before the accident — a time 
 amply sufficient to warrant a jury in imputing notice. While there 
 was evidence to the contrary, the credibility of the witnesses and the 
 weight of the evidence were for the jury. 
 
 The case of Curtis v Tenino Stone Quarries, 37 Wash. 355, 79 
 Pac. 955, is also distinguishable. The quarry was not in a city and 
 was 200 feet from any highway or public ground. It was not per- 
 mitted to be used as a common playground, nor was it near one. The 
 child had been driven away a short time before the accident. The 
 distinction is plain. 
 
 We will not attempt a review of the many authorities cited from 
 other jurisdictions. As we have seen, the rule in many jurisdictions 
 is contrary to that adopted here, and the decisions cannot be har- 
 monized We are constrained to hold that a cause of action was 
 stated and supported by sufficient proof to put the respondent to its 
 defense. 
 
 The judgment is reversed.
 
 1014 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 (B) Duty of Care Towards a Licensee 
 CORBY V. HILL. 
 
 (Court of Common Pleas, 1858. 4 C. B. [N. S.] 556, 114 R. R. 849, 
 
 140 Reprint, 1200.) 
 
 This was an action against the defendant for negligently leaving 
 
 certain slates upon a certain road, whereby the plaintiff's horse was 
 
 injured. The declaration stated 
 
 that before and at the time when &c., the plaintiff was lawfully possessed 
 of a certain carriage, and of a certain horse drawing the said carriage which 
 said horse and carriage were under the government and direction of a serv- 
 ant of the plaintiff, and which said horse and carriage were then, with the 
 consent of the owners and occupiers of the land and road and carriage line 
 thereinafter mentioned, during the night time, under such care and govern- 
 ment as aforesaid, lawfully in and lawfully being driven along certain land 
 and along a certiiin road or carriage line, part of and crossing the said land 
 then belonging to and occupied by certain persons other than the plaintiff 
 and the defendant, and leading to a certain public building known as the 
 HanweU Lunatic Asylum, for the purpose of proceeding to the said building, 
 that the defendant then, negligently, carelessly, and improperly kept and 
 continued upon and across the said road or carriage line, part of tlie said 
 land, a stack of slates, and divers other things and materials, without placing 
 or keeping any light or signal near them, or adopting any means whatever 
 to show that the said slates and other material were upon or across the said 
 land, road or carriage line; by reason whereof it was then impossible for the 
 servant of the plaintiff to see or avoid the said slates, materials or other 
 things; and that, by reason thereof, the said horse, drawing the said car- 
 riage, while being driven by the said servant as aforesaid, ran into, upon, and 
 against the said stack of slates or other materials and things, and was greatly 
 bruised, wounded, and injured: special damage. 
 
 The fourth plea stated that the defendant had lawfully placed, kept 
 and continued the said slates, and other things and materials across 
 the said land and road or carriage line, by the license of the owners 
 and occupiers of said land, road or carriage line, before the consent 
 of the owners and occupiers of the said land, road, or carriage line 
 as in the declaration alleged ; and that the said consent so given to 
 the defendants was in full force at the time when &c. ; and that the 
 alleged damage was not sustained by any breach of duty of the de- 
 fendant. Issue thereon. 
 
 The cause was tried before Byles, J., at the sittings in London after 
 the last Term. The facts which appeared in evidence were as fol- 
 lows: The carriage road or way in question was a private road lead- 
 ing from the turnpike road to the HanweU Lunatic Asylum and to 
 the residence of the superintendent. Dr. Saunders. The defendant, 
 a builder, was employed to do certain work at the asylum, and, with 
 the consent of the owners of the land, stacked certain slates and other 
 materials upon a portion of the road, without taking the precaution 
 of placing a light near them at night, in consequence of which, the 
 plaintiff's servant, who was driving a horse and carriage along the
 
 Ch. 1) NEGLIGENCE 1015 
 
 private road to the residence of Dr. Saunders, not seeing the slates, 
 drove against them, and seriously injured the horse. 
 
 In answer to the questions put to them by the learned Judge, the 
 jury found that the defendant had the consent of the owners of the 
 property for placing the slates and materials where he placed them, 
 but upon the usual terms of properly providing for the safety of 
 the public, or of such of the public as had permission to use the way ; 
 that there was negligence in leaving the stack without a proper light ; 
 and that negligence was chargeable upon the defendant, in conjunc- 
 tion with the owners of the soil. 
 
 It was insisted on the part of the defendant that the fourth plea 
 was an answer to the action. 
 
 The learned judge directed a verdict to be entered for the plain- 
 tiff, reserving leave to the defendant to move to enter a verdict for 
 him upon the fourth plea, if the court should be of opinion that the 
 action would not lie under the circumstances. 
 
 Huddleston, Q. C, now moved to enter a verdict for the defend- 
 ant pursuant to the leave reserved, or to arrest the judgment. 
 
 WiLLES, J. I am of the same opinion. In substance the case is 
 this : There was a road leading to a certain building, along which 
 road persons having occasion to go to the building were accustomed 
 to pass by leave of the owners of the soil, and were likely to pass ; 
 and the defendant, being engaged in some work upon the adjoining 
 land, obtained leave to place slates and other materials there, either 
 absolutely or modified in the way found by the jury, so as not to endan- 
 ger persons using the road. Under that leave, the defendant placed cer- 
 tain slates across the road in such a way as to be likely to occasion 
 injury to persons using the road. It is not suggested that the de- 
 fendant did not know that the road was likely to be used in the 
 way mentioned, or that he gave any notice or warning to the per- 
 sons, including the plaintiff, who wxre accustomed and likely to use 
 the road. The question is, whether there is any legal remedy for a 
 person lawfully using the road, to whom injury results from the act 
 of a third person in negligently placing an obstruction upon the road. 
 
 I should have thought that bare statement of the proposition was 
 enough. The defendant had no right to set a trap for the plaintiff. 
 One who comes upon another's land by the owner's permission or 
 invitation has a right to expect that the owner will not dig a pit 
 thereon, or permit another to dig a pit thereon, so that persons law- 
 fully coming there may receive injur}^ That is so obvious that it 
 is needless to dwell upon it. The form of declaration which I should 
 have drawn upon such a state of facts, would have been something 
 like this, — that there was a certain road over which the plaintiff and 
 others having occasion to go to a certain building by license of the 
 owners were accustomed and likely to pass, and that the defendant, 
 knowing that, wrongfully and negligently placed certain slates and 
 materials across the road in such a manner as to be likely to prove
 
 1016 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 dangerous to persons driving along the road, and that the plaintiff, 
 being lawfully on the road on his way to the. building, ran against 
 the obstruction and was injured. The objections urged by Mr. Hud- 
 dleston assume that the present declaration does in substance state 
 all these facts. As to the fourth plea, it seems to me that the defend- 
 ant failed to prove that he had leave and license of the owners of 
 the soil to place the slates across the road in the way he did. I also 
 think there is no ground for arresting the judgment. The declara- 
 tion, as I read it, discloses a perfectly good cause of action, and it is 
 not open to any of the objections urged against it. It is true it does 
 not allege that the defendant had knowledge of the way in which the 
 road was used. But it is perfectly clear that he did know it, and 
 therefore the declaration would at once be amended if it were neces- 
 sary. But after the remarks of my Brother Williams, the absence 
 of that allegation would not I think make the declaration bad. 
 Rule refused.^" 
 
 GAUTRET V. EGERTON et al. 
 JONES V. EGERTON et al. 
 
 (Court of Common Pleas, 1867. L. R. 2 C. P. 371.) 
 
 The declaration in the first of these actions stated 
 
 tliat the defendants were possessed of a close of land, and of a certain canal 
 and cuttings intersecting the same, and of certain bridges across the said 
 canal and cuttings, communicating with and leading to certain doclis of the 
 defendants, which said land and bridges had been and were from time to 
 time used with the consent and permission of the defendants by persons pro- 
 ceeding towards and coming from the said docks; that the defendants, well 
 knowing the premises, wrongfully, negligently and improperly kept and main- 
 tained the said land, canal, cuttings and bridges, and suffered them to continue 
 and be in so improper a state and condition as to render them dangerous 
 and unsafe for persons lawfully passing along and over said land and bridges, 
 towards the said docks, and using the same as aforesaid; and that Leon 
 Gautret, whilst he was lawfully in and passing and walking along the said 
 close and over the said bridge, and using the same in the manner and for the 
 purpose aforesaid, by and through the said wrongful, negligent and improper 
 conduct of the defendants as aforesaid, fell into one of the said cuttings of 
 the defendants, intersecting the said close as aforesaid, and thereby lost his 
 life within twelve calendar months next before the suit: and the plaintiff, 
 as administratrix, for the benelit of herself, the widow of the said Leon 
 Gautret, and A. (Jautret, &c., according to the statute in such case made 
 and provided, claimed £2500. 
 
 The defendants demurred to the declaration, on the ground that "it 
 does not appear that there was any legal duty or obligation on the part 
 of the defendants to take means for preventing the said land, &c., be- 
 ing dangerous and unsafe." Joinder. 
 
 The declaration in Jones v. Egerton was the same as the above, and 
 there was a like demurrer. 
 
 6 8 The opinions of Cockburn, C. J., and Williams and Byles, JJ., are omit- 
 ted.
 
 Ch. 1) KEGLIGENCE 1017 
 
 Herschell, for the plaintiff Gautret: The question raised upon this 
 declaration is, whether there is any duty on the part of the defendants 
 towards persons using their land as the deceased here did. That may 
 be negligence in the case of a license, which would not be negligence 
 as against a mere trespasser : and if there can be any case in which the 
 law would imply a duty, it is sut^ciently alleged here. * * * 
 
 Potter, for the plaintiff Jones, submitted that the implied request on 
 the part of the defendants to persons having occasion to go to the docks 
 to pass by the way in question, raised a duty in them to keep it in a 
 safe condition. 
 
 WiLLES, J. I am of opinion that our judgment must be for the 
 defendants in each of these cases. The argument urged on behalf of 
 the plaintiffs, when analyzed, amounts to this, that we ought to con- 
 strue the general words of the declaration as describing whatever sort 
 of negligence the plaintiffs can prove at the trial. The authorities, 
 however, and reason and good sense, are the other way. The plaintiff 
 must, in his declaration, give the defendant notice of what his com- 
 plaint is. He must recover secundum allegata et probata. What is it 
 that a declaration of this sort should state in order to fulfill 
 these conditions? It ought to state the facts upon which the supposed 
 duty is founded, and the duty to the plaintiff with the breach of which 
 the defendant is charged. It is not enough to show that the defendant 
 has been guilty of negligence, without showing in what respect he was 
 negligent, and how he became bound to use care to prevent injury 
 to others. All that these declarations allege is, that the defendants 
 were possessed of land, and of a canal and cuttings intersecting the 
 same, and of certain bridges across the canal and cuttings, communi- 
 cating with and leading to certain docks of theirs ; that they allowed 
 persons going to and from the docks, whether upon the business or for 
 the profit of the defendants or not, to pass over the land ; and that the 
 deceased persons, in pursuance of and using that permission, fell into 
 one of the cuttings and so met their deaths. The consequences of these 
 accidents are sought to be visited upon the defendants, because they 
 have allowed persons to go over their land, not alleging it to have been 
 upon the business or for the benefit of the defendants, or as the serv- 
 ants or agents of the defendants; nor alleging that the defendants 
 have been guilty of any wrongful act, such as digging a trench on the 
 land, or misrepresenting its condition, or anything equivalent to laying 
 a trap for the unwary passengers ; but simply because they permitted 
 these persons to use a way with the condition of which, for anything 
 that appears, those who suffered the injury were perfectly well ac- 
 quainted. That is the whole sum and substance of these declarations. 
 
 If the docks to which the way in question led were public docks, the 
 way would be a public way, and the township or parish would be bound 
 to repair it, and no such liability as this could be cast upon the defend- 
 ants merely by reason of the soil of the way being theirs. That is so 
 not only in reason but also upon authority. It was so held in Robbins
 
 1018 TORTS THROUGH ACTS OP CONDITIONAL LIABILITY (Part 3 
 
 V. Jones, 15 C. B. N. S. 221, where a way having been for a number 
 of years dedicated to the public, we held that the owner of an adjoin- 
 ing house was not responsible for death resulting to a person through 
 the giving way of the pavement, partly in consequence of its being 
 over-weighted by a number of persons crowding upon it, and partly 
 from its having been weakened by user. 
 
 Assuming that these were private docks, the private property of the 
 defendants, and that they permitted persons going to or coming from 
 the docks, whether for their own benefit or that of the defendants, to 
 use the way, the dedication of a permission to use the way must be 
 taken to be in the character of a gift. The principle of law as to gifts 
 is, that the giver is not responsible for damage resulting from the in- 
 security of the thing, unless he knew of its evil character at the time, 
 and omitted to caution the donee. There must be something like fraud 
 on the part of the giver before he can be made answerable. It is quite 
 consistent with the declarations in these cases that this land was in 
 the same state at the time of the accident that it was at the time the per- 
 mission to use it was originally given. To create a cause of action, 
 something like fraud must be shown. No action will lie against a spite- 
 ful man, who seeing another running into a position of danger, merely 
 omits to warn him. To bring the case within the category of actional 
 negligence, some wrongful act must be shown, or a breach of some 
 positive duty ; otherwise, a man who allows strangers to roam over his 
 property would be held to be answerable for not protecting them 
 against any danger which they might encounter whilst using the li- 
 cense. Every man is bound not wilfully to deceive others, or to do 
 any act which may place them in danger. It may be, as in Corby v. 
 Hill. 4 C. B. N. S. 556, that he is responsible if he puts an obstruction 
 in the way which is likely to cause injury to those who by his permis- 
 sion use the way : but I cannot conceive that he would incur any re- 
 sponsibility merely by reason of his allowing the way to be out of re- 
 pair. For these reasons I think these declarations disclose no cause of 
 action against the defendants, and that the latter are therefore entitled 
 to judgment. 
 
 Keating, J. I am of the same opinion. It is not denied that a 
 declaration of this sort must show a duty and a breach of that duty. 
 fjut it is said that these declarations are so framed that it would 
 be necessary for the plaintiffs at the trial to prove a duty. I 
 am, however, utterly unable to discover any duty which the defend- 
 ants have contracted towards the persons whom the plaintiffs represent, 
 or what particular breach of duty is charged. It is said that the con- 
 dition of the land and bridges was such as to constitute them a kind 
 of trap. I cannot accede to that. The persons who used the way took 
 it with all its imperfections. 
 
 Herschell asked and obtained leave to amend within ten days, on 
 payment of costs; otherwise judgment for the defendants. 
 
 Judgment accordingly.
 
 Ch. 1) NEGLIGENCE 1019 
 
 BRINILSON V. CHICAGO & N. W. RY. CO. / 
 
 (Supreme Court of Wisconsin, 1911. 144 Wis. 614, 129 jN\ W 664, 32 L. B. 
 
 A. [N. S.] 359.) 
 
 The plaintiff's intestate, a boy of the age of five and a half years, 
 on February 22, 1906, fell into a steam and hot water pit, constructed 
 by the defendant in a breakwater which it maintained to protect its 
 property along the shore of Lake Michigan in the city of Milwaukee. 
 The boy was so badly scalded by the steam and hot water discharged 
 into this pit from the roundhouse of the defendant near by that he 
 died on March 5, 1906. The pit into which the boy fell was in the cen- 
 ter of a crib in the breaku'ater, was about three feet in diameter at the 
 bottom, possibly five feet in diameter at the top, and six or seven feet 
 deep. In the previous October the defendant had removed the stone 
 from the crib so as to form the pit above described and had laid an 
 underground conduit from the roundhouse to the center of the pit. 
 The pit was covered by planks which were a part of the planking cov- 
 ering the breakwater. The child fell into the pit through an opening 
 about a foot wide and from six to seven feet long made by the removal 
 of part of a plank of that size in the breakwater covering. The boy 
 and an older brother were walking over part of the breakwater and 
 into the railroad yards, where they looked for tin plates and some col- 
 ored glass thrown from the dining cars of the defendant. The com- 
 plaint alleges that the breakwater was made a pleasant promenade by 
 being covered with planking, that no obstructions were so placed as to 
 prevent its use by the public, and that the people were not excluded 
 from walking upon it. It is alleged that the death of the boy was due 
 to the negligence of the defendant in permitting a dangerous hole to 
 exist in the covering of the pit in the manner stated, and damages are 
 asked for the death of the boy, thus caused, and for the pain and suf- 
 fering endured by him in consequence of his injuries during his life- 
 time. 
 
 The evidence tends to show that the defendant's agents and servants 
 knew that the public were using the breakwater and the adjacent 
 grounds for walking, fishing, and swimming, but that notices of "No 
 thoroughfare" were posted to warn people off the tracks, and people, 
 boys particularly, were expelled from the tracks. There was evidence 
 that the hole m the planking on the breakwater had existed for some 
 weeks before and up to the time of the accident, and that it was a dan- 
 gerous trap to persons walking on the breakwater. There was evi- 
 dence tending to show that this opening was difficult to see because 
 of the steam arising from the hole and from the cracks between the 
 other planks, and because of the conditions surrounding it. The jury 
 found that the defendant was negligent and that it caused the injury, 
 and awarded damages. This is an appeal from the judgment on the 
 verdict in plaintiff's favor.
 
 1020 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 SiEBECKER, J. * * * It is undisputed that the appellant main- 
 tained a breakwater at the place designated to protect its grounds from 
 the action of the waters of the lake ; that it had filled with earth the 
 area between the breakwater and the dry land; and that it used and 
 occupied this area for railroad purposes. As appears in the above 
 statement of facts, the appellant had covered the surface of the break- 
 water with planking, which formed a firm and even walk or pathway 
 along and above the waters of the lake, which was used by the public 
 as a footpath to pass and repass over these grounds and for walking 
 along the edge of the lake. Boys had made a practice of so using it 
 and as a place for boating, fishing, and swimming. The evidence fully 
 justified the jury in finding that appellant's agents and servants knew 
 that the premises were being so used. It appears that there was a 
 fence along the south line of appellant's grounds abutting on Polk 
 street, but the evidence is in conflict as to whether or not the fence ex- 
 tended onto the breakwater, and the jury may well have found that this 
 end of the breakwater was unobstructed and open so that people could 
 pass without interference in going to and from the street onto the rail- 
 road grounds, and that an open passageway over the breakwater was 
 thus afforded them. 
 
 In the light of such facts and circumstances, it cannot be said that 
 persons who passed onto the breakwater and adjacent grounds were 
 there under such forbidding circumstances as to make them trespass- 
 ers. It seems reasonably clear that people customarily used this place 
 as a footpath, and that boys especially used it as a place for the pur- 
 poses of boating and swimming. These uses of the premises must be 
 held to have been within the knowledge of the railroad's agents and 
 servants, and that an implied permission existed which justified per- 
 sons in so using the breakwater and adjacent grounds. Under these 
 circumstances, the persons so passing over this place on these premises 
 cannot be considered trespassers. They must be considered as having 
 entered onto the premises with the implied permission of the railroad 
 company for the customary purposes. The license to so use the prem- 
 ises implies permission to so use them, and the railroad company can- 
 not now be heard to charge that such use constitutes a trespass. Un- 
 der these circumstances, persons making such customary use of the 
 premises are licensees. The evidence sustains the claim that the dece- 
 dent at the time of injury was using this place in the customary way, 
 namely, as a footpath in passing over the breakwater, and his relation 
 to the railroad comj^any was that of its licensee. See Hupfer v. Na- 
 tional D. Co., 114 Wis. 279, 90 N. W 191; Gorr v Mittlestaedt, 96 
 Wis. 296, 71 N. W. 656; Muench v. Heinemann, 119 Wis. 441, 96 N. 
 W. 800. With this relation existing between the appellant and the de- 
 cedent, the legal duty devolving on the company is as recognized and 
 declared in the Muench Case that a licensee must be deemed to take the 
 premises as he finds them, "and the licensor owes him no duty, save to
 
 Ch. 1) NEGLIGENCE 1021 
 
 refrain from acts of active negligence rendering the premises danger- 
 
 ous." 
 
 The case of Klix, Adm'r, etc., v. Nieman, 68 Wis. 271, 32 N. W. 
 223, 60 Am. Rep. 854, is not at variance with this rule. The facts of 
 that case show that the danger complained of was one connected with 
 an unfenced natural pond on a private lot, but so remote from the street 
 and sidewalk as not to make their use dangerous; nor was it shown 
 that the owner had done anything to this pond to create a pitfall or 
 snare liable to injure persons going onto the lot. In the instant case 
 the facts are different, in that the alleged dangerous condition was cre- 
 ated by the company, and the question is whether or not, in view of 
 the fact that the company knew or ought to have known that both 
 adults and children were resorting to and using the place for travel 
 and amusement, the omission to keep the pit covered created a danger 
 likely to cause injury to persons so using the premises with ordinary 
 care. That the opening or hole in the cover of the steam pit as de- 
 scribed in the evidence was dangerous seems self-evident from its very 
 nature and condition. It is also clear that the hole in the planking that 
 covered the excavation was not readily observed, and was obscured by 
 the steam rising therefrom through this hole and the cracks between 
 the planks covering the pit. This condition of the place made the pit 
 a dangerous trap or pitfall to persons on the premises, and the omission 
 to observe and repair the planking constitutes active negligence on the 
 part of the railroad toward them. 
 
 It is contended that it is not shown that the company was negligent 
 in permitting this hole to exist, because it had no notice or knowledge 
 thereof prior to the day of the accident. The evidence discloses that 
 a hole had been observed by various persons two or three months, one 
 month, two weeks, and on the day before the accident. These evi- 
 dentiary facts furnish a sufficient basis for the conclusion of the jury 
 that the railroad company was guilty of a want of ordinary care in fail- 
 ing to discover the hole in the plank covering over the steam pit and in 
 neglecting to repair it before the time of the accident. 
 
 It is probable that the decedent had not observed the hole. His con- 
 duct in this respect must be viewed in the light of his age and the sur- 
 rounding conditions, and of the danger, and, when so considered, it 
 cannot be held as matter of law to show that he was guilty of contrib- 
 utory negligence in producing the injuries complained of. Cases illus- 
 trating the principles and grounds of liability under the circumstances 
 disclosed here are: Kinchlow v. Midland Elevator Co., 57 Kan. 374, 
 46 Pac. 703; Penso v. McCormick, 125 Ind. 116, 25 N. E. 156, 9 L. R. 
 A. 313, 21 Am. St. Rep. 211 ; Railway Co. v. McDonald, 152 U. S. 262, 
 14 Sup. Ct. 619, 38 L. Ed. 434. We find no reversible error in the 
 record. 
 
 Judgment affirmed.®** 
 
 «o The statement of facts is abridged and part of the opinion is omitted.
 
 1022 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 HARRIS V. PERRY & CO. 
 
 (In the Court of Appeal. [1903] 2 K. B. 219.) 
 
 The action was brought to recover damages for personal injuries 
 alleged to be due to the defendant's negligence. The trial resulted 
 in a verdict of f 150, and judgment for that amount was entered for 
 the plaintiff. The defendant appealed. 
 
 Collins, M. R., read the following judgment: 
 
 This is a motion by the defendant for judgment or a new trial 
 in a case tried before Wills, J., and a special jury. The action was 
 brought for personal injuries occasioned by the negligence of the 
 defendant. The jury answered certain questions submitted to them 
 by the learned judge, and upon their answers he entered judgment 
 for the plaintiff with damages. 
 
 The plaintiff was one of the inspectors appointed by the engineer 
 for the tube railway which is now in course of construction from 
 Waterloo to Baker Street. At the time in question the tube had been 
 completed from Waterloo up to the neighbourhood of Baker Street, 
 where the work of excavation was still going on. The defendant, 
 who trades under the name of Perry & Co., was the contractor for 
 the making of a portion of the tube and railway, and was engaged 
 in carrying out the work of excavation at Baker Street. For the 
 purpose of the works he had laid a temporary contractor's railway 
 from Waterloo up to the point where the work of excavation was 
 going on, and he employed in the works a small electric locomotive, 
 whose function was to draw the excavated material from the works 
 down to a shaft in the neighbourhood of Charing Cross, through 
 which the excavated matter had to be passed up to the surface. This 
 locomotive was not fitted or intended for the carriage of passengers. 
 It was worked by a driver, accompanied by a person whose name was 
 Thacker, and who filled the function of a guard, or "rope-runner," 
 as he is described in the evidence. For the purpose of enabling the 
 work of inspection to be carried on the contractors had placed a 
 wooden platform all along one side of the tunnel, and on the day in 
 question the plaintiff, who had been engaged in inspecting, was pro- 
 ceeding along this platform in the direction of Waterloo. In the 
 neighbourhood of Charing Cross he was overtaken by the locomotive ; 
 and one Shaw, a timekeeper in the defendant's service, who was riding 
 thereon, inquired where he was going, and proposed that he should 
 ride with him on the locomotive to his destination. There was on 
 the locomotive, in addition to the driver, the guard Thacker, and Shaw, 
 one other person, so that the plaintiff made the fifth person on an 
 engine which, as I have said, was designed for the purpose of trac- 
 tion of materials only. The plaintiff got upon the engine, which 
 proceeded in the direction of Waterloo. After it had gone about 
 one hundred yards it came in contact with a truck which was stand-
 
 Ch. 1) NEGLIGENCE 1023 
 
 ing on the rails, and had upon it rails which had been taken up for 
 the purpose of repairs on the Hne between Charing Cross and Water- 
 loo, and the plaintiff sustained serious injuries, for which he has 
 brought this action. There were lights along the tunnel at intervals 
 of about twenty-five yards. 
 
 The defendant contended that he was under no liability to the 
 plaintiff", on the ground that the plaintiff had got upon the engine 
 without any permission from him, and that he was there at his own 
 risk only and could not hold the defendant responsible for damage, 
 the risk of which he must be taken to have accepted himself. It was 
 proved that the proper business of the engine at the time of the ac- 
 cident was to draw the material and trucks between Baker Street and 
 Charing Cross only, and that it should not have been used at all 
 upon the part of the line between Charing Cross and Waterloo, which 
 was, in fact, at that time undergoing repairs. There was evidence 
 that the defendant had only visited the line himself on one or two 
 occasions, and that he had expressly forbidden any person, other 
 than the driver and guard, to travel upon the locomotive ; but it 
 was proved that the defendant's workmen and others were in the 
 habit, notwithstanding this prohibition, of frequently riding upon it. 
 The defendant had a representative called Rowell, whose business 
 it w^as to supervise generally the underground works which were 
 being carried out by the defendant. There was evidence, from which 
 an inference might be drawn, that Rowell sanctioned the use of the 
 locomotive by the superior officers of the contractor, of whom Shaw 
 was one, for the purpose of transit along the line, and further, that 
 he knew that those officers invited the officers of the company to travel 
 with tliem. 
 
 The learned judge left to the jury three questions: 
 
 (1) Was the plaintiff on tlie engine with the permission of Rowell? (2) 
 Was he there for his own convenience or for the benefit of the defendant? 
 (3) Was the accident due to the negligence of the defendant's servant.^? The 
 jury answered the first and third questions in the afBrmative, and to the 
 second they answered, "For his own convenience." 
 
 Without admitting that the finding that the plaintiff was a licensee 
 was supported by the evidence, Mr. Bray, for the defendant, insisted 
 that inasmuch as the plaintiff was at most a bare licensee, there was 
 no evidence that the defendant had in any way fallen short of his 
 duty to him as such so as to justify a finding of negligence causing 
 the accident. I was very much impressed by this argument at the 
 hearing, and was at one time disposed to think that the plaintiff", for 
 whom a platform had been provided as the proper means of locomo- 
 tion for purposes of inspection in the tunnel, in riding on the engine 
 merely for his own convenience must be taken to have accepted all 
 risks incident thereto. I must deal with the case, however, on the 
 footings of the findings of the jury, unless there was no reasonable
 
 1024 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 evidence upon which they could be supported. It was urged that, 
 the plaintiff being a bare licensee, there was no higher duty imposed 
 upon the defendant than that he should not set a trap for the plain- 
 tiff, as laid down by the late Willes, J., in his memorable judgment 
 in Gautret v. Egerton, L. R. 2 C. P. 371 ; that there was in this case 
 no evidence of anything of the kind ; that the plaintiff himself ought 
 to have known that the line was subject to repair, and that in leaving 
 the truck and rails where they were the defendant's servants had 
 acted quite reasonably, inasmuch as they had no reason to anticipate 
 that the engine which they knew was employed elsewhere on that 
 day would travel over that part of the line, and that they were in 
 fact merely availing themselves of a proper opportunity of carrying 
 out repairs which were necessarily frequent on a temporary line of 
 the nature described. Wills, J., in his summing-up, gave the defend- 
 ant the benefit of this latter contention, and pointed the attention of 
 the jury to the circumstances under which the engine was allowed 
 by those on it to proceed, as it had done, to the place where the 
 accident occurred. I am unable to discover any flaw whatever in the 
 summing-up. I think the learned judge, in his analysis of the evi- 
 dence, put the facts quite as favourably for the defendant as they 
 were capable of being put; and his exposition of the law leaves noth- 
 ing to be desired. He suggested that the measure of duty towards 
 a bare licensee is different, where the licensor accepts the duty of 
 carrying him, from what it is where he merely permits him to pass 
 through his premises ; and I think the cases support this view. But 
 there is evidence in this case that Thacker was the person from whom 
 the driver of the locomotive was bound to take his orders, and that 
 Thacker was aware of the fact that the line had been taken up and 
 was under repair between Charing Cross and Waterloo, and that 
 he did not impart this fact to the plaintiff or the other occupants of 
 the engine, probably having forgotten it for the moment himself. I 
 think, therefore, that, even if the standard of liability were the same 
 as it would have been to a bare licensee merely walking across the 
 defendant's land, there was evidence upon which the jury might have 
 found that a trap within the meaning of the authorities had been 
 set for the plaintiff. See Corby v. ITill, 4 C. B. (N. S.) 556. At all 
 events, I think it was competent for the jury to find, as they must 
 be taken to have found, a failure of that ordinary care which is 
 due from a person who undertakes the carriage of another gratu- 
 itously. The principle in all cases of this class is that the care exer- 
 cised must be reasonable ; and the standard of reasonableness natural- 
 ly must vary according to the circumstances of the case, the trust 
 reposed, and the skill and appliances at the disposal of the person to 
 whom another confides a duty. There is an obvious difference be- 
 tween the measure of confidence reposed and responsibility accepted 
 in the case of a person who merely receives permission to traverse
 
 Ch. 1) NEGLIGENCE 1025 
 
 the premises of another, and in the case where a person or his prop- 
 erty is received into the custody of another for transportation. See 
 in the case of goods, Southcote's Case, (1601) 4 Rep. 83 b, cited in 
 Coggs V. Bernard, 1 Sm. L. C. (11th Ed.) p. 173, and the notes there- 
 to. In the case of persons received for carriage, Parke, B., says in 
 Lygo V. Newbold, (1854) 9 Ex. 302, at p. 305: "A person who 
 undertakes to provide for the conveyance of another, although he 
 does so gratuitously, is bound to exercise due and reasonable care." 
 In Austin v. Great Western Ry. Co., (1867) L. R. 2 Q. B. 442, at p. 
 445, Blackburn, J., says : "I think that what was said in the case 
 of Marshall v. York, Newcastle and Berwick Ry. Co., (1851) 11 C. 
 B. 655, was quite correct. It was there laid down that the right which 
 a passenger by railway has to be carried safely does not depend on 
 his having made a contract, but that the fact of his being a passenger 
 casts a duty on the company to carry him safely." It seems to me 
 that these authorities imply a larger obligation than that of merely 
 not setting a trap: see also, per Baggallay, L. J., Foulkes v. Metro- 
 politan District Ry. Co., (1880) 5 C. P. D. 157, at p. 165. The whole 
 subject will be found exhaustively treated with reference to the 
 English and American authorities in Mr. Beven's valuable work on 
 Negligence in Law (2d Bd.) vol. 2, pp. 1154 et seq. The defendant, 
 therefore, through Rowell, must be taken to have constructively per- 
 mitted the plaintiff to travel on the engine. There was certainly 
 evidence fit for the consideration of the jury on this point. And 
 there was evidence of such a failure of due care on the part of the 
 defendant's servants as to render the defendant responsible to the 
 plaintiff* for the damage arising therefrom. 
 
 I am of opinion that the appeal must be dismissed. 
 
 I have to add that Stirling, L. J., and Mathdw, L. J., concur in 
 the judgment that I have read. 
 
 Appeal dismissed.®^ 
 
 61 Compare: Grimsbaw v. Lake Shore Ry. Co. (1912) 205 N. Y. 371, 98 
 N. E. 762, 40 L. R. A. (N. S.) 563, Anu. Cas. 1913E, 571: (P. was riding upon 
 the locomotive of a Wabash freiglit train, with the consent of those in charge 
 but against a rule of the Wabash Company, of which rule, however, P. had 
 no knowledge. At an intersecting track a Lake Shore freight train negligently 
 struck the Wabash train and P. was killed in the collision. Held, that P. was 
 a licensee on the train and as such had a right, as against the Wabash Com- 
 pany, and therefore as against the Lake Shore Company, to the exercise of 
 ordinary care on its part not to injure him.) 
 
 Hepb. Torts — 65
 
 1026 TOUTS THKOUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 (C) Duty of Care Tozcards an Invitee 
 
 INDERMAUR v. DAMES. 
 
 (Court of Common Tloas, H. T. 1S66. L. R. 1 C. P. 274. In the Exchequer 
 Chamber, H. T. 1S67. L. R. 2 C. P. 311.) 
 
 The judgment of the Court [of Common Pleas] *'- was deHvered by 
 
 WiLLES, J. This was an action to recover damages for hurt sus- 
 tained by the plaintiff's falling down a shaft at the defendant's place 
 of business, through the actionable negligence, as it was alleged, of the 
 defendant and his servants. 
 
 At the trial before the Lord Chief Justice "^ at the sittings here after 
 Michaelmas Term, the plaintiff' had a verdict for 400/. damages, sub- 
 ject to leave reserved. 
 
 A rule was obtained by the defendant in last term to enter a nonsuit, 
 or to arrest the judgment, or for a new trial because of the verdict be- 
 ing against the evidence. The rule was argued during the last term, 
 before Erie, C. J., Keating and Montague Smith, JJ., and myself, when 
 we took time to consider. We are now of opinion that the rule ought 
 to be discharged. 
 
 It appears that the defendant was a sugar-refiner, at whose place of 
 business there was a shaft four feet three inches square, and twenty- 
 nine feet three inches deep, used for moving sugar. The shaft was nec- 
 essary, usual, and proper in the way of the defendant's business. 
 Whilst it was in use, it was necessary and proper that it should be 
 open and unfenced. When it was not in use, it was sometimes neces- 
 sary, with reference to ventilation, that it should be open. It was not 
 necessary that it should, when not in use, be unfenced ; and it might 
 then without injury to the business have been fenced by a rail. Wheth- 
 er it was usual to fence similar shafts when not in use did not dis- 
 tinctly appear; nor is it very material, because such protection was 
 unquestionably proper, in the sense of reasonable, with reference to 
 the safety of persons having a right to move about upon the floor 
 
 62 Erie, C. J., and Willes, Keating, and Montague Smith, ,T.T. 
 
 83 Tliat is, Lord Chief Justice Erie, at the sittinj,'.s in Middlesex. In his 
 summing up, Erie, C. J., liad remarked as follows: "The plaintiff has to 
 establish that there was negligence on the part of the defendant; that the 
 premises of the defendant, to which he was sent in the course of liis business 
 as a gas-fitter, were in a dangerous state; and that, as between hlmsi>lf 
 and tile defendant, there was a want of due and proper prei-iution in re- 
 spect to the hule in the tlooi-. To my mind, there would not be the least symp- 
 tom of want of due care as l)etweeu the defendant and a person [permanent- 
 ly] employed on his premises, because the sugar baking business requires a 
 lift on the premises, wbich must be as well known to the persons enq)b)yod 
 tlieiv as the top of a staii'case in every dwelling house. But tbat wliich 
 may be no negligence towards men ordinarily enq)l()yed upon the i»reniises, 
 may be negligence towards strangers lawfully coming upon the premises, in 
 the course of their business."
 
 Ch. 1) NEGLIGENCE 1027 
 
 where the shaft in fact was, because in its nature it formed a pitfall 
 there. At the time of the accident it was not in use, and it was open 
 and unfenced. 
 
 The plaintiff was a journeyman gas-fitter in the employ of a patentee 
 who had supplied the defendant with his patent gas-regulator, to be 
 paid for upon the terms that it effected a certain saving: and, for the 
 purpose of ascertaining whether such a saving had been effected, the 
 plaintiff's employer was required to test the action of the regulator. 
 He accordingly sent the plaintiff to the defendant's place of business 
 for that purpose ; and, whilst the plaintiff' was engaged upon the floor 
 where the shaft was, he (under circumstances as to which the evidence 
 was conflicting, but) accidentally, and, as the jury found, without any 
 fault or negligence on his part, fell down the shaft, and was seriously 
 hurt. 
 
 It was argued, that, as the defendant had objected to the plaintiff's 
 working at the place upon a former occasion, he (the plaintiff) could 
 not be considered as having been in the place with the defendant's leave 
 at the time of the accident : but the evidence did not establish a peremp- 
 tory or absolute objection to the plaintiff's being employed, so as to 
 make the sending of him upon the occasion of the accident any more 
 against the defendant's will than the sending of any other workman : 
 and the employment, and the implied authority resulting therefrom 
 to test the apparatus, were not of a character involving personal pref- 
 erence (dilectus personre), so' as to make it necessary that the patentee 
 should himself attend. It was not suggested that the work was not 
 journeyman's work. 
 
 It was also argued that the plaintiff was at best in the condition of 
 a bare licensee or guest who, it was urged, is only entitled to use the 
 place as he finds it, and whose complaint may be said to wear the 
 colour of ingratitude, so long as there is no design to injure him. 
 See Hounsell v. Smyth, 7 C. B. N. S. 371. 
 
 We think this argument fails, because the capacity in which the 
 plaintiff was there was that of a person on lawful business, in the 
 course of fulfilling a contract in which both the plaintiff and the de- 
 fendant had an interest, and not upon bare permission. No sound 
 distinction was suggested between the case of the servant and the 
 case of the employer, if the latter had thought proper to go in person ; 
 nor between the case of a person engaged in doing the work for the 
 defendant pursuant to his employment, and that of a person testing 
 the work which he had stipulated with the defendant to be paid for 
 if it stood the test ; whereby im])liedly the workman was to be allowed 
 an onstand to apply that test, and a reasonable opportunity of doing 
 so. Any duty to enable the workman to do the work in safety, seems 
 equally to exist during the accessory employment of testing: and any 
 duty to provide for the safety of the master workman, seems equally 
 owing to the servant workman whom he may lawfully send in his 
 place.
 
 1028 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 It is observable that in the case of S'outhcote v. Stanley, 1 H. & N. 
 247, upon which much reliance was properly placed for the defendant, 
 Alderson, B., drew the distinction between a bare licensee and a person 
 coming on business, and Bramwell, B., between active negligence in 
 respect of unusual danger known to the host and not to the guest, and 
 a bare defect of construction or repair, which the host was only negli- 
 gent in not finding out or anticipating the consequence of. 
 
 There is a considerable resemblance, though not a strict analogy, be- 
 tween this class of cases and those founded upon the rule as to volun- 
 tary loans and gifts, that there is no remedy against the lender or giver, 
 for damage sustained from the loan or gift, except in case of unusual 
 danger known to and concealed by the lender or giver: Macarthy v, 
 Younge, 6 H. & N. 329. The case of the carboy of vitriol '^^ was one 
 in which this court held answerable the bailor of an unusually danger- 
 ous chattel, the quality of which he knew, but did not tell the bailee, 
 who did not know it, and wdio, as a proximate consequence of his not 
 knowing, and without any fault on his part, suffered damage. 
 
 The cases referred to as to the liability for accidents to servants 
 and persons employed in other capacities in a business or profession 
 which necessarily and obviously exposes them to danger, as in Sey- 
 mour v. Maddox, 16 Q. B. 326, also have their special reasons. The 
 servant or other person so employed is supposed to undertake not only 
 all the ordinary risks of the employment into which he enters, but also 
 all extraordinary risks which he knows of and thinks proper to incur, 
 including those caused by the misconduct of his fellow-servants, not 
 however including those which can be traced to mere breach of duty 
 on the part of the master. In the case of a statutory duty to fence, 
 even the knowledge and reluctant submission of the servant who has 
 sustained an injury, are held to be only elements in determining wheth- 
 er there has been contributory negligence : how far this is the law be- 
 tween master and servant, where there is danger known to the servant, 
 and no statute for his protection, we need not now consider, because 
 the plaintiff in this case was not a servant of the defendant, but the 
 servant of the patentee. The question was adverted to, but not decid- 
 ed, in Clarke v. Holmes, 7 H. & N. 937. 
 
 The authorities respecting guests and other bare licensees, and those 
 respecting servants and others who consent to incur a risk, being there- 
 fore inapplicable, we are to consider what is the law as to the duty of 
 the occupier of a building with reference to persons resorting thereto 
 in the course of business, upon his invitation, express or implied. The 
 common case is that of a customer in a shop: but it is obvious that this 
 is only one of a class ; for, whether the customer is actually chaffering 
 at the time, or actually buys or not, he is, according to an undoubted 
 
 e* Farrant v. Barnes (1862) 11 C. B. N. S. 553, 142 Reprint 912, 132 R. R. 
 667: (The defendant delivered to a carrier a carboy of nitric acid, witliout 
 informing him of the dangerous nature of its contents. For the bearings of 
 the doctrine see Salmond on Turt.s (2d Ed.) pp. 375, 376.)
 
 Ch. 1) NEGLIGENCE 1029 
 
 course of authority and practice, entitled to the exercise of reasonable 
 care by the occupier to prevent damage from unusual danger, of which 
 the occupier knows or ought to know, such as a trap-door left open, un- 
 fenced, and unlighted : Lancaster Canal Company v. Parnaby, 11 Ad. 
 & E. 223 ; per cur. Chapman v. Rothwell, E. B. & E. 168, where South- 
 cote V. Stanley,**^ was cited, and the Lord Chief Justice, then Erie, J., 
 said : "The distinction is between the case of a visitor (as the plaintiff 
 was in Southcote v. Stanley), who must take care of himself, and a 
 customer, who, as one of the public, is invited for the purposes of busi- 
 ness carried on by the defendant." This protection does not depend 
 upon the fact of a contract being entered into in the way of the shop- 
 keeper's business during the stay of the customer, but upon the fact 
 that the customer has come into the shop in pursuance of a tacit invita- 
 tion given by the shopkeeper, with a view to business which concerns 
 himself. And, if a customer were, after buying goods, to go back to 
 the shop in order to complain of the quality, or that the change was 
 not right, he would be just as much there upon business which con- 
 cerned the shopkeeper, and as much entitled to protection during this 
 accessory visit, though it might not be for the shopkeeper's benefit, as 
 during the principal visit, which was. And if, instead of going him- 
 self, the customer were to send his servant, the servant would be en- 
 titled to the same consideration as the master. 
 
 The class to which the customer belongs includes persons who go 
 not as mere volunteers, or licensees, or guests, or servants, or persons 
 whose employment is such that danger may be considered as bargined 
 for, but who go upon business which concerns the occupier, and upon 
 his invitation, express or implied. 
 
 And, with respect to such a visitor at least, we consider it settled 
 law that he, using reasonable care on his part for his own safety, is 
 entitled to expect that the occupier shall on his part use reasonable 
 care to prevent damage from unusual danger, which he knows, or 
 ought to know ; and that, where there is evidence of neglect, the ques- 
 tion whether such reasonable care has been taken, by notice, lighting, 
 guarding, or otherwise, and whether there was contributory negligence 
 in the sufferer, must be determined by a jury as matter of fact. 
 
 In the case of Wilkinson v. Fairrie, 1 H. & C. 633, rehed upon for 
 the defendant, the distinction was pointed out between ordinary acci- 
 dents, such as falling down stairs, which ought to be imputed to the 
 carelessness or misfortune of the sufferer, and accidents from unusual, 
 covert danger, such as that of falling down into a pit. 
 
 65 1 H. & N. 247 (ISOG) lOS R. R. .549. "Whether the invited private guest is 
 to be classed with licensees or with invited persons is a question upon which 
 jiulicial opinion is somewhat at variance. In England it is well settled that 
 he is a licensee (Southcote v. Stanley). This, it is submitted is the true doc- 
 trine, whenever he is enjoying gratuitous hospitality. In some of our juris- 
 dictions, however, there is a disposition to work out a species of estoppel 
 against even a private host." Francis M. Burdick, Law of Torts (3d Ed.) 517, 
 518, and cases there cited.
 
 1030 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 It was ably insisted for the defendant that he could only be bound 
 to keep his place of business in the same condition as other places of 
 business of the like kind, according to the best known mode of con- 
 struction. And this argument seems conclusive to prove that there was 
 no absolute duty to prevent danger, but only a duty to make the place 
 as little dangerous as such a place could reasonably be, having regard 
 to the contrivances necessarily used in carrying on the business. But 
 we think the argimient is inapplicable to the facts of this case ; first, 
 because it was not shown, and probably could not be, that there was 
 any usa^ never to fence shafts ; secondly, because it was proved, that, 
 when the shaft was not in use, a fence might be resorted to without in- 
 convenience : and no usage could establish, that what was in fact un- 
 necessarily dangerous was in law reasonably safe, as against persons 
 towards whom there was a duty to be careful. 
 
 Having fully considered the notes of the Lord Chief Justice, we 
 think there was evidence for the jury that the plaintiff was in the place 
 by the tacit invitation of the defendant, upon business in which he 
 was concerned ; that there was by reason of the shaft unusual danger, 
 known to the defendant; and that the plaintiff sustained damage by 
 reason of that danger, and of the neglect of the defendant and his 
 servants to use reasonably sufficient means to avert or warn him 
 of it ; and we cannot say that the proof of contributory negligence was 
 so clear that we ought on this ground to set aside the verdict of the 
 jury. 
 
 As for the argument that the plaintiff contributed to the accident by 
 not following his guide, the answer may be that the guide, knowing the 
 place, ought rather to have waited for him ; and this point, as matter 
 of fact, is set at rest by the verdict. 
 
 For these reasons, we think there was evidence of a cause of action 
 in respect of which the jury were properly directed; and, as every 
 reservation of leave to enter a nonsuit carries with it an implied con- 
 dition that the Court may amend, if necessary, in such a manner as to 
 raise the real question, leave ought to be given to the plaintiff, in the 
 event of the defendant desiring to appeal or to bring a writ of error, 
 to amend the declaration by stating the facts as proved, — in effect, 
 that the defendant was the occupier of and carried on business at 
 the place ; that there was a shaft, very dangerous to persons in the 
 place, which the defendant knew and the plaintiff did not know ; that 
 the plaintiff', by invitation and permission of the defendant, was near 
 the shaft, upon business of the defendant, in the way of his own craft 
 as a gas-fitter, for hire, &c., stating the circumstances, the negligence, 
 and that by reason thereof the plaintiff was injured. The details of 
 the amendment can, if necessary, be settled at chambers. * * * 
 Rule discharged. 
 
 Against this decision of the Court of Common Pleas, the defendant 
 appealed.
 
 Ch. 1) NEGLIGENX'B 1031 
 
 [In the Exchequer Chamber.] 
 
 Kelly, C. B. * * * The question has been raised whether the 
 plaintiff at the time of the accident and under the special circumstances 
 of the case, was more than a mere volunteer. Let us see what the 
 case really was. The work had been done on Saturday, and at the con- 
 clusion of it an appointment was made for the plaintiff's employer or 
 some other workman to come on the following Tuesday to see if the 
 work was in proper order, and all the parts of it acting rightly. The 
 plaintiff by his master's directions went for that purpose, and I own 
 I do not see any distinction between the case of a w^orkman going 
 upon the premises to perform his employer's contract, and that of his 
 going after the contract is completed, but for a purpose incidental to 
 the contract, and so intimately connected with it, that few contracts 
 are completed without a similar act being done. The plaintiff went 
 under circumstances such as those last mentioned, and he comes, there- 
 fore, strictly within the language used by Willes, J., "a. person on 
 lawful business in the course of fulfilling a contract, in which both 
 the plaintiff and defendant have an interest." 
 
 What then is the duty imposed by law on the owner of these prem- 
 ises? They were used for the purpose of a sugar refinery, and it 
 may very likely be true that such premises usually have holes in the 
 floors of the different stories, and that they are left without any 
 fence or safeguard during the day while the workpeople, who it may 
 well be supposed are acquainted with the dangerous character of the 
 premises, are about; but if a person occupying such premises enters 
 into a contract, in the fulfilment of which workmen must come on the 
 premises who probably do not know what is usual in such places, and 
 are unacquainted with the danger they are likely to incur, is he not 
 bound either to put up some fence or safeguard about the hole, or, 
 if he does not, to give such workmen a reasonable notice that they 
 must take care and avoid the danger? I think the law does impose 
 such an obligation on him. That view w^as taken in the judgment in 
 the court below, where it is said : "With respect to such a visitor at 
 least, we consider it settled law that he, using reasonable care on his 
 part for his ow^n safety, is entitled to expect that the occupier shall on 
 his part use reasonable care to prevent damage from unusual danger 
 W'hich he knows or ought to know ; and that, when there is evidence 
 of neglect, the question whether such reasonable care has been taken 
 by notice, lighting, guarding, or otherwise, and w^hether there was 
 such contributory negligence in the sufferer, must be determined by 
 a jury as a matter of fact." 
 
 It was so determined in this case, and though I am far from saying 
 that there was not evidence that the plaintiff largely contributed to the 
 accident by his own negligence, yet that \\ as for the jury ; and I 
 think there was clearly some evidence for them that the defendant
 
 1032 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 had not used reasonable precautions, and that the judge therefore 
 would have been wrong if he had nonsuited the plaintiff. 
 
 Channell, B., Blackburn, J,, Meli^or, J., and Pigott, B., con- 
 curred. 
 
 Judgment affirmed,^® 
 
 / 
 
 PLUMMER V. DILL. 
 
 (Supreme Judicial Court of Massachusetts, 1S92. 156 Mass. 426, 31 N. E. 
 
 12S, 32 Am, St. Rep. 463.) 
 
 Tort, for personal injuries occasioned to the plaintiff by striking 
 her head upon a projecting sign placed against a post at the outside 
 corner of the landing of the defendant's building. A verdict was di- 
 rected for the defendant; and the plaintiff alleged exceptions. 
 
 Knowlton, J. If we assume that it was the duty of the defend- 
 ant to keep the entrance, stairway, and halls of his building reason- 
 ably safe for persons using them on an invitation express or implied, 
 and if we further assume that he negligently permitted them to be 
 unsafe, and that his negligence caused the injury to the plaintiff, 
 and that she was in the exercise of due care, — some of which propo- 
 sitions are at least questionable, — we come to the inquiry whether the 
 plaintiff' was a mere licensee in the building, or was there by the de- 
 fendant's implied invitation. 
 
 She did not go there to transact with any occupant of the build- 
 ing any kind of business in which he was engaged, or in the transac- 
 tion of which the building was used or designed to be used. She was 
 in search of a servant ; and for her own convenience she went there 
 to inquire about a matter which concerned herself alone. 
 
 It has often been held that the owner of land or a building, who has it 
 in charge, is bound to be careful and diligent in keeping it safe for those 
 who come there by his invitation express or implied, but that he owes no 
 such duty to those who come there for their own convenience, or as 
 mere licensees. Sweeny v. Old Colony & Newport Railroad, 10 Allen, 
 368, 87 Am. Dec. 644 ; Metcalfe v. Cunard Steamship Co., 147 Mass. 66, 
 16 N. E. 701; Gordon v. Cummings, 152 Mass. 513, 25 N. E. 978, 9 
 L. R. A. 640, 23 Am. St. Rep. 846. One who puts a building or a part 
 of a building to use in a business, and fits it up so as to show the use 
 to which it is adapted, impliedly invites all persons to come there 
 whose coming is naturally incident to the prosecution of the business. 
 If the place is open, and there is nothing to indicate that strangers 
 are not wanted, he impliedly permits and licenses persons to come 
 there for their own convenience, or to gratify their curiosity. The 
 mere fact that premises are fitted conveniently for use by the owner 
 or his tenants, and by those who come to transact such business as is 
 
 6 The statcMnent of facts and part of the opinions of Willes, J., and Kelly, 
 C. B., are omitted.
 
 Ch. 1) NEGLIGENCE 1033 
 
 carried on there, does not constitute an implied invitation to strangers 
 to come and use the place for purposes of their own. To such persons 
 it gives no more than an implied license to come for any proper pur- 
 pose. 
 
 It is held in England that one who comes on an express invitation 
 to enjoy hospitality as a guest must take the house as he finds it; and 
 that his right to recover for an injury growing out of dangers on the 
 premises is no greater than that of a mere licensee. Southcote v. 
 Stanley, 1 H. & N. 247. The principle of the decision seems to be 
 that a guest, who is receiving the gratuitous favors of another, has 
 no such relation to him as to create a duty to make the place where 
 hospitality is tendered safer or better than it is. It is well settled 
 there that to come under an implied invitation, as distinguished from 
 a mere license, the visitor must come for a purpose connected with 
 the business in which the occupant is engaged, or which he permits 
 to be carried on there. There must at least be some mutuality of 
 interest in the subject to which the visitor's business relates, although 
 the particular thing which is the object of the visit may not be for the 
 benefit of the occupant. Pollock on Torts, 417; Holmes v. North 
 Eastern Railway, L. R. 4 Ex. 254; S. C. L. R. 6 Ex. 123; White v. 
 France, 2 C. P.' D. 30S; Burchell v. Hickisson, 50 L. J. Q. B. 101. 
 
 The rule in regard to an implied invitation to places of business 
 is held with equal strictness in New York. In Larmore v. Crown 
 Point Iron Co., 101 N. Y. 301, 4 N. E. 752, 54 Am. St. Rep. 718, it 
 was decided that a person, who entered on the defendant's premises 
 to see if the defendant would give him employment, was a mere 
 licensee, and that the defendant was not liable to him for an injury 
 caused by the unsafe condition of the place. The diligence of counsel 
 and an extended examination of the authorities have failed to bring 
 to our attention any case in which the owner or occupant of a place 
 fitted up for ordinary use in business has been held by the condition 
 of his premises impliedly to invite persons to come there for a pur- 
 pose in which the occupant had no interest, and which had no con- 
 nection wath the business actually or apparently carried on there. 
 Precisely how far, under all circumstances, an implied invitation ex- 
 tends, in reference to the persons to be included in it, has not been 
 the subject of very full consideration in this Commonwealth, and is 
 hardly capable of exact statement. But in many cases there is lan- 
 guage indicating that the invitation extends only to those who come 
 on business connected with that carried on at the place, and for the 
 transaction of which the place is apparently intended. In Severy v. 
 Nickerson, 120 Mass. 306, 21 Am. Rep. 514, Mr. Justice Devens says: 
 "There is no duty imposed upon an owner or occupant of premises 
 to keep them in a suitable condition for those who come there for 
 their own convenience merely, without any invitation, cither express or 
 which may fairly be implied from the preparation and adaptation of 
 the premises for the purposes for which they are appropriated." In
 
 1034 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 Marwedel v. Cook, 154 Mass. 235, 236, 28 N. E. 140, we find this 
 language : "The general duty which the defendants owed to third 
 persons, in respect to the passages of the building, is well expressed in 
 the instructions to the jury at the trial: 'If the defendants leased 
 rooms in the building to different tenants, reserving to themselves the 
 control of the halls, stairways, and elevator, by and through which 
 access was to be had to these rooms, and the general Hghting arrange- 
 ments of those passages, then the defendants were bound to take 
 reasonable care that such approaches were safe and suitable at all 
 times, and for all persons who were lawfully using the premises, and 
 using due care, so far as they ought to have reasonably anticipated 
 such use as involved in and necessarily arising out of the purposes 
 and business for which said rooms were leased.' " In Learoyd v. God- 
 frey, 138 ]\fass. 315, 323, the plaintiff, a police officer, was expressly 
 invited to the premises by a daughter of the occupant to arrest an in- 
 toxicated person who was making disturbance in the house. In Curtis 
 V. Kiley, 153 Mass. 123, 26 N. E. 421, no question was considered or 
 clearly raised about the invitation to the plaintiff. In Davis v. Central 
 Congregational Society, 129 Mass. 367, Z7 Am. Rep. 368, the plaintiff 
 went to the defendant's church under an express invitation authorized 
 by the defendant, and the object of her visit was among those con- 
 templated by the defendant when the building was erected. The lan- 
 guage used in the cases in this Commonwealth and in other States 
 indicates that the rule in regard to the extent of the invitation im- 
 plied from the preparation of property for use in business is the same 
 here as laid down in the cases above cited from the courts of New 
 York and of England. Sweeny v. Old Colony & Newport Railroad, 
 10 Allen, 368, 87 Am. Dec. 644; Elliott v. Pray, 10 Allen, 378, 87 
 Am. Dec. 653 ; Carleton v. Franconia Iron & Steel Co., 99 Mass. 
 216; Metcalfe v. Cunard Steamship Co., 147 Mass. 66, 16 N. E. 701; 
 Ileinlein v. Boston & Providence Railroad, 147 Mass. 136, 16 N. E. 
 698, 9 Am. St. Rep. 676; Reardon v. Thompson, 149 Mass. 267, 21 
 N. E. 369; Gordon v. Cummings, 152 Mass. 513, 25 N. E. 978, 9 L. 
 R. A. 640, 23 Am. St. Rep. 846; Curtis v. Kiley, 153 Mass. 123, 26 
 N. E. 421; Stevens v. Nichols, 155 Mass. 472, 29 N. E. 1150, 15 
 L. R. A. 459; Campbell v. Portland Sugar Co., 62 Me. 552, 16 Am. 
 Rep. 503; Parker v. Portland Publishing Co., 69 Me. 173, 31 Am. 
 Rep. 262. 
 
 In Low v. Grand Trunk Railway, 72 Me. 313, 24 Am. Rep. 331, it 
 was held that the owner of a wharf was liable to a customhouse officer, 
 who was upon it in the performance of his duty to prevent smuggling 
 in the nighttime, for an injury resulting from a defective condition 
 of the wharf. The officer was there to prevent unlawful conduct in 
 connection with the business carried on at the wharf with the consent 
 of the owner, and the owner might fairly be supposed to anticipate 
 and desire, and impliedly to invite, his presence there to protect the 
 defendant's property from those who would unlawfully use it. Nei-
 
 Ch. 1) NEGLIGENCE 1035 
 
 ther the decision nor the cases cited in the opinion, when carefully 
 examined, will be found to give any countenance to the view that one 
 who visits a building for a purpose not connected with the use for 
 which the building was fitted, or to which it is put, is impliedly in- 
 vited to come there. * * * "^ 
 
 On the facts of the case before us, we are of opinion that the plain- 
 tiff was a mere licensee in the defendant's building, and that the rul- 
 ings at the trial were correct. 
 
 Exceptions overruled. 
 
 STEISKAL V. MARSHALL FIELD & CO. 
 
 (Supreme Court of Illinois, 1908. 238 111. 92, 87 N. E. 117.) 
 
 Action on the case against Marshall Field & Company for a per- 
 sonal injury sustained by the plaintiff through the alleged negligence 
 of the defendant. The jury returned a verdict in favor of the plaintiff 
 for the sum of $10,000, upon which the trial court rendered judg- 
 ment. This judgment was affirmed by the Appellate Court, and a 
 further appeal is prosecuted in this court. 
 
 Hand, J. The declaration contained one count which alleged : 
 
 That the appellant carried on a retail dry goods and general store in its 
 store building in the city of Chicago, and used and operated, in connection 
 with its business therein, a certain passenger elevator to.cari*j' passengers 
 from floor to floor in said building ; that the plaintiff:' was rightfully in said 
 store and a passenger in said elevator ; that he entered said elevator at 
 the ninth floor for the purpose of being carried to the first or main floor of 
 the building; that it was the duty of the defendant to carry him safely 
 from said ninth floor to his destination, but in this the defendant failed and 
 was guilty of negligence, in that while the plaintiff; was in the exercise of due 
 care for his own safety and was in said elevator as a passenger, the said ele- 
 vator, and the machinery by which the same was oi^erated, broke and gave 
 way, and precipitated said elevator, with plaintiff, into the basement of said 
 building, and he was injured, etc. 
 
 The first contention of the appellant is that the declaration is not 
 sufficient to support the judgment, in this: That the plaintiff has not 
 averred facts therein which show that he was rightfully in said eleva- 
 tor, or that the relation of passenger and carrier existed between the 
 plaintiff and the defendant at the time of the accident. The suffi- 
 ciency of the declaration is challenged by motion in arrest of judgment. 
 The relation averred to exist between the plaintiff' and the defendant 
 at the time the plaintiff was injured was that of passenger and car- 
 rier, and we are of the opinion the declaration, after verdict, was 
 sufficient to support the judgment. In Chicago & Alton Railroad Co. 
 V. Clausen, 173 111. 100, 50 X. E. 680, where the same contention was 
 made as is made here, the declaration averred that the plaintiff' became 
 
 6" In the omitted portion of the opinion, the learned .judge comments on 
 Sweeny v. f)ld Colony & Newp(jrt Railroad (ISfl.-)) 10 Allen, 3G8, 87 Am. Dec. 
 644, and Holmes v. Drew (l,s90) 151 Mass. 578, 25 N. E. 22.
 
 1036 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 a passenger on a passenger train of the defendant at Dwight to be 
 carried from that place to Gardner, and that while he, with due care, 
 caution, and diligence, was about to alight from the train at Gardner, 
 the defendant carelessly and negligently caused the train to be violent- 
 ly and suddenly moved for^vard, and thereby he was thrown from 
 and off the train to and upon the wooden platform of defendant; and 
 in dift'erent counts it was alleged that defendant did not stop the 
 train at Gardner a sufficient length of time to receive and let off pas- 
 sengers, but suddenly started the train, whereby the plaintiff, who was 
 attempting to alight, was thrown off. The averments of the declara- 
 tion in that case were held sufficient after verdict, and, if that dec- 
 laration was good after verdict, we are unable to see why the dec- 
 laration in this case is not. 
 
 It is next contended that the facts proven do not establish that the 
 relation of passenger and carrier existed between the parties at the 
 time appellee was injured. The appellee testified : He went to the 
 store of the appellant to obtain employment ; that he inquired of an 
 emplove of the defendant on the first floor for the superintendent ; that 
 he was told the superintendent was on the ninth floor and was directed 
 to take the elevator to that floor; that he got off the elevator at the, 
 ninth floor and inquired for the superintendent and was informed that 
 he was not in his office ; that he returned to the elevator, the door of 
 which was open, and entered the elevator; that the operator closed 
 the door behind him and turned on the power, and the elevator im- 
 mediately dropped to the basement floor ; that the elevator was wreck- 
 ed, the operator killed, and he was severely injured. We think this evi- 
 dence fairly tended to show that the appellee was rightfully in the ele- 
 vator, and that the relation of passenger and carrier existed between the 
 parties at the time the appellee was injured. In an establishment like 
 that of the appellant there is a general invitation to persons to enter 
 who have business with the appellant. The appellant employs a large 
 number of persons, and it was clearly lawful for the appellee to 
 enter its store for the purpose of seeking employment, and upon be- 
 ing directed to the office of the superintendent and invited to use the 
 elevator in going to his office he clearly was rightfully upon the 
 elevator, and upon finding the superintendent out of his office he 
 had the right to return to the first or main floor in the elevator. There 
 was, at least, evidence introduced by the plaintiff fairly tending to 
 show that the relation of passenger and carrier existed between the 
 parties at the time the elevator fell, and that the appellee was right- 
 fully upon the elevator; and as those questions were questions of 
 fact, or at most, of mixed law and fact (Springer v. Ford, 189 111. 
 430, 59 N. E. 953, 52 L. R. A. 930, 82 Am. St. Rep. 464), we think it 
 cannot now, in view of the holding of the trial and Appellate Courts, 
 be successfully contended in this court, as a matter of law, that such 
 relation did not exist, or that the appellee was wrongfully upon the 
 elevator, at the time it fell. This case is not like that of Walsh v.
 
 Ch. 1) NEGLIGENCE 1037 
 
 CuUen, 235 111. 91, 85 N. E. 223, 18 L. R. A. (N. S.) 911. In that 
 case the relation of master and servant existed between the parties, 
 while here the appellee was a passenger, and the duty which the ap- 
 pellant owed the appellee was the duty growing out of the relation of 
 carrier and passenger. This court has held (Hartford Deposit Co. v. 
 Sollitt, 172 111. 222, 50 N. E. 178, 64 Am. St. Rep. 35, and Springer 
 V. Ford, supra) that a person operating a passenger elevator, under 
 the circumstances under which the elevator in question was being 
 operated at the time of the accident, is a carrier of persons, and bound 
 to exercise a high degree of care in transporting passengers, and that 
 the fact that the elevator falls when persons are being carried thereon 
 is evidence that the elevator w^as mismanaged, or was out of repair, 
 or of faulty construction. 
 
 Judgment affirmed. 
 
 Dunn, J. (dissenting). The single count in the declaration alleged 
 that the appellant carried on a store, and used and operated in con- 
 nection therewith a passenger elevator for carrying passengers from 
 floor to floor, and that the appellee was rightfully in said store and 
 a passenger in said elevator. These averments amount to no more 
 than a statement that the appellee was in the elevator for the purpose 
 of being carried and was not a trespasser. The evidence showed that 
 the appellee went to the store for the purpose of obtaining employ- 
 ment. It did not show that he went in response to any advertisement 
 or request of the appellant, that the appellant desired to employ any 
 help, or that the appellee had any reason to suppose it did. In re- 
 sponse to his inquiry he was informed that the superintendent was 
 on the ninth floor, and was directed to take the elevator to that floor. 
 Finding that the superintendent was not in his office, he returned to 
 the elevator, when it fell, and he was injured. 
 
 The operators of passenger elevators in buildings for the use of 
 the occupants and those having business with or visiting them are 
 common carriers of passengers, with the same obligations as car- 
 riers bv other modes of convevance. Hartford Deposit Co. v. Sollitt, 
 172 111' 222, 50 N. E. 178, 64 Am. St. Rep. 35; Springer v. Ford, 189 
 111. 430, 59 N. E. 953, 52 L. R. A. 930, 82 Am. St. Rep. 464; Beidler 
 V. Branshaw, 200 111. 425, 65 N. E. 1086. But these obligations do 
 not extend to the case of employes of the operator using the eleva- 
 tor in the course of their employment. Walsh v. Cullen, 235 111. 91, 
 85 X. E. 223, 18 L. R. A. (N. S.) 911. As to such persons and others 
 using the elevator, not in connection with the business of the opera- 
 tor or the occupants of the building or by their invitation, the law 
 does not require that high degree of care which common carriers of 
 passengers must use. One who goes upon the premises of another 
 to seek employment of the owner, not in response to any invitation, 
 is not engaged in the business of the owner. He goes solely for his 
 own benefit. There was no invitation, express or implied, for the ap- 
 pellee to visit the appellant's store. He went there on his own busi-
 
 1038 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 ness and for his own purposes only. The appellant was under no 
 obligation to the appellee, under such circumstances, to exercise the 
 high degree of care recjuired of a common carrier. Larmore v. Crown 
 Point Iron Co., 101 N. Y. 391, 4 N. E. 752, 54 Am. Rep. 718. 
 
 Cartwright, C. J., and Scott, J., concur in the foregoing dissent- 
 ing opinion. 
 
 COWEN V. KIRBY et al. 
 
 (Supreme Judicial Court of Massachusetts, 1902. 180 Mass. 504, 62 N. E. 968.) 
 
 Tort for personal injuries by Cowen against Kirby and others. A 
 
 verdict was directed for the defendants. The plaintiff excepts. The 
 
 facts were as follows : 
 
 The defeiulaiits kept a stable situated at the corner of two streets, and 
 as a part of their business toolv in for l^eeping and care the vehicles and 
 horses of those persons who might come for that service. Upon the ground 
 floor was a large room, into which teams were driven from one of the streets, 
 and in which horses were unhitched and hitched up and vehicles were stored. 
 Out of tliis room opened a number of doors, one of which led to stalls where 
 the horses were kept, two led to harness rooms, one to a ladies' waiting room, 
 and one to an office. The two latter doors were near the team entrance, and 
 the waiting room and the office had outer doors, also, giving enti-ance from 
 the other street. The plaintiff drove his hoi'se and wagon into the stable, and. 
 got out of the wagon. Hostlers unhitched the horse, and backed the wagon 
 to the wall opposite the entrance. The plaintiff foUowed the wagon back, 
 and put his driving gloves into it, and upon receiving a numbered check for his 
 team left the stable. It does not appear that while he was there anything 
 was said by any one. After some hours he re-entered by the carriage door, 
 and walked' across the room, intending to place some packages in his wagon, 
 which remained where he had seen it placed. Otlier wagons had been put in 
 the room in the meantime, and one of these was immediately in front of his. 
 He passed to the left of the front wagon. About two feet to the left of his 
 wagon was a post, and, not choosing to pass between the wagon and the 
 post, he swung liimself around the post, and then leaned towards his wagon 
 to put his packages into it. The post was in fact a part of the apparatus of 
 a hoisting macliine used to carry vehicles between the ground floor and the 
 upper floors of the stal)le. While the plaintiff was leaning towards his 
 wagon, the hoist, loaded with a vehicle, descended upon him. 
 
 Barker, J. (after stating the facts). Whether he can recover for 
 his injury depends upon whether at the time and place where he was 
 when hurt, he was more than a mere licensee, and if so, whether he 
 was in the exercise of due care. The fact that a person enters a 
 place of business as a customer does not give him the right to ex- 
 pect that every part of the premises shall be so arranged and kept 
 that he may be in safety. He knows the purpose for which they 
 are used, and must assume that they will be prepared and adapted 
 for that purpose, and must take notice of that preparation and adap- 
 tion, at least so far as it is obvious. It is only those parts of the 
 premises where customers are expected to be that the owner or oc- 
 cupant must keep in suitable condition for them, and in such parts 
 only has a customer a right to assume that care has been used to 
 protect him from injury. He enters knowing tliat the i)lacc is not
 
 Ch. 1) NEGLIGENCE 1039 
 
 arranged merely for his own convenience. He may expect that he 
 will be safe in conducting himself as a customer is expected to act, 
 but he has no right to expect that he will be safe if he oversteps that 
 limit. The owner, without being in fault, may adapt his premises 
 to his business, and may use them in the way for which they were 
 designed, unless in so doing he exposes the customer to some danger 
 which the latter has the right to expect he will not be exposed to, and 
 the customer must expect to find such appliances and such uses of 
 the premises as are involved in the prosecution of the business. If, 
 without some special invitation, express or implied, a customer sees 
 fit to pass from that part of the establishment where it is designed 
 and expected that he shall be into other parts not designed or adapted 
 for his use, but for the work of the place, he becomes at best a mere 
 licensee, as to whom the owner or occupant has no duty to keep his 
 premises safe. Severy v. Nickerson, 120 Mass. 306, 21 Am. Rep. 
 514; Gaffnev v. Brown, 150 Mass. 479, 23 N. E. 233-; Marwedel 
 v. Cook, 154'Mass. 235, 28 N. E. 140. See Redigan v. Railroad Co., 
 155 ^lass. 44, 28 N. E. 1133, 14 L. R. A. 276, 31 Am. St. Rep. 520; 
 Plummer v. Dill, 156 Mass. 426, 428, 429, 31 N. E. 128, 32 Am. St. 
 Rep. 463; McCarvell v. Sawyer, 173 Mass. 540, 54 N. E. 259, 73 
 Am. St. Rep. 318; Moffatt v. Kenny, 174 Mass. 311, 54 N. E. 850; 
 Harobine v. Abbott, 177 Mass. 59, 58 N. E. 284. 
 
 When the plaintiff, having placed his driving gloves in the wagon, 
 accepted the check for his team, and left the stable, no custom of 
 business nor special invitation having been shown, he neither re- 
 served nor obtained any right to use the stable for the purpose of 
 placing other property in his w^agon, nor to enter the room in which 
 the wagon w^as, except for the purpose of reclaiming his property. 
 In fact, although the plaintiff' testified that he did not know it, a 
 place for customer's parcels was provided in the office. However 
 this may have been, there is nothing in the evidence to justify a find- 
 ing that he had any right to expect, upon entering the stable the sec- 
 ond time, that he would find it in such a condition that it would be 
 safe for him to walk through it to his wagon and place in it other 
 packages. In so doing he was visiting merely for his own conven- 
 ience a part of the stable which obviously was not designed or in- 
 tended for his use, but for the storage of vehicles. There was noth- 
 ing to give him the right to infer or assume that by placing other 
 articles of his own in his wagon he could charge the defendants with 
 their custody, or that he had the right to use the room for the pur- 
 pose of putting other articles in his wagon. His second visit being 
 solely for that purpose, in making it he was at best but a mere licensee, 
 and must take the place as he found it. 
 
 Besides this, he was not in the exercise of due care. The raised 
 beam upon the floor over which he walked in going to his wagon, 
 and the depression beyond it, in which the platform of the hoist 
 rested when down ; the grooved posts which guided the platform
 
 1040 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 in its ascent and descent, and around one of which he swung him- 
 self ; the box in which the counterweight hung ; the check rope, and 
 the double hoisting hawser of heavy rope hanging next his wagon, 
 and within two feet of the post, — were all plainly visible, and all in- 
 dicated obviously that the place where he chose to stand was used 
 by a carriage hoist. He himself testified that if he had seen the hoist- 
 ing rope hanging down and going around he would have thought 
 there was an elevator there. We are of opinion that there were so 
 many obvious indications that he stood in the way of a hoisting ma- 
 chine that he could not be found to be in the exercise of due care. 
 Exceptions overruled. 
 
 HUPFER v. NATIONAL DISTILLING CO. 
 
 (Supreme Court of Wisconsin, 1902. 114 Wis. 279, 90 N. W. 191.) 
 
 This action was brought by Hupf er, as administrator of Simon Hup- 
 
 fer, against the National Distilling Company to recover damages for 
 
 negligently causing the death of plaintifif's intestate. The complaint 
 
 alleged, in effect: 
 
 That tlie deceased came to the defendant's distillery, as he had for some 
 time been accustomed to do, for the puiiDose of purchasing and receiving 
 slops for his cows, which slops were contained in a large circular tank about 
 16 feet in diameter, and raised about 6 feet above the ground, and drawn 
 therefrom by a faucet at the bottom of the tank ; that Simon drove his 
 wagon under and by the side of the tank for the purpose of so filling his 
 wagon with such slops ; that without his knowledge or any warning to 
 him, and through the carelessness and negligence of the defendant, the hoops 
 which held the tank together had become rusted and weakened, so that 
 the tank broke, and the contents thereof were precipitated upon Simon, scald- 
 ing him in such a dangerous and shocking manner that he died about three 
 hours afterwards. 
 
 The trial, under a denial and counter allegations, resulted in a spe- 
 cial verdict for $1,000 in the plaintift''s favor, and judgment thereon 
 in that amount. The defendant appealed. ^^ 
 
 Cassoday, C. J. It is contended that the deceased was, at the time 
 and place of the injury, at most a mere licensee, to whom the de- 
 fendant owed no duty. It is true that the defendant had in its em- 
 . ploy at the time one John Dardell, whose special duty, among other 
 things, was to stir up the slop in the vat and deliver the same to the 
 defendant's customers. By the eighth and ninth findings the jury 
 found that prior to the accident the deceased and the defendant's 
 other customers knew that such were the duties of John Dardell. But 
 by the sixth, seventh, and tenth findings, the jury also found that at 
 the time of the accident it had long been an established custom for 
 the defendant's customers, desiring to purchase such slops, to stir 
 the same for themselves, if they desired to do so; and that such cus- 
 tom was known to and acquiesced in by the defendant; and that 
 
 6 8 The statement of facts is abridged.
 
 Ch. 1) NEGLIGENCE 1041 
 
 prior to the accident the defendant repeatedly suffered the deceased 
 to step upon the back platform and stir up the slop, because it feared 
 to lose his custom if he should be forbidden. John Dardell testified 
 to the effect that he told the defendant's secretary that if some of 
 the customers were not allowed to stir the slops themselves such cus- 
 tomers would not take them ; that the secretary told him not to 
 drive customers away, but that he would rather he would stir the slops 
 himself ; that he had known the deceased for three years ; that in 
 the winter he came for slops almost every day, but seldom in the 
 summer; that he often told the deceased that his duties required him 
 to stir the slops, but that the deceased always stirred the slops him- 
 self ; that by doing so he would get the thick slop, while other cus- 
 tomers, who did not stir it themselves, would get thinner slop; that 
 he knew that the deceased would not take the slop unless he stirred 
 it himself, and so he let him stir the slop and fill his wagon rather 
 than lose him as a customer ; and that he regarded that as business. 
 Upon such findings and testimony, can we hold that the deceased was 
 a mere licensee within the authorities? * * * jj-, Bennett v. Rail- 
 road Co., 102 U. S. 577, 584, 585, 26 L. Ed. 235, 238, it is said, quot- 
 ing from an author, that "the principle appears to be that invitation 
 is inferred where there is a common interest or mutual advantage, 
 while a license is inferred where the object is the mere pleasure or 
 benefit of the person using it." Similar views are expressed in 'Mr. 
 Thompson's late Commentaries on the Law of Negligence (volume 
 1, § 968), citing numerous cases in support of the rule. 
 
 We must hold that, under the findings of the jury, the deceased 
 cannot be regarded as a mere licensee, but that he was there on busi- 
 ness for the mutual benefit of himself and the defendant: or in other 
 words, by invitation. * * * ^^ 
 
 The judgment of the superior court for Milwaukee county is re- 
 versed [for error in the admission of testimony], and the cause is re- 
 manded for a new trial. 
 
 69 A part of Mr. Chief Justice Cassoday's opinion, including a numerous ci- 
 tation of authorities, is omitted. Bardeeu and Marshall, JJ., concurred in the 
 result; the latter in an elaborate opinion. 
 
 Hepb. Torts — 66
 
 1042 TOUTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 HOLMES V. DREW. 
 
 (Supreme Judicial Court of Massachusetts, 1890. 151 Mass. 578, 25 N. E. 22.) 
 
 Tort for personal injuries sustained by the plaintiff by falling upon 
 a private sidewalk belonging to the defendant, and negligently sulfered 
 by her to remain in a dangerous condition. At the trial there was 
 evidence tending to prove the following facts : 
 
 Tlie defendant was tlie owner of an estate abutting on West Rutland 
 Square, a i»ublic street in the city of Boston. The buildings fronting upon 
 this street, including that of the defendant, had been placed by their owners 
 sixteen feet back from the street line, and a brick sidewalk had ))een laid 
 by them upon the intervening space. In front of the defendant's building, 
 this sidewalk was nowhere less than eight feet wide, of which but eight 
 inches were included within the limits of the street, the remainder being 
 entirely upon the defendant's land. This entire sidewalk was so constructed 
 by the defendant as apparently to constitute a public sidewalk, with nothing 
 to indicate any difference or line of separation l)etween what was public and 
 what was private. The bricks of the sidewalk at the intersection of the 
 street with a private way, which crossed it and formed the boundary of one 
 side of the defendant's estate, were kept in position by a board wliich extend- 
 ed from the side of the street at right angles into the defendant's land, and 
 projected above the l)ricks for a height varying from an inch and a quarter 
 to six: inches and a quarter. In front of the defendant's building and upon 
 her land, over an irregular space covering ai)out fifteen square feet extending 
 from this board into the sidewalk, the bricks had become loose, misplaced, 
 and thrown into various irregular positions, and had there remained for 
 several months before November 4, 18S7. On the evening of that day, the 
 jilaintiff, while travelling along the sidewalk upon the defendant's premises 
 towards the private way, being in the exercise of due care aud supposing 
 •that the sidewalk was a part of the street, stumbled over the loose bricks 
 and the projecting board above described, and, falling down, was severely 
 injured. The plaintiff did not give to the defendant the notice mentioned in 
 the Pub. Sts. c. 52, § 19. After the accident, the loose bricks on the defendant's 
 premises were replaced in proper position, and the sidewalk put in safe con- 
 dition, but it did not appear who did it. 
 
 The judge upon the above facts directed a verdict for the defend- 
 ant ; and the plaintiff alleged exceptions. 
 
 W. Allen, J. The jury might have inferred from the facts stated 
 that the defendant laid out and paved the sidewalk on her own land 
 in order that it should be used by the public as the sidewalk of the 
 street, and allowed it to remain apparently the part of the street that 
 was intended to be used by foot passengers. This would amount to 
 an invitation to the public to enter upon and use as a public sidewalk 
 the land so prepared, and the plaintiff so using it would have gone 
 upon the defendant's land by her implied invitation, and she would 
 owe to him the duty not to expose him to a dangerous condition of 
 the walk which reasonable care on her part would have prevented. 
 Sweeny v. Old Colony & Newport Railroad, 10 Allen, 368, S7 Am. 
 Dec. 644; Carleton v. Franconia Iron & Steel Co., 99 Mass. 216; 
 Oliver v. Worcester, 102 Mass. 489, 3 Am. Rep. 485 ; Davis v. Cen- 
 tral Congregational Society, 129 Mass. 367, 371, 37 Am. Rc]). 368; 
 Mur])hy V. Boston & Albany Railroad, 133 Mass. 121. 
 
 The place was not a way, and Pub. Sts. c. 52.. § 19, do not apply.
 
 Ch. 1) NEGLIGENCE 1043 
 
 The ground of the defendant's habihty is not her obUgation to keep 
 a way in repair; but her obHgation to use due care that her land 
 should be reasonably safe for the use which she invited the plaintiff 
 to make of it. Whether she invited the plaintiff' to cross her land 
 on a paved walk, whether the pavement was in such a condition as 
 to render walking over it dangerous, whether it was in that condi- 
 tion through the negligence of the defendant, and whether the plain- 
 tiff was hurt in consequence while in the exercise of due care, were 
 questions proper to be submitted to the jury. 
 Exceptions sustained^* 
 
 II. In Relation to Contractual Obligations : Whether a 
 Duty oe Care Towards Third Persons 
 
 WINTERBOTTOAI v. WRIGHT. 
 
 (Court of Exchequer, 1842. 10 Mees. & W. 109, 62 R. R. 534.) 
 
 Case. The declaration stated : 
 
 That the defendant was a contractor for the supply of mail-coaches, and 
 had in that character contracted for liire and reward with the Postmaster- 
 General, to provide the mnil-coach for the purpose of conveying the mail- 
 bags from Hartford, in the county of Chester, to Holyhead: That the de- 
 fendant, under and by virtue of said contract, had aa;reed with the said 
 Postmaster-General that the said mail-coach should, during the said contract, 
 be kept in a fit, proi^er, safe, and secure state and condition for the said 
 purpose, and took upon himself, to wit, under and by virtue of the said con- 
 tract, the sole and exclusive duty, charge, care, and burden of the repairs, 
 state and condition of the said mail-coach ; and it had become and was the 
 sole and exclusive duty of the defendant, to \\-it, under and by virtue of his 
 said contract, to keep and maintain the said mail-coach in a fit, proper, safe 
 and secure state and condition for the purpose aforesaid: That Nathanial At- 
 kinson and other persons, having notice of the said contract, were under con- 
 tract with the Postmaster-General to convey the said mail-coach from Hart- 
 ford to Holyhead, and to supply horses and coachmen for that purpose, and 
 also not, on any pretence whatever, to use or employ any other coach or 
 carriage whatever than such as should be so provided, directed and appoint- 
 ed by the Postmaster-General: That the plaintiff, being a mail-coachman, 
 and thereby obtaining his livelihood, and whilst the said several contracts 
 were in force, having notice thereof, and trusting to and confiding in the con- 
 tract made between the defendant and the Postmaster-General, and believing 
 that the said coach was in a ht, safe, secure and proper state and condition 
 
 70 "There is a class of cases to which Sweeny v. Old Colony Railn)ad (lS(j.j) 
 10 Allen, .368, 87 Am. Dec. 644, and Holmes v. Drew (1800) 151 Mass. 578, 
 25 N. E. 22, belong, which stand on a ground peculiar to themselves. They 
 are where the defendant, by his conduct, has induced the puldic to use a 
 way in the belief that it is a street or public way which all have a right to 
 use, and where they suppose they will be safe. The inducement ttr implied 
 invitation in these cases is not to come to a place of business tiffed up by 
 the defendant for trafbc to which those only are invited who will come to 
 do business with the (x-cupant, nor is it to come l>y permission or favor or 
 license; but it is to come as one of the public, and enjoy a iiui)lic right, in 
 the enjoyment of which one may expect to be protected. The liability in 
 such a case should l)e co-exfeiisive with the inducement or implied invitation." 
 Per Knowlton, J., in Plumnicr v. Dill (181)2) 156 Mass. 426, 430, 31 X. E. 128, 
 130, 32 Am. St. Rep. 463, 467.
 
 104:4 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 for tlie purpose aforesaid, and not knowing and having no means of knowing 
 to the contrary thereof, hired himself to the said Nathanial Atkinson and 
 his co-contractors as mail-coachman, to drive and take the conduct of the 
 said mail-coach, which but for the said contract of the defendant he would 
 not have done. The declaration then averred, that the defendant so im- 
 proiierly and negligently conducted himself, and so utterly disregarded his 
 aforesaid contract, and so wholly neglected and failed to perform his duty in. 
 this behalf, that heretofore, to wit, on the 8th of August, 1840, whilst the 
 plaintiff, as such mail-coachman so hired, was driving the said mail-coach 
 from Hartford to Holyhead, the same coach being a mail-coach found and 
 provided by the defendant under his said contract, and the defendant then 
 acting under his said contract, and having the means of knowing and then 
 well knowing all the aforesaid premises, the said mail-coach being then in 
 a frail, weak, infirm, and dangerous state and condition, to wit, by and 
 through certain latent defects in the .state and condition thereof, and unsafe 
 and unfit for the use and the purpose aforesaid, and from no other cause, 
 circumstance, matter, or thing whatsoever, gave way and broke down, where- 
 by the plaintiff was thrown from his seat, and, in consequence of injuries 
 then received, had become lame for life. 
 
 To this declaration the defendant pleaded several pleas, to two 
 of which there were demurrers; but, as the court gave no opinion 
 as to their validity, it is not necessary to state them. 
 
 Byles, for the defendant, objected that the declaration was bad in 
 substance : This is an action brought, not against Atkinson and his 
 co-contractors, who were the einployers of the plaintiff, but against 
 the person employed by the Postmaster-General, and totally uncon- 
 nected with them or the plaintiff. Now it is a general rule, that 
 wherever a wrong arises merely out of the breach of a contract, 
 which is the case on the face of this declaration, whether the form 
 in which the action be conceived be ex contractu or ex delicto, the 
 party who made the contract alone can sue : ToUit v. Sherstone, 5 
 M. & W. 283. If the rule were otherwise, and privity of contract 
 were not requisite, there would be no limit to such actions. 
 * * * Levy V. Langridge, 4 M. & W. ZZl, will probably be re- 
 ferred to on the other side. But that case was expressly decided on 
 the ground that the defendant, who sold the gun by which the plain- 
 tiff was injured, although he did not personally contract with the 
 plaintiff, who was a minor, knew that it was bought to be used by 
 him. Here there is no allegation that the defendant knew that the 
 coach was to be driven by the plaintiff. There, moreover, fraud was 
 alleged in the declaration, and found by the jury: and there, too, the 
 cause of the injury was a weapon of a dangerous nature, and the 
 defendant was alleged to have had notice of the defect in its con- 
 struction. Nothing of that sort appears upon this declaration. 
 
 Peacock, contra. This case is within the principle of the decision 
 in Levy v. Langridge. Here the defendant entered into a contract 
 with a public officer to supply an article which, if imperfectly con- 
 structed, was necessarily dangerous, and which, from its nature and 
 the use for which it was destined, was necessarily to be driven by a 
 coachman. That is sufficient to bring the case within the rule es- 
 tablished by Levy v. Langridge. In that case the contract made by
 
 Ch. 1) NEGLIGENCE 1045 
 
 the father of the plaintifif Avith the defendant was made on behalf of 
 himself and his family generally, and there was nothing to show that 
 the defendant was aware even of the existence of the particular son 
 who was injured. Suppose a party made a contract with govern- 
 ment for a supply of muskets, one of which, from its misconstruc- 
 tion, burst and injured a soldier: there it is clear that the use of the 
 weapon by a soldier would have been contemplated, although not by 
 the particular individual who received the injury, and could it be 
 said, since the decision in Levy v= Langridge, that he could not main- 
 tain an action against the contractor? So, if a coachmaker, employed 
 to put on the wheels of a carriage, did it so negligently that one of 
 them flew off, and a child of the owner were thereby injured, the 
 damage being the natural and immediate consequence of his negligence, 
 he would surely be responsible. So, if a party entered into a contract 
 to repair a church, a workhouse, or other public building, and did 
 it so insufficiently that a person attending the former, or a pauper in 
 the latter were injured by the falling of a stone, he could not main- 
 tain an action against any other person than the contractor; but 
 against him he must surely have a remedy. It is like the case of a 
 contractor who negligently leaves open a sewer, whereby a person 
 passing along the street is injured. It is clear that no action could 
 be maintained against the Postmaster-General : Hall v. Smith, 2 
 Bing. 156; Humphreys v. Mears, 1 Man. & R. 187; Priestly v. Fow- 
 ler. But here the declaration alleges the accident to have happened 
 through the defendant's negligence and want of care. The plaintiff 
 had no opportunity of seeing that the carriage was sound and secure. 
 (Aldersox, B. The decision in Levy v. Langridge proceeds upon the 
 ground of the knowledge and fraud of the defendant.) Here also 
 there was fraud : the defendant represented the coach to be in a 
 proper state for use, and whether he represented that w^hich was 
 false within his knowledge, or a fact as true which he did not know 
 to be so, it was equally a fraud in point of law, for which he is re- 
 sponsible. 
 
 Lord Abinger, C. B. I am clearly of opinion that the defendant 
 is entitled to our judgment. We ought not to permit a doubt to 
 rest upon this subject, for our doing so might be the means of letting 
 in upon us an infinity of actions. This is an action of the first im- 
 pression, and it has been brought in spite of the precautions which 
 were taken, in the judgment of this Court in the case of Levy v. 
 Langridge, to obviate any notion that such an action could be main- 
 tained. We ought not to attempt to extend the principle of that de- 
 cision, which, although it has been cited in supjiort of this action, 
 wholly fails as an authority in its favor ; for there the gun was bought 
 for the use of the son, the plaintiff in that action, who could not make 
 the bargain himself, but was really and substantially the party con- 
 tracting. Here the action is brought simply because the defendant 
 was a contractor with a third person; and it is contended that there
 
 1046 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 upon he became liable to everybody who might use the carriage. If 
 there had been any ground for such an action, there certainly would 
 have been some precedent of it; but with the exception of actions 
 against inn-keepers, and some few other persons, no case of a sim- 
 ilar nature has occurred in practice. That is a strong circumstance, 
 and is of itself a great authority against its maintenance. It is how- 
 ever contended, that this contract being made on the behalf of the 
 public by the Postmaster-General, no action could be maintained 
 against him, and therefore the plaintiff must have a remedy against" 
 the defendant. But that is by no means a necessary consequence, 
 — he may be remediless altogether. There is no privity of contract 
 between these parties; and if the plaintiff can sue, every passenger, 
 or even any person passing along the road, who was injured by the 
 upsetting of the coach, might bring a similar action. Unless we con- 
 fine the operation of such contracts as this to the parties who entered 
 into them, the most absurd and outrageous consequences, to which 
 I can see no limit, would ensue. Where a party becomes responsible 
 to the public, by undertaking a public duty, he is liable, though the 
 injury may have arisen from the negligence of his servant or agent. 
 So, in cases of public nuisances, whether the act was done by the 
 party as a servant, or in any other capacity, you are liable to an 
 action at the suit of any person who suffers. Those, however, are 
 cases where the real ground of the liability is the public duty, or the 
 commission of the public nuisance. There is also a class of cases in 
 which the law permits a contract to be turned into a tort; but unless 
 there has been some public duty undertaken, or public nuisance com- 
 mitted, they are all cases in which an action might have been main- 
 tained upon the contract. Thus, a carrier may be sued either in as- 
 sumpsit or case ; but there is no instance in which a party, w^ho was 
 not privy to the contract entered into with him, can maintain any 
 ■ such action. The plaintiff' in this case could not have brought an 
 action on the contract; if he could have done so, what would have 
 been his situation, supposing the Postmaster-General had released the 
 defendant? That would, at all events, have defeated his claim 
 altogether. By permitting this action, we should be working this 
 injustice, that after the defendant had done everything to the satis- 
 faction of his employer, and after all matters between them had been 
 adjusted, and all accounts settled on the footing of their contract, 
 we should subject them to be ripped open by this action of tort being 
 brought against him. 
 
 Aldkrson, B. I am of the same opinion. The contract in this 
 case was made with the Postmaster-General alone ; and the case is 
 just the same as if he had come to the defendant and ordered a car- 
 riage, and handed it at once over to Atkinson. If we were to hold 
 that the plaintiff could sue in such a case, there is no point at which 
 such actions would stop. The only safe rule is to confine the right 
 to recover to those who enter into the contract: if we go one step
 
 Ch. 1) NEGLIGENCE 1047 
 
 beyond that, there is no reason why we should not go fifty. The 
 only real argument in favor of this action is, that this is a case of 
 hardship; but that might have been obviated if the plaintiff had 
 made himself a party to the contract. Then it is urged that it falls 
 within the principle of the case of Levy v. Langridge. But the prin- 
 ciple of that case is simply this, that the father having bought the 
 gun for the very purpose of being used by the plaintifif, the defend- 
 ant made representations by which he was induced to use it. There, 
 a distinct fraud was committed on the plaintifif; the falsehood of the 
 representation was also alleged to have been within the knowledge 
 of the defendant who made it, and he was properly held liable for the 
 consequences. How are the facts of that case applicable to those of 
 the present? Where is the allegation of fraud or misrepresentation 
 in this declaration? It shows nothing of the kind. Our judgment 
 must therefore be for the defendant. 
 
 RoLFE, B. The breach of the defendant's duty, stated in the dec- 
 laration, is his omission to keep the carriage in a safe condition; and 
 when we examine the mode in which that duty is alleged to have 
 arisen, we find a statement that the defendant took upon himself, 
 to wit, under and by virtue of the said contract, the sole and ex- 
 clusive duty, charge, care, and burden of the repairs, state, and con- 
 dition of the said mail coach, and, during all the time aforesaid, it 
 had become, and was the sole and exclusive duty of the defendant, 
 to wit, under and by virtue of his said contract, to keep and maintain 
 the said mail coach in a fit, proper, safe, and secure condition. The 
 duty, therefore, is shown to have arisen solely from the contract ; 
 and the fallacy consists in the use of the word "duty." If a duty 
 to the Postmaster-General be meant, that is true ; but if a duty to the 
 plaintiff be intended (and in that sense the word is evidently used), 
 there was none. This is one of those unfortunate cases in which 
 there certainly has been damnum, but it is damnum absque injuria; 
 it is, no doubt, a hardship upon the plaintiff to be without a remedy, but 
 by that consideration we ought not to be influenced. Hard cases, it 
 has been frequently observed, are apt to introduce bad law. 
 
 Judgment for the defendant. 
 
 GALBRAITH v. ILLINOIS STEEL CO. 
 
 (Circuit Court of Appeals of the United States, Seveiitli Circuit, 1904. 
 GO C. C. A. 359, 133 Fed. 485, 2 L. R. A. [X. S.] 799.1 
 
 This was an action on the case against the Illinois Steel Company. 
 
 At the conclusion of the plaintiff's evidence, the court, on defendant's 
 
 motion, directed a verdict for the defendant, and entered judgment 
 
 thereon. The plaintiff brings error to reverse this judgment. The 
 
 facts in the case were as follows : 
 
 The phiintiff, owner of a six-story I)nsiness l)lock in Chicairo, c-ontra<ted 
 with the Manufacturers' Automatic Sprinliler Company to install in her
 
 1048 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 building a complete sprinkler system. Among other things, the sprinkler 
 company agreed to construct on top of the building, according to plans of 
 Ritter & Mott, engineers, a steel framework on which to stand a wooden tank 
 of 20,000 gallons capacity. The sprinkler company contracted with the defend- 
 ant to erect the steel support. Defendant was given the drawings and si>ecifi- 
 cations prepared by Ritter <& Mott, and in making therefrom its shop plans, 
 and in putting up the steel support, omitted a tie member — one side of the 
 triangular top. Ritter <& Mott's plans informed defendant that a tank 16 
 feet in diameter would rest upon the steel support, but did not disclose the 
 height and capacity of the tank. Defendant did its work in the manner above 
 stated, and left the building. Thereafter a tank company employed by the 
 sprinkler company came upon the building and made and placed the tank. 
 Then the sprinkler company connected the tank with the system of pipes 
 and sprinkler heads throughout the building. The tank was filled and the 
 system was maintained by plaintiff for 30 days before the accident occurred 
 which gave rise to this controversy. The steel support weighed 5 tons ; the 
 tank and water, 85. The wind, blowing at 40 miles an hour against the tank 
 surface, caused the structure to collapse. The evidence tends to prove that 
 the collapse would not have happened, except for the absence of the tie mem- 
 ber. Plaintiff paid out large sums in repairing the building and sprinkler 
 system, in reimbursing tenants for damage to goods, and in settling personal 
 injurj' claims. To recover these, she brought this action. 
 
 Baker, Circuit Judge (after stating the facts). Plaintiff contends 
 that defendant, outside and independently of its contract with the 
 sprinkler company, owed her a duty to use reasonable care in con- 
 structing the steel support; that the evidence shows that defendant 
 failed to exercise such care ; that such failure was the proximate cause 
 of her losses; and therefore that she has made out a good cause of 
 action against defendant. And in support of her contention plaintiff 
 cites numerous authorities. '^^ 
 
 On the other hand, defendant insists that this case falls within the 
 rule that a contractor, manufacturer, or vender is not liable to persons 
 who have no contractual relations with him for negligence in the con- 
 struction, manufacture, or sale of the article he handles, and illustrates 
 its argument by comparison with many cases. '^ 
 
 71 Sibley on the Right to and Cause for Action, p. 44; Enc. of Law & Proce- 
 dure (section on "Actions") ; Whitaker's Smith on Negligence (2d Ed.) p. 
 Ill; also page 32; Pollock on Torts (Ed. 1887) pp. 347, 350; Bickford v. 
 Richards (1891) 154 Mass. 163, 27 N. E. 1014, 26 Am. St. Rep. 224; Bishop 
 on Noncontract Law, § 79 ; Thompson's Commentaries on the Law of Negli- 
 gence, vol. 1, p. 626; Addisou on Torts (i>udley & B. Ed.) p. 17; Shear- 
 man & Redfield on Neglicence (4th Ed.) vol. 1, p. 23, § 22; Huset v. J. I. 
 Case Threshing Machine Company (1903) 120 Fed. 865, 57 C. C. A. 237, 61 L. 
 R. A, 303. 
 
 7 2 Winterbottom v. Wright (1842) 10 M. & W. 109; Collis v. Selden (1868) 
 3 C. P. 495; Mayor of Albanv v. Cuuliff (1849) 2 N. Y. 165; Loop v. Litch- 
 field (1870) 42 N. Y. 351, 1 Am. Rep. 513 ; Losee v. Clute (1873) 51 N. Y. 494, 10 
 Am. Rep. 638; Necker v. Harvey (1883) 49 Mich. 517, 14 N. W. 503; Daugherty 
 V. Herzog (1890) 145 Ind. 255, 44 N. E. 457, 32 /L. R. A. 837, 57 Am. St. Rep. 
 204; Curtin v. Somerset (1891) 140 Pa. 70, 21 Atl. 244, 12 L. R. A. 322, 23 
 Am. St. Rep. 220; Fitzmaurice v. Fabian (1892) 147 Pa. 199, 23 Atl. 444; 
 Heizer v. Kiugsland & Douglass Mfg. Co. (1892) 110 Mo. 605, 19 S. W. 030, 15 
 L. R. A. 821, 33 Am. St. Rep. 482 ; Bailey v. Northwestern, etc., Gas Co. 
 (1890) 4 Ohio Cir. Ct. R. 471; Buidick v. Cheadle (1875) 26 Ohio St. 393, 20 
 Am. Rep. 707; Davidson v. Nichols (1860) 93 Mass. (11 Allen) 514; Carter 
 V. Harden (ISSG) 78 Me. 528, 7 Atl. ."{92; McCaffrey v. Mossberg & 
 Granville Mfg. Co. (1901) 23 R. I. 381, 50 Atl. 651, 55 L. R. A. 822, 91 Am.
 
 Ch. 1) NEGLIGENCE 1049 
 
 If the sprinkler company had suffered from defendant's omission 
 of the tie member, that company could have maintained against de- 
 fendant an action ex contractu, for defendant had engaged to put 
 in the tie member, or an action ex delicto, for defendant failed to 
 discharge a duty it had assumed to the sprinkler company. In both 
 cases the measure of right and duty would be the same, because it 
 would be intolerable that an action ex delicto should be maintained 
 by one contracting party against the other on account of the complete 
 and exact performance of the contract. If defendant owed to the 
 sprinkler company any duty to exercise care that the completed struc- 
 ture should withstand the wind, then, if the contract had called for 
 the very steel support that defendant erected, full performance of 
 the contract would be no defense to an action ex delicto for breach of 
 the supposititious duty. It follows that the only duty owing by de- 
 fendant to the sprinkler company was to perform the contract as it 
 was made, and that the only party who could sue defendant for a 
 breach of the duty that was created and measured by the contract was 
 defendant's contractee, the sprinkler company. 
 
 Plaintiff cannot recover from defendant simply by showing defend- 
 ant's breach of its contract with the sprinkler company, nor simply 
 by showing defendant's breach of its duty to the sprinkler company. 
 There was no contract relation between the parties to this case. What 
 duty arose from the fact that defendant went upon plaintiff's building 
 to execute its contract with the sprinkler company? There is the 
 general maxim of the law of negligence that one, in following his busi- 
 ness or pleasure, shall use reasonable care to avoid injury to others. 
 That is a duty owing from everybody to everybody. And in this 
 case, if defendant's workmen, during the erection of the steel support, 
 had negligently dropped a girder on a passer-by in the street, or down 
 through the roof and floors of plaintiff's building, Bickford v. Rich- 
 ards, 154 Mass. 163, 27 N. E. 1014, 26 Am. St. Rep. 224, and other 
 decisions, would be good precedents for applying the maxim. In such 
 a case there would be a breach of a duty that was not created and 
 measured by the contract, and the inquiry whether defendant, on final- 
 ly leaving the premises, had fully completed its contract, or had neg- 
 ligently failed in its duty in that regard, would be utterly irrelevant. 
 
 But plaintiff's case requires her to assert that defendant owed her 
 the duty to use reasonable care to see to it, before leaving the job of 
 
 St. Rep. 637; Burke v. De Castro (1877) 11 Hun (N. Y.) 354; Swan v. Jackson 
 (1889) 55 Hun, 194, 7 N. Y. Sui>p. S21 ; Savings Bank v. Ward (1S79) 100 U. 
 S. 195, 25 L. Ed. 621; Goodlander Mill Co. v. Standard Oil Co. (1894) 63 Fed. 
 400, 11 C. C. A. 253, 27 L. R. A. 583 ; Brandon v. Perkins-Campbell Co. (1898) 
 87 Fed. 109, 30 C. C. A. 567, 66 L. R. A. 924 ; Huset v. J. 1. Case Threshing 
 Machine Co. (1903) 120 Fed. 865, 57 C. C. A. 237, 61 L. R. A. 303; Salliotte 
 V. King Bridge Co. (1903) 122 Fed. 378, 58 C. C. A. 406, 65 L. R. A. 620 ; Blake- 
 more V. B. & E. Ry. Co. (1858) 8 El. & Bl. 1035 ; Barrett v. Singer Mfg. Co. 
 (1809) 31 N. Y. Super. Ct. 545; Mar^-in S:ife Co. v. Ward (18JS4) 46 N. J. 
 Law, 19; Marquardt v. Ball Engine Co. (1903) 122 Fed. 374, 58 C. C. A. 402; 
 Wharton on Negligence (2d Ed.) 438.
 
 1050 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 erecting the steel support, that the final structure would not be apt 
 to be blown over on account of the lack of the proper number of 
 steel girders to make it safe. If such a duty existed, it would be one 
 owing equally to the passer-by in the street, it would have being sep- 
 arate and apart from the duty that was created and measured by the 
 contract between defendant and the sprinkler company, and it might 
 or might not be coextensive with defendant's duty to the sprinkler 
 company. If it were coextensive, it would be for the reason that 
 defendant's contract with the sprinkler company called for such a 
 steel support that the final structure would be reasonably safe. And 
 since a duty cannot be shifted, defendant could not rely on the pro- 
 posal of its customer, but would have to determine for itself, and at 
 its own peril, whether or not the steel support shown in the proposed 
 contract would in fact be sufficient to co-operate properly -with the 
 other parts of the system to make a reasonably safe final structure. 
 If defendant's alleged duty to plaintiff were of dift'erent dimensions 
 from those of its duty to the sprinkler company, it would be for the 
 reason that defendant's contract with the sprinkler company did not 
 call for such a steel support that the final structure would be rea- 
 sonably safe. And in such a case defendant would be confronted with 
 the situation that its performance of its duty to the sprinkler com- 
 pany would be a breach of its duty to the rest of the world. 
 
 Defendant's supposed duty to plaintiff being created by law, if at 
 all, and therefore being absolute, and defendant's duty to the sprinkler 
 company being of a size determinable by the contracting parties, the 
 question of the two duties' coextensiveness is irrelevant, for, if de- 
 fendant owed plaintiff the supposed duty, that duty could not be 
 diminished or altered by defendant's contract with another. Hence, 
 in inquiring into the origin, nature, and extent of defendant's duty 
 to plaintiff, the irrelevancy of the terms of defendant's contract with 
 the sprinkler company. And since the terms of the contract are im- 
 material, it is obvious that the question of performance is impertinent 
 on the part of any one but the sprinkler company. 
 
 If defendant, constructor of one part, was bound to use reasonable 
 care that the entirety, when turned over to the possession and use of 
 a stranger, should withstand the winds, so were the builders of other 
 parts. Take the tank company for example. It came upon the prem- 
 ises after defendant had gone. The fact was obvious that one side 
 of a triangle was missing. The final eft'ect of putting upon that sup- 
 port 85 tons' weight in the form of a sail was the blowing over of 
 the structure. If defendant were required to look beyond its con- 
 tract, and to ascertain the weight of the tank that was to be furnished 
 by another, its capacity, the weight of the water, the sail area, and the 
 speed of the winds, in order to determine whether the final and com- 
 pleted structure would be safe, it would be equally just to require the 
 tank company to figure (and with reasonable accuracy, at its peril) on 
 the tensile and torsional strength of steel, and the adequacy of the
 
 Ch. 1) NEGLIGENCE 1051 
 
 designs for the support on which it engaged to set its tank. If the 
 law should hold all the builders and makers and doers in the land to 
 a particular duty to their contractees, and at the same time to another 
 absolute duty to use care that the thing shall be innocuous as it passes 
 through the hands. of all mankind — a duty separate and distinct from 
 the first, which might or might not be coextensive with the first, but, 
 w-hether so or not, unavailing to avoid the second — we fancy few per- 
 sons would be willing to do business, in the face of the insufferable 
 litigation that would ensue. True, the common law — that inexhaustible 
 fount, of which the taps are in the hands of the courts — might have 
 been turned to watering plaintiff's contention ; but we think it evidence 
 of the perception of a sound public policy that the courts, with virtual 
 unanimity, have refrained from opening the gates. 
 
 To the rule there are exceptions. One must not, knowingly or un- 
 knowingly, fail to exercise care in the preparation or sale of an 
 article intended to affect human life. One must not knowingly send 
 out an instrumentality w'hich is imminently and immediately danger- 
 ous, without notice of its nature and qualities. From the steel sup- 
 port, as defendant left it, no danger threatened. None came from 
 it immediately, but only through additions and acts of the tank com- 
 pany, the sprinkler company, and plaintiff'. This case is not within the 
 exceptions. And furthermore' the subsequent and independent inter- 
 vening acts of the tank company, the sprinkler company, and plaintiff 
 saved defendant's omission of the tie member from being the prox- 
 imate cause of the accident.'^ 
 
 "3 Judge Grosscup dissented: "Now one thing seems quite sure: The plain- 
 tiff would have had, in some form, a right of action against the Sprinkler 
 Company for the damage resulting ; for the inclusion of the tie member 
 was in the contract between them, and the Sprinkler Company was bound 
 to see that the contract was perfonned. Another thing seems certain: The 
 Sprinkler Company would have had, in some form, a right of action against 
 the defendant for the loss to which it would thus be subjected; for the in- 
 clusion of the tie memiier was in the contract between the Sprinkler Com- 
 pany and the defendant, and the defendant was bound to pex'form that con- 
 tract. Thus, by circumlocution at lea.st, plaintiff's losses eventually would 
 have reached the defendant, through a train of legal proceedings that, prac- 
 tically, would have made the defendant directly responsible to the plain- 
 tiff for the losses suffered. I am vevx nuich inclined to think that in such 
 a case, where defendant is thus obligated to the Sprinkler Company, and the 
 Sprinkler Company to the plaintiff, there exists such privity of contract as 
 would give the plaintiff a direct right of action, ex contractu, against the de- 
 fendant. But I do not rest my conclusion upon the existence of privity of 
 contract. In matters involving, as these contracts did, the personal and prop- 
 erty safety of others than the immediate parties to the contracts, there is, 
 it seems to me, a duty raised to take reasonable care that the contract obli- 
 gations are carried out. Public ixjlicy injects into such a relationship an 
 obligation additional to the bare contractual obligati(m — an obligation mn- 
 ning to all who are directly affected by the i>erformauce or non-performance 
 of the ccjiitract. There is thus raised between defendant agreeing to put 
 in an essential part of the building, according to plans, and specifications, and 
 the plaintiff" affected in personal and property safety by defendant's perform- 
 ance of that obligation, a privity of duty that may be made the basis of an 
 action ex delicto."
 
 1052 TOUTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 THO^IAS et ux. v. WINCHESTER. 
 (Court of Appeals of New York, 1852. 6 N. Y. [2 Seld.] 397, 57 Ara. Dec. 455.) 
 
 This action was brought by Samuel Thomas and Mary Ann, his 
 wife, against the defendants, Winchester and Gilbert, to recover dam- 
 ages for neghgently putting up, labelHng, and selHng, as and for ex- 
 tract of dandelion, a simple and harmless medicine, a jar of extract 
 of belladonna, a deadly poison ; by means whereof, the plaintiff. Alary 
 Ann Thomas, to whom a dose of dandelion had been prescribed by 
 a physician, and to whom a portion of the jar of belladonna had been 
 administered, as for extract of dandelion, had been greatly injured. 
 
 The complaint alleged, that the defendants, from the year 1843, to 
 the first of January 1849, were engaged in putting up and vending 
 certain vegetable extracts, at a store in the city of New York, desig- 
 nated as "108 John street," and that the defendant, Gilbert, had, for 
 a long time previously thereto, been so engaged, at the same place. 
 That among the extracts so prepared and sold by them, were those 
 respectively known as the "extract of dandelion," and the "extract of 
 belladonna" ; the former a mild and harmless medicine and the lat- 
 ter a vegetable poison, which, if taken as a medicine in such quantity 
 as might be safely administered of the former, would destroy the 
 life, or seriously impair the health, of the person to whom the same 
 might be administered. That, at some time between the periods above 
 mentioned, the defendants put up and sold to James S. Aspinwall, a 
 druggist in the city of New York, a jar of the extract of belladonna, 
 which had been labelled by them as the extract of dandelion, and was 
 purchased from them as such, by Aspinwall. That Aspinwall after- 
 wards, on the 10th May 1845, relying upon the label so affixed by the 
 defendants, sold the said jar of belladonna to Alvin Foord, a druggist 
 of Cazcnovia, in the county of Madison, as the extract of dandelion. 
 That afterwards, on the 27th March 1849, the plaintiff, Airs. Thomas, 
 being sick, a portion of the extract of dandelion w^as prescribed for 
 her, by her physician, and the said Alvin Foord, relying upon the 
 label affixed by the defendants to said jar of belladonna, and believing 
 the same to be the extract of dandelion, did, on the application of the 
 plaintiff, Samuel Thomas, sell and deliver to him, from the said jar 
 of belladonna, a portion of its contents, which was administered to 
 the plaintiff, Mrs. Thomas, under the belief that it was the extract 
 of dandelion; by which she was greatly injured, so that her life was 
 despaired of, &c. The plaintiffs also averred that the whole injury 
 was occasioned by the negligence and unskilfulness of the defendants 
 in putting up and falsely labelling the jar of belladonna as the extract 
 of dandelion, whereby the plaintiffs, as well as the druggists, and all 
 other persons through whose hands it passed, before being admin- 
 istered as aforesaid, were induced to believe and did believe that it 
 contained the extract of dandelion.
 
 Ch. 1) NEGLIGENCE 1053 
 
 The defendants, in their answers, severally denied the allegations 
 of the complaint, and insisted that they were not liable for the med- 
 icines sold by Aspinwall and Foord. 
 
 It was proved, on the trial before Mason, J., that Mrs. Thomas being 
 in ill health, her physician prescribed for her a dose of dandelion. Her 
 husband purchased what was believed to be the medicine prescribed, 
 at the store of Dr. Foord, a physician and druggist in Cazenovia, 
 IMadison county, where the plaintitTs resided. A small quantity of the 
 medicine thus purchased was administered to ]\Irs. Thomas, on whom 
 it produced very alarming effects ; such as coldness of the surface 
 and extremities, feebleness of circulation, spasms of the muscles, 
 giddiness of the head, dilation of the pupils of the eyes, and derange- 
 ment of the mind. She recovered, however, after some time, from 
 its effects, although for a short time her life was thought to be in 
 great danger. 
 
 The medicine administered was belladonna and not dandelion. The 
 jar from which it was taken was labelled "^/slb. dandelion, prepared 
 by A. Gilbert, No. 108 John street, N. Y. Jar 8 oz." It was sold 
 for, and believed by Dr. Foord to be, the extract of dandelion, as 
 labelled. Dr. Foord purchased the article as the extract of dandelion, 
 from James S. Aspinwall, a druggist at New York. Aspinwall 
 bought it of the defendant, as extract of dandelion, believing it to be 
 such. 
 
 The defendant, Winchester, was engaged at 108 John street, New 
 York, in the manufacture and sale of certain vegetable extracts for 
 medicinal purposes, and in the purchase and sale of others. The ex- 
 tracts manufactured by him were put up in jars for sale, and those 
 which he purchased were put up by him in like manner. The jars con- 
 taining extracts manufactured by himself and those containing ex- 
 tracts purchased by him from others, were labelled alike. Both were 
 labelled like the jar in question, as "prepared by A. Gilbert." Gil- 
 bert was a person employed by the defendant at a salary, as an assist- 
 ant in his business. The jars were labelled in Gilbert's name because 
 he had been previously engaged m the same business, on his own ac- 
 count, at No. 108 John street, and, probably, because Gilbert's labels 
 rendered the articles more salable. 
 
 The extract contained in the jar sold to Aspinwall, and by him to 
 Foord, was not manufactured by the defendant, but was purchased by 
 him from another manufacturer or dealer. The extract of dandelion 
 and the extract of belladonna resemble each other in color, consistence, 
 smell and taste; but may, on careful examination, be distinguished the 
 one from the other by those who are well acquainted with these ar- 
 ticles. Gilbert's labels were paid for by Winchester, and used in his 
 business with his knowledge and assent. 
 
 At the close of the testimony, the defendant's counsel moved for a 
 nonsuit, on the following grounds:
 
 1054 TOUTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 1. That tlie action could not be sustained, as the defendant was 
 the remote vendor of the article in question ; and there was no connec- 
 tion, transaction or privity between him and the plaintiffs, or either of 
 them. * * * 
 
 The defendant Gilbert was acquitted by the jury, and a verdict was 
 rendered against Winchester for $800 damages ; and a motion for a 
 new trial, made at general term, upon a bill of exceptions, having been 
 denied, and judgment perfected on the verdict, the defendant, Win- 
 chester, took this appeal. 
 
 RuGGLiSS, C. J. (after stating the facts). * * * The action was 
 properly brought in the name of the husband and wife, for the per- 
 sonal injury and suft'ering of the wife; and the case was left to the 
 jury, with the proper direction on that point. 1 Chit. Plead. 62. 
 
 The case depends on the first point taken by the defendant, on his 
 motion for a nonsuit ; and the question, is, whether the defendant, be- 
 ing a remote vendor of the medicine, and there being no privity or 
 connection between him and the plaintiffs, the action can be main- 
 tained. If, in labelling a poisonous drug with the name of a harmless 
 medicine, for public market, no duty was violated by the defendant, 
 excepting that which he owed to Aspinwall, his immediate vendee, in 
 virtue of his contract of sale, this action cannot be maintained. 
 
 If A. build a wagon and sell it to B., who sells it to C, and C. hires 
 it to D. who in consequence of the gross negligence of A., in building 
 the wagon, is overturned and injured, D. cannot recover damages 
 against A., the builder. A.'s obligation to build the wagon faithfully, 
 arises solely out of his contract with B. ; the public have nothing to 
 do with it. Misfortune to third persons not parties to the contract, 
 would not be a natural and necessary consequence of the builder's neg- 
 ligence ; and such negligence is not an act imminently dangerous to 
 human life. So, for the same reason, if a horse be defectively shod by 
 a smith, and a person hiring the horse from the owner, is thrown and 
 injured, in consequence of the smith's negligence in shoeing, the smith 
 is not liable for the injury. The smith's duty in such case grows 
 exclusively out of his contract with the owner of the horse ; it was 
 a duty which the smith owed to him alone ; and to no one else. And 
 although the injury to the rider may have happened in consequence of 
 the negligence of the smith, the latter was not bound, either by his 
 contract, or by any considerations of public policy or safety, to respond 
 for his breach of duty to any one except the person he contracted with. 
 
 This was the ground on which the case of Winterbottom v. Wright, 
 10 Mees. & Welsh. 109, was decided. A. contracted with the post- 
 master-general to provide a coach to convey the mail-bags along a cer- 
 tain line of road, and B. and others also contracted to horse the coach 
 along the same line. B. and his co-contractors hired C, who was the 
 plaintiff, to drive the coach. The coach, in consequence of some latent 
 defect, broke down ; the plaintiff was thrown from his seat and lam- 
 ed. It was held, that C. could not maintain an action against A., for
 
 Ch. 1) NEGLIGENCE 1055 
 
 the injur}' thus sustained. The reason of the decision is best stated 
 by Baron Rolfe : A.'s duty to keep the coach in good condition, was a 
 duty to the postmaster-general, with whom he made his contract, and 
 not a duty to the driver employed by the owners of the horses. 
 
 But the case in hand stands on a ditlerent ground. The defendant 
 was a dealer in poisonous drugs; Gilbert was his agent in preparing 
 them for market. The death or great bodily harm of some person, 
 was the natural, and almost inevitable, consequence of the sale of 
 belladonna by means of the false label. Gilbert, the defendant's agent, 
 would have been punishable for manslaughter, if Mrs. Thomas had 
 died, in consequence of taking the falsely-labelled medicine. Every 
 man who by his culpable negligence, causes the death of another, al- 
 though without intent to kill, is guilty of manslaughter. 2 R. S. 672. 
 A chemist who negligently sells laudanum in a phial labelled as pare- 
 goric, and thereby causes the death of the person to whom it is adminis- 
 tered, is guilty of manslaughter. Tessymond's Case, 1 Lewin's Crown 
 Cases, 169. "So highly does the law value human life, that it admits 
 of no justification, wherever life has been lost and the carelessness or 
 negligence of one person has contributed to the death of another. 
 Regina v. Swindall, 2 Car. & Kir. 232, 233. And this rule applies not 
 only where the death of one is occasioned by the negligent act of an- 
 other, but where it is caused by the negligent omission of a duty of 
 that other. 2 Car. & Kir. 367, 371. Although the defendant, Win- 
 chester, may not be answerable criminally for the negligence of his 
 agent, there can be no doubt of his liability, in a civil action, in which 
 the act of the agent is to be regarded as the act of the principal. 
 
 :)c ^ 5)1 74 
 
 Judgment affirmed. 
 
 HEAVEN v. PENDER. 
 
 (In the Court of Appeal, 1883. 11 Q. B. Div. 503.) 
 
 Action to recover damages for injuries sustained by the plaintiff 
 through the alleged negligence of the defendant. The action was re- 
 mitted for trial before the Bow County Court, where judgment was 
 given for the plaintiff for £20. The Queen's Bench Division, on mo- 
 tion by way of appeal, ordered judgment to be entered for the defend- 
 ant. The plaintiff appealed. 
 
 Bre;tt, AI. R. In this case the plaintiff was a workman in the em- 
 ploy of Gray, a ship painter. Gray entered into a contract with a ship- 
 owner whose ship was in the defendant's dock to paint the outside of 
 his ship. The defendant, the dock owner, sui)plied, under a contract 
 with the shipowner, an ordinary stage to be slung in the ordinary way 
 outside the ship for the purpose of painting her. It must have been 
 
 74 The statement of facts is abridged and parts of the opinion are oniittod.
 
 1056 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 known to the defendant's servants, if they had considered the matter 
 at all, that the stage would be put to immediate use, that it would not 
 be used by the shipowner, but that it would be used by such a person 
 as the plaintifif, a working ship painter. The ropes by which the stage 
 was slung, and which were supplied as a part of the instrument by the 
 defendant, had been scorched and were unfit for use and were sup- 
 plied without a reasonably careful attention to their condition. When 
 the plaintiff began to use the stage the ropes broke, the stage fell, and 
 the plaintiff was injured. The Divisional Court held that the plaintiff 
 could not recover against the defendant. The plaintiff appealed. The 
 action is in form and substance an action for negligence. That the 
 stage was, through want of attention of the defendant's servants, sup- 
 plied in a state unsafe for use is not denied. But want of attention 
 amounting to a want of ordinary care is not a good cause of action, 
 although injur)^ ensue from such want, unless the person charged with 
 such want of ordinary care had a duty to the person complaining to 
 use ordinary care in respect of the matter called in question. Action- 
 able negligence consists in the neglect of the use of ordinary care or 
 skill towards a person to whom the defendant owes the duty of observ- 
 ing ordinary care and skill, by which neglect the plaintiff, without con- 
 tributory- negligence on his part, has suft'ered injury to his person or 
 property. The question in this case is whether the defendant owed 
 such a duty to the plaintiff. 
 
 If a person contracts with another to use ordinary care or skill to- 
 wards him or his property the obligation need not be considered in the 
 light of a duty ; it is an obligation of contract. It is undoubted, how- 
 ever, that there may be the obligation of such a duty from one person 
 to another although there is no contract between them with regard to 
 such duty. Two drivers meeting have no contract with each other, but 
 under certain circumstances they have a reciprocal duty towards each 
 other. So two ships navigating the sea. So a railway company which 
 has contracted with one person to carry another has no contract with 
 the person carried but has a duty towards that person. So the owner 
 or occupier of house or land who permits a person or persons to come 
 to his house or land has no contract with such person or persons, but 
 has a duty towards him or them. It should be observed that the exist- 
 ence of a contract between two persons does not prevent the existence 
 of the suggested duty between them also being raised by law independ- 
 ently of the contract, by the facts with regard to which the contract 
 is made and to which it applies an exactly similar but a contract duty. 
 We have not in this case to consider the circumstances in which an 
 implied contract may arise to use ordinary care and skill to avoid dan- 
 ger to the safety of person or property. We have not in this case to 
 consider the question of a fraudulent misrepresentation express or im- 
 plied, which is a well recognized head of law. The questions which 
 we have to solve in this case are — what is the proper definition of the 
 relation between two persons other than the relation established by
 
 Ch. 1) NEGLIGENCE 1057 
 
 contract, or fraud, which imposes on the one of them a duty towards 
 the other to observe, with regard to the person or property of such 
 other, such ordinary care or skill as may be necessary to prevent in- 
 jury to his person or property; and whether the present case falls 
 within such definition. When two drivers or two ships are approach- 
 ing each other, such a relation arises between them when they are ap- 
 proaching each other in such a manner that, unless they use ordinary 
 care and skill to avoid it, there will be danger of an injurious collision 
 between them. This relation is established in such circumstances be- 
 tween them, not only if it be proved that they actually know and think 
 of this danger, but whether such proof be made or not. It is estab- 
 lished, as it seems to me, because any one of ordinary sense who did 
 think would at once recognize that if he did not use ordinary care and 
 skill under such circumstances there would be such danger. And ev- 
 ery one ought by the universally recognized rules of right and wrong, 
 to think so much with regard to the safety of others who may be jeop- 
 ardized by his conduct; and if, being in such circumstances, he does 
 not think, and in consequence neglects, or if he neglects to use ordi- 
 nary care or skill, and injury ensue, the law, which takes cognizance 
 of and enforces the rules of right and wrong, will force him to give an 
 indemnity for the injury. In the case of a railway company carrying 
 a passenger with whom it has not entered into the contract of carriage 
 the law implies the duty, because it must be obvious that unless ordi- 
 nary care and skill be used the personal safety of the passenger must 
 be endangered. With regard to the condition in which an owner or 
 occupier leaves his house or property other phraseology has been used, 
 which it is necessary to consider. If a man opens his shop or ware- 
 house to customers it is said that he invites them to enter, and that this 
 invitation raises the relation between them which imposes on the in- 
 viter the duty of using reasonable care so to keep his house or ware- 
 house that it may not endanger the person or property of the person 
 invited. This is in a sense an accurate phrase, and as applied to the 
 circumstances a sufficiently accurate phrase. Yet it is not accurate 
 if the word "invitation" be used in its ordinary sense. By opening a 
 shop you do not really invite, you do not ask A. B. to come in to buy; 
 you intimate to him that if it pleases him to come in he will find things 
 which you are willing to sell. So, in the case of shop, warehouse, road, 
 or premises, the phrase has been used that if you permit a person to 
 enter them you impose on yourself a duty not to lay a trap for him. 
 This, again, is in a sense a true statement of the duty arising from the 
 relation constituted by the permission to enter. It is not a statement 
 of what causes the relation which raises the duty. What causes the 
 relation is the permission to enter and the entry. But it is not a strict- 
 ly accurate statement of the duty. To lay a trap means in ordinary 
 language to do something with an intention. Yet it is clear that the 
 duty extends to a danger the result of negligence without intention. 
 Hepb . ToBTS — 67
 
 1058 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 And with regard to both these phrases, though each covers the circum- 
 stances to which it is particularly applied, yet it does not cover the 
 other set of circumstances from which an exactly similar legal liability 
 is inferred. It follows, as it seems to me, that there must be some 
 larger proposition which involves and covers both sets of circumstanc- 
 es. The logic of inductive reasoning requires that where two major 
 propositions lead to exactly similar minor premises there must be a 
 more remote and larger premise which embraces both of the major 
 propositions. That, in the present consideration, is, as it seems to me, 
 the same proposition which will cover the similar legal liability inferred 
 in the cases of collision and carriage. The proposition which these rec- 
 ognized cases suggest, and which is, therefore, to be deduced from 
 them, is that whenever one person is by circumstances placed in such 
 a position with regard to another that every one of ordinary sense who 
 did think would at once recognize that if he did not use ordinary care 
 and skill in his owm conduct with regard to those circumstances he 
 would cause danger of injury to the person or property of the other, 
 a duty arises to use ordinary care and skill to avoid such danger. With- 
 out displacing the other propositions to which allusion has been made 
 as applicable to the particular circumstances in respect of which they 
 have been enunciated, this proposition includes, I think, all the rec- 
 ognised cases of liability. It is the only proposition which covers them 
 all. It may, therefore, safely be affirmed to be a true proposition, un- 
 less some obvious case can be stated in which the liability must be ad- 
 mitted to exist, and which yet is not within this proposition. There 
 is no such case. Let us apply this proposition to the case of one per- 
 son supplying goods or machinery, or instruments or utensils, or the 
 like, for the purpose of their being used by another person, but with 
 whom there is no contract as to the supply. The proposition will stand 
 thus : whenever one person supplies goods, or machinery, or the like, 
 for the purpose of their being used by another person under such cir- 
 cumstances that every one of ordinary sense would, if he thought, rec- 
 ognise at once that unless he used ordinary care and skill with regard 
 to the condition of the thing supplied or the mode of supplying it, there 
 will be danger of injury to the person or property of him for whose 
 use the thing is supplied, and who is to use it, a duty arises to use 
 ordinary care and skill as to the condition or manner of supplying such 
 thing. And for a neglect of such ordinary care or skill whereby injury 
 happens a legal liability arises to be enforced by an action for negli- 
 gence. This includes the case of goods, &c., supplied to be used im- 
 mediately by a particular person or persons or one of a class of per- 
 sons, where it would be obvious to the person supplying, if he thought, 
 that the goods would in all probability be used at once by such per- 
 sons before a reasonable opportunity for discovering any defect which 
 might exist, and where the thing supplied would be of such a nature 
 that a neglect of ordinary care or skill as to its condition or the man- 
 ner of supplying it would probably cause danger to the person or propn-
 
 Ch. 1) NEGLIGENCE 1059 
 
 erty of the person for whose use it was supplied, and who was about 
 to use it. It would exclude a case in which the goods are supplied un- 
 der circumstances in which it would be a chance by whom they would 
 be used or whether they would be used or not, or whether they would 
 be used before there would probably be means of observing any de- 
 fect, or where the goods would be of such a nature that a want of care 
 or skill as to their condition or the manner of supplying them would 
 not probably produce danger of injury to person or property. The 
 cases of vendor and purchaser and lender and hirer under contract 
 need not be considered, as the liability arises under the contract, and 
 not merely as a duty imposed by law, though it may not be useless to 
 observe that it seems difficult to import the implied obligation into the 
 contract except in cases in which if there were no contract between the 
 parties the law would according to the rule above stated imply the duty. 
 Examining the rule which has been above enunciated with the cases 
 which have been decided with regard to goods supplied for the pur- 
 pose of being used by persons with whom there is no contract, the first 
 case to be considered is inevitably Langridge v. Levy, 2 M. & W. 519. 
 It is not an easy case to act upon. It is not, it cannot be, accurately re- 
 ported ; the declaration is set out ; the evidence is assumed to be re- 
 ported ; the questions left to the jury are stated. And then it is said 
 that a motion was made to enter a nonsuit in pursuance of leave re- 
 served on particular grotmds. Those grounds do not raise the question 
 of fraud at all, but only the question of remoteness. And although 
 the question of fraud seems in a sense to have been left to the jury, 
 yet no question was, according to the report, left to them as to whether 
 the plaintiff acted on the faith of the fraudulent misrepresentation 
 which is, nevertheless, a necessary question in a case of fraudulent 
 misrepresentation. The report of the argument makes the object of 
 the argument depend entirely upon an assumed motion to arrest the 
 judgment, which raises always a discussion depending entirely on the 
 form of the declaration, and the eft'ect on it of a verdict, in respect of 
 which it is assumed that all questions were left to the jury. If this 
 was the point taken the report of the evidence and of the questions left 
 to the jury is idle! The case was decided on the ground of the fraud- 
 ulent misrepresentation as stated in the declaration. It is inferred that 
 the defendant intended the representation to be communicated to the 
 son. Why he should have such an intention in fact, it seems difficult 
 to understand. His immediate object must have been to induce the 
 father to buy and pay for the gun. It must have been wholly indiffer- 
 ent to him whether after the sale and payment the gun would be used 
 or not by the son. I cannot hesitate to say that, in my opinion, the 
 case is a wholly unsatisfactory case to act on as an authority. But tak- 
 ing the case to be decided on the ground of a fraudulent misrepresen- 
 tation made hypothetically to the son, and acted upon by him, such a 
 decision upon such a ground, in no way negatives the proposition that 
 the action might have been supported on the ground of negligence with-
 
 1060 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 out fraud. It seems to be a case which is within the proposition enun- 
 ciated in this judgment, and in which the action might have been sup- 
 ported without proof of actual fraud. And this seems to be the mean- 
 ing of Cleasby, B., in the observations he made on Langridge v. Levy, 
 supra, in the case of George v. Skivington, Law Rep. 5 Ex. 1, 5. In 
 that case the proposition laid down in this judgment is clearly adopted. 
 The ground of the decision is that the article was, to the knowledge of 
 the defendant, supplied for the use of the wife and for her immediate 
 use. And certainly, if he or any one in his position had thought at all, 
 it must have been obvious that a want of ordinary care or skill in pre- 
 paring the prescription sold, would endanger the personal safety of the 
 wife. 
 
 In Corby v. Hill, 4 C. B. (N. S.) 556, it is stated by the Lord Chief 
 Justice that an allurement was held out to the plaintiff. And Willes, J., 
 stated that the defendant had no right to set a trap for the plaintiff. 
 But in the form of declaration suggested by Willes, J., on page 567, 
 there is no mention of allurement, or invitation, or trap. The facts 
 suggested in that form are, "that the plaintiff had license to go on the 
 road, that he was in consequence accustomed and likely to pass along 
 it, that the defendant knew of that custom and probability, that the 
 defendant negligently placed slates in such a manner as to be likely to 
 prove dangerous to persons driving along the road, that the plaintiff 
 drove along the road, being by reason of the license lawfully on the 
 road, and that he was injured by the obstruction," It is impossible to 
 state a case more exactly within the proposition laid down in this judg- 
 ment. In Smith v. London and St. Katharine Docks Co., Law Rep. 
 3 C. P. 326, the phrase is again used of invitation to the plaintiff' by the 
 defendants. Again, let it be observed that there is no objection to the 
 phrase as applied to the case. But the real value of the phrase may 
 not improperly be said to be, that invitation imports knowledge by the 
 defendant of the probable use by the plaintiff of the article supplied, 
 and therefore carries with it the relation between the parties which es- 
 tablishes the duty. In Indermaur v. Dames, Law Rep. 1 C. P. 274, 
 reliance is again placed upon a supposed invitation of the plaintiff' by 
 the defendant. But again, it is hardly possible to state facts which 
 bring a case more completely within the definition of the present judg- 
 ment. In Winterbottom v. Wright, 10 M. & W. 109, it was held that 
 there was no duty cast upon the defendant with regard to the plaintiff. 
 The case was decided on what was equivalent to a general demurrer 
 to the declaration. And the declaration does not seem to shew that the 
 defendant, if he had thought about it, must have known, or ought to 
 have known, that the coach would be necessarily or probably driven 
 by the plaintiff, or by any class of which he could be said to be one, or 
 that it would be so driven within any time which would make it prob- 
 able that the defect would not be observed. The declaration relied too 
 much on contracts entered into with other persons than the plaintiff. 
 The facts alleged did not bring the case within the proposition herein
 
 Ch. 1) NEGLIGENCE 1061 
 
 enunciated. It was an attempt to establish a duty towards all the 
 world. The case was decided on the ground of remoteness. And it 
 is as to too great a remoteness that the observation of Lord Abinger 
 is pointed, when he says that the doctrine of Langridge v. Levy, supra, 
 is not to be extended. In Francis v. Cockrell, Law Rep. 5 O. B. 184, 
 at page 501, the decision is put by some of the judges on an implied 
 contract between the plaintiff and the defendant. But Cleasby, B. (page 
 515), puts it upon the duty raised by the knowledge of the defendant 
 that the stand was to be used immediately by persons of whom the 
 plaintiff was one. In other words he acts upon the rule above laid 
 down. In Collis v. Selden, Law Rep. 3 C. P. 495, it was held that the 
 declaration disclosed no duty. And obviously, the declaration was too 
 uncertain. There is nothing to shew that the defendant knew more of 
 the probability of the plaintiff rather than any other of the public be- 
 ing near the chandelier. There is nothing to shew that the plaintiff 
 was more likely to be in the public-house than any other member of 
 the public. There is nothing to shew how soon after the hanging of 
 the chandelier any one might be expected or permitted to enter the room 
 in which it was. The facts stated do not bring it within the rule. 
 There is an American case : Thomas and Wife, 6 N. Y. 397, 57 Am. 
 Dec. 455, cited in Mr. Horace Smith's Treatise on the Law, of Negli- 
 gence, p. 88, note (t), which goes a very long way. I doubt whether 
 it does not go too far. In Longmeid v. Holliday, 6 Ex. 761, a lamp 
 was sold to the plaintiff to be used by the wife. The jury were not 
 satisfied that the defendant knew of the defect in the lamp. If he did, 
 there was fraud ; if he did not, there seems to have been no evidence 
 of negligence. If there was fraud, the case was more than within rhe 
 rule. If there was no fraud, the case was not brought by other cir- 
 cumstances within the rule. In Gautret v. Egerton, Law Rep. 2 C. P. 
 371, at p. 374, the declaration was held by Willes, J., to be bad on de- 
 murrer, because it did not shew that the defendant had any reason to 
 suppose that persons going to the docks would not have ample means 
 of seeing the holes and cuttings relied on. He does not say there must 
 be fraud in order to support the action. He says there must be some- 
 thing like fraud. He says : "Every man is bound not wilfully to de- 
 ceive others." And then in the alternative, he says : "or to do any 
 act which may place them in danger." There seems to be no case in 
 conflict with the rule above deduced from well admitted cases. I am, 
 therefore, of opinion that it is a good, safe, and just rule. 
 
 I cannot conceive that if the facts were proved which would make 
 out the proposition I have enunciated, the law can be that there would 
 be no liability. Unless that be true, the proposition must be true. If 
 it be the rule the present case is clearly within it. This case is also, 
 I agree, within that which seems to me to be a minor proposition — 
 namely, the proposition which has been often acted upon, that there 
 was in a sense, an invitation of the plaintiff by the defendant, to use
 
 1062 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 the stage. The appeal must, in my opinion, be allowed, and judgment 
 must be entered for the plaintiff. 
 
 Cotton, L, J. Bowen, L. ]•, concurs in the judgment I am about 
 to read. 
 
 In this case the defendant was the owner of a dock for the repair 
 of ships, and provided for use in the dock the stages necessary to en- 
 able the outside of the ship to be painted while in the dock, and the 
 stages which were to be used only in the dock were appliances pro- 
 vided by the dock owner as appurtenant to the dock and its use. After 
 the stage was handed over to the shipowner it no longer remained un- 
 der the control of the dock owner. But when ships were received into 
 the dock for repair and provided with stages for the work on the ships 
 which was to be executed there, all those who came to the vessels for 
 the purpose of painting and otherwise repairing them were there for 
 business in which the dock owner was interested, and they, in my opin- 
 ion, must be considered as invited by the dock owner to use the dock 
 and all appliances provided by the dock owner as incident to the use 
 of the dock. To these persons, in my opinion, the dock owner was un- 
 der an obligation to take reasonable care that at the time the appliances 
 provided for immediate use in the dock were provided by him they 
 were in a fit state to be used — that is. in such a state as not to expose 
 those who might use them for the repair of the ship to any danger or 
 risk not necessarily incident to the service in which they are employed. 
 That this obligation exists as regards articles of which the control re- 
 mains with the dock owner was decided in Indermaur v. Dames, su- 
 pra, and in Smith v. London and St. Katharine Docks Co., supra, the 
 same principle was acted on. I think that the same duty must exist as 
 to things supplied by the dock owner for immediate use in the dock, 
 of which the control is not retained by the dock owner, to the extent 
 of using reasonable care as to the sta4;e of the articles when delivered 
 by him to the ship under repair for immediate use in relation to the 
 repairs. For any neglect of those having control of the ship and the 
 appliances he would not be liable, and to establish his liability it must 
 be proved that the defect which caused the accident existed at the time 
 when the article was supplied by the dock owner. * * * 
 
 This decides this appeal in favour of the plaintiflf, and I am unwill- 
 ing to concur with the Master of the Rolls in laying down unnecessa- 
 rily the larger principle which he entertains, inasmuch as there are 
 many cases in which the principle was impliedly negatived. 
 
 Take for instance the case of Langridge v. Levy, supra, to which 
 the principle if it existed would have applied. But the judges who de- 
 cided that case based their judgment on the fraudulent representation 
 made to the father of the plaintiff by the defendant. In other cases 
 where the decision has been referred to judges have treated fraud as 
 the ground of the decision, as was done by Coleridge, J., in Blackmore 
 V, Bristol and Exeter Ry. Co., supra; and in CoUis v. Selden, supra,
 
 Ch. 1) NEGLIGENCE 
 
 1063 
 
 W'illes, J., says that the judgment in Langridge v. Levy, supra, was 
 based on the fraud of the defendant. This impliedly negatives the ex- 
 istence of the larger general principle which is relied on, and the deci- 
 sions in Collis V. Selden, supra, and in Longmeid v. Holliday, supra 
 (in each of which the plaintiff failed), are in my opinion at variance 
 with the principle contended for. The case of George v. Skivington, 
 supra, and especially what is said by Cleasby, B., in giving judgment 
 in that case seem to support the existence of the general principle. But 
 it is not in terms laid down that any such principle exists, and that case 
 was decided by Cleasby, B., on the ground that the negligence of the 
 defendant which was his own personal negligence was equivalent, for 
 the purposes of. that action, to fraud on which (as he said) the decision 
 in Langridge v. Levy, supra, was based. 
 
 In declining to concur in laying down the principle enunciated by 
 the Master of the Rolls, I in no way intimate any doubt as to the prin- 
 ciple that any one who leaves a dangerous instrument, as a gun, in such 
 a way as to cause danger, or who without due warning supplies to 
 others for use an instnunent or thing which to his knowledge, from its 
 construction or otherwise, is in such a condition as to cause danger, 
 not necessarily incident to the use of such an instrument or thing, is 
 liable for injury caused to others by reason of his negligent act. 
 
 For the reasons stated I agree that the plaintiff is entitled to judg- 
 ment, though I do not entirely concur with the reasoning of the Master 
 of the Rolls. 
 
 Judgment reversed/^ 
 
 HUSET V. J. I. CASE THRESHING MACH. CO. ^ 
 
 (Circuit Court of Appeals of the United States, Eighth Circuit, 1903. 57 C. C. 5y/^^,^ 
 
 A. 237, 120 Fed. S65, 61 L. R. A. 303.) ^ ^ 
 
 In Error to the Circuit Court of the United States for the District JsJ ^ , 
 
 of Minnesota. This writ of error was sued out to reverse a judgment 
 
 sustaining a demurrer to the complaint in an action against the J. I. 
 
 Case Threshing Machine Company. These are the facts which the 
 
 complaint discloses : 
 
 The defendant was a corporation engaged in the manufacture and sale of 
 threshing rigs, which consisted of an engine, a separator, a band-cutter, and 
 self-feeder. The band-cutter and self-feeder consisted of a series of fast 
 revolving knives covered with a sheet-iron covering and a frame designed to 
 fit into the front of the separator in which the cylinder was located. The 
 cylinder was made of iron and steel about 48 inches in length and 20 inches 
 in diameter, set with rows of steel teeth and spikes projecting aliout two 
 inches, and so placed as to pass between similar teeth in a concave frame in 
 front of and under the cylinder. When the machine was in operation, this cyl- 
 inder revolved at a ver>- high rate of speed with great force, and threshed the 
 grain. The self-feeder and band-cutter was designed to be fastened to the sepa- 
 
 ' -•> The statement of facts is abridged and part of the opinion of Cotton, L. 
 J., is omitted.
 
 1064 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 rator, and its sheet-iron covering fitted onto the front of the separator just above 
 and over tlie front part of the cylinder so as to cover the cylinder completely. 
 The object and design of the defendant in placing this covering over the 
 cylinder was that it should be used by any person who might operate the ma- 
 chine to walk upon in passing from the top of the main part of the thresher 
 to the self-feeder. This sheet-iron covering was made without any support, 
 and was so pliable and easily bent that it was incapable of sustaining the 
 least weight, and would necessarily bend and collapse when subjected to the 
 weight of any man who might walk or step upon it. It was necessary for 
 the oiHjrator to walk over the covering of the cylinder in operating the ma- 
 chine. This machine, covered in this way, was imminently and necessaiily 
 dangei'ous to the life and limbs of those who operated it, and it was well 
 known to be thus dangerous by the defendant when it shipped the same and 
 supplied it to the purchasei", J. H. Pifer ; but this dangerous condition was 
 of such a nature as not to be readily discovered by persons engaged in operat- 
 ing the machine or working thereon, but was concealed, and thereby rendered 
 more dangerous still. On August 25, 1901, the defendant sold this thresh- 
 ing outfit to J. n. Pifer, who started to oi>erate it on the next day, and em- 
 ployed the plaintiff, O. S. Huset, as a laborer to assist him in running it. 
 It became the duty of the plaintiff to walk upon the top of the machine 
 over the cylinder while it was in operation in order to superintend the pitch- 
 ing of bundles into the self-feeder, to prevent its clogging, and to oil the bear- 
 ings of the parts of the cylinder and band-cutter. When he walked upon 
 the covering of the cylinder, this covering sank so as to come in contact with 
 tbe cylinder, and the plaintiff's right foot was caught thereby, and his foot 
 and leg were drawn into it and cinished to a point above the knee joint, 
 so that it was necessary to amputate the leg above the knee. 
 
 The demurrer to this complaint was upon the ground that the de- 
 fendant owed no duty to the plaintiff, who was a stranger to the trans- 
 action between the defendant, the manufacturer and vendor of the 
 threshing machine, and the vendee Pifer, The court sustained the 
 demurrer and dismissed the action. 
 
 Sanborn, Circuit Judge (after stating the case). Is a manufacturer 
 or vendor of an article or machine which he knows, when he sells it, to 
 be iifiminently dangerous, by reason of a concealed defect therein, to 
 the life and limbs of any one who shall use it for the purpose for 
 which it was made and intended, liable to a stranger to the contract 
 of sale for an injury which he sustains from the concealed defect while 
 he is lawfully applying the article or machine to its intended use? 
 
 The argument of this question has traversed the whole field in 
 which the liability of contractors, manufacturers, and vendors to stran- 
 gers to their contracts for negligence in the construction or sale of 
 their articles has been contested. The decisions which have been cited 
 are not entirely harmonious, and it is impossible to reconcile all of 
 them with any established rule of law. And yet the underlying prin- 
 ciple of the law of negligence, that it is the duty of every one to so 
 act himself and to so use his property as to do no unnecessary damage 
 to his neighbors, leads us. fairly through the maze. With this funda- 
 mental principle in mind, if we contemplate the familiar rules that 
 every one is liable for the natural and probable eft'ects of his acts ; 
 that negligence is a breach of a duty; that an injury that is the natural 
 and probable consequence of an act of negligence is actionable, while 
 one that could not have been foreseen or reasonably anticipated as the
 
 Ch. 1) NEGLIGENCE 1065 
 
 probable effect of such an act is not actionable, because the act of neg- 
 ligence in such a case is the remote, and not the proximate, cause of the 
 injury; and that, for the same reason, an injury is not actionable which 
 would not have resulted from an act of negligence except from the 
 interposition of an independent cause (Chicago, St. Paul, Minneapolis 
 & Omaha R. Co. v. Elliott, 55 Fed. 949, 5 C. C. A. 347, 20 L. R. A. 
 582) — nearly all the decisions upon this subject range themselves along 
 symmetrical lines,. and establish rational rules of the law of negligence 
 consistent with the basic principles upon which it rests. 
 
 Actions for negligence are for breaches of duty. Actions on con- 
 tracts are for breaches of agreements. Hence the limits of Hability 
 for negligence are not the limits of liability for breaches of contracts, 
 and actions for negligence often accrue where actions upon contracts 
 do not arise, and vice versa. It is a rational and fair deduction from 
 the rules to which brief reference has been made that one who makes 
 or sells a machine, a building, a tool, or an article of merchandise de- 
 signed and fitted for a specific use is liable to the person who, in the 
 natural course of events, uses it for the purpose for which it was made 
 or sold, for an injury which is the natural and probable consequence of 
 the negligence of the manufacturer or vendor in its construction or 
 sale. But when a contractor builds a house or a bridge, or a manufac- 
 turer constructs a car or a carriage, for the owner thereof, under a spe- 
 cial contract with him, an injury to any other person than the owner 
 for whom the article is built and to whom it is delivered cannot ordi- 
 narily be foreseen or reasonably anticipated as the probable result of 
 the negligence in its construction. So, when a manufacturer sells arti- 
 cles to the wholesale or retail dealers, or to those who are to use them, 
 injury to third persons is not generally the natural or probable effect 
 of negligence in their manufacture, because (1) such a result cannot 
 ordinarily be reasonably anticipated, and because (2) an independent 
 cause — the responsible human agency of the purchaser — without which 
 the injury to the third person would not occur, intervenes, and, as 
 Wharton says, "insulates" the negligence of the manufacturer from 
 the injury to the third person. Wharton on Law of Negligence (2d 
 Ed.) § 134. For the reason that in the cases of the character which 
 have been mentioned the natural and probable effect of the negli- 
 gence of the contractor or manufacturer will generally be limited 
 to the party for whom the article is constructed, or to whom it is sold, 
 and, perhaps more than all this, for the reason that a wise and con- 
 servative public policy has impressed the courts with the view that there 
 must be a fixed and definite limitation to the liability of manufactur- 
 ers and vendors for negligence in the construction and sale of compli- 
 cated machines and structures which are to be operated or used by the 
 intelligent and the ignorant, the skillful and the incompetent, the watch- 
 ful and the careless, parties that cannot be known to the manufacturers 
 or vendors, and who use the articles all over the country hundreds of 
 miles distant from the place of their manufacture or original sale,
 
 1006 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 a general rule has been adopted and has become established by re- 
 peated decisions of the courts of England and of this country that in 
 these cases the liability of the contractor or manufacturer for negli- 
 gence in the construction or sale of the articles which he makes or 
 vends is limited to the persons to whom he is liable under his contracts 
 of construction or sale. The limits of the liability for negligence and 
 for breaches of contract in cases oi this character are held to be iden- 
 tical. The general rule is that a contractor, manufacturer, or vendor 
 is not liable to third parties who have no contractual relations with 
 him for negligence in the construction, manufacture, or sale of the 
 articles he handles. Winterbottom v. Wright, 10 M. & W. 109; Long- 
 mcid V. Holliday, 6 Exch. 76+, 765 ; Blakemore v. Ry. Co., 8 El. & Bl. 
 1035; Collis V. Selden, L. R. 3 C. P. 495, 497; Bank v. Ward, 100 U. 
 S. 195, 204, 25 L. Ed. 621 ; Bragdon v. Perkins-Campbell Co., 87 Fed. 
 109, 30 C. C. A. 567, 66 L. R. A. 924; Goodlander v. Standard Oil Co., 
 63 Fed. 400, 406, 11 C. C. A. 253, 259, 27 L. R. A. 583 ; Loop v. Litch- 
 field, 42 N. Y. 351, 359, 1 Am. Rep. 513 ; Losee v. Clute, 51 N. Y. 494, 
 
 10 Am. Rep. 638; Curtin v. Somerset, 140 Pa. 70, 21 Atl. 244, 12 L. R. 
 A. 322, 23 Am. St. Rep. 220; Heizer v. Kingsland & Douglass ^Ifg. Co., 
 110 Mo. 605, 615, 617, 19 S. W. 630, 15 L. R. A. 821, 33 Am. St. Rep. 
 482 ; Daugherty v. Herzog, 145 Ind. 255, 44 N. E. 457, 32 L. R. A. 837, 
 57 Am. St. Rep. 204; Burke v. De Castro, 11 Hun (N. Y.) 354; Swan 
 V. Jackson, 55 Hun, 194, 7 N. Y. Supp. 821; Barrett v. Mfg. Co., 31 
 N. Y. Super. Ct. 545 ; Carter v. Harden, 78 Me. 528, 7 Atl. 392 ; ^Ic- 
 Cafifrey v. Mfg. Co., 23 R. L 381, 50 Atl. 651, 55 L. R. A. 822, 91 Am. 
 St. Rep. 637 ; IMarvin Safe Co. v. Ward, 46 N. J. Law, 19 ; Burdick 
 V. Cheadle, 26 Ohio St. 393, 20 Am. Rep. 767 ; Davidson v. Nichols, 
 
 11 Allen (Mass.) 514; J. L Case Plow Works v. Niles & Scott Co., 90 
 Wis. 590, 63 N. W. 1013. 
 
 In these cases third parties, without any fault on their part, were 
 injured by the negligence of the manufacturer, vendor, or furnisher 
 of the following articles, while the parties thus injured were innocently 
 using them for the purposes for which they were made or furnished, 
 and the courts held that there could be no recovery, because the mak- 
 ers, vendors, or furnishers owed no duty to strangers to their contracts 
 of construction, sale, or furnishing: A stagecoach, Winterbottom v. 
 Wright, 10 M. & W. 109; a leaky lamp, Longmeid v. Plolliday, 6 
 Exch. 764, 765 ; a defective chain furnished one to lead stone, Blake- 
 more V. Ry. Co., 8 El. & Bl. 1035 ; an improperly hung chandelier, 
 Collis v. Selden, L. R. 3 C. P. 495, 497; an attorney's certificate of 
 title. Bank v. Ward, 100 U. S. 195, 204, 25 L. Ed. 621 ; a defective 
 valve in an oil car, Goodlander v. Standard Oil Co., 63 Fed. 401, 406, 
 11 C. C. A. 253, 259, 27 L. R. A. 583 ; a porch on a hotel, Curtin v. 
 Somerset, 140 Pa. 70, 21 Atl. 244, 12 L. R. A. 322, 23 Am. St. Rep. 
 220; a defective side saddle, Bragdon v. Perkins-Campbell Co., 87 
 Fed. 109, 30 C. C. A. 567, 66 L. R. A. 924; a defective rim in a bal- 
 ance wheel, Loop v. Litchfield, 42 N. Y. 351, 359, 1 Am. Rep. 513; a
 
 Ch. 1) NEGLIGENCE 1007 
 
 defective boiler, Losee v. Clute, 51 N. Y. 494, 10 Am. Rep. 638; a de- 
 fective cylinder in a threshing machine, Heizer v. Kingsland & Doug- 
 lass Mfg. Co., 110 Mo. 605, 615, 617, 19 S. W. 630, 15 L. R. A. 821, 
 33 Am. St. Rep. 4^1 ; a defective wall which fell on a pedestrian, 
 Daugherty v. Herzog, 145 Ind. 255, 44 N. E. 457, 32 L. R. A. 837, 57 
 Am. St. Rep. 204; a defective rope on a derrick, Burke v. Refining 
 Co., 11 Hun (X. Y.) 354; a defective shelf for a workman to stand 
 upon in placing ice in a box, Swan v. Jackson, 55 Hun, 194, 7 N. Y. 
 Supp. 821 ; a defective hoisting rope of an elevator, Barrett v. Mfg. 
 Co., 31 N. Y. Super. Ct. 545; a runaway horse, Carter v. Harden, 78 
 Me. 528, 7 Atl. 392 ; a defective hook holding a heavy weight in a drop 
 press, McCaffrey v. Mfg. Co., 23 R. I. 381, 50 Atl. 651, 55 L. R. A. 
 822; a defective bridge, Marvin Safe Co. v. Ward, 46 N. J. Law, 19; 
 shelves in a dry goods store, whose fall injured a customer, Burdick 
 V. Cheadle, 26 Ohio St. 393, 20 Am. Rep. 767; a staging erected by a 
 contractor for the use of his employes, Maguire v. Magee (Pa.) 13 
 Atl. 551; defective wheels, T- I. Case Plow Works v. Niles & Scott 
 Co., 90 Wis. 590, 63 N. W. 1013. 
 
 In the leading case of Winterbottom v. Wright this rule is placed 
 upon the ground of public policy, upon the ground that there would 
 be no end of litigation if contractors and manufacturers were to be 
 held liable to third persons for every act of negligence in the construc- 
 tion of the articles or machines they make after the parties to whom 
 they have sold them have received and accepted them. In that case 
 the defendant had made a contract with the Postmaster General to 
 provide and keep in repair the stagecoach used to convey the mail from 
 Hartford to Holyhead. The coach broke down, overturned, and in- 
 jured the driver, who sued the contractor for the injury resulting from 
 his negligence. Lord Abinger, C. B., said: "There is no privity of 
 contract between these parties ; and, if the plaintiff can sue, every 
 passenger, or even any person passing along the road, who was injured 
 by the upsetting of the coach, might .bring a similar action. Unless 
 we confine the operation of such contracts as this to the parties who 
 entered into them, the most absurd and outrageous consequences, to 
 which I can see no limit, would ensue." Baron Alderson said : "I am 
 of the same opinion. The contract in this case was made with the 
 Postmaster General alone; and the case is just the same as if he had 
 come to the defendant and ordered a carriage, and handed it at once 
 over to Atkinson. If we were to hold that the plaintiff could sue in 
 such a case, there is no point at which such actions would stop. The 
 only safe rule is to confine the right to recover to those who enter into 
 the contract. If we go one step beyond that, there is no reason why 
 we should not go fifty." 
 
 The views expressed by the judges in this case have prevailed in 
 England and in the United States, with the exception of two decisions 
 which are in conflict with the leading case and with all the decisions to 
 which reference has been made. Those cases are Devlin v. Smith,
 
 1068 TOUTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 89 N. Y. 470, 42 Am. Rep. 311, in which Smith, a painter, employed 
 Stevenson, a contractor, to build a scafifold 90 feet in height, for the ex- 
 press purpose of enabling the painter's workmen to stand upon it to 
 paint the interior of the dome of a building, and the Court of Appeals 
 of New York held that Stevenson was liable to a workman of Smith, 
 the painter, who was injured by a fall, caused by the negligence of 
 Stevenson in the construction of the scaffold upon which he was work- 
 ing; and Schubert v. J. R. Clark Co., 49 Minn. 331, 51 N. W. 1103, 
 15 L. R. A. 818, 32 Am. St. Rep. 559, in which a painter purchased of 
 a manufacturer a stepladder, and one of the painter's employes, who 
 was injured by the breaking of a step caused by the negligence of the 
 manufacturer, was permitted to recover of the latter for the injuries 
 he had sustained. The decision in Devlin v. Smith may, perhaps, be 
 sustained on the ground that the workmen of Smith were the real 
 parties in interest in the contract, since Stevenson was employed and 
 expressly agreed to construct the scaffold for their use. But the case 
 of Schubert v. J. R. Clark Co. is in direct conflict with the side saddle 
 case, Bragdon v. Perkins-Campbell Co., 87 Fed. 109, 30 C. C. A. 567, 
 66 L. R. A. 924; the porch case, Curtin v. Somerset, 140 Pa. 70, 21 
 Atl. 244, 12 L. R. A. 322, 23 Am. S't. Rep. 220; the defective cylinder 
 case, Heizer v. Kingsland & Douglass Mfg. Co., 110 Mo. 617, 19 S'. W. 
 630, 15 L. R. A. 821, 33 Am. St. Rep. 481; the defective hook case, 
 McCaffrey v. Mfg. Co., 23 R. I. 381, 50 Atl. 651, 55 L. R. A. 822; 
 and with the general rule upon which all these cases stand. 
 
 It is, perhaps, more remarkable that the' current of decisions 
 throughout all the courts of England and the United States should be 
 so uniform and conclusive in support of this rule, and that there 
 should, in the multitude of opinions, be but one or two in conflict with 
 it, than it is that such sporadic cases should be found. They are in- 
 sufficient in themselves, or in the reasoning they contain, to overthrow 
 or shake the established rule which prevails throughout the English 
 speaking nations. 
 
 But while this general rule is both established and settled, there 
 are, as is usually the case, exceptions to it as well defined and settled 
 as the rule itself. There are three exceptions to this rule. 
 
 The first is that an act of negligence of a manufacturer or vendor 
 which is imminently dangerous to the life or health of mankind, and 
 which is committed in the preparation or sale of an article intended to 
 preserve, destroy, or affect human life, is actionable by third parties 
 who suffer from the negligence. Dixon v. Bell, 5 Maule & Sel. 198; 
 Thomas v. Winchester, 6 N. Y. 397, 57 Am. Dec. 455; Norton v. 
 Sewall, 106 Mass. 143, 8 Am. Rep. 298 ; Elkins v. McKean, 79 Pa. 
 493, 502; Bishop v. Weber, 139 Mass. 411, 1 N. E. 154, 52 Am. Rep. 
 715; Peters v. Johnson, 50 W. Va. 644, 41 S. E. 190, 191, 57 L. R. A. 
 428, 88 Am. St. Rep. 909. The leading case upon this subject is 
 Thomas v. Winchester, 6 N. Y. 397, 57 Am. Dec. 455. A dealer in 
 drugs sold to a druggist a jar of belladonna, a deadly poison, and
 
 Ch. 1) NEGLIGENCE 1069 
 
 labeled it "Extract of Dandelion." The druggist filled a prescription 
 of extract of dandelion, prepared by a physician for his patient. The 
 patient took the prescription thus filled, and recovered of the whole- 
 sale dealer for the injuries she sustained. In Norton v. Sewall, 106 
 Mass. 143, 8 Am. Rep. 298, a recover^' was had by a third party for 
 the sale of laudanum as rhubarb ; in Bishop v. Weber, for the furnish- 
 ing of poisonous food for wholesome food ; in Peters v. Johnson, for 
 the sale of saltpetre for epsom salts ; and in Dixon v. Bell, for placing a 
 loaded gun in the hands of a child. In all these cases of sale the 
 natural and probable result of the act of negligence — nay, the in- 
 evitable result of it — was not an injury to the party to whom the sales 
 were made, but to those who, after the purchasers had disposed of the 
 articles, should consume them. Hence these cases stand upon two 
 well-established principles of law : (1) That every one is bound to avoid 
 acts or omissions imminently dangerous to the lives of others, and (2) 
 that an injury which is the natural and probable result of an act of 
 negligence is actionable. It was the natural and probable result of the 
 negligence in these cases that the vendees would not suffer, but that 
 those who subsequently purchased the deleterious articles would sus- 
 tain the injuries resulting from the negligence of the manufacturers 
 or dealers who furnished them. 
 
 The second exception is that an owner's act of negligence which 
 causes injury to one who is invited by him to use his defective appli- 
 ance upon the owner's premises may form the basis of an action 
 against the owner. Coughtry v. Globe Woolen Co., 56 N. Y. 124, 
 15 Am. Rep. 387; Bright v. Barnett & Record Co., 88 Wis. 299, 60 
 N. W. 418, 420, 26 L. R. A. 524; Heaven v. Pender, L. R. 11 Q. B. 
 Div. 503; Roddy v. Railway Co., 104 Mo. 234, 241, 15 S'. W. 1112, 12 
 L. R. A. 746, 24 Am. St. Rep. 333. In Coughtry v. Globe Woolen Co., 
 56 N. Y. 124, 15 Am. Rep. 387, the owner of a building employed 
 Osborn & Martin to construct a cornice, and agreed with them to 
 furnish a scaffold upon which their men could perform the work. He 
 furnished the scaffold, and one of the employes of the contractors 
 was injured by the negligence of the owner in constructing the scaf- 
 fold. The court held that the act of the owner was an implied invita- 
 tion to the employes of Osborn & Martin to use the scaffold, and im- 
 posed upon him a liability for negligence in its erection. The other 
 cases cited to this exception are of a similar character. 
 
 The third exception to the rule is that one who sells or delivers an 
 article which he knows to be imminently dangerous to life or limb to 
 another without notice of its qualities is liable to any person who suf- 
 fers an injury therefrom which might have been reasonably anticipated, 
 whether there were any contractual relations between the parties or 
 not. Langridge v. Levy, 2 M. & W. 519, 4 M. & W. Z2>7 ; Wellington 
 V. Oil Co., 104 Mass. 64, 67; Lewis v. Terry, 111 Cal. 39, 43 Pac. 398, 
 31 L. R. A. 220, 52 Am. St. Rep. 146. In Langridge v. Levy, 2 M. & 
 W. 519, a dealer sold a gtin to the father for the use of the son, and
 
 1070 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 represented that it was a safe gun, and made by one Nock. It was not 
 made by Nock, was a defective gun, and when the son discharged it, 
 it exploded and injured him. The son was permitted to recoA^er, be- 
 cause the defendant had knowingly sold the gun to the father for the 
 purpose of being used by the plaintiff by loading and discharging it, 
 and had knowingly made a false warranty that this might be safely 
 done, and the plaintiff, on the faith of that warranty, and believing it 
 to be true, had used the gun, and sustained the damages. The court 
 said in conclusion : "W'e therefore think that, as there is fraud, and 
 damage, the result of that fraud, not from an act remote and conse- 
 quential, but one contemplated by the defendant at the time as one of 
 its results, the party guilty of the fraud is responsible to the party in- 
 jured." This case was affirmed in 4 M. & W. 337, on the ground that 
 the sale of the gun to the father for the use of the son with the knowl- 
 edge that it was not as represented was a fraud, which entitled the son 
 to recover the damages he had sustained. 
 
 In Wellington v. Oil Co., the defendants knowingly sold to one 
 Chase, a retail- dealer, to be sold by him to his customers as oil, naph- 
 tha, a dangerous and explosive liquid. Chase sold the naphtha as oil, 
 the plaintiif used it in a lamp for illuminating purposes, it ignited and 
 exploded, and he recovered of the wholesale dealer. Judge Gray, later 
 Mr. Justice Gray of the Supreme Court, said : "It is well settled that 
 a man who delivers an article, which he knows to be dangerous or nox- 
 ious, to another person, without notice of its nature and qualities, is 
 liable for an injury which may reasonably be contemplated as likely 
 to result, and which does in fact result, therefrom, to that person or 
 any other, who is not himself in fault. Thus a person who delivers a 
 carboy, which he knows to contain nitric acid, to a carrier, without in- 
 forming him of the nature of its contents, is liable for an injury oc- 
 casioned by the leaking out of the acid upon another carrier, to whom 
 it is delivered by the first in the ordinary course of business, to be car- 
 ried to its destination. Farrant v. Barnes, 11 C. B. (N. S.) 553. So a 
 chemist who sells a bottle of liquid, made up of ingredients known 
 only to himself, representing it to be fit to be used for washing the hair, 
 and knowing that it is to be used by the purchaser's wife, is liable for 
 an injury occasioned to her by using it for washing her hair, George 
 V. Skivington, Law Rep. 5 Ex. 1." 
 
 In Lewis v. Terry, 111 Cal. 39, 43 Pac. 398, 31 L. R. A. 220, 52 Am. 
 St. Rep. 146, a dealer, knowing a folding bed to be defective and un- 
 safe, sold it to a Mr. Apperson without informing him of the fact. 
 His wife suffered a broken arm and other severe injuries from the neg- 
 ligence of the dealer in the sale of the bed, and recovered of him the 
 damages she sustained. 
 
 The Supreme Court of Missouri, in Ilcizer v. Kingsland & Doug- 
 lass Mfg. Co., in which they held that llic manufacturer was not liable 
 to a third person for negligence in the construction of the cylinder 
 of a threshing machine, which burst and injured him, said: "Had the
 
 Ch. 1) NEGLIGENCE 1071 
 
 defendant sold this machine to ElHs, knowing that the cyclinder was 
 defective, and for that reason dangerous, without informing him of the 
 defect, then the defendant would be liable even to third persons not 
 themselves in fault. Shearman & Redfield on Negligence (4th Ed.) 
 § 117."_ 
 
 Turning now to the case in hand, it is no longer difficult to dis- 
 pose of it. The allegations of the complaint are that the defendant pre- 
 pared a covering for the cylinder of the threshing machine, which 
 was customarily and necessarily used by those who operated it to walk 
 upon, and which was so incapable of sustaining the least weight that 
 it would bend and collapse whenever any one stepped upon it; that it 
 concealed this defective and dangerous condition of the threshing rig 
 so that it could not be readily discovered by persons engaged in oper- 
 ating or working upon it ; that it knew that the machine was in this 
 imminently dangerous condition when it shipped and supplied it to the 
 employer of the plaintiff; and that the plaintiff has sustained serious 
 injury through this defect in its construction. The case falls fairly 
 within the third exception. It portrays a negligence imminently dan- 
 gerous to the lives, and limbs of those who should use the machine, a 
 machine imminently dangerous to the lives and limbs of all who should 
 undertake to operate it, a concealment of this dangerous condition, a 
 knowledge of the defendant when it vis shipped and supplied to the 
 employer of the plaintiff that the rig was imminently dangerous to all 
 who should use it for the purpose for which it was made and sold, and 
 consequent damage to the plaintiff. It falls directly within the rule 
 stated by Mr. Justice Gray that when one delivers an article, which he 
 knows to be dangerous to another person, without notice of its nature 
 and qualities, he is liable for an injury which may be reasonably con- 
 templated as likely to result, and which does in fact result therefrom, 
 to that person or to any other who is not himself in fault. The natur- 
 al, probable, and inevitable result of the negligence portrayed by this 
 complaint in delivering this machine when it was known to be in a 
 condition so imminently dangerous to the lives and limbs of those who 
 should undertake to use it for the purpose for which it was construct- 
 ed was the death, or loss of one or more of the limbs, of some of the 
 operators. It is perhaps improbable that the defendant was possessed 
 of the knowledge of the imminently dangerous character of this thresh- 
 ing machine when it delivered it, and that upon the trial of the case it 
 will be found to fall under the general rule which has been announced 
 in an earlier part of this opinion. But upon the facts alleged in this 
 complaint, the act of delivering it to the purchaser with a knowledge 
 and a concealment of its dangerous condition was so flagrant a disre- 
 gard of the rule tliat one is bound to avoid any act imminently danger- 
 ous to the lives and health of his fellows that it forms the basis of a 
 good cause of action in favor of any one who sustained injury there- 
 from.
 
 1072 TOUTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 The judgment of the Circuit Court must be reversed, and the cause 
 must be remanded to the court below for further proceedings not in- 
 consistent with tlie views expressed in this opinion. 
 
 EARL V. LUBBOCK. 
 (In the Court of Appeal. [1905] IK. B. 253.) 
 
 Appeal from the judgment of a Divisional Court affirming an order 
 of the judge of the Lambeth County Court. 
 
 The action was brought in the county court to recover damages for 
 personal injuries sustained by the plaintiff, and alleged to be due to 
 the negligence of the defendant. The plaintiff was a driver in the 
 employment of a firm who owned a number of vans. The defendant 
 was a master wheelwright, and he entered into a contract with the firm 
 to keep their vans in good and substantial repair. In pursuance 
 of his contract the defendant sent his men frequently to the premises 
 of the firm to examine into the condition of the vans and to do the 
 necessary repairs. On one occasion, upon the complaint of the plain- 
 tiff that the van he drove ran heavily, one of the defendant's men 
 took off the wheel and oiled and replaced it, but, being unable to re- 
 place the cap of the axle, he nailed a piece of zinc over the box of the 
 wheel to keep the cap from falling oft'. A fortnight later the wheel 
 was again attended to by one of the defendant's men. After this 
 had been done and on the same day the plaintiff' while driving the van 
 was thrown to the ground by reason of the wheel coming off, and he 
 sustained the injuries in respect of which he sued. The allegation in 
 the particulars of claim was that the defendant's man negligently 
 failed to properly inspect the wheel and repair its defective condition, 
 and that the repairs to the wheel were done in a negligent and un- 
 skillful manner, whereby the accident to the plaintiff happened. The 
 action was tried before the judge and a jury, and at the close of the 
 plaintiff's case it was submitted that there was no evidence of neg- 
 ligence on the part of the defendant, and that even if there was evidence 
 of negligence the defendant was not liable in the action as he owed 
 no duty to the plaintiff, his only duty being to the firm with whom 
 he had contracted. Upon this latter ground the county court judge 
 entered judgment for the defendant. 
 
 The plaintiff appealed, and a Divisional Court, consisting of Lord 
 Alverstone, C. J., Wills, J., and Kennedy, J., afiirmed the decision of 
 the county court judge. 
 
 The plaintiff appealed. 
 
 Arthur Powell, K. C, and W. M. Thompson, for the plaintiff. The 
 case for the plaintiff does not rest upon contract or upon negligence 
 of omission, but on the negligence of the defendant in an act done by
 
 Ch. 1) NEGLIGENCE 1073 
 
 his servant in the course of his employment. * * * This case 
 comes within the conditions as to liability stated by Cotton, L. J., and 
 agreed to by Bowen, L. J., in Heaven v. Pender (1883) 11 Q. B. D. 
 503, and it is not necessary to rely on the broader view taken by Lord 
 Esher, M. R., in that case, though that would certainly cover the 
 present case. * * * 
 
 Collins, M. r_ * * * jj-, j^-,y opinion this case is concluded 
 by the authority of Winterbottom v. Wright, 10 M. & W. 109, the 
 circumstances of which are indistinguishable from those of the present 
 case, and that decision, since the year 1842, in which it was given, has 
 stood the test of repeated discussion. Under these circumstances it 
 would, in my opinion, be a waste of time to go through the numerous 
 cases that have been cited, for the principles laid down by Lord 
 Abinger, C. B., in the case that I have mentioned appear to me to be 
 based upon sound reasoning, and to be conclusive in this case.''" 
 * * * In my judgment no question arises here as to the delivery 
 of a dangerous thing, which is one of the circumstances that can give 
 rise to a cause of action in a person who is not a party to the contract. 
 Such a case is dealt with by Parke, B., in delivering the judgment of 
 the Court of Exchequer in Longmeid v. Holliday, 6 Ex. 761, at page 
 767, thus : "And i^ may be the same" — that is, responsibility may arise 
 — "when anyone delivers to another without notice an instrument in its 
 nature dangerous, or under particular circumstances, as a loaded gun 
 which he himself loaded, and that other person to whom it is de- 
 livered is injured thereby, or if he places it in a situation easily acces- 
 sible to a third person, who sustains damage from it. A very strong 
 case to that effect is Dixon v. Bell (1816) 5 M. & S. 198. But it would 
 be going too far to say that so much care is required in the ordinary 
 intercourse of life between one individual and another, that if a 
 machine not in its nature dangerous — a carriage, for instance — but 
 which might become so by a latent defect entirely unknown, although 
 discoverable by the exercise of ordinary care, should be lent or given 
 by one person, even by the person who manufactured it, to another 
 the former should be answerable to the latter for a subsequent dam- 
 age accruing by the use of it." Here there is the case of a carriage 
 which, so far as the evidence goes, was not visibly out of repair. Ap- 
 parently the wheel required oiling, and for that purpose the cap was 
 removed, and, as it was defective, a piece of zinc was nailed onto the 
 wheel. That had nothing to do with the accident, but was done to 
 supply a better means of oiling the wheel ; and, in my opinion, the 
 van cannot fall within the category of dangerous articles to which 
 Parke, B., alludes. 
 
 7 6 The learned Master of the Rolls here quoted the remarks of Lord 
 Abinger, C. B., in Winterbottom v. Wright (see ante, p. 1048), as showing the 
 view talien by the Court and laying down a principle which was conclusive 
 in the case at bar. 
 
 Hepb.Tobts — 68
 
 1074 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 One other ground was suggested upon which the defendant might 
 be held to be Hable. That is the principle affirmed in Heaven v. Pen- 
 der, 11 Q. B. D. 503, that where a person having a common interest 
 with another invites that person to use certain premises or chattels, 
 the person so inviting incurs a responsibility with regard to the condi- 
 tion of the premises or of the chattels, as the case may be. Nothing of 
 that kind can be set up in this case. It was hardly contended that 
 such considerations were applicable to this case ; but it was said that 
 it came within the dictum enunciated by Lord Esher in his judgment, 
 as to the duty to use ordinary care and skill to avoid a danger to 
 another that a person of ordinary sense would recognize as likely to 
 arise if he did not use that ordinary care and skill in his own conduct. 
 That, however, was not a decision of the Court, and it was subsequent- 
 ly qualified and explained by Lord Esher himself. See Le Lievre v. 
 Gould, [1893] 1 O. B. 49L at page 497. I have pointed out what was 
 the judgment of the Court, and the plaintiff has entirely failed to 
 bring his case within the principle of that judgment, and this appeal 
 must fail. 
 
 Stirling, L. J. I am of the same opinion. In order to succeed 
 in this action the plaintiff must bring his case within the proposition 
 enunciated by Cotton, L. J., and agreed to by Bowen, L. J., in Heaven 
 V. Pender, 11 O. B. D. 503, at page 517, to the effect that "any one 
 who leaves a dangerous instrument, as a gun, in such a way as to 
 cause danger, or who without due warning supplies to others for use 
 an instrument or thing which to his knowledge, from its construction 
 or otherwise, is in such a condition as to cause danger, not necessarily 
 incident to the use of such an instrument or thing, is liable for injury 
 caused to others by reason of his negligent act." That passage 
 was cited to the county court judge, and was relied on in this Court 
 by counsel for the plaintiff. As to the first part of that proposition, 
 with regard to a dangerous instrument, I take it that the reference 
 is to a thing dangerous in itself, and that is shewn by the illustration 
 that is given, and also by what is stated in the second part of the prop- 
 osition which treats of an instrument or thing in such a condition as 
 to cause danger, not necessarily incident to its use. I think, therefore, 
 that the van which the plaintiff was driving does not fall within the 
 first branch of the sentence that I have quoted, and that to succeed 
 the plaintiff must bring the case within the second part. In that case 
 he must adduce evidence to shew that to the knowledge of the de- 
 fendant the van was in such a condition as to cause danger, not neces- 
 sarily incident to its use. It appears to me that the plaintiff was not in 
 a position to do this, and consequently he failed in establishing the 
 liability of the defendant, and this appeal must be dismissed. 
 
 Mathew, L. J. I am of the same opinion. The argument of 
 counsel for the plaintiff was that the defendant's servants had been 
 negligent in the performance of the contract with the owners of the 
 van, and that it followed as a matter of law that anyone in their em-
 
 Ch. 1) NEGLIGENCE 1075 
 
 ployment, or, indeed, anyone else who sustained an injury traceable 
 to that negligence, had a cause of action against the defendant. It 
 is impossible to accept such a wide proposition, and, indeed, it is 
 difficult to see how, if it were the law, trade could be carried on. No 
 prudent man would contract to make or repair what the employer 
 intended to permit others to use in the way of his trade. There was 
 in this case no evidence before the learned county court judge that 
 this van was in a state that made the defendant liable under any of 
 the conditions of liability that have been laid down in the cases to 
 which reference has been made. Further, there was no evidence that 
 the plaintiff was invited by the defendant to use the van. I concur in 
 thinking that the appeal must be dismissed. 
 Appeal dismissed. 
 
 BATES V. BATEY & CO., Limited. 
 (King's Bench Division. [191.3] 3 K. B. 351.) 
 
 The defendants manufactured ginger beer, which they put into 
 bottles bought from another firm. They sold this bottled ginger beer 
 to a shopkeeper from whom the plaintiff, a twelve year old boy, bought 
 one bottle. Because of a defect in the bottle it burst when the plain- 
 tiff' was opening it, and injured him so seriously that he lost the 
 sight of one eye. 
 
 The plaintiff claims that his injury was caused by negligence on 
 the part of the defendants in that it was their duty to take care that 
 the bottle of ginger beer sent out by them for sale should be fit and 
 proper and safe to be handled by a person opening it, and that they ' 
 had sent the bottle out in such a defective condition that it was not 
 strong enough for its purpose. 
 
 The jur>' found (1) that there was a defect in the bottle, which 
 defect caused the accident; (2) that the defect was not a latent defect 
 which could not have been discovered by the exercise of reasonable 
 care and skill ; and (3) that the defect was owing to the negligence of 
 the defendants. The damages for the injury to the boy were assessed 
 at £275. 
 
 It was agreed that, upon further consideration, the learned judge 
 should draw any further inferences of fact. He held that a bottle of gin- 
 ger beer was not in itself a dangerous thing, and that, even if it was, the 
 shopkeeper must have known that it was a dangerous thing; that the 
 bottle of ginger beer, inasmuch as the bottle was defective, was a 
 dangerous thing ; but that the defendants did not know of the defect 
 although by the exercise of reasonable care they could have discov- 
 ered it. 
 
 HoRRiDGE, J. * * * The law on this question is to be found 
 in the judgment of Parke, B., in Longmeid v. Holliday (1851) 6 Ex. 
 761, 768. where he says : "But it would be going much too far to say
 
 1076 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 that SO much care is required in the ordinary intercourse of life be- 
 tween one individual and another that if a machine, not in its nature 
 dangerous, a carriage for instance, but which might become so by a 
 latent defect entirely unknown, although discoverable by the exercise 
 of ordinary care, should be lent or given by one person, even by the 
 person who manufactured it, to another, the former should be an- 
 swerable to the latter for a subsequent damage accruing by the use 
 of it." This passage is quoted with approval by Collins, M. R., in 
 the case of Earl v. Lubbock, [1905] 1 K. B. 253, 257. In the same 
 case Stirling, L. J., Ibid, at p. 258, after quoting a passage from the 
 judgment of Cotton and Bowen, L. JJ., in Heaven v. Pender (1883) 
 11 O. B. D. 503, 517, to the effect "that any one who leaves a danger- 
 ous instrument, as a gun, in such a way as to cause danger, or who 
 without due warning supplies to others for use an instrument or thing 
 which to his knowledge, from its construction or otherwise, is in such 
 a condition as to cause danger, not necessarily incident to the use of 
 such an instrument or thing, is liable for injury caused to others by 
 reason of his negligent act," goes on to say with regard to these words : 
 "As to the first part of that proposition, with regard to a dangerous 
 instrument, I take it that the reference is to a thing dangerous in it- 
 self, and that is shewn by the illustration that is given, and also by 
 what is stated in the second part of the proposition which treats of an 
 instrument or thing in such a condition as to cause danger, not neces- 
 sarily incident to its use. I think, therefore, that the van which the 
 plaintiff was driving does not fall within the first branch of the sen- 
 tence that I have quoted, and that to succeed the plaintiff must bring 
 the case within the second part. In that case he must adduce evidence 
 to shew that to the knowledge of the defendant the van was in such a 
 condition as to cause danger, not necessarily incident to its use. It 
 appears to me that the plaintiff was not in a position to do this, and 
 consequently he failed in establishing the liability of the defendant." 
 
 The negligence there alleged was a failure to properly inspect the 
 wheel and to report its defective condition. If, however, the failure 
 to obtain knowledge which could by reasonable care have been ob- 
 tained is equivalent to knowledge, it seems to me the Court of Appeal 
 would have sent that case down to the county court judge to be heard 
 by him on the question of whether or not the defendant must be taken 
 to have knowledge because he failed to make proper use of the means 
 of discovery at his disposal ; and I think this case is a direct decision 
 of the Court of Appeal, following Longmeid v. Holliday, 6 Ex. 761. 
 that even where the defect is discoverable by the exercise of ordinary 
 care the defendant is not liable, apart from contract, unless he in fact 
 had actual knowledge. 
 
 My greatest difficulty has been that, in White v. Steadman, [1913] 
 3 K. B. 340, Lush, J., held, in the case of a vicious horse, that a per- 
 son who has the means of knowledge and only does not know that the 
 animal or chattel which he supplies is dangerous because he does not
 
 Ch. 1) NEGLIGENCE 1077 
 
 take ordinary care to avail himself of his opportunity of knowledge 
 is in precisely the same position as the person who knows. I do not 
 think that Lush, J., in that case can have intended to decide that, 
 where a thing not dangerous in itself becomes dangerous through a 
 defect occasioned by breach of contract in its manufacture or delivery, 
 the person handing it over must be held liable to a third party because, 
 although he did not know, he might by the exercise of reasonable 
 care have known its condition. I think this must be so because he was 
 a party to the decision of Blacker v. Lake, 106 L. T. 533, 537, — and 
 I find that in that case Hamilton, J., lays down this proposition : "In 
 the present case all that can be said is that the defendants did not know 
 that their lamp was not perfectly safe and had no reason to believe 
 that it was not so, in the sense that no one had drawn their atten- 
 tion to the fact, but that had they been wiser men or more experienced 
 engineers they would then have known what the plaintiff's experts say 
 that they ought to have known." 
 
 In any case the decision in White v. Steadman, [1913] 3 K. B. 340, 
 was not a decision with regard to a defect arising from breach of con- 
 tract, but had reference to a vicious horse. I express no opinion with 
 regard to that decision, but I think that the judgment of Parke, B., in 
 Longmeid v. Holliday, 6 Ex. 761, of Cotton and Bowen, L. JJ., in 
 Heaven v. Pender, 11 Q. B. D. 503, of Stirling, L. J., in Earl v. 
 Lubbock, [1905] 1 K. B. 253, and of Hamilton, J., in Blacker v. 
 Lake, 106 L. T. 533, 537 make it clear that in this case the plaintiff' 
 is not entitled to recover. I have not felt myself bound by George v. 
 Skivington (1869) L. R. 5 Ex. 1, as that case was not followed by 
 Hamilton and Lush, JJ., in Blacker v. Lake, 106 L. T. 533, 537. 
 
 I give judgment for the defendants. 
 
 Judgment for defendants.'^ '^ 
 
 MAZETTI et al. v. AR^IOUR & CO. et al. 
 
 (Supreme Court of Wasliington, 1913. 75 Wash. G22, 135 Pac. 633, 4S L. 
 
 R. A. [N. S.] 213.) 
 
 Chadwick, J. The complaint alleges that the plaintiff's were op- 
 erating a profitable restaurant in the city of Seattle, and dealing with 
 the general public as their patrons ; that defendant Armour & Co. 
 is engaged in the business of manufacturing and selling to the public 
 generally meats and products to be used as food ; that it maintains 
 a place of business in Seattle, Wash., from which it sells and dis- 
 tributes its goods, representing and holding out to the general pub- 
 lic that its goods are pure, wholesome, and fit food for human be- 
 ings ; that on June 16, 1912, plaintiff's, in the usual course and con- 
 duct of their business, purchased from the Seattle Grocery Company 
 
 ■'7 The statement of facts is abi-idged and part of the opinion is omitted.
 
 1078 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 a carton of cooked tongue, prepared and ready to be used as food 
 without further cooking or labor ; that such package had been man- 
 ufactured and prepared by defendant Armour & Co., that the carton 
 or container bore its name, and that it was purchased to be sold to 
 plaintiffs' customers; that in making such purchase plaintiffs relied 
 upon the representations of Armour & Co. that said food was pure 
 and wholesome and fit for food ; that Armour & Co. was guilty of 
 negligence in manufacturing and preparing the foods purchased, in 
 that in the center of the carton was a foul, filthy, nauseating and 
 poisonous substance ; that in the due course of trade plaintiffs served 
 to one of their patrons a portion of the tongue ; that the patron ate 
 of it; that he then and there became sick and nauseated, and did 
 then and there in the presence of other persons publicly expose and 
 denounce the service to him of such foul and poisonous food ; that 
 the incident became known to the public generally ; that plaintiffs 
 had no knowledge or means of knowing the character of the food 
 served ; that its condition could not be discovered until it was served 
 for use — all to the damage of the plaintift's, etc., for loss of reputa- 
 tion, business, and lost profits during the life of their lease. Defend- 
 ants demurred tO' the complaint. The demurrer of Armour & Co. 
 was sustained, and plaintiffs have appealed. 
 
 It has been accepted as a general rule that a manufacturer is not 
 liable to any person other than his immediate vendee ; that the ac- 
 tion is necessarily one upon an implied or express warranty, and that 
 without privity of contract no suit can be maintained ; that each pur- 
 chaser must resort to his immediate vendor. To this rule certain ex- 
 ceptions have been organized: (1) Where the thing causing the in- 
 jury is of a noxious or dangerous kind. (2) Where the defendant 
 has been guilty of fraud or deceit in passing ofT the article. (3) Where 
 the defendant has been negligent in some respect with reference to 
 the sale or construction of a thing not imminently dangerous. 
 
 Within one of these exceptions is to be found the reason for hold- 
 ing the manufacturer of patent or proprietary medicines to answer at 
 the suit of the ultimate consumer. Direct actions are allowed in 
 such cases because the manufacture of medicines is generally shrouded 
 in mystery, and sometimes, if not generally, they contain poisons 
 which may produce injurious results. They are prepared by the man- 
 ufacturer for sale and distribution to the general public, and one 
 purchasing them has a right to rely upon the implied obligation of 
 the manufacturer that he will not use ingredients which if taken in 
 prescribed doses will bring harmful results. Reference may be had 
 to the following cases which sustain, and in which many other cases 
 are cited which sustain, this exception : Thomas v, Winchester, 6 
 N. Y. 397, 57 Am. Dec. 455 ; Blood Balm Co. v. Cooper, 83 Ga. 457, 
 10 S. E. 118, 5 L. R. A. 612, 20 Am. St. Rep. 324; Weiser v. Holz- 
 man, 33 Wash. 87, 73 Pac. 797, 99 Am. St. Rep. 932. 
 
 Another exception — the doctrine is comparatively recent — is refera-
 
 Ch. 1) NEGLIGENCE 1071) 
 
 ble to the modern method of preparing food for use by the con- 
 sumer, and the more general and ever-increasing use of prepared 
 food products. The following are among the more recent cases hold- 
 ing that the ultimate consumer may bring his action direct against 
 the manufacturer: Meshbesher v. Channellene Oil & Mfg. Co., 107 
 Minn. 104, 119 N. W. 428, 131 Am. St. Rep. 441; Tomlinson v. 
 Armour, 73 N. J. Law, 748, 70 Atl. 314, 19 L. R. A. (X. S.) 923; 
 Salmon v. Libby, 219 111. 421, 76 N. E. 573; Haley v. Swift, 152 
 Wis. 570, 140 N. W. 292; Watson v. Augusta, 124 Ga. 121, 52 S. 
 E. 152, 1 L. R. A. (N. S.) 1178, 110 Am. St. Rep. 157; Ketterer v. 
 Armour (D. C.) 200 Fed. 322. The contrary is held in the case of 
 Nelson v. Armour, 76 Ark. 352, 90 S. W. 288, 6 Ann. Cas. 237. This 
 case, though well reasoned along the lines of those cases which hold 
 that the rule of caveat emptor applies, is not in touch with the modern 
 drift of authority. Some of the cases hold that the action is for 
 breach of warranty ; others that it is to be sustained upon the ground 
 of negligence. A few courts have attributed the growth of this ex- 
 ception to the general public policy as declared in the pure food laws 
 (^Meshbesher v. Channellene, etc., supra), while others say that the 
 liability for furnishing provisions which endanger human life rests 
 upon the same grounds as the manufacturing of patent or proprietary 
 medicine. Bishop v. W^eber, 139 Mass. 411, 1 N. E. 154, 52 Am. 
 Rep. 715; Haley v. Swift, supra; Tomlinson v. Armour, supra; 
 Meshbesher v. Channellene, supra ; Salmon v. Libby, supra ; Watson 
 V. Augusta, supra ; Ketterer v. Armour, supra. In the case of Weiser 
 V. Holzman, this court said : "The rule does not rest upon any prin- 
 ciple of contract, or contractual relation existing between the person 
 delivering the article and the person injured, for there is no contract 
 or contractual relation between them. It rests on the principle that 
 the original act of delivering the article is wrongful, and that every 
 one is responsible for the natural consequences of his wrongful acts." 
 Although the cases differ in their reasoning, all agree that there is 
 a liability in such cases irrespective of any privity of contract in 
 the sense of immediate contract between the parties. 
 
 Indeed, we understand that respondent does not claim that the 
 ultimate consumer, the person who ate the unfit food, would be de- 
 nied a right of recovery under modern authority ; but it is strenu- 
 ously contended that such actions are sustained because the consumer 
 has been injured in health and comfort, that the exception should 
 not be carried to the extent of allowing a retailer of the goods to sue 
 direct and recover for injury to his business and loss of reputation, 
 that in such cases there must still be privity of contract. It seems 
 that tiie test should not rest in finding the plaintifif's damage in health 
 or business, but in answering the question whether there has been 
 a damage which may be justly attributed to the negligence or a breach 
 of duty on the part of the one who had power and whose duty it was 
 to prevent the wrong.
 
 lOSO TORTS THROUGH ACTS OP CONDITIONAL LIABILITY (Part 3 
 
 Counsel on either side have been zealous in searching the books, 
 but only one case is submitted that goes directly to the right of the 
 retailer or middleman to sue in the first instance — Neiman v. Chan- 
 nellene Oil & Alfg. Co., 112 Minn. 13, 127 N. W. 394, 140 Am. St. 
 Rep. 458. The right to recover for loss of trade consequent upon the 
 selling of impure food was sustained; the court saying, "A company 
 which advertises itself as a manufacturer and seller of pure articles 
 of food must be deemed to have knowledge of the contents of the 
 articles offered for sale." The court held to the doctrine of implied 
 warrantv. The suit was brought by the retailer against his immedi- 
 ate vendor, so that we still have to meet the question of whether the 
 retailer who has lost his trade can sue over the head of his immedi- 
 ate vendor, or join him with the manufacturer as in this case. In 
 the light of modern conditions we see no reason why he should not. 
 He has been damaged. He and all others who in the course of trade 
 handled the unwholesome goods purchased them relying upon the 
 name and reputation of the manufacturer. The goods were designed 
 for ultimate consumption by an individual patron, and packed to 
 facilitate and make convenient such resales as might be made pend- 
 ing ultimate consumption. Every tradesman, whether wholesaler or 
 retailer, is in a sense a consumer, for he buys to resell. In a way 
 he risks his reputation. He stakes it upon either an express war- 
 ranty, as printed on the package, or an implied warranty that the 
 goods are wholesome and fit for food. He is injured by the fault or 
 a breach of duty of the manufacturer, for his immediate vendor, like 
 himself, has no way to test every sealed package. "Remedies of in- 
 jured consumers ought not to be made to depend upon the intricacies 
 of the law of sales. The obligation of the manufacturer should not 
 be based alone on privity of contract. It should rest, as was once 
 said, upon 'the demands of social justice.'" Ketterer v. Armour, su- 
 pra. "We may judicially recognize that the contents are sealed up, 
 not open to the inspection or test, either of the retailer or of the con- 
 sumer, until they are opened for use, and not then susceptible to prac- 
 tical test, except the test of eating. When the manufacturer puts 
 the goods upon the market in this form for sale and consumption, 
 he, in effect, represents to each purchaser that the contents of the 
 can are suited to the purpose for which it is sold, the same as if an 
 express representation to that effect were imprinted upon a label. 
 Under these circumstances, the fundamental condition upon which 
 the common-law doctrine of caveat emptor is based — that the buyer 
 should 'look out for himself — is conspicuously absent." Tomlinson 
 v. Armour, supra, 75 N. J. Law, 748, 70 Atl. 314, 19 L. R. A. (N. 
 S.) 923. 
 
 In Pantaze v. West, 7 Ala. App. 599, 61 South. 42, the suit was 
 brought against the retailer. In discussing the obligations of the re- 
 tailer, the court treats him as a consumer within the law, saying: 
 "The fact was established without controversy that the defendant
 
 Ch. 1) NEGLIGENCE lOSl 
 
 was the keeper of a public eating place, engaged in the business of 
 serving food to his customers, the public, and, being thus engaged, 
 and holding himself out as a public purveyor, he was bound to use 
 due care to see that the foodstuffs served at his place of business to 
 his customers were fit for human consumption, and could be partaken 
 of without causing sickness or endangering human life or health be- 
 cause of their unwholesome and deleterious condition, and, for any 
 negligence in this particular in failing to observe this duty which 
 proximately resulted in injury to one of the patrons of the place, the 
 defendant would be responsible." 
 
 Now, under all authority the immediate vendor would be liable upon 
 one theory or another to the consumer. This being so, it should 
 not be held that the vendor could not sue the manufacturer except 
 to recoup against a judgment. He might thus be left without rem- 
 edy. In denying the right to sue an immediate vendor, Spear, J., in 
 Bigelow v. Maine Central Ry. Co., 110 Ue. 105, 85 Atl. 396, 43 L. 
 R. A. (N. S.) 627, observed the wonderful discoveries of the past 
 century and the amazing progress in perfecting known devices. He 
 recalls the boast of the common law that it was able to adjust itself 
 to the inevitable vicissitudes and changes that occur in the develop- 
 ment of human affairs. "The principles of the common law have 
 adapted themselves so aptly as to render almost imperceptible the 
 radical transitions that have taken place. Of little less importance 
 than the appearance of the great achievements referred to is the es- 
 tablishment and development of the canning industry in this coun- 
 try and in other parts of the world. It may be said that the art of 
 canning, if not invented within the last century, has, at least, as- 
 sumed the vast proportions whfch it has now attained within a com- 
 paratively few years. It involves a unique and peculiar method of 
 distributing for domestic and foreign use almost every product known 
 to the art of husbandry. The wholesaler, the retailer, and the user 
 of these goods, whether in the capacity of caterer, seller, or host, 
 sustain an entirely different duty, respecting a knowledge of their 
 contents and quality, than prevails with regard to knowing the qual- 
 ity of those food products which are open to the inspection of the 
 seller or victualer. With reference to these it may well be consid- 
 ered, as has been held, that, having an opportunity to investigate and 
 thereby to know the quality of their merchandise, they are charged 
 with a responsibility amounting to a practical guaranty. The early 
 rules of law were formulated upon the theory that the provision 
 dealer and the victualer, having an opportunity to observe and inspect 
 the appearance and quality of the food products they offered to the 
 public, were accordingly charged with knowledge of their imperfec- 
 tions. Winsor v. Lombard, 18 Pick. (Mass.) 57; Bishop v. Weber, 
 139 Mass. 411, 1 N. E. 154, 52 Am. Rep. 715. But, upon the state 
 of facts in the case at bar, a situation arises that cannot in the prac-
 
 1082 TOUTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 tical conduct of the canning business fall within these rules. No 
 knowledge of the original or present contents of a perfect appear- 
 ing can is possible in the practical use of canned products. They 
 cannot be chemically analyzed every time they are used. Accordingly, 
 the reason for the rule having ceased, a new rule should be applied 
 to the sale and use of canned goods that will more nearly harmonize 
 with what is rational and just. 
 
 To the old rule that a manufacturer is not liable to third persons 
 who have no contractual relations with him for negligence in the 
 manufacture of an article should be added another exception, not 
 one arbitrarily worked by the courts, but arising, as did the three 
 to which we have heretofore alluded, from the changing conditions 
 of society. An exception to a rule will be declared by courts when 
 the case is not an isolated instance, but general in its character, and 
 the existing rule does not square with justice. Under such circum- 
 stances a court will, if free from the restraint of some statute, declare 
 a rule that will meet the full intendment of the law. No case has 
 been cited that is squarely in point with the instant case ; but there 
 is enough in the adjudged cases to warrant us in our conclusion. 
 
 The facts stated in the complaint are admitted by demurrer. Plain- 
 tiffs have been injured. No other person or firm had an opportunity 
 to check the offensive package after it was sealed and sent on its 
 way. Right and reason demand that any party injured should have 
 a right of recovery against the first oft'ender without resorting ta 
 that circumlocution of action against intervening agents (a doubtful 
 right at best, Bigelow v. Maine Central Ry. Co., supra), which is 
 demanded where the product as well as the market is open, and the 
 rule of caveat emptor should in justice apply. 
 
 Plaintiff's' argument is also based on the pure food law. It is con- 
 tended that the negligence of defendant is presumed if a violation of 
 the pure food law be shown. This is admitted as a general proposi- 
 tion by defendant; but it says that the rule applies only where the 
 statute was intended for the benefit of the party who brings the suit ; 
 that the pure food laws are intended for the benefit of the consumer 
 alone. 
 
 This opinion is already too long drawn out, and we are not dis- 
 posed to go into this phase of the case, except to say that it seems 
 to us that the plaintiffs would not be barred by the argument made 
 by defendant. The consumer purchases prepared food products to 
 sustain life and health. The retailer purchases the same products, 
 depending upon established brands to sustain his reputation as a dealer 
 in clean and wholesome food. We would be disposed to hold on 
 this question that, where sealed packages are put out, and it is made 
 to appear that the fault, if any, is that of the manufacturer, the 
 product was intended for the use of all those who handle it in trade 
 as well as those who consume it. Our holding is that, in the absence
 
 Ch. 1) NEGLIGENCE 108 
 
 of an express warranty of quality, a manufacturer of food products 
 under modern conditions impliedly warrants his goods when dis- 
 pensed in original packages, and that such warranty is available to 
 all who may be damaged by reason of their use in the legitimate 
 channels of trade. 
 
 We regard this case, in so far as the dealer is permitted to sue 
 the manufacturer, as one of first impression. We think the complaint 
 states a cause of action. If there is no authority for the remedy, 
 "it is high time for such an authority." Ketterer v. Armour, supra. 
 
 The judgment is reversed, and the cause remanded, with instruc- 
 tions to overrule the demurrer.'^ ^ 
 
 TOM V. NICHOLS-FIFIELD SHOE MACH. CO. 
 
 (Circuit Court of Appeals of the United States, 1914. 132 C. C. A. 221, 
 
 215 Fed. 881.) 
 
 In Error to the District Court of the United States for the District 
 of Massachusetts. ^ 
 
 This was an action by Jacob Tom against the Shoe Machinery Com- 
 pany, for personal injuries sustained by the plaintiff while in the em- 
 ploy of Habid Tom, and engaged in operating a die-cutting machine 
 which had been sold and delivered to Habid Tom by the defendants 
 and set up by them in his factory in contemplation of its being op- 
 erated by the plaintiff. The judgment below was for the defendants, 
 and plaintiff brings error.'^'' 
 
 Bingham, Circuit Judge. * * * We are also of the opinion 
 that the circumstances disclosed by the case show that the defendant 
 owed the plaintiff a duty to exercise care in setting up the machine, 
 and that this duty did not arise out of the contract of sale between 
 the defendant and Tom, but out of the relation existing between the 
 plaintiff and the defendant, and irrespective of the contract of sale. 
 "The law governing actions for negligence has for its foundation the 
 rule of reasonable conduct." That rule "necessarily includes two per- 
 sons, or one person and some right or property of another. It has 
 to do with one's acts in reference to the person, property, or rights 
 of another. It is a rule of relation. If there be no relation there is 
 nothing upon which the rule can operate." Garland v. Railroad, 76 
 N. H. 556, 86 Atl. 141, 46 L. R. A. (N. S.) 338, Ann. Cas. 1913E, 
 924. When, however, one knows or has reason to believe that his 
 
 7 8 For the argument which may be based on this allegation, admitted as 
 it is by the demurrer, see Blocxl Balm Company v. Cooper (1889) 83 Ga. 457, 
 10 S. E. 118, 5 L. R. A. 612, 20 Am. St. Rep. ;}24. 
 
 7 9 The statement of facts is rewritten, and only so much of the opinion is 
 given as relates to the one point.
 
 1084 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 conduct may affect injuriously the person or property or rights of 
 another, then a duty arises requiring him to exercise reasonable care 
 to see that his acts do not result injuriously to the person or prop- 
 erty or rights of that other. So in this case, when the defendant 
 set up the macliinc in the factory, knowing or having reason to antici- 
 pate that the plaintiff and his fellow employes were to operate it, 
 the law imposed a duty upon the defendant, with relation to the plain- 
 tiff and these men, to exercise reasonable care in setting up the ma- 
 chine, and rendered it liable in damages for a breach of the duty in 
 case one of them was injured while operating the machine and as a 
 result of its having been negligently set up. Gill v. Middleton, 105 
 Mass. 477, 479, 7 Am. Rep. 548; Baird v. Daly, 57 N. Y. 236, 15 
 Am. Rep. 488; Devlin v. Smith, 89 N. Y. 470, 478, 42 Am. Rep. 
 311; Pittsfield Co. v. Shoe Co., 71 N. H. 522, 53 Atl. 807, 60 L. R. 
 A. 116; Id., 72 N. H. 546, 58 Atl. 242; Hubbard v. Gould, 74 N. H. 
 25, 28, 64 Atl. 668 ; Dustin v. Curtis, '74 N. H. 266, 268, 269, 67 Atl. 
 220, 11 L. R. A. (N. S.) 504, 13 Ann. Cas. 169; Burnham v. Stillings, 
 76 N. H. 122, 123, 79 Atl. 987. 
 
 Whether the defendant's act in negligently setting up the machine 
 was the proximate cause of the plaintiff's injury was a question of 
 fact for the jury, there being evidence from which such a conclusion 
 might reasonably be drawn. It appeared that the defendant's men 
 went to the factory of the purchaser, saw the place where the machine 
 was to be operated, saw that a number of men, including the plain- 
 tiff, were employed there, and knew that they were likely to be called 
 upon to run the machine. Under these circumstances, it could not 
 be said as a matter of law that the defendant had no reason to antici- 
 pate that the plaintiff would be set to work on the machine, or that 
 the injury which he received was not the proximate result of its neg- 
 ligence in improperly setting it up. Ela v. Cable Co., 71 N. H. 1, 3,. 
 51 Atl. 281. 
 
 The judgment is reversed, the verdict is set aside, the case is re- 
 manded to the District Court for further proceedings not inconsistent 
 with this opinion, and the plaintiff in error recovers his costs of ap- 
 peal. 
 
 III. In the Absence oe Contractual and Property Obligation 
 
 It has repeatedly been proposed to amend the common law by leg- 
 ^' islation, so that certain duties hitherto regarded as merely moral ob- 
 ligations shall hereafter be legal duties, whose nonperformance shall 
 be punished by criminal law. The contention is, that the law should, 
 to a certain extent, compel active beneficence by one man towards 
 another in cases where "the only relation between the parties is that 
 both are human beings." While it is not usually claimed that the
 
 Ch. 1) NEGLIGENCE 1085 
 
 law should recognize and enforce "a. general duty to act as a good 
 Samaritan," it is asserted that the law should recognize some humani- 
 tarian duties as legal duties. 
 
 Jeremiah Smith, Cases on Torts (2d Ed.) 165.^** 
 
 MISSOURI, K. & 1. RY. CO. OF TEXAS v. WOOD et ux. 
 
 (Supreme Couit of Texas, 1902. 9.j Tex. 223, 66 S. W. 449, 56 L. R. A. 592, 
 93 Am. St. Kep. 834. Court of Civil Appeals of Texas, 1902. 68 S. W. 802.) 
 
 Action by Wood and his wife against the railway company. The 
 trial resulted in a judgment against the railway company, who appeal. 
 
 It appeared in the case that an employe of the company, Dickson 
 by name, had developed smallpox ; that the company took charge of 
 him and placed him in their smallpox camp ; that the company^s 
 physician, having taken charge of Dickson on behalf of the company, 
 "negligently employed an incompetent Mexican to guard and nurse 
 Dickson" ; that at the time the Mexican was put in charge "Dick- 
 son was delirious with fever, and it was known that persons thus 
 suffering Avould likely, escape ; that while Dickson was in this delirious 
 condition the Mexican went to sleep, and negligently permitted him 
 to escape from the camp, and to wander upon the premises of the 
 plaintiffs, and communicate smallpox to them and their little child. 
 
 Brown, j_ * * * Counsel urge the proposition that the rail- 
 road company owed no duty to the appellee; therefore there was no 
 liability for Dickson's escape. House v. Waterworks Co., 88 Tex. 
 233, 31 S. W. 179, 28 L. R. A. 532, is relied upon to sustain that 
 position, but the cases are so dissimilar that the principles announced 
 in that case are not applicable in this. In House v. Waterworks Co. 
 the two classes of cases are distinguished upon authorities cited and 
 discussed. Nonliability for a failure to perform a duty due to the 
 public as such is there commented upon and contrasted with the 
 class of duties which are intended to benefit the individuals composing 
 the public. This case belongs to the latter class, because whatever 
 affects the health of the community necessarily affects the individual 
 members thereof ; and, when the duty to prevent the spread of a 
 contagious disease rests upon a private corporation or person, an 
 obligation arises in favor of each member of the community, and a 
 right of action exists in favor of him who suft'ers from its breach. 
 
 But counsel for the railroad company earnestly insist that it is not 
 
 80 Judge Smith here refers to Professor Bohlen's article on -'The Moral 
 Duty to Aid Others as a Basis of Tort Liability," 56 Univ. of Pa. Law Rev. 
 217,^316, and to Professor Ames' article on "Law and Morals," 22 Ilarv. Law 
 Rev. 97, 111-113, and sets forth (1) article 450 of the Dutch I'enal Code: 
 (2) Rentham's proposals for legislation; (3^ article 484 in Livingston's Draft 
 Code for Louisiana; and (4) Mucnulay's elaborate statement of roasoiis for 
 refusing to incorporate in the Indian Penal Code such views as Beutham's 
 and Livingston's. 
 
 /
 
 1086 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 liable for the act of Dickson in going away from the camp, al- 
 though he was at the time delirious to the extent of being incapable of 
 self-control. In Board of Bisshopp, 2 C. P. Div. 192, Denman, J., 
 stated and answered the question thus : "Can a man be said to 'ex- 
 pose' or to 'be in charge of one who is of full age and a free agent? 
 A man weakened by disease may fairly be said to be 'exposed' by the 
 person who is attending upon him. The statute cannot be limited 
 to legal control, or it will become a dead letter." That case proceeded 
 before the court on the ground that the defendant had exposed one 
 infected with a contagious disease by going with him through the 
 streets and in public places, but the defendant was acquitted because 
 he had used proper care in doing so. The case answers the objection 
 made that the escape of Dickson and his going upon the premises of 
 the appellee could not be charged to the railroad compajiy. When- 
 ever the duty of restraining another arises, and the power of control 
 over him exists, liability will follow upon a failure to perform the 
 duty. In District v. Hill, 6 App. Cas. 204, Lord Blackburn said : 
 "When the disease is infectious there is a legal obligation on the sick 
 person and on those who have the custody of him not to do anything 
 that can be avoided which shall tend to spread the infection ; and, if 
 either do so, — as by bringing the infected person into a public 
 thoroughfare, — it is an indictable offense, though it will be a defense 
 to an indictinent if it can be shown that there was sufficient cause to 
 excuse what is prima facie wrong." 
 
 The same principle obtains in reference to animals of known vicious 
 character which the owner is required to restrain to prevent them 
 from inflicting injury on others; and the owners of animals known 
 to be infected with contagious diseases must control them in such 
 manner as to prevent them from communicating the disease to the 
 animals of other persons. Agency Co. v. McClelland, 89 Tex. 490, 
 34 S. W. 98, 35 S. W. 474, 31 L. R. A. 669, 59 Am. St. Rep. 70. 
 If the railroad company had undertaken to keep a horse known to be 
 affected with 'a contagious disease at the same place and by the same 
 means, and the horse had been permitted, through the negligence of 
 the attendant, to escape, and had communicated the disease to a horse, 
 the property of the appellee, there would be no doubt of the liability 
 of the railroad company for the damages. 
 
 If there be a sound reason for denying to Wood as great a security 
 for his wife and children against the diseased man as would have been 
 accorded to him in favor of his beasts against a diseased horse, it 
 has not been suggested by counsel for the appellant, and we are un- 
 able to discover any tenable basis for the distinction. 
 
 The quantum of diligence which was required of the appellant 
 depended upon the character of the disease and the danger of com- 
 municating it to others. "If the business be hazardous to the lives 
 of others, the care to be used must be of a nature more exacting than 
 required when no such hazard exists. The greater the hazard the
 
 Ch. 1) NEGLIGENCE 1087 
 
 more complete must be the exercise of care." Railroad Co. v. Hewitt, 
 67 Tex. 478, 3 S. W. 705, 60 Am. Rep. 32. Smallpox is commonly 
 known to be a highly contagious disease, and very dangerous to 
 human life, and isolation of the infected person is generally recog- 
 nized as necessary to afford protection to the community in which he 
 may be found. The Court of Civil Appeals found as a fact that it 
 is a characteristic of smallpox, known to the appellant's agent, that 
 the patient is liable to become delirious to the degree of irresponsibility, 
 and to wander from the place of confinement, being thereby liable 
 to come into contact with persons in the neighborhood. The object 
 of placing Dickson in the tent and supplying a nurse and guard for 
 him was not alone to care for and provide for him, but also to pro- 
 tect the public against infection by contact; and when the railroad 
 company undertook to treat Dickson for the disease, and to care for 
 him at the place designated by the Mayor of Greenville, it assumed 
 the duty of using ordinar}- care to prevent Dickson from exposing 
 himself in delirium, or from being exposed otherwise, so as to com- 
 municate the disease to other persons ; and, having failed, through 
 the negligence of its employes, to use such care, and by reason of 
 its negligence Dickson having escaped and communicated the disease 
 to the appellee's family, the railroad company was liable for the dam- 
 age caused thereby. Rex. v. Vantandillo, 4 IMaule & S. 75 ; Rex. v. 
 Burnett, Id. 273; Haag v. Board, 60 Ind. 511, 28 Am. Rep. 654; 
 Smith V. Baker (C. C.) 20 Fed. 709 ; District v. Hill, 6 App. Cas. 204. 
 To both questions we answer that under the facts stated the rail- 
 road company was liable to the appellee Wood for the damages caused 
 to him by reason of the smallpox being communicated to him and his 
 family by Dickson through the negligence of the agent of the railroad 
 company.^^ 
 
 DEPUE V. FLATAU et al. ^ ^' 
 
 (Supreme Court of Minnesota, 1907. 100 Minn. 209, 111 N. W. 1, 8 L. R. A. 
 
 [N. S.] 485.) 
 
 Brown, J. The facts in this somewhat unusual case are as fol- 
 lows : Plaintiff was a cattle buyer, and accustomed to drive through 
 the country in the pursuit of his business, buying cattle, hides, and 
 furs from the farmers. On the evening of January 23, 1905, about 
 5 or 5 :30 o'clock, after having been out a day or two in the country, 
 he called at the house of the defendants, about seven miles from 
 
 81 Tlie statement of facts is abridged from the statement of Rainey, C. 
 J. of the Court of Civil Appeals. The opinion is from the Supreme Court, to 
 which the questions involved in this case were certified by the Court of Civil 
 Appeals. Only so much of the opinion is given as relates to the one point. 
 
 On the hearings of the case, see 16 Harv. Law Rev. 133-134.
 
 1088 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 Madelia, where he resided. His object was to inspect some cattle 
 which Flalau, Sr,, had for sale, and, if arrangements could be made, 
 to purchase the same. It was dark at the time of his arrival, but 
 he inspected the cattle in the barn, and suggested to defendant that, 
 being unable to determine their value by reason of the darkness, he 
 was not prepared to make an offer for the cattle, and requested the 
 privilege of remaining overnight, to the end that a bargain might 
 be made understandingly in the morning. His request was not grant- 
 ed. Plaintiff then bought some furs from other members of the 
 defendant's family, and Flatau, Sr., invited him to remain for sup- 
 per. Under this invitation plaintiff entered the house, paid for the 
 furs and was given supper with the family. After the evening meal, 
 plaintiff and both defendants repaired to the sitting-room of the house, 
 and plaintiff made preparation to depart for his home. His team 
 had not been unhitched from the cutter, but was tied to a hitching 
 post near the house. 
 
 The testimony from this point leaves the facts in some doubt. 
 Plaintiff testified that soon after reaching the sitting room he was 
 taken with a fainting spell and fell to the floor. He remembers very 
 little of what occurred after that, though he does recall that, after 
 fainting, he again requested permission to remain at defendants' over- 
 night, and that his request was refused. Defendants both deny that 
 this request was made, and testified, when called for cross-examination 
 on the trial, that plaintiff put on his overshoes and buff'alo coat un- 
 aided, and that, while adjusting a shawl about his neck, he stumbled 
 against a partition between the dining room and the sitting room, 
 but that he did not fall to the floor. Defendant Flatau, Jr., assisted 
 him in arranging his shawl, and the evidence tends to show that he 
 conducted him from the house out of doors and assisted him into 
 his cutter, adjusting the robes about him and attending to other de- 
 tails preparatory to starting the team on its journey. Though the 
 evidence is somewhat in doubt as to the cause of plaintiff's condition 
 while in defendants' home, it is clear that he was seriously ill and too 
 weak to take care of himself. He was in this condition when Flatau, 
 Jr., assisted him into the cutter. He was unable to hold the reins to 
 guide his team, and young Flatau threw them over his shoulders 
 and started the team towards home, going a short distance, as he 
 testified, for the purpose of seeing that the horses took the right road 
 to Madelia. Plaintiff was found early next morning by the roadside, 
 about three-quarters of a mile from defendants' home, nearly frozen 
 to death. He had been taken with another fainting spell soon after 
 leaving defendants' premises, and had fallen from his cutter, where 
 he remained the entire night. He was discovered by a passing farmer, 
 taken to his home, and revived. The result of his experience necessi- 
 tated the amputation of several of his fingers, and he was otherwise 
 physically injured and his health impaired.
 
 Ch. 1) NEGLIGENCE 1089 
 
 Plaintifif thereafter brought this action against defendants, father 
 and son, on the theory that his injuries were occasioned solely by 
 their negligent and wrongful conduct in refusing him accommodations 
 for the night, and knowing his weak physical condition, or at least 
 having reasonable grounds for knowing it, by reason of which he 
 was unable to care for himself, in sending him out unattended to make 
 his way to IMadelia the best he could. At the conclusion of plaintiff's 
 case, the trial court dismissed the action, on the ground that the evi- 
 dence was insufficient to justify a recovery. Plaintiff appealed from 
 an order denying a new trial. 
 
 Two questions are presented for consideration : (1) Whether, un- 
 der the facts stated, defendants owed any duty to plaintiff which they 
 negligently violated ; and (2) whether the evidence is sufficient to take 
 the case to the jury upon the question whether defendants knew, or 
 under the circumstances disclosed ought to have known, of his weak 
 physical condition, and that it would endanger his life to send him 
 home unattended. 
 
 The case is an unusual one on its facts, and "all-four" precedents 
 are difficult to find in the books. In fact, after considerable research, 
 we have found no case whose facts are identical with those at bar. 
 It is insisted by defendants that they owed plaintiff no duty to en- 
 tertain him during the night in question, and were not guilty of any 
 negligent misconduct in refusing him accommodations, or in sending 
 him home under the circumstances disclosed. Reliance is had for 
 support of this contention upon the general rule as stated in Union 
 Pacific Ry. Co. v. Cappier, 66 Kan. 649, 72 Pac. 281, 69 L. R. A. 
 513, where the court said: "Those duties which are dictated merely 
 by good morals or by humane considerations are not within the do- 
 main of the law. Feelings of kindness and sympathy may move the 
 Good Samaritan to minister to the sick and wounded at the roadside, 
 but the law imposes no such obligation; and suffering humanity has 
 no legal complaint against those who pass by on the other side. 
 * * * Unless a relation exists between the sick, helpless, or in- 
 jured and those who witness their distress, of a nature to require and 
 impose upon them the duty of providing the necessary relief, there 
 is neither legal obligation to minister on the one hand, nor cause for 
 legal complaint on the other." This is no doubt a correct statement 
 of the general rule applicable to the Good Samaritan, but it by no 
 means controls a case like that at bar. 
 
 The facts of this case bring it within the more comprehensive prin- 
 ciple that whenever a person is placed in such a position with regard 
 to another that it is obvious that, if he does not use due care in his 
 own conduct, he will cause injury to that person, the duty at once 
 arises to exercise care commensurate with the situation in which he 
 thus finds himself, and with which he is confronted, to avoid such 
 danger ; and a negligent failure to perform the duty renders him lia- 
 Hkpb . To RTS — 69
 
 1090 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 ble for the consequences of his neglect. This principle applies to 
 varied situations arising from noncontract relations. It protects the 
 trespasser from wanton or willful injury. It extends to the licensee, 
 and requires the exercise of reasonable care to avoid an unnecessary 
 injury to him. It imposes upon the owner of premises, which 'he 
 expressly or impliedly invites persons to visit, whether for the trans- 
 action of business or otherwise, the obligation to keep the same in 
 reasonably safe condition for use, though it does not embrace those 
 sentimental or social duties often prompting human action. 21 Am. 
 & Eng. Ency. Law, 471 ; Barrows on Negligence, 4. Those entering 
 the premises of another by invitation are entitled to a higher degree 
 of care than those who are present by mere sufferance. Barrows on 
 Xegligence, 304. The rule stated is supported by a long list of au- 
 thorities, both in England and this country, and is expressed in the 
 familiar maxim, "Sic utere tuo," etc. They will be found collected 
 in the works above cited, and also in 2 Thompson on Negligence, 
 1702. It is thus stated in Heaven v. Pender, 11 L. R. Q. B. Div. 496: 
 "The proposition which these recognized cases suggest, and which 
 is, therefore, to be deduced from them, is that, whenever one person 
 is by circumstances placed in such a position with regard to another 
 that every one of ordinary sense who did think would at once recog- 
 nize that if he did not use ordinary care and skill in his own conduct 
 with regard to those circumstances he would cause danger of injury 
 to the person or property of the other, a duty arises to use ordinary 
 care and skill to avoid such danger." It applies with greater strictness 
 to conduct towards persons under disability, and imposes the obligation 
 as a matter of law, not mere sentiment, at least to refrain from any 
 affirmative action that might result in injury to them. A valuable 
 note to Railway Co. v. Cappier, 69 L. R. A. 513, discusses at length the 
 character of the duty and obligation of those coming into relation with 
 sick and disabled persons, and numerous analogous cases are collected 
 and analyzed. 
 
 In the case at bar defendants were under no contract obligation to 
 minister to plaintiff in his distress ; but humanity demanded that they 
 do so, if they understood and appreciated his condition. And, though 
 those acts which humanity demands are not always legal obligations, 
 the rule to which we have adverted applied to the relation existing 
 between these parties on this occasion and protected plaintiff from acts 
 at their hands that would expose him to personal harm. He was 
 not a trespasser upon their premises, but, on the contrary, was there 
 by the express invitation of Flatau, Sr. He was taken suddenly ill 
 while their guest, and the law, as well as humanity, required that he 
 be not exposed in his helpless condition to the merciless elements. 
 The case, in its substantial facts, is not unlike that of Railway Co. v. 
 Marrs, 119 Ky. 954, 85 S. W. 188. 27 Ky. Law Rep. 388, 70 L. R. 
 A. 291, 115 Am. St. Rep. 289. In that case it appears that one Marrs
 
 Ch. 1) NEGLIGENCE 1091 
 
 was found asleep in the yards of the railway company in an intoxi- 
 cated condition. The yard employes discovered him, aroused him 
 from his stupor, and ordered him off the tracks. They knew that he 
 was intoxicated, and that he had left a train recently arrived at the 
 station, and he appeared to them dazed and lost. About 40 minutes 
 later, while the yard employes were engaged in switching, they ran 
 over him and killed him. He had again fallen asleep on one of the 
 tracks. The court held the railway company liable; that, under the 
 circumstances disclosed, it was the duty of the yard employes to see 
 that Marrs was safely out of the yards, or, in default of that, to exer- 
 cise ordinary care to avoid injuring him; and that it was reasonable 
 to require them to anticipate his probable continued presence in the 
 yards. The case at bar is much stronger, for here plaintiff was not 
 intoxicated, nor a trespasser, but, on the contrary, was in defendants' 
 house as their guest, and was there taken suddenly ill in their pres- 
 ence, and, if his physical condition was known and appreciated, they 
 must have known that to compel him to leave their home unattended 
 would expose him to serious danger. 
 
 We understand from the record that the learned trial court held in 
 harmony with the view of the law here expressed, but dismissed the 
 action for the reason, as stated in the memorandum denying a new 
 trial, that there was no evidence that either of the defendants knew, 
 or in the exercise of ordinary care should have known, plaintiff's 
 physical condition, or that allowing him to proceed on his journey 
 would expose him to danger. Of course, to make the act of defend- 
 ants a violation of their duty in the premises, it should appear that 
 they knew and appreciated his serious condition. The evidence on this 
 feature of the case is not so clear as might be desired, but a majority 
 of the court are of opinion that it is sufficient to charge both defend- 
 ants with knowledge of plaintiff's condition — at least, that the ques- 
 tion should have been submitted to the jury. Defendant Flatau, St., 
 testified that he was in the room at all times while plaintiff' was in the 
 house and observed his demeanor, and, though he denied that plain- 
 tiff fell to the floor in a faint or otherwise, yet the fact that plaintiff 
 was seriously ill cannot be questioned. Flatau, Jr., conducted him 
 to his cutter, assisted him in, observed that he was incapable of hold- 
 ing the reins to guide his team, and for that reason threw them over 
 his shoulders. If defendants knew and appreciated his condition, 
 their act in sending him out to make his way to Madelia the best he 
 could was wrongful and rendered them liable in damages. We do not 
 wish to be understood as holding that defendants were under abso- 
 lute duty to entertain plaintiff during the night. Whether they could 
 conveniently do so does not appear. What they should or could have 
 done in the premises can only be determined from a full view of the 
 evidence disclosing their situation, and their facilities for communi- 
 cating his condition to his friends, or near neighbors, if any there
 
 1U92 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 were. All these facts will enable the jury to determine whether, 
 within the rules of negligence applicable to the case, defendants neg- 
 lected any duty they owed plaintiff. 
 Order reversed.^ ^ 
 
 SECTION 4.— EXCUSABLE NEGLIGENCE 
 I. Accide:nt as AN Excuse 
 
 CHRISTIE V. GRIGGS. 
 (At Nisi Prius, Adjourned Sittings in London, 1S09. 2 Camp. 79.) 
 
 This was an action of assumpsit against the defendant as owner of 
 the Blackwall stage, on which the plaintiff, a pilot, was travelling to 
 London, when it broke down, and he was greatly bruised. The first 
 count imputed the accident to the negligence of the driver ; the second, 
 to the insufficiency of the carriage. 
 
 The plaintiff having proved that the axle-tree snapped asunder at a 
 place where there is a slight descent, from the kennel crossing the road ; 
 that he was, in consequence, precipitated from the top of the coach; 
 and that the bruises he received confined him several weeks to his bed, 
 there rested his case. 
 
 Best, Serjeant, contended strenuously that the plaintiff was bound to 
 proceed farther, and give evidence, either of the driver being unskill- 
 ful, or of the coach being insufficient. 
 
 Sir James Mansfield, C. J. I think the plaintiff has made a prima 
 facie case by proving his going on the coach, the accident, and the dam- 
 age he has suffered. It now lies on the other side to show, that the 
 coach was as good a coach as could be made, and that the driver was 
 as skillful a driver as could anywhere be found. What other evidence 
 can the plaintiff give? The passengers were probably all sailors like 
 himself ; and how do they know whether the coach was well built, or 
 whether the coachman drove skillfully? In many other cases of this 
 sort, it must be equally impossible for the plaintiff to give the evidence 
 required. But when the breaking down or overturning of a coach is 
 
 8 2 Compare: Hunicke v, Meraraec Quarry Co. (Mo. 1914) 172 S. W. 43: 
 (Action to recover for the death of plaintiff's intestate, H., caused by ttie 
 alleged negligence of D. in failing to procure a pliysiciau or surgeon to at- 
 tend and treat H., wlio liad received severe iiersonal injuries through the 
 act of S. while H. was acting in the employ of D. Reviewing the authorities, 
 Woodson, P J., remarks: '"In my opinion there is no possibiUty of doubt 
 but what the law is tliat whenever one person employs another to perform 
 dangerous work, and that, while performing that work, he is so badly in- 
 jured as to incapacitate him from caring for himself, then the duty of pro* 
 viding medical treatment for him is devolved upon the employer.")
 
 Ch. 1) NEGLIGENCE 1093 
 
 proved, negligence on the part of the owner is implied. He has always 
 the means to rebut this presumption, if it be unfounded ; and it is now 
 incumbent on the defendant to make out, that the damage in this case 
 arose from what the law considers a mere accident. 
 
 The defendant then called several witnesses, who swore that the 
 axle-tree had been examined a few days before it broke, without any 
 flaw being discovered in it ; and that when the accident happened, the 
 coachman, a very skillful driver, was driving in the usual track and at 
 a moderate pace. 
 
 Sir James Mansfield said, as the driver had been cleared of ev- 
 erything like negligence, the question for the jury would be as to the 
 sufficiency of the coach. If the axle-tree was sound, as far as human 
 eye could discover, the defendant was not liable. There was a differ- 
 ence between a contract to carry goods, and a contract to carry passen- 
 gers. For the goods the carrier was answerable at all events. But he 
 did not warrant the safety of the passengers. His undertaking, as to 
 them, went no farther than this, that as far as human care and fore- 
 sight could go, he would provide for their safe conveyance. There- 
 fore, if the breaking down of the coach was purely accidental, the plain- 
 tiff had no remedy for the misfortune he had encountered. 
 
 The jury found a verdict for the defendant. 
 
 HYMAN et ux. v. NYE & SONS. 
 (Queen's Bench Division, 1881. L. R. 6 Q. B. Div. 685.) 
 
 Statement of Claim — that the defendant was a jobmaster, carrying 
 on business at Brighton, and that the plaintiff was lawfully traveling 
 in and using a carriage of the defendant in the custody and care of the 
 defendant's servant, when, through the negligence and default, or 
 through the want of care and skill of the defendant, the carriage was 
 upset and the plaintiff thrown from it and injured. Defence denying 
 the negligence. Joinder of issue. 
 
 At the trial before Hawkins, J., at the Middlesex sittings in July, 
 1880, there was a verdict for the defendant. A rule was obtained call- 
 ing upon the defendant to ^hew cause why there should not be a new 
 trial on the ground of misdirection, and that the verdict was against 
 the weight of the evidence. 
 
 LiNDLEY, J. The defendant in this case was a job-master at 
 Brighton, letting out carriages and horses for hire. The plaintiff' hired 
 of him a landau, and a pair of horses, and a driver, for a drive from 
 Brighton to Shoreham and back. After having driven some way, and 
 whilst the carriage was going down hill and slowly over a newly 
 mended part of the road, a bolt in the underpart of the carriage broke. 
 The splinter-bar became displaced; the horses started off; the car- 
 riage was upset ; the plaintiff was thrown out and injured, and he 
 brought this action for compensation. 
 
 It was proved at the trial that no fault could be imputed to the horses
 
 109i TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 or to the driver; and although the plaintiff was charged with having 
 caused the accident by pulling the reins, the jury found in the plaintift"'s 
 favor on this point, and nothing now turns upon it. 
 
 It further appeared that the carriage had been built by a good build- 
 er some eight or nine years before the accident ; had been repaired by 
 a competent person about fifteen months before it ; that the defendant 
 had no reason to suppose that there was any defect in the carriage or 
 in any of its bolts ; and that the defect, if any, in the bolt which broke 
 could not have been discovered by any ordinary inspection. The bolt 
 itself was not produced at the trial, and the nature of the defect, if any, 
 in it when the carriage started was not proved. 
 
 The learned judge at the trial told the jury in substance that the 
 plaintiff was bound to prove that the injury which he had sustained 
 was caused by the negligence of the defendant ; and if in their opinion 
 the defendant took all reasonable care to provide a fit and proper car- 
 riage their verdict ought to be for him. Being thus directed the jury 
 found a verdict for the defendant ; and in particular they found that 
 the carriage was reasonably fit for the purpose for which it was hired, 
 and that the defect in the bolt could not have been discovered by the 
 defendant by ordinary care and attention. The plaintiff complains of 
 this direction, and the verdict founded upon it, and we have to consider 
 whether the direction was correct. * * * ^ person who lets out 
 carriages is not, in my opinion, responsible for all defects discoverable 
 or not ; he is not an insurer against all defects ; nor is he bound to 
 take more care than coach proprietors or railway companies who pro- 
 vide carriages for the public to travel in ; but in my opinion, he is 
 bound to take as much care as they; and although not an insurer 
 against all defects, he is an insurer against all defects which care and 
 skill can guard against. His duty appears to me to be to supply a car- 
 riage as fit for the purpose for which it is hired as care and skill can 
 render it ; and if whilst the carriage is being properly used for such 
 purpose it breaks down, it becomes incumbent on the person who has let 
 it out to shew that the breakdown was in the proper sense of the word 
 an accident not preventable by any care or skill. If he can prove this, 
 as the defendant did in Christie v. Griggs, 2 Camp. 80, and as the rail- 
 way company did in Redhead v. Midland Ry. Co., Law Rep. 2 Q. B. 
 412, he will not be liable ; but no proof short of this will exonerate him. 
 Nor does it appear to me to be at all unreasonable to exact such vigil- 
 ance from a person who makes it his business to let out carriages for 
 hire. As between him and the hirer the risk of defects in the carriage, 
 so far as care and skill can avoid them, ought to be thrown on the own- 
 er of the carriage. The hirer trusts him to supply a fit and proper 
 carriage ; the lender has it in his power not only to see that it is in a 
 proper state, and to keep it so, and thus protect himself from risk, but 
 also to charge his customers enough to cover his expenses. 
 
 Such being, in my opinion, the law applicable to the case, it follows 
 that the directions given to the jury did not go far enough, and that it
 
 Ch. 1) NEGLIGENCE 1095 
 
 was not sufficient, in order to exonerate the defendant from liability 
 for him to prove that he did not know of any defect in the bolt ; had 
 no reason to suppose it was weak, and could not see that it was by ordi- 
 nary inspection of the carriage. It further follows that, in my opinion, 
 the evidence was not such as to warrant the finding that the carriage 
 was in a fit and proper state when it left the defendant's yard. 
 
 In many of the cases bearing on this subject, the expression "rea- 
 sonably fit and proper"' is used. This is a little ambiguous and requires 
 explanation. In a case like the present, a carriage to be reasonably fit 
 and proper must be as fit and proper as care and skill can make it for 
 use in a reasonable and proper manner, i. e., as fit and proper as care 
 and skill can make it to carry a reasonable number of people, conduct- 
 ing themselves in a reasonable manner, and going at a reasonable pace 
 on the journey for which the carriage was hired; or (if no journey 
 was specified) along roads, or over ground reasonably fit for carriages. 
 A carriage not fit and proper in this sense would not be reasonably fit 
 and proper, and vice versa. The expression "reasonably fit" denotes 
 something short of absolutely fit ; but in a case of this description the 
 difference between the two expressions is not great. 
 
 It w^as objected on the part of the defendant that the plaintifif had 
 in his statement of claim based his case on negligence on the part of 
 the defendant, and not on any breach of warranty express or implied, 
 and consequently that the plaintifif could not recover in this action, at 
 least without amending. But the absence of such care as a person is 
 by law bound to take is negligence ; and whether the plaintifif sues the 
 defendant in tort for negligence in not having supplied such a fit and 
 proper carriage as he ought to have supplied, or whether the plaintifif 
 sues him in contract for the breach of an implied warranty that the 
 carriage was as fit and proper as it ought to have been, appears to me 
 wholly immaterial. Upon this point I adopt the opinion of Baron Mar- 
 tin in Francis v. Cockrell, Law Rep. 5 Q. B. 509, which is based upon 
 and w^arranted by Brown v. Boorman, 11 CI. & Fin. 1. 
 
 The plaintiff's pleadings would have been free from all objection if 
 he had stated in his statement of claim that he hired the carriage of 
 the defendant, and not merely that the plaintifif was lawfully in the car- 
 riage. But the defendant knew under what circumstances the plain- 
 tifif was lawfully in it ; and there was no surprise or miscarriage of 
 justice occasioned by the omission of the statement of the fact of hir- 
 ing. It appears to me, therefore, that the plaintiff ought not to be pre- 
 cluded from recovering in this action as the pleadings stand, if the 
 facts come out in his favor. 
 
 For the above reasons I am of opinion that there should be a new 
 trial, and that the costs of the first trial, and of this rule, should abide 
 the event. 
 
 Rule absolute.^' 
 
 83 Part of the opinion of Lindley, J., and all of the opinion of ilathew, J., 
 are omitted.
 
 1096 torts through acts of conditional liability (part 3 
 
 11. Contributory Ne;gligence: as an Excusf, ^* 
 BUTTERFIELD v. FORRESTER. 
 
 (Court of King's Bench, 1S09. 11 East, 60, 10 R. R. 433, 103 Reprint, 926.) 
 
 This was an action on the case for obstructing a highway, by means 
 of which obstruction the plaintiff, who was riding along the road, 
 was thrown down with his horse, and injured, &c. At the trial be- 
 fore Bayley, J., at Derby, it appeared that the defendant, for the pur- 
 pose of making some repairs to his house, which was close by the 
 road side at one end of the town, had put up a pole across this part of 
 the road, a free passage being left by another branch or street in the 
 same direction. That the plaintiff left a public house not far distant 
 from the place in question at 8 o'clock in the evening in August, when 
 they were just beginning to light candles, but while there was light 
 enough left to discern the obstruction at 100 yards distance : and the 
 witness who proved this, said that if the plaintiff had not been riding 
 very hard he might have observed and avoided it : the plaintiff how- 
 ever, who was riding violently, did not observe it, but rode against it, 
 and fell with his horse, and was much hurt in consequence of the acci- 
 dent; and there was no evidence of his being intoxicated at the time. 
 On this evidence Bayley, J., directed the jury, that if a person riding 
 with reasonable and ordinary care could have seen and avoided the 
 obstruction ; and if they were satisfied that the plaintiff was riding 
 along the street extremely hard, and without ordinary care, they should 
 find a verdict for the defendant: which they accordingly did. 
 
 Vaughan, Serjt., now objected to this direction, on moving for a 
 new trial; and referred to Buller's Ni. Pri. 26, where the rule is 
 laid down, that "if a man lay logs of wood across a highway ; though 
 a person may with care ride safely by, yet if by means thereof my 
 horse stumble and fling me, I may bring an action." 
 
 Bayle;y, J. The plaintiff was proved to be riding as fast as his 
 horse could go, and this was through the streets of Derby. If he had 
 used ordinary care he must have seen the obstruction; so that the 
 accident appeared to happen entirely from his own fault. 
 
 Lord Ellenborough, C. J. A party is not to cast himself upon 
 an obstruction which has been made by the fault of another, and avail 
 himself of it, if he do not himself use common and ordinary caution to 
 be in the right. In cases of persons riding upon what is considered 
 to be the wrong side of the road, that would not authorize another 
 purposely to ride up against them. One person being in fault will 
 not dispense with another's using ordinary care for himself. Two 
 
 8* On the question whether a showing of freedom from contributory fault 
 Is a part of the plaintiff's prima facie case in negligence, see ante, p. 909.
 
 Ch. 1) NEGLIGENCE 1097 
 
 things must concur to support this action, an obstruction in the road 
 by the fault of the defendant, and no want of ordinary care to avoid 
 it on the part of the plaintiff.^^ 
 Per Curiam. Rule refused. 
 
 GEE V. METROPOLITAN RY. CO. 
 
 (Court of Queen's Bench, 1872. In the Exchequer Chamber, 1873. L. R. 8 
 
 Q. B. IGl.) 
 
 Declaration that the plaintiff was a passenger on the defendants' 
 railway to be safely carried ; that the defendants so negligently con- 
 ducted themselves in carrying the plaintiff and managing the carriage 
 in which the plaintiff traveled, that the plaintiff fell out and was in- 
 jured. Plea, Not guilty; issue joined. * * * 
 
 At the conclusion of the plaintift''s case it was submitted on behalf 
 of the defendants, that the plaintiff was not entitled to recover, and the 
 Chief Justice reserved to the defendants leave to enter a verdict for 
 them or a nonsuit. The defendants did not offer any evidence, and 
 the plaintiff then had a verdict for £250. 
 
 A rule was afterwards obtained to enter the verdict for the de- 
 fendants or a nonsuit pursuant to the leave reserved, on the ground 
 that there was no evidence of liability of the defendants ; or for a new 
 trial, on the ground that the verdict was against the weight of evi- 
 dence.®^ 
 
 CocKBURN, J. I am of opinion that this rule should be discharged. 
 The facts are simple. The plaintiff and his brother were travelling 
 as passengers on the defendants' railway. In carriages of that rail- 
 way there is a bar across the window to prevent persons from putting 
 their heads to more than a small extent out of the window. The 
 plaintiff and his brother had been conversing as to signals used on 
 the line, and the plaintiff was explaining the mode in which they were 
 worked; and told his brother that he would show him how it was 
 done ; and as soon as the lights of the station were visible the plaintiff 
 stood up and put his hand on the rod of the window, and it so hap- 
 pened that the door, having been left insecurely fastened, flew open, 
 and the plaintiff was thrown out and injured. Under these circum- 
 stances are the defendants liable? We must take it that there was 
 negligence in not securely fastening the door; but it is said that that 
 negligence alone did not cause the accident ; the proximate cause of 
 
 8 5 "Butterfield v. Forrester is the first of the modem line of cases on con- 
 tributory negligence." Sir Fretlerick I'ollock, 10 R. R. v. 
 
 For "cases of persons riding upon what is considered to be the wrong side 
 of the road," see Cruden v. Fentham (1799) 2 Esp. 685, and Clay v. Wood 
 (1803) 5 Esp. 44. 
 
 8 6 The arguments of counsel are omitted.
 
 101)8 TOUTS THROUGH ACTS OF CONDITIONAL LIABILITY (I'art 3 
 
 the accident was the plaintiff pressing against the door. It is said 
 that the duty of the company is to carry a passenger safely as long as 
 he sits quietly in the carriage; and if an accident happens from any 
 act of his inconsistent with the ordinary behavior of passengers, he 
 has only himself to thank, and the company are not liable. 
 
 I quite agree that the passenger must not do anything inconsistent 
 with what passengers ordinarily do on a journey. Adams v. Lan- 
 cashire and Yorkshire Ry. Co., Law Rep. 4 C. P. 739, was cited for 
 the defendants. * * * There the decision turned on the passenger 
 committing an act of imprudence which was uncalled for ; that case 
 therefore has no application to the present. Here, assuming that the 
 company had done their duty, the passenger did nothing more than 
 that which came within the scope of his enjoyment while travelling, 
 without committing any imprudence ; in passing through a beautiful 
 country he certainly is at liberty to stand up and look at the view, not 
 in a negligent but in the ordinary manner of people travelling for 
 pleasure. Here the defendant was simply looking at the signal lights, 
 and there was nothing in his conduct which can be imputed to him as 
 negligence or imprudence.^' 
 
 From this decision of the Queens Bench, discharging the rule, there 
 was an appeal to the Exchequer Chamber.*^ *^ 
 
 KiOLLY, C. B. I am of opinon that this judgment must be affirmed. 
 The question for our consideration is, whether there is any evidence 
 of the liability of defendants, the rule being to enter a verdict for the 
 defendants on the sole ground that there was no evidence of the lia- 
 bility of the defendants. Now what is the evidence? It appears that 
 the plaintiff' was a passenger by the defendants' train, and that, as he 
 was passing from one station to another, with a view of looking out 
 of the window he rose from his seat and took hold of the bar of the 
 window and pressed against it. The pressure, such as it was, of some 
 part of his body, upon his taking hold of the bar, caused the door to 
 open, and the motion of the train to throw him out of the carriage, 
 whereby he sustained the injury complained of. These are all the 
 facts, and the first question is, whether there was any evidence of 
 negligence on the part of the defendants; and the second question 
 which must necessarily arise from the terms of the reservation, — viz., 
 that there was no evidence of liability, not merely of negligence, on 
 the part of the defendants, — is whether there was any evidence to go 
 to the jury that the mischief which befell the plaintiff was caused by 
 the negligence of the defendants. 
 
 First, was there any evidence of negligence at all on the part of tlic 
 defendants? I am of opinion that there was evidence for the jury to 
 
 87 The statement of facts is abritlROfl, part of the opinion of Cockburu, 
 J., and the opinions of Blackburn, jNIeilor, and Quaiu, JJ., are omitted. 
 86 The alignments of counsel are omitted.
 
 Ch. 1) NEGLIGENCE 1099 
 
 consider, whether the defendants' servants had not, when this train 
 left the station from which it started on its journey, failed to see 
 that the door was properly fastened in the ordinary manner in which 
 such railway carriage doors are fastened. There was evidence to go 
 to the jury that they had failed in the performance of that duty. But 
 the preliminary question arises, is it their duty? I am of opinion that 
 it is — that it is the duty of the railway company, by its servants, be- 
 fore the train starts upon its journey, to see that the door of every 
 carriage is properly fastened. Here was evidence that this door was 
 not properly fastened : for if it had been, it would not have flown 
 open upon the degree of pressure that was applied to it by the plain- 
 tiff; and therefore there was evidence to go to the jury, upon which 
 they were justified in finding that there was negligence on the part of 
 the defendants. 
 
 But then, I agree, we must go further, and inquire whether there 
 was evidence of "liability" : in other words, whether there was evi- 
 dence also that the negligence of the company was the cause of the 
 mischief which occurred to the plaintiff. I am of opinion that there 
 was evidence. Certainly the mischief would not have befallen him 
 if that door had been properly fastened. The question is, therefore, 
 whether he did anything which it was not lawful for him to do, and 
 which we should be satisfied, taking the whole evidence together, was 
 the cause of the mischief which befell him. If he did, I agree that 
 the case fails on the part of the plaintiff. But why? Because, though 
 he has proved that the defendants were guilty of negligence, he has 
 not proved that that negligence was the cause of the mischief which 
 befell him. The question of what has been termed contributory neg- 
 ligence does not, in m.y opinion, arise : first, because I am clearly of 
 opinion upon the facts that there was no evidence of contributory 
 negligence ; but even if there were evidence of contributory neg- 
 ligence, the rule is not for a new trial on the ground that the learned 
 judge did not leave that question to the jury or that it was a verdict 
 against the weight of evidence: and there was no right to entertain 
 any such question. And, therefore, upon this case, and on the facts 
 that are before us, no question whatever of contributory negligence 
 arises. The question is, whether there was evidence of negligence 
 on the part of the company which caused the accident. I have al- 
 ready shewn that there was evidence of negligence and that there 
 was evidence to go to the jury that their leaving the door not properly 
 fastened was the cause of the injury which the plaintiff sustained 
 without any improper act on the part of the plaintiff. Because I am 
 of opinion that any passenger in a railway carriage, who rises for 
 the purpose either of looking out of the window, or of dealing with, 
 and touching, and bringing his body in contact with the door for any 
 lawful purpose whatsoever, has a right to assume, and is justified in 
 assuming, that the door is properly fastened; and if by reason of its
 
 1100 TORTS THROUGH ACTS OP CONDITIONAL LIABILITY (Part 3 
 
 not being properly fastened his lawful act causes the door to fly open, 
 the accident is caused by the defendants' negligence. 
 
 I think, therefore, the Court of Queen's Bench were right in dis- 
 charging the rule, and the judgment must be affirmed. ^^ 
 
 y SMITHWICK V. HALL & UPSON CO. 
 
 (Supreme Court of Errors of Connecticut, 1S90. 59 Conn. 261, 21 Atl. 924, 
 12 L. R. A. 279, 21 Am. St. Rep. 104.) 
 
 This action, against the Hall & Upson Company, for an injury caus- 
 ed by the alleged negligence of the defendant, was brought in the 
 District Court of Waterbury and appealed to the Supreme Court of 
 New Haven County. The defendant suffered a default in that court 
 and the case was heard in damages before Fenn, J- Facts found and 
 damages assessed at $1,000 if on the facts the plaintiff was to be re- 
 garded as not guilty of contributory negligence, and at nominal dam- 
 ages if he was to be regarded as guilty of such negligence; and the 
 case was reserved upon the facts for the advice of this court. 
 
 Torrance, J. The general question reserved for our advice in 
 this case, is, whether the plaintiff upon the facts found is entitled to 
 the substantial damages or only to the nominal damages found by the 
 court below. 
 
 Inasmuch as that court has expressly found that the negligence of 
 the defendant caused or contributed to the injury for which the 
 plaintiff seeks to recover, the decision of the above general question 
 depends upon this single point, namely, whether the acts and conduct 
 of the plaintiff' as set forth upon the record constitute or amount to such 
 contributory negligence on his part as will bar his right to substantial 
 damages. The facts found, so far as they bear upon the question 
 for decision, are in substance the following: 
 
 The plaintiff was a workman in the service of the defendant, and 
 at the time of the injury complained of was engaged in helping to store 
 ice for the defendant in a certain brick building. In doing this work 
 the plaintiff stood upon a platform about five feet wide and seventeen 
 feet long, raised fifteen feet above the ground, and extending from the 
 west side of the building easterly to a point about two feet east of the 
 door or aperture through which the ice was taken into the building. 
 A stout plank of suitable height and strength extended along the outer 
 side of the platform as far as the west side of the door and served 
 as a protective railing or guard to that portion of the platform. In 
 front of the door and east of it the platform was without guard or 
 railing of any kind. A short time prior to the injury the foreman 
 
 8 8 The opinion of Martin, B., Keatin?, J., Brett, J., Cieasb.v, B., and Grove, 
 J., are omitted. Each was for affirming the judgment of the Queen's Bench.
 
 Ch. 1) NEGLIGENCE 1101 
 
 Stationed the plaintiff on the platform just west of the door and inside 
 the railing, and showed him what his duties were there, and told him 
 "not to go upon the east end of the platform east of the slide and door, 
 as it was not safe to stand there." He did not tell the plaintiff why 
 it was not safe, but the danger which he had in mind was the narrow- 
 ness and unrailed condition of the platform and the liability by inad- 
 vertence to misstep or fall or slip off, the latter being aggravated by 
 the liability of the platform to become slippery from broken ice. These 
 dangers were all manifest. The peril resulting from the accident 
 which happened to the building was not in contemplation. 
 
 After the foreman went away the plaintiff', in spite of the orders 
 so given to him, and for reasons of his own apparently, went over 
 to the east end of the platform and worked there. It is found that 
 there was no sufficient reason or excuse for the change of position. 
 One of his fellow workmen, seeing the plaintiff in that place, told him 
 that "it was not safe, and to stand on the other side," but the plain- 
 tiff, notwithstanding such warning, remained at work there. 
 
 While so at work the brick wall of the building above the platform, 
 in consequence of the negligence of the defendant, gave way, the, 
 brick falling upon the platform and thence to the ground. The plain- 
 tiff was struck by portions of the descending mass and fell to the earth. 
 He was either knocked off, or his fall, in the condition in which he 
 stood, was inevitable ; indeed, had he not fallen when he did, his 
 injuries, which were very serious, would have been worse. Most of 
 the injuries which he actually sustained were occasioned by the fall. 
 
 The plaintiff had no knowledge that the wall would be likely to fall 
 or was in any way unsafe, and it is found that "no fault or negli- 
 gence can be imputed to him in this regard." 
 
 In contemplation of the peril from the falling wall, it is found that 
 "the spot where the plaintiff stood could not have been considered 
 more dangerous than the place where he was directed to stand, though 
 in fact most of the brick fell upon the side where he stood, and the 
 result demonstrated therefore that the other side would have been 
 safer in the event which occurred." 
 
 Upon these facts the defendant contends that the plaintiff, in going to 
 and remaining on the east end of the platform, contrary to the orders 
 and in spite of the warning given him, and in view of the obvious and 
 manifest danger in so doing, was guilty of such contributory neg- 
 ligence as bars him of his right to recover more than nominal damages. 
 
 If the plaintiff's injuries had resulted from any of the perils and 
 dangers attendant upon the mere fact of his standing and working 
 on the east end of the platform, which were obvious and manifest 
 to any one in his place, which were in the mind of the foreman when 
 he told the plaintiff not to go there, and in view of which his fel- 
 low workman warned him, then this claim of the defendant would 
 be a valid one. But upon the facts found it is without foundation. 
 
 The injury to the plaintiff was not the resvilt of any such dangers,
 
 1102 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 but was caused through the negligence of the defendant by the falhng 
 walls. This was a source of danger of which he had no knowledge 
 whatever. He was justified in supposing that the wall was safe 
 and would not be likely to fall upon him, no matter where he stood 
 on tlie platform. He had no reason to anticipate even the slightest 
 danger from that source before or after he changed his position. 
 This being so, he could be guilty of no negligence with respect to 
 this source of danger by changing his position contrary to orders; 
 for negligence presupposes a duty of taking care, and this in turn 
 presupposes knowledge or its legal equivalent. 
 
 With respect to that danger the plaintiff upon the facts found 
 must be held to have acted as any reasonably careful man would have 
 acted under the same circumstances. In changing his position con- 
 trary to orders he voluntarily took the risk of all perils and dangers 
 Vv'hich a man of ordinary care in his place ought to have known or 
 could reasonably have anticipated ; but as to dangers arising through 
 the defendant's negligence from other sources — dangers which he 
 was not bound to anticipate and of whose existence he had no knowl- 
 edge, he took no risk and assumed no duty of taking care. It was 
 the duty of the defendant on the facts found to warn the plaintiff 
 against the danger from the falling wall. 
 
 Now the act or omission of a party injured which amounts to 
 what is called contributory negligence, must be a negligent act or 
 omission, and in the production of the injury it must operate as a 
 proximiate cause or one of the proximate causes and not merely as 
 a condition. 
 
 In the case at bar the conduct of the plaintiff, as we have seen, was, 
 with respect to the danger from the falling wall, not negligent for 
 the want of knowledge or its equivalent on the part of the plaintiff. 
 
 Nor was his conduct, legally considered, a cause of the injury. It 
 was a condition rather. 
 
 If he had not changed his position he might not have been hurt. 
 And so too if he had never been born, or had remained at home on 
 the day of the injury, it would not have happened; yet no one would 
 claim that his birth or his not remaining at home that day, can in 
 any just or legal sense be deemed a cause of the injury. 
 
 The court below has found that the plaintiff's fall in the position 
 in which he stood was due to the giving way of the wall, and that 
 most of his injuries were occasioned by the fall. His position there, 
 upon the facts found, can no more be considered as a cause of the 
 injury, than it could be in a case where the defendant, in doing 
 some act near the platform without the plaintift''s knowledge, had 
 negligently knocked him to the ground, or had negligently hit him 
 with a stone. Had the injury been occasioned by a misstep or slip 
 from the platform by the carelessness of the plaintiff', or for the want 
 of a railing, the causal connection between the change of position 
 and the injury would, legally speaking, be quite obvious; but from
 
 Ch. 1) NEGLIGENCE 1103 
 
 a legal point of view no such connection exists between the change 
 of position and the giving way of the wall. 
 
 The plaintiff had full knowledge and was abundantly cautioned 
 against certain particular sources of peril and danger, and he volun- 
 tarily neglected the warnings and took the risk of those perils and 
 dangers. He was injured through the negligence of the defendant 
 from an entirely different source of danger, of which he knew and 
 could know nothing, and of whose existence it was the duty of the 
 defendant to warn him. * * * 
 
 The defendant seems to claim however that, although some of the 
 plaintiff's injuries were caused by falling bricks, yet most of them 
 were caused by his fall ; and that as he probably would not have 
 fallen had he remained behind the railing, he contributed to the in- 
 jury by placing himself where in case of such accident there was 
 nothing to prevent his fall. 
 
 Whether this claim that he probably would not have fallen had 
 he remained where he was stationed be true or not, must forever 
 remain matter of conjecture. But if its truth could be demonstrated 
 it would not, as we have seen, change the relation of the plaintiff's 
 act to the legal cause of his injury, or make that act, from a legal 
 standpoint, a contributing cause when it was but a condition. 
 
 And if the claim means that the plaintiff by his act increased the 
 injury merely, then if this were true it would not be such contribu- 
 tory negligence as would defeat the action. To have that effect ii 
 must be an act or omission which contributes to the happening of 
 the act or event which caused the injury. An act or omission that 
 merely increases or adds to the extent of the loss or injury will not 
 have that eft'ect, though of course it may affect the amount of damages 
 recovered in a given case. Gould v. AIcKenna, 86 Pa. 297, 27 Am. 
 Rep. 705 ; Stebbins v. Central R. R. Co., 54 Vt. 464, 41 Am. Rep. 
 855. This claim however, on the facts found, is wholly without foun- 
 dation. 
 
 The plaintiff is entitled to judgment in his favor for one thousand 
 dollars, and the Superior Court is so advised. 
 
 In this opinion the other judges concurred.^* 
 
 BLACK v. NEW YORK, N. H. & H. R. CO. ^ 
 
 (Supreme Judicial Court of Massachusetts, 1907. 193 .Mass. 44S, 79 N. E. 
 797, 7 L. R. A. [N. S.] 14S, 9 Ann. Cas. 4S.j.) 
 
 In this action, against the railway company, there was a directed 
 verdict for the defendant. The plaintiff excepts. 
 
 Knowlton, C. J. This action was brought to recover for an in- 
 jury alleged to have been caused by the negligence of the defend- 
 
 89 Part of the opiniou is omitted.
 
 1104 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 ant's servants. The plaintiff was a passenger on the defendant's 
 train which ran from Boston through Ashmont on the evening of 
 February 7, 1903. He testified to having become so intoxicated that 
 he had no recollection of anything that occurred after leaving a cigar 
 store in Boston, until he awoke in the Boston City Hospital, about 
 4 o'clock the next day. One Thompson testified "that he took the 
 9:23 train on the evening of February 7, 1903, at the South Station 
 in Boston, for Ashmont, and occupied a seat near the rear of the 
 last car of the train ; that there were about 20 passengers in the 
 car, and he noticed Black sitting in the seat opposite, very erect, with 
 his eyes closed. When the conductor came through Mr. Black went 
 through his pockets as if he were looking for a ticket, and not 
 being able to find it, tendered a 50-cent piece in payment for his fare. 
 The conductor began to name off the stations, from Field's Corner 
 first, and then Ashmont, and when he said Ashmont Mr. Black nodded 
 his head. The conductor gave him his change and his rebate check. 
 At Ashmont, where the train stops, there is a gravel walk running the 
 whole length as a platform, then there is a flight of steps — 10 or 12 — 
 that leads up to the asphalt walk around the station ; so when you 
 go up from the steps you have to walk along this walk. The con- 
 ductor and brakeman took Black out of the car, one on each side. 
 The distance from the steps of the car to the steps that lead up to 
 the station was 25 feet. As they went along the platform the conduc- 
 tor and trainman were on each side of him. They tried to stand him 
 up, but his legs would sink away from him. They sort of helped 
 him up, and carried him to the bottom of the steps. When they went 
 to the bottom of the steps they continued one on each side of him. 
 Then one of the men got on one side, with his arm around him, and 
 the other back of him, sort of pushing him, and they took him up 
 about the fifth or sixth step, and after they got him up there they 
 turned around and left him and went down the steps. Mr. Black sort 
 of balanced himself there, just a minute, and then fell completely 
 backward. He turned a complete somersault, and struck on the back 
 of his head. The railroad men just had time to get down to the foot 
 of the steps. There was a railing that led up those steps and the 
 steps were about 10 feet wide. Mr. Black was upon the right-hand 
 side, going up, and he was left right near the railing. When he fell 
 he did not seize hold of anything. His arms were at his side." 
 
 On tiiis testimony the jury might find that the plaintiff was so in- 
 toxicated as to be incapable of standing, or walking, or caring for 
 himself in any way, and that the defendant's servants knowing his 
 condition, left him near the top of the steps, where they knew, or ought 
 to have known, that he was in great danger of falling and being 
 seriously injured. They were under no obligation to remove him 
 from the car, or to provide for his safety after he left the car. 
 But they voluntarily undertook to help him from the car, and they 
 were bound to use ordinary care in what they did that might affect
 
 Ch. 1) NEGLIGENCE 1105 
 
 his safety. Not only in the act of removal, but in the place where 
 they left him, it was their duty to have reasonable regard for his 
 safety in view of his manifest condition. The jury might have found 
 that they were negligent in leaving him on the steps where a fall 
 w^ould be likely to do him much harm. ^ Moody v. Boston & Maine 
 R. R., 189 Mass. 277, 75 N. E. 631. 
 
 The defense rests principally upon the fact that the plaintiff was 
 intoxicated, and was incapable of caring for himself after he was 
 taken from the train, and therefore was not in the exercise of due 
 care. If his voluntary intoxication was a direct and proximate cause 
 of the injury, he cannot recover. The plaintiff contends that it was 
 not a cause, but a mere condition, well known to the defendant's serv- 
 ants, and that their act was the direct and proximate cause of the 
 injury, with which no other act or omission had any causal connec- 
 tion. The distinction here referred to is well recognized in law. Neg- 
 ligence of a plaintiff at the time of an injury caused by the negligence 
 of another is no bar to his recovery from the other, unless it was a 
 direct, contributing cause to the injury, as distinguished from a mere 
 condition, in the absence of which the injury would not have occurred. 
 This is pointed out in Steele v. Burkhardt, 104 Mass. 59, 6 Am. Rep. 
 191, and Murphy v. Deane, 101 Mass. 455, 3 xA.m. Rep. 390. It is 
 also considered at some length in Newcomb v. Boston Protective De- 
 partment, 146 Mass. 596, 16 N. E. 555, 4 Am. St. Rep. 354. See, also. 
 Marble v. Ross, 124 Mass. 44; Spoftord v. Harlow, 3 Allen, 176; 
 Hall V. Ripley, 119 Mass. 135; Stone v. Boston & Albany R. R. Co., 
 171 Mass. 536-544, 51 N. E. 1, 41 L. R. A. 794. 
 
 The application of this rule sometimes gives rise to difficult ques- 
 tions. But in this connection the doctrine has been established that, 
 when the plaintiff's negligence or wrongdoing has placed his person 
 or property in a dangerous situation which is beyond his immediate 
 control, and the defendant, having full knowledge of the dangerous 
 situation, and full opportunity, by the exercise of reasonable care, 
 to avoid any injury, nevertheless causes an injury, he is liable for 
 the injury. This is because the plaintiff's former negligence is only 
 remotely connected with the accident, while the defendant's conduct 
 is the sole, direct and proximate cause of it. The principle was recog- 
 nized by Mr. Justice Wells in Murphy v. Deane, 101 Mass. 455, 3 
 Am. Rep. 390, in these words : "The last part of the instructions 
 prayed for suggests another question which, in certain conditions 
 of facts, may require care and consideration, to wit : how far the 
 obligations and liabilities of one party are modified towards the other, 
 after knowledge of a negligent exposure by the latter, to danger from 
 the acts or neglect of the former. In such case, what would other- 
 wise have been mere negligence may become willful or wanton wrong, 
 or may take the place of the sole, direct or proximate cause, the neg- 
 ligence of the other party being then regarded as a remote, and not 
 Hepb.Tobts — 70
 
 1106 TOUTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 a contributory, cause." In Hibbard v. Thompson, 109 Mass. 286, we 
 find this language : "A physician may be called to prescribe for cases 
 which originated in the carelessness of the patient, and though such 
 carelessness would remotely contribute to the injury sued for, it would 
 not relieve the physician from liability for his distinct negligence and 
 the separate injury occasioned thereby. * * * jj^ such cases the 
 plaintiff's fault does not directly contribute to produce the injury sued 
 for." So in Pierce v. Cunard Steamship Company, 153 Mass. 87, 26 
 N, E. 416, this court said : "But here the ground is not the fire, but 
 an act done by the defendant after Pierce had got into the dangerous 
 position. * * * The plaintiff's previous negligence is not a suffi- 
 cient excuse for knowingly inflicting an injury upon him, or short 
 of that, for omitting the use of such care as is reasonable under the 
 circumstances, to avoid injuring him, even whether the harm is not 
 expected in terms." 
 
 The rule applies, in like manner, where the plaintiff's act is il- 
 legal as distinguished from negligent, so that the defendant's liability 
 is only for wanton and reckless conduct to the plaintiff's injury. 
 McKeon v. N. Y., N. H. & H. R. R. Co., 183 Mass. 271, 67 N. E. 
 329, 97 Am. St. Rep. 437; Palmer v. Gordon, 173 Mass. 410, 53 
 N. E. 909, 73 Am. St. Rep. 302; Lovett v. Salem, etc., R. R. Co., 
 
 9 Allen, 557-563. In this latter class of cases, where the negligence 
 is wanton and reckless to such a degree as to be in its nature a willful 
 wrong, it is held that, although the plaintiff makes an averment of due 
 care on his part, this means only due care in reference to the direct 
 and proximate cause of the injury, and, such a gross wrong of the 
 defendant being shown to be the cause, it prima facie so far excludes 
 participation in it by the plaintiff, as to relieve him from the necessity 
 of offering affirmative evidence of his care. Aiken v. Holyoke St. 
 Ry. Co., 184 Mass. 269, 68 N. E. 238; Bjornquist v. Boston & Al- 
 bany R. R. Co., 185 ^lass. 130, 70 N. E. 53, 102 Am. St. Rep. 332 ; 
 Banks V. Braman, 188 IMass. 367, 74 N. E. 594. The fundamental 
 principle is the same in both classes of cases. It is that the plaintiff's 
 condition, resulting from his prior negligence or wrong, is not a di- 
 rect and proximate cause of the latter injury, inflicted by one who 
 acts independently, with knowledge of this condition and in reference 
 to it. The principle has been generally recognized, both in England 
 and America.^" * * * 
 
 9 Knowlton, C. J., liere referred to the following cases: Davies v. Mann, 
 
 10 M. & W. 545 ; Radley v. London & N. W. Railway Co., L. R. 1 App. Cas. 
 754; Inland & Seaboard Coasting Co. v. Tolson (llSOl) 1:^.9 U. S. 551, 11 Sup. 
 Ct. 65;!, o5 L. I-:d. 270; Memphis & C. R. R. Co. v. Martin (1901) 131 Ala. 
 2(39, 30 South. 827 ; Green v. Tx)s Ansjeles Terminal R. R. Co. (1904) 14.3 Cal. 
 31-41. 76 Pac. 719, 101 Am. St. Rep. 68; Isbell v. N, Y., N. H. & H. R. R. Co. 
 (1S5S) 27 Conn. 393, 71 Am. Dec. 78; Indianapolis & Cincinnati Ry. Co. v. 
 Wri^'ht (1S(;4) 22 Ind. 370; Keefe v. Chicai,'o & Nortli\vest(M-n Ry. Co. (1891) 
 92 Iowa, 1S2, GO X. W. 503, 54 Am. St. Rop. .542; Atwood v. BanRor, O. & 
 O. T. R. R. Co. (1898) 91 Me. 399, 40 Atl. 07 ; Baltimore & Ohio R. R. Co. v. 
 State (1871) 33 Md. 542; Buxton v. Ainsworth (1904) 138 Mich. 532, 101 N.
 
 Ch. 1) NEGLIGENCE 1107 
 
 We are of opinion that the jury in the present case might have 
 found that the plaintiff was free from any neghgence that was a 
 direct and proximate cause of the injury. 
 
 Exceptions sustained. 
 
 VANDALIA R. CO. v. CLEM. 
 (Appellate Court of Indiana, 1911. 49 Ind. App. 94, 96 N. E. 789.) 
 
 Action against the railway company for damages caused by the 
 defendant's train running into and killing the plaintiff's team, and 
 destroying his wagon, while standing in defendant's freight yards. 
 A demurrer to the complaint for lack of facts was overruled. The 
 defendant then answered in denial. Verdict and judgment for the 
 plaintiff. 
 
 The complaint, after setting out the circumstances attending the 
 entry of the plaintiff's team upon the defendant's property, and the 
 resulting accident contained these averments : 
 
 "Tliat within a few raiuutes after tlie plaintiff's said team had so entered 
 upon defendant's said railroad track at said place, and at about 5:30 o'clock 
 in the evening:, and while it was too dark to see said team and wagon, without 
 light, at a sufficient distance ahead of said engine as it approached them from 
 the west to stop said train, at the rate of speed at which it was then run- 
 ning — oO miles per hour — and prevent its running over said team and wagon, 
 said defendant, without a light, and without a lookout on said engine, and 
 without said yards being in any way lighted, recklessly, wantonly, and will- 
 fully, and without seeing or endeavoring to see said wagon and team so con- 
 fined upon its tracks and switchyard, and without any care or regard for the 
 lives or safety of persons or teams upon said yards or tracks, recklessly 
 and willfully ran said train on, against, and over said team, wagon, and 
 harness while it was so confined upon said defendant's main track in or ad- 
 joining to its switchyards, and thereby willfully and wantonly crushed and 
 killed both of plaintiffs said horses, and destroyed said wagon and harness, 
 to his damage in the sum of $350, all of which occurred through the will- 
 fulness and recklessness of said defendant in so operating its said train, with- 
 out any fault or negligence whatever on the part of tliis plaintiff." 
 
 Adams, J. * * * In the complaint before us, it is averred that 
 the defendant "recklessly and willfully ran said train against and 
 over said team." If the train was willfully run over the team, it 
 implies that the injury was committed not only with purpose and in- 
 
 W. 817, 5 Ann. Cas. 146 ; Rawitzer v. St. Paul City Ry. Co. (1904) 93 Minn. 
 84, 100 N. W. 6G4; State v. :\lanchester & Lawrence R. R. (1873) 52 N. H. 
 528; Railroad Co. v. Kassen (1892) 49 Ohio St. 230, 31 N. E. 282 ; Willey v. 
 Boston & Maine R. H. (1900) 72 Vt. 120, 47 Atl. 398; Richmond Traction Co. 
 V. Martin's Adm'x (1903) 102 Va. 209, 45 S. E. 886 ; Bostwick v. Minnesota & 
 Pacific R. R. Co. (1892) 2 N. D. 440, 51 N. W. 781. 
 
 The rule has often been applied in favor of plaintiffs whose intoxication 
 prevented them from using care to protect themselves from the conse<iuences 
 of a subsetiuent act of negligence of another person, done \\ith kno^^ ledge of 
 their intoxication. Wheeler v. Grand Trunk Ity. Co. (1900) 70 N. H. 007. 50 
 Atl. 103, 54 L. R. A. 955; Kean v. Baltimore & Ohio R. R. Co. (1884) 01 Md. 
 154: Fox V. Michigan Central R. R. Co. (1904) 13S Mich. 433. 101 N. W. 024. 
 68 L. R. A. 336, 5 Ann. Cas. 68; Cincinnati, I., St. L. & C. R. R. Co. v. Cooper 
 (1889) 120 Ind. 469, 22 N. E. 340, 6 L. R. A. 241, 16 Am. St. Rep. 334.
 
 1108 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 tent, but with knowledge as well. Such is the meaning of "willful." 
 8 W'ords and Phrases, 7468. This charge, standing alone, we think 
 would make the complaint good as an action for willful injury, but it 
 does not stand alone. In the same sentence it is averred that the 
 train was run "without seeing or endeavoring to see said wagon and 
 team." This would be negligence. But, there are no degrees of 
 negligence, and negligence, no matter how reprehensible, can never 
 approximate willfulness. The two conditions have nothing in com- 
 mon and everything in conflict. The specific averment that defendant 
 did not see nor try to see the team charges negligence, and must con- 
 trol the general averment that the injury was willfully committed. 
 
 We therefore conclude that the complaint does not state facts suf- 
 ficient to constitute a cause of action for willful injury, and, as con- 
 tributory negligence affirmatively appears by the complaint, it does 
 not state a cause of action for negligence. * * * 
 
 The judgment is reversed, with instructions to grant a new trial 
 and to sustain the demurrer to the complaint^^ 
 
 DOHR v. WISCONSIN CENT. RY. CO. 
 (Supreme Court of Wisconsin, 1910. 144 Wis. 545, 129 N. W. 252.) 
 
 This was an action to recover damages for the death of the plaintiff's 
 intestate through the alleged negligence of the defendant railway com- 
 pany. There was a judgment below for the plaintiflE; the defendant 
 appeals. 
 
 Timlin, J. In this case the jury found the decedent and the de- 
 fendant each guilty of negligence contributing to cause death, and that 
 the negligence for which the defendant was responsible was greater 
 than that of the decedent, and contributed in a greater degree to the 
 injury and death of decedent. The case is presented by counsel for the 
 appellant describing the negligence of decedent as gross negligence, or 
 a very high degree of ordinary negligence, while the counsel for re- 
 spondent minimizes this and contends that the facts show gross negli- 
 gence on the part of the other erring servant of the appellant. 
 
 As we look at the facts, neither of these contentions can be upheld. 
 On a very dark, foggy morning on September 12, 1908, the decedent, 
 section foreman for defendant, started out at 7 o'clock with another 
 section man on his hand car, bound west from Sherwood Station to a 
 point called High Cliff Junction about II/2 miles distant. Between 
 Sherwood and High Cliff, and a mile west of Sherwood, there is a 
 whistling post for that station ; a quarter of a mile further west a high- 
 way crossing. The first regular train from the west was due at Sher- 
 wood at 7 :42 o'clock that morning, and this would give the hand car 
 
 91 Parts of the opinion are omitted.
 
 Ch. 1) NEGLIGENCE 1109 
 
 time to reach High Cliff. Decedent went on the hand car at the usual 
 hour of going to work in the discharge of his duty, and he had on the 
 hand car some tools and implements and lunch pails, and proceeded at 
 a moderate rate of speed without stopping until the moment of colli- 
 sion, but looking and listening for an approaching train. Irregular 
 trains were liable to be sent over this road at any time. The section 
 men were requested to look out for all passing trains and were fur- 
 nished with time-tables of regular trains. The collision was with an 
 irregular train. The verdict of the jury that the deceased was guilty 
 of lack of ordinar}^ care, which contributed to cause his death, is well 
 supported on this evidence, but there was nothing of extraordinary 
 recklessness in going out to work on a very foggy morning in this way. 
 At 6:50 o'clock there left Menasha, or Menasha Junction, east-bound, 
 a locomotive engine and caboose, which collided with this hand car at 
 a point about 4,000 feet west of Sherwood. There was evidence tend- 
 ing to show that the locomotive engineer failed to sound his whistle 
 at the first highway crossing west of Sherwood, or at the milepost one 
 mile west of Sherwood, and was proceeding eastwardly at the rate of 
 22 miles per hour in this dense fog. There was also evidence tending 
 to show that the headlight of this locomotive engine had been acciden- 
 tally extinguished prior to the collision, and also that it was not feasible 
 to tell, from the engineer's position in the cab on a foggy day, whether 
 or not the headlight was burning. There was here no more than ordi- 
 nary' negligence. The rate of speed was not unusual, although rather 
 high for an irregular train in such a fog ; the failure to sound the whis- 
 tle was to some degree explained, but not excused, by the difficulty 
 of determining the exact location of the engine in the fog. The lack 
 of headlight was not known to the engineer. He was running ahead 
 of the passenger train. So that instead of measuring gross negligence, 
 or a very' high degree of ordinary negligence, against the like we are 
 measuring ordinary negligence against ordinary negligence and the 
 question is, Was there, as required by our statute, evidence from which 
 the jury might say that the negligence of the decedent was slighter 
 than that of the engineer, and the negligence of the engineer contrib- 
 uted in a greater degree than did that of decedent to cause the death 
 of the latter? 
 
 Each of these employes of the defendant was, we presume, discharg- 
 ing his duty as such in good faith. The decedent took the chances of 
 going against an irregular train in this fog, relying upon his ability to 
 escape and remove his hand car after hearing the whistle or seeing the 
 headlight. He had full information that he was expected to protect 
 himself against any irregular train that might happen along. This lack 
 of care had the proper causal connection with his death, recognized in 
 the law as proximate cause. The engineer should have known that 
 there might be travelers making the crossing, or section men working on 
 the track, and he should have sounded his whistle at the crossing and at 
 the milepost, and in case he could not see the crossing post or milepost,
 
 1110 TOUTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 he should have sounded his whistle quite continuously, as a warning to 
 section men, and perhaps should also have decreased his speed to about 
 that of an ordinary vehicle. 
 
 When there is a collision between two vehicles traveling in opposite 
 directions on the same track and the ordinary negligence of the person 
 in charge of each vehicle has caused the collision, and one of such per- 
 sons is injured or killed, the court must, notwithstanding subdivision 5 
 of section 1816, St., as amended by chapter 254, Laws 1907, when the 
 point is properly raised, search the evidence and ascertain whether any- 
 thing appears from which the jury would be authorized to find that the 
 negligeirce of the injurer was greater and contributed in a greater de- 
 gree to cause the injury, than that of the injured servant. Kiley v. R. 
 R. Co., 138 Wis. 215, 119 N. W. 309, 120 N. W. 756. * * * 
 
 For the instant case, it is enough to say that here each servant of 
 the railroad company, the injured and the injurer, was of equal rank 
 and authority in the management of the vehicle used and controlled by 
 him. The responsibility resting on each for his safety and the safety 
 of the group co-operating with him, and for the safety of the other 
 negligent servant and his co-operating group, and for the safety of pas- 
 senger trains, was at least equal. The opportunities for anticipating 
 and avoiding danger were at least equal. The necessity for the in- 
 jurer to continue his course without stopping was more imperative and 
 necessary. The rules of employment required the injured servant to 
 exercise diligence to keep out of the way of the injurer. The action- 
 able fact, death, resulted from the collision of the two vehicles the si- 
 multaneous and indivisible result of two vehicles negligently moved 
 in opposite directions, to a meeting point on the same track. Ordi- 
 nary care on the part of the injured servant in the very particular in 
 which the jurv must have found him negligent would have avoided 
 the injury, notwithstanding the negligence of the injurer. The culpa- 
 bility of the injurer in forgetting or failing to blow his locomotive 
 whistle more frequently as a warning to the trackmen was equal to the 
 culpability of the injured in talking out his subordinate on a hand car 
 and proceeding along the track in the unusual fog, when a train might 
 be expected to move down upon them. We may presume tiie injured 
 relied on his ability to get out of the way after hearing the whistle and 
 the injurer on the rule of the employment, tbat the injured must keep 
 out of the way of trains. Under such circumstances, there is no evi- 
 dence from which a court or a jury can say that the negligence of the 
 injured was slighter than that of the injurer. The judgment must 
 therefore be reversed. 
 
 This makes it unnecessary to decide whether, in the instant case, 
 there was any evidence from which the jury might infer that the neg- 
 ligence of the injurer contributed in a greater degree than the negli- 
 gence of the injured to cause the injury. Whether the jury could con- 
 sider the greater weight and impact of the locomotive as a more potent 
 cause of the injury and thus contributing in a greater degree, or the
 
 Ch. 1) NEGLIGENCE 1111 
 
 failure to sound the whistle as expected, and the tendency of such fail- 
 ure to induce the injured servant to continue in his careless course on 
 the track, or the more imperative duty to continue resting upon the 
 injurer, or the rule of the railroad by which the injured was informed 
 that he must rely on himself to keep out of the way of trains, as bear- 
 ing on this second requirement of the statute, need not be decided. 
 
 Judgment reversed and the cause remanded with directions to enter 
 judgment for defendant. 
 
 WixsLow, C. J. As I see this case, duty compels me to dissent. 
 
 When two persons are negligent and injury to one proximately re- 
 sults from the combined negligence of both, it must often be a very 
 delicate and difficult question to decide whether the negligence of one 
 was greater than that of the other, and contributed in a greater degree 
 to produce the injury. There is no yardstick with which to measure 
 the two acts of negligence, nor scales v/ith which to weigh them. How- 
 ever, the lyCgislature has determined that in certain classes of cases 
 this delicate question shall be decided, and that upon its def^ision shall 
 depend -iability, and this courc has sustained and applied that law. ]t 
 is not inherently more difficult to decide, than many another (juestion 
 which courts an.^. juries are daily compelled to decide. * •^ * 
 
 In the present case it seems to me there are unquestionably facts 
 from which reasonable minds might draw different conclusions, both 
 as to the quantum of negligence on each side and as to the degree in 
 which such negligence proximately contributed to cause the injury. 
 
 The deceased and his comrades were going to their work as their 
 duty required, and they were going in the way they were expected to 
 go. The evidence tends to show that they were proceeding slowly and 
 carefully ; their car was light and could be quickly stopped and lifted 
 from the track out of danger ; they knew that no regular train was 
 due; they also knew there were two or three highway crossings direct- 
 ly ahead of them, as well as the station whistling post, and that any 
 approaching locomotive was required to whistle at all of these places. 
 On the other hand, the engineer of the approaching engine knew that 
 he was running wild ; he knew, or should have known, that section 
 men would probably be on their way to work ; he was driving his en- 
 gine through the fog at a speed of over 20 miles an hour without whist- 
 ling at the road crossings ; he was in charge, not of a light vehicle 
 which could be stopped in few feet distance and taken from the track, 
 but of a ponderous mass of steel and iron, which was hurtling over the 
 rails at a speed which rendered it impossible of ready control, and 
 which would probably deal death and destruction to any one rightfully 
 on the crossings or on the track, and did not know of its approach till 
 it emerged from the fog. Knowing all these things, he sounded no 
 whistle and came upon the deceased and his fellow workmen with his 
 engine of death, like a ball shot from a cannon. 
 
 Grant that it must be said that the deceased and his colleagues were 
 guilty of negligence, is there no room upon these facts for a reasonable
 
 1112 TORTS THROUGH ACTS OP CONDITIONAL LIABILITY (Part 3 
 
 mind to conclude that the negligence of the engineer was not only 
 greater, but contributed in a greater degree, to the injury? I think 
 there is ample room for such a conclusion, and so thinking, I cannot 
 agree with the result reached by the court in this case.**^ 
 
 I am authorized to state that Mr. Justice SiEbecke;r agrees with 
 the views expressed in this opinion. 
 
 92 A portion of the opinion of Timlin, J., citing and commenting on a num- 
 ber of eases, is omitted, as is also part of tlie dissenting opinion of the Chief 
 Justice. 
 
 "The doctrine of comparative negligence has been stated as follows: 'The 
 degrees of negligence must be measured and considered, and whenever it 
 shall api^ear that the plaintiff's negligence is comparatively slight and that of 
 the defendant gross, he should not ba deprived of his action.' Galena Ry. 
 V. Jacobs [1S58] 20 111. 478. This doctrine was made part of the law of Wis- 
 consin by statute in 1907, and a similar doctrine has been enunciated in the 
 statutes of Florida and Georgia. Fla. So. Ry. Co. v. Hirst [1892] 30 Fla. 1, 
 11 South. 506, 16 L. R. A. 631, 32 Am. St. Rep. 17 ; Ala., etc., Ry. Co. v. Cog- 
 gins [1898] 88 Fed. 455, 32 C. C. A. 1 ; Atl. Coast Line Ry. Co. v. Taylor 
 [1906] 125 Ga. 454, 54 S. E. 622. It was adopted in Kansas in Union Pac. 
 Ry. V. Rollins [1869] 5 Kan. 167, but repudiated in Atchison, etc., Ry. v. 
 Henry [1896] 57 Kan. 154, 45 Pac. 576, and has been rejected in Illinois, the 
 state of its origin, where, too, it had its greatest development. INlacon v. 
 Holcomb [1903] 205 111. 643, 69 N. B. 79. Except where recognized by statute 
 it probably does not obtain now in any jurisdiction." 9 Mich. Law Rev. 
 444 (1911). 
 
 See also the remark of Robertson, C, in St. Louis & S. F. R. Co. v. Elsing 
 (1913) 37 Okl. 333, 132 Pac. 483, 486: "Evidently it was not the intention of 
 the court to instruct on either of these doctrines of negligence but on the 
 doctrine of comparative negligence, which provides that ijlaintiff may recover, 
 although he is himself guilty of contributory negligence, if that negligence 
 is slight and if the negligence of the defendant is gross in comparison. We 
 are forced to this conclusion by the language of the instruction itself, espe- 
 cially the last sentence thereof, which jjrovides that the negligence of the 
 plaintiff, may be considered by the jui-y in mitigation of damages, which 
 in effect means that the jury may weigh and apportion the concurring acts 
 of negligence of both plaintiff and defendant. The jury under this instruction, 
 to say the least, were inferentially, or impliedly, given authority to deter- 
 mine the degree of negligence of both parties and to apportion the same 
 between them in order to correctly estimate the amount of plaintiff's recov- 
 ery, and they were thereby in effect told that the defendant was not entitled 
 to its defense of contributory negligence which is granted to it, and to all 
 other litigants, under our Constitution and laws. This instruction is there- 
 fore erroneous and does not state the law in this state, for here there can be 
 no recovery by a plaintilf who is guilty of contributory negligence. The 
 doctrine of comparative negligence has no place in the consideration of this 
 case and should not have been given by the court in its charge to the jury 
 as was done in this instruction. The doctrine of comparative negligence has 
 been adopted by statutory provision in several of the states, to wit, Florida 
 (Act June 7, 1887, c. 3744), Georgia (Civ. Code 1895, 2322), Mississippi (Laws 
 1910, c. 135) Texas (Acts 31st Leg. [1st Ex. Sess.] c. 10), and Wisconsin (Laws 
 1907, c. 254). This doctrine was recognized by the courts of Illinois until 
 recently. It is now repudiated there. Krieger v. Railroad Co. [1909] 242 
 111. 544, 90 N. E. 266; Vittum v. Drury [1911] 161 111. App. 003. It has been 
 said to have obtained in Kansas. This, however, is erroneous. See Hall- 
 way Co. V. Walters [1908] 78 Kan. 39, 96 Pac. 340."
 
 Ch. 1) NEGLIGENCE 1113 
 
 SMITH et al. v. CITY OF SHAKOPEE. -^ 
 
 (Circuit Court of Appeals of the United States, Eighth Circuit, 1900. 
 
 44 C. C. A. 1. 103 Fed. 240.) 
 
 This was an admiralty case which originated in the state of Minne- 
 sota and grew out of damage to the steamer Daisy, caused by running 
 into the draw of a bridge across the Minnesota river. This bridge had 
 been constructed by the defendant, the city of Shakopee. The Hbel- 
 ants allege in substance : 
 
 That they were the owners of the steamer Daisy, and that on June 15, 
 1896, at the hour of 2 o'clocli a. m., as the said steamer was proceeding down 
 the Minnesota river witli an excursion party from St. Paul, which liad been 
 spending the day at Chaska, she ran into the draw of the aforesaid bridge, 
 and carried away her smokestack and injured her pilot house and some of 
 her upiier works. It was alleged that the collision in question, and the con- 
 sequent injuries to the steamer, were occasioned because the lights on said 
 bridge were at the time insufficient to disclose the position of the draw, and 
 because the draw was carelessly and negligently opened by the bridge tender 
 who was in the employ of the City of Shakopee, and because the lights on the 
 draw were so negligently displayed as to deceive the pilot and master as 
 to the position of the draw. 9 3 
 
 The District Court directed that the libel be dismissed. The libel- 
 ants appealed. 
 
 Thayer, Circuit Judge. * * * j^ our former decision ^* we 
 said in substance that the proximate or efficient cause of the collision 
 with the bridge seems to have been that the pilot attempted to pass 
 through the draw before he was assured that it was fully opened. This 
 conclusion was induced, how^evc-r, by the finding that the bridge was 
 provided with adequate lights, considering its location and the amount 
 of navigation on the Minnesot?, river, to meet the requirements of the 
 common law. The same conclusion cannot be formed on the present 
 occasion, since it was the dutj of the city to provide such lights as are 
 required by the regulations of the lighthouse board, and, if such lights 
 had been provided, the position of the three green lights would have 
 shown at a glance when the draw was fully swung. The city was at 
 fault, therefore, in not furnishing the requisite lights. 
 
 On the other hand, we think that the pilot and the captain, one or 
 both of them, did not exercise that degree of care and circumspection 
 which they should have exercised, in attempting to pass through the 
 draw before they were assured that it was fully swung. Even if the 
 city was at fault in failing to provide the requisite lights, those in 
 charge of the steamer had no right to attempt to pass through the 
 bridge until they had taken the precaution to ascertain that the passage 
 could be made in safety. The conditions were such that the steamer 
 could have been held at a safe distance from the bridge until the men 
 
 83 The statement of facts Is slightly abridged. 
 
 04 Part of the opinion is omitted. The "former decision" will be found 
 in 97 Fed. 974, US C. C. A. 617 (1899).
 
 1114 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 who were in charge of the draw had advised the pilot that the draw 
 was fully swung and ready for the passage of the steamer; and such 
 action, we think, should have been taken. The case is one, in our judg- 
 ment, where the accident was occasioned by the concurring negligence 
 of both parties, and in such cases the admiralty rule is to divide the 
 damages. The Max Morris, 137 U. S. 1, 9, 11 Sup. Ct. 29, 34 L. Ed. 
 586; The Britannia, 153 U. S. 130, 144, 14 Sup. Ct. 795, 38 L. Ed. 660; 
 The Lisbonense, 53 Fed. 293, 3 C. C. A. 539. 
 
 There is some uncertainty in the proof as to the true amount of the 
 damages that were occasioned by the collision, but we are satisfied by 
 an investigation of the evidence on that point that they did not exceed 
 $1,000. The decree of the district court directing that the libel be dis- 
 missed is reversed, and the case is remanded to that court with direc- 
 tions to vacate said decree, and in lieu thereof to enter a decree in fa- 
 vor of the libelants for the sum of $500 and costs. ^^ 
 
 III. Assumption of Risk as an Excuse 
 
 The doctrine of volenti non fit injuria stands outside the defence 
 of contributory negligence and is in no way limited by it. In indi- 
 vidual instances the two ideas sometimes seem to cover the same 
 ground, but carelessness is not the same thing as intelligent choice, 
 and the Latin maxim often applies when there has been no careless- 
 ness at all. A confusion of ideas has frequently been created in ac- 
 cident cases by an assumption that negligence to the many who are 
 ignorant may be properly treated as negligence as regards the one 
 individual who knows and runs the risk, and by dealing with the 
 case as if it turned only on a subsequent investigation into contribu- 
 tory negligence. In many instances it is immaterial to distinguish 
 between the two defences, but the importance of the distinction was 
 pointed out both by Erie, C. J., in his summing up to the jury in 
 Indermaur v. Dames, Law Rep. 1 C. P. at 277, and by Cockburn, 
 C. J., in Woodley v. Metropolitan District Ry. Co., 2 Ex. D. 384."'' 
 
 Bowen, L. J., in Thomas v. Quartermaine (1887) 18 O. B. D. 685, 
 697. 
 
 95 Compare Rt. Louis & Tenn. Packet Co. v. Murray & Wathan (1911) 144 
 Ky. 815, 139 S. W. 1U7S, where the admiralty rule is followed in a state 
 court. See also Burdick on Torts (2d Eld.) 487, 488. 
 
 96 Compare the remark of Erie J., Id. p. 277: "To my mind, there would 
 not be the least symptom of want of due care as between the (lefendiint and a 
 person (permanently) employed on his premises, because the sngar-bakiui? 
 business requires a lift on the premises, which must be as well known to tlie 
 persons employed there as the top of a staircase in every dwelling house. But 
 that which may be no negligence towards men ordinarily employed upon the 
 premises, may be negligence towards strangers lawfully coming upon the prem- 
 ises in the course of their business." 
 
 Compare the remark of Cockburn, C. J., Id. p. 390: "That which would 
 be negligence in a company, with reference to the state of their premises
 
 Ch. 1) NEGLIGENCE 1115 
 
 COOK V. JOHNSTON. 
 
 (Supreme Court of Michigan, 1885. 58 Mich. 437, 25 N. W. 388, 
 
 55 Am. Rep. 703.) 
 
 Case. Defendant brings error. 
 
 CampbelIv, J. Plaintiff recovered damages in the sum of $3,000 
 for personal injuries claimed to have been caused by defendant's neg- 
 ligence whereby it is alleged a fire was set in a shed occupied by the 
 plaintifif. The facts as relied upon were that plaintift's husband was 
 a tenant of defendant, occupying a wing of her house at the corner 
 of Sixteenth and Canfield streets in Detroit. Behind the house was 
 a low shed divided into three parts by internal partitions from five 
 to six feet high, of which defendant occupied the middle one, and 
 plaintiff's husband the adjoining one at the north end. In the middle 
 partition was a water-closet used by defendant and her tenants joint- 
 ly. In this middle part, on the side furthest from Mr. Cook's, was 
 an ash barrel, which Mr. Cook described as a stout, iron-bound cask, 
 such as is used for liquids. Plaintiff' claims that the fire was caused 
 by ashes in this barrel. She and her husband, as they testify, were 
 awakened by the light of the fire burning through the top of this 
 middle part, and as soon as they could they went into their own part 
 and undertook to get out their horse, that was lying down so that she 
 could not easily loose the halter. W'hile trying to do this the fire 
 swept over the partition and burned her very severely, so as to nearly 
 or quite disable her from doing her accustomed work. 
 
 The principal question in the case was upon the liability of the 
 defendant if the fire took from^ negligence for which she may have 
 been chargeable for the damages on which recovery was had in this 
 case. 
 
 The plaintiff showed by her testimony that she and her husband 
 saw the ash-barrel daily and knew all about its position. It also ap- 
 pears by the showing of both that the shed, which was entirely open 
 within from end to end, above the partitions, was burning so brightly 
 as to wake them up, and continued burning when they entered to 
 loose the horse and get out the buggy. The danger was before their 
 eyes, and what happened by the sweeping down of the flames was 
 
 or the manner of conducting their business, so as to give a right to com- 
 pensation for an injury resulting therefrom to a stranger lawfully resorting 
 to their premises in ignorance of the existence of the danger, will give no 
 such right to one, who being aware of the danger, volunt'irily encounters it, 
 and fails to take the extra care necessarj- for avoiding it. The same ob- 
 servation arises as before: with full knowledge of the manner in which the 
 trattic was carried on, and of the danger attendant on it, the plaintiff thought 
 proper to remain in the emplojinent. No doubt he thought that by the ex- 
 ercise of extra vigilance and care on his part the danger might be avoid- 
 ed. By a want of p;irticular care in depositing one of his tools he exposed 
 himself to the danger, and unfortunately suffered from it. He cannot, I think, 
 make the company liable for injury arising from danger to which he vol- 
 untarily exposed himself."
 
 1116 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 as likely to happen as not. It is not very important by what name 
 the action of plaintiff should be called. It was such a risk as she 
 chose to take, to save her husband's property. But it was a plain 
 and palpable risk nevertheless, and the injury would not have occurred 
 unless for her voluntary act in assuming the exposure. 
 
 There, is some conflict in the cases concerning what damages have 
 been held not too remote for recovery. But it would be going beyond 
 all reason to hold a person liable for bodily injuries suft'ered by 
 another in voluntarily and deliberately entering a burning wooden 
 shed not divided into detached parts, and reached by the flames while 
 at work within it. The loss of presence of mind under such cir- 
 cumstances is one of the commonest and most likely incidents of in- 
 curring such an exposure. The act in which she was engaged may 
 have been such as she may have thought proper and laudable, and 
 worth some risk, but defendant's responsibility cannot be created or 
 increased by such independent and voluntary conduct of plaintiff in 
 putting herself in harm's way. 
 
 We think that no recovery should have been had on the facts as 
 shown by plaintiff herself, and that the case should not have gone 
 to the jury. 
 
 The judgment must be reversed with costs and a new trial granted. 
 
 OSBORNE V. LONDON & N. W. RY. CO. 
 
 (Queen's Bench Division, 1SS8. 21 Q. B. Div. 220.) 
 
 Appeal by the defendants from the judgment of the Judge of the 
 County Court at Birmingham in an action to recover damages for 
 personal injury alleged to have been caused by the negligence of the 
 defendants in allowing a flight of steps to be in a dangerous condition. 
 
 The JDlaintiff in his evidence at the trial stated that he was a season- 
 ticket holder on the defendants' line, that on the morning of March 
 21, 1887, he went down the steps to the platform of the station at 
 Perry Barr to take the train to Birmingham, that he went down a 
 flight of stone steps leading to the platform, which were covered with 
 a light layer of snow which had been trodden down and frozen 
 over, that the steps were worn and hollowed, and were slippery, that 
 he went down carefully and not in a hurry, but slipped on the steps, 
 and fell, and dislocated his wrist. 
 
 In cross-examination he said that there were wooden steps leading 
 to the platform on the other side of the line, that his train started 
 from the platform to which the wooden steps led, that sometimes 
 he went one way and sometimes the other, that the stone steps were 
 on the side nearest to his house, that by going down the stone steps 
 and crossing the line he saved going round by the bridge by which 
 the road was carried over the railway, that the steps were dangerous
 
 Ch. 1) NEGLIGENCE 1117 
 
 without snow, that he thought it was dangerous to go down, and 
 went down carefully, and took hold of the rail to prevent slipping, 
 that he thought holding the rail was sufficient. 
 
 The County Court Judge was of opinion that the accident was pri- 
 marily caused by the worn and defective state of the steps, which 
 was aggravated by the frosty weather, which made them slippery in 
 addition, that the steps had not been properly and efficiently swept 
 and cleaned from the caked snow, which, added to the worn condi- 
 tion of the steps, caused the plaintiff to fall, and that there was no 
 contributory negligence on the part of the plaintiff, and gave judg- 
 ment for the plaintiff for i25, the amount being agreed. 
 
 Alfred Young, for the defendants. Notwithstanding the findings 
 of fact as to negligence the defendants are entitled to judgment. The 
 plaintift"s own admission that he knew there was some danger shows 
 that he voluntarily elected to go down the stone steps with full knowl- 
 edge of the risk he was incurring. The maxim "Volenti non fit in- 
 juria'' therefore applies, and prevents the plaintiff from being enti- 
 tled to recover: Thomas v. Ouartermaine, 17 O. B. D. 414, affirmed 
 18 Q. B. D. 685. It is true that the burden of proof lies upon the 
 defendants, but they have satisfied the burden of proof by the plain- 
 tiff"'s own evidence, and for the purpose of establishing this defence 
 it is unnecessary to rely on the evidence of the witnesses called for the 
 defendants. 
 
 Wills, j. * * * p^j. ^j^g purposes of the present case it is 
 enough to take the view expressed by Lord Esher, M. R., in Yar- 
 mouth V. France, 19 O. B. D. at p. 657, where he says : "I see noth- 
 ing in the decision in Thomas v. Ouartermaine, 18 Q. B. D. 685, to 
 prevent the plaintiff from recovering in this case, unless the circum- 
 stances were such as to warrant a jury in coming to the conclusion 
 that the plaintiff freely and voluntarily, with full knowledge of the 
 nature and extent of the risk he ran, impliedly agreed to incur it." 
 
 It seems to me to follow that in such a case as the present, where 
 the existence of negligence on the part of the defendants, and the 
 absence of contributory negligence on the part of the plaintiff, are 
 specifically found as matters of fact, if the defendants desire to suc- 
 ceed on the ground that the maxim "Volenti non fit injuria" is ap- 
 plicable, they must obtain a finding of fact "that the plaintiff freely 
 and voluntarily, with full knowledge of the nature and extent of 
 the risk he ran, impliedly agreed to incur it." I agree with J\Ir. Wills 
 that this is a question of fact, and, this being so, it follows that the 
 defendants could not succeed unless either they had a finding of 
 fact in their favour, or we had all the facts before us, so that we were 
 in a position to decide the question. I entertain some doubt as to 
 how far this question has been dealt with by the County Court Judge. 
 Mr. Young says it was argued before him, but it does not appear 
 that he gave any specific decision on it. It may be that he said 
 nothing about the question because it seemed to him to be quite clear,
 
 1118 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 and if that were so he would not have found the fact in favour of the 
 defendants; or he may have inadvertently omitted to refer to the 
 point, in which case it would be open to us to deal with it. If I 
 had had to decide this point as a question of fact I should have 
 thought it necessary that the plaintiff should be asked more questions 
 than he was asked in cross-examination. It is clear from his evi- 
 dence that he knew there was some danger, but the contention on be- 
 half of the defendants, that this circumstance is sufficient to entitle 
 them to succeed, entirely gives the go-by to the observations of Lord 
 Esher, M. R., in Yarmouth v. France, 19 O. B. D. at p. 657, which 
 I have already quoted, and those of Bowen, L. J., in Thomas v. 
 Ouartermaine, 18 O. B. D. at p. 696, which were referred to in the 
 course of the argument. Those observations go far to make it hard 
 for a defendant to succeed on such a defence as that relied on here, 
 for it is probable that juries would often find for plaintiffs on the 
 ground that they had not full knowledge of the nature and extent 
 of the risk, but that cannot be helped. These judgments introduce 
 an important qualification of the maxim "Volenti non fit injuria." 
 
 In the present case the plaintiff may well have misapprehended 
 the extent of the difficulty and danger which he would encounter in 
 descending the steps ; for instance, he might easily be deceived as 
 to the condition of the snow; I know quite enough about ice and 
 snow to know how easy it is to make such a mistake, and it is one 
 that has cost many a man his life. In order to succeed the defend- 
 ants should have gone further in cross-examination, for, unless the 
 question of fact had been found in their favour, the application of the 
 maxim on which they relied could not be established. The County 
 Court Judge has not found the fact the defendants need; and upon 
 the present materials I certainly am not prepared to supply the de- 
 ficiency. 
 
 For these reasons, the onus of proof being on the defendants, I 
 think that on the evidence as it stands their defence is not made out, 
 and therefore their appeal must be dismissed.*^ 
 
 87 Part of the opinion of Wills, J., and all of the opinion of Grantham, J., 
 are omitted. 
 
 Compare the remark of Bowen, L. J., in Thomas v. Quartermaine (1887) 18 
 Q. B. D. nSo, C96: "It is no doubt true that the knowledge on the part of 
 the injured i)erson which will prevent him from alleging negligence against 
 the occupier must be a knowledge under such circumstances as leads neces- 
 sarily to the conclusion that the whole risk was voluntarily incurred. The 
 maxim, be it observed, is not 'scienti non fit injin-ia,* but 'volenti.' It is plain 
 that mere knowledge may not be a conclusive defence." 
 
 And see 1 Boven's Negligence (3d Ed.) G32: "It [the maxim 'Volenti non fit 
 injuria'] is found also in the Cancm Law ; whore it appears in the form 
 'Scienti et consentienti non fit injuria neque dolus.' This is a notable tes- 
 timony to Bowen, L, J.'s legal insight, according exactly with his obser- 
 vation that the 'maxim is not "scienti non fit injuria," but "volenti" ' ; that 
 'mere knowledge may not be a conclusive defence.' " 
 
 Accord: Ward v. Dampskibselskabet Kjoebenbaven (D. C, 190r>) 186 Fed. 
 502: (The plaintiff's intestate, Dr. Ward, wont on board the defendant's 
 steamship, lying at quarantine, in the performance of his duty as quaran-
 
 Ch. 1) NEGLIGENCI 1119 
 
 WRIGHT V. CITY OF ST. CLOUD. 
 
 (Supreme Court of Minnesota, 1893. 54 Minn. 94, 55 N. W. 819.) 
 
 Action against the city of St. Cloud to recover for a personal in- 
 jury received by the plaintiff through the alleged negligence of the 
 defendant. The plaintiff had judgment; the defendant appeals. 
 
 Mitchell, J. This was an action to recover damages for personal 
 injuries caused by the alleged negligence of the defendant, in permit- 
 ting snow and ice to accumulate and remain upon a public sidewalk 
 so as to render it unsafe for travel. The only question is whether 
 the evidence justified the verdict. The accident occurred in the lat- 
 ter part of February, in the residence part of the city, about seven 
 squares from its business center. Abutting this part of the sidewalk 
 there was unoccupied property about 80 feet in width. On either 
 side the occupants had kept the sidewalk in good order, but opposite 
 this property the snow had not been removed during the entire win- 
 ter, and the result was that it had gradually accumulated to the depth 
 of from one to two feet, tTirough which pedestrians had trodden a 
 narrow, irregular path. As the result of successive falls and drifting 
 of snow, and alternate thawing and freezing, in connection with the 
 continual travel, this path had become quite rough, uneven, and icy, 
 having gradually grown worse as the winter advanced. As different 
 witnesses described it, "it had hollowed out, and left ridges ;" "the 
 humps, holes, and hollows were quite noticeable;" "it had hollowed 
 
 tine phj-sician. It was at night, dark and misty. The hatches of the ship 
 were open, for she was coaling, which was unusual at night. After performing 
 his duties, Dr. Ward, with the master of the vessel and a Capt. Bellevou, 
 who was superintending the coaling of the vessel, started to return from the 
 cabin aft by the open hatch, and after walking about 12 feet were stopped to 
 IJermit the workmen to pass a bucket of coal to the hatch. The open hatch 
 was about 40 feet from the master's cabin, 3 feet wide by 5 feet long, and 
 the passageway between it and the rail on the starboard side was 2 feet 5% 
 inches wide at its narrowest and 2 feet 11% inches at the widest point. 
 At a point 2 feet 4 inches aft the aft end of the open hatch, a smokestack guy, 
 fastened to the deck near the rail, led off toward the port side at an angle 
 requiring a man either to stoop or move in the direction of the open hatch 
 to pass under it. After stopping to permit the bucket of coal to pass, Capt. 
 Bellevou and the doctor continued their return journey, the master remaining 
 behind. The captain was slightly in the rear of the doctor, and nearer the 
 rail, and had his hand upon the doctor's shoulder. As they neared the 
 hatch, Capt. Bellevou said to him, "Doctor, be careful ;" he answered, "That 
 is all right." The captain again said, "Doctor, mind the hatch ;" and he re- 
 sponded, "That's all right, captain." They had proceeded to the aft end of 
 the hatch, when Dr. Ward stepped into the open hatchway, and fell 35 feet 
 to the bottom of the vessel. The hatch coverings had been placed in the 
 passageway over which they traveled, filling the passage nearly to the top 
 coaming of the hatch. Dr. Ward had been on the vessel before in his official 
 capacity, but was not thoroughly acquainted with its arrangement. He had 
 been told the hatch was open, and no doubt saw it, but under circumstances 
 with no liglit shining out of the hatch to show him exactly the dimeu>sions 
 and extent of the opening, and only a diffused light above, the rays of which 
 were not especially directed to the opening, and so located as to rather blind 
 the inexperienced.)
 
 1120 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 out places sort of sidling and saucer shaped ;" "was full of holes and 
 hummocks from two to four inches deep ;" "the bottom was un- 
 even and sidling." These and similar descriptions clearly photograph 
 in the mind of any one familiar with such things a distinct picture 
 of the irregular and uneven path trodden by pedestrians through 
 snow as frequently seen on neglected sidewalks, in the winter time, 
 in the residence portions of most towns, the condition of which grows 
 gradually worse as the winter advances. About noon on a some- 
 what cold, but bright and pleasant, day, the plaintiff was traveling 
 this walk, on her way home from church. She had not traveled this 
 side of the street that winter, and had no previous knowledge of its 
 condition. On reaching this part of the walk she admits that she 
 looked at it, and saw its condition before she started across. She 
 says she "had no idea it was as bad as it was," but it is impossible, 
 under the circumstances, that she did not see and understand its gen- 
 eral character, and the consequent difficulty in traveling it, and the 
 danger of slipping and falling in doing so. In fact she admits that 
 she saw these ridges and hollows, and that it occurred to her, the 
 minute she reached it, that it was a dangerous place to walk. She 
 knew that the sidewalk on the opposite side of the street (on which 
 her residence was) was in good condition, and that she could entirely 
 avoid the danger by retracing her steps 100 feet to a street crossing, 
 and going over to the other side of the street; but instead of doing 
 so she proceeded, and, in going across, slipped and fell, and sustained 
 the injuries complained of. The defendant's contentions are (1) 
 that there was no evidence of its negligence; and (2) that the evidence 
 conclusively showed that the plaintiff was guilty of contributory neg- 
 ligence. * * * 
 
 But conceding, what we think the evidence tends to show, that the 
 city was negligent, we think it also appears clearly that the plaintiff 
 herself was lacking in ordinary care. We have held, in common with 
 every other court, that the mere fact that a person attempts to travel 
 a highway after notice that it is out of repair is not necessarily neg- 
 ligence ; that this depends on circumstances. Erd v. City of St. Paul, 
 22 Minn. 443 ; Estelle v. Village of Lake Crystal, 27 Minn. 243, 6 
 N. W. 775 ; Kelly v. Railway Co., 28 Minn. 98, 9 N. W. 588 ; Mc- 
 Kenzie v. City of Northfield, 30 Minn. 456, 16 N. W. 264; Nichols 
 v. Minneapolis, 33 Minn. 430, 23 N. W. 868, 53 Am. Rep. 56. But 
 none of these cases were altogether analogous in their facts to the 
 present one. In all of them it will be found either that the traveler 
 had no other practicable road, and had either to pass over the de- 
 fective way, or abandon his journey, or that, although aware that 
 the road or walk was out of repair, he had no knowledge of the ex- 
 istence of the particular defect which caused the injury, or that the 
 accident occurred in the dark, and that the traveler, although having 
 previous knowledge of the situation, had not presently in mind the 
 existence of the defect, or the consequent risk. But in the present
 
 Ch. 1) NEGLIGENCE 1121 
 
 case, while plaintiff might not have known of the existence or location 
 of any particular hollow or hole in this path, it is very clear from 
 her own testimony that she had full and present knowledge of the 
 precise condition of this part of the sidewalk, and of the risk in- 
 cident to traveling over it. The only risk was that of slipping and 
 falling, and that was perfectly patent to any one of ordinary intel- 
 ligence. She simply overestimated her own ability to travel across 
 it without falling. There was no necessity of her going over the 
 defect, but she could have easily, and without appreciable incon- 
 venience, have avoided it, by going across to the other side of the 
 street, where the walk was perfectly safe. Under such circumstances 
 she was not in the exercise of reasonable care, but must be presumed 
 to have taken her chances, and having done so, and an injury having 
 resulted, she cannot recover from the city. No different rule as to 
 contributory negligence, or assumption of risks, whichever it is called, 
 is to be applied from that which would be applied to any other case; 
 and, if the plaintiff had exercised half as much care for her own safety 
 as she exacts from the city for the safety of travelers, the accident 
 would never have occurred. Wilson v. City of Charlestown, 8 Allen 
 (Mass.) 137, 85 Am. Dec. 693 ; Schaefler v. Sandusky, 33 Ohio St. 
 246, 31 Am. Rep. 533 ; Horton v. Inhabitants of Ipswich, 12 Cush. 
 (Mass.) 488; City of Quincy v. Barker, 81 111. 300, 25 Am. Rep. 278. 
 Judgment reversed.^® 
 
 MALOY V. CITY OF ST. PAUL. :«^^ 
 
 (Supreme Court of Minnesota, 1893. 54 Minn. 398, 56 N. W. 94.) 
 
 Action against the city of St. Paul to recover for a personal in- 
 jury received by the plaintiff because of a defective sidewalk. Plain- 
 tiff had a verdict, and appeals from an order granting a new trial. 
 
 Collins, j. * * * fhe defect was in the walk in front of the 
 lot on which plaintiff resided with her husband, and close by their 
 dwelling. The planks in the walk at this particular point had been 
 laid lengthwise, and one had been broken down, so that there was a 
 hole about 18 inches long and about 6 inches in width, at the widest 
 place. The walk had been laid 6 inches above the surface of the 
 ground. It had been in this defective condition for more than three 
 months, and plaintiff had known of this all of the time. She had 
 passed by this break or hole daily for more than two months prior 
 to the evening of this accident, carefully avoiding the dangerous place. 
 When the accident occurred, there was a light snow upon the walk, 
 partly filling the hole, and the snow was still falling. About dark, 
 plaintiff, who was 50 years of age, having occasion to go to a neigh- 
 bor's went out on the walk, and, stepping into the hole, was thrown 
 
 »8 Part of the opinion is omitted. 
 Hepb.Toets — 71
 
 1122 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 down, thus receiving the injuries complained of. She testified that 
 the falling snow was blown into her eyes so that her vision was ob- 
 structed, and also that she did not think of the defect as she walked 
 along. It did not appear from the testimony that there was anything 
 to distract her attention, and, because there was nothing justifying 
 or excusing inattention to the well-known condition of the walk, the 
 court below ordered a new trial. 
 
 In accordance with the prevailing rule everywhere, it has again and 
 again been held by this court that previous knowledge of tbe condi- 
 tion of a street or sidewalk is not conclusive evidence of contributory 
 negligence, so as to bar a recovery by a person injured in conse- 
 quence of its being out of repair ; and the cases were collated very 
 recently in Wright v. City of St. Cloud, 54 Alinn. 94, 55 N. W. 820, 
 in which a recovery was denied because it was apparent from plain- 
 tiff's own testimony that she had full and present knowledge of the 
 exact condition of the walk, and the risk incident to traveling upon 
 it, and could easily have avoided it, and simply overestimated her 
 own ability to go across, in broad daylight, without falling. On the 
 facts the case at bar is not analogous. The defect here was not such 
 as would or should have turned the prudent traveler off from the 
 walk to seek a better route. The accident happened in the evening, 
 when the snow was falling, blowing, and to some extent obscuring 
 the vision of the plaintiff, and filling the hole in the walk. Although 
 advised of the defect, she did not have it presently in mind. Nor 
 is it necessary that the thoughts of a traveler should be at all times 
 fixed upon aefects in the street or sidewalk, of which he may have 
 notice. George v. Haverhill, 1 10 Mass. 506 ; Barton v. City of Spring- 
 field, 110 Mass. 131. It is certain that previous knowledge of the 
 existence of a defect has an important, and oftentimes a decisive, 
 bearing upon the question of contributory negligence ; but mere in- 
 attention to a known danger, on the part of this plaintiff, cannot be 
 held to conclude her. * * * 
 
 Order reversed.^® 
 
 / JUDSON v. GIANT POWDER CO. 
 
 (Supreme Court of Califoraia, 1S95. 107 Cal. 549, 40 Pac. 1020, 
 29 L. R. A. 718, 48 Am. St. Rep. 146.) 
 
 In an action against the Powder Company for damages caused by 
 explosion resulting from its alleged negligence, the plaintiff' below re- 
 covered judgment for $41,165.75. From this judgment, and an or- 
 der denying a motion for a new trial, the Powder Company appeals. 
 
 Garoutte, j. * * * The damages to respondents' property 
 were occasioned by an explosion of nitro-glycerine, in process of man- 
 
 99 Parts of the opinion are omitted.
 
 Ch. 1) NEGLIGENCE 1123 
 
 ufacture into dynamite, in appellant's powder factory, situated upon 
 the shore of the bay of San Francisco. Appellant's factory build- 
 ings were arranged around the slope of a hill facing the bay. Near- 
 est to respondents' property was the nitro-glycerine house ; next was 
 the washing-house; next were the mixing houses; then came the 
 packing-houses, and finally the two magazines used for storing dyna- 
 mite. These various buildings were situated from 50 to 150 feet 
 apart, and a tramway ran in front of them. The explosion occurred 
 in the morning during working hours, and originated in the nitro- 
 glycerine house. There followed, within a few moments of time, 
 in regular order, the explosion of the other buildings, the two maga- 
 zines coming last ; but, though last, they were not least, for their ex- 
 plosion caused the entire downfall and destruction of respondents' 
 factory, residences, and stock on hand. There is no question but 
 that the cause of this series of explosions following the first is directly 
 traceable, by reason of fire or concussion, to the nitro-glycerine ex- 
 plosion. Of the many employes of appellant engaged in and about 
 the nitro-glycerine factory at the time of the disaster none were left 
 to tell the tale. Hence, any positive testimony as to the direct cause 
 of the explosion is not to be had. The witnesses who saw and knew, 
 like all things else around, save the earth itself, were scattered to the 
 four winds. 
 
 1. Respondents sold the premises to appellant for the manufacture 
 of dynamite, and it is claimed that the maxim, Volenti non fit injuria, 
 applies, and therefore no recovery can be had. We attach but little 
 importance to this contention. The grant of these premises for the 
 purpose of a dynamite factory in no way carried to appellant the 
 right tO' conduct its factory, as against the grantors, in any and every 
 way it might see fit. There is no principle of law sustaining such a 
 proposition. Let it be conceded that respondents, by reason of their 
 grant, could not invoke the aid of a court of equity to prevent the 
 appellant from conducting its business ; still that concession proves 
 nothing. This action is not based upon the theory that appellant's 
 business is a nuisance per se, but negligence in the manner in which 
 the business was conducted was alleged in the complaint, and is now 
 insisted upon as having been proved at the trial. In making the grant 
 respondents had a right to assume that due care would be exercised 
 in the conduct of the business, and certainly they have a right to 
 demand that such care be exercised. 
 
 It is argued that the explosion of all powder-works is a mere mat- 
 ter of time; that such explosions are necessarily contemplated by 
 every one who builds beside such works, or who brings dynamite into 
 his dooryard. It is further contended that appellant gave to respond- 
 ents actual notice of the dangerous character of its business by a 
 previous explosion, which damaged respondents' property, and that 
 respondents, by still continuing in business after such notice, in a 
 degree assumed and ratified the risk, and cannot now be heard to com-
 
 1124: TOKTS THROUGH ACTS OP CONDITIONAL LIABILITY (Part 3 
 
 plain. The only element of strength in this line of argument is its 
 originality. The contention that in the ordinary course of events all 
 powder-factories explode, conceding such to be the fact, presents an 
 element foreign to the case. The doctrine of fatalism is not here 
 involved. In the ordinary course of events the time for this exjilo- 
 sion had not arrived, and appellant had no legal right to hasten that 
 event by its negligent acts. Neither do we think respondents lost 
 any legal rights by continuing to do business in this locality after 
 being served with notice of the danger that surrounded them. While 
 the notice was in the form of an object lesson, which came to them 
 in no uncertain tones, yet appellant was not justified in serving it, 
 nor were respondents negligent in disregarding it. Respondents were 
 not bound to abandon their property, though negligence of appellant 
 in the conduct of his factory was ever a menace and danger to their 
 lives and property. Conceding that respondents, by their grant, there- 
 by assumed certain risks and dangers which may be said to always 
 surround the manufacture of dynamite, still they assumed no risks 
 and waived no action for damages which might arise through appel- 
 lant's negligence. Both reason and authority support this conclu- 
 sion. * * * 1 
 
 Judgment and order affirmed. 
 
 MAGAR V. HAMMOND. 
 
 (Court of Appeals of New York, 1902. 171 N. Y. 377, 64 N. E. 150, 
 
 59 L. K. A. 315.) 
 
 Appeal from a judgment of the Appellate Division of the Supreme 
 Court, affirming a judgment in favor of plaintiff entered upon a ver- 
 dict and an order denying a motion for a new trial. 
 
 O'Brien, J. There is very little dispute with respect to the lead- 
 ing and important facts of this case, but the rule of law to be ap- 
 plied to the facts is not so clear. The defendant Hammond and his 
 servant have been sued jointly in an action based upon a personal 
 injury that the plaintiff sustained resulting from the servant's negli- 
 gence, as is claimed. The jury rendered a verdict for the plaintiff' of 
 $15,000 and the judgment has been unanimously affirmed below. 
 
 In the year 1893 Hammond purchased over three hundred acres 
 of wild forest land in Sullivan county. By damming up small streams 
 or springs and other operations he created an artificial lake upon the 
 property of considerable dimensions. There was some low land free 
 from timber which it seems furnished a natural bed for the lake, 
 
 1 In the omitted portion of tlie opinion, tlie court reaches the conclusion, 
 after an elaborate consideration of authority, tliat although all the witnesses 
 of the accident liad "been scattered to the four winds," there was still a 
 prima facie case of negligence, in the principle of res ipsa loquitur.
 
 Ch. 1) NEGLIGENCE 
 
 1125 
 
 and it was surrounded by a dense growth of timber and bushes. Hav- 
 ing created the lake he proceeded to stock it with trout. It seems 
 that it was impossible for the fish to get into the lake through the 
 dams on the surrounding springs or streams, but the fish were propo- 
 gated by artificial means, and it became an industry that produced 
 some revenue to the owner by selling the trout and permitting peo- 
 ple to fish there for a compensation. He also built a house, boat- 
 house and hatchery for trout spawn, in which it is said two million 
 of the same were produced annually. He had to employ men to 
 attend to the hatchery and otherwise in and about the property, and 
 to prevent vermin from destroying the eggs. He prepared and posted 
 notices around the tract to warn off trespassers, as prescribed by the 
 statutes of the state. 
 
 The owner's co-defendant in this action was the night watchman, 
 whose business it was to be on the lake at night to protect the fish 
 from poachers and wild animals that frequently came to the place 
 to take the fish. The owner had two guns, one a shotgun and the 
 other a rifle. The watchman had been in the habit of carrying one 
 or the other of the guns with him when on the lake in a boat for 
 the purpose of killing muskrats, mink and other animals about the 
 lake. He sometimes fired into the air in order to frighten off poach- 
 ers. On the 9th day of June, 1899, the plaintiff and two other young 
 men went to the lake to take fish, and were there after 10 o'clock 
 in the evening, the night being very dark. They did some fishing 
 and retired into the thick woods on the shore. It does not appear 
 that the watchman had seen them or knew that they had been fish- 
 ing, but the crackling of the brush in the woods indicated to him that 
 some one was there, or at least the jury could have so found. There 
 is no claim that the watchman knew that the plaintiff' was in the 
 woods, but there was some evidence tending to show that he knew 
 or should have known that some human being was there, and the 
 verdict affirms this proposition. The watchman had the rifle, and 
 on hearing the noise in the woods fired at least three shots in the 
 direction, and one of the bullets struck the plaintiff in the hip, in- 
 flicting a very serious if not permanent injury. The master was not 
 present and knew nothing of the transaction, but he did know that 
 the guns were on the premises and that the watchman was accus- 
 tomed to use them in the manner and for the purposes described, 
 and if he is responsible at all for the act of the servant it must be 
 implied from these facts. 
 
 There were several propositions decided by the learned trial judge 
 at the close of the case, which for all the purposes of this appeal 
 must be treated as the law of the case. He ruled that there was no 
 question for the jury and it could not be found that the shooting was 
 willful or malicious, and the only question was whether the watchman 
 was negligent and the owner responsible for such negligence. He 
 instructed the jury that the plaintiff was guilty of a crime in going
 
 1126 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 upon the defendant's premises to fish in the manner described, and 
 that the defendant owed him no duty except to refrain from inten- 
 tionally doing him an unnecessary injury or an injury through wanton 
 or reckless negligence; that the owner gave no express authority to 
 the watchman to shoot at any human being, but on the contrary or- 
 dered him not to shoot at any human being, and that there was no 
 evidence that it was within the scope of his employment to so shoot; 
 that there was no evidence in the case that either of the defendants 
 intended or desired to injure any human being or expected that the 
 shooting would result in such injury. The theory upon which the 
 case was submitted to the jury will clearly appear by the following 
 passage from the charge : 
 
 "Now the question which I will leave to you in this case, gentle- 
 men, is this, and I hope you will understand it: Did this man Tomp- 
 kins, when he fired in the night and into the woods as he did, have 
 reason to believe that there were human beings there, or did he in 
 fact know they were there? Did he know, when he fired into the 
 woods as he did, that human beings were where he fired, or by the 
 exercise of ordinary care could he have ascertained from what has 
 been described here as having happened, that human beings were 
 there, and knowing they were there, or having the ability to find out 
 by the exercise of ordinary care, did he, notwithstanding that, wan- 
 tonly, recklessly, fire in the direction where these human beings were? 
 That is the vital question in this case. Because, as I have stated, this 
 defendant had a right to have a watchman. The watchman had a 
 right to have a gun. He had a right to have a rifle loaded with a 
 bullet. He had a right to fire his gun in the night anywhere and as 
 often as he pleased on his own land. But did Tompkins, when he 
 fired on that occasion, know he was firing where there were human 
 beings, or in the immediate proximity of where there were human 
 beings, and knowing that, or being able to find it out by the exercise 
 of ordinary care, did he still, recklessly and wantonly, discharge his 
 bullet in the direction where these human beings were?" 
 
 It will be seen that the learned judge excluded from the jury very 
 important elements tending to support the plaintiff's case. Willful- 
 ness, malice, intention to injure or desire or motive to do so, express 
 authority from the owner and perhaps other elements were eliminated 
 from the case. It is not very plain how the jury could, with all these 
 elements excluded, have found that the shooting was wanton or reck- 
 less, assuming always that the watchman had the right to do all the 
 things that the court held that he had, but it is quite likely that the 
 form in which the case comes here precludes any discussion in this 
 court upon the question. There is, however, an exception in the case 
 that we think is fatal to the judgment. 
 
 The defendants' counsel asked the court to instruct the jury that 
 if the plaintiff knew that the watchman on the lake was in the habit 
 of discharging a gun and went there after receiving such informa-
 
 Ch. 1) NEGLIGE^•CE 1127 
 
 tion he cannot recover, even if the defendants or either of them were 
 neghgent, and that if the plaintiff knew or liad heard that the lake was 
 generally protected by a watchman who had and discharged a gun, 
 there could be no recovery. The court refused to so charge, and 
 the defendants' counsel excepted. This request embodied the gen- 
 eral rule that where the negligence or misconduct of the injured 
 party is a contributing cause of the injury he cannot recover, even 
 though negligence could be imputed to the defendants. With all the 
 elements to which reference has been made excluded from the case, 
 the defendants were entitled to have the jury instructed that if the 
 plaintiff voluntarily exposed himself to a known danger he could 
 not recover for the act of the watchman, though this act, in defense 
 of the master's property, was without due care, and that is the fair 
 construction of the request. There was proof in the case, aside from 
 the statutory notices warning intruders, which every one could see, 
 that the plaintiff knew what other precautions the defendants had 
 adopted for the protection of their property, including the use of 
 firearms, and since the proposition amounted to a request to apply 
 the general rule of law to these facts it was not a mere abstract one, 
 but was applicable to the proofs in the case, and should have been 
 given to the jury. It follows that the judgment must be reversed 
 and a new trial granted, costs to abide the event. 
 Judgment reversed.^ 
 
 DIXON V. NEW YORK, N. H. & H. R. CO. 
 
 (Supreme Judicial Court of Massachusetts, 1910. 207 Mass. 126, 92 N. E. 1030.) 
 
 Tort against the railway company for personal injuries to the plain- 
 tiff in the defendant's freight yard. Coombs, a teamster, had law- 
 fully driven into the yard. His horse, frightened at an approaching 
 engine, w'as rearing and plunging, when the plaintiif went to the as- 
 sistance of Coombs, and received the injuries complained of. The 
 
 2 Parker. C. J., and Gray, Haight, and Vann, JJ. (Bartlett, J., in result) 
 concur. Martin, J., not voting. 
 
 This case came before the Court of Appeals again, in 1906. Magar v. 
 Hammond (1906) 18.3 N. Y. 3S7. 76 N. E. 474, 3 L. R. A. (N. S.) 1038. Here 
 Cullen, C. J., delivering the opinion, remarked, "On the previous appeal we 
 reversed the judgment recovered because of the refusal of the trial court 
 to submit to the jury the question of the plaintiff's contributory negligence. 
 It will be seen, however, on an examination of the record then before us, that 
 the case went to the jury on the theory of negligence, and that the question 
 of whether such a theory could be upheld was not before us. If the defend- 
 ants were to be held liable for negligence we held that to that liability the 
 plaintiff's contributory negligence was a bar. Under the views that we 
 have now expressed, however, that no liability of the defendants can be 
 predicated on negligence, the contributory negligence or positive wrong of the 
 plaintiff in trespassing on the premises becomes immaterial, for it was not 
 the proximate cause of the injury for which he seeks to recover, and contrib- 
 utory negligence is not a defense to a willful or wanton wrong."
 
 1128 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 first count charged the defendant with a faiUire to use reasonable 
 care ; the second count charged it with reckless and wanton neg- 
 ligence. There was a verdict for plaintifif; the defendant excepts. 
 
 Sheldon, J, The jury could find on the evidence that Coombs was 
 in a position of imminent peril, struggling to restrain a plunging horse 
 upon or close to a track of the defendant upon which a train was 
 approaching, and that the plaintiff came to his assistance for the pur- 
 pose of rescuing him from the peril. The contention of the defend- 
 ant that Coombs was endeavoring merely to save his master's prop- 
 erty and that the plaintiff went upon the track for the sole purpose 
 of assisting Coombs in this effort was for the jury to determine. It 
 was not necessarily and as matter of law a trespass or a negligent act 
 for the plaintiff to attempt to rescue Coombs from the impending 
 danger, even at the risk of his own life. It was for the jury to 
 say whether under the existing circumstances the plaintiff's act was 
 so rash and reckless as to preclude a finding that he was in the exer- 
 cise of due care and was justified in going upon the track. This is 
 the doctrine of Linnehan v. Sampson, 126 Mass. 506, 30 Am. Rep. 
 692. And there is a great body of authority in other courts for the 
 proposition that it may not be negligence for one not acting rashly or 
 recklessly to expose himself voluntarily to great danger, even to the 
 risk of life and limb, in order to rescue another from a like peril, and 
 that such a voluntary exposure is not to be regarded as rash or reck- 
 less if there appears to be a fair chance of success, whether the per- 
 son in danger is or is not a child or an aged or decrepit person, and 
 even though the person attempting the rescue knows that it involves 
 great hazard to himself without a certainty of accomplishing the in- 
 tended rescue. The leading case is Eckert v. Long Island Railroad, 43 
 N. Y. 502, 3 Am. Rep. 721, and 57 Barb. (N. Y.) 555, the doctrine of 
 which has been generally followed. * * * 3 
 
 It is true, as was held in Linnehan v. Sampson, 126 Mass. 506, 30 
 Am. Rep. 692, and in many of the other cases above cited, that it is 
 for the jury to say, upon all the circumstances, including the existing 
 emergency and the need of immediate action under which they may 
 find that the plaintiff acted, whether in fact his conduct was that of a 
 reasonably prudent man ; and it may be that the judge in his charge 
 did not go far enough in requiring the jury, upon this issue, only to 
 find whether the plaintiff "saw and as a reasonable man believed that 
 Coombs was in imminent danger of his life," and "believed that he 
 could rescue Coombs and at the same time avoid danger to himself." 
 But it is not clear that this question was intended to be saved ; it has 
 not been argued by the defendant; and we need not consider it. 
 
 But it is necessary in this case, as in all similar actions, that neg- 
 ligence on the part of the defendant or its servants should be shown, 
 even though the plaintiff was himself free from all blame. Hirsch- 
 
 8 Mr. Justice Sheldon here referred to a large number of authorities.
 
 Ch. 1) NEGLIGENCE 1129 
 
 man v. Dry Dock Railroad, 46 App. Div. 621, 61 N. Y. Supp. 304; 
 De Mahy v. Morgan's Louisiana Co., 45 La. Ann. 1329, 14 South. 
 61; Spooner v. Delaware, Lackawanna & Western Railroad, 115 N. 
 Y. 22, 21 N. E. 696; Evansville & Crawfordsville Railroad v. Hiatt, 
 17 Ind. 102; Thomason v. Southern Railway, 113 Fed. 80, 51 C. C. 
 A. 67. In such a case as this, however, it is enough to hold the de- 
 fendant if there was negligence on its part towards either Coombs or 
 the plaintiff. Maryland Steel Co. v. Marney, 88 Md. 482, 42 Atl. 60, 
 42 L. R. A. 842, 71 Am. St. Rep. 441 ; Saylor v. Parsons, 122 Iowa, 
 679, 98 N. W. 500, 64 L. R. A. 542, 101 Am. St. Rep. 283 ; Donahoe 
 V. Wabash, St. Louis & Pacific Railway, 83 Mo. 560, 53 Am. Rep. 594. 
 Its negligence towards Coombs will be treated as directly inducing 
 the attempt to rescue him and thereby causing the injury to the plain- 
 tiff. Such negligence could be found if the defendant was running 
 its train in a manner likely to cause injury to any one properly in 
 that vicinity. That was the only negligence that was shown in many 
 of the cases already referred to. In our opinion there was such evi- 
 dence here. * * * * 
 Exceptions overruled. 
 
 PRIESTLEY v. FOWLER. 
 
 (Court of Exchequer, 1837. 3 Mees. & W. 1, 49 R. R. 495.) 
 
 Case. The declaration stated that the plaintiff was a servant of the 
 defendant in his trade of a butcher; that the defendant had desired 
 and directed the plaintiff, so being his servant, to go with and take 
 certain goods of the defendant's, in a certain van of the defendant 
 then used by him, and conducted by another of his servants, in carry- 
 ing goods for hire upon a certain journey; that the plaintiff, in pur- 
 suance of such desire and direction, accordingly commenced and was 
 proceeding and being carried and conveyed by the said van, with the 
 said goods ; and it became the duty of the defendant, on that occa- 
 sion, to use due and proper care that the said van should be in a 
 proper state of repair, that it should not be overloaded, and that the 
 plaintiff should be safely and securely carried thereby; nevertheless, 
 the defendant did not use proper care that the van should be in a 
 sufficient state of repair, or that it should not be overloaded, or that 
 the plaintiff should be safely and securely carried thereby, in con- 
 sequence of the neglect of all and each of which duties the van gave 
 way and broke down, and the plaintiff was thrown with violence to the 
 ground, and his thigh was thereby fractured, &c. Plea, Not guilty. 
 
 * The evidence of negligence was here considered bj' the Court. It appear- 
 ed that in legal effect Coombs and the plaintiff were invitees in the defend- 
 ant's freight yard. 
 
 Only so much of the case is given as relates to the first count.
 
 1130 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 At the trial before Park, J,, at the Lincolnshire Summer Assizes, 
 1836, the plaintifif, having given evidence to show that the injury- 
 arose from the overloading of the van, and that it was so loaded with 
 the defendant's knowledge, had a verdict for £100. In the following 
 Michaelmas Term, Adams, Serjt, obtained a rule to show cause why 
 the judgment should not be arrested, on the ground that the defendant 
 was not liable in law, under the circumstances stated in the declara- 
 tion. 
 
 Lord Abinge;r, C. B. This was a motion in arrest of judgment, 
 after verdict for the plaintiff, upon the insufficiency of the declaration. 
 (His Lordship stated the declaration.) It has been objected to this 
 declaration, that it contains no premises from which the duty of the 
 defendant, as therein alleged, can be inferred in law ; or, in other 
 words, that from the mere relation of master and servant no contract, 
 and therefore no duty, can be implied on the part of the master to 
 cause the servant to be safely and securely carried, or to make the 
 master liable for damage to the servant, arising from any vice or im- 
 perfection, unknown to the master, in the carriage, or in the mode 
 of loading and conducting it. For, as the declaration contains no 
 charge that the defendant knew any of the defects mentioned, the 
 Court is not called upon to decide how far such knowledge on his part 
 of a defect unknown to the servant, would make him liable. 
 
 It is admitted that there is no precedent for the present action by a 
 servant against a master. We are therefore to decide the question 
 upon general principles, and in doing so we are at liberty to look at 
 the consequences of a decision the one way or the other. 
 
 If the master be liable to the servant in this action, the principle of 
 that liability will be found to carry us to an alarming extent. He who 
 is responsible by his general duty, or by the terms of his contract, for 
 all the consequences of negligence in a matter in which he is the prin- 
 cipal, is responsible for the negligence of all his inferior agents. If 
 the owner of the carriage is therefore responsible for the sufficiency 
 of his carriage to his servant, he is responsible for the negligence of 
 his coach-maker, or his harness-maker, or his coachman. The foot- 
 man, therefore, who rides behind the carriage, may have an action 
 against his master for a defect in the carriage owing to the neg- 
 ligence of the coach-maker, or for a defect in the harness arising 
 from the negligence of the harness-maker, or for drunkenness, neg- 
 lect, or want of skill in the coachman ; nor is there any reason why 
 the principle should not, if applicable in this class of cases, extend to 
 many others. The master, for example, would be liable to the serv- 
 ant for the negligence 'of the chambermaid, for putting him into a 
 damp bed; for that of the upholsterer, for sending in a crazy bed- 
 stead, whereby he was made to fall down while asleep and injure him- 
 self; for the negligence of the cook, in not properly cleaning the 
 coi)per vessels used in the kitchen ; of the butcher, in supplying the 
 family with meat of a quality injurious to the health; of the builder,
 
 Ch. 1) NEGLIGENCE 1131 
 
 for a defect in the foundation of the house, whereby it fell, and injured 
 both the master and the servant by the ruins. 
 
 The inconvenience, not to say the absurdity of these consequences, 
 afford a sufficient argument against the application of this principle to 
 the present case. But, in truth, the mere relation of the master and 
 the servant never can imply an obligation on the part of the master to 
 take more care of the servant than he may reasonably be expected to 
 do of himself. He is, no doubt, bound to provide for the safety of 
 his servant in the course of his employment, to the best of his judg- 
 ment, information and belief. The servant is not bound to risk his 
 safety in the service of his master, and may, if he thinks fit, decline 
 any service in which he reasonably apprehends injury to himself ; and 
 in most of the cases in which danger may be incurred, if not in all, 
 he is just as likely to be acquainted with the probability and extent of 
 it as the master. In that sort of employment, especially, which is de- 
 scribed in the declaration in this case, the plaintiff must have known 
 as well as his master, and probably better, whether the van was suffi- 
 cient, whether it was overloaded, and whether it was Hkely to carry 
 him safely. In fact, to allow this sort of action to prevail would be 
 an encouragement to the servant to omit that diligence and caution 
 which he is in duty bound to exercise on the behalf of his master, 
 to protect him against the misconduct or negligence of others who 
 serve him, and which diligence and caution, while they protect the 
 master, are a much better security against any injury the servant may 
 sustain by the negligence of others engaged under the same master, 
 than any recourse against his master for damages could possibly 
 afford. 
 
 We are therefore of opinion that the judgment ought to be ar- 
 rested. 
 
 Rule absolute.^ 
 
 5 Accord: Murray v. South Carolina R. Co. (1841) 1 McMul. (S. C.) 385, 
 36 Am. Dec. 268: (P., a fireman on the defendant's railway, was injured, while 
 engaged in the discharge of his duties, by the derailment of his engine through 
 the carelessness of the engineer. The form of the action was trespass on the 
 case.) 
 
 Farwell v. Boston, etc., R. Corp. (1842) 4 Mete. (Mass.) 49, 38 Am. Dec. 339: 
 (P., an engineer on the defendant's railway, was injured, while engaged in 
 the discharge of his duties, by tlie negligence of the defendant's switchman 
 in "leaving a switch in wrong condition." The form of action was trespass 
 on the case.) 
 
 The opinion in Farwell v. Boston, etc., R. Corp. was by Chief Justice Shaw. 
 He said, in part: 
 
 "This is an action of new impression in our courts, and involves a prin- 
 ciple of great importance. It presents a case, where two persons are in the 
 service and employment of one company, whose business it is to construct and 
 maintain a railroad, and to employ their trains of cars to carry persons and 
 merchandize for hire. They are appointed and employed by the same com- 
 pany to perform separate duties and services, all tending to the accomplish- 
 ment of one and the same purpose — that of the safe and rapid transmission 
 of the trains ; and they are paid for their resi)ective services according to 
 the nature of their respective duties, and the labor and skill required for 
 their proper performance. The question is, whether, for damages sustained
 
 1132 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 by one of the persons so employed, by means of tlie carelessness and negli- 
 gence of another, the party injured has a remedy against the common employ- 
 er. It is an argument against such an action, though certainly not a decisive 
 one, that no such action has before been maintained. * * * 
 
 "The general rule, resulting from considerations as well of justice as of 
 policy, is, that he who engages in the employment of another for the per- 
 formance of specified duties and servic-es, for compensation, takes iipon him- 
 self the natural and ordinary risks and perils incident to the performance of 
 such services, and in legal presuuiption, the compensation is adjusted accord- 
 ingly. And we are not aware of any principle which should except the 
 perils arising from the carelessness and negligence of those who are in the 
 same employment These are perils which the servant is as likely to know, 
 and against which he can as effectually guard, as the master. They are 
 perils incident to the service, and which can be as distinctly foreseen and pro- 
 vided for in the rate of compensation as any others. * * * 
 
 "If we look from considerations of justice to those of policy, they will 
 strongly lead to the same conclusion. In considering the rights and obliga- 
 tions arising out of particular relations, it is comi^etent for courts of justice 
 to regard considerations of policy and general convenience, and to draw 
 from them such rules as will, in their practical ap]>lication, best promote 
 the safety and security of all parties concerned. This is, in truth, the basis 
 on which implied promises are raised, being duties legally inferred from a 
 consideration of what is best adapted to promote the benefit of all persons 
 concerned, under given circumstances. To take the well known and familiar 
 cases already cited; a common carrier, without regard to actual fault or neg- 
 lect in himself or his servants, is made liable for all losses of goods confided 
 to him for carriage, except those caused by the act of God or of a public 
 enemy, because he can best guard them against all minor dangers, and be- 
 cause, in case of actual loss, it would be extremely difficult for the owner 
 to adduce proof of embezzlement, or other actual fault or neglect on the part 
 of the carrier, although it may have been the real cause of the loss. The 
 risk is therefore thrown upon the carrier, and he receives, in the form 
 of payment for the carriage, a premium for the risk which he thus assumes. 
 So of an innkeeper; he can best secure the attendance of honest and faithful 
 servants, and guard his house against thieves. Whei'eas, if he were re- 
 sponsible only upon proof of actual negligence, he might connive at the 
 presence of dishonest inmates and retainers, and even participate in the em- 
 bezzlement of the property of the guests, duiing the hours of their necessary 
 sleep, and yet it would be difficailt, and often impossible, to prove these facts. 
 
 "The liability of passenger carriers is founded on similar considerations. 
 They are held to the strictest responsiliility for care, vigilance and skill, on 
 the part of themselves and all persons employed by them, and they ai"e paid 
 accordingly. The rule is founded on the expediency of throwing the risk 
 upon those who can best guard against it. Stoi'y on Bailments, 590 et seq. 
 
 "We are of opinion that these considerations apply strongly to the case 
 in question. Where several persons are employed in the conduct of one 
 common enterprise or undertaking, and the safety of each depends much on 
 the care and skill with which each other shall perform his appropriate duty, 
 each is an observer of the conduct of the others, can give notice of any mis- 
 conduct, incapacity or neglect of duty, and leave the service, if the common 
 employer will not take sxich precautions, and employ such agents as the safety 
 of the whole party may retiuire. By these means, the safety of each will be 
 much more effectually secured, than could be done by a resort to the com- 
 mon employer for indemnity in case of loss by the negligence of each otht'r. 
 Regarding it in this light, it is the ordinary case of one sustaiiaiug an injury 
 in the course of his own employment, in which he nnist bear the loss him- 
 self, or seek bis remedy, if he have any, against the actual wrong-doer. * * * 
 
 "It was strongly pressed in the argument, that although tliis might be so, 
 where two or more servants are emphjyed in the same department of duty, 
 where each can exert some influence over the conduct of the other, and thus to 
 some extent provide for his own secririty ; yet that it could not apply where 
 two or more are employed in different departments of duty, at a distance 
 from each other, and where one can in no degree control or influence the 
 conduct of another. But we think this is founded upon a supposed distinc-
 
 Ch. 1) NEGLIGENCE 1133 
 
 tion, on which it would be extremely difficult to establish a practical rule. 
 When the object to be accomplished is one and the same, when the employers 
 are the same, and the several persons employed derive their authority and 
 their compensation from the same source, it would be extremely difficult to 
 distinguish, what constitutes one department and what a distinct department 
 of duty. It would vary with the circumstances of every case. Tf it were 
 made to depend upon the nearness or distance of the persons from each 
 other, the question would immediately arise, how near or how distant must 
 they be, to be in the same or different departments. In a blacksmith's shop, 
 persons working in the same building, at different fires, may be quite in- 
 dependent of each other, though only a few feet distant. In a ropewalk, 
 several may be at work on the same piece of cordage, at the same time, at 
 many hundred feet distant from each other, and beyond the reach of sight and 
 voice, and yet acting together. 
 
 "Besides, it appears to us, that the argument rests upon an assumed prin- 
 ciple of responsibility which does not exist. The master, in the case sup- 
 posed, is not exempt from liability, because the servant has better means of 
 providing for his safety, when he is employed in immediate connection ^\•ith 
 those from whose negligence he might suffer ; but because the implied contract 
 of the master does not extend to indemnify the servant against the negligence 
 of any one but himself; and he is not liable in tort, as for the negligence of 
 his servant, because the person suffering does not stand towards him in the 
 relation of a stranger, but is one whose rights are regulated by contract ex- 
 press or implied. The exemption of the master, therefore, from liability for 
 the negligence of a fellow servant, does not depend exclusively upon the 
 consideration, that the servant has better means to provide for his own safety, 
 but upon other grounds. Hence the separation of the employment into differ- 
 ent departments cannot create that liability, when it does not arise from ex- 
 press or implied contract, or from a responsibility created by law to third 
 persons, and strangers, for the negligence of a servant." 
 
 It was held, therefore, that the action could not be maintained. 
 
 See, also, Pollock on Torts (8th Ed.) 98: "The old rule as it stood before the 
 Act of 1880. is that a master is not liable to his ser\'ant for injury received 
 fi'om any ordinai-y risk of or incident to the service, including acts or de- 
 faults of any other person employed in the same service. Our law can show 
 no more curious instance of a I'apid modern development. The first evidence 
 of any such rule is in Priestly v. Fowler, 3 M. & W. 1, 49 R. R. 495, decided 
 in 1837, which proceeds on the theorj' (if on any definite theory) that the 
 master 'cannot be bound to take more care of the servant than he may reason- 
 ably be expected to do of himself; that a servant has better opportunities 
 than his master of watching and controlling the conduct of his fellow-serv- 
 ants ; and that a contrary doctrine would lead to intolerable inconvenience, 
 and encourage servants to be negligent. According to this there would be 
 a sort of presumption that the servant suffered to some extent by want of 
 diligence on his own part. But it is needless to pursue this reasoning; for 
 the like result was a few years afterwards arrived at by Chief Justice Shaw 
 of Massachusetts by another way, and in a judgment which is the fountain- 
 head of all the latter decisions, Farwell v. Boston & Worcester R. R. Corp. 
 (1842) 4 Mete. (INIass.) 49, 38 Am. Dec. 339, and has now been judicially rec- 
 ognized in England as 'the most complete exposition of what constitutes 
 common employment.' Sir Francis Jeune in The Petrel, [1893] p. 320, 323. 
 The accepted doctrine is to this effect. Strangers can hold the master liable 
 for the negligence of a servant about his business. But in the case where the 
 person injured is himself a servant in the same business he is not in the 
 same position as a stranger. He has of his free will entered into the business 
 and made it his owu. He cannot say to the master. You shall so conduct your 
 business as not to injure me by want of due care and caution therein. For he 
 has agreed with the master to serve in that business, and his claims on the 
 master depend on the contract of service. Why should it be an implied terra 
 of that contract, not being an express one, that the master .shall indemnify 
 him against the negligence of a fellow-servant, or any other current risk. 
 It is rather to be implied that he contracted with the risk before his eyes, and 
 that the dangers of the service, taken all around, were considered in fixing 
 the rate of payment. This is, I believe, a fair summary of the reasoning
 
 1134 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 THRUSSELL v. HANDYSIDE & CO. 
 
 (Queen's Bench Division, 1888. 20 Q. B. Div. 359.) 
 
 Hawkins, J. (after stating the case, and holding that the facts es- 
 tabHshed neghgence in the defendant). But this does not determine 
 the case, for the plaintiff may fail on one of two grounds, either that 
 he contributed to the accident by his own negligence, or that the case 
 comes within the maxim "Volenti non fit injuria." 
 
 As to the first of these grounds I cannot find any evidence which 
 proves negligence on the part of the plaintiff. 
 
 The only remaining question is whether the plaintiff took the risk 
 upon himself, so that the maxim "Volenti non fit injuria" applies. 
 That question, as is shewn by the judgments in Yarmouth v. France, 
 19 O. B. D. 647, was for the jury. The plaintiff was altogether un- 
 connected with the defendants or their workmen, but was an inde- 
 pendent workman employed by Messrs. Lucas, and it is difficult to 
 say, where a man is lawfully working, subject to the orders of his 
 employers, and to the risk of dismissal if he disobeys, that if after 
 asking for and failing to obtain protection from the danger caused by 
 other people's work, he suffers injury, the maxim "Volenti non fit 
 injuria" applies. It is true that he knows of the danger, but he does 
 not wilfully incur it. "Scienti," as was pointed out in Thomas v. 
 Quatermaine, 18 Q. B. D. at p. 692, and in Yarmouth v. France, 19 
 Q. B. D. at p. 659, is not equivalent to "volenti." It cannot be 
 said, where a man is lawfully engaged in work, and is in danger of 
 dismissal if he leaves his work, that he wilfully incurs any risk which 
 he may encounter in the course of such work, and here the plaintiff 
 had asked the defendants' men to take care. It is different where 
 there is no duty to be performed, and a man takes his chance of the 
 danger, for there he voluntarily encounters the risk. If the plaintiff 
 could have gone away from the dangerous place without incurring 
 the risk of losing his means of livelihood, the case might have been 
 different; but he was obliged to be there; his poverty, not his will, 
 consented to incur the danger. * * * 
 
 The case of Woodley v. Metropolitan District Ry. Co., 2 Ex. D. 384, 
 was relied on by Mr. Lush as an authority in favour of the defend- 
 ants, and at first sight it looks somewhat like the present case, but 
 
 which has prevailed in the aiitliorities. With its soundness we are not here 
 concerned. It was not only adopted by the House of Lords for England, but 
 forced by them upon the reluctant Courts of Scotland to make the juris- 
 prudence of the two countries uniform. No such doctrine appears to exist 
 in the law of any other country in Europe. The following is a clear judicial 
 statement of it in its settled form: 'A servant, wlien he engages to serve a 
 master, undertakes, as between himself and his master, to run all the or- 
 dinary risks of the service, including the risk of negligence upon the 
 part of a fellow .servant when he is acting in the discharge of his duty as 
 servant of him who is the common master of both.' Erie, C. J., iu Tuimey 
 V. Midland R. Co. (1806) L. R. 1 C. P. 290."
 
 Ch. 1) NEGLIGENCE 1135 
 
 when the facts of the two cases are compared there is a clear dis- 
 tinction. The plaintiff in that case was in the employment of a 
 contractor and was injured by a passing train while he was working in 
 a tunnel on the Aletropolitan District Railway, and he brought an 
 action against the railway company. It was proved that there was 
 a very small space between the wall of the tunnel and the passing 
 train, but still the space was enough, if a w^orkman was careful, to 
 enable him to stand in safety while a train passed. It is true that 
 the jury found that there was negligence on the part of the com- 
 pany in not having taken precautions for the protection of the w'ork- 
 man, but the plaintiff having it in his power to protect himself, and 
 knowing that the danger existed, the majority of the Court of Appeal 
 held that he was not entitled to recover. He was injured not owing 
 to an inevitable cause, but owing to a danger which by the use of 
 proper care he might have avoided. In the present case the plain- 
 tiff' could not have avoided the danger, unless he had disobeyed the 
 orders of his employers, and incurred the risk of dismissal. * * * 
 Appeal dismissed.^ 
 
 DOWD V. NEW YORK, O. & W. RY. CO. 
 . (Court of Apijeals of New York, 1902. 170 N. Y. 459, 63 N. E. 541.) 
 
 The action was against the railv/ay company for alleged negligence 
 in causing the death of plaintiff's intestate, a car repairer in the defend- 
 ant's employ. The answer denied all the allegations of negligence on 
 the part of the defendant, and alleged that the death of the decedent 
 was caused by his own negligence. 
 
 It appeared that on the 31st of August, 1892, the plaintiff's intestate 
 had been in the employ of the defendant as a car repairer for about 
 six weeks, but not continuously. On that day, shortly after noon, he 
 was at work under a car situated near the middle of a train consist- 
 ing of twenty-five empty coal cars standing without an engine on sid- 
 ing No. 3. A blue as well as a red flag (signifymg danger and the pres- 
 ence of a car repairer) was flying at the rear or southerly end of the 
 train. A milk train consisting of an engine, express car, passenger car 
 and three or four milk cars came in at this time and stopped at the sta- 
 tion to transact its usual business. It was a little late and after dis- 
 charging the passengers and freight, the engineer ran south past the 
 switch and then, as was his custom, backed rapidly, severed his engine 
 and kicked the train upon siding No. 3. Of the three trainmen belong- 
 ing to this train but one remained thereon to manage the brakes and 
 he was unable to control its movement. After some delay, he suc- 
 ceeded in setting the hand brake and then struggled with an air brake, 
 but without success. The result was that the milk train ran down the 
 
 6 The statement of fact.s, parts of the opinion of Hawkins, J., and all of the 
 opinion of Grantham, J., are omitted.
 
 1136 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 grade without control, until, colliding with the empty cars, it shoved 
 them forward about two car lengths and caused one of them to run 
 over the plaintiff's intestate as he was working under it, and injured 
 him so severely that he died within a few days. 
 
 The jury found for the plaintiff, and after affirmance by the Appel- 
 late Division, one of the justices dissenting, the defendant came to this 
 court/ 
 
 Vann, j. * * * f i^g defendant, by an appropriate exception, 
 raised the question of law that the evidence did not authorize the jury 
 to find that the decedent was not chargeable with knowledge of the 
 practice that caused his death. If he knew of the practice and contin- 
 ued to work without any promise by the defendant to correct its meth- 
 ods, he assumed the danger and waived any claim for damages on ac- 
 count thereof. Crown v. Orr, 140 N. Y. 450, 35 N. E. 648. 
 
 The decedent was chargeable not only with what he actually knew, 
 but also with what he ought to have known by the exercise of ordinary 
 diligence. He had worked for the defendant about six weeks, in all, 
 at dift'erent times, between the first of April and the last of August 
 when he was hurt. "He was repairing cars all the time he was there," 
 which kept him in a position where he could not well see the ordinary 
 movement of trains in the yard. A witness who worked "in the same 
 gang with him the most of the time," testified that he had never seen 
 cars kicked "on the sidings where cars were being repaired"' while he 
 w^as working with him. It appeared that cars were kicked upon sid- 
 ings every day and sometimes, but not so often when the signals were 
 up. There was little other evidence upon the subject and none show- 
 ing that the decedent was ever in such a position as necessarily to have 
 seen cars kicked on a track where repairers were at work. If the bur- 
 den of proof was upon the plaintiff to show affirmatively the absence 
 of knowledge on the part of her intestate, it may be that the evidence 
 was insufficient for the purpose. If, however, the burden of proof in 
 this regard was upon the defendant, the finding of the jury should be 
 sustained because the evidence did not conclusively establish the fact 
 in accordance with its theory. 
 
 When the plaintiff's intestate entered the service of the defendant 
 he impliedly assumed the obvious risks of the business and waived any 
 right of action on account thereof. The common law makes this a part 
 of the contract of employment, the same as if an express stipulation 
 to that effect, committed to writing, had been signed by both parties. 
 Furthermore, by continuing at work, with no prospect of a change of 
 method, he waived such dangers as he subsequently discovered. The 
 doctrine of assumed risks rests upon the implication of a promise by 
 the employe to waive the consequences of dangers of which he is fully 
 aware. It is distinct in principle from the doctrine of contributory 
 
 7 The statement is abridged. Only so much of tlie opinion is given as re- 
 lates to the one point.
 
 Ch. 1) NEGLIGENCE 1137 
 
 negligence although they have frequently been confounded by the 
 courts. In many cases this was owing to the fact that it appeared from 
 the plaintiff's own showing that he knew of the dangers in advance and 
 hence his complaint was properly dismissed. Whether the fact of a 
 known or obvious risk is proved by the one party or the other is im- 
 material, provided it is proved at all, but the question now before us 
 is upon whom rests the burden of proof in this respect. If the plain- 
 tiff knows the danger, under ordinary circumstances he waives it, but 
 is the waiver a defense to be alleged and proved by the defendant, or 
 only a form of contributory negligence, the absence of which is a part 
 of the plaintiff's case? 
 
 Contributory negligence prevents a recovery because the plaintiff, of 
 his own volition, intervenes between the negligence of the defendant 
 and the injury received, so that the former is not the sole cause of the 
 latter. * * * One who is injured by his own negligence is re- 
 garded by the law as not having been injured at all, so far as other par- 
 ties are concerned. By assuming the risk, the plaintiff does not inter- 
 vene but waives. Intervention in order to break the causal connection 
 between the negligent act and the injury must come in between them. 
 The assumption of the risk does not come in between, but is in advance 
 of both. The independent will of the plaintiff is not exercised by in- 
 tervening, but by voluntarily waiving and releasing, when he enters the 
 service, any right of action which might accrue to him from the cause 
 stated. * * * 
 
 We think that the burden of showing that the servant assumed the 
 risk of obvious dangers rests upon the master and hence we cannot say, 
 as matter of law, that the jury, in the case before us, was compelled 
 to find that the plaintiff's intestate knew or should have known of the 
 practice of kicking cars on a track where car repairers were at work. 
 If he did not know of the practice, he did not waive the danger. 
 
 Judgment affirmed. 
 
 ENGLISH v. AMIDON et al. 
 (Supreme Court of New Hampshire, 1902. 72 N. H. 301, 56 Atl. 548.) 
 
 Action on the case against Amidon and others for personal injuries 
 sustained by the plaintiff in falling down a dangerous stairway in the 
 defendants' mill. A motion for a non-suit was granted, and the plain- 
 tiff excepted. 
 
 Bingham, J. It was the duty of the defendants, in the exercise 
 of reasonable care and diligence, to provide and maintain a safe and 
 suitable stairway by which the plaintiff, as their servant, could go to 
 and from his place of work in the mill. Fifield v. Railroad, 42 N. H. 
 225; Jaques v. Company, 66 N. H. 482, 22 Atl. 552, 13 L. R. A. 824; 
 Fitzgerald v. Company, 155 Alass. 155, 29 N. E. 464, 31 Am. St. Rep. 
 Hepb. Torts — 72
 
 1138 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 5Z7 ; Mahoney v. Dore, 155 Mass. 513, 30 N. E. 366. Inasmuch as the 
 defendants operated their mill at night, it is claimed that the stairway 
 should then have been lighted to render it reasonably safe. If the 
 stairway was unsuitable for the use of the defendants' servants at 
 night, because the plan of construction, taken in conjunction with the 
 darkness, made it dangerous, it might be found to have been the de- 
 fendants' duty, in the exercise of ordinary care, to make it reasonably 
 safe, either by suitably lighting it or by remedying the construction ; 
 and this was a personal duty, from which they could not relieve them- 
 selves by delegating its performance to another. 
 
 The evidence was that the plaintiff and seven other spinners, after 
 finishing their work at 9 o'clock in the evening, regularly came down 
 the stairway from the third floor of the mill; that no other way was 
 provided for them ; that the stairway was winding, steep, narrow, and 
 worn ; that the treads of the stairs varied in width, being narrowest 
 on the inside of the curve ; and that the defendants had placed lamps, 
 which were usually lighted at night, over the stairs. On the night in 
 question, when the plaintiff and the other workmen had finished their 
 labors, they put out the lights over their machines, as was their cus- 
 tom, and started to go out of the mill. On reaching the stairway they 
 found it was dark, but proceeded to go down and out, the plaintiff 
 going on the outside of the cun^e, where the treads of the stairs were 
 widest, steadying himself with his hand against the wall, there being 
 no railing on that side of the stairway. When part way down he 
 slipped, fell, and was injured. Reasonable men could conclude from 
 this evidence that the defendants required their servants to use this 
 stairway at night; that its construction, in conjunction with the dark- 
 ness, rendered its use dangerous ; that the defendants themselves so 
 regarded it; that their neglect to make the stairway safe for such use 
 was the proximate cause of the plaintiff's injury; and that under the 
 circumstances he was exercising due care in undertaking to use the 
 stairway (the only means provided for leaving the mill) and in his 
 conduct while using it. 
 
 Did the plaintiff voluntarily assume the risk of the defendants' 
 negligence? "One does not voluntarily assume a risk, within the 
 meaning of the rule that debars a recovery, when he merely knows 
 there is some danger, without appreciating the danger." Mundle v. 
 Company, 86 Me. 400, 405, 30 Atl. 16; Demars v. Company, 67 N. 
 H. 404, 40 Atl. 902. One cannot be said, as a matter of law, to as- 
 sume a risk voluntarily, though he Icnows the danger and appreciates 
 the risk, if at the time he was acting "under such an exigency, or such 
 an urgent call of duty, or such constraint of any kind as in reference 
 to the danger deprives his act of its voluntary character" (Mahoney 
 V. Dore, supra) ; or if, after discovering the master's neglect, he "has 
 no opportunity to leave the service before the injury is received" 
 (Olney v. Railroad, 71 N. H. 427, 431, 52 Atl. 1097). 
 
 When the plaintiff went into the mill it was daylight. He knew that
 
 Ch. 1) NEGLIGENCE 1139 
 
 his work would not be finished before 9 o'clock that night, and that 
 it was the custom of the defendants to then have the stairway hghted. 
 He had the right to believe they would perform their duty on the 
 night in question, and to rely thereon. He entered the mill, worked 
 until 9 o'clock, and then went to the stairway to go out. On reaching 
 it he found himself surrounded in darkness. Although he then knew 
 the defendants had failed to perform their duty, yet in view of the 
 fact that he then had no choice open to him, the only exit provided 
 being over the dark stairway, and no opportunity to leave the defend- 
 ants' service before his injury w^as received, it cannot be said, as a 
 matter of law, that he voluntarily assumed the risk. It was for the 
 jury to say wdiether the plaintiff, knowing the defendant's neglect of 
 duty, fully appreciated the danger therefrom and voluntarily encoun- 
 tered it. Demars v. Company, supra ; Whitcher v. Railroad, 70 N. H. 
 242, 46 Atl. 740; Dempsey v. Sawyer, 95 ^le. 295, 49 Atl. 1035; 
 Mahoney v. Dore, supra; Fitzgerald v. Company, supra; 47 L. R. A. 
 161, 201, note. 
 Exception sustained.^ 
 
 SCHLEMMER v. BUFFALO, R. & P. RY. CO. 
 
 (Supreme Court of the United States, 1911. 220 U. S. 590, 31 Sup. Ct. 561, 
 
 55 L. Ed. 596.) 
 
 In Error to the Supreme Court of the State of Pennsylvania. 
 
 Mr. Justice Day. This action was brought in a Pennsylvania 
 court to recover for wrongfully causing the death of Adam M. Schlem- 
 mer, plaintift"'s intestate, as a result of injuries received while in the 
 employ of the railroad company. The case has been once before in 
 
 8 On motion for a rehearing. Walker, J., said: " * « * The ease is clear- 
 ly distin^shable from McLaine v. Company [1902] 71 N. H. 294, 52 Atl. 545, 
 58 L. R. A. 462 [93 Am. St. Rep. 522], for in that case the danger arose from 
 the act of a fellow servant in the i)erformance of the work, for which it was 
 held to be unreasonable to hold the master responsible, and not from any de- 
 fects in the insti-umentalities provided by the master, for which he is liable 
 if he does not exercise ordinary care in the premises. Manning v. Manchester 
 MUls [1900] 70 N. H. 582, 49 Atl. 91, is distinguishable for a 'similar reason. 
 In other cases cited by the defendants (Mellen v. Wilson [1893] 159 Mass. 
 88, 34 N. E. 96; Dene v. Print Works [1902] 181 Mass. 560, 64 N. E. 203; 
 Kaare v. Company [1893] 139 N. Y. 369, 34 N. B. 901: New York, etc., R. R. v. 
 Perriguey [1893] 138 Ind. 414, 34 N. E. 233, 37 N. E. 976; Collins v. Railroad 
 [1882] 30 Minn. 31, 40 N. W. 60), the sole ground upon which negligence was 
 claimed was the absence of light caused by the negligence of a fellow servant. 
 The existence of light in those cases was not required to remedy or to oI> 
 viate the danger arising from structural defects. I.amps for the production 
 of light were regarded as a part of the properly constructed appliances or 
 machines which it was the duty of the servant to operate. The question of 
 their necessity and use to guard against the consequences of the master's 
 negligence in unreasonably maintaining dangerously defective appliances 
 was not considered. Motion denied." Id. (1902) 72 N. H. 301, 303. 56 Atl. 
 548, 550.
 
 1140 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 this court, and is reported in 205 U. S. 1, 51 L. Ed. 681, 27 Sup. Ct. 
 407. The injury was received while Schlemmer, an employee of the 
 defendant railroad company was endeavoring to couple a shovel car to 
 the caboose of one of the railroad trains of the defendant company. 
 
 Before the case first came here, the Supreme Court of Pennsylvania 
 had held that the plaintiff could not recover damages because of the 
 contributory negligence of the deceased. 207 Pa. 198, 56 Atl. 417. 
 This court reversed the Supreme Court of Pennsylvania, and re- 
 manded the case for further proceedings in conformity with the opin- 
 ion of this court. 
 
 For a proper understanding of the case a brief statement of the 
 facts will be necessary. The shovel car was not equipped with an 
 automatic coupler, as required by the act of March 2, 1893, chap. 
 196, § 2, 27 Stat, at L. 531, U. S. Comp. Stat. 1901, p. 3174, and that 
 fact was the basis of the action for damages. The shovel car had an 
 iron drawbar, weighing somewhere about SO pounds, protruding be- 
 yond the end of the shovel car. The end of this drawbar had a small 
 opening, or eye, into which an iron pin was to be fitted when the 
 coupling- was made ; this was to be effected by placing the end of the 
 drawbar into the slot of the automatic coupler with which the caboose 
 was equipped. Owing to the difference in the height, the end of the 
 shovel car would pass over the automatic coupler on the caboose in 
 case of an unsuccessful attempt to make the coupling, and the end of 
 the shovel car would come in contact with the end of the caboose. 
 
 Plaintiff's intestate was an experienced brakeman, having been in 
 the service fifteen or sixteen years. At the time when he undertook 
 to couple the train with the shovel car to the end of the caboose, he 
 went under the end of the shovel car, and attempted to raise the iron 
 drawbar so as to cause it to fit into the slot of the automatic coupler 
 on the caboose. While so doing, his head was caught between the 
 ends of the shovel car and the caboose, and he was almost instantly 
 killed. This happened between 8 and 9 o'clock on an evening in the 
 month of August, and while dusk had gathered, it was not very dark, 
 and the testimony tends to show that the situation was plainly ob- 
 servable. * * * 
 
 The trial court submitted the case to the jury upon the issues joined 
 under the Federal statute, including the question whether the plain- 
 tiff's intestate, at the time of the injury, had been guilty of contrib- 
 utory negligence. Under these instructions the jury found a verdict 
 for the plaintiff. 
 
 The court then granted a rule to show cause why judgment should 
 not be rendered non obstante veredicto, which motion was granted, 
 and an opinion delivered, in which the judge held that the testimony 
 did not warrant the conclusion that, in making the coupling, the risk 
 was so obvious that an ordinarily careful and prudent brakeman 
 would not have undertaken it; and therefore, under the statute, as- 
 sumption of risk was no defense, but reached the conclusion that
 
 Ch. 1) NEGLIGENCE 1141 
 
 the deceased was guilty of contributory negligence in failing to exer- 
 cise care according to the circumstances in making the coupling in the 
 way he attempted to make it, and in not adopting a safer way, which 
 was pointed out to him at the time. 
 
 Upon the second appeal, the Supreme Court of Pennsylvania af- 
 firmed the judgment of the trial court, saying: 
 
 "Per Curiam : It is the settled law of Pennsylvania that any neg- 
 ligence of a party injured, which contributed to his injury, bars his 
 recovery of damages without regard to the negligence, either greater 
 or less than his own, of the other party. The present is a clear case 
 of contributory negligence within this rule. The evidence is in- 
 disputable that the unfortunate decedent not only attempted to make 
 the coupling in a dangerous way when his attention was directly 
 called to a safer way, but also did it with reckless disregard of his 
 personal safety by raising his head, though twice expressly cautioned 
 at the time as to the danger of so doing." 222 Pa. 470, 71 Atl. 1053. 
 
 The case is now here upon a petition in error to reverse this judg- 
 ment of affirmance. The statute at the time of the injury complained 
 of took away assumption of risk on the part of the employee as a 
 defense to an action for injuries received in the course of the em- 
 ployment. The defense of contributory negligence was not dealt 
 with by the statute. 
 
 When the case was here before, we did not find it necessary' to pass 
 upon the question whether contributory negligence on the part of an 
 injured employee would be a defense to an action under the law as 
 it then stood, for, upon the record as then presented, the court was 
 of opinion that to sustain the defense of contributory negligence would 
 amount to a denial to the plaintiff of all benefit of the statute which 
 made the assumption of risk no longer a defense. 
 
 While, as was said in the case when here before, assumption of 
 risk sometimes shades into negligence as commonly understood, there 
 is, nevertheless, a practical and clear distinction between the two. 
 In the absence of statute taking away the defense, or such obvious 
 dangers that no ordinarily prudent person would incur them, an 
 employee is held to assume the risk of the ordinary dangers of the 
 occupation into which he is about to enter, and also those risks and 
 dangers which are known, or are so plainly observable that the em- 
 ployee may be presumed to know of them, and if he continues in 
 the master's employ without objection, he takes upon himself the risk 
 of injury from such defects. Choctaw, O. & G. R. Co. v. AIcDade, 
 191 U. S. 64, 67, 68, 48 L- Ed. 96, 100, 101, 24 Sup. Ct. 24, and 
 former cases in this court therein cited. 
 
 Contributory negligence, on the other hand, is the omission of 
 the employee to use those precautions for his own safety which ordi- 
 narv prudence requires. See, in this connection, Xarramore v. Cleve- 
 land, C, C. & St. L. R. Co., 48 L. R. A. 68, 17 C. C. A. 499, 509, 96 
 Fed. 298.
 
 1142 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 In the present case, the statute of Congress expressly provides that 
 the employee shall not be deemed to have assumed the risk of injury 
 if such is occasioned by his continuing in the employ of the carrier 
 after the unlawful use of the car or train in the failure to provide 
 automatic couplers has been brought to his knowledge. Therefore, 
 when Schlemmer saw that the shovel car was not equipped with an 
 automatic coupler, he would not, from that knowledge alone, take 
 upon himself the risk of injury without liability from his employer. 
 
 But there is nothing in the statute absolving the employee from the 
 duty of using ordinary care to protect himself from injury in the 
 use of the car with the appliances actually furnished. In other words, 
 notwithstanding the company failed to comply with the statute, the 
 employee was not, for that reason, absolved from the duty of using 
 ordinary care for his own protection under the circumstances as they 
 existed. This has been the holding of the courts in construing stat- 
 utes enacted to promote the safety of employees. Krause v. Morgan, 
 53 Ohio St. 26, 40 N. E. 886; Holum v. Chicago, M. & St. P. R. 
 Co., 80 Wis. 299, 50 N. W. 99; Grand v. Michigan C. R. Co., 83 
 Mich. 564, 11 L. R. A. 402, 47 N. W. 837; Taylor v. Carew Mfg. 
 Co., 143 Mass. 470, 10 N. E. 308. And such was the holding of the 
 court of appeals of the eighth circuit, where the statute now under 
 consideration was before the court. Denver & R. G. R. Co. v. Arrighi, 
 63 C. C. A. 649, 129 Fed. 347. 
 
 In the absence of legislation at the time of the injury complained 
 of, taking away the defense of contributory negligence, it continued 
 to exist, and the Federal question presented upon this record is : 
 Was the ruling of the state court in denying the right of recovery 
 upon the ground of contributory negligence, in view of the circum- 
 stances shown, such as to deprive the plaintiff in error of the benefit 
 of the statute which made assumption of risk a defense no longer 
 available to the employer? To answer this question we shall have to 
 look to the testimony adduced at the trial, all of which is contained 
 in the record before us. As we have already said, the testimony 
 shows that the plaintiff's intestate was an experienced brakeman, A 
 witness, who is uncontradicted in the record, testified that just be- 
 fore Schlemmer got out of the caboose, when he saw the train backing 
 up, he was told: "We had better shove that up by hand, the same 
 as we did in Bradford. That is a dangerous coupling to make." (At 
 Bradford the method of making the coupling was by means of pushing 
 the caboose up against the train, instead of backing the train against 
 the caboose.) To this Schlemmer replied, with emphasis, "Back up." 
 He then proceeded to make the coupling, with the result stated. 
 
 Another witness, the yard conductor, testified without contradic- 
 tion, that just before the cars got together he walked up to Schlem- 
 mer, and told him they had better shove the caboose on by hand, to 
 which he answered : "Never mind, I will make this coupling." To 
 which the witness answered: "Well, you will have to get down."
 
 Ch. 1) NEGLIGENCE 1143 
 
 Witness testified that he called to him twice to get down, the last time 
 not more than a second, possibly a couple of seconds, before he was 
 injured. This witness furthermore testified that he had a sufiicient 
 crew to push the caboose up by hand, that there was plenty of -'force 
 to shove the caboose up in that way ; that that was a great deal safer 
 way to make the coupling than backing onto the caboose. The tes- 
 timony further shows that there was plenty of room under the pro- 
 jection of the shovel car to operate the drawbar and raise it up. In 
 fact, in this manner, the coupling was made a few minutes after the 
 unfortunate occurrence which resulted in the death of the deceased. 
 
 As the record is now presented, there is no proof in the case that 
 the deceased was ordered to make the coupling in the manner he did, 
 and there is testimony to the efifect that, just before the injury, the 
 conductor in charge of the train said to the deceased : "Mr. Schlem- 
 mer, you be very careful now, and keep your head down low, so 
 as not to get mashed in between those cars." He said he would. 
 
 In view of this record we cannot say that the court, in denying a 
 recovery to the plaintiff, upon the ground of contributory negligence 
 of the deceased, denied to her any rights secured by the Federal stat- 
 ute. Entirely apart from the question of assumption of risk, which, 
 under the law, could not be a defense to the plaintiff's action, as the 
 law then stood, there remained the defense of contributory negligence. 
 
 After an examination of the record as now presented, containing 
 testimony not adduced at the former trial, we are constrained to the 
 conclusion that there was ample ground for saying, as both the trial 
 court and the Supreme Court of the state of Pennsylvania did, that 
 the decedent met his death because of his unfortunate attempt to make 
 the coupling in a dangerous way, when a safer way was at the time 
 called to his attention. Furthermore, he was injured in spite of 
 repeated cautions, made at the time, as to the great danger of being 
 injured if he raised his head in attempting to make the coupling in 
 the manner which he did. 
 
 As we have said, the Federal question in the record, and the only 
 one which gives us jurisdiction, is: Did the trial and judgmept de- 
 prive the plaintiff in error of rights secured by the Federal statute? 
 The views which we have expressed require that the question be 
 answered in the negative. 
 
 The judgment of the Supreme Court of Pennsylvania is affirmed.'' 
 
 9 Part of the opinion is omitted.
 
 1144 TOUTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 IV. Imputed Negligence: as an Excuse ^** 
 
 ^ 
 
 . THE BERNINA. 
 
 (Court of Appeal, 18S7. L. R. 12 Prob. Div. 58.) 
 
 Appeal from a judgment by Butt, J., on a special case stated for 
 the opinion of the court in three actions in personam against the 
 owners of the steamship "Bernina." Butt, J., held, on the authority 
 of Thorogood v. Bryan, 8 C. B. 115, that the plaintiffs were unable 
 to recover. The plaintiffs appealed. ^^ 
 
 LiNDLEY, L. J. This was a special case. Three actions are brought 
 in the A.dmiralty Division of the High Court by the respective legal 
 personrl representatives of three persons on board the Bushire against 
 the owners of the Bernina. Those persons were killed by a collision 
 between the two vessels, both of which were jnegligently navigated. 
 One of the three persons (Toeg) was a passenger on the Bushire; 
 one (Armstrong) was an engineer of the ship, though not to blame 
 for the collision. The third (Owen) was her second officer, and was 
 in charge of her, and was himself to blame for the collision. The 
 questions for decision are, whether any, and if any, which of these 
 actions can be maintained? and if any of them can, then whether 
 the claims recoverable are to be awarded according to the principles 
 which prevail at common law, or according to those which are adopted 
 in the Court of Admiralty in cases of collision. ^^ * * * 
 
 The first matter to be considered is whether there has been any 
 such wrongful act, neglect, or default of the defendants as would, 
 if death had not ensued, have entitled the three deceased persons re- 
 spectively to have sued the defendants. Now, as regards one of them, 
 namely, Owen, the second officer, who was himself to blame for the 
 collision, it is clear that, if death had not ensued, he could not have 
 maintained an action against the defendants. There was negligence 
 on his part contributing to the collision, and no evidence to show that, 
 notwithstanding his negligence, the defendants could, by taking rea- 
 sonable care, have avoided the collision. There was what is called 
 such contributory negligence on his part as to render an action by him 
 unsustainable. It follows, therefore, that his representatives can re- 
 cover nothing under Lord Campbell's Act for his widow and children, 
 and their action cannot be maintained. The other two actions are not 
 so easily disposed of. They raise two questions : (1) Whether the 
 passenger Toeg, if alive, could have successfully sued the defendants ; 
 
 10 On the general bearing of the doctrine, see 29 Cyc. 542, notes 99, 1-6. 
 
 11 The statement of the case is abridged. 
 
 12 Only so much of the opinion is given as relates to this first question. As 
 to the second question, it was held that actions under Lord Cami)beirs Act 
 are not admiralty actions and, although brought in the Admiralty Division of 
 the High Court, are not subject to the admiralty i-ule as to half damages.
 
 Ch. 1) NEGLIGENCE 1145 
 
 and if he could, then (2) whether there is any difference between the 
 case of the passenger and that of the engineer Armstrong. The learn- 
 ed judge whose decision is under review felt himself bound by au- 
 thority to decide both actions against the plaintiffs. The authorities 
 which the learned judge followed are Thorogood v. Bryan, 8 C. B, 
 115, and Armstrong v. Lancashire & Yorkshire Ry. Co., Law Rep. 
 10 Ex. 47; and the real question to be determined is whether they 
 can be properly overruled or not. Thorogood v. Bryan, supra, was 
 decided in 1849, and has been generally followed at Nisi Prius ever 
 since when cases like it have arisen. But it is curious to see how 
 reluctant the Courts have been to affirm its principle after argument, 
 and how they have avoided doing so, preferring, where possible, to 
 decide cases before them on other grounds. See, for example, Rigby 
 V. Hewitt, 5 Ex. 240; Greenland v. Chaphn, 5 Ex. 243; Vv'aite v. 
 North Eastern Ry. Co., E. B. & E. 719. I am not aware that the 
 principle on which Thorogood v. Bryan was decided has ever been 
 approved by any Court which has had to consider it. On the other 
 hand, that case has been criticised and said to be contrary to principle 
 by persons of the highest eminence, not only in this country, but 
 also in Scotland and in America. And while it is true that Thoro- 
 good V. Bryan has never been overruled, it is also true that it has 
 never been affirmed by any Court which could properly overrule it, 
 and it cannot be yet said to have become indisputably settled law. 
 I do not think, therefore, that it is too late for a Court of Appeal to 
 reconsider it, or to overrule it if clearly contrary to well settled legal 
 principles. 
 
 Thorogood v. Bryan was an action founded on Lord Campbell's 
 Act. The facts were shortly as follows. The deceased was a pas- 
 senger in an omnibus, and he had just got off out of it. He was 
 knocked down and killed by another omnibus belonging to the defend- 
 ants. There was negligence on the part of the drivers of both omni- 
 buses, and it appears that there was also negligence on the part of the 
 deceased himself. The jury found a verdict for the defendants, and 
 there does not seem to have been any reason why the Court should 
 have disallowed the verdict if not driven to do so on technical grounds. 
 In those days, however, a misdirection by the judge to the jury com- 
 pelled the Court to grant a new trial, whether any injustice had been 
 done or not; and accordingly the plaintiff moved for a new trial 
 on the ground of misdirection, and it is with reference to this point 
 that the decision of the Court is of importance. The learned judge 
 who tried the case told the jury in effect to find for the defendant 
 if they thought that the deceased was killed either by reason of his 
 own want of care or by reason of want of care on the part of the 
 driver of the omnibus out of which he was getting. The last di- 
 rection was complained of, but was upheld by the Court. The ratio 
 decidendi was that if the death of the deceased was not occasioned 
 by his own negligence it was occasioned by the joint negligence of
 
 114G TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 both drivers, and that, if so, the negligence of the driver of the 
 omnibus off w^hich the deceased was getting was the neghgence of 
 the deceased ; and the reason for so holding was that the deceased 
 had voluntarily placed himself under the care of the driver. Maule, 
 J., puts it thus : "The deceased must be considered as identified 
 with the driver of the omnibus in which he voluntarily became a 
 passenger, and the negligence of the driver was the negligence of the 
 deceased." This theory of identification was quite new. No trace of 
 it is to be found in any earlier decision, nor in any legal treatise, Eng- 
 lish or foreign, so far as I have been able to ascertain, nor has it ever 
 been satisfactorily explained. It must be assumed, for the purpose of 
 considering the grounds of the decision in question, that the passenger 
 was not himself in fault. Assuming this to be so, then, if both drivers 
 were negligent, and both caused the injury to the passenger, it is diffi- 
 cult to understand why both drivers or their masters should not be 
 liable to him. The doctrine of identification laid down in Thorogood 
 V. Bryan is, to me, quite unintelligible. It is, in truth, a fictitious 
 extension of the principles of agency, but to say that the driver of 
 a public conveyance is the agent of the passengers is to say that 
 which is not true in fact. Such a doctrine, if made the basis of fur- 
 ther reasoning, leads to results which are wholly untenable, e. g., to 
 the result that the passengers would be liable for the negligence of 
 the person driving them, which is obviously absurd, but which, of 
 course, the Court never meant. All the Court meant to say was that 
 for purposes of suing for negligence the passenger was in no better po- 
 sition than the man driving him. But why not? The driver of a 
 public vehicle is not selected by the passenger otherwise than by 
 being hailed by him as one of the public to take him up; and such 
 selection, if selection it can be called, does not create the relation 
 of principal and agent or master and servant between the passenger 
 and the driver; the passenger knows nothing of the driver and has 
 no control over him ; nor is the driver in any proper sense employed 
 by the passenger. The driver, if not his own master, is hired, paid, 
 or employed by the owner of the vehicle he drives or by some other 
 person who lets the vehicle to him. The orders he obeys are his 
 employer's orders. These orders, in the case of an omnibus, are 
 to drive from such a place to such a place and take up and put 
 down passengers ; and in the case of a cab the orders are to drive 
 where the passenger for the time being may desire to go, within 
 the limits expressly or impliedly set by the employer. If the pas- 
 senger actively interferes with the driver by giving him orders as 
 to what he is to do, I can understand the meaning of the expression 
 that the passenger identifies himself with the driver, but no such 
 interference was suggested in Thorogood v. Bryan. The principles 
 of the law of negligence, and in particular of what is called contrib- 
 utory negligence, have been discussed on many occasions since that 
 case was decided, and are much better understood now than they were
 
 Ch, 1) NEGLIGENCE 1147 
 
 thirty, years ago. Tuff v. Warman, 5 C. B. (N. S.) 573, in the Ex- 
 chequer Chamber, and Radley v. London & North Western Ry. Co., 
 1 App. Cas. 754, in the House of Lords, show the true grounds on 
 which a person himself guilty of negligence is unable to maintain 
 an action against another for an injury occasioned by the combined 
 negligence of both. If the proximate cause of the injury is the 
 negligence of the plaintiff as well as that of the defendant, the plain- 
 tiff cannot recover anything. The reason for this is not easily dis- 
 coverable. But I take it to be settled that an action at common 
 law by A. against B. for injury directly caused to A. by the want 
 of care of A. and B. will not lie. As Pollock, C. B., pointed out in 
 Greenland v. Chaplin, supra, the jury cannot take the consequences 
 and divide them in proportion according to the negligence of the 
 one or the other party. But if the plaintiff can show that although 
 he has himself been negligent, the real and proximate cause of the 
 injury sustained by him was the negligence of the defendant, the 
 plaintiff can maintain an action, as is shown not only by Tuff v. 
 Warman, supra, and Radley v. London & North Western Ry. Co., 
 supra, but also by the well-known case of Davies v. Mann, 10 M. & 
 W. 546, and other cases of that class. The cases which give rise to 
 actions for negligence are primarily reducible to three classes, as 
 follows : 
 
 1. A. without fault of his own is injured by the negligence of B., 
 then B. is liable to A. 2. A. by his own fault is injured by B. without 
 fault on his part, then B. is not liable to A. 3. A. is injured by B. 
 by the fault more or less of both combined ; then the following further 
 distinctions have to be made: (a) if, notwithstanding B.'s negligence, 
 A. with reasonable care could have avoided the injury, he cannot sue 
 B. : Butterfield v. Forrester, 11 East, 60; Bridge v. Grand Junction 
 Ry. Co., 3 M. & W. 244; Dowell v. General Steam Navigation Co., 
 5 E. & B. 195 ; (b) if, notwithstanding A.'s negligence, B. with reason- 
 able care could have avoided injuring A., A. can sue B. : Tuff v. 
 Warman, supra ; Radley v. London & North Western Ry. Co., supra ; 
 Davies v. Mann, supra; (c) if there has been as much want of rea- 
 sonable care on A.'s part as on B.'s or, in other words, if the proxi- 
 mate cause of the injury is the want of reasonable care on both 
 sides, A. cannot sue B. In such a case A. cannot with truth say 
 that he has been injured by B.'s negligence, he can only with truth 
 say that he has been injured by his own carelessness and B.'s neg- 
 ligence, and the two combined give no cause of action at common 
 law. This follows from the two sets of decisions already referred 
 to. But why in such a case the damages should not be apportioned, 
 I do not profess to understand. However, as already stated, the law 
 on this point is settled, and not open to judicial discussion. If now 
 another person is introduced the same principles will be found ap- 
 plicable. Substitute in the foregoing cases B. and C. for B., and 
 unless C. is A.'s agent or servant there will be no difference in the
 
 1148 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 result, except that A. will have two persons instead of one liable 
 to him. A. may sue B. and C. in one action, and recover damages 
 against them both ; or he may sue them separately and recover the 
 whole damage sustained against the one he sues : Clark v. Chambers, 
 3 O. B. D. 327, where all tlie previous authorities were carefully 
 examined by the late L. C. J. Cockburn. This is no doubt hard on 
 the defendant, Avho is alone sued, and this hardship seems to have 
 influenced the Court in deciding Thorogood v. Bryan, supra. In 
 that case the Court appears to have thought it hard on the defendant 
 to make him pay all the damages due to the plaintiff, and that it 
 was no hardship to the plaintiff to exonerate the defendant from lia- 
 bility, as the plaintiff had a clear remedy against the master of the 
 omnibus in which he was a passenger. But it is difficult to see the 
 justice of exonerating the defendant from all liability in respect of 
 his own wrong and of throwing the whole liability on some one who 
 was no more to blame than he. The injustice to the defendant, which 
 the Court sought to avoid, is common to all cases in which a wrong 
 is done by two people and one of them alone is made to pay for it. 
 The rule which does not allow of contribution among wrong-doers 
 is what produces hardship in these cases, but the hardship produced 
 by that rule (if really applicable to such cases as these under discus- 
 sion) does not justify the Court in exonerating one of the wrong- 
 doers from all responsibility for his own misconduct or the miscon- 
 duct of his servants. I can hardly believe that if the plaintiff in 
 Thorogood v. Bryan, had sued the proprietors of both omnibuses it 
 would have been held that he had no right of action against one of 
 them. Having given my reasons for my inability to concur in the 
 doctrine laid down in Thorogood v. Bryan, supra, I proceed to con- 
 sider how far that doctrine is supported by other authorities. * * * 
 Thorogood v. Bryan and Armstrong v. Lancashire & Yorkshire Ry. 
 Co. affirm that, although if A. is injured by the combined negligence 
 of B. and C, A. can sue B. and C, or either of them, he cannot 
 sue C. if he, A., is under the care of B. or in his employ. From 
 this general doctrine I am compelled most respectfully to dissent, 
 but if B. is A.'s agent or servant the doctrine is good. In Scotland 
 the decision in Thorogood v. Bryan was discussed and held to be 
 unsatisfactory in the case of Adams v. Glasgow & South Western 
 Ry. Co., 3 Court Sess. Cas. 215. In America the subject was recently 
 examined with great care by the Supreme Court of the United States 
 in Little v. Hackett [116 U. S. 366] 14 Am. Law Record, 577, 54 
 Am. Rep. 15, in which the English and American cases were reviewed, 
 and the doctrine laid down in Thorogood v. Bryan, supra, was dis- 
 tinctly repudiated as contrary to sound principles. In this case the 
 plaintiff was driving in a hackney carriage and was injured by a col- 
 lision between it and a railway train on a level crossing. There was 
 negligence on the part of the driver of the carriage and on the part 
 of the railway company's servants, but it was held that the plain-
 
 Ch. 1) NEGLIGENCE 1149 
 
 tiff was not precluded from maintaining an action against the rail- 
 way company. In this country Thorogood v. Bryan was distinctly 
 disapproved by Dr. Lushington in The Milan, Lush. 388 ; and even 
 Lord Bramwell, w.ho has gone further than any other judge in up- 
 holding the decision, has expressed disapproval of the grounds on 
 which it was based. No text-writer has approved of it, and the 
 comments in Smith's Leading Cases are adverse to it (volume 1, p. 
 266, 6th Ed.). For the reasons above stated, I am of opinion that 
 the doctrines laid down in Thor ogood v. Bryan and Armstrong v. 
 Lancashire & Yorkshire Ry. Co. are contrary to sound legal principles, 
 and ought not to be regarded as law. Consequently, I am of opinion 
 that the decision in Toeg's and Armstrong's case ought to be re- 
 versed. ^^ 
 
 Appeal allowed.^* 
 
 13 The concurring opinions of Lord Esher, M. R., and Lopes, L. J., are 
 omitted. Lord Esher's opinion (12 P. D. pages 60-84) contains an elaborate 
 review of the authorities, English and American. 
 
 14 From this decision an appeal was taken to the House of Lords, where, 
 under the name, Mills v. Armstrong, L. R. 13, App. Cases (1888), the judgment 
 of the Court of Api>eal was affirmed. 
 
 Commenting on the doctrine of identification in Thorogood v. Bryan, Lord 
 Herschell, in Mills v. Armstrong remarks as follo\\^s: '^With the utmost re- 
 spect for these eminent judges, I must say that I am unable to comprehend 
 this doctrine of identification upon which they lay so much stress. In what 
 sense is the passenger by a public stage-coach, because he avails himself of 
 the accommodation afforded by it, identified with the driver? The learned 
 judges manifestly do not mean to suggest (though some of the language used 
 would seem to bear that construction) that the passenger is so far identified 
 with the driver that the negligence of the latter would render the former 
 liable to third persons injured by it. I presume that they did not even mean 
 that the identification is so complete as to prevent the passenger from re- 
 covering against the driver's master ; though if 'negligence of the owner's 
 servants is to be considered negligence of the passenger.' or if he 'must be con- 
 sidered a party' to their negligence, it is not easy to see why it should not 
 be a bar to such an action. In short, as far as I can see, the identification 
 appears to be effective only to the extent of enabling another person whose 
 servants have been guilty of negligence to defend himself by the allegation 
 of contributory negligence on the part of the person injured. But the vei'j' 
 question that had to be determined was, whether the contributory negligence 
 of the driver of the vehicle was a defence as against the passenger when 
 suing another wrongdoer. To say that it is a defence because the passenger 
 is identified with the driver, appears to me to beg the question, when it is 
 not suggested that this identification results from any recognized principles 
 of law, or has any other effect than to furnish that defence the validity of 
 which was tlie very point in issue. Two persons may no doubt be so bound 
 together by the legal relation in which tliey stand to each other that the acts 
 of one may be regarded by the law as the acts of the other. But tlie rela- 
 tion between the passenger in a public vehicle and the driver of it certainly 
 is not such as to fall within any of the recognized categories in which the act 
 of one man is treated in law as the act of another."
 
 1150 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 WAITE V. NORTHEASTERN RY. CO. 
 
 (Court of Queen's Bench, 185S. Court of Exchequer Chamber, 1859. E31, Bl. 
 
 & El. 719, 728, 113 R. R. 855.) * 
 
 Action by Alexander Waite, an infant, to recover for the alleged 
 negligence of the defendant railway company. The defendant filed 
 a plea of not guilty and two special pleas. Issues on all the pleas. 
 
 Lord Campbell, C. J. In this case we think that the rule ought 
 to be made absolute for entering a verdict for the defendants, or for 
 a nonsuit. The jury must be taken to have found that Mrs. Park, the 
 grandmother of the infant plaintiff, in whose care he was when the 
 accident happened, was guilty of negligence without which the acci- 
 dent would not have happened; and that, notwithstanding the neg- 
 ligence of the defendants, if she had acted upon this occasion with 
 ordinary caution and prudence, neither she herself nor the infant 
 would have suffered. Under such circumstances, had she survived she 
 could not have maintained any action against the Company ; and we 
 think that the infant is so identified with her that the action in his 
 name cannot be maintained. The relation of master and servant cer- 
 tainly did not subsist between the grandchild and the grandmother ; and 
 she cannot in any sense be considered his agent : but we think that the 
 defendants, in furnishing the ticket to one and the half-ticket for the 
 other, did not incur a greater liability towards the grandchild than 
 towards the grandmother, and that she, the contracting party, must 
 be implied to have promised that ordinary care should be taken of 
 the grandchild. 
 
 We do not consider it necessary to offer any opinion as to the recent 
 cases in which passengers by coaches or by ships have brought actions 
 for damage suffered from the negligent management of other coaches 
 and ships, there having been negligence in the management of the 
 coaches and ships by which they were travelling, as, at all events, a 
 complete identification seems to us to be constituted between the 
 plaintiff and the party whose negligence contributed to the damage 
 which is the alleged cause of action, in the same manner as if the 
 plaintiff had been a baby only a few days old, to be carried in a 
 nurse's arms. 
 
 Rule absolute. 
 
 The plaintiff having appealed against the above decision, the case 
 was argued in the Exchequer Chamber. 
 
 CocKBURN, C. J. I am of opinion that the judgment of the Court of 
 Queen's Bench ought to be affirmed. I put the case on this ground : 
 that, when a child of such tender and imbecile age is brought to a 
 railway station or to any conveyance, for the purpose of being con- 
 veyed, and is wholly unable to take care of itself, the contract of con- 
 veyance is on the implied condition that the child is to be conveyed 
 subject to due and proper care on the part of the person having it in
 
 Ch. 1) NEGLIGENCE 1151 
 
 charge. Such care not being used, where the child has no natural 
 capacity to judge of the surrounding circumstances, a child might 
 get into serious danger from a state of things which would produce 
 no disastrous consequences to an adult capable of taking care of him- 
 self. Here the child was under the charge of his grandmother; and 
 the company must be taken to have received the child as under her 
 control and subject to her management. The plea and finding show 
 that the negligence of the defendants contributed partially to the 
 damage; but that the negligence of the person in whose charge the 
 child was, and Vv-ith reference to whom the contract of conveyance was 
 made, also contributed partially. There is not therefore that negli- 
 gence on the part of the defendants which is necessary to support 
 the action. 
 
 Pollock, C. B. I entirely agree. The shortest way of putting 
 Mr. Mellish's argument is that this is not a mere case of simple wrong, 
 but one arising from the contract of the grandmother on the part of 
 the plaintiff, who must avail himself of that contract, without which he 
 cannot recover. There really is no difference between the case of a 
 person of tender years under the care of another and a valuable chattel 
 committed to the care of an individual, or even not committed to such 
 care. The action cannot be maintained unless it can be maintained by 
 the person having the apparent possession, even though the child or the 
 chattel was not regularly put into the possession of the person, as, for 
 instance, though the party taking charge of the child had done so 
 without the father's consent ; that circumstance would make no dift'er- 
 ence as to the question of the child's right. That is my reason for 
 pressing this argument of Air. jMellish, as it meets every possible view 
 of the case/^ 
 
 SECTION 5.— THE LAST CLEAR CHANCE 
 
 CLAY V. WOOD. 
 
 (At Nisi Prius, iu the King's Bench, 1803. 5 Esp. 44.) 
 
 This was an action on the case, for negligently driving a chaise 
 against a certain horse of the defendant's on which the plaintift"s 
 servant then rode, by which he had his thigh broke; in consequence 
 of which he died. 
 
 15 The concurring opinions of Williams and Crowder, J J., and of Bramwell, 
 B., are omitted. 
 
 In the argument Pollock, C. B., put this question to counsel: "Suppose a 
 man to drive his own gig, in which his child is, and to come into collision 
 with another carriage through the negligence of both drivers. Can the child 
 recover against the owners of the other carriage? That would be manifest- 
 ly absurd. ♦ • • "
 
 1152 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 The facts were, that the plaintiff's servant was riding on the wrong 
 side of the road ; but near the middle of it. The defendant was the 
 owner of a chaise, then driven by his servant, coming out of another 
 road, and crossing the road over to that side of the road on which 
 the servant was riding, which was the proper side of the road for the 
 defendant. In so crossing over, the shaft of the chaise struck the 
 horse in the thigh, and broke it. The defendant's counsel replied, 
 That it was the duty of the servant to have kept on his proper side; 
 and that the accident being occasioned by his being so out of place, 
 the defendant was not liable. 
 
 Lord Ellenborough said, That the circumstance of the person 
 being on the wrong side of the road was not sufHcient to discharge 
 the defendant ; for though a person might be on his wrong side of the 
 road, if the road was of sufficient breadth, so that there was full and 
 ample room for the party to pass, he was of opinion he was bound to 
 take that course which should carry him clear of the person who was 
 on his wrong side; and that if an injury happened, by running against 
 such person, he would be answerable. A person being on his wrong 
 side of the road could not justify another in wantonly doing an in- 
 jury, which might be avoided. The question therefore to be left to 
 the jury was. Whether there was such room, that though the plain- 
 tiff's servant was on his wrong side of the road, there was sufficient 
 room for the defendant's carriage to pass between the plaintiff's horse 
 and the other side of the road? If they were of opinion that there 
 was, the plaintiff was entitled to recover. 
 
 Verdict for the plaintiff". 
 
 DA VIES V. MANN. 
 
 (Court of Exchequer, 1842. 10 Mees. & W. 546, 62 R. R. 608.) 
 
 Case for negligence. The declaration stated, that the plaintiff there- 
 tofore, and at the time of the committing of the grievance thereinafter 
 mentioned, to wit, on, &c., was lawfully possessed of a certain donkey, 
 which said donkey of the plaintiff was then lawfully in a certain high- 
 way, and the defendant was then possessed of a certain waggon and 
 certain horses drawing the same, which said waggon and horses of 
 the defendant were then under the care, government, and direction 
 of a certain then servant of the defendant, in and along the said high- 
 way; nevertheless the defendant, by his said servant, so carelessly, 
 negligently, unskillfully, and improperly governed and directed his 
 said waggon and horses, that by and through the carelessness, neg- 
 hgence, unskillfulness, and improper conduct of the defendant, by his 
 said servant, the said waggon and horses of the defendant then ran 
 and struck with great violence against the said donkey of the plaintiff, 
 and thereby then wounded, crushed and killed the same, &c. The de- 
 fendant pleaded not guilty.
 
 Ch. 1) NEGLIGENCE 1153 
 
 At the trial before Erskine, J., at the last Summer Assizes for the 
 county of Worcester, it appeared that the plaintiff, having fettered 
 the forefeet of an ass belonging to him, turned it into the public high- 
 way, and at the time in question the ass was grazing on the off side of 
 a road about eight yards wide, when the defendant's waggon, with a 
 team of three horses, coming down a slight descent, at what the witness 
 termed a smartish pace, ran into the ass, knocked it down, and the 
 wheels passing over it, it died soon after. The ass was fettered at 
 the time and it was proved that the driver of the waggon was some 
 little distance behind the horses. The learned Judge told the jury 
 that though the act of the plaintiff, in leaving the donkey on the high- 
 way, so fettered as to prevent his getting out of the way of carriages 
 travelling along it, might be illegal, still, if the proximate cause of 
 the injury was attributable to the want of proper conduct on the part of 
 the driver of the waggon, the action was maintainable against the 
 defendant ; and his Lordship directed them, if they thought that the 
 accident might have been avoided by the exercise of ordinary care on 
 the part of the driver, to find for the plaintiff. The jury found their 
 verdict for the plaintiff, damages 40s. 
 
 Godson now moved for a new trial, on the ground of misdirection. 
 The act of the plaintiff in turning the donkey into the public highway 
 was an illegal one, and, as the injury arose principally from that act, 
 the plaintiff was not entitled to compensation for that injury which, but 
 for his own unlawful act, would never have occurred. [Parke, B. 
 The declaration states that the ass was lawfully on the highway, and 
 the defendant has not traversed that allegation; therefore it must be 
 taken to be admitted.] The principle of law, as deducible from the 
 cases is, that where an accident is the result of faults on both sides, 
 neither party can maintain an action. Thus, in Butterfield v. Forres- 
 ter, 11 East, 60, it was held that one who is injured by an obstruction 
 on a highway, against which he fell, cannot maintain an action, if it 
 appear that he was riding with great violence and want of ordinary 
 care, without which he might have seen and avoided the obstruction. 
 So, in Vennall v. Garner, 1 C. & M. 21, in case for running down a 
 ship, it was held, that neither party can recover when both are in the 
 wrong; and Bayley, B., there says, "I quite agree that if the mis- 
 chief be the result of the combined negligence of the two, they must 
 both remain in statu quo, and neither party can recover against the 
 other." Here the plaintiff, by fettering the donkey, had prevented 
 him from removing himself out of the way of accident; had his fore- 
 feet been free no accident would probably have happened. Pluckwell 
 V. Wilson. 5 Car. & P. 375 ; Luxford v. Large, Ibid. 421, and Lynch 
 V. Nurdin, 1 Ad. & E. (N. S.) 29; 4 P. & D. 672, are to the same 
 effect. 
 
 Lord Abinger, C. B. I am of opinion that there ought to be no 
 rule in this case. The defendant has not denied that the ass was law- 
 Hepb.Tobts — 73
 
 1154 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 fully in the highway, and therefore we must assume it to have been 
 lawfully there ; but even were it otherwise, it would have made no dif- 
 ference, for as the defendant might, by proper care, have avoided in- 
 juring the animal, and did not, he is liable for the consequences of his 
 negligence, though the animal may have been improperly there. 
 . ParkE, B. This subject was fully considered by this Court in the 
 case of Bridge v. The Grand Junction Railway Company, 3 M. & W. 
 246, where, as appears to me, the correct rule is laid down concerning 
 negligence, namely, that the negligence which is to preclude a plain- 
 tiff from recovering in an action of this nature, must be such as that 
 he could, by ordinary care, have avoided the consequences of the de- 
 fendant's negligence. I am reported to have said in that case, and I 
 believe quite correctly, that "the rule of law is laid down with perfect 
 correctness in the case of Butterfield v. Forrester, that, although there 
 may have been negligence on the part of the plaintiff, yet unless he 
 might, by the exercise of ordinary care, have avoided the consequences 
 of the defendant's negligence, he is entitled to recover; if by ordinary 
 care he might have avoided them, he is the author of his own wrong." 
 In that case of Bridge v. Grand Junction Railway Company, there 
 was a plea imputing negligence on both sides ; here it is otherwise ; 
 and the judge simply told the jury, that the mere fact of negligence 
 on the part of the plaintiff in leaving his donkey on the public high- 
 way, was no answer to the action, unless the donkey's being there was 
 the. immediate cause of the injury; and that, if they were of opinion 
 that it was caused by the fault of the defendant's servant in driving 
 too fast or, which is the same thing, at a smartish pace, the mere fact 
 of putting the ass upon the road would not bar the plaintiff" of his 
 action. All that is perfectly correct; for, although the ass may have 
 been wrongfully there, still the defendant was bound to go along the 
 road at such a pace as would be likely to prevent mischief. Were this 
 not so, a man might justify the driving over goods left on a public 
 highway, or even over a man lying asleep there, or the purposely run- 
 ning against a carriage going on the wrong side of the road. 
 GuRNEY, B., and Rolfe, B., concurred. 
 Rule refused.^* 
 
 18 Compare the earlier ca.se of Payne v. Smith (1S3G) 4 Dana (Ky.) 497: 
 Whilst driving his horse in a gig, in a brisk trot, in one of the streets of 
 Lexington, the defendant, in passing through a narrow space of about ten 
 feet in width, between a wagon and one of the side pavements, came in con- 
 tact witli the plaintiff's horse, which was walking alone across the street, 
 rather obliyuely towards the gig." A recovery for the plaintiff, suing in tres- 
 pass, was permitted. "The testimony," said Robertson, C. J., "will not allow 
 the inference that the violent collision was the consequence, altogether or 
 chiefly, of the heedlessness, or voluntary perverseness of the plaintiff's horse; 
 or that the injurious contact was unavoidable by the defendant ; or that it 
 would have occurred had he been reasonably vigilant and careful, or had he 
 been driving with prudent speed."
 
 Ch. 1) NEGLIGENCE 1155 
 
 TUFF V. WAR^IAN. 
 
 (In the Exchequer Chamber, 1S5S. 5 C. B. [N. S.] 573, 141 Reprint, 231, 
 
 116 R. R. 774.) 
 
 This was an appeal from a decision of the Court of Common 
 Pleas discharging a rule for a new trial (moved on the ground of 
 misdirection and that the verdict was against evidence) in an action 
 against the defendant, a Trinity House pilot, for negligently navigat- 
 ing a steam vessel called the "Celt" in the river Thames, and run- 
 ning against and damaging the plaintiff's barge, the "Nancy." 
 
 The cause was tried before Willes, J., at the sittings in London 
 after Hilary Term, 1857, when a verdict was found for the plaintiff.^^ 
 The facts brought out in the evidence were substantially as follows : 
 
 At the time the collision took place, the "Nancy" was sailing down the river 
 with a fair wind ; and the "Celt" was steaming up the river. There were 
 only two persons on board the "Nancy." One was occupied in washing the 
 deck ; the other was steering. The latter was in such a position that he could 
 not see ahead (the sail being in the way) without stooping. He stated that 
 he had seen the "Celt" when more than half a mile off, on the south side 
 of the river, and when he so saw her there was no likelihood of her coming 
 into collision with the barge: that he had not seen her again until just before 
 the collision, when, he said, he ported his helm, but that it was then too late 
 to alter the course of the barge; that, if he had seen the steamer a few min- 
 utes before, he should have ported his helm, but he should not have avoid- 
 ed the collision by porting his helm five minutes before; and that there was 
 plenty of room on each side for the steamer to pass. 
 
 Two seamen who were in another vessel were called by the plaintiif, and 
 stated that the "Celt" was about the middle of the river, but nearer to the 
 north than to the south shore ; that the "Celt" and the "Nancy" were for a 
 quarter of a mile or more before the collision in a direct line ; that the "Celt" 
 did not port her helm; and that there was no difhculty in the steamer pass- 
 ing the "Nancy" on either side. 
 
 On the part of the defendant, witnesses were called to prove that the 
 defendant was only one-fourth of the width of the river from the north bank 
 of the river ; that he was keeping a lookout and that he could not see 
 whether any one was looking out on the barge; that, several minutes be- 
 fore the collision he directed the helm of the "Celt" to be ported, and that 
 this direction was obeyed ; that this was done in time to void the collision, 
 had the "Nancy" at the same time ported her helm also, or if she had even 
 kept on her course ; but that her steersman had starboarded his helm instead 
 of porting it. 
 
 In his summing up the learned Judge told the jury that the plain- 
 tiff was not entitled to recover if it was an accident, or if the plaintiff' 
 by his negligence had directly contributed to the accident ; and that, 
 if the injury was occasioned by the negligence of both parties, the 
 plaintiff had no remedy: and he asked the jury whether they thought 
 the absence of look-out was an act of negligence on the part of the 
 plaintiff; and, if so, they would have to take it into consideration in 
 deciding whether, notwithstanding that, the defendant was liable : 
 and he further told them, that, if the parties on one vessel had a 
 look-out and still persisted in a course which would inflict an injury, 
 
 17 See Tuft' v. Warman (1857) 2 C. B. N. S. 740, 140 Reprint, U07.
 
 1156 TORTS THROUGH ACTS OP CONDITIONAL LIABILITY (Part 3 
 
 then they were liable, though there was no look-out on the other ves- 
 sel, for that would not be the direct cause of the injury: and he 
 referred to the case of Davies v. Mann, 10 M, & W. 546, by way 
 of illustration. The learned Judge further told the jury, that, if they 
 thought the accident liad been partly caused by the plaintiffs own 
 negligence, they should find for the defendant; but that, if they 
 thought the barge was injured by the negligence of the defendant, 
 and that the negligence of the plaintiff did not directly contribute 
 thereto, the plaintiff was entitled to recover. 
 
 In the following Easter Term, a rule was obtained on the part of 
 the defendant calling upon the plaintiff to show cause why there 
 should not be a new trial, on the ground that the learned Judge had 
 misdirected the jur)% in this, that he ought to have told them, that, 
 if the plaintiff by his negligence contributed to the occasioning of 
 the accident, he could not recover, whether he contributed directly 
 or indirectly ; and that, even assuming negligence on the defendant's 
 part, the plaintiff could not recover, if he might by the exercise of 
 ordinary care have avoided the consequences of the defendant's negli- 
 gence; and that he should further have told the jury, that, if the 
 plaintiff failed to comply with the statutory rule relative to portmg 
 his helm, whether his failure to do so arose from his not looking 
 out or from other causes, and such failure either directly or indi- 
 rectly contributed to the collision, he could not recover. 
 
 Cause was shown against this rule in Trinity Term, 1857, and the 
 rule was discharged ; but leave was given to the defendant to ap- 
 peal, pursuant to the 35th section of the Common Law Procedure 
 Act, 1854, 17 & 18 Vict. c. 125. (Vide 2 C. B. N. S. 740.) 
 
 If the Court should be of opinion that the objections made to the 
 ruling of the learned Judge are unsustainable, the judgment below 
 is to stand : if not, the judgment below is to be reversed, and a new 
 trial ordered. 
 
 The case was argued on the 10th of May, 1858, before Wightman, 
 J., Erle, J., Crompton, J., Watson, B., Bramwell, B., and Chan- 
 NELL, B.^^ 
 
 Cur. adv. vult. 
 
 Wightman, J., now delivered the judgment of the Court: It ap- 
 pears to us tliat the proper question for the jury in this case, and 
 indeed in all others of the like kind, is, whether the damage was 
 occasioned entirely by the negligence or improper conduct of the de- 
 fendant, or whether the plaintiff" himself so far contributed to the 
 misfortune by his own negligence or want of ordinary and common 
 care and caution, that, but for such negligence or want of ordinary 
 care and caution on his part, the misfortune would not have hap- 
 pened. In the first case, the plaintiff would be entitled to recover, 
 
 18 The statement of the case is abridged, and the arguments of counsel are 
 omitted.
 
 Ch. 1) NEGLIGENCE 1157 
 
 in the latter not ; as, but for his own fault, the misfortune would not 
 have happened. Mere negligence or want of ordinary care or caution 
 would not however, disentitle him to recover unless it were such, that, 
 but for that negligence or want of ordinary care and caution, the mis- 
 fortune could not have happened; nor, if the defendant might by 
 the exercise of care on his part have avoided the consequences of 
 the neglect or carelessness of the plaintiff. 
 
 This appears to be the result Reducible from the opinion of the 
 Judges in Butterfield v. Forrester, 11 East, 60, Bridge v. Grand 
 Junction Railway Company, 3 M. & W. 246, Davies v. I\Iann, 10 M. & 
 W. 548, and Dowell v. General Steam Navigation Company, 5 El. 
 & Bl. 206. 
 
 In the present case the main objection taken to the summing-up 
 was, that the judge left to the jury whether the plaintiff by his neg- 
 ligence "directly" contributed to the misfortune; and it was con- 
 tended, for the defendant, that, whether he directly or indirectly con- 
 tributed, was immaterial, if he contributed to it by his negligence at 
 all. But the direction to the jury must have reference to the evi- 
 dence in the case; and, taking the whole summing-up together, in 
 connection with the evidence, we do not think that the jury could 
 have been misled by the use of the word "directly." The learned 
 Judge told the jury, that, if the absence of a look-out was negligence 
 on the part of the plaintiff, still, if the defendant also had a look- 
 out, and nevertheless persisted in a course that would inflict an injury, 
 he would be liable, though the plaintiff had no look-out ; for that neg- 
 lect of the plaintiff" would not be the direct cause of the injury, that 
 is to say, would not be a cause without which the injury would not 
 have happened. 
 
 In this, which seems to be the obvious sense in which the word 
 "direct" was used, we do not think there was any misdirection ; and, 
 in other respects, the summing-up does not appear to be objection- 
 able, according to the rules to be adduced from the authorities' re- 
 ferred to. 
 
 Upon the whole, then, we are of opinion that the judgment should 
 be affirmed. ^^ 
 
 Judgment affirmed.^ ° 
 
 19 "The judgment of the Exchequer Chamber in Tuff v. Warman has been 
 accepted, now for half a century, in England and I think we may say in most 
 Common I^aw jurisdictions, as the leading authority in actions for negligence 
 where there is evidence that both parties have contriliuted to the result by 
 successive or alternate failures to act with due care and caution. In such a 
 case the question is which of them might last have avoided the harmful result 
 by the exercise of reasonable care. It has been jiistly said that the rule in 
 Tuff V. Warman is not in terms applicable to cases where the negligence 
 of the plaintiff and the defendant is not successive but simultaneous. There 
 
 2 Compare the distinction taken in Ketch Frances v. Steamship Highland 
 Loch, [101:;] A. C. ol2, whore the defendants "were placed in a position in 
 which they had to take one of two risks."
 
 1158 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 • 
 
 RADLEY et al. v. LONDON & N. W. RY. CO. 
 
 (House of Lords, 1876. 1 App. Cas. 754.) 
 
 This was an appeal against a decision of the Court of Exchequer 
 Chamber.-^ The appellants were the plaintiffs in an action brought 
 in the Court of Exchequer, in which they claimed damages for the 
 destruction of a bridge occasioned, as they alleged, by the negligence 
 of the defendants' servants. The cause was tried at the Liverpool 
 Summer Assizes, 1873, before Brett, J., when the following facts were 
 proved : 
 
 The plaintiffs were colliery proprietors owning and working a colliery close 
 to a branch of the defendant's railway called the Parr Branch. In con- 
 nection with the Parr Branch there were certain sidings on the land of the 
 plaintiffs, and belonging to them, made by them for convenience of trans- 
 ferring and carrying coal raised from their colliery to and by the defendant's 
 line of railway. Upon these sidings of the plaintiffs no engine of the defendants 
 was accustomed to run throughout, and they were used solely, as far as 
 the defendants were concerned, for placing therein returned empty waggons 
 by the defendants and removing waggons therefrom when filled with coal. 
 Waggons once left on these sidings by the defendants were entirely within 
 the control of the plaintiffs. The defendants were accustomed to bring empty 
 returned waggons along the Parr Branch at any hour by day or night, and 
 without notice to the plaintiffs to shunt such waggons onto the plaintiffs sid- 
 il^gs, where they were left under the plaintiffs' control. Part of the siilings 
 was crossed by a bridge used as a tramway, about eight feet in height from 
 the level of the rails, on which rested part of the head gearing and supports 
 necessary for the working of the plaintiffs' colliery. An empty waggon, or 
 one loaded in an ordinary way with coal, could pass safely and clearly under 
 this bridge, and waggons were occasionally shunted under it by the defend- 
 ants, but when they did so it was complained of by the plaintiffs, on the 
 ground that waggons so left blocked up a public highway called Fleet Lane 
 which crossed the siding between the railway and the bridge. 
 
 At the plaintiffs' colliery it was the ordinai-y custom to leave off work at 
 12:o0 p. m. on Saturdays and to resume at 6 a. m. on Mondays. About 2:.30 
 p. m. on Saturday, the 25th of January, 1873, the defendants brought three 
 or four empty waggons of the plaintiffs', together with a disabled waggon of 
 the plaintiff's' loaded upon another waggon, and marked "home for repairs," 
 along the Parr Branch, and shunted them onto plaintiffs' siding, and left 
 them there. The height of the waggon, with the disabled waggon loaded on it, 
 was about eleven feet in all, too high to pass under the bridge before men- 
 
 a simpler rule will suffice, namely, that if the plaintiff could have avoided 
 the accident by the use of ordinary care he cannot recover. See the learned 
 and judicious remarks of an anonymous reviewer in the Law Quarterly Re- 
 view, V. 87. This distinction was taken as long ago as 18G0. Murphy v. 
 Deane (1869) 101 Mass. 455, 3 Am. Kep. 390. That judgment is not wholly 
 satisfying to English readers, for it insists on the doctrine (not accepted by 
 the majority of American jurisdictions) that the plaintiff has to prove, as 
 part of his own case, that he was in the exercise of due care. But on the 
 facts it would seem that the plaintiff recklessly exposed herself to an obvious 
 risk, tliat the instruction given to the jury was substantially right, and that 
 an instru<-tion in the terms of Tuff v. Warman, as asked for on the plaintiff's 
 behalf, would probably have made no difference." Sir Frederick Pollock, 
 116 11. R. iv, V. 
 
 21 For the reiKjrt of the case in the Excbcipier Chamber, see Radley v. 
 London & North Western Ry. Co. (1875) L. R. 10 Ex. 100. The report of the 
 case in the Exchequer will be found in Radley v. Loudon & North Western 
 Ry. Co. (1874) L. R. 9 Ex. 71.
 
 Ch. 1) NEGLIGENCE 1159 
 
 tioned. The disabled waggon loaded iipon the other, nnd the two or three 
 others, were known to a person left in charge of the plaintiffs' works dur- 
 ing the absence of the workmen at 2:30 on Saturday, the 2.jth of January, 
 to be on the siding, and were left standing there during Saturdaj- afternoon 
 and up till and during Sunday night, the 2»ith, and it was known to him that 
 a number of waggons would arrive during that night. 
 
 On the night of Sunday, about 12:30, the defendants brought up on their 
 line a train of forty-eight empty waggons of the plaintiffs', and proceeded to 
 shunt them onto plaintiffs' siding; but the night being very dark, the de- 
 fendants' servants engaged in shunting did not notice that the loaded-up 
 waggon was different from any other waggon in height. The train of waggons 
 was slowly backed along the siding, and coming against the waggons which 
 had been left by the defendants on the previous Saturday, pushed them over 
 Fleet Lane towards the bridge, so as to cause the loaded-up waggon to strike 
 against the bridge, which checked the further progress of the train. On 
 touching the bridge the engine-driver felt an obstruction, and not having got 
 all the waggons off' the main line, which it was his duty to do, and believing 
 the obstruction to be caused by a break, he, to use his own words, drew back 
 the engine and gave another jam-up ; by this he gave such a momentum to the 
 engine that the loaded-up waggon knocked down and carried away the bridge 
 and head gearing, which was the accident complained of by plaintiffs. 
 
 A guard in charge of the empty waggons was, whilst they were being shunt- 
 ed as above described, seated on one of the waggons about the middle of the 
 train. The plaintiffs had also a siding on the east side of the defendants' 
 line, on which empty waggons were from time to time shunted by the defend- 
 ants, and on which the waggons brought on the Sunday night might have 
 been put. 
 
 At the trial, the defendants contended that there was no negligence 
 on their part, and even if there was, that there was contributory neg- 
 ligence on the plaintiffs' part, inasmuch as, knowing that waggons 
 might arrive at any hour of the day or night, and that in fact they 
 were expected to arrive on the night of the 26th, it was their duty 
 to have removed the loaded-up waggon and to have the sidings clear ; 
 the plaintiffs, on the other hand, contended that there was no such 
 duty on their part, and that there was no evidence of contributory 
 negligence. ^^ 
 
 At the trial, Mr. Justice Brett told the jurors that: 
 
 "You must be satisfied that the plaintiffs' servants did not do any- 
 thing which persons of ordinary care, under the circumstances, would 
 not do, or that they omitted to do something which persons of ordi- 
 nary care would do. * * * It is for you to say entirely as to 
 both points, but the law is this, the plaintiffs must have satisfied you 
 that this happened by the negligence of the defendants' servants, 
 and without any contributory negligence of their own ; in other words, 
 that it was solely by the negligence of the defendants' servants. If 
 you think it was, then your verdict will be for the plaintiffs. If 
 you think it was not solely by the negligence of the defendants' serv- 
 ants your verdict must be for the defendants." 
 
 The jurors having, on this direction, stated that they thought there 
 was contributory negligence on the part of the plaintiffs, the learned 
 
 22 The statement of the ease to this point is from the report in the Ex- 
 che<iuer Chamber, L. R. 10 Ex. 100-102. The facts are stated also, but less 
 explicitly, iu L. II. 9 Ex. 71, and in 1 App. Cas. 75-i (1S76).
 
 IIGO TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 Judge directed that the verdict should be entered for the defendants, 
 but reserved leave for the plaintiffs to move. A rule having been 
 obtained for a new trial, it was, after argument made absolute. On 
 appeal to the Exchequer Chamber, the decision of the Exchequer 
 was reversed. This appeal to the House of Lords was then brought.-^ 
 
 Lord Penzance:. The remaining question is whether the learned 
 Judge properly directed the jury in point of law. The law in these 
 cases of negligence is, as was said in the Court of Exchequer Cham- 
 ber, perfectly well settled and beyond dispute. 
 
 The first proposition is a general one, to this effect, that the plain- 
 tiff in an action for negligence cannot succeed if it is found by the 
 jury that he has himself been guilty of any negligence or want of 
 ordinary care which contributed to cause the accident. 
 
 But there is another proposition equally well established, and it is 
 a qualification upon the first, namely, that though the plaintiff may 
 have been guilty of negligence, and although that negligence may, 
 in fact, have contributed to the accident, yet if the defendant could 
 in the result, by the exercise of ordinary care and diligence, have 
 avoided the mischief which happened, the plaintiff's negligence will 
 not excuse him. This proposition, as one of law, cannot be questioned. 
 It was decided in the case of Davies v. Mann, 10 M. & W. 546, sup- 
 ported in that of Tuff v. Warman, 5 C. B. (N. S.) 573, 27 L. J. C. 
 P. 322, and other cases, and has been universally applied in cases of 
 this character without question. 
 
 The only point for consideration, therefore, is whether the learned 
 Judge properly presented it to the mind of the jury. 
 
 It seems impossible to say that he did so. At the beginning of 
 his summing-up he laid down the following as the propositions of 
 law which governed the case: It is for the plaintiffs to satisfy you 
 that this accident happened through the negligence of the defend- 
 ants' servants, and as between them and the defendants, that it was 
 solely through the negligence of the defendants' servants. They must 
 satisfy you that it was solely by the negligence of the defendants' 
 servants, or, in other words, that there was no negligence on the part 
 of their servants contributing to the accident; so that, if you think 
 that both sides were negligent, so as to contribute to the accident, 
 then the plaintiff's cannot recover. 
 
 This language is perfectly plain and perfectly unqualified, and in 
 case the jurors thought there was any contributory negligence on the 
 part of the plaintiff's' servant, they could not, without disregarding 
 the direction of the learned Judge, have found in the plaintiffs' favor, 
 however negligent the defendants had been or however easily they 
 might with ordinary care have avoided any accident at all. 
 
 The learned Judge then went on to describe to the jury what it 
 was that might properly be considered to constitute negligence, first 
 
 23 The arguments are omitted.
 
 Ch. 1) NEGLIGENCE 1161 
 
 in the conduct of the defendants, and then in the conduct of the plain- 
 tiffs ; and having done this, he again reverted to the governing prop- 
 ositions of law, as follows : "There seem to be two views. It is for 
 you to say entirely as to both points. But the law is this, the plain- 
 tiffs must have satisfied you that this happened by the negligence of 
 the defendants' servants, and without any contributory negligence 
 of their own ; in other words, that it was solely by the negligence of 
 the defendants' servants. If you think it was, then your verdict will 
 be for the plaintiff's. If you think it was not solely by the negligence 
 of the defendants' servants, your verdict must be for the defendants." 
 
 This, again, is entirely without quahfication, and the undoubted 
 meaning of it is, that if there was any contributory negligence on 
 the part of the plaintiffs, they could in no case recover. Such a state- 
 ment of the law is contrary to the doctrine established in the case 
 of Davies v. Mann, 10 M. & W. 546, and the other cases above alluded 
 to, and in no part of the summing-up is that doctrine anywhere to 
 be found. The learned counsel were unable to point out any passage 
 addressed to it. 
 
 It is true that in part of his summing-up the learned Judge pointed 
 attention to the conduct of the engine driver, in determining to force 
 his way by violence through the obstruction, as fit to be considered 
 by the jury on the question of negligence; but he failed to add that 
 if they thought the engine driver might at this stage of the matter 
 by ordinary care have avoided all accident, any previous negligence 
 of the plaintiff's would not preclude them from recovering. 
 
 In point of fact the evidence was strong to shew that this was the 
 immediate cause of the accident, and the jury might well think that 
 ordinary care and diligence on the part of the engine driver would, 
 notwithstanding any previous negligence of the plaintiffs in leaving 
 the loaded-up truck on the line, have made the accident impossible. 
 This substantial defect of the learned Judge's charge is that that 
 question was never put to the jury. 
 
 On this point, therefore, I propose to move that your Lordships 
 should reverse the decision of the Exchequer Chamber, and direct 
 a new trial.-* 
 
 Judgment of the Court of Exchequer Chamber reversed. 
 
 Judgment of the Court of Exchequer restored, and a new trial or- 
 dered, with costs. 
 
 24 The Lord Chancellor (Lord Cairns), "concurring with every word" of the 
 opinion expressed by Lox-d Penzance, did not think it necessary that he should 
 do more than say that he hoped their Lordships would agree to the motion 
 which Lord Penzance had proposed. Lord Gordon concurred in the motion. 
 Lord Blackburn agreed in the result.
 
 1102 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 BENNICHSEN v. MARKET ST. RY. CO. 
 (Supreme Court of California, 1906. 149 Cal. 18, 84 Pac. 420.) 
 
 Ruberta Bennichsen, by her g-uardian ad litem, sued to recover dam- 
 ages for personal injuries alleged to have been caused by being struck 
 by a street car of the defendant. Verdict and judgment for the plain- 
 tiff. Defendant appeals from an order denying its motion for a new 
 trial. 
 
 McFarland, J. The important features of the case are these : At 
 the time of the alleged injuries defendant was operating a double 
 track electric street railroad on Sansome street in San Francisco, the 
 street running north and south. Defendant also was operating- a sim- 
 ilar street railroad on Broadway street, which runs east and west, 
 crossing Sansome street. Plaintiff lived with her parents in a house 
 on the southeast corner of Sansome and Broadway, where the two 
 railroads cross each other. She had been going to school for about 
 four years before the accident by which she was injured, and in going 
 to and from school, doing errands, etc., she had been in the habit 
 almost daily of crossing said railroads. She was at the time of the 
 accident almost nine years old — eight years eight months and some 
 days. Her mother had frequently cautioned her to be careful in cross- 
 ing the railroads. The plaintiff herself testified that before the acci- 
 dent when crossing the railroad she would look to see if there was any 
 car coming so that she would not get hurt, and that if she saw a car 
 coming she would wait on the sidewalk until it had passed. On the 
 day of the accident she undertook to cross Sansome street between 
 Broadway and Pacific street, which is the next street south of and 
 parallel with Broadway, when the car was close at hand going north 
 toward Broadway, and was struck by it, and injured. She did not 
 look to see if the car was coming. The evidence of defendant was to 
 the point that she ran against the side of the car, and was thrown 
 under it, although the jury may have been justified in finding that 
 she was struck by the front end of the car. Witnesses for plaintiff 
 testified that when they saw her just before the accident she was from 
 8 to 10 feet from the car. But under any view of the evidence on 
 this point it is clear beyond doubt that if she had been a person of 
 mature age she would have been guilty of contributory negligence, 
 negligence which contributed proximately and directly to her injuries. 
 And we need not inquire whether the jury would have been justified, 
 under all the evidence on the point, in finding that on account of her 
 acre, no negliiience could be attributed to her, because the case was 
 tried on the theory, and the jury were instructed, that even though 
 she, or her parents, were guilty of contributory negligence, still she 
 was entitled to recover if "by reason of negligence on his part the 
 motorman failed to avoid the accident," and "if the defendant's em- 
 ployes could have avoided the injury by the exercise of ordinary care."
 
 Ch. 1) NEGLIGENCE 1163 
 
 The case, therefore, was tried upon the theory that there was 
 evidence to bring it within the cases which hold that although the per- 
 son injured put himself by his own negligence in a place of danger, 
 if the employes in charge of the train discovered his danger in time 
 to prevent injury by the exercise of ordinary care and did not do so, 
 then, notwithstanding the contributory negligence of the injured per- 
 son, he may recover. But there was no such evidence in the case at 
 bar. There is no pretense that the motorman saw the plaintiff at all 
 at the time of the accident until after it had occurred ; on the other 
 hand, it is shown clearly that he did not. The motorman testified that 
 he did not see her, and his testimony is not only uncontradicted, but 
 is confirmed by testimony of the plaintiff. He said that he was look- 
 ing ahead on Sansome street, although somewhat to the left or west 
 in order to watch for a car that might be coming down Broadway, but 
 that he had Sansome street in full view, and did not see plaintiff' until 
 she had run into the side of the car. And to confirm the fact that 
 he did not see her one of plaintiff"s main witnesses testified that at 
 the time of the accident the motorman "was looking behind" and that 
 "his face was back, he was looking back, he was not looking ahead." 
 And, indeed, plaintiff's whole case is argued upon the theory that the 
 negligence of the motorman consisted in his not looking ahead, and 
 that this is the negligence which entitles plaintiff to recover, even 
 though she was guilty of contributory negligence. But no case has 
 gone that far ; and to go that far would be practically to destroy the 
 whole doctrine of contributory negligence. There was in this case, 
 therefore, no evidence to justify the jury in finding that there was such 
 negligence on the part of defendant's employes as entitled plaintiff to 
 recover notwithstanding her contributory negligence. Of course, con- 
 tributory negligence implies some negligence on the part of the de- 
 fendant; and the general rule is that a plaintiff complaining of per- 
 sonal injuries caused by a train or car, who was himself guilty of neg- 
 ligence, which contributed proximately and directly to the injuries, 
 cannot recover, although the defendant was also guilty of negligence. 
 There are exceptions to the rule, however, but they embrace only 
 those cases where a person is by his own negligence in a dangerous 
 situation and is discovered in that position by those in the manage- 
 ment of the approaching train in time to prevent injury by the exer- 
 cise of ordinary care. In the earlier cases the conduct of those in 
 charge of a train who, seeing one in a dangerous position, made no 
 effort to avoid injuring him when it could have been easily avoided, 
 is characterized as "willful and wanton." The cases, however, all 
 hold that the discovery of such a person in a dangerous position in 
 time to prevent injury by the exercise of ordinary care is necessary 
 to constitute an exception to the rule that one guilty of contrib- 
 utory negligence cannot recover. It is not necessary to review the 
 authoriti(^s cited by respondent other than the case of Lee v. Market 
 Street Railway Co., 135 Cal. 293, 67 Pac. 765, for that is the case
 
 1164 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 most favorable to respondent's contention. But in the Lee Case 
 this court, after referring to certain evidence, said (italics ours) : 
 "Here, then, was enough to warrant the submission to the jury of 
 the question whether or not the defendant exercised ordinary care 
 after the discovery of plaintiff's situation of peril. If it did not, then 
 notwithstanding the negligence of plaintiff, it was liable. The verdict 
 of the jury is a finding to the effect that they did not believe that de- 
 fendant's employes exercised proper care after discovery of plaintiff's 
 situation." And so that case was decided upon the theory that defend- 
 ant failed to exercise ordinary care to prevent the accident after dis- 
 covery of plaintiff's perilous situation. It has been expressly held that 
 a case like the one at bar can be taken out of the doctrine of contribu- 
 tory negligence only where the defendant had actual knowledge of 
 plaintift"'s perilous situation. In Harrington v. Los Angeles Ry. Co., 
 140 Cal. 514, 74 Pac. 15, 63 L. R. A. 238, 98 Am. St. Rep. 85, this 
 court, speaking through Angellotti, J., after quoting from Beach on 
 Contributory Negligence, said "It is, of course, true, as urged by de- 
 fendant, that it is essential to such liability that the defendant did 
 actually know of the danger, and that there is no such liability where 
 he does not know of the peril of the injured party, but would have 
 discovered the same but for remissness on his part." In Herbert v. 
 Southern Pacific Co., 121 Cal. 232, 53 Pac. 652, Temple, J., speaking 
 for the court, said : "The case is not within the rule laid down in Esrey 
 v. Southern Pacific Co., 103 Cal. 541, 37 Pac. 500. Doubtless, notwith- 
 standing the negligence of a plaintiff has put him in peril, yet if his 
 danger is perceived by the defendant in time, so that by the exercise 
 of ordinary diligence on his part injury can be avoided, the defendant 
 will be held for the injury. But that is based upon the fact that a 
 defendant did actually know of the danger — not upon the proposition 
 that he would have discovered the peril of the plaintiff but for remiss- 
 ness on his part. Under this rule, a defendant is not liable because he 
 ought to have known." * * * 
 
 The order appealed from is reversed, and the cause remanded for 
 a new trial.- ^ 
 
 NICOL V. OREGON-WASHINGTON R. & NAVIGATION CO. 
 
 (Supreme Court of Washington, 1912. 71 Wash. 409, 128 Pac. 628, 43 L. 
 
 R. A. [N. S.] 174.) 
 
 Action by Nicol against the Oregon-Washington Railroad & Naviga- 
 tion Company. There was a judgment for the plaintiff, and the de- 
 fendant appeals. 
 
 GosE, J. This is an action for damages against the defendant, a 
 common carrier, for an alleged negligent destruction of plaintiff's 
 
 26 Part of the opinion is omitted.
 
 Ch. 1) NEGLIGENCE 11G5 
 
 automobile at a country crossing. The case was tried to the court. 
 Findings were made in favor of plaintiff, and a judgment was entered 
 thereon, from which the defendant has appealed. 
 
 The negligence charged is that, while the respondent was in the act 
 of driving his automobile over the railroad crossing in a public high- 
 way, the machine became stalled crosswise of the track, the engine of 
 the machine stopped running, the respondent was unable to start it or 
 to move the machine off the track, and "the engineer and fireman in 
 charge of defendant's said train saw the plaintiff before the train got 
 to him, and saw his automobile standing upon the crossing in sufficient 
 time to have stopped said train and to have avoided colliding with and 
 destroying plaintift"s automobile." The appellant joined issue on the 
 charge of negligence, and pleaded that the collision resulted from the 
 negligence of the respondent. The collision occurred about 1 o'clock 
 in the morning. 
 
 The court did not find, and the evidence does not show, that the 
 engineer actually saw the machine. The court's findings in this respect 
 are : That, when the respondent found that he could not extricate his 
 machine, he ran north along the track and right of way toward the 
 approaching train, a distance of 650 or 700 feet, lighting matches, 
 waving his arms, and shouting to signal the engineer in charge of the 
 train, and that, had the engineer been keeping a proper lookout ahead, 
 he would have seen the respondent, who while running down the 
 straight track was in plain view of the engineer in the rays of the 
 headlight of the engine for at least 1,000 feet before the engine passed 
 him, and would have seen his signals in time to have stopped the train 
 before striking the machine. 
 
 The first point urged is that there is a variance between the plead- 
 ings and the evidence, and that the findings are not within the issues. 
 The variance is immaterial. Rem. & Bal. Code, § 1752; Irby v. 
 Phillips, 40 Wash. 618, 82 Pac. 931; Richardson v. ^loore, 30 Wash. 
 406, 71 Pac. 18. 
 
 The further consideration of the case necessitates a statement of 
 the essential facts. The train which struck the automobile was a pas- 
 senger train composed of nine cars, and was traveling from Tacoma in 
 a southerly direction at a speed of 35 to 38 miles an hour. The en- 
 gine was equipped with a standard electric headlight, burning brightly 
 and lighting the track so that an object thereon could be seen on a 
 bright night a distance varyingly estimated by the locomotive engineers 
 at from 1,000 to 1,800 feet. The track has a one-degree curve for 
 a distance of 200 feet immediately north of the crossing where the 
 accident happened. From there northward it runs straight for a dis- 
 tance of 4,800 feet. The respondent says that he ran north towards 
 the approaching train, following the center of the track, for about 500 
 or 600 feet, striking matches and waving his arms, and that he then 
 stepped to the outside of the track and continued running along it a 
 distance of 100 to 200 feet, giving the same signals, at which point he
 
 11G6 TORTS THROUGH ACTS OF COXDITIOXAL LIABILITY (Part 3 
 
 was passed by the train. The engineer says that he passed him about 
 500 feet north of the crossing-; that he did not see him until the head- 
 Hght was opposite him ; that he then appHed his air, but did not apply 
 the emergency brakes; and that he stopped the train in 1,000 feet. 
 The engineer admitted that he knew that the track was crossed at 
 grade by a public highway, at the point where the collision happened. 
 The respondent was returning to Tacoma from the country club, at 
 American Lake, in his machine, the morning of the accident. He was 
 traveling north on the west side of the railroad track. He got on the 
 wrong road, crossed the railroad track and, discovering his mistake, 
 turned and started to recross the track, got ofif the planking, which 
 was 16 feet wide over the track, and got his machine stalled crosswise 
 of the track near the cattle guards, as before stated. He says that the 
 night was bright, and that the stars were shining, and that all the 
 lights upon his machine were lighted and in good condition. These 
 facts clearly establish his negligence. Moore v. Great Northern Ry. 
 Co., 58 Wash. 1, 107 Pac. 852, 28 L. R. A. (N. S.) 410. The principal 
 fact in dispute was as to whether the night was clear or foggy. The 
 respondent's witnesses asserted the former to be the fact, whilst the 
 appellant's witnesses insisted that the latter was the fact. The court 
 found that "the night was clear, there being no fog to any extent or 
 other atmospheric difficulty to interfere with the engineer's view." 
 We accept the fact as found by the court. 
 
 The respondent contends that, concerning his negligence, the neg- 
 ligence had ceased; that appellant owed the duty of keeping a look- 
 out; that, had the engineer exercised reasonable care, he would have 
 seen the respondent and his signals in time to have avoided the colli- 
 sion ; and that the appellant is liable under the doctrine of "last clear 
 chance." On the other hand, the appellant earnestly insists that it 
 owed no duty to the respondent, except to not willfully injure him or 
 his property after actually discovering his peril. We think the re- 
 spondent has the correct view. His machine was within the public 
 highway ; he was in no sense a trespasser, although without the trav- 
 eled portion of the road. The appellant knew of the presence of the 
 highway, knew that it crossed the track at grade, and knew that it 
 was traveled by the public. Moreover, it was the duty of the en- 
 gineer to exercise reasonable care, and had he done so under his own 
 testimony, assuming that the night was clear, he would have seen the 
 respondent and his signals a distance of 1,000 feet or more. This 
 would have given him at least 1,500 feet in which to stop the train, 
 according to his own statement. He testified that he was keeping a 
 lookout ahead, but that the presence of the fog obscured his vision. 
 One of the appellant's witnesses, a locomotive engineer, testified that 
 the engineer could see a man ahead a distance of 1,200 feet on a clear 
 night. In failing to see the respondent and heed his signals, the en- 
 gineer was clearly guilty of negligence. The act of a man running 
 along a right of way at 1 o'clock in the morning, striking matches and
 
 Ch. 1) NEGLIGENCE 11G7 
 
 waving his arms, is a circumstance that ought to attract the attention 
 of a prudent engineer, and it was notice that there was danger ahead. 
 
 The doctrine of last clear chance is applied perhaps most frequently 
 to cases where the plaintiff's negligence has terminated, and where 
 the defendant thereafter, in the exercise of reasonable care and owing 
 a duty to exercise it, should have discovered the peril in time to have 
 prevented an injury. It has also often been applied where it would be 
 apparent to one in control of a dangerous agency, if exercising rea- 
 sonable vigilance, that a traveler is unconscious of his danger or so 
 situated as to be incapable of self-protection, and in such cases, if 
 the one controlling the agency could have averted the danger by 
 exercising reasonable care and failed to do so, liability follows. It is 
 based upon the principle that the negligence of the one is remote, and 
 that the negligence of the other is the proximate and efficient cause 
 of the catastrophe ; he having the last clear opportunity of prevent- 
 ing it. * * * -^ 
 
 The engineer testified that he stopped the train, after seeing the 
 respondent, in a distance of 1,000 feet, and that he could have made 
 an emergency stop in 700 or 900 feet. The locomotive engineers who 
 testified for the respondent said that the particular train could have 
 been stopped in an emergency in a distance of 600 feet. The en- 
 gineer had a right to exercise his best judgment as to whether the 
 conditions which confronted him demanded an emergency stop (his 
 first and highest duty being owed to the passengers), and the appel- 
 lant could not be held liable for an error of judgment made under 
 such circumstances. \Yq place the liability upon the ground that (as 
 the court found) the respondent while running down the "straight 
 track" was in plain view of the engineer, in the rays of the headlight, 
 for, at least 1,000 feet before the engine passed him. This being 
 true, if the engineer had been keeping a proper lookout — and all the 
 appellant's expert witnesses testified that all prudent engineers keep 
 a constant lookout ahead — he would have seen the respondent and 
 would have seen his signals, and in view of the lateness of the hour 
 and the proximity of the highway crossing, it was his duty to heed 
 the signals. We have found no case involving facts similar to these 
 present in this case, but we think the case readily accommodates it- 
 
 20 In. the omitted nortion of the opinion Mr. Justice Gose referred to or 
 quoted from the following authorities: Bullock v. Wilmington & W. R. Co. 
 (1890) 105 N. C. ISO, 10 S. E. 9S8 ; Baltimore & O. R. Co. v. Anderson (189S) 
 
 85 Fed. 41.3, 29 C. C. A. 2.35 ; Southern Rv. Co. v. Fisk (1908) 159 Fed. 373, 
 
 86 C. C. A. 373; 3 Elliott on Railroads (2d Ed.) 1115; Grand Tnink Ry. Co. 
 V. Ives (1S92) 144 U. S. 408, 12 Sup. Ct. 079, 30 L. Ed. 485 ; Turnbull v. New 
 Orleans & C. R. Co. (1903) 120 Fed. 783, 57 C. C. A. 151 ; Inland & Seaboard 
 C. Co. V. Tolsou (1891) 1.39 U. S. 551, 11 Sup. Ct. G53, 35 L. Ed. 270 ; Southern 
 Ry. Co. V. Bailey (1910) 110 Va. 8:33, 67 S. E. 3G5. 27 L. R. A. (N. S.) 379: 
 Klockeniirink v. St. Louis, etc., R. Co. (1899) 81 Mo. App. 351 ; Bergman v. 
 St. Louis, etc., Ry. Co. (ISSG) 88 Mo. G78, 1 S. W. 384 : Lloyd v. St. Louis, etc., 
 lly. Co. (1895) 128 Mo. 595, 29 S.W. 153, 31 S. W. 110.
 
 11G8 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 self to the principles announced in the authorities which we have 
 reviewed. * * * 
 
 We think the judgment is right, and it is affirmed. 
 
 Mount, C. J., and Crow, Parker, and Chadwick, JJ., concur. 
 
 BLODGETT V. CENTRAL VERMONT RY. CO. 
 
 (Supreme Court of Vermont, 1909. 82 Vt. 269, 73 Atl. 590.) 
 
 Action by Blodgett, as administrator, to recover for the death of 
 his intestate through the alleged negligence of the defendant. Judg- 
 ment for the plaintiff and the defendant excepts. 
 
 WaTson, J. At the close of the plaintiff's evidence, the defend- 
 ant moved for a verdict on the grounds (1) that there was no evi- 
 dence tending to show negligence on the part of the defendant ; and 
 (2) that the undisputed and unconflicting evidence showed contribu- 
 tory negligence on the part of the intestate. The case is here on 
 exception to the overruling of this motion. The facts herein stated 
 appear from or are supported by the evidence. 
 
 The intestate, a man about 72 years of age, while driving across 
 defendant's railroad track at a highway crossing at West Berlin in 
 the afternoon of May 18, 1905, was struck by defendant's engine 
 drawing the mail train, so called, north-bound, and instantly killed. 
 The train was running at about schedule rate of speed, 45 miles an 
 hour. The depot at that place is a building about 25 feet in length 
 and a little less than that in width. It stands 62 feet south of the 
 crossing where the intestate was killed, wholly on the east side of the 
 main track and about 9 feet from the east rail. There is a platform 
 toward the track extending north and south beyond the building, the 
 whole length of which is 134 feet. The northerly end of this plat- 
 form comes to the highway. West Berlin is not a regular stopping 
 place for any passenger trains. It is a flag station for some trains, 
 but the one in question never stops there except to leave passengers 
 coming from beyond Springfield, which happens only two or three 
 times a year. * * * 
 
 The intestate was a peddler driving a single horse hitched to an open 
 wagon with a small box containing his goods fitted into the rear end 
 of the wagon body. East of the crossing in question the highway 
 over which he was traveling is a gradual ascent to the railroad. At 
 a distance of 328 feet east of the east rail a person traveling over 
 the highway toward the crossing has a plain view of the railroad 
 track from the depot southerly some 1500 or 1600 feet. The track 
 there is elevated considerably above the level of the land, and is in 
 plain view for the whole distance to the crossing, except as the vi- 
 sion is obstructed by the depot. Going westerly from a point in 
 the middle of the road 41 feet east of the east rail to the crossing.
 
 Ch. 1) NEGLIGENCE 1169 
 
 the view of the track southerly is thus obstructed until within 24 
 feet of the east rail. There the track can be seen past the westerly 
 end of the building for a distance of 115 feet. At 20 feet from the 
 east rail the track is visible for a distance of 1601^ feet ; and, when 
 within 16 feet, the track is in full view practically as far southerly, 
 as it is from any place hereinbefore named. It was conceded by 
 the plaintiff in argument that all signals required by law and more 
 were given on the train. When the engine was about half way be- 
 tween the whistling post for the crossing an J the station, the en- 
 gineer, looking beyond the depot on its easterly side, saw the intes- 
 tate on the highway driving toward the railroad. Thereupon he 
 sounded a second whistle for the crossing. The team about the same 
 time went behind the depot, and was seen no more by the engmeer 
 until it was on the crossing in front of the engine. It was argued 
 that the engineer should have seen the team after it came in view 
 on the westerly side of the depot before it went on the crossing and in 
 season to have prevented the accident, and that a failure so to do is a 
 circumstance from which a jury may infer negligence. We will as- 
 sume without deciding this to be so, and pass to the question of con- 
 tributor}^ negligence. 
 
 The undisputed evidence shows that the intestate's senses of sight 
 and hearing were good ; that he was in good health and very active ; 
 that the day of the accident was warm and pleasant, and there was 
 nothing over his ears to prevent him from hearing; that the horse 
 he was driving was 12 or 13 years old, very quiet, easy to manage, 
 and not easily frightened by a train of cars or anything; and that 
 during the last six or seven years of his life he averaged to drive 
 over the crossing in question once in four or five weeks, by reason 
 of which he was acquainted with the railroad in that vicinity, also 
 with the crossing and its surroundings. The horse was walking at 
 a fair gait in the middle of the road as it went past the depot and 
 approached the crossing. The intestate was looking at the horse, 
 and did not look up the track southerly until the horse was partly 
 on the crossing. When the horse was some five or ten feet from 
 the track, two witnesses who were on the opposite side of the track 
 and a short distance away saw the intestate driving toward the cross- 
 ing, and hallooed to him, saying, "The cars are coming," at the same 
 time throwing up their hands to attract his attention, but the noise 
 from the train was such that the witnesses were not sure that he 
 heard their voices, nor did they know that he saw their demonstrations. 
 The point where the intestate's view was first obstructed by the depot 
 is about 41 feet east of the east rail, and from there in the middle 
 of the traveled road the track is visible 600 feet southerly, and a 
 moving train of cars can be seen 1,000 feet further. When the in- 
 testate was 16 feet from the east rail, the approaching train must 
 have been plainly in view, and the horse yet a distance of 4 feet from 
 Hepb.Toets — 74
 
 1170 TOUTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 the nearest rail. A stop might have been made at this place of safety 
 until the train had passed. But, instead of thus avoiding the danger, 
 the intestate without making vigilant use of his senses of sight and 
 hearing recklessly drove on the crossing in front of the train. The 
 rule making it the duty of a traveler nearing a railroad crossing to 
 look and listen for approaching trains, and to make such vigilant use 
 of his sight and hearing in so doing as a careful and prudent man 
 would make in the same circumstances, was fully laid down in Manley 
 V. Delaware & Hudson Canal Co., 69 Vt. 101, 1^7 Atl. 279, also in 
 Carter v. Central Vermont R. R. Co., 12 Vt. 190, 47 Atl. 797, and 
 need not be here repeated. In the latter case it is said that if by the 
 vigilant use of his eyes and ears the plaintiff might have discovered 
 and avoided the danger and omitted such vigilance, he was guilty 
 of contributory negligence, and that he was chargeable with such 
 knowledge of the approach of the train as he might have obtained by 
 the exercise of that degree of care, which in the circumstances of 
 danger he was bound to use. There seems to be no escape from the 
 conclusion that the intestate was guilty of negligence which con- 
 tributed to the accident and precludes a recovery by the plaintiff, 
 unless the evidence tends to show the defendant guilty of such sub- 
 sequent negligence as in the circumstances renders it liable. 
 
 It is urged by the plaintiff that, when the intestate's horse first came 
 in view on the westerly side of the depot, it was visible to the engi- 
 neer, and would have been seen by him had he been in the exercise 
 of requisite care, before the intestate, sitting 12 feet back from the 
 horse's head, could look past the depot and see the approaching train ; 
 that consequently the defendant had the last clear chance to avoid the 
 collision ; and that, since the engineer was negligent in failing thus 
 to see the team, this negligence was the proximate cause of the ac- 
 cident, and the negligence on the part of the intestate in driving on 
 the crossing was remote, and will not defeat a recovery. Again 
 assuming that the defendant was negligent in not thus seeing the 
 intestate before he drove on the crossing, yet it does not follow that 
 the last clear chance was with the defendant. On the contrary, the 
 undisputed testimony of the witnesses who saw the accident shows 
 that the intestate had an equal opportunity to avoid a collision. We 
 have already noted the intestate's negligence in driving on the track 
 without first making proper use of his senses to ascertain whether 
 there was approaching danger. So far as the evidence shows, he did 
 not look to see whether a train was coming or not until his horse 
 was just stepping on the crossing, or its forward feet were on the 
 plank of the crossing. The horse was still walking, was undisturbed 
 l)y the noise of the train, and was under the complete control of 
 the intestate. On seeing the train, the intestate at first partly stopped 
 the horse, or pulled it back, as though to back up, and then urged 
 it forward. At that time the accident could have been prevented by 
 backing the horse three or four feet oft' the crossing to a place of
 
 Ch. 1) NEGLIGENCE 1171 
 
 safety. This the intestate had time to do, for, in fact, the team 
 subsequently moved forward at a walk far enough to place the horse 
 entirely over the crossing before the collision, by reason whereof 
 it escaped injury. Thus it clearly appears that the intestate's neg- 
 ligence was continuous to the time when the engineer discovered the 
 team on the track, after which everything possible was done by the 
 defendant's servants in the management of the train to prevent a 
 collision. So, even though as assumed the engineer was negligent 
 in not seeing the team after it was visible on the westerly side of 
 the depot before the time when it was no longer possible for 
 him to avoid the accident, the intestate's negligence was of the same 
 degree and concurrent during all of the same time, to say nothing of his 
 negligence later, and no recovery can be had. In Trow v. Vt. Central 
 R. Co., 24 Vt. 487, 58 Am. Dec. 191, upon examination of authorities, 
 it was held that when there has been mutual negligence, and the 
 negligence of each party was the proximate cause of the injury, no 
 action can be sustained, and this is the established doctrine. 
 
 It follows that the motion for a verdict should have been granted. 
 Judgment reversed, and judgment for the defendant to recover its 
 costs.^^ 
 
 2T Fart of the opinion is omitted. 
 
 Compare: Quiim v. Chicago, etc., R. Co. (190.3) 162 Ind. 442, 70 X. E. 526: 
 (Action to recover for the death of the plaintiff's intestate through the alleged 
 negligence of the defendant railway company. About 10 o'clock in the fore- 
 noon of a clear day the plaintiff's intestate, walking north on Third street, 
 approached the public grade crossing of the defendant's tracks. He was ac- 
 quainted with this crossing. He possessed ordinaiy intelligence. His eye- 
 sight and hearing were good. When he reached the crossing, a through 
 freight traui on the main track was moving toward Third street. When he 
 was from sixty to eighty feet south of the side track, defendant's freight 
 engine, with two loaded cars, went east on the side track, and when he 
 reached the crossing of Third street, this engine and these cars were stand- 
 ing still about 260 feet east of Third street. The east end of that portion 
 of the ti'ain on the side track which had been cut off from the two cars was 
 about 600 feet westward from the crossing. The decedent stopped near the 
 south rail of the side track, and remained on or near the track about two 
 minutes, watching the through freight train on the main track, which passed 
 in front of him, and only a few feet away, at a speed of from eight to ten 
 miles per hour. No obstruction prevented him from seeing the engine and 
 two cars on tlie side track, and if he had looked eastward he could have 
 seen them when they were standing still, or after they started westward, 
 when they were approaching him. While decedent's attention was directed 
 to the train on the main track, the local freight engine and two cars were 
 run back, westward, at a speed of about four miles per hour, and struck the 
 decedent while he was standing on or very near the side track. No signal 
 of the starting or approach of the engine and cars on the side track was 
 given and no watch was kept by the train men as they approachetl the cross- 
 ing of Third street. The question as framed for the court was this: "A\'heth- 
 er there can be a recovery when a foot traveler on a public street, approach- 
 ing a railroad crossing where there are two tracks, sees a train standing 
 motionless on the track nearest him, and goes upon or near tliat track, and 
 stands there, awaiting the passing of a train uix»n the further track, to which 
 his attention is directed, and while so standing, with his attention directed 
 to the passing train, is struck by the train upon the first track backing 
 noiselessly down upon him, without signal or warning of any kind being given 
 him of its approach." This court's answer was as follows: "In the present
 
 <> 
 
 1172 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 ^^ EVANSVILLE & S. I. TRACTION CO. v. SPIEGEL. 
 
 (Appellate Court of Indiana, 1911. 49 Ind. App. 412, 94 N. E. 718.) 
 
 This is an action brought against the Traction Company to recover 
 damages for the death of the plaintiff's minor son, Carl Spiegel. His 
 death is alleged to have been caused by the negligence of the defendant 
 in operating a car on Main street, in Evansville. There was a general 
 denial, with a verdict for the plaintiff. From a judgment on this ver- 
 dict for $1,363 the defendant appeals. 
 
 Lairy, j, * * * Under the issues formed by the pleadings in 
 this case, evidence might have been introduced that would bring the 
 case within the operation of the doctrine known as the "last clear 
 chance." This doctrine is clearly stated by a writer in 2 Law Quar- 
 terly Review, p. 507, as follows : "The party who last has a clear op- 
 portunity of avoiding the accident, notwithstanding the negligence of 
 his opponent, is considered solely responsible for it." This doctrine 
 has been frequently recognized and applied by our courts. Grass v. 
 Fort Wayne, etc.. Traction Co. (1908) 42 Ind. App. 395, 81 N. E. 514; 
 Indianapolis St. R. Co. v. Schmidt (1905) 35 Ind. App. 202, 71 N. E. 
 663, 72 N. E. 478; Citizens' St. R. Co. v. Hamer (1902) 29 Ind. App. 
 426, 62 N. E. 658, 63 N. E. 778; Krenzer v. Pittsburgh, etc., R. Co. 
 (1898) 151 Ind. 587, 43 N. E. 649, 52 N. E. 220, 68 Am. St. Rep. 252; 
 Indianapolis, etc., R. Co. v. Pitzer (1887) 109 Ind. 179, 6 N. E. 310, 10 
 N. E. 70, 58 Am. St. Rep. 387 ; Indianapolis St. R. Co. v. Bolin (1906) 39 
 Ind. App. 169, 78 N. E. 210. 
 
 case the tracks of the appellee were straight, and the view from the point 
 where the decedent stood was unobstructed for more than three hundred 
 feet eastward. While standing still, the western end of the train which 
 afterwards struck the decedent was about two hundred fifty feet eastward 
 from him, and in plain view all the time. When it started toward him, at a 
 speed of four or five miles per hour, if the decedent had looked in its direc- 
 tion, he must have seen it before it reached Third street, and ample time 
 would have been afforded him to get off the track. The circumstance that 
 his attention was directed to a train passing on the north track constituted 
 no excuse for his failure to observe the train approaching him on the south 
 track, nor for his negligence in standing upon the south track or very 
 near to it. If the movement of the train on the north track filled the 
 air with dust thereby obscuring the view up and down the south track, 
 this was but an additional reason for the exercise of greater vigilance 
 on the part of the decedent. Oleson v. Lake Shore, etc., R. Co. (ISDO) 143 
 Ind. 40.J, 42 N. B. 736, 32 L. R. A. 149; Cincinnati, etc., R. Co. v. Duncan 
 (189.'5) 143 Ind. 524, 42 N. E. 37. If this condition existed, common prudence 
 reiiuired that the decedent should get off and away from the track. The 
 decedent had a basket of clothing on his riglit shoulder, and this probably 
 prevented him from seeing the train as it canio toward him. Had he turntnl 
 his face eastward, or if he had put the basket down when he went upon the 
 track, he must have discovered the coming train, and could instantly have 
 steiiped aside into a place of safety. He failed to take this natural and 
 reasDuable precaution, and his want of care for his own safety certainly 
 contributed, in some degree, and, as we think, in a very considerable degree, 
 to occasion the accident and injury. The answers of the jury establislK'd 
 the fact of contributory negligence on the part of the decedent. This being 
 .so, there could be no recovery by the plaintiff." Per Dowling, J.)
 
 Ch. 1) NEGLIGENCE 1173 
 
 Even though it be conceded that the answers to the interrogatories 
 show that the plaintiff's decedent neghgently approached and entered 
 upon appellant's track in front of an approaching car, and thus negli- 
 gently exposed himself to the danger of a collision, this would not nec- 
 essarily preclude a recovery for injury resulting from appellant's negli- 
 gence. Answers to interrogatories showing such facts would not over- 
 throw a general verdict in favor of the plaintiff', for the reason that 
 evidence may have been introduced proving, or tending to prove, that 
 after said decedent was in the position of danger in which he had so 
 negligently placed himself, the defendant knew of his perilous position, 
 or might have known it by the exercise of ordinary care, in time to pre- 
 vent the injury, and that it negligently failed to take adavntage of the 
 last clear chance to prevent the injury. It is the duty of this court to 
 reconcile the interrogatories with the general verdict, if they can be so 
 reconciled by any evidence which might have been introduced within 
 the issues ; and, to this end, the court, in ruling upon this motion, will 
 treat the case as though this evidence had been introduced and acted 
 upon by the jury. In view of what we have said, we are of opinion 
 that the answers to the interrogatories are not in irreconcilable conflict 
 with the general verdict and the motion of appellant for judgment in 
 its favor on such interrogatories, notwithstanding the general verdict, 
 was properly overruled. 
 
 Several reasons were assigned by appellant in its motion for a new 
 trial. The first one presented and relied on by appellant is that the ver- 
 dict is not sustained by sufficient evidence. In passing on this motion, 
 it is the duty of the court to consider the answers to the interrogatories 
 in connection with the evidence for the purpose of deciding whether 
 the verdict is sustained by the evidence. Terre Haute, etc., R. Co. v. 
 Clark (1880) 73 Ind. 168. 
 
 The jury found both by its general verdict and by the answers to in- 
 terrogatories that defendant was negligent. The answers to the inter- 
 rogatories show that its car was being run at the rate of fifteen miles 
 an hour at the time of the accident, a rate which was three miles in ex- 
 cess of the rate permitted by the ordinance. There is much conflict in 
 the evidence as to the speed of the car, some of the witnesses stating 
 that it was running at a much greater speed and some that it was run- 
 ning much slower. Where the evidence is conflicting, the verdict of 
 the jury is conclusive on this court. 
 
 We will next consider whether the undisputed evidence in the case, 
 considered in connection with the interrogatories, shows that decedent 
 was negligent in going upon appellant's track, where he was killed. 
 
 The evidence in reference to the conduct of decedent from the time 
 he came out of Williams street until he was struck by the car is not in 
 serious conflict. The jury have found the facts showing this conduct 
 in answers to certain interrogatories, and the facts so found are fully 
 sustained by the evidence. The jury find upon this question that dece- 
 dent came out of Williams street, riding a bicycle, and started diag-
 
 1174 TOUTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 onally across Main street toward Sycamore street ; that he was carry- 
 ing a basket in his left hand, had his right hand on the handle-bar of 
 the bicycle, and was traveling at a moderate rate of speed ; that he had 
 frequently crossed Main street at and near that place, and was familiar 
 with the location and surroundings, and knew that cars frequently 
 passed on Main street ; that there was nothing to obstruct his view of 
 the approaching car at any time after he rode out of Williams street 
 into Main street, and no other car was passing at the time; that if he 
 had looked north on ^Main street at any time after he came out of Wil- 
 liams street he could have seen a car for two blocks, and that he could 
 have heard the car for half a block if he had listened, but that there 
 were noises of pedestrians and vehicles in the vicinity which would 
 have prevented him from hearing the car; that when he reached the 
 space between the two tracks, he was met by another bicycle rider com- 
 ing from the opposite direction in the space between the tracks, and 
 that he was attempting to pass this bicycle rider when he went upon 
 the west track ; and that he went upon the west track at a point in a 
 straight line between the middle of Williams street and the middle of 
 Sycamore street and about three feet in front of the car. These facts 
 having been found by the jury will be taken as true, so far as there is 
 evidence to sustain them, and the fact that there may have been con- 
 flicting evidence as to some or all of such facts will not affect their ver- 
 ity. In deciding whether the general verdict is sustained by the evi- 
 dence, the facts found by way of answers to interrogatories will be 
 treated the same as though they were established by the undisputed 
 evidence, unless some of the facts so found are unsupported by any 
 evidence. 
 
 There is some conflict in the evidence as to whether decedent rode 
 his bicycle in a straight line from the point where he entered upon 
 Main street toward the middle of Sycamore street until he went upon 
 the track, or whether he rode south in the space between the two tracks 
 for a short distance before he went upon the west track, but this is not 
 material. In either view of the case, it appears from the evidence, 
 when considered in connection with the answers to the interrogatories, 
 that he rode half way across Main street in plain view of the approach- 
 ing car, and went upon the street-car track within three feet of the 
 front end of such car, while it was moving at the rate of twelve or fif- 
 teen miles an hour. At that point Main street is shown by the map 
 introduced in evidence to be about sixty feet in width, and the answers 
 to interrogatories show that it was practically level, and that there was 
 nothing to obstruct decedent's view of the approaching car. The evi- 
 dence shows no conditions or circumstances surrounding the decedent 
 just before the accident which could properly be considered by the 
 jury as an excuse for decedent's apparent failure to observe or heed 
 the approach of the car. Nothing is shown that could have obstructed 
 his view or distracted his attention. While some of the witnesses tes- 
 tified that this was a busy street about the noon hour, and that many
 
 Ch. 1) NEGLIGENCE 1175 
 
 people, on foot and in wagons and other vehicles, passed the point 
 where the accident happened, about that hour, nothing is shown as to 
 conditions and surroundings at the time the accident occurred. In 
 the Hglit of these facts we cannot think that the conduct of the decedent 
 in approaching and entering upon the street-car track in the manner 
 shown was consistent wath due care on his part. We recognize that 
 the rule of law which requires a person about to cross the track of a 
 steam railroad to look and listen for approaching trains in order to 
 absolve himself from the charge of contributory negligence does not 
 apply in all its strictness to persons traveling along, or crossing street 
 railways. Street railways are constructed along and operated in 
 streets, and must be so operated with due regard to the rights of others 
 using said streets for other modes of travel, and for just reasons the 
 same degree of care is not required of one in crossing a street-car track 
 as is required of one in crossing the track of a steam railroad. Indian- 
 apolis St. R. Co. V. ^larschke (1906) 166 Ind. 490, 77 N. E. 945 : \Miite 
 V. Worcester, etc., St. R. Co. (1896) 167 Mass. 43, 44 N. E. 1052. 
 
 This rule does not, however, absolve persons going upon or across 
 the tracks of street railways from all care. A person about to cross a 
 street-car track must use ordinary care in view of all the circumstances 
 and surroundings. He must make reasonable use of his eyes to ob- 
 serve the approach of cars, and where there is nothing to obstruct his 
 view, or to distract his attention, and he goes upon the track immedi- 
 ately in front of a moving car, he is guiltv of negligence. Indianapolis 
 St. R. Co. V. Zaring (1904) 33 Ind. App. 297, 71 X. E. 270, 501 : Citi- 
 zens' St. R. Co. V. Helvie (1899) 22 Ind. App. 515, ':>Z X. E. 191. 
 
 In this case we cannot escape the conclusion that appellee's decedent 
 was negligent in approaching and entering upon appellant's street-car 
 track, where he received the injur}- that caused his death. 
 
 The question of last clear chance yet remains to be considered. This 
 doctrine finds its most frequent application in cases where the negli- 
 gence of the defendant is shown, and where it also appears that the 
 plaintiff, or decedent, by a want of due care on his part placed himself 
 in a position of imminent peril exposing him to danger as a result of 
 the negligence of the defendant. In such a case it may be shown that 
 after the plaintiff, or decedent, had thus negligently exposed himself 
 to the danger, circumstances or conditions existed, or then arose, which 
 imposed upon the defendant or its agents a special duty to protect him 
 from injury and afforded an opportunity to do so, and that such 
 duty was not observed and the opportunity neglected. When this is 
 shown, the negligent conduct of the plaintiff" is held to be, not the cause, 
 but a condition of the situation with reference to which the defendant 
 must act. In the case of Louisville, etc., R. Co. v. East Tenn., etc., R. 
 Co. (1894) 60 Fed. 993, 9 C. C. A. 314, the doctrine is thus stated : "If, 
 with a knowledge of what plaintiff has done, or is about to do, the 
 defendant can by ordinary care, avoid the injury likely to result there- 
 from, and does not, defendant's failure to avoid the injury is tlie last
 
 117G TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 link in the chain of causes, and is, in law, the sole proximate cause. 
 The conduct of the plaintiff is not, then, a cause, but a condition of the 
 situation with respect to which the defendant has to act." 
 
 Contributory negligence, when shown, is a complete defense to a 
 case founded upon negligence of the defendant. To make out a case 
 of contributory negligence, two elements must be established by the 
 evidence: (1) That the plaintiff was negligent, and (2) that this negli- 
 gence proximately and directly contributed to the injury. If the jury 
 found from the evidence in this case that after the motorman discov- 
 ered the peril of the plaintiff's decedent to which his negligence had 
 exposed him, or was about to expose him, such motorman had time 
 and opportunity to prevent the injury by the exercise of precautions 
 to that end, and he failed to do so, then contributory negligence on the 
 part of the decedent is not established. In such a case the negligence 
 of decedent is established, but it is not shown to have directly and prox- 
 imately contributed to his injury, and therefore the second element is 
 wanting. 
 
 The doctrine of last clear chance is not an exception to the rule re- 
 lating to contributory negligence. Facts which render the doctrine of 
 last clear chance applicable in any case, do not tend to prove that the 
 plaintiff was not negligent, but do tend to prove that the negligence of 
 the plaintiff, which placed him in a situation of danger, was not the 
 proximate cause of his injury, but was only the remote cause. Grass 
 V. Fort Wayne, etc.. Traction Co., supra. 
 
 In the case of Indianapolis St. R. Co. v. Schmidt, supra, it is said 
 "that the negligence of the plaintiff ceases to be the proximate cause 
 of the injury when the defendant has opportunity to prevent it, and, 
 with knowledge of the exposed condition of the plaintiff, negligently 
 refuses to do so, is well settled in this state." 
 
 In considering contributory negligence with reference to the doc- 
 trine of last clear chance, it is important to distinguish the facts tending 
 to show want of due care on the part of plaintiff' from those tending to 
 show that such want of care on his part directly and proximately con- 
 tributed to the injury. In a case like this, proof of facts tending to 
 show that decedent approached and entered upon defendant's street- 
 car track without taking any precaution for his own safety, makes out 
 a prima facie showing upon the question of his negligence ; and proof 
 of facts tending to show that by reason of such negligence he was 
 placed in a position where he was exposed to the danger of being in- 
 jured, and where he was actually injured by reason of defendant's neg- 
 ligence, would make out a prima facie showing that the negligence of 
 decedent directly and proximately contributed to his injury. Such a 
 showing upon both of these questions would constitute a prima facie 
 case of contributory negligence. This case may be met by evidence 
 tending to rebut the showing made upon either or both of the constit- 
 uent elements of contributory negligence. The showing upon the first 
 element, before referred to, may be rebutted by evidence tending to
 
 Ch. 1) NEGLIGENCE 
 
 1177 
 
 show that decedent used due care, and the showing upon the second 
 element may be rebutted by evidence tending to prove that after dece- 
 dent had by his own neghgence become exposed to imminent and im- 
 pending danger, defendant had it within its power to prevent the in- 
 jurv by the exercise of some precaution on its part which it failed to 
 exercise. Evidence tending to establish "last clear chance," does not 
 have the effect of confessing and avoiding contributory negligence, but 
 its purpose and effect is to show that plaintiff's negligence was not the 
 proximate cause of his injury, and thus to rebut the evidence tending 
 to establish that fact. 
 
 The defendant in this case, as shown by the interrogatories consid- 
 ered in connection with the undisputed evidence, made out a prima fa- 
 cie case of contributory negligence upon both its essential elements. It 
 was incumbent upon plaintiff to introduce the evidence, if such had not 
 already been introduced, tending to prove, either that his decedent used 
 due care, or that under the circumstances, facts existed which called 
 for the application of the doctrine of "last clear chance." See Ency. 
 Ev. 854; Gibson v. Harrison (1901) 69 Ark. 385, 63 S. W. 999, 54 L. 
 R. A. 268; Koegel v. IVIissouri Pac. R. Co. (1904) 181 Mo. 379, 80 S. 
 W. 905 ; Luna v. Missouri, etc., R. Co. (Tex. Civ. App. 1903) 7Z S. W. 
 1061. If there is a total failure of evidence upon both of these propo- 
 sitions, the prima facie case of contributory negligence made by appel- 
 lant must prevail ; but if there is evidence tending to show, either that 
 plaintiff used due care, or if he was negligent that such negligence was 
 not the direct and proximate cause of his injury, but only the remote 
 cause, then the question of contributory negligence was for the jury, 
 and the burden of this issue remained with the defendant as to both 
 of the constituent elements of contributory negligence. Grass v. Fort 
 Wayne, etc., Traction Co., supra; 1 Elliott, Evidence, 139. 
 
 We have already stated that there is no evidence tending to show 
 due care on the part of decedent, and we will now consider the evi- 
 dence bearing upon the other questions. In order to make such a 
 showing as calls for the application of the doctrine of last clear 
 chance, the evidence must show, or tend to show (1) that, at some 
 appreciable time before the accident happened, decedent was in a 
 place of imminent and apparent danger, or that his appearance and 
 conduct was such as to indicate to a man of ordinary prudence oc- 
 cupying the position of the motorman that he was about to place him- 
 self in such a position ; and (2) that during the time which inter- 
 vened after this situation arose and before the injury the motorman 
 could have prevented or mitigated such injury by the exercise of due 
 care, and decedent could not. 
 
 The only evidence bearing upon this question that we have been 
 able to find is the evidence of the motorman. He said : "I saw him 
 come out of Williams street, right onto Main. I was right down 
 here pretty close to him. He had a basket in his left hand, and had 
 his right hand on the handle-bar of the bicycle. He was headed in
 
 1178 TOUTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 the direction of Sycamore street. I saw another boy on a bicycle 
 coming up Main street. When he got up right close to the boy, it 
 seemed like he was going to run into that boy, and they were going 
 to have a collision, and he whipped his wheel right square around 
 on my track. I don't think I was more than three feet away, might 
 say right against him when he got on my track. I did not reverse 
 ., the power 'til he got on the track. I did not use the brake at all be- 
 fore the accident happened." The jury in the answers to interroga- 
 tories found that decedent was going diagonally across Main street 
 toward Sycamore street at a moderate rate of speed, as described by 
 the motorman, that he met another bicycle rider in the space between 
 the two tracks, and that he turned onto the west track at a point only 
 three feet in front of the car. The map introduced in evidence shows 
 that it is about thirty or thirty-five feet from the south line of Main 
 street to the place where the accident happened, although the jury 
 found that there was no evidence as to the exact distance. The jury 
 found that there was no evidence showing how far the car was from 
 the place of collision when decedent entered Main street, and we 
 have been unable to find any evidence on this question. The jury 
 found that there was no more effective means of stopping the car than 
 by reversing the power. There is no evidence tending to show how 
 far the car was from the decedent at the time the motorman saw 
 that the bicycles were likely to collide. There is no evidence show- 
 ing that decedent, as he approached the track, was looking in the 
 opposite direction from the car, or that he seemed to be abstracted 
 or oblivious to his surroundings. There is nothing in the evidence 
 showing that there was anything to indicate that decedent was likely 
 to go upon the track in front of the car, except the general direction 
 in which he was traveling. 
 
 This evidence does not prove, or tend to prove, a state of facts to 
 which the doctrine of last clear chance is applicable. The first es- 
 sential thing that the evidence must prove or tend to prove is that 
 the decedent was in a situation of apparent and imminent danger at 
 some appreciable time before the injury. If this evidence tends to 
 show that Carl Spiegel was in such a place of apparent danger, when 
 was it in reference to the time of the injury? Was it when he rode 
 his bicycle upon the track within three feet of the front end of the 
 moving car? If so, there was clearly no time within which the motor- 
 man could have prevented the injury. W^as it when the motorman 
 saw that there was a bicycle approaching from the south, and that 
 there was likely to be a collision between the two bicycles? If so, 
 there is no evidence tending to prove how far the car was from the 
 decedent at that time, or that the motorman by any means could 
 have prevented the injury. Was it when decedent was approaching 
 the street-car track from Williams street? There is nothing in evi- 
 dence tending to show that at that time there was any apparent dan- 
 ger that decedent would go upon the track in front of the car; nei-
 
 Ch. 1) NEGLIGENCE 1179 
 
 ther is there any evidence to show how far the car was from the 
 place of accident at the time decedent entered upon Alain street. If 
 there had been evidence tending to show that Carl Spiegel, as he 
 approached the track was apparently abstracted and oblivious of his 
 surroundings, and that he was moving in the direction of the track at 
 such a speed as would likely carry him in front of the car and into 
 dangerous proximity to it, and that the motorman, regardless of this 
 apparent danger, took no steps to stop the car or slacken its speed, 
 then we would have a different case presented. In such a case, it 
 would be for the jury to say whether the negligence of the defendant 
 directly and proximately contributed to decedent's injury, or whether 
 it was only the remote cause ; but, in this case, there is no evidence 
 upon which the application of this doctrine can be predicated. We 
 therefore conclude that appellant's motion for a new trial should have 
 been sustained. 
 
 The judgment of the trial court is reversed with directions to grant 
 a new trial.- ^ 
 
 2 8 The statement of facts is abridged. A portion of the opinion, and the 
 dissenting opinion by Hottel, J., on the effect of the general verdict, are omit- 
 ted. 
 
 Compare: Labelle v. Central Vermont R. Co. (1913) 87 Vt. 87, 88 Atl. .517: 
 (P., driving a dump cart, was walking beside the tongue between the front . 
 
 wheels and the body of the cart, when he approached a public grade cross- ^y^ 
 ing of a railway. As he was just getting on the track he saw a train com- 
 ing. He attempted to get across, but the train struck the cart and the cart 
 stinick him. P. claimed the right to go to the jury on the last clear chance. 
 Said Watson, J.: "Should the case have been submitted to the jury upon 
 the doctrine of the 'last clear chance'? The negligence of the plaintiff proxi- 
 mately contributing to the accident continued as long as it was possible for 
 him to avoid i)ersonal injury. He was walking between the front wheels and the 
 body of the dump cart, his horses perfectly manageable. The space between the 
 forward wheels and the body was sufficient for cramping purposes, and there 
 was no evidence tending to show that it was not large enough for the plain- 
 tiff to go through and outside the wheels, thereby to leave ithe team at any 
 time before he went upon the track, if need be, for his safety. He could 
 nave done this until the train was so near, according to the undisputed evi- 
 dence, that it was no longer possible for those in charge to prevent a col- 
 lision. Thus it appears that the plaintiff's negligence, proximate in character, 
 was concurrent with that of the defendant [assuming that the defendant was 
 negligent] as long as it was possible for the latter to avoid the accident. In 
 this respect the case is not distinguishable from that of Flint's Adm'r v. 
 Central Vermont Ry. Co. [1909] 82 Vt. 2«J9, 73 Atl. 590, cited above, and the 
 doctrine of the 'last clear chance' does not apply." French v. Grand Trunk 
 Rv. Co. [18S2] 76 ^'t. 441, 58 Atl. 722 ; Butler v. Rockland, etc., St. R. Co. [1904] 
 99 Me. 149, 58 Atl. 775, 105 Am. St. Rep. 267; Green v. Los Angeles Terminal 
 R. Co. [1904,] 143 Cal. 41, 76 Pac. 719, 101 Am. St. Rep. 68. A judgment 
 for the defendant upon a directed verdict was therefore affirmed.)
 
 IISO TORTS THROUGH ACTS OP CONDITIONAL LIABILITY (Part S 
 
 TAYLOR V. ^lETROPOLlTAN ST. RY. CO. 
 
 (Supreme Court of Missouri, 1914. 256 Mo. 191, 1G5 S. W. 327.) 
 
 Action to recover damages for personal injuries received by one 
 Albert P. Taylor in a collision with one of defendant's cars while 
 Taylor was crossing Nineteenth street on Cherry street in Kansas 
 City, Mo., about 8 p. m., September 20, 1907. Plaintiff recovered 
 judgment in the trial court in the sum of $6,250, and the defendant 
 perfected an appeal to the Kansas City Court of Appeals. After the 
 appeal was taken, plaintiff died. The case was revived in the name 
 of Jennie Taylor, as administratrix of his estate. In an opinion writ- 
 ten by the Kansas City Court of Appeals, the judgment was affirmed; 
 but, one of the judges of said Court of Appeals deeming its decision 
 contrary to previous decisions of the Supreme Court, the cause was 
 duly certified and transferred here. That portion of the plaintiff's 
 petition charging negligence is as follows : 
 
 "Defendant, througli the negligence and uuskillfulness of its officers, agents, 
 servants, and employes in running, conducting, and managing a car of the 
 defendant, wliich was being moved by the defendant at an unusual and rapid 
 rate of speed along said track, while in charge of its said otficers, agents, 
 servants, and employes, negligently and carelessly ran the said car into, upon, 
 and against the wagon in which plaintiff was riding, as aforesaid, with great 
 force and violence. That the officers, agents, servants, and employes of the 
 defendant in charge of said car, and who were then engaged in running, 
 conducting, and managing said car saw, or, by the exercise of ordinary care 
 on their part, might have seen, said plaintiff, and become aware of the dan- 
 ger to which he was exposed while crossing said Nineteenth street, and while 
 said wagon was on said track, crossing the same, in ample time to have 
 stopped said car before it struck said wagon, as aforesaid, and thus hare 
 avoided injuring plaintiff, but that said officers, agents, servants, and employes 
 of said defendant so in charge of said car negligently failed to stop said car, 
 and negligently caused and permitted the same to strike said wagon as 
 aforesaid, whereby plaintiff was violently knocked down and against said 
 wagon and gig and out of said wagon to the street," etc. 
 
 The answer was a general denial. 
 
 Williams, C. * * * IV. A further contention is made that the 
 demurrer to the evidence should have been sustained, on the ground 
 that "it appears from plaintift"'s own testimony that his own negli- 
 gence was the proximate cause of the accident." 
 
 Plaintiff' testified that, when the wagon started north across Nine- 
 teenth street, he did not know which way the cars ran on that street, 
 and first looked toward the east, and then turned and looked to the 
 west, and saw the car coming 60 or 70 yards distant. At this time 
 the horses' front feet were between the rails, and he thought there 
 was plenty of time for the wagon to cross ahead of the car, and did 
 not therefore think it necessary for him to jump from the wagon. 
 He is corroborated in this by both the driver of the wagon, and also 
 by Jaggard, who was near him in the back portion of the wagon. 
 At this time he thought the wagon was traveling about 6 miles an hour 
 and had about 17 feet to go in order to clear the track. He thought
 
 Ch. 1) NEGLIGENCE 1181 
 
 the car was running at a speed of from 25 to 30 miles an hour, and 
 that it had 180 to 210 feet to go. He then turned and was engaged 
 in conversation with Jaggard, and a little later, his attention being 
 aroused by what was said by Jaggard directing the driver to "look 
 out," he looked up and saw the car almost upon them and before 
 he had time to change his position the collision occurred. 
 
 In the discussion in the preceding paragraph, it was found that there 
 was evidence tending to show that the motorman, by the exercise of 
 the proper degree of care, under the circumstances, could have seen 
 plaintiff in a position of peril in time to have saved him by the ex- 
 ercise of proper care. Under such conditions, it could not be said 
 that his negligence was the proximate cause of the injury, so as to 
 defeat a recovery under the humanity rule. White v. Railroad, su- 
 pra, 202 Mo. loc. cit. 564, 101 S. W. 14. 
 
 In order to justify the designation of plaintiff's negligence as the 
 proximate cause of the injury, and therefore prevent the operation 
 of the humanity rule, the situation must be such that plaintiff's neg- 
 ligence caused him to enter the danger zone too late for defendant 
 to save him by the exercise of the care required under the situation. 
 
 The correct rule, applicable here, was announced by Lamm, J., in 
 the case of Ellis v. Metropolitan Street Railway Co., 234 Mo. 657, 
 138 S. W. 23, as follows : "When a person, out of danger, negli- 
 gently moves from his place of safety to one of danger from an 
 on-coming street car, so close to it and under such circumstances that 
 his danger could not be reasonably apprehended by those in charge 
 of the car (who see or might see his peril) in time to have saved him 
 by the exercise of ordinary care, then the negligence of the traveler 
 is either the proximate cause of his own injury, or, in case the ele- 
 ment of defendant's negligence be also present, then the negligence 
 of the street traveler and the negligence of the carrier are coincident 
 and concurrent; they (excluding the idea of comparative negligence) 
 may be said to balance or oft"set each other. In either of which hy- 
 potheses there is no room at all for the application of the humanity 
 rule. If a given case in that regard is so plain that average fair- 
 minded men cannot reasonably differ about it, a recovery may be 
 denied as a matter of lavv-. That result has been reached in many 
 cases cited. But, if there is a ground for fair dift'erence of opinion 
 about it, then the question is for the jury." * * * 
 
 The judgment is affirmed. Roy, C, concurs. 
 
 Per Curiam. The foregoing opinion of Williams, C, is adopted 
 as the opinion of the Court.^® 
 
 2 9 The statement of facts is abridged aud parts of the opinion of Wil- 
 liams, C, are omitted.
 
 1182 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 CHAPTER II 
 TORTS THROUGH MALICE 
 
 SECTION 1.— NATURE OF "MALICE' 
 
 Closely connected with the law and theory of intentional wrong- 
 doing is the legal use of the word "malice." In a narrow and pop- 
 ular sense this term means ill-will, spite, or malevolence ; but its legal 
 signification is much wider. Malice means in law wrongful intention. 
 It includes any intent which the law deems wrongful, and which 
 therefore serves as a ground of liability. Any act done with such 
 an intent is, in the language of the law, malicious, and this legal usage 
 has etymology in its favour. The Latin "inalitia" means badness, 
 physical or moral — wickedness in disposition and in conduct — not spe- 
 cifically or exclusively ill-will or malevolence ; hence the malice of 
 English law, including all forms of evil purpose, design, intent, or 
 motive. 
 
 We have seen, how^ever, that intent is of two kinds, being either 
 immediate or ulterior, the ulterior intent being commonly distinguished 
 as the motive. The term "malice" is applied in law to both these forms 
 of intent, and the result is a somewhat puzzling ambiguity which 
 requires careful notice. When we say that an act is done maliciously 
 we mean one of two distinct things. We mean either that it is done 
 intentionally, or that it is done with some wrongful motive. In the 
 phrases "malicious homicide" and "malicious injury to property," ma- 
 licious is merely equivalent to wilful or intentional. I burn down 
 a house maliciously if I burn it on purpose, but not if I burn it neg- 
 ligently. There is here no reference to any ulterior purpose or mo- 
 tive. But on the other hand malicious prosecution does not mean 
 intentional prosecution ; it means a prosecution inspired by some mo- 
 tive of which the law disapproves. A prosecution is malicious, for 
 example, if its ulterior intent is the extortion of money from the ac- 
 cused. So also with the malice which is needed to make a man lia- 
 ble for defamation on a privileged occasion ; I do not utter defama- 
 tory statements maliciously, simply because I utter them intentionally. 
 
 John W. Salmond, Jurisprudence (3d Ed.) 346.
 
 Ch. 2) TORTS THROUGH MALICE 1183 
 
 Malice in common acceptation means ill will against a person, but 
 in its legal sense it means a wrongful act, done intentionally without 
 just cause or excuse. If I give a perfect stranger a blow likely to 
 produce death, I do it of malice, because I do it intentionally, and 
 without just cause or excuse. If I maim cattle, without knowing whose 
 they are, if I poison a fisher^', without knowing the owner, I do it of 
 malice, because it is a wrongful act and done intentionally. If I am 
 arraigned of felony, and wilfully stand mute, I am said to do it of 
 malice, because it is intentional, and without just cause or excuse. 
 
 Eayley, J., in Bromage v. Prosser (1825) 4 B. & C. 247, 255. 
 
 SECTION 2.— INDIVIDUAL TORTS TURNING ON MALICE. 
 
 I. Malicious Prosecution 
 
 STATUTE OF MALICIOUS APPEALS. 
 (13 Edw. I, c. 12, 1285. 1 Pickering's Stats, at Large, 100.) 
 
 Forasmuch as many, through Malice intending to grieve other, do 
 procure false Appeals to be made of Homicides and other Felonies by 
 Appellors, having nothing to satisfy the King for their false Appeal, 
 nor to the Parties appealed for their Damages ; it is ordained. That 
 when any, being appealed of Felony surmised upon him, doth acquit 
 himself in the King's Court in due ^Manner, either at the Suit of the 
 Appellor, or of our Lord the King, the Justices, before whom the Ap- 
 peal shall be heard and determined, shall punish the Appellor by a 
 Year's Imprisonment, and the Appellors shall nevertheless restore to 
 the Parties appealed their Damages, according to the Discretion of the 
 Justices, having Respect to the Imprisonment or Arrestment that the 
 Party appealed hath sustained by reason of such Appeals, and to the 
 Infamy that they have incurred by the Imprisonment or otherwise, 
 and shall nevertheless make a grevious Fine unto the King. And if 
 peradventure such Appellor be not able to recompense the Damages, 
 it shall be inquired by whose Abetment or Malice the Appeal was com- 
 menced if the Party appealed desire it; and if it be found by the same 
 Inquest, that any Man is Abettor through ]\Ialice at the Suit of the 
 Party appealed he shall be distrained by a judicial Writ to come be- 
 fore the Justices ; and if he be law^f ully convict of such malicious Abet- 
 ment, he shall be punished by Imprisonment and Restitution of Dam- 
 ages, as before is said of the Appellor.
 
 1184 torts" through acts of conditional liability (Part 3 
 
 The new forms of Tort which came into existence as varieties of 
 the action of Case, because the older writs deahng with similar of- 
 fences were unavailable, were notably, Malicious Prosecution and 
 Nuisance. Malicious Prosecution was an adaptation of the old Writ 
 of Conspiracy, which was itself based on a statute and ordinance of 
 the years 1300 and 1305, respectively. These enactments, however, 
 only applied to cases where, "two, three, or more persons of malice and 
 covin do conspire and devise to indict any person falsely, and after- 
 wards he who is so indicted is acquitted." The old writ was, conse- 
 quently, confined to such cases; and subsequent judicial rulings seem 
 to have restricted it still further, to cases of false indictments for trea- 
 son or felony, whereby the accused's life was endangered. Obviously, 
 there were many other cases in which oppression could be used, not 
 merely by a group of persons acting together, but even by a single un- 
 scrupulous person, through the medium of baseless prosecutions. And 
 so, after the Church Courts had tried to acquire jurisdiction in such 
 cases through proceedings for defamation, we find in the King's 
 Courts, by the end of the fifteenth century, an action of Case in the 
 Nature of Conspiracy, which applied against single individuals and on 
 false indictments for mere misdemeanors. This new form of action 
 gradually acquired the name of Malicious Prosecution, and was fur- 
 ther extended to cover the malicious procuring of search warrants 
 against the plaintiff. It should be observed, however, that, unlike 
 strict Conspiracy, the gist of the action of Malicious Prosecution is 
 damage to the plaintiff, not the mere conspiring of the defendants ; 
 though, if a false and malicious prosecution is brought, damage to the 
 party prosecuted will be presumed. Apparently, though the closely 
 related Writ of Champerty (against person buying shares in lawsuits 
 with a view of aiding in carrying them on) retained the form given to 
 it by statute, the Action of Maintenance (against persons taking part 
 in lawsuits in which they had no interest) was also a typical example 
 of Case; being an enlargement of the narrower statutory remedy 
 against royal officials. 
 
 Edward Jenks, Short ITist. Eng. Law, 142. 
 
 (A) Blements of the Prima Facie Ca<^e in Malicious Prosecution 
 
 FISHER V. BRISTOW et al. 
 
 (Court of King's Bench, 1779. 1 Doug. 215, 99 Reprint, 140.) 
 
 Action for a malicious presentment, (for incest,) in the Ecclesiastical 
 Court of the Archdeaconry of Huntingdon. Demurrer to the declara- 
 tion, and cause assigned, that it was not stated, how the prosecution 
 was disposed of, or that it was not still depending. The Court was 
 clearly of opinion, that the objection was fatal, and said it was settled
 
 Ch. 2) TORTS THROUGH MALICE 1185 
 
 that the plaintiff in such an action, must shew the original suit, 
 wherever instituted, to be at an end; otherwise he might recover in 
 the action, and yet be afterwards convicted on the original prosecution. 
 Judgment for the defendant. 
 
 BYNE v. MOORE. 
 (Court of Common Pleas, 1813. 5 Taunt. 1S7, 128 Reprint, 658.) 
 
 This was an action for a malicious prosecution. The declaration 
 alleged that the defendant, maliciously intending to injure the plaintiff, 
 had falsely and maliciously and without reasonable or probable cause, 
 charged the plaintiff with violently assaulting him, and had thereby 
 procured a warrant for apprehending the plaintiff. The plaintiff gave 
 no other evidence than that the indictment was returned "not found." 
 On the trial, MacDonald, C. J., nonsuited the plaintiff. 
 
 Best, Serjt., obtained a rule nisi to set aside this non suit, and have 
 a new trial. ^ 
 
 Mansfield, C. J. I feel a difficulty to understand how the plain- 
 tiff could recover in the present action, wherein he could recover no 
 damages, because he clearly has not proved that he has sustained any : 
 I can understand the ground upon which an action shall be maintained 
 for an indictment which contains scandal, but this contains none, 
 nor does any danger of imprisonment result from it: this bill was a 
 piece of mere waste paper. All the cases in Buller's Nisi Prius, 13, 
 are directly against this action, for the author speaks of putting the 
 plaintiff to expense, and affecting his good fame, neither of which 
 could be done here. If this action could be maintained, every bill 
 which the grand jury threw out would be the ground of an action. 
 The judge too might certify in this cause against the costs, if the dam- 
 ages had been under 40s. 
 
 Heath, J., concurred. 
 
 Chambrk, J. It would be a very mischievous precedent if the ac- 
 tion could be supported on this evidence. 
 
 Rule discharged. 
 
 FARMER V. SIR ROBERT DARLING. 
 
 (Court of King's Bencli, 1766. 4 Burr. 1971, 98 Reprint, 27.) 
 
 On Thursday last. Sir Fletcher Norton, on behalf of the defendant, 
 moved for a new trial, and to set aside the verdict, which had been 
 given for the plaintiff" in an action for a malicious prosecution, with 
 £250 damages, at the Middlesex sittings at Nisi Prius before Lord 
 
 1 The statement of the case is abridged. 
 Hepb . Torts — 75
 
 1186 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 Mansfield, on the 15th instant. His objections were — 1st. That the 
 damages were excessive; 2dly. That the verdict was against evidence. 
 He had a rule to shew cause. 
 
 Lord Mansfield now reported the evidence. 
 
 It was an action for a malicious prosecution of the plaintiff, by two 
 indictments for nuisances ; one, by a drain ; the other, by his poulter- 
 er's yard ; both of them near the prosecutor's house ; upon which in- 
 dictments the then defendant and now plaintiff had been acquitted. 
 
 It appeared, upon the report "that there was malice implied ;" and 
 it appeared, that the plaintiff had actually and bona fide paid £140 
 in defending himself against the two indictments. 
 
 His Lordship said, he told the jury, that the foundation of this ac- 
 tion was malice ; which must be either express, or implied ; and he ac- 
 quainted them, that they were not obliged to give all the £140 expend- 
 ed ; or, they might (on the other hand) give more, if they should see it 
 proper to do so. He said, he left it to the jury, to consider of the im- 
 plied malice, from the groundlessness of the prosecution. 
 
 Sir Fletcher Norton, Mr. Morton and Mr. Recorder Eyre now ar- 
 gued on behalf of the defendant, for a new trial. They said, there was 
 another requisite to the maintenance of this sort of action, besides mal- 
 ice ; it was also necessary to prove, "that the indictment was causeless 
 and without any foundation." Both these are essential, and necessary 
 to be proved. 
 
 As in a writ of conspiracy, falsity is necessary to be charged ; so, in 
 this case, malice alone is not sufficient : it must also be a prosecution 
 without any foundation. These are two independent essentials to the 
 maintenance of this action ; there must be both malice and falsity. We 
 admit there was some evidence of malice; but it was proved, by suffi- 
 cient evidence, to be a nuisance. Therefore there was a probable cause 
 for the indictments ; and if there was, then the prosecutor is not liable 
 to this action for a malicious prosecution; whatever motive might in- 
 duce the prosecutor to indict the person guilty of the offence. It 
 would be of dangerous consequence, to make a prosecutor liable to this 
 action, where there is a probable cause for indicting an offender. 
 
 Secondly. — The damages are excessive. 
 
 Lord Mansfield. This action is for a malicious prosecution, with- 
 out a probable cause. 
 
 I can not say that the jury have done wrong here, in finding that the 
 indictments were preferred without probable cause. 
 
 This drain was an ancient drain. The fault arose above and below 
 Farmer's part of it. His brick-drain was cleaned, and clear. The gist 
 of the indictment was "that he did not lower his drain." He had no 
 need to do it. The verdict was not, in my opinion, against evidence. 
 
 The next prosecution was for the feeding the fowls. And I can not 
 say that the jury had no reason to find this likewise to be an indictment 
 without probable cause. Every stench is not a nuisance : nor is every 
 noisome trade a nuisance in every place ; though many of them are nui-
 
 Ch. 2) TORTS THROUGH MALICE 1187 
 
 sances by reason of their locality. This was an ancient trade, long car- 
 ried on in this place ; long before Sir Robert Darling came there. He 
 comes and builds a house near it, in a place that was formerly a poul- 
 try-yard. Nobody before complained of it, or presented it. So that the 
 conclusion does not follow, "that it was a nuisance." And the jury 
 had a view\ Therefore I can not say, that the jury had no reason to 
 take the prosecution to be groundless. 
 
 As to the excessiveness of the damages — it does not appear by the 
 verdict, how far the jury gave it upon the bill; and how far, upon the 
 whole circimistances of the case taken together. The end and tendency 
 of these two indictments was to drive this plaintiff from his business of 
 a poulterer, after having long carried it on. This was sworn to have 
 been the prosecutor's view in preferring them. And they might affect 
 the man's credit. There are many circumstances which make it rea- 
 sonable, not to indulge the present defendant in sending it to a new 
 litigation, only to abate the quantum of the damages, when he has been 
 so much in the wrong. 
 
 Therefore he was against granting a new trial. 
 
 The other three Judges entirely agreed with his Lordship in both 
 points; and expressed their sentiments at large to the same effect. 
 They likewise agreed with Sir Fletcher Norton, as to the grounds of 
 this sort of action ; viz. "That malice, (either express or implied,) and 
 the want of probable cause must both concur." But they were clearly 
 of opinion, that it appeared upon the whole state of the evidence, that 
 in this case they did both concur. Therefore they thought the rule 
 ought to be discharged; both objections being sufficiently answered. 
 
 Per Cur. unanimously. Rule discharged. 
 
 CHAPMAN et al. v. NASH. 
 
 (Court of Appeals of Maryland, 1913. 121 Md. 608, 89 Atl. 117.) 
 
 Action by Charles Carrol Nash, an infant, by his father and next 
 friend, for malicious prosecution. There was a judgment for plain- 
 tiff, and the defendants appeal. The facts developed in the evidence 
 were as follows : 
 
 The plaintifE was the son of Charles M. Xash, who lived in Baltimore coun- 
 ty, about 25 miles from the city, and who was engaged in the business of 
 bujing hay in the county and hauling it to Baltimore city and selling it to 
 various purchasers. Among his purchasers was the Chapman Coal Company, 
 to which he had sold hay for about two years prior to August 10, 1911, on 
 which date the occurrences took place which led to the prosecution of the 
 plaintiff and his father upon the criminal charge hereinafter mentioned. 
 The plaintiff was then about nineteen years old and had been driving the 
 hay wagon for about two years, and during those years no one else, to his 
 knowledge, had hauled hay to the coal company for his father. The father 
 owned two wagons which he used in hauling hay to the city. One of these 
 wagons was heavier than the other. The hay carriages of the two wagons 
 were different in color— that of the heavy wagon was blue and that of the 
 lighter one was red. Both wagons had been weighed at the Fremont Street
 
 1188 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 hay scales, and their weight had been registered there. When the plain- 
 tiff brought in a load of hay to be delivered to the defendants, the method 
 of ascertaining the amount of hay to be paid for and the manner of collecting 
 was this: The wagon and hay were weighed together, and the itlaintiff 
 would tell the weighmaster which wagon he was using. He would say the 
 lighter or the heavier one as the case might be. The weighmaster would 
 accept his statement and deduct the registered weight of the wagon which 
 the plaintiff informed him he was using from the gross weiglit. and the dif- 
 ference would be the net weight to be paid for by the purchaser. The weigh- 
 master would give the plaintiff a ticket which showed the net weight made up 
 in this way. The ticket and hay were then taken to the South Baltimore 
 yard of the coal company, where the hay was unloaded and the ticket O. K.'d 
 by the superintendent of the coal company, and taken by the plaintiff" for 
 payment to the office of the company at Sharp and Lombard streets. The 
 money was collected, not by the plaintiff, but by Charles M. 2sash, his father, 
 whose custom was to go to the office after the ticket had been left there and 
 collect the money. The lighter wagon, as shown by the weight at tbe hay 
 scales, weighed 3,000 pounds, and the heavy one r.,NOO pounds. Within one 
 year prior to August 10, 1911, the plaintiff had delivered 13 loads of hay 
 to the coal company, and had presented tickets therefor which showed the 
 wagon to weigh 3,000 pounds. These tickets were accepted as correct by the 
 coal company, and the amounts shown to be due were paid without question 
 to Charles M. Nash. 
 
 On August 5. 1911, the coal company wrote to Charles M. Nash, saying that 
 he might send in a load of prime timothy hay the following week, and advised 
 him that the hay must be weighed and the certificate presented from the state 
 scales in the city. The prior 13 deliveries had been certified to by others 
 than the state inspectors. The plaintiff left home with a load of hay on 
 the 9th of August, and drove as far as Pikesville, wliere he silent the night, and 
 on the morning of the 10th he proceeded to the Northwestern hay scales where 
 the hay was weighed. He told the weighmaster that he was driving the 
 lighter wagon, and was given a ticket which showed that 3,000 pounds were 
 deducted from the gross weight. He then took the hay to the yard of the coal 
 company, delivered the ticket, and unloaded the wagon. Mr. J, W. Chapman, 
 one of the defendants, was present while the plaintiff was in the act of un- 
 loading. After Mr. Chapman had observed the wagon, he concluded that its 
 weight was in excess of that stated in the certificate, and he asked the 
 plaintiff to reweigh the wagon, which the plaintiff promised to do. The 
 plaintiff at that time knew that he had made a misstatement to the weigh- 
 master as to the wagon, and that the weight shown upon the ticket was not 
 correct, and that there was a shortage of 050 pounds. He testified as fol- 
 lows as to his conversation with Mr. Chapman had at that time: "Q. You 
 knew right then and thei'e tliat it was the wrong weights, didn't you? 
 A. Yes. Q. Did you tell him so? A. No, sir. Q. Then you knew when you 
 left him that you had the wagon with the wrong weight? A. Yes. Q. And 
 you never told him? A. No, sir. Q. Although he asked you what weight it 
 was? A. Tlie ticket showed that. Q. The ticket showed that, and he had 
 brought it to your particular notice by asking you to go to the scales and 
 have the wagon weighed? A. Yes. Q. You went right on up home? A. 
 Yes ; to tell my father and let him come down and attend to it." William J. 
 Chapman testified that he asked the plaintiff if the weight sho\Ani on the 
 ticket was con-ect, and that he said it was, and this testimony is not denied. 
 Charles M. Nash testified that he knew the wagon used to haul this particular 
 hay weighed 3,950 pounds, and that he told his son on August 9th to use the 
 heavy wagon. Mr. Isaac, one of the members of coal company, went to the 
 Northwestern hay scales to see the wagon weighed, but the ])laintiff did not go 
 to the scales, but continued on his way liome without reweighing the wagoji. 
 He was overtaken near Arlington by two members of the coal company, and 
 the wagon was weighed at that place, and it was found to weigh 3,800 pounds. 
 It was then taken to the Northwestern bay scales, where it was found to 
 weigh 3,950 pounds, and where the ticket was corrected by the state in- 
 spector. 
 
 Although the plaintiff, according to his own testimony, well knew at the 
 time he delivered the hay that the weight of the wagon had been misstated,
 
 Ch. 2) TORTS THROUGH MALICE 1189 
 
 he made no mention of that fact then or when he was overtaken on the road. 
 On the morning of August 11th Cliarles M. Nash called at the office of the 
 coal companj- and inquired what the trouble about the load of hay was, al- 
 though it must be inferred that he well knew and was informed that it was 
 short in weight, and asked for settlement on the corrected bill. William J. 
 Chapman declined to settle, but told him to call in a few days, which he did. 
 He testified tliat Mr. Chapman told him at that interview that he would not 
 settle, but said. "If you will drop this load of hay, we will drop our side.'' 
 He asked Mr. Is^ac. the treasurer of the coal company, to pay for the amount 
 of hay shown by the corrected bill, and said his son did not know the weight 
 of the wagon, and that he should have told him. Charles M. Nash placed his 
 account in the hands of an attorney for collection, and after some communi- 
 cation with William J. Chapman a suit was brought before a justice of the 
 peace. Prior to the institution of the suit the coal company made a demand 
 upon Charles M. Nash for alleged shortages amounting to $239.16 in hay 
 delivered from August, 1909, to August 10, 1911, inclusive. On the day of the 
 trial before the justice, December 13, 1911, G. Walter Chapman appeared 
 before James W. Lewis, a police justice of Baltimore city, and swore out a 
 warrant against the plaintiff and his father, charging them with a conspiracy 
 to defraud the Chapman Coal Company of Baltimore a corporation, for $11.87, 
 current money, by means of false certificate of weight of the load of hay de- 
 livered to it on August 10, 1911. They were arrested and indicted by the 
 grand jury in the criminal court of Baltimore upon this charge, and after 
 a trial in that court were acquitted. The explanation offered by the plain- 
 tiff' at the trial of his statement to the weighmaster that he was using the 
 lighter wagon was that he made a mistake. 
 
 Burke, J. (after stating the facts and disposing of certain prelim- 
 inary questions). There was testimony offered tending to show 
 that the defendants were actuated by mahce in the institution of the 
 prosecution, but such evidence cannot be considered in determining 
 the question of probable cause. While malice may be inferred from 
 the want of probable cause, a want of probable cause cannot be 
 adduced from the most express malice. ''In the trial of actions of 
 this nature," said Judge Washington, in Alimns v. Dupont (3 \\'ash. 
 c. c. 31, Fed. Cas. No. 9,926), supra, "it is of infinite consequence 
 to mark with precision the line to which the law will justify the de- 
 fendant in going and will punish him if he goes beyond it. On the 
 one hand, public justice and public security require that offenders 
 against the law should be brought to trial and to punishment if their 
 guilt be established. Courts and juries, and the law officers whose 
 duty it is to conduct the prosecution of public offenders, must, in 
 most instances, if not in all, proceed upon the information of in- 
 dividuals, and if these actions are too much encouraged, if the in- 
 former acts upon his own responsibility and is bound to make good 
 his charge at all events, under the penalty of responding in damages 
 to the accused, few will be found able and willing at so great a risk 
 to endeavor to promote the public good. The informer can seldom 
 have a full view of the whole ground, and must expect to be frequently 
 disappointed by evidence which the accused only can furnish. Even 
 if he be possessed of the whole evidence, he may err in judginent, and 
 in many instances the jury may acquit where to his mind the proofs 
 of guilt were complete."
 
 1190 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 The question we are to determine is this : Were the facts we have 
 stated such as justified the defendants, as reasonable, cautious men, 
 in believing the plaintiff and his father had entered into a conspiracy 
 to defraud them? That such a fraud by the methods adopted in 
 weighing the wagon might have been perpetrated with the greatest 
 facility is evident. The wagon which weighed 3,950 pounds was 
 represented as weighing 3,000 pounds, the tickets fcft- the 13 prior 
 loads delivered gave the weight of the wagon as 3,000 pounds. The 
 son delivered the tickets and the father collected the money. The 
 plaintiff testified that he gave the weight as 3,000 pounds by mistake. 
 It is possible that this statement is true, but it is almost incon- 
 ceivable that he did not know it was the heavier wagon, and his mis- 
 statements to Mr. Chapman, and his suppression of the truth at the 
 time when it was his duty to have spoken truthfully, were most un- 
 fortunate for him. The facts and circumstances which are undis- 
 puted, and which were within the knowledge of the defendants at the 
 time the warrant was sworn out, were well calculated to create in 
 their minds the strongest suspicion, and in our opinion would have 
 warranted a prudent and cautious man in believing that a skillfully 
 devised plan had been adopted by the defendants to defraud and 
 cheat. We do not mean to say that any such plan or scheme did in 
 fact exist. The plaintiff has been acquitted of the charge preferred 
 against him. It is to be hoped that he was entirely free from any 
 intent to do wrong, but the uncontradicted facts and circumstances 
 which we have carefully weighed and considered have led us to the 
 conclusion that under the legal principles governing this class of ac- 
 tions the plaintiff failed to show, by any evidence legally sufficient 
 for that purpose that the prosecution was instituted without probable 
 cause. It follows that the defendants' prayer which asked for the 
 withdrawal of the case from the jury should have been granted. 
 
 This conclusion dispenses with the consideration of the other ques- 
 tions raised by the record. Judgment reversed, without a new trial, 
 with costs to the appellants. 
 
 GIBSON v. CHATERS. 
 (Court of Comraou Pleas, 1800. 2 Bos. & P. 129, 126 Reprint, 119G.) 
 
 This was an action on the case for maliciously arresting the plain- 
 tiff' and holding him to bail. 
 
 At the trial before Lord Eldon, C. J., it appeared that the plaintiff 
 and the defendant were both resident at North Shields in Northum- 
 berland, the former being the master, and the latter the owner of a 
 ship; that some matters in difl'ercnce between them having been 
 submitted to arbitration, the plaintiff" was awarded to pay the sum 
 of £19. 14s. on the 31st of November, 1797, but in consequence of 
 his being absent from home at that time, and not returning till March,
 
 Ch. 2) TORTS THROUGH MALICE 1191 
 
 1799, did not pay the sum awarded; that in December, 1798, the 
 defendant being in London made an affidavit of debt to hold the 
 plaintiff to bail, and that a writ issued thereupon ; that on the plain- 
 tiff's returning to North Shields in March, 1799, he hearing of the 
 defendant's intention to arrest him, paid the debt to the defendant's 
 agent at North Shields, and took a receipt for the amount; that on 
 the 4th of May following, the plaintiff having arrived in the river 
 Thames from North Shields, was arrested and holden to bail by the 
 defendant's attorney, on an alias writ taken out at that time, but 
 grounded on the affidavit made by the defendant in December, 1798. 
 His Lordship being of opinion that it was necessary to prove express 
 malice, and that no evidence of malice had been given, nonsuited the 
 plaintiff. 
 
 Best, Serjt., now moved for a rule nisi to set aside this nonsuit, and 
 have a new trial ; contending that the case was distinguishable from 
 that of Scheibel v. Fairbain [1799] 1 Bos. & P. 388, the writ on 
 which the plaintiff in that case was arrested having been sued out 
 previous to the time when the debt was paid, whereas the writ in 
 the present instance was actually taken out after the debt had been 
 discharged and the receipt given ; that the ground of complaint in 
 Scheibel v. Fairbain was a mere nonfeasance in the defendant who 
 had omitted to countermand a writ previously sued out, and was 
 so treated by the Court, but that this was a malfeasance and came 
 expressly within the rule laid down in Waterer v. Freeman, Hob. 
 267, that a man is liable to an action if he sue against his release, 
 or after the debt duly paid. He observed, that the rule with re- 
 spect to proving malice in actions for malicious prosecutions, did 
 not hold in the case of actions for holding to bail in a mere civil 
 suit, since the rule in the former instance proceeded on the danger 
 of discouraging prosecutions for public offences. 
 
 But the Court were of opinion that the facts of this case precluded 
 any inference of malice, and that the plaintiff therefore to entitle 
 himself to recover, ought to have given evidence of actual malice 
 
 Best took nothing by his motion. 
 
 VANDERBILT v. MATHIS. 
 (Superior Court of City of New York, 1856. 5 Duer, 304.) 
 
 BoswoRTH, J. To maintain an action for malicious prosecution, 
 three facts, if controverted, must be established: (1) That the pros- 
 ecution is at an end, and was determined in favor of the plaintiff. 
 (2) The want of probable cause. (3) Malice, 
 
 In such an action, it is necessary to give some evidence of the want 
 of probable cause. It is insufficient to prove a mere acquittal ; that,
 
 1192 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 alone, is not prima facie evidence of the want of probable cause. 
 Gorton v. De Angelis, 6 Wend. 418. 
 
 It is equally essential, that the former prosecution should appear to 
 have been maliciously instituted. Malice may be inferred from the 
 want of probable cause, but such an inference is one which a jury is 
 not required to make, at all events, merely because they may find the 
 absence of probable cause. 
 
 Unless the evidence, in relation to the circumstances under which 
 the prosecution was ended, and that given to establish the want of 
 probable cause, justify the inference of malice, other evidence, in sup- 
 port of it, must be given. 
 
 Evidence as to the conduct of the defendant, in the course of the 
 transaction, his declarations on the subject, and any forwardness and 
 activity in exposing the plaintiff by a publication, are properly admitted 
 to prove malice. Such evidence must be given as will justify a jury in 
 finding the existence of malice. 
 
 The rule is uniformly stated, that, to maintain an action, for a 
 former prosecution, it must be shown to have been without proba- 
 ble cause, and malicious. Vanduzor v. Linderman, 10 Johns. 106; 
 Murray v. Long, 1 Wend. 140; Willans v. Taylor, 6 Bing. 183. 
 
 The judge, at the trial, charged, that the fact, that the plaintifif 
 was discharged before the magistrate showed, prima facie, that there 
 was no probable cause for the arrest, and shifted the burden of proof 
 from the plaintiff to the defendant, who was bound to show, affirma- 
 tively, that there was probable cause. 
 
 He was requested to charge, "that the discharge of Vanderbilt was 
 not prima facie evidence of the want of probable cause." This he 
 refused to do. To this refusal to charge, and to the charge as made, 
 the defendant excepted. 
 
 He also charged, "that, if probable cause is made out, the question 
 of malice becomes immaterial, except as bearing on the question of 
 damages." 
 
 "This question of malice, in fact, supposing that probable cause did 
 not exist, is material only as affecting the question of damages." 
 
 He was requested to charge, "that the jury could not find a verdict 
 for the plaintiff, unless he has proved that there was no probable cause 
 for the complaint, and not even then, unless they believe, from the 
 evidence, that, in making the complaint, the defendant acted from 
 malicious motives." This the judge declined to do, and to his refusal 
 to so charge the defendant excepted. 
 
 Although the evidence which establishes the want of probable cause 
 may be, and generally is, such as to justify the inference of malice, yet 
 we understand the rule to be, that when it is a just and proper in- 
 ference from all the facts and circumstances of the case, upon all 
 the evidence given in the cause, "that the defendant was not actuated 
 by any improper motives, but only from an honest desire to bring a 
 supposed offender to justice, the action will not lie, because such facts
 
 Ch. 2) TOUTS THROUGH MALICE 1193 
 
 and circumstances disprove that which is of the essence of the action, 
 viz., the mahce of the defendant in pressing the charge." 
 
 In Bulkley v. Smith, 2 Duer, 271, the court stated the rule to be, 
 "that, in order to maintain a suit for a malicious prosecution, the 
 plaintiff is bound to prove the entire want of a probable cause for 
 the accusation, and the actual malice of the defendant in making it. 
 Malice is a question of fact, which, when the case turns upon it, 
 must be decided by the jury." 
 
 Story, J., in Wiggin v. Cofifin, Fed. Cas. No. 17,624, instructed the 
 jury that two things must concur, to entitle a plaintiff to recover 
 in such an action: ''The first is, the want of probable cause for the 
 prosecution ; the second is, malice in the defendant in carrying on 
 the prosecution. If either ground fail, there is an end of the suit." 
 
 In Vanduzor v. Linderman, 10 Johns. 106, the court said : "No 
 action lies merely for bringing a suit against a person without suffi- 
 cient ground. Savil v. Roberts, 1 Salk. 13; Purton v. Honnor, 1 Bos. 
 & Pul. 205. To sustain a suit for a former prosecution, it must 
 appear to have been without cause, and malicious." 
 
 If the charge must be understood to mean, that if the want of prob- 
 able cause was established, the plaintiff was entitled to recover, al- 
 though the jury should believe, from the whole evidence, that, in 
 making the complaint, the defendant did not act from malicious mo- 
 tives, then we deem it to be erroneous. This construction is the only 
 one, of which the language of the instruction appears to be susceptible ; 
 for the judge, in charging the jury, stated that the "question of malice 
 in fact, supposing that probable cause did not exist, is material only 
 as affecting the question of damages." 
 
 Malice in fact, is that kind of malice which is to be proved. When 
 malice may be, and is inferred, from the w'ant of probable cause, it is 
 actual malice which is thus proved. 
 
 There is no theoretical malice which can satisfy this rule, and which 
 can coexist with the established fact, that the prosecution was insti- 
 tuted in an honest belief of the plaintiff's guilt, and with no other 
 motives than to bring a supposed offender to justice. 
 
 The question of malice may be a turning-point of the controversy, in 
 an action of this nature. 
 
 The want of probable cause may be shown, and yet, upon the whole 
 evidence, in any given case, it may be a fair question for the deter- 
 mination of a jury, whether the defendant w^as actuated by malice. 
 If the whole evidence is such, that a jur}^ cannot properly doubt the 
 honesty and purity of the motive which induced the former prose- 
 cution, and if they fully believe that it was instituted from good 
 motives, and in the sincere conviction that the plaintiff was guilty of 
 the offence charged, and without malice, the defendant would be en- 
 titled to a verdict. 
 
 The charge made, and which was excepted to, must be deemed to 
 have been made, to give the jury a rule of action, in disposing of the
 
 1194 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 case upon the whole evidence. We think it was not only calculated 
 to mislead, but was erroneous. 
 
 A new trial must be granted, with costs to abide the event.^ 
 
 CINCINNATI DAILY TRIBUNE CO. v. BRUCK. 
 
 (Supreme Court of Oliio, 1900. 61 Ohio St, 489, 56 N. E. 198, 76 Am. St 
 
 Kep. 438.) 
 
 In an action against the Cincinnati Daily Tribune for the publication 
 of a libel on the plaintiff, the defendant answered, by way of counter- 
 claim, that just before the libel the plaintiff, a stockholder of the com- 
 pany, maliciously, and without probable cause, commenced a suit 
 against it for dissolution and the appointment of a receiver, on the 
 false averment that it was insolvent. The application was at once 
 heard, denied, and the suit dismissed. It is then averred that the suit 
 worked great injury to the credit of the company, prevented a sale of 
 the property then being negotiated, and otherwise greatly embarrassed 
 it in business. Issue having been made up, the case was tried to a 
 jury, and at the close of the defendant's evidence the court, on motion 
 of the plaintiff, withdrew from the consideration of the jury all the 
 evidence offered by the defendant on its counterclaim, but in its charge 
 left it to be considered in mitigation of damages. There was a judg- 
 ment for the plaintiff. The defendant brings error. 
 
 PtR Curiam. The ruling of the court presents the question wheth- 
 er the facts pleaded in the answer constitute a counterclaim to that 
 of the plaintiff. If, however, the facts stated constitute a cause 
 of action in favor of the defendant for the recovery of damages 
 against the plaintiff for the malicious prosecution of the suit for the 
 
 2 "I have always understood, since the case of .Johnstone v. Sutton (17SG) 1 
 T. R. 510, which was decided long before I was in the profession, that no 
 point of law was more clearly settled than that in every action for a malicious 
 prosecution or arrest, the plaintiff must prove what is averred in the declara- 
 tion, viz., that the prosecution or arrest wah malicious and without reasonable 
 or probable cause: If there be reasonable or i»robable cause, no malice, how- 
 ever distinctly proved, will make the defendant liable; but when there is 
 no reasonable or probable cause, it is for the jury to infer malice from the 
 facts proved. That is a question in all cases for their consideration, and 
 it havius in this instance been withdrawn from them, it is imiwssible to 
 say whether tliey might or might not have come to the conclusion that the 
 arrest was malicious. It was for them to decide it, and not for the judgiv 
 I can conceive a case, where there are mutual acco\iuts between parties, 
 and wliere an arrest for the whole sum (claimed by tlie plaintiff would not 
 be malicious ; for example, the plaiutitf might know that the set-off was open 
 to dispute, and that there was reasonable ground for disiniting it. In that 
 case, though it might afterwards ai>i)car that the set-off did exist, the ar- 
 rest would not be malicious. The term Miuilice' in this form of action is not 
 to be considered in the sense of spite or hatred against an individual, liut of 
 malus animus, and as denoting that the party is actuated by improiJer and 
 indirect motives." Per Parke, J., in Mitchell v. Jenkins (l83o) 5 B. & Ad. 
 588, 504.
 
 Ch. 2) TORTS THROUGH MALICE 1195 
 
 appointment of a receiver, it is very clear that they would constitute 
 a counterclaim in this action. They are connected with the subject of 
 the action, and this is sutficient to warrant their being pleaded as a 
 counterclaim. Section 5072, Rev. St. ; Swan, Pi. & Pr. 259, note. 
 
 The real question is, do they constitute a cause of action in favor 
 of the defendant against the plaintifif? We think not. It is a well- 
 settled general rule, that no recovery can be had by a defendant against 
 a plaintiff for the malicious prosecution of a civil action, where there 
 has been no arrest of the person or seizure of property. The cases re- 
 lied on by the plaintiff in error do not support its claim. That of Coal 
 Co. V. Upson, 40 Ohio St. 17, arose from a suit where a temporary in- 
 junction had been obtained on false and malicious averments. A tem- 
 porary injunction imposes a restraint upon the owner over his proper- 
 ty as hurtful to him as if it were in fact seized, and it was held that 
 for the malicious prosecution of such suit an action would lie. The 
 case of Pope v. Pollock, 46 Ohio St. 367, 21 N. E. 356, 4 L. R. A. 255, 
 15 Am. St. Rep. 608, arose from the malicious prosecution of suits in 
 forcible entry and detainer. 
 
 Judgments in such suits are not conclusive. The proceeding may 
 be commenced and recommenced without limit, unless enjoined, and 
 hence affords an opportunity for the gratification of malice and op- 
 pression, and when this is the case an action may be maintained by the 
 injured party for the recovery of damages. In the above case a suit 
 had been brought, and a verdict of not guilty rendered. Another was 
 brought with the same result. A suit for malicious prosecution was 
 then brought and sustained. The case stands upon a clear exception 
 to the general rule. No ground for an exception appears in this case. 
 Had a receiver been appointed and possession taken of the defendant's 
 property, a different case would have been presented. Affirmed.* 
 
 *"The broad canon is true that in the present day and according to our 
 present law the bringing of an ordinary action, however maliciously and how- 
 ever great the want of reasonable and probable cause, will not support a sub- 
 setpieut action for malicious prosecution. * * * The counsel for the plain- 
 tiff have argued this case with great ability, but they cannot point to a sin- 
 gle instance since Westminster Hall began to be the seat of justice in which 
 an ordinary action similar to the actions of the present day has been conclud- 
 ed to justify a subsequent action on the ground that it was brought mali- 
 ciously and without reasonable and probable cause." Bowen, L. J., in Quartz 
 Hill Mining Co. v. Eyre (18S3) 11 Q. B. D. 674, 690. 
 
 In most American states, however, the trend of authority is now the other 
 way. In 1882, Prof. Lawson, reviewing all the American cases upon the point, 
 reached the conclusion that the weight of authority appears to be against the 
 right of action for an unfounded malicious prosecution of an ordinary civil 
 suit. 21 American Law Reg. yU8. In 1906 Mr. Lewis, editing Cooley on 
 Torts, found that the preponderance of authority had shifted since the previ- 
 ous edition of this work and was now in favor of permitting the action. In 
 1907 Judge Jaggard was able to state without question "that the prevailing 
 rule in America is that the action may lie, although the, original proceeding 
 was begun by a civil summons only and the party seeking the recovery was 
 not arrested and his property \\~as not seized, and he suffered no peculiar in- 
 jury, but only when the want of pn)lial)ie cause is very palpable." See 20 
 Cyc. IG, and cases there cited in notes 91-93.
 
 1196 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 (BJ Excusable Prosecution 
 WALTER V. SAMPLE. 
 
 (Supreme Court of Pennsylvania, 1855. 25 Pa. 275.) 
 
 Error to the District Court of Allegheny county. 
 
 This was an action on the case for malicious prosecution. Upon 
 the trial of the cause, defendant's counsel, called Jacob Whitesell, Esq., 
 a member of the bar, who testified as follows : 
 
 "Mr. Sample stated to me the facts of the case, and I advised him to go 
 before the Mayor and make information, and have the parties arrested and 
 examined. He acted under my advice, so far as arresting the boys, and 
 having an investigation of the matter, and the trial in Court." 
 
 The Court instructed the jury, inter alia, as folhnvs: 
 
 "The opinion of private counsel cannot amount to proof of prob- 
 able cause, unless the facts clearly warrant it, and were correctly 
 stated." 
 
 Assignment of error : The Court erred in instructing the jury 
 that "the opinion of private counsel cannot amount to proof of prob- 
 able cause, unless the facts clearly warrant it, and were correctly 
 stated." 
 
 Woodward, J. This was an action on the case for malicious pros- 
 ecution, and the only question presented by the record is, whether the 
 Court were right in instructing the jury that "the opinion of private 
 counsel cannot amount to proof of probable cause, unless the facts 
 clearly warrant it, and were correctly stated." Ever since the case of 
 Farmer v. Darling, 4 Burr. 1971, it has been held that malice, either 
 express or implied, and the want of probable cause, must both concur 
 to support actions of this nature. The presumption of law is that 
 every public prosecution is founded in probable cause, and the burden 
 is, therefore, in the first instance, on the plaintiff; but when he has 
 submitted evidence of want of probable cause, or of circumstances 
 from which a violent presumption would arise that it was wanting, 
 the burden of proof is shifted on to the defendant, and then it is 
 competent for him to show that he acted under professional advice. 
 To make this defence available, he must show that he submitted all 
 the facts which he knew were capable of proof fairly to his counsel, 
 and that he acted bona fide on the advice given. This proved, he 
 negatives, if not the malice, the want of probable cause. * * * 
 
 The opinion of Judge Rogers, at Nisi Prius, in the case of Le Mais- 
 tre V. Hunter, Brightly, N. P. 498, which seems to have been the 
 authority followed by the Court below, is not, when taken altogether, 
 in conflict with the current of authorities. The facts are not given
 
 Ch. 2) TORTS THROUGH MALICE 1197 
 
 in reference to which he charged the jury in this language: "In con- 
 formity to a point put by counsel for the plaintiif, I instruct you that 
 the opinion of private counsel of a prosecution cannot amount to 
 proof of probable cause, nor prevent a recovery, unless the facts clear- 
 ly warrant it, and are correctly stated. Even the application to coun- 
 sel, and their opinion, in order to be available in the establishment of 
 probable cause, must not be resorted to as a mere cover for the pros- 
 ecution, but must be the result of an honest and fair purpose ; and 
 the statement made at the time, must be fair and full and consistent 
 with that purpose." 
 
 This is no more than a statement of the general rule with its neces- 
 sary qualifications. Nevertheless, the w^ords, "unless the facts clearly 
 warrant it," found both in Judge Rogers' opinion, and that under 
 review, are ill chosen, because liable to misapplication. "Unless the 
 facts clearly warrant" what? The opinion of counsel, or the pros- 
 ecution? Whichever be the antecedent intended, it is apparent that 
 these words would make the defence depend for its value wholly on 
 the soundness of the legal opinion. If the facts must clearly w^arrant 
 the legal opinion, that, to be a defence, must be the very judgment 
 of the law on the facts ; if they must clearly warrant the prosecution 
 then the defence is complete without the professional opinion; and 
 thus, either way, it goes for nothing. No matter how candidly and 
 faithfully a prosecutor has submitted the facts to his legal adviser and 
 followed his advice, if they turn out insufficient for the support of 
 the prosecution, he is liable in an action for malicious prosecution. 
 On this principle every acquittal of a defendant would be followed 
 by such an action. A qualification of the rule in terms like these, de- 
 stroys the rule itself. 
 
 The law is not so. Professors of the law are the proper advisers of 
 men in doubtful circumstances, and their advice, when fairly obtained, 
 exempts the party w^ho acts upon it from the imputation of proceed- 
 ing maliciously and without probable cause. It may be erroneous, 
 but the client is not responsible for the error. He is not the insurer 
 of his law^yer. Whether the facts amount to probable cause, is the 
 very question submitted to counsel in such cases ; and when the client 
 is instructed that they do, he has taken all the precaution demanded 
 of a good citizen. 
 
 To manifest the good faith of the party, it is important that he 
 should resort to a professional adviser of competency and integrity. 
 He is not, in the language of Judge Rogers, to make such a resort "a 
 mere cover for the prosecution" ; but when he has done his whole 
 duty in the premises, he is not to be made liable, because the facts 
 did not clearly w^arrant the advice and prosecution. The testimony 
 here was, that Sample stated the facts of the case, and there is no 
 suggestion on the record that they were not fairly stated. Suppres- 
 sion, evasion, or falsehood, would make him liable; but if fairly sub-
 
 1198 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 mitted, and if the advice obtained was followed in good faith, he had 
 a defence to the action, and the Court should have given him the ben- 
 efit of it. 
 
 The judgment is reversed and a venire de novo awarded.' 
 
 RAVENGA v. MACKINTOSH. 
 (Court of King's Bench, 1824. 2 Barn. & C. 693, 107 Reprint, 541, 26 R. R. 521.) 
 
 This was an action for malicious arrest. Plea, not guilty. The 
 jury found a verdict for the plaintiff with £250 damages. The Attor- 
 ney-General moved for a new trial.* 
 
 BaylEy, J. I have no doubt that in this case there was a want of 
 probable cause. I accede to the proposition, that if a party lays all 
 the facts of his case fairly before counsel, and acts bona fide upon the 
 opinion given by that counsel (however erroneous that opinion may 
 be), he is not liable to an action of this description. A party, how- 
 ever, may take the opinions of six different persons, of which three 
 are one way and three another. It is therefore a question for the 
 jury, whether he acted bona fide on the opinion, believing that he had 
 a cause of action. The jury in this case have found, and there was 
 abundant evidence to justify them in drawing the conclusion, that the 
 defendant did not act bona fide, and that he did not believe that he 
 had any cause of action whatever. Assuming that the defendant's 
 belief that he had a cause of action would amount to a probable cause, 
 still, after the jury have found that he did not believe that he had 
 any cause of action whatever, the judge would have been bound to 
 say, that he had not reasonable or probable cause of action. 
 
 Rule refused. 
 
 MACK V. SHARP. 
 
 (Supreme Court of Michigan, 1904. 138 Mich. 448, 101 N, W. 631, 
 
 5 Ann. Cas. 109.) 
 
 This is an action for malicious prosecution. The plaintiff, at the 
 instance of the defendant, was arrested upon a charge of criminal 
 libel. He was acquitted, brought this action, and recovered judg- 
 ment for substantial damages. The defendant brings error. 
 
 Montgomery, j. * * * Xhe court also ruled throughout the 
 case that in this action the defendant was not at liberty to prove that 
 the plaintiff was in fact guilty of the criminal offense imputed to him 
 in the prosecution instituted by the defendant. It is well established 
 
 3 i'art of the opinion is omitted. 
 
 * The statement of facts is abridged, and the opinion of Holroyd, J., is 
 omitted.
 
 Ch. 2) TORTS THROUGH MALICE 1199 
 
 by authority that in an action for malicious prosecution it is com- 
 plete defense to show that the plaintiff was in fact guilty of the offense 
 charged against him by defendant, and this though the proof of guilt 
 is furnished by evidence not known to defendant when the prosecu- 
 tion against the plaintiff was instituted. This testimony is not in such 
 case offered in support of probable cause, but to show that the plaintiff 
 has suffered no wrong by his arrest. The law considers that if a crim- 
 inal is fortunate enough to escape conviction, he should rest content 
 with his good luck, and not belabor one who suspected his guilt and 
 acted accordingly. As it was said in Newton v. Weaver, 13 R. I. 617: 
 "The action for malicious prosecution was designed for the benefit of 
 the innocent, and not of the guilty. It matters not whether there was 
 proper cause for the prosecution, or how malicious may have been the 
 motives of the prosecutor, if the accused is guilty he has no legal 
 cause of complaint." See, also, Threefoot v. Nuckols, 68 Miss. 123, 8 
 South. 335; Whitehurst v. ^^'ard, 12 Ala. 264; Parkhurst v. Mastel- 
 lar, 57 Iowa, 478, 10 N. W. 864; Turner v. Dinnegar, 20 Hun (N. Y.) 
 467 ; Lancaster v. McKay, 103 Ky. 616, 45 S. W. 887. 
 
 Inasmuch as it is essential to the plaintiff's action to show a termina- 
 tion of the criminal action as a basis for his suit for malicious pros- 
 ecution, it is competent to establish this fact by the verdict of acquittal. 
 Black on Judgments, § 529. But it is not conclusive evidence of the 
 plaintift''s innocence. Id. 
 
 Plaintiff's counsel cite the case of Josselyn v. McAllister, 25 Mich. 
 45, as sustaining the ruling of the circuit judge. It does not appear 
 that the precise question of whether the actual guilt of the plaintiff 
 could be given in evidence as a defense was discussed in that case. 
 It is true that testimony which might have amounted to an admission 
 of one element of the offense was held properly excluded on the 
 ground that defendant was not shown to have knowledge of the fact 
 when the prosecution was instituted by him. It was said that, "if 
 Josselyn acted without any knowledge or suspicion of the supposed 
 fact, it could in no way affect his m.otives" — a proposition obvious 
 enough in itself, and quite conclusive as to the admissibility of the 
 proposed testimony in that case, for the opinion shows there were 
 joined in that action counts for malicious prosecution and false im- 
 prisonment, and by reference to the report of the case at a former 
 hearing (22 Mich. 304) it will be seen that the counts for malicious 
 prosecution were disposed of on the first trial at the circuit, so that 
 in the first opinion it was very pertinently said, "As no state of facts 
 relied upon would have made the arrests lawful, the defense depends, 
 so far as this class of testimony is concerned, purely on the con- 
 sideration of malice." The case of Patterson v. Garlock, 39 Mich. 
 447, also cited, does not sustain the ruling below. Indeed, some of the 
 language employed by Mr. Justice Graves makes strongly for what 
 we hold to be the correct rule. In that case testimony offered by the 
 plaintiff to establish his innocence was received. The court held
 
 1200 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 that, while it was not bound to make affirmative proof of his actual in- 
 nocence, yet such testimony was admissible. Mr. Justice Graves said : 
 "It requires no reasoning to show that, where the question is whether 
 one man has fair ground to charge another with a crime, it cannot be 
 laid down that the abstract fact of his guilt or innocence must be 
 necessarily impertinent and immaterial." 
 
 There was error in the court's ruling. * * * 'pj^g judgment is 
 reversed and a new trial ordered.^ 
 
 II. Malicious Abuse of* Proce;ss 
 WATERER V. FREEMAN. 
 
 (Court of King's Bench, 1617-1619. Hobart, 266a, 80 Reprint, 412.) 
 
 The case of Waterer v. Freeman, supra, was this term judged for 
 the plaintiff, and the rest of the judges desired me to deliver the judg- 
 ment and reason. * * * 
 
 But now to the main point, we hold, that if a man bring an action 
 
 upon a false surmise in a proper Court, he cannot bring an action 
 
 against him and charge him with it as a fault directly, and ex diametro, 
 
 as if the suit itself were a wrongful act, for executio juris non habet 
 
 injuriam. And as all by nature is good, so Saint Paul saith, the law 
 
 is good if a man use it lawfully; so the abuse of law is the fault. 
 * * * 
 
 Now to the principal case, if a man sue me in a proper Court, yet 
 if his suit be utterly without ground of truth, and that certainly known 
 to himself, I may have an action of the case against him for the undue 
 vexation and damage that he putteth me unto by his ill practice, 
 though the suit itself be legal, and I cannot complain of it, as it is 
 a suit, as in the case before; and therefore the 16 of E. 3, Fitz. De- 
 ceipt, 35, a conusee of a statute sued execution against his deed of 
 defeasance, whereupon the conusor had an action of deceit against 
 him and his assign, in the nature of an audita querela. So note tha 
 distinction upon this case, and 43 E. 3, before. If a man sue me, and 
 hanging that suit commence another against me, to this I have a plea 
 in abatement, which proves this latter suit unjust and vexatious : but 
 if he discontinue the former he may bring a new action. Likewise I 
 hold, that I may have an action upon the case against him that sues 
 me against his release, or after the money duly paid ; yea, though it be 
 upon a single obligation. So where one doth bargain and sell his 
 land at the common law, and refuse to make assurance accordingly, 
 and after conveyeth the land to another, who hath knowledge of the 
 first bargain, the first bargainee may have an action upon the case, or 
 
 6 I'arts of the opiuiou are omitted.
 
 Ch. 2) TORTS THROUGH MALICE 1201 
 
 deceit as well as subpoena, whereupon Fairfax, 21 E. 4, 23, saith well, 
 that if men will be good pleaders, there should not be cause of so many 
 suits in Chancery. * * * s 
 
 GRAIXGER V. HILL et al. 
 
 (Court of Common Pleas, 1S3S. 4 Bing. N. C. 212, 132 Reprint, 769.) 
 
 In September, 1836, the plaintiff, by deed, mortgaged to the defend- 
 ants for £80 a vessel of which he was owner as well as captain : the 
 money was to be repaid in September, 1837; and the plaintiff was to 
 retain the register of the vessel in order to pursue his voyages. 
 
 In November, 1836, the defendants, under some apprehension as to 
 the sufficiency of their security, resolved to possess themselves of the 
 ship's register, and for this purpose, after threatening to arrest the 
 plaintiff unless he repaid the money lent, they made an affidavit of 
 debt, sued out a capias endorsed for bail in the sum of £95. 17s. 6d. in 
 an action of assumpsit, and sent two sheriff's officers with the writ to 
 the plaintiff', who was lying ill in bed from the effects of a wound. A 
 surgeon present, perceiving he could not be removed, one of the de- 
 fendants said to the sheriff's officers, "Don't take him away ; leave the 
 young man with him." The officers then told the plaintiff that they 
 had not come to take him, but to get the ship's register ; but that if he 
 failed to deliver the register, or to find bail, they must either take him 
 or leave one of the officers with him. 
 
 The plaintiff being unable to procure bail, and being much alarmed, 
 gave up the register. 
 
 The plaintiff could not go to sea without the register, and because 
 of its unlawful detention by the defendant lost four voyages from 
 London to Caen. The plaintiff' afterwards came to an arrangement 
 with the defendants; was discharged from the arrest; paid the costs; 
 repaid the money borrowed on mortgage; and received from the de- 
 fendants a release of the mortgage deed. No further steps were taken 
 in the action of assumpsit. 
 
 On these facts, a special action on the case was brought to recover 
 the damage which the plaintiff had sustained from the defendants' 
 wrongful acts. On the general issue there was a verdict for the 
 plaintiff. 
 
 Taddy, S'erjt., pursuant to leave, moved to enter a non suit on the 
 ground, inter alia, that there was no proof of the defendants' action in 
 assumpsit having been determined previously to the commencement of 
 the present action, and without such proof the action will not lie. 
 
 Park, j, * * * f ^g argument as to the omission to prove the 
 termination of the defendant's suit, and to allege want of reasonable 
 
 e Farts of the opinion are omitted. 
 Hej>b.Tobts — 76
 
 1202 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 and probable cause for it, has proceeded on a supposed analogy be- 
 tween the present case and an action for a malicious arrest. But this 
 is a case primse impressionis, in which the defendants are charged 
 with having abused the process of the law, in order to obtain property 
 to which they had no colour of title ; and, if an action on the case be 
 the remedy applicable to a new species of injury, the declaration and 
 proof must be according to the particular circumstances. I admit the 
 authority of the cases which have been cited, but they do not apply to 
 the present. * * * 'f 
 Discharged. 
 
 MALONE V. BELCHER. 
 
 (Supreme Judicial Court of Massachusetts, 191.3. 216 Mass. 209, 103 N. E. 637, 
 49 L. R. A. [N. S.] 753, Ann. Cas. 1915A, 830.) 
 
 Action for malicious prosecution. Verdict for plaintiff. Both par- 
 ties bring exceptions. 
 
 Morton, J. This is an action of tort to recover of the defendant 
 damages for a malicious abuse of process in causing property which 
 the plaintiff had bargained to sell to one Petersen to be maliciously 
 attached for the purpose of preventing said sale and compelling the 
 plaintiff to convey the same to the defendant or to such person or per- 
 sons as he might designate. There was a verdict for the plaintiff with 
 the amount of which he is dissatisfied. The case is here on excep- 
 tions by both parties to the refusal of the presiding judge to give cer- 
 tain rulings asked for — those requested by the plaintiff going to the 
 measure of damages, and those requested by the defendant to the 
 maintenance of the action. There is also an exception by the defend- 
 ant to the charge. 
 
 There was evidence tending to show that while the suit was brought 
 by the defendant and the attachment made for the ostensible purpose 
 of collecting a commission which he claimed to be due him from the 
 plaintiff, the real object was by means of the suit and attachment to 
 prevent the conveyance of the property to Petersen and to secure it 
 for himself. The plaintiff testified amongst other things that the de- 
 fendant said: "'I am going to attach it' [meaning the property which 
 the plaintiff had agreed to sell to Petersen] . I said, 'What right do 
 you claim, Mr. Belcher, to attach it?' He said, T want to hold up the 
 sale; that is the only way I can hold it up.' " The plaintiff also testified 
 that in answer to his question, "Who is your customer," the defendant 
 replied, "It was myself, Mr. Malone." This and other evidence intro- 
 duced by the plaintiff warranted, if believed, a finding that the real 
 object of the suit and attachment was not that for which the suit pur- 
 
 7 Tlie statement of facts is ahridsed, and the concurriiiir opinion of Tindal, 
 C .J., parts of the opinion of I'arlv, J., and all of the opinions of Vaughan 
 and liosanquet, JJ., are omitted.
 
 Ch. 2) TORTS THROUGH MALICE 1203 
 
 ported to have been brought and the attachment made, but was for the 
 purpose of preventing the transfer of the property to Petersen and 
 getting it, if the defendant could, for himself. This would constitute 
 a malicious abuse of process for which the defendant would be liable. 
 The gravamen of the cause of action was the malicious attachment by 
 means of the suit for the purpose of preventing the transfer to Peter- 
 sen. It was not necessary in order to maintain the action to show a 
 termination of the suit in which the attachment was made, as it would 
 have been in case of malicious prosecution. The attachment for the 
 purpose of preventing the sale to Petersen was a perversion of the 
 object which the writ was intended by law to effect, and it was there- 
 fore immaterial whether the suit in which the attachment was made 
 had been terminated or not. But as to malice and want of probable 
 cause the case stood differently. The defendant had the right, even 
 though actuated by malicious motives, to attach the property to secure 
 a claim which he had probable cause for believing was due to him from 
 the defendant. In these respects the case was analogous to a case for 
 malicious prosecution, and it was necessary, as the court instructed the 
 jury, for the plaintiff to show malice and want of probable cause. 
 
 * ^ ;<: 8 
 
 III. Malicious Falst^hood 
 
 SHEPPARD V. WAKEMAN. 
 (Court of King's Bench, 1661. 1 Lev. 53, 83 Reprint, 293.) 
 
 Case, where the Plaintiff was to be married to such a one who in- 
 tended to take her to his Wife; the Defendant falsely and maliciously 
 to hinder the Marriage, writ a letter to the said Person, That the 
 Plaintiff was contracted to him, whereby she lost her Marriage. After 
 Verdict for the Plaintiff, 'twas moved. That the Action did not lie, 
 the Defendant claiming Title to her himself, like as Gerrard's Case, 
 4 Co. for Slander of Title. But after divers Motions, the Plaintiff 
 had Judgment, for it is found to be malicious and false; and if such 
 an Action should not lie, a mean and base Person might injure any 
 Person of Honour and Fortune by such a Pretence. 
 
 8 Morton, J., here cited the following authorities: Savage v. Brewer (1835) 
 16 Pick. 453, 28 Am. Dec. 2.55; Wood v. Graves (1887) 144 Mass. 365, 11 
 N. E. 567, 59 Am. Rep. 95; Zinn v. Rice (1891) 154 ]Mass. 1, 27 N. E. 772, 
 12 L. R. A. 288; White v. Apsley Rubber Co. (1902) ]S1 :Mass. 339, 63 N. E. 
 885; Grainger v. Hill (1838) 4 Bing. N. C. 212; Ileam v. Shaw (1881) 72 
 Me. 187; Mayer v. Walter (1870) 64 Pa. 283; Drake on Attachments (2d 
 Kd.) § 726 ; 19 Am. & Eng. Encyc. of Law (2d Ed.) 632 ; Bigelow on Torts 
 (8th Ed.) 230 ; 3 Ann. Cas. 722, note.
 
 1204 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 SIR G. GERARD v. DICKENSON. 
 
 (Court of King's Bench, 1590. 4 Co. Rep. ISa, 76 Reprint, 903.) 
 
 The plaintiff declared that he was seised of the manor and castle of 
 H. in the county of Staft'ord in fee by purchase from George Lord 
 Audley; and that he was in communication to demise the said castle 
 and manor to Ralph Egerton for twenty-two years for two hundred 
 pounds fine, and one hundred pounds rent per annum, and that the 
 defendant (prasmissorum non ignara) sai3, "I have a lease of the man- 
 or and castle of H. for ninety years ;" and then and there shewed and 
 published a demise supposed to be made by George Audley, grand- 
 father to the said George Lord Audley, for ninety years, to Edward 
 Dickenson, her husband, and published the said demise as a true and 
 good lease; and so affirmed it, and offered to sell it; ubi revera the 
 said lease was counterfeited by her husband, and that the defendant 
 knew, it to be counterfeited ; by reason of which words and publication 
 the said Ralph Egerton did not proceed to accept the said lease, to 
 damage, &c. The defendant pleaded in bar, quod talis indentura 
 (qualis in the declaration is alleged) came to the defendant's hands by 
 trover, and traversed that she knew of the forgery, upon which the 
 plaintiff demurred in law. And in this case three points were resolved : 
 1st. If the defendant had affirmed and published, that the plaintiff' 
 had no right to the castle and manor of H., but that she herself had 
 right to them, in that case, because the defendant herself pretends 
 right to them, although in truth she had none, yet no action lies. For 
 if an action should lie when the defendant herself claims an interest, 
 how can any make claim or title to any land, or begin any suit, or 
 seek advice and counsel, but he should be subject to an action? which 
 would be inconvenient. Which resolution agrees with the opinion in 
 Banister's case before, no action upon the case lies against one who 
 publishes another to be his villein without saying that he lies in wait 
 to imprison him, et tales et tantas minas in ipsum fecit, quod circa nego- 
 tia sua palam intendere non audebat. And therefore it was resolved, 
 that for the said words, "I have a lease of the manor of H. for ninety 
 years," although it is false, yet no action lies for slandering of his title 
 or interest in the said castle and manor. And although it appears by 
 the defendant's bar, that she has no title or interest in the said 
 lease, but is a stranger to it ; yet forasmuch as the matter 
 alleged in the declaration doth not maintain the action, the bar 
 will not make it good. 2. It was resolved that there was other mat- 
 ter in the declaration sufficient to maintain the action, and that was be- 
 cause it was alleged in the declaration that the defendant knew of the 
 communication of the making of the said lease to Ralph Egerton, and 
 also that she knew that the lease was forged and counterfeited, and 
 yet (against her own knowledge) she has affirmed and published, that it 
 was a good and true lease, by which the plaintiff was defeated of his
 
 Ch. 2) TORTS THROUGH MALICE 1205 
 
 bargain. If a man forges a bond in my name, and puts it in suit against 
 me, by which I am vexed and damnified, I shall have an action on the 
 case. B. offered eight oxen to sell to A. as his proper goods, knowing 
 them to be the proper goods of P. A. trusting in the fidelity of B. 
 bought them for eight pounds, and afterwards P. retook the oxen; in 
 that case A. shall have an action upon the case against B. * * * ^ 
 
 HATCHARD v. MEGE et al. 
 
 (Queen's Bench Division, 1SS7. 18 Q. B. Div. 771.) 
 
 The statement of claim, so far as material to the point decided, was 
 as follows : 
 
 Paragraph 1 alleged that the plaintiff was a wine merchant and importer, 
 and the registered proprietor of a trade-mark thereinafter described, and 
 a dealer in a brand of champagne introduced by him and known as "the 
 Delmonico" champagne. 
 
 Paragraph 4 alleged that the defendants wrote and published "of and 
 concerning the plaintiff and his said trade as a wine mei-chant and imjwrter 
 the following false and malicious libel that is to say: "Caution: Delmonico 
 Champagne. Messrs. Delbeck & Co., finding that wine stated to be Delmonico 
 Champagne is being advertised for sale in Great Britain, hereby give notice 
 that such wine cannot be the wine it is represented to lie, as no champagne 
 shipped under that name can be genuine unless it has their names on their 
 labels. Messrs. Delbeck & Co. further give notice that if such wine be shipped 
 from France they will take proceedings to stop such shipments, and such 
 other proceedings in I-^nglaud as they may be advised' — therebj- meaning that 
 the plaintiff had no right to use his said registered trade-mark or brand for 
 champagne imported or sold by him, and that in using such trade-mark or 
 brand he was acting frauduleutlj", and endeavoring to pass oft' inferior 
 champagne as being of the manufacture of Messrs. Delbeck & Co., and that 
 the champagne imported and sold by the plaintiff was not genuine wine, and 
 that no person other than the defendants had the right to use the word 'Del- 
 monico' as a trade-mark or brand, or part of a trade-mark or brand, of cham- 
 pagne in the United Kingdom. 
 
 ■"5. In consefiuence of the publication of the libel aforesaid, the plaintiff 
 has been greatly injured in his credit and reputation, and in his said trade 
 and business of a wine merchant and importer and dealer in champagne. 
 
 '•The plaintiff claims: 
 
 "(3) £1000 damages in respect of the publication of the said libel. 
 
 "(4) An injunction restraining the defendants, their servants or agents, 
 from continuing tlie publicatiun of the said libel or any other advertisement 
 or notice to a similar effect." 
 
 At the trial Lord Coleridge, C. J., after hearing the opening state- 
 ment of counsel for the plaintiff, directed a nonsuit to be entered, on 
 
 9 The third point is omitted. 
 
 Accord: Smith v. Si)ooner (1810) P, Taunt. 24G : D. had leased certain prem- 
 ises for 31 years. The tenant. P., was about to sell at auction a 24 year 
 remainder of the time. D., tliinking that be had a right to recover possession 
 of the term for some misconduct of the tenant, went to the auction and told 
 the auctioneei- that he, D., was the owner and that P. could not make title 
 to the time. And see the remark of Lawrence, J. (Id. I'.i.jt: "'An action (upon 
 the case for slander of title) can only be maintained when the words are 
 spoken maliciously. It is not necessary to plead specially ; it is for the 
 plaintiff' to prove malice, which is the gist of the action and is a part of 
 the declaration important to he proved by the plaintiff"."
 
 1206 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 the ground that the action came to an end on the death of the orig- 
 inal plaintiff. 
 
 Day, J. This is an application to set aside a nonsuit, which was 
 directed by the Lord Chief Justice on the opening statement of coun- 
 sel, and the question is whether the nonsuit was properly entered. 
 
 The statement of claim alleges two distinct grievances. The first 
 claim was for infringement of the plaintiff's trade-mark, but that was 
 abandoned at the trial. The second claim is contained in paragraph 4, 
 which sets out a distinct cause of action. The publication there set 
 out is complained of as a libel on the plaintiff in relation to his 
 trade. It is substantially a warning not to buy Delmonico champagne 
 because it is not genuine. The statement of claim alleges that the 
 publication is false and malicious ; that would be a question for the 
 jury; it is not for us to consider the facts of the case; we can only 
 look at what was opened by the plaintift''s counsel and what appears on 
 the pleadings. The innuendo charges that the defendants intended to 
 convey the meaning that the plaintiff had no right to use his trade- 
 mark or brand, and that the wine he sold was not genuine. It may 
 be that the publication bears that meaning, and that the words used 
 import dishonesty. The plaintiff has died, and the question to be 
 decided is how much, if any part, of the cause of action survives. 
 The statute 4 Edw. 3, c. 7, and the course of the practice, make it 
 clear that a civil action for libel dies with the death of the person 
 libelled. It does not come within the spirit, and certainly not within 
 the letter of the statute. There is, however, a further question wheth- 
 er a right of action can survive because injury to the plaintift"'s trade- 
 mark is alleged. Injury to trade is constantly alleged in actions for 
 libel, and therefore that does not affect the question of survivorship. 
 In the present case the second part of the statement of claim may be 
 subdivided into two separate and distinct claims. The first is for 
 ordinary defamation, either independently of the plaintiff's trade, 
 affecting his character by charging him with being a dishonest man, 
 or defamation of him in his trade by charging him with being a dis- 
 honest wine-merchant. That claim would not survive, for it is 
 nothing more than a claim in respect of a libel on an individual. But 
 this publication may be construed to mean that the plaintiff had no 
 right to use his trade-mark. This is not properly a libel, but is rather 
 in the nature of slander of title, which is well defined in Odgers on 
 Libel and Slander, c. V, p. 137, in the following passage: "But wholly 
 apart from these cases there is a branch of the law (generally known 
 by the inappropriate but convenient name — slander of title) which 
 permits an action to be brought against any one who maliciously de- 
 cries the plaintiff's goods or some other thing belonging to him, and 
 thereby produces special damage to the plaintiff. This is obviously no 
 ])art of the law of defamation, for the plaintiff's reputation remains 
 uninjured; it is really an action on the case for maliciously acting in 
 such a way as to intiict loss upon the plaintiff. All the preceding
 
 Ch. 2) TORTS THROUGH MALICE 1207 
 
 rules dispensing with proof of malice and special damage are therefore 
 wholly inapplicable to cases of this kind. Here, as in all other actions 
 on the case, there must be et damnum et injuria. The injuria consists 
 in the unlawful words maliciously spoken, and the damnum is the 
 consequent money loss to the plaintiff." 
 
 It appears, therefore, that the first and last parts of the innuendo 
 in the present case suggests slander of title. As appears from the 
 passage I have read, an action for slander of title is not an action for 
 libel, but is rather in the nature of an action on the case for malicious- 
 ly injuring a person in respect of his estate by asserting that he has 
 no title to it. The action dift'ers from an action for libel in this, that 
 malice is not implied from the fact of publication, but must be proved, 
 and that the falsehood of the statement complained of, and the ex- 
 istence of special damage, must also be proved in order to entitle 
 the plaintiff to recover. The question whether the publication is false 
 and malicious is for the jury. Here, I think, special damage is alleged 
 by the statement of claim, and if the plaintiff could have shewn in- 
 jury to the sale of the wine which he sold under his trade-mark, he 
 would have been entitled to recover, and that is a cause of action 
 which survives. 
 
 For these reasons I am of opinion that the nonsuit was right so 
 far as it related to the claim in respect of a personal libel, but was 
 wrong as to the claim in respect of so much of the publication as im- 
 pugned the plaintiff's right to sell under his trade-mark or brand. 
 
 There will, therefore, be an order for a new trial, but it will be lim- 
 ited to this latter part of the claim. ^° 
 
 MELLIN V. WHITE. 
 (Court of Appeal. [1S94] 3 Ch. 276.) 
 
 The plaintiff was the manufacturer and proprietor of the food 
 for infants known as "Mellin's Infants' Food." This food was sold 
 wholesale by the plaintiff in bottles, which v/ere inclosed in paper 
 wrappers, bearing thereon the words "Mellin's Infants' Food" and 
 the plaintiff's trade-mark. 
 
 The defendant was a chemist at Portsmouth, and the plaintiff" had 
 for some years been in the habit of supplying him with Mellin's 
 Food. In 1893 the plaintiff' discovered that the defendant had adopted 
 the practice of affixing to the wrappers of the bottles of the plain- 
 tiff's food which he sold, a label in the following terms : 
 
 "Notice. 
 "The public are recommended to try Dr. Vance's Prepared Food for Infants 
 and Invalids, it being far more nutritious and healthful than any other i)repa- 
 ration vet offered, sold in barrels, containin;; 1 lb. net \veii,'ht, at TV-j d. each ; 
 or in 7' lb. packets, '.is. 9d. each. Local agent, Timothy White, chemist. Torts- 
 mouth." 
 
 10 The statement of facts is abridged and opinion of Wills, J., is omitted.
 
 1208 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 The defendant was, in fact, the proprietor of Dr. Vance's Prepared 
 Food. 
 
 The plaintiff, by his statement of claim, alleged that Dr. Vance's 
 food was far inferior to the plaintiff's in nutritiveness and health- 
 fulness for infants and invalids, and that the statement on the label 
 to the contrary was untrue, and was made for the purpose and with 
 the object of depreciating the plaintiff's food, and of inducing per- 
 sons in the habit of purchasing and using it to believe that it was 
 an inferior article, and to purchase Dr. Vance's food instead. The 
 plaintiff further alleged that the statement on the label that the de- 
 fendant was "an agent" was untrue; and the plaintiff claimed an 
 injunction to restrain the defendant from offering the plaintiff's food 
 for sale otherwise than under the original labels and wrappers, or 
 offering it for sale, under the plaintift"'s labels and wrappers, with 
 any unauthorized variations, and from untruly stating or representing 
 to persons purchasing, or about to purchase, the plaintiff's food, or 
 to the public generally, that the plaintiff's food was not nutritious or 
 healthful, or that the plaintiff's food was less nutritious or healthful 
 than Dr. Vance's. 
 
 JMoulton, Q. C, and A. B. Terrell, for the appeal: The putting 
 this label on Mellin's bottles is a step calculated to injure the sale of 
 Mellin's Food. It is a trade libel, being an untrue statement made 
 to purchasers of Mellin's Food that it is inferior to Dr. Vance's. 
 
 Neville, Q. C, and Macnaghten, for the defendant : There is no 
 difference of substance between this case and the ordinary case of 
 a tradesman publishing a puff saying that his goods are the best of 
 their kind in the market. Suppose a bootmaker were to advertise 
 that his were the best boots in the market, could a bootmaker next 
 door bring an action, on the ground that the advertiser was stigmatiz- 
 ing the neighbour's goods as inferior to his? This is that case. 
 
 Lindle;y, L. J. I think in this case the learned judge has gone 
 too far in giving judgment for the defendant upon the materials which 
 were laid before him. He appears to have proceeded on the ground 
 that, even if the plaintift''s evidence stood uncontradicted, this action 
 could not in point of law be sustained. I think that is going too far. 
 The defendant has brought upon himself a new form of attack by 
 adopting a new mode of carrying on business. Nobody in this 
 court, at all events, has ever seen or heard of a tradesman selling goods 
 in the bottles and with the labels used by the manufacturer, and 
 putting on them labels which disparage the article contained in the 
 bottles. It is quite a new idea. I do not say it is illegal. I do not 
 say it is overstepping the mark. But if, upon hearing the whole 
 of the evidence to be adduced, the result should be that the statement 
 contained in the label complained of is a false statement about the 
 plaintiff's goods to the disparagement of them, and if that statement 
 has caused injury to, or is calculated to injure the plaintiff", this action 
 will lie. * * *
 
 Ch. 2) TOUTS THROUGH MALICE 1209 
 
 Lopes, L. J. All I desire to say is, that in my opinion it is action- 
 able to publish maliciously, without lawful occasion, a false state- 
 ment disparaging the goods of another person, and' causing such other 
 person damage, or likely to cause such other person damage. I 
 think, provided that can be made out, an action for an injunction 
 will lie. All these matters as far as we know at the present moment 
 are undecided, they have not been proved, the evidence has only 
 been heard upon one side, and whether or not the statement in the 
 defendant's notice is false we are not in a position to say. Evidence 
 was given on the part of the plaintiff, but no evidence was given oh 
 the part of the defendant. For anything I know, the defendant may 
 be able to shew that the evidence which was given for the plaintiff 
 was incorrect, and that no false statement has been made at 
 all. * * * 
 
 The Court of Appeal, therefore, discharged the judgment of Romer, 
 J., and ordered a new trial. The defendant appealed to the House 
 of Lords.^^ 
 
 WHITE v. MELLIN. 
 
 (House of Lords. [1S95] A. C. 154.) 
 
 Lord Herschell, L. C. (after stating the facts and quoting from 
 the opinions of Lindley and Lopes, L. JJ., in the Court of Appeal). 
 None of the learned judges in the Court of Appeal dealt with the 
 evidence which had been adduced on behalf of the plaintiff; but I 
 think it must be taken that they had arrived at the conclusion that 
 that evidence did bring the case within those statements of the law. 
 Of course, if the plaintiff, on his evidence, had made out no case, 
 he could not complain that the learned judge decided against him and 
 did not hear the witnesses for the defendant; the action was in that 
 case properly dismissed. I take it, therefore, that lalthough the 
 learned judges did not analyse the evidence or make any reference 
 to it, they must have concluded that it established a case coming with- 
 in the law as they laid it down. My Lords, as I understand, in the 
 view of these learned judges, or in the view of Lindley, L. J., to take 
 his statement of the law in the first place, it was necessary in order 
 to the maintenance of the action that three things should be proved : 
 That the defendant had disparaged the plaintiff's goods, that such 
 disparagement was false, and that damage had resulted or was likely 
 to result. Now, my Lords, the only statement made by the defendant 
 by means of the advertisement is this : that \ ance's food was the 
 most healthful and nutritious for infants and invalids that had been 
 offered to the public. The statement was perfectly general, and 
 would apply in its terms not only to the respondent's infants' food 
 
 11 The statement of facts is abridged, and part of the opinions of Lindley, 
 Li. J., aud Lopes, L. J., and the concurring opinion of Kay, L. J., are omitted.
 
 1210 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 but to all Others that were offered to the public. I will take it as 
 sufficiently pointed at the plaintiff's food by reason of its being affixed 
 to a bottle of the plaintiff's food when sold, and that it does disparage 
 the plaintiff's goods by asserting that they are not as healthful and 
 as nutritious as those recommended by the defendant. The question 
 then arises, Has it been proved on the plaintiff's own evidence that 
 that was a false disparagement of the plaintiff's goods? * * * 
 
 I am not satisfied that it has been shewn that by means of this 
 advertisement the defendant falsely disparaged the plaintift''s goods. 
 But, my Lords, assuming that he did so, the Court of Appeal re- 
 garded it as requisite for the maintenance of the action that something 
 further should be proved, and that is that the disparaging statement 
 has caused injury to or is calculated to injure the plaintiff'. Upon 
 that there is a complete absence of evidence. The plaintiff was called, 
 but he did not state that he had sustained any injury, nor did he 
 even say that it was calculated to injure him, and I own it seems to 
 me impossible, in the absence of any such statement or evidence, to 
 say that it is a case in which such must be the necessary consequence ; 
 on the contrary, speaking for myself, I should doubt very much wheth- 
 er it was likely to be the consequence. After all, the advertisement 
 is of a very common description, puffing, it may be, extremely and 
 in an exaggerated fashion, these particular goods, Vance's food. That 
 advertisement was outside the wrapper ; inside was found an ad- 
 vertisement of Mellin's food, in which Mellin's food was stated to 
 be recommended by the faculty as best for infants and invalids. Why 
 is it to be supposed that any one buying this bottle at the chemist's 
 would be led to believe that Mellin's food which he had bought was 
 not a good article or not as good an article as another, merely because 
 a person who obviously was seeking to push a rival article said that 
 his article was better? My Lords, why should people give such a 
 special weight to this anonymous puff of Vance's food, obviously 
 the work of some one who wanted to sell it, as that it should lead 
 him to determine to buy it instead of Mellin's food, which was said 
 to be recommended by the faculty as the best for infants and in- 
 valids? I confess I do not wonder that the plaintiff' did not insist 
 that he had sustained injury by what the defendant had done. There 
 is an entire absence of any evidence that the statement complained 
 of either had injured or was calculated to injure the plaintiff. If 
 so, then the case is not brought even within the definition of the law 
 which Lindley, L. J., gives. 
 
 My Lords, the .learned counsel relied upon recent cases in which 
 an injunction has been granted to restrain the publication of a libel, 
 and he suggested that there had been a growth of equity jurisprud- 
 ence which had brought within its ambit a class of cases which were 
 previously not regarded as within it. But when the case in which 
 the Court of Appeal laid down that an injunction might be granted 
 to restrain the publication of a libel is looked at, it will be seen
 
 Cll. 2) TORTS THROUGH MALICE 1211 
 
 that the decision was not founded upon any principle or rule of equity 
 jurisprudence, but upon the fact that a Court of Common Law could 
 have granted such an injunction in an action of libel, and that since 
 the Judicature Act the power which a Court of Common Law pos- 
 sessed in that respect is now possessed also by the Court of Chancery. 
 That was distinctly the ground upon which the judgment was founded, 
 that "the 79th and 82d sections of the Common Law Procedure Act 
 1854 undoubtedly conferred on the Courts of Common Law the pow- 
 er, if a fit case should arise, to grant injunctions at any stage of a 
 cause in all personal actions of contract or tort, with no limitation 
 as to defamation" ; and then, inasmuch as those powers are now pos- 
 sessed by the Chancery Division, it was held that they likewise could 
 in such cases grant an injunction. That was the decision in Bonnard 
 V, Ferryman, [1891] 2 Ch. 269. 
 
 My Lords, obviously to call for the exercise of that power it would 
 be necessary to shew that there was an actionable wrong well laid, 
 and if the statement only shewed a part of that which was necessary 
 to make up a cause of action — that is to say, if special damage was 
 necessary to the maintenance of the action, and that special damage 
 was not shewn,- — a tort in the eye of the law would not be disclosed, 
 the case would not be within those provisions, and no injunction would 
 be granted. I think, therefore, for these reasons, that the plaintiff 
 would not be entitled to an injunction, any more than he would be 
 entitled to maintain an action unless he established all that was 
 necessary to make out that a tort had been committed; and for the 
 reasons which I have given, taking the Western Counties Manure 
 Company v. Lawes Chemical Manure Company, L. R. 9 Ex. 218, 
 to be good law, he has not brought himself within it. 
 
 But, my Lords, I cannot help saying that I entertain very grave 
 doubts whether any action could be maintained for an alleged dis- 
 paragement of another's goods, merely on the allegation that the 
 goods sold by the party who is alleged to have disparaged his com- 
 petitor's goods are better either generally or in this or that particular 
 respect than his competitors' are. Of course, I put aside the ques- 
 tion (it is not necessary to consider it) whether where a person in- 
 tending to injure another, and not in the exercise of his own trade 
 and vaunting his own goods, has maliciously and falsely disparaged 
 the goods of another, an action will lie; I am dealing with the class 
 of cases which is now before us, where the only disparagement con- 
 sists in vaunting the superiority of the defendant's own goods. In 
 Evans V. Harlow, 5 Q. B. 624, Lord Denman expressed himself 
 thus : "The gist of the complaint is the defendant's telling the world 
 that the lubricators sold by the plaintiff were not good for their pur- 
 pose, but wasted the tallow. A tradesman offering goods for sale 
 exposes himself to observations of this kind, and it is not by averring 
 them to be 'false, scandalous, malicious and defamatory' that the 
 plaintiff can found a charge of libel upon them. To decide so
 
 1212 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 would open a very wide door to litigation, and might expose every 
 man who said his goods were better than another's to the risk of an 
 action." My Lords, those observ^ations seem to me to be replete with 
 good sense. It is to be observed that Evans v. Harlow, 5 6. B. 624, 
 does not appear to have been decided on the ground merely that 
 there was no allegation of special damage. The only judge who al- 
 ludes to the absence of such an allegation is Patteson, J. No refer- 
 ence to it is to be found either in the judgment of Lord Denman or 
 in the judgment of Wightman, J., the other two judges who took part 
 in that decision ; and I think it is impossible not to see that, as Lord 
 Denman says, a very wide door indeed would be opened to litigation, 
 and that the courts might be constantly employed in trying the rel- 
 ative merits of rival productions, if an action of this kind were allowed. 
 
 ]\Ir. Moulton sought to distinguish the present case by saying that 
 all that Lord Denman referred to was one tradesman saying that his 
 goods were better than his rival's. That, he said, is a matter of opin- 
 ion, but whether they are more healthful and more nutritious is a 
 question of fact. My Lords, I do not think it is possible to draw 
 such a distinction. The allegation of a tradesman that his goods are 
 better than his neighbour's very often involves only the consideration 
 whether they possess one or two qualities superior to the other. Of 
 course "better" means better as regard/s tlie purpose icur which they are 
 intended, and the question of better or worse in many cases depends 
 simply upon one or two or three issues of fact. If an action will 
 not lie because a man says that his goods are better than his neigh- 
 bour's, it seems to me impossible to say that it will lie because he 
 says that they are better in this or that or the other respect. Just 
 consider what a door would be opened if this were permitted. That 
 this sort of puffing advertisement is in use is notorious; and we see 
 rival cures advertised for particular ailments. The Court would then 
 be bound to inquire, in an action brought, whether this ointment or 
 this pill better cured the disease which it was alleged to cure — 
 whether a particular article of food was in this respect or that bet- 
 ter than another. Indeed, the Courts of law would be turned into 
 a machinery for advertising rival productions by obtaining a judicial 
 determination which of the two was the better. As I said, adver- 
 tisements and announcements of that description have been common 
 enough; but the case of Evans v. Harlow, 5 Q, B. 624, was decided 
 in the year 1844, somewhat over half a century ago, and the fact 
 that no such action — unless it be Western Counties ]\Ianure Co. v. 
 Lawes Chemical Manure Co., L. R. 9 Ex. 218, has ever been main- 
 tained in the Courts of Justice is very strong indeed to shew that it 
 is not maintainable. It is, indeed, unnecessary to decide the point 
 in order to dispose of the present appeal. 
 
 For the reasons which I have given I have come to the conclusion 
 that the judgment of the Court below cannot be sustained, even as- 
 suming the law to be as stated by the learned judges; but inasmuch
 
 Ch. 2) TORTS THROUGH MALICE 1213 
 
 as the case is one of great importance and some additional colour 
 would be lent to the idea that an action of this description was main- 
 tainable by the observations in the Court below, I have thought it only 
 right to express my grave doubts whether any such action could be 
 maintained even if the facts brought the case within the law there 
 laid down. 
 
 Upon the whole, therefore, I think that the judgment of Romer, 
 J., was right and ought to be restored and that this appeal should be 
 allowed, with the usual result as to costs; and I so move your Lord- 
 ships.^* 
 
 IV. DEcr;iT 
 
 CHANDELOR v. LOPUS. 
 (In the Exchequer Chamber, 1603. Cro. Jac. 4, 79 Reprint, ?,.) 
 
 Action upon the case. Whereas the defendant being a goldsmith, 
 and having skill in jewels and precious stones, had a stone which he 
 affirmed to Lopus to be a bezar-stone, and sold it to him for one 
 hundred pounds ; ubi revera it was not a bezar-stone : the defendant 
 pleaded not guilty, and verdict was given and judgment entered for 
 the plaintiff in the King's Bench. 
 
 But error was thereof brought in the Exchequer Chamber ; be- 
 cause the declaration contains not matter sufficient to charge the de- 
 fendant, viz. that he warranted it to be a bezar-stone, or that he 
 knew that it was not a bezar-stone ; for it may be, he himself was 
 ignorant whether it were a bezar-stone or not. 
 
 And all the Justices and Barons (except Andi;rson) held, that for 
 this cause it was error : for the bare affirmation that it was a bezar- 
 stone, without warranting it to be so, is no cause of action : and 
 although he knew it to be no bezar-stone it is not material ; for every 
 one in selling his wares will affirm that his wares are good, or the 
 horse which he sells is sound ; yet if he does not warrant them to be 
 so, it is no cause of action, and the warranty ought to be made at 
 the same time of the sale ; as F. N. B. 94, c, and 98, b ; 5 Hen. 7, 
 pi. 41; 9 Hen. 6, pi. 53; 12 Hen. 4, pi. 1, 42 Ass. 8; 7 Hen. 4, 
 pi. 15. Wherefore, forasmuch as no warrant is alleged, they held the 
 declaration to be ill. 
 
 Anderson to the contrary; for the deceit in selling it for a bezar, 
 whereas it was not so, is cause of action. 
 
 But, notwithstanding, it was adjudged to be no cause, and the judg- 
 ment reversed. ^^ 
 
 12 i'art of the Tx)rd Chancellor's opinion, and the concurring opinions of 
 Lords Watson, Macuaghten, Morris, and Shand, are omitted. Lord Ashbourne 
 concurred in the judgment proposed. 
 
 13 See the note to 1 Dyer, 752 (73 Reprint, 160, 161): "F.opus brought au 
 action upon the case against Chandler, and showed, that whereas the de-
 
 1214 TORTS THROUGH ACTS OP CONDITIONAL LIABILITY (Part 3 
 
 BAILY V. ]\IERRELL. 
 
 (Court of King's Bench, 1615. 3 Buist. 94, 81 Reprint, 81.) 
 
 In a special action upon the case for a deceit, the case appears to be 
 this : The plaintiff being a common carrier, using to carry wares out 
 of Essex into Northamptonshire; the defendant having a cade of 
 woad to be carried, came unto the plaintiff', and bargained with him 
 for the carriage of this, and by agreement, he was to give him 2s. for 
 every hundred weight of this, and being demanded by the plaintiff', 
 how many hundred weight this did contain, he said it was about 800 
 weight ; upon this, he giving credit unto him, did cause this to be put 
 into his cart, and he afterwards perceiving by the hardness of the 
 draught, that his horses did overdraw themselves, and by reason of 
 this carriage he did kill two of his horses, and then he did presently 
 weigh the same, and found the same to be 2,000 pound weight, and so 
 for this his deceit used, by reason of which he was so much damnified ; 
 for his remedy herein, he brought this action, to which the defendant 
 pleaded non culp. All this matter appearing so to the jury upon the 
 trial, and the loss of his horses, they gave a verdict for the plaintiff, 
 and 20 marks damages. 
 
 DoDDERiDGE), J. Here is a plain default in the carrier, that he did 
 not weigh this ; if he had carried this home for him, he would then 
 have had for it according to the weight of it, after the rate of 2s. a 
 hundred weight, as they agreed for, and that there it ought to be ■• 
 weighed ; he himself at his peril ought to have looked unto this before, 'r 
 
 ToTA Curia (absent Coke, Chief Justice) that the action by the 
 plaintiff lieth not, because the default was in himself, that he had not 
 weighed this. 
 
 By the rule of the Court, this matter to stay till the plaintiff move 
 the same again, and no judgment pronounced one way or other; but 
 the plaintiff perceiving the opinion of the Court to be against him, 
 never moved the Court again herein.* 
 
 fendant was a goldsmith, and skilled in the nature of precious stones, and 
 being possessed of a stone which the defendant asserted and assured the 
 said plaintiff to be a true and perfect stone called a bezoar stone, &c. upon 
 which the plaintiff bought it, &c. There the opinion of Popham was, that if 
 I have any commodities which are damaged (whether victuals or otherwise), 
 and I, knowing them to be so, sell them for good, and affirm them to be so, 
 an action upon the case lies for the deceit; but although they be damaged, 
 if T, knowing not that, affirm them to be good, still no action lies, without 
 I warrant them to l>e good." And see T.ord Fitzgerald's comment upon this 
 in Derry v. Peek (1SS9) 14 A, C. 337, 357: "The action seems originally to 
 have been on a warranty which failed in fact, as there had been no wai'- 
 ranty, and it was then sought to support it as an action for deceit; but it 
 was not alleged in the count that the defendant knew the representation to 
 be untrue. It was in reference to that that the observation of Popham, C. J., 
 was made. He had the reputation of being a consummate lawyer." 
 ♦The opinions of Croke and llaughtou, JJ., are omitted.
 
 Ch. 2) TORTS THROUGH MALICE 1215 
 
 MORGAN V. BLISS. 
 (Supreme Judicial Court of Massachusetts, 1806. 2 Mass. 111.) 
 
 In an action of the case for deceit, the plaintiffs declare that Pliny 
 Bliss and Charles Wiley, contriving and intending to cheat and de- 
 fraud the plaintiffs, in pursuance of such intention made a pretended 
 promissory note subscribed by said Pliny for the sum of twenty- 
 three dollars, payable to the said Charles, which note the said Charles 
 transferred and assigned to the plaintiffs. And afterwards the said 
 Charles fraudulently gave to the said Pliny, and the said Pliny fraudu- 
 lently received, a discharge of said note. 
 
 The writ having been served upon Pliny Bliss alone, he appeared 
 and defended, and at the adjourned session in December last, upon 
 the general issue of not guilty, joined between these parties, viz., the 
 plaintiffs and Pliny Bliss, the plaintiffs gave in evidence a note, dated 
 August 22, 1803, by which P. Bliss, for value received, promised C. 
 Wiley to pay him 23 dollars on demand. Amos Daniels, a subscribing 
 witness to the note, testified that P. Bliss said, at the time the note was 
 given, it was to ansv^-er a debt of one J. Bliss to the plaintiffs, C. Wiley 
 being indebted to the said J. Bliss. 
 
 The Court. This was an action for fraud, and the evidence was 
 
 clearly insuflicient to support the charge. Here was no evidence of 
 
 \^any conspiracy between Bliss and Wiley; nor any proof of the plain- 
 
 Avi tiffs' ever having released their demand on J. Bliss, (and no reason 
 
 C\i shown for not producing such proof,) or of their having in any other 
 
 fy way given a valuable consideration for the note ; and without such 
 
 '^ "^ evidence, what damage do they show themselves to have sustained ? 
 
 ""^^^ There is nothing left in the case for the jury to deliberate upon. 
 
 The Chief Justice suggested that there might perhaps be a foun- 
 dation for a criminal prosecution for conspiracy; but an act done in 
 pursuance of an unlawful intent, and without occasioning actual 
 damage, is no ground for a civil action. 
 
 Nonsuit not set aside. 
 
 PASLEY et al. v. FREEMAN. 
 
 (Court of King's Bencli, 17S9. 3 Term R. 51, 1 R. R. 634, 100 Reprint, 450.) 
 
 This was an action in the nature of a writ of deceit ; to which the 
 defendant pleaded the general issue. And after a verdict for the 
 plaintiff's on the third count, a motion was made in arrest of judg- 
 ment. 
 
 The third count was as follows: 
 
 "And whereas also the said Joseph Freeman, afterwards, to wit, on the 
 21st day of Februai-y in the year of our Lord 1787, at London aforesaid, in 
 the parish und ward aforesaid, further intending to deceive and defraud 
 the said John Tasley and Edward, did wrongfully and deceitfully encourage
 
 121G TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 and persuade tlie said John Pasley and Edward, to sell and deliver to the 
 said John Christopher Falch divers other goods, wares, and merchandises, to 
 wit, 10 other bags of cochineal of great value to wit, of the value of £2&!4. 
 IGs. Id. upon trust and credit; and did for that purpose then and there 
 falsely, deceitfully, and fraudulently assert and affirm to the said John Pas- 
 ley and Edward, that the said John Christopher then and there was a person 
 safely to be trusted and given credit to in that respect ; and did thereby false- 
 ly, fraudulently, and deceitfully, cause and proc-ure the said John Pasley and 
 Edward to sell and deliver the said last-mentioned goods, wares, and mer- 
 chandizes, upon trust and ci-edit, to the said John Christopher ; and in 
 fact they the said John Pasley and Edward, confiding in and giving credit to 
 the said last-mentioned assertion and affirmation of the said Joseph, and 
 believing the same to be true, and not knowing the contrary thereof, did 
 afterwards, to wit, on the 2Sth day of February in the year of our Lord 
 1787 at lx)ndon aforesaid, in the parish and ward aforesaid, sell and deliver 
 the said last-mentioned goods, wares, and merchandizes, upon trust and credit, 
 to the said John Christopher ; whereas in truth and in fact, at the time of 
 the said Joseph's making his said last-mentioned assertion and affirmation, 
 the said John Christopher was not then and there a person safely to be trust- 
 ed and given credit to in that respect, and the said Joseph well knew the 
 same, to wit, at London aforesaid, in the parish and ward aforesaid. And the 
 said John Pasley and Edward further say, that the said John Christopher 
 hath not, nor hath any other person on his behalf, paid to the said John 
 Pasley and Edward, or either of them, the said sum of £2634. 16s. Id. last- 
 mentioned, or any part thereof, for the said last-mentioned goods, wares, and 
 merchandizes ; but on the contrary the said John Christopher then was, and 
 still is, wholly unable to pay the said sum of money last mentioned, or any 
 part thereof, to the said John Pasley and Edward, to wit, at London afore- 
 said, in the parish and ward aforesaid ; and the said John Pasley and Edward 
 aver that the said Joseph falsely and fraudulently deceived them in this, 
 that at tlie time of his making his said last-mentioned assertion and affirma- 
 tion, the said John Christopher was not a person safely to be trusted or 
 given credit to in that respect as aforesaid, and the said Joseph tlien well 
 knew the same, to wit, at London aforesaid, in the parish and ward afore- 
 said ; by reason of which said last-mentioned false, fraudulent, and deceit- 
 ful assertion and affirmation of the said Joseph the said John Pasley and 
 Edward have been deceived and imposed upon, and have wholly lost the 
 said last-mentioned goods, wares, and merchandizes, and the value there- 
 of, to wit, at London aforesaid in the parish and ward aforesaid; to the 
 damage," &c. 
 
 Application was first made for a new trial, which, after argument, 
 was refused : and then this motion in arrest of judgment. Wood 
 argued for the plaintiffs, and Rtissell for the defendant, in the last 
 term: but as the Court went so fully into this subject in giving their 
 opinions, it is unnecessary to give the arguments at the Bar. 
 
 The Court took time to consider of this inatter and now delivered 
 their opinions seriatim. 
 
 Duller, J. The foundation of this action is fraud and deceit in 
 the defendant, and damage to the plaintiffs. And the question is, 
 whether an action thus founded can be sustained in a Court of Law? 
 Fraud without damage, or damage without fraud, gives no cause of 
 action ; but where these two concur, an action lies. Per Croke, J., 
 3 Bulst. 95. But it is contended, that this was a bare naked lie ; that, 
 as no collusion with Falch is charged, it does not amount to a fraud : 
 and, if there were any fraud, the nature of it is not stated. And it 
 was supposed by the counsel who originally made the motion, that no 
 action could be maintained, unless the defendant, who made this false
 
 Ch. 2) TORTS THROUGH MALICE 1217 
 
 assertion, had an interest in so doing. I agree that an action cannot 
 be supported for telling a bare naked lie ; but that I define to be, 
 saying a thing which is false, knowing or not knowing it to be so, 
 and without any design to injure, cheat, or deceive, another person. 
 Every deceit comprehends a lie ; but a deceit is more than a lie on 
 account of the view with which it is practised, its being coupled with 
 some dealing, and the injury which it is calculated to occasion, and 
 does occasion, to another person. Deceit is a very extensive head in 
 the law ; and it will be proper to take a short view of some of the 
 cases which have existed on the subject, to see how far the Courts 
 have gone, and what are the principles upon which they have de- 
 cided. * * * 
 
 These cases then are so far from being authorities against the pres- 
 ent action, that they shew that, if there be fraud or deceit, the action 
 will lie; and that knowledge of the falsehood of thing asserted is 
 fraud and deceit. Collusion then is not necessary to constitute fraud. 
 In the case of a conspiracy, there must be a collusion between two or 
 more to support an indictment : but if one man alone be guilty of 
 an offence, which, if practised by two, would be the subject of an in- 
 dictment for a conspiracy, he is civilly liable in an action for repara- 
 tion of damages at the suit of the person injured. That knowledge 
 of the falsehood of the thing asserted constitutes fraud, though 
 there be no collusion, is further proved by the case of Risney v. Selby, 
 Salk. 211, where, upon a treaty for the purchase of a house, the de- 
 fendant fraudulently affirmed that the rent was £30 per annum, when 
 it was only £20 per annum, and the plaintiff had his judgment; for 
 the value of the rent is a matter which lies in the private knowledge 
 of the landlord and tenant, and if they affirm the rent to be more 
 than it is, the purchaser is cheated, and ought to have a remedy for it. 
 No collusion was there stated, nor does it appear that the tenant 
 was ever asked a question about the rent, and yet the purchaser might 
 have applied to him for information ; but the judgment proceeded 
 wholly upon the ground that the defendant knew that what he as- 
 serted was false. And by the words of the book it seems that, if the 
 tenant had said the same thing, he also would have been liable to an 
 action. If so, that would be an answer to the objection, that the de- 
 fendant in this case had no interest in the assertion which he made. 
 But I shall not leave this point on the dictum or inference which may 
 be collected from that case. If A. by fraud and deceit cheat B. out 
 of £1000, it makes no difference to B. whether A., or any other per- 
 son, pockets that £1000. He has lost his money and if he can fix 
 fraud upon A., reason seems to say that he has a right to seek satis- 
 faction against him. * * * 
 
 The gist of the action is fraud and deceit, and if that fraud and 
 deceit can be fixed by evidence on one who had no interest in his iniqui- 
 ty, it proves his malice to be the greater. But it was objected to this 
 Hepb. Torts — 77
 
 1218 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 declaration, that if there were any fraud, the nature of it is not stated : 
 to this the declaration itself is so direct an answer, that the case admits 
 of no other. The fraud is, that the defendant procured the plaintiffs 
 to sell goods on credit to one whom they would not otherwise have 
 trusted, by asserting that which he knew to be false. Here then is 
 the fraud, and the means by which it was committed ; and it was done 
 with a view to enrich Falch by empoverishing the plaintiffs, or, in 
 other words, by cheating the plaintiffs out of their goods. The cases 
 which I have stated, and Sid. 146, and 1 Keb. 522, prove that the 
 declaration states more than is necessary ; for fraudulenter without 
 sciens, or sciens without fraudulenter, would be sufficient to support 
 the action. But as Mr. J. Twisden said in that case, the fraud must be 
 proved. The assertion alone will not maintain the action ; but the 
 plaintiff must go on to prove that it was false, and that the defendant 
 knew it to be so : by what means that proof is to be made out in evi- 
 dence need not be stated in the declaration. Some general arguments 
 were urged at the Bar, to shew that mischiefs and inconveniences 
 would arise if this action were sustained ; for if a man, who is asked 
 a question respecting another's responsibility, hesitate, or is silent, he 
 blasts the character of the tradesman : and if he say that he is in- 
 solvent, he may not be able to prove it. But let us see what is con- 
 tended for : it is nothing less than that a man may assert that which 
 he knows to be false, and thereby do an everlasting injury to his 
 neighbour, and yet not be answerable for it. This is as repugnant to 
 law as it is to morality. Then it is said that the plaintiffs had no 
 right to ask the question of the defendant. But I do not agree in 
 that; for the plaintiffs had an interest in knowing what the credit of 
 Falch was. It was not the inquiry of idle curiosity, but it was to 
 govern a very extensive concern. The defendant undoubtedly had 
 his option to give an answer to the question, or not : but if he gave 
 none, or said he did not know, it is impossible for any Court of Jus- 
 tice to adopt the possible inferences of a suspicious mind as a ground 
 for grave judgment. All that is required of a person in the defend- 
 ant's situation is, that he shall give no answer, or that if he do, he 
 shall answer according to the truth as far as he knows. The reason- 
 ing in the case of Coggs v. Bernard [2 Ld. Raymond, 909] which was 
 cited by the plaintiff's counsel, is I think very applicable to this part 
 of the case. If the answer import insolvency, it is not necessary that 
 the defendant should be able to prove that insolvency to a jury; for 
 the law protects a man in giving that answer, if he does it in con- 
 fidence and without malice. No action can be maintained against 
 him for giving such an answer unless express malice can be proved. 
 From the circumstance of the law giving that protection, it seems to 
 follow, as a necessary consequence, that the law not only gives sanc- 
 tion to the question, but requires that, if it be answered at all, it shall 
 be answered honestly. There is a case in the books, which, though 
 not much to be relied on, yet serves to shew that this kind of con-
 
 Ch. 2) TORTS THROUGH MALICE 1210 
 
 duct has never been thong-ht innocent in Westminster Hall. In R. v. 
 Gunston, 1 Str. 583, the defendant was indicted for pretending that 
 a person of no reputation was Sir J. Thornycraft, whereby the pros- 
 ecutor was induced to trust him ; and the Court refused to grant a 
 certiorari, unless a special ground were laid for it. If the assertion 
 in that case had been wholly innocent, the Court would not have 
 hesitated a moment. How indeed an indictment could be maintained 
 for that. I do not well understand ; nor have I learnt what became 
 of it. The objection to the indictment is, that it was merely a pri- 
 vate injury: but that is no answer to an action. And if a man will 
 wickedly assert that which he knows to be false, and thereby draws 
 his neighbour into a heavy loss, even though it be under the specious 
 pretence of serving his friend, I say ausis talibus istis non jura sub- 
 serviunt/* 
 
 DERRY et al. v. SIR HENRY WILLIAM PEEK. 
 
 (House of Lords, 1889. 14 App. Cas. 337.) 
 
 Appeal from a decision of the Court of Appeal. The facts are 
 set out at length in the report of the decisions below, 37 Ch. D. 54L 
 For the present report the following summary will suffice: 
 
 By a special Act (45 & 46 Vict. c. 159) the Plymouth, Devonport 
 and District Tramways Company was authorized to make certain 
 tramways. 
 
 By section 35 the carriages used on the tramways might be moved 
 by animal power and, with the consent of the Board of Trade, by 
 steam or any mechanical power for fixed periods and subject to the 
 regulations of the Board. 
 
 By section 34 of the Tramways Act 1870 (33 & 34 Vict. c. 78), 
 which section was incorporated in the said special Act, "all carriages 
 used on any tramway shall be moved by the power prescribed by the 
 special Act, and where no such power is prescribed, by animal power 
 only." 
 
 In February, 1883, the appellants as directors of the company issued 
 a prospectus containing the following paragraph : 
 
 "One great feature of this undertaking, to which considerable im- 
 portance should be attached, is, that by the special Act of Parliament 
 obtained, the company has the right to use steam or mechanical mo- 
 tive power, instead of horses, and it is fully expected that by means 
 of this a considerable saving will result in the working expenses of 
 the line as compared with other tramways worked by horses." 
 
 Soon after the issue of the prospectus the respondent, relying, as 
 he alleged, upon the representations in this paragraph and believing 
 
 1* i'arts of the opinion of Buller, J., and all of the opinions of Grose and 
 Asliliurst, JJ., and Lord Kenyon, C. J., are omitted.
 
 1220 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 that the company had an absolute right to use steam and other mechan- 
 ical power, applied for and obtained shares in the company. 
 
 The company proceeded to make tramways, but the Board of Trade 
 refused to consent to the use of steam or mechanical power except 
 on certain portions of the tramways. 
 
 In the result the company was wound up, and the respondent in 
 1885 brought an action of deceit against the appellants claiming dam- 
 ages for the fraudulent misrepresentations of the defendants whereby 
 the plaintiff was induced to take shares in the company. 
 
 At the trial before Stirling, J., the plaintiff and defendants were 
 called as witnesses. The effect given to their evidence in this House 
 will appear from the judgments of noble and learned Lords. 
 
 Stirling, J., dismissed the action ; but that decision was reversed 
 by the Court of Appeal (Cotton, L. J., Sir J. Hannen, and Lopes, 
 L. J.) who held that the defendants were liable to make good to the 
 plaintiff the loss sustained by his taking the shares, and ordered an 
 inquiry, Z7 Ch. D. 541, 591. Against this decision the defendants 
 appealed. 
 
 Lord Bramwe^ll. My Lords, I am of opinion that this judgment 
 should be reversed. I am glad to come to this conclusion ; for, as 
 far as my judgment goes, it exonerates five men of good character 
 and conduct from a charge of fraud, which, with all submission, I 
 think wholly unfounded, a charge supported on such materials as to 
 make all character precarious. I hope this will not be misunderstood ; 
 that promoters of companies will not suppose that they can safely 
 make inaccurate statements with no responsibility. I should much 
 regret any such notion ; for the general public is so at the mercy of 
 company promoters, sometimes dishonest, sometimes over sanguine, 
 that it requires all the protection that the law can give it. Particu- 
 larly should I regret if it was supposed that I did not entirely disap- 
 prove of the conduct of those directors who accepted their qualifica- 
 tion from the contractor or intended contractor. It is wonderful to 
 me that honest men of ordinary intelligence cannot see the impropriety 
 of this. It is obvious that the contractor can only give this qualifica- 
 tion because he means to get it back in the price given for the work he 
 is to do. That price is to be fixed by the directors who have taken 
 his money. They are paid by him to give him a good price, as high 
 a price as they can, while their duty to their shareholders is to give 
 him one as low as they can. 
 
 But there is another thing. The public, seeing these names, may 
 well say, "These are respectable and intelligent men who think well 
 enough of this scheme to adventure their money in it ; we will do 
 the same," little knowing that those thus trusted had made themselves 
 safe against loss if the thing turned out ill, while they might gain if it 
 was successful. I am glad to think that Mr. Wilde, a member of my 
 old profession, was not one of those so bribed. The only shade of 
 doubt I have in the case is, that this safety from loss in the directors
 
 Ch. 2) TORTS THROUGH MALICE 1221 
 
 may have made them less careful in judging of the truth of any state- 
 ments they have made. 
 
 There is another matter I wish to dispose of before going into 
 the particular facts of the case. I think we need not trouble ourselves 
 about "legal fraud," nor whether it is a good or bad expression ; be- 
 cause I hold that actual fraud must be proved in this case to make 
 the defendants liable, and, as I understand, there is never any occa- 
 sion to use the phrase "legal fraud" except when actual fraud cannot 
 be established. "Legal fraud" is only used when some vague ground 
 of action is to be resorted to, or, generally speaking, when the person 
 using it will not take the trouble to find, or cannot find, what duty has 
 been violated or right infringed, but thinks a claim is somehow made 
 out. With the most sincere respect for Sir J. Hannen I cannot think 
 the expression "convenient." I do not think it is "an explanation 
 wdiich very clearly conveys an idea" ; at least, I am certain it does not 
 to my mind. I think it a mischievous phrase, and one which has 
 contributed to what I must consider the erroneous decision in this 
 case. But, with these remarks, I have done with it, and will proceed 
 to consider whether the law is not that actual fraud must be proved, 
 and whether that has been done. 
 
 Now, I really am reluctant to cite authorities to shew that actual 
 fraud must be established in such a case as this. It is one of the first 
 things one learned, and one has never heard it doubted until recently. 
 I am very glad to think that my noble and learned friend (Lord Her- 
 schell) has taken the trouble to go into the authorities fully ; but to 
 some extent I deprecate it, because it seems to me somewhat to come 
 within the principle Qui s'excuse s'accuse. When a man makes a con- 
 tract with another he is bound by it ; and, in making it, he is bound not 
 to bring it about by fraud. W'arrantizando vendidit gives a cause of 
 action if the warranty is broken. Knowingly and fraudulently stating 
 a material untruth which brings about, wholly or partly, the contract, 
 also gives a cause of action. To this may now be added the equitable 
 rule (which is not in question here), that a material misrepresentation, 
 though not fraudulent, may give a right to avoid or rescind a contract 
 where capable of such rescission. To found an action for damages 
 there must be a contract and breach, or fraud. The statement of claim 
 in this case states fraud. Of course that need not be proved merely 
 because it is stated. But no one ever heard of or saw a statement of 
 claim or declaration for deceit without it. There is not an authority 
 at common law, or by a common law lawyer, to the contrary ; none has 
 been cited, though there may be some incautious, hesitating expres- 
 sions which point that way. Every case from the earliest in Comyns' 
 Digest to the present day alleges it. Further, the learned judges of 
 the Court of Appeal hardly deny it. There is indeed an opinion to the 
 contrary of the late Master of the Rolls, but it must be remembered 
 that his knowledge of actions of deceit was small, if any. * * * 
 
 Lord Herschell. My Lords, in the statement of claim, in this
 
 1222 TORTS THROUGH ACTS OP CONDITIONAL LIABILITY (Part 3 
 
 action the respondent, who is the plaintiff, alleges that the appellants 
 made in a prospectus issued by them certain statements which were 
 untrue, that they well knew that the facts were not as stated in the 
 prospectus, and made the representations fraudulently, and with the 
 view to induce the plaintiff to take shares in the company. 
 
 "This action is one which is commonly called an .action of deceit, a 
 mere common law action." This is the description of it given by Cot- 
 ton, L. J., in delivering judgment. I think it important that it should 
 be borne in mind that such an action differs essentially from one 
 brought to obtain rescission of a contract on the ground of misrepre- 
 sentation of a material fact. The principles which govern the two ac- 
 tions dift'er widely. Where rescission is claimed it is only necessary 
 to prove that there was misrepresentation ; then, however honestly it 
 may have been made, however free from blame the person who made 
 it, the contract, having been obtained by misrepresentation, cannot 
 stand. In an action of deceit, on the contrary, it is not enough to es- 
 tablish misrepresentation alone; it is conceded on all hands that some- 
 thing more must be proved to cast liability upon the defendant, though 
 it has been a matter of controversy what additional elements are req- 
 uisite. I lay stress upon this because observations made by learned 
 judges in actions for rescission have been cited and much relied upon 
 at the bar by counsel for the respondent. Care must obviously be 
 observed in applying the language used in relation to such actions to 
 an action of deceit. Even if the scope of the language used extend 
 beyond the particular action which was being dealt with it must be re- 
 membered that the learned judges were not engaged in determining 
 what is necessary to support an action of deceit, or in discriminating 
 with nicety the elements which enter into it. 
 
 There is another class of actions which I must refer to also for 
 the purpose of putting it aside. I mean those cases where a person 
 within whose special province it lay to know a particular fact, has 
 given an erroneous answer to an inquiry made with regard to it by a 
 person desirous of ascertaining the fact for the purpose of determining 
 his course accordingly, and has been held bound to make good the assur- 
 ance he has given. Burrowes v. Lock, 10 Ves. 470, may be cited as an 
 example, where a trustee had been asked by an intended lender, upon 
 the security of a trust fund, whether notice of any prior incumbrance 
 upon the fund had been given to him. In cases like this it has been 
 said that the circumstance that the answer was honestly made in the 
 belief that it was true aft'ords no defence to the action. Lord S'el- 
 borne pointed out in Brownlie v. Campbell, 5 App. Cas. at p. 935, that 
 these cases were in an altogether different category from actions to re- 
 cover damages for false representation, such as we are now dealing 
 with. 
 
 One other observation I have to make before proceeding to consider 
 the law which has been laid down by the learned judges in the Court of 
 Appeal in the case before your Lordships. "An action of deceit is a
 
 Ch. 2) TORTS THROUGH MALICE 1223 
 
 common law action, and must be decided on the same principles, 
 whether it be brought in the Chancery Division or any of the Common 
 Law Divisions, there being, in my opinion, no such thing as an equi- 
 table action for deceit." This was the language of Cotton, L. J., in Ark- 
 wright V. Newbould, 17 Ch. D. 320. It was adopted by Lord Black- 
 burn in Smith v. Chadwick, 9 App. Cas. 193, and is not, I think, open 
 to dispute. 
 
 In the Court below Cotton, L. J., said: "What in my opinion is a 
 correct statement of the law is this, that where a man makes a state- 
 ment to be acted upon by others which is false, and which is known 
 by him to be false, or is made by him recklessly, or without care 
 whether it is true or false, that is, without any reasonable ground for 
 believing it to be true, he is liable in an action of deceit at the suit of 
 anyone to whom it was addressed or anyone of the class to whom it 
 was addressed and who was materially induced by the misstatement 
 to do an act to his prejudice." About much that is here stated there 
 cannot, I think, be two opinions. But when the learned Lord Justice 
 speaks of a statement made recklessly or without care whether it is 
 true or false, that is without any reasonable ground for believing it to 
 be true, I find myself, with all respect, unable to agree that these are 
 convertible expressions. To make a statement careless whether it be 
 true or false, and therefore without any real belief in its truth, appears 
 to me to be an essentially different thing from making, through want 
 of care, a false statement, which is nevertheless honestly believed to 
 be true. And it is surely conceivable that a man may believe that what 
 he states is the fact, though he has been so wanting in care that the 
 Court may think that there were no sufficient grounds to warrant his 
 belief. I shall have to consider hereafter whether the want of reason- 
 able ground for believing the statement made is sufiicient to support an 
 action of deceit. I am only concerned for the moment to point out 
 that it does not follow that it is so, because there is authority for say- 
 ing that a statement made recklessly, without caring whether it be 
 true or false, affords sufficient foundation for such an action. * * * 
 
 It will thus be seen that all the learned judges concurred in think- 
 ing that it was sufficient to prove that the representations made were 
 not in accordance with fact, and that the person making them had no 
 reasonable ground for believing them. They did not treat the absence 
 of such reasonable ground as evidence merely that the statements were 
 made recklessly, careless whether they were true or false, and without 
 belief that they were true, but they adopted as the test of liability, not 
 the existence of belief in the truth of the assertions made, but whether 
 the belief in them was founded upon any reasonable grounds. It will 
 be seen, further, that the Court did not purport to be establishing any 
 new doctrine. They deemed that they were only following the cases 
 already decided, and that the proposition which they concurred in lay- 
 ing down was established by prior authorities. Indeed, Lopes, L. J., 
 expressly states the law in this respect to be well settled. This ren-
 
 1224 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 ders a close and critical examination of the earlier authorities neces- 
 sary. 
 
 I need go no further back than the leading case of Pasley v. Free- 
 man, 2 Smith's L. C. 74. If it was not there for the first time held 
 that action of deceit would lie in respect of fraudulent representa- 
 tions against a person not a party to a contract induced by them, the 
 law was at all events not so well settled but that a distinguished Judge, 
 Grose, J., differing from his Brethren on the Bench, held that such an 
 action was not maintainable. Buller, J., who held that the action lay, 
 adopted in relation to it the language of Croke, J., in 3 Bulstrode, 95, 
 who said : "Fraud without damage, or damage without fraud, gives 
 no cause of action, but where these two concur an action lies." * * * 
 
 Having now drawn attention, I believe, to all the cases having a 
 material bearing upon the question under consideration, I proceed to 
 state briefly the conclusions to which I have been led. I think the 
 authorities establish the following propositions : First, in order to sus- 
 tain an action of deceit, there must be proof of fraud, and nothing 
 short of that will suffice. Secondly, fraud is proved when it is shewn 
 that a false representation has been made (1) knowingly, or (2) without 
 belief in its truth, or (3) recklessly, careless whether it be true or false. 
 Although I have treated the second and third as distinct cases, I think 
 the third is but an instance of the second, for one who makes a state- 
 ment under such circumstances can have no real belief in the truth 
 of what he states. To prevent a false statement being fraudulent, 
 there must, I think, always be an honest belief in its truth. And this 
 probably covers the whole ground, for one who knowingly alleges that 
 which is false, has obviously no such honest belief. Thirdly, if fraud 
 be proved, the motive of the person guilty of it is immaterial. It mat- 
 ters not that there was no intention to cheat or injure the person to 
 whom the statement was made. 
 
 I think these propositions embrace all that can be supported by de- 
 cided cases from the time of Pasley v. Freeman down to Western 
 Bank of Scotland v. Addie in 1867, Law Rep. 1 H. L. Sc. 145, when 
 the first suggestion is to be found that belief in the truth of what he 
 has stated will not suffice to absolve the defendant if his belief be based 
 on no reasonable grounds. I have shewn that this view was at once 
 dissented from by Lord Cranworth, so that there was at the outset as 
 much authority against it as for it. And I have met with no further 
 assertion of Lord Chelmsford's view until the case of Weir v. Bell, 3 
 Ex. D. 238, where it seems to be involved in Lord Justice Cotton's 
 enunciation of the law of deceit. But no reason is there given in sup- 
 port of the view, it is treated as established law. The dictum of the 
 late Master of the Rolls, that a false statement made through care- 
 lessness, which the person making it ought to have known to be untrue, 
 would sustain an action of deceit, carried the matter still further. 
 But that such an action could be maintained notwithstanding an honest 
 belief that the statement made was true, if there were no reasonable
 
 Ch. 2) TORTS THROUGH MALICE 1225 
 
 grounds for the belief, was, I think, for the first time decided in the 
 case now under appeal. 
 
 In my opinion making a false statement through want of care falls 
 far short of, and is a very different thing from, fraud, and the same 
 may be said of a false representation honestly believed though on 
 insufhcient grounds. Indeed Cotton, L. J., himself indicated, in the 
 words I have already quoted, that he should not call it fraud. But 
 the whole current of authorities, with which I have so long detained 
 your Lordships, shews to my mind conclusively that fraud is essential 
 to found an action of deceit, and that it cannot be maintained where 
 the acts proved cannot properly be so termed. And the case of Taylor 
 V. Ashton, 11 M. & W. 401, appears to me to be in direct conflict with 
 the dictum of Sir George Jessel, and inconsistent with the view taken 
 by the learned judges in the Court below. I observe that Sir Freder- 
 ick Pollock, in his able work on Torts (p. 243, note), referring, I pre- 
 sume, to the dicta of Cotton, L. J., and Sir George Jessel, M. R., says 
 that the actual decision in Taylor v. Ashton, 11 M. & W. 401, is not 
 consistent with the modern cases on the duty of directors of com- 
 panies. I think he is right. But for the reasons I have given I am 
 unable to hold that anything less than fraud will render directors or 
 any other persons hable to an action of deceit. 
 
 At the same time I desire to say distinctly that when a false state- 
 ment has been made the questions whether there were reasonable 
 grounds for believing it, and what were the means of knowledge in 
 the possession of the person making it, are most weighty matters for 
 consideration. The ground upon which an alleged belief was found- 
 ed is a most important test of its reality. I can conceive many cases 
 where the fact that an alleged belief was destitute of all reasonable 
 foundation would suffice of itself to convince the Court that it was not 
 really entertained, and that the representation was a fraudulent one. 
 So, too, although means of knowledge are, as was pointed out by Lord 
 Blackburn in Brownlie v. Campbell, 5 App. Cas. at p. 952, a very dif- 
 ferent thing from knowledge, if I thought that a person making a false 
 statement had shut his eyes to the facts, or purposely abstained from 
 inquiring into them, I should hold that honest belief was absent, and 
 that he was just as fraudulent as if he had knowingly stated that which 
 was false. 
 
 I have arrived with some reluctance at the conclusion to which I 
 have felt myself compelled, for I think those who put before the pub- 
 lic a prospectus to induce them to embark their money in a commer- 
 cial enterprise ought to be vigilant to see that it contain such represen- 
 tations only as are in strict accordance with fact, and I should be very 
 unwilling to give any countenance to the contrary idea. I think there 
 is much to be said for the view that this moral duty ought to some 
 extent to be converted into a legal obligation, and that the want of 
 reasonable care to see that statements, made under such circumstances, 
 are true, should be made an actionable wrong. But this is not a mat-
 
 1226 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 ter fit for discussion on the present occasion. If it is to be done the 
 legislature must intervene and expressly give a right of action in re- 
 spect of such a departure from duty. It ought not, I think, to be done 
 by straining the law, and holding that to be fraudulent which the tri- 
 bunal feels cannot properly be so described. I think mischief is likely 
 to result from blurring the distinction between carelessness and fraud, 
 and equally holding a man fraudulent whether his acts can or cannot 
 be justly so designated. 
 
 It now remains for me to apply what I believe to be the law to the 
 facts of the present case. * * * 
 
 I agree with the Court below that the statement made did not accu- 
 rately convey to the mind of a person reading it what the rights of the 
 company were, but to judge whether it may nevertheless have been 
 put forward without subjecting the defendants to the imputation of 
 fraud, your Lordships must consider what were the circumstances. 
 By the General Tramways Act of 1870 it is provided that all carriages 
 used on any tramway shall be moved by the power prescribed by the 
 special Act, and where no such power is prescribed, by animal power 
 only, 33 & 34 Vict. c. 78, § 34. In order, therefore, to enable the com- 
 pany to use steampower, an Act of Parliament had to be obtained em- 
 powering its use. This had been done, but the power was clogged 
 with the condition that it was only to be used with the consent of the 
 Board of Trade. It was therefore incorrect to say that the company 
 had the right to use steam; they would only have that right if they ob- 
 tained the consent of the Board of Trade. But it is impossible not to 
 see that the fact which would impress itself upon the minds of those 
 connected with the company was that they had, after submitting the 
 plans to the Board of Trade, obtained a special Act empowering the use 
 of steam. It might well be that the fact that the consent of the Board 
 of Trade was necessary would not dwell in the same way upon their 
 minds, if they thought that the consent of the Board would be obtained 
 as a matter of course if its requirements were complied with, and that 
 it was therefore a mere question of expenditure and care. The provi- 
 sion might seem to them analogous to that contained in the General 
 Tramways Act, and I believe in the Railways Act also, prohibiting the 
 line being opened until it had been inspected by the Board of Trade 
 and certified fit for traffic, which no one would regard as a condition 
 practically limiting the right to use the line for the purpose of a tram- 
 way or railway. I do not say that the two cases are strictly analogous 
 in point of law, but they may well have been thought so by business 
 men. 
 
 I turn now to the evidence of the defendants. [Lord Herschell 
 here reviewed the evidence of each of the five defendants.] 
 
 As I have said, Stirling, J., gave credit to these witnesses, and I see 
 no reason to differ from him. What conclusion ought to be drawn 
 from their evidence? I think they v/ere mistaken in supposing that 
 the consent of the Board of Trade would follow as a matter of course
 
 Ch. 2) TORTS THROUGH MALICE 1227 
 
 because they had obtained their Act. It was absolutely in the discre- 
 tion of the Board whether such consent should be given. The prospec- 
 tus was therefore inaccurate. But that is not the question. If they 
 believed that the consent of the Board of Trade was practically con- 
 cluded by the passing of the Act, has the plaintiff made out, which it 
 was for him to do, that they have been guilty of a fraudulent misrep- 
 resentation? I think not. I cannot hold it proved as to any one of 
 them that he knowingly made a false statement, or one which he did 
 not believe to be true, or was careless whether what he stated was 
 true or false. In short, I think they honestly believed that what they 
 asserted was true, and I am of opinion that the charge of fraud made 
 against them has not been established. * * * 
 
 Adopting the language of Jessel, M. R., in Smith v. Chadwick, 20 
 Ch. D. at p. 67, I conclude by saying that on the whole I have come 
 to the conclusion that the statement, "though in some respects inaccu- 
 rate and not altogether free from imputation of carelessness, was a 
 fair, honest and bona fide statement on the part of the defendants, and 
 by no means exposes them to an action for deceit." 
 
 I think the judgment of the Court of Appeal should be reversed.^ ^ 
 
 V. MaIvIcious Usu of Propt^rty or Ini^'luejnce; e'or the; Harm of 
 
 Another 
 
 KEEBLE V. HICKERINGILL. 
 
 (Court of King's Bench, 1809. 11 East, 574, note, 11 R. R. 273, 
 
 103 Reprint, 1127.) 
 
 Action upon the case. Plaintiff declares 
 
 that he was, Sth November in the second year of the Queen, lawfully pos- 
 sessed of a close of land called .Miuott's Meadow, et de quodani vivario, 
 vocato, a "decoy pond," to which divers wildfowl used to resort and come: 
 and the plaintiff had at his own cost and chai-ges prepared and procured 
 divers decoy ducks, nets, machines, and other engines for the decoying and 
 taking of the wildfowl, and enjoyed the benefit in taking them: the defend- 
 ant knowing which, and intending to damnify the plaintiff in his vivary, and 
 to flight and drive away the wildfowl used to resort thither, and deprive 
 him of his profit, did, on the Sth of November, resort to the head of the said 
 pond aud vivary and did discharge six guns laden with gunpowder, and with 
 the noise and stink of the gunpowder did drive away the wildfowl then being 
 in the pond: and on the 11th and 12th days of November the defendant, 
 with the design to damnify the plaintiff, aud fright away the wildfowl, did 
 place himself with a gun near the vivary, and there did discharge the said 
 gun several times that was then charged with the gunpowder against the said 
 decoy pond, whereby the wildfowl were frightened away, and did forsake 
 the said pond. 
 
 15 Tlie House of Lords were unanimous in reversing the order of the Court 
 of Appeal and restoring the order of Stirling, .7. Parts of the opinions of 
 L,ord Bramwell and Lord Herschell and all of the concurring opinii>ns of 
 Lord Chancellor Halsbury aud of Lords Watson and Fitzgerald are omitted.
 
 1228 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 Upon not guilty pleaded, a verdict was found for the plaintiff 
 and £20 damages. 
 
 Holt, C. J. I am of opinion that this action doth lie. It seems 
 to be new in instance, but it is not new in the reason or the principle 
 of it. For, 1st, this using or making a decoy is lawful. 2dly. This 
 employment of his ground to that use is profitable to the plaintiff, 
 as is the skill and management of that employment. As to the 
 first. Every man that hath a property may employ it for his pleasure 
 and profit, as for alluring and procuring decoy ducks to come to 
 his pond. To learn the trade of seducing other ducks to come there 
 in order to be taken is not prohibited by either the law of the land 
 or the moral law ; but it is as lawful to use art to seduce them, to 
 catch them, and destroy them for the use of mankind, as to kill or 
 destroy wildfowl or tame cattle. Then when a man uses his art or 
 his skill to take them, to sell and dispose of for his profit; this is 
 his trade; and he that hinders another in his trade or livelihood is 
 liable to an action for so hindering him. Why otherwise are scan- 
 dalous words spoken of a man in his profession actionable, when with- 
 out his profession they are not so? Though they do not affect any 
 damage, yet are they mischievous in themselves; and therefore in 
 their own nature productive of damage; and therefore an action lies 
 against him. Such are all words that are spoken of a man to dis- 
 parage him in his trade, that may bring damage to him ; though they 
 do not charge him with any crime that may make him obnoxious to 
 punishment; as to say a merchant is broken, or that he is failing, 
 or is not able to pay his debts, 1 Roll. 60, I; all the cases there put. 
 How much more when the defendant does an actual and real dam- 
 age to another when he is in the very act of receiving profit by his 
 employment. Now there are two sorts of acts for doing damage to 
 a man's employment, for which an action lies; the one is in respect 
 of a man's privilege; the other is in respect of his property. In 
 that a man's franchise or property whereby he hath a fair, market, 
 or ferry, if another shall use the like liberty, though out of his limits, 
 he shall be liable to an action ; though by grant from the king. But 
 therein is the difi'erence to be taken between a liberty in which the 
 public hath a benefit, and that wherein the public is not concerned. 
 22 li. 6. 14, 15. 
 
 The other is where a violent and malicious act is done to a man's 
 occupation, profession, or way of getting a livelihood; there an ac- 
 tion lies in all cases. But if a man doth him damage by using the 
 same employment; as if Mr. Hickeringill had set up another decoy 
 on the same ground near the plaintiff's, and that had spoiled the cus- 
 tom of the plaintiff, no action would lie, because he had as much 
 liberty to make and use a decoy as the plaintiff. This is like the 
 case of 11 H. 4. 47. One schoolmaster sets up a new school to the 
 damage of an antient school, and thereby the scholars are allured from 
 the old school to come to his new. (The action there was held not
 
 Ch. 2) TORTS THROUGH MALICE 1229 
 
 to lie.) But suppose Mr. Hickeringill should lie in the way with 
 his guns, and fright the boys from going to the school, and their 
 parents would not let them go thither; sure that schoolmaster might 
 have an action for the loss of his scholars. 29 E. 3. 18. A man hath 
 a market, to which he hath toll for horses sold : a man is bringing 
 his horse to market to sell : a stranger hinders and obstructs him from 
 going thither to the market: an action lies, because it imports dam- 
 age. Action upon the case lies against one that shall by threat fright 
 away his tenants at will. 9 H. 7. 8; 21 H. 6. 31; 9 H. 7. 7; 14 
 Ed. 4. 7. Vide Rastal. 662; 2 Cro. 423. Trespass was brought for 
 beating his servant whereby he was hindered from taking his toll; 
 the obstruction is a damage, though not the loss of his service.^' 
 
 LETTS V. KESSLER. 
 
 (Supreme Court of Ohio, 1896. 54 Ohio St. 73, 42 N. E. 765, 40 L. E. A. 177.) 
 
 The plaintiff below (defendant in error here) filed her petition in the 
 court of common pleas against defendant below (plaintitf in error 
 here), averring that she was the owner by purchase under a land con- 
 tract of certain permises in the city of Cleveland; that defendant 
 owned and occupied the lot on the east side thereof; that she used 
 her premises as an hotel and boarding house; that he was erecting a 
 high board fence on his ground, which would obstruct her windows, 
 and deprive her of light and air ; that said fence was not being erect- 
 ed for any useful or ornamental purpose, but from motives of pure 
 malice alone, and for the express malicious purpose of annoying plain- 
 tiff, and excluding light and air from her house, so as to render her 
 house uninhabitable, to injure the value thereof; and that said fence 
 would exclude the light and air, and thereby greatly injure the value 
 of her house. She prayed that he might be restrained from completing 
 said fence, and that, upon the final hearing, a mandatory injunction 
 might compel its removal. Defendant below demurred to this peti- 
 tion, and the demurrer was overruled, and exceptions taken. The rul- 
 ing upon this demurrer is reported in 7 Ohio Cir. Ct. R. 108. He 
 then filed an answer, in substance a general denial, with an averment 
 that the fence was erected to prevent the rush of water and eave drip 
 from her premises onto his. This she denied in her reply. The case 
 went to the circuit court on appeal, and that court overruled the de- 
 murrer, and on the trial made a finding of facts containing in sub- 
 
 16 Compare: Tarleton v. McGawley (1793) 1 Peake, 270, 3 R. R. 689: (D., 
 the master of a vessel tradiug on the coast of Africa, purposely fired a canuon 
 from his vessel at a canoe in which natives were going to a rival ship, the 
 "Tarleton," and killed one of them, "wlu'reliy the natives of the said coast 
 were deterred and hindered from tradiug with" the "Tarleton.")
 
 1230 TOKTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 Stance the allegations of the petition. The following is the finding of 
 facts and the judgment: 
 
 "This cause came on to be heard upon the petition of the plaintiff, the an- 
 swer of defendant, the reply of the plaintiff thereto, and the testimony, and 
 the court being requested by the defendant to make a finding of facts in the 
 case, and to state conclusions of the facts, as follows: That the plaintiff 
 owns and occupies premises situated on Lake street, in the city of Cleveland, 
 known as 'The Osborn,' and said plaintiff' owned and occupied said premises 
 at the time of the erection of the structure hereinafter described. Said prem- 
 ises were used by plaintiff as a boarding house. Defendant owns and occu- 
 pies premises adjoining plaintiff in the east. Between the two houses is a 
 drive\^ay and open space about 20 feet wide. Plaintiff and defendant had 
 litigation in May, 1S91, on account of defendant having attached a shed roof 
 to her building without consent of said plaintiff". About two weeks after the 
 trial of said lawsuit, the defendant took down said shed or roof, and built 
 up against the house of said plaintiff a tight-hoard fence. The said fence was 
 86 feet long. The scantlings were placed against the wall of said plaintiff's 
 house, and reached up under the eaves of the same. Boards were nailed on 
 to said scantlings, beginning about two feet from the ground, and extending 
 to the sills of the second-story windows. Defendant nailed onto the rear 
 portion of said fence, and extending about 40 feet towards the front, a shed 
 or roof. Under this shed or roof defendant had lumber piled. Said board 
 fence completely covered up the bathroom, kitchen, bedroom, and library win- 
 dows, rendering said portion of house dark, damp, and uninhabitable, and 
 causing a substantial damage to the same. Said structure was erected upon 
 the land of the defendant, and belonged to him. The structure was erected 
 by said defendant from motives of unmixed malice towards said plaintiff', and 
 for no useful or ornamental purposes of the property of said defendant, ex- 
 cept said shed or roof, and its back wall below the shed roof, which may sub- 
 serve some useful purpose of defendant in the use of his property by protect- 
 ing his lumber piled thereunder. The court, upon the foregoing facts, finds 
 and decrees that said defendant be, and is hereby, enjoined from proceeding 
 further with the erection of said fence. Adjudged and decreed that said de- 
 fendant, within 20 days from the entering of this decree, take down all of 
 said fence and scantling projecting above the roof of said shed, and all the 
 remainder of said fence outside of and beyond said shed ; and it is consid- 
 ered that the plaintiff' recover his costs expended in the case, taxed at $ , 
 
 and that the defendant pay his own costs, for which it is ordered that execu- 
 tion issue, — to all of which the defendant excepts." 
 
 A motion for a new trial was overruled, with exceptions taken. 
 Thereupon a petition in error was filed to reverse the judgment of the 
 circuit court. 
 
 Burke;t, J. (after stating the facts). The only question in this case 
 arises upon the following findings of fact by the circuit court: "Said 
 structure was erected upon the land of the defendant, and belonged 
 to him. The structure was erected by said defendant from motives 
 of unmixed malice towards said plaintifif, and for no useful or or- 
 namental purposes of the property of said defendant." It is not claim- 
 ed that the person of the plaintiff was interfered with in this case, 
 so that we have for consideration only the rights of property. The 
 fence complained of is upon the land of the defendant, and belongs 
 to him. Plaintiff fails to aver, and the court fails to find, that she has 
 any right to or upon the lot of defendant below by contract, statute, 
 or any other way known to the law for acquiring a right to, in, or 
 upon lands, unless such right may be acquired by, and transferred to 
 hcr^ by means of the aforesaid, "motives of unmixed malice." This
 
 Ch. 2) TORTS THROUGH MALICE 1231 
 
 is a mannci" of acquiring, on the one hand, and of transferring, on the 
 other, a right to property unknown to the law. 
 
 But it is urged in her behalf that even if she had no right of prop- 
 erty, and even if he was the owner of the lot, he could not use his 
 own land for the purpose of erecting structures thereon which sub- 
 serve no useful or ornamental purpose, and a/j erected through mo- 
 tives of unmixed malice towards his adjoining neighbor. It is and 
 must be conceded that he might, by erecting a building on his lot, 
 shut off her light and air to exactly the same extent as is done by this 
 fence, and that in such case she would be without right and without 
 remedy, even though done with the same feelings of malice as induced 
 him to erect the fence; thus making his acts lawful when the malice 
 is seasoned with profit, or some show of profit, to himself, and unlaw- 
 ful when his malice is unmixed with profit, the injury or inconvenience 
 to her meanvrhile remaining the same in both cases. If, through 
 feelings of malice, he desires to shut the light and air from her win- 
 dows, it is nothing to her w'hether he m.akes a profit or loss thereby. 
 Her injury is no greater and no less in the one case than in the other. 
 As to her it is the eft'ect of the act, and not the motive. In effect, 
 he has the right to shut off the light and air from her window^s by a 
 building on his own premises ; and she is not, in effect, concerned 
 in the means by which such effect is produced, whether by a building 
 or other structure; nor is she concerned as to the motive, nor as to 
 whether he makes or loses by the operation. In the one case she 
 might have a strong suspicion of his malice, w^hile in the other such 
 suspicion would be reduced to a certainty. But this is nothing to her 
 as affecting a property right. As long as he keeps on his ow'n prop- 
 erty, and causes an effect on her property wdiich he has a right to 
 cause, she has no legal right to complain as to the manner in which 
 the effect is produced ; and to permit her to do so would not be en- 
 forcing a right of property, but a rule of morals. It would be con- 
 trolling and directing his moral conduct by a suit in equity, — by an 
 injunction. 
 
 To permit a man to cause a certain injurious effect upon the prem- 
 ises of his neighbor by the erection of a structure on his own premises 
 if such structure is beneficial or ornamental, and to prohibit him from 
 causing the same effect in case the structure is neither beneficial nor 
 ornamental,. but erected from motives of pure malice, is not protect- 
 ing a legal right, but is controlling his moral conduct. In this state 
 a man is free to direct his moral conduct as he pleases, in so far as 
 he is not restrained by statute. 
 
 But it is said that such acts are offensive to the principles of equity. 
 Not so. There is no conflict between law and equity in our practice, 
 and what a man may lawfully do cannot be prohibited as inequitable. 
 It may be immoral, and shock our notions of fairness, but what the 
 law permits equity tolerates. It would be much more inequitable 
 and intolerable to allow a man's neighbors to question his motives
 
 1232 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 every time that he should undertake to erect a structure upon his own 
 premises, and drag him before a court of equity to ascertain wheth- 
 er he is about to erect the structure for ornament or profit, or through 
 motives of unmixed malice. 
 
 The case is not like annoying a neighbor by means of causing 
 smoke, gas, noisome smells, or noises to enter his premises, thereby 
 causing injury. In such cases something is produced on one's own 
 premises, and conveyed to the premises of another; but in this case 
 nothing is sent, but the air and light are withheld. A man may be 
 compelled to keep his gas, smoke, odors, and noise at home, but he 
 cannot be compelled to send his light and air abroad. Mullen v. 
 Strieker, 19 Ohio St. 135, 2 Am. Rep. 379. If smoke, gas, offensive 
 odors, or noise pass from one's own premises to or upon the premises 
 of another, to his injury, an action will lie therefor, even though the 
 smoke, gas, odor, or noise should be caused by the lawful business 
 operations of defendant, and with the best of motives. Broom, Leg. 
 ]\Iax. 372. In such cases it is the eft'ect or injury, and not the motive, 
 that is regarded. The true test is whether anything recognized by- 
 law as injurious passes from the premises of one neighbor to that of 
 another. Anything so passing invades the legal rights of him whose 
 premises it reaches, and such rights will be protected. But courts 
 cannot regulate or control the moral conduct of a man, unless au- 
 thorized so to do by statute.^^ 
 
 17 Judge Burket here referred to a number of cases, with comments, as 
 follo\v^^: Tlie following cases, cited by plaiDtiff in error, bear more or less 
 upon the question involved in this case, and seem to produce a decided weight 
 of authority in his favor: Frazier v. Brown (1S61) 12 Ohio St. 294; Falloon 
 V. Scliilling (1S8;J) 29 Kan. 292, 44 Am. Kep. 642; Mahan v. Brown (1835) 13 
 Wend. (N. Y.) 261, 28 Am. Dec. 461; Greenleaf v. Francis (1836) 18 Pick. 
 (Mass.) 123; Chatfield v. Wilson (1855) 28 Vt. 49. The following additional 
 authorities are to the same effect: Gould, Waters, § 280, citing Chasemore 
 V. Richards (1S.j9) 7 II. L. Cas. 349 ; Dickinson v. Canal Co. (1852) 7 Exch. 
 282 ; Acton v. Blundell (1843) 12 Mees. & W. 324 ; Hammond v. Hall (1840) 
 10 Sim. 552 ; Cooper v. Barber (1810) 3 Taunt. 99 ; Balston v. Bensted (1808) 
 1 Camp. 463; Galgay v. Railway Co. (1854) 4 Ir. C. L. 456; Chase v. Silver- 
 stone (1873) 62 Me. 175, 16 Am. Rep. 419; Roath v. DriscoU (1850) 20 Conn. 
 533, 52 Am. Dec. 352; Brown v. Illius (1858) 27 Conn. 84, 71 Am. Dec. 49; 
 Ocean Grove Camp Meeting Ass'n v. Asbury Bark Com'rs (1885) 40 N. J. Eq. 
 447, 3 Atl. 108 ; Taylor v. Fickas (1878) 64 Ind. 167, 31 Am. Rep. 114 ; Vil- 
 lage of Delhi v. Youmans (1871) 45 N. Y. 362, 6 Am. Rep. 100; Dexter v. 
 Aqueduct Co. (1840) 1 Story, 387, Fed. Cas. No. 3,864; Wheatley v. Baugh 
 (1855) 25 I*a. 528, 64 Am. Dec. 721, note ; Haugh's Appeal (1882) 102 Pa. 42, 
 
 48 Am. Rep. 193, note; Haldeman v. Bruckhart (1863) 45 Pa. 514, 84 Am. 
 ]>ce. 511; Coleman v. Chadwick (1876) 80 Pa. 81, 21 Am. Rep. 93; Trout v. 
 McDonald (1877) 83 Pa. 140 ; Lybe's Appeal (1884) 106 Pa. 626, 51 4-m. Rep. 
 542 ; Smith v. Adams (1837) 6 Paige (N. Y.) 435 ; Elster v. Springfield (1892) 
 
 49 Ohio St. 82, 30 N. E. 274 ; Ellis v. Duncan (1864) cited in 29 N. Y. 466 ; 
 Radcliff v. Mayor, etc. (1850) 4 N. Y. 39,5, 200, 53 Am. Dec. 357; Pixley v. 
 Clark (1866) 35 N. Y. 520, 91 Am. Dec. 72; Goodale v. Tuttle (18(J4) 29 N. Y. 
 46(): Bliss V. Greeley (1871) 45 N. Y. 671, 6 Am. Rep. 157; Clark v. Couroe 
 (1866) 38 Vt. 469; Taylor v. Welch (1876) 6 Or. 198; Mosier v. Caldwell 
 (1872) 7 Nev. 363; Railwav Co. v. Peterson (1860) 14 Ind. 112, 77 Am. Dec. 
 60; Ba.s.sett v. Manufacturing Co. (1862) 43 N. H. 573, 82 Am. Dec. 179; 30 
 Cent. Daw J. 269; 23 Am. I^w Rev. 376; Davis v. Afong (1884) 5 Hawaii, 
 216. The defendant in error cites the cases reviewed in Frazier v. Brown
 
 Ch. 2) TORTS THROUGH MALICE 1233 
 
 But it is strongly urged by counsel for defendant in error that the 
 maxim, "Enjoy your own property in such a manner as not to in- 
 jure that of another person," applies in such cases as this, and that, 
 as it must be conceded that the fence in question is an injury .to the 
 property of defendant m error, his acts are in conflict with the above 
 maxim. At tirst blush, this would seem to be so, but a careful con- 
 sideration shows the contrary. The maxim is a very old one, and 
 states the law too broadly. In this case, for instance, it is conceded 
 that the plaintiff in error had the right to enjoy his property by erect- 
 ing a house so as to do the same injury which was done by the fence, 
 and that, while that would be an injury to the property of defendant 
 in error, she would be without remedy, and his act in erecting such 
 house would not be regarded as violating the maxim. 
 
 In Jeffries v. Williams, 5 Exch. 797, it was clanned, and in Railroad 
 Co. V Bingham, 29 Ohio St. 369, it was held, that the true and legal 
 meaning of the maxim is : "So use your own property as not to injure 
 the rights of another" Boynton, J., in that case says: "Where no 
 right has been invaded, although one may have injured another, no 
 liability has been incurred. Any other rule would be manifestly 
 wrong." The maxim should be limited to causing injury to the rights 
 of another, rather than to the property of another, because for an in- 
 jury to the rights of another there is always a remedy; but there 
 may be injuries to the property of another for which there is no rem- 
 edy, as in draming a spring or well, or cutting off light and air or 
 a pleasant view by the erection of buildings, and. many other cases 
 which might be cited. 
 
 Thus limiting the maxim to the rights of the defendant in er- 
 ror, it is plain that the acts of plaintiff in error in the use which he 
 made of his property did not injure any legal right of hers, and that, 
 therefore, what he did was not in violation of such maxim.* 
 
 (1S61) 12 Ohio St. 294, and also the ease of Burke v. Smith (18SS) 69 Mich. 
 395, 37 N. W. 838. Most of the cases cited are cases arising out of Interfer- 
 ence with wells, springs, and percolating waters. Sv:ch cases bear but slight- 
 ly upon the question. The Michigan case is substantially like the case under 
 consideration. In that case the lower court enjoined the defendant, and 
 that judgment was athrmed by an equally divided court. The syllabus says 
 that, the court being equally divided, nothing is decided. As nothing was 
 decided, the case is not an authority on either side of the question. 
 
 ♦Compare the remark of Professor Ames, Law & Morals (190S) 22 Harv. 
 Law Review, 111: "Suppose, again, that the owner of land sinks a well, not 
 in order to get water for himself, but solely for the purpose of draining his 
 neighbor's spring, or that he erects an abnormally high fence on his own 
 land, but near the boundary, not for any advantage of his own, but merely 
 to darken his neighbor's windows or to obstruct his view. Is the landowner 
 re.sponsible to his neighbor for the damage arising from such malevolent 
 conduct"? In thirteen of our states he must make compensation for malevo- 
 lently draining tbe neighbors spring. In two other states the opposite has 
 been decided. In four states one who erects a st)ite fence must pay for the 
 damage to the neighbor. In six others he infuis no liability. Six states 
 have passed special statutes giving an action tor linilding such a fence" 
 
 For statutes changing the rule followed in the principal case, see the Massa- 
 Hepb.Tobts — 78
 
 1234 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 The circuit court erred in overruling the demurrer to the petition, 
 and in rendering judgment in favor of defendant in error upon the 
 facts as found by the court. The judgment of the circuit court is 
 therefore reversed, and, proceeding to render such judgment as the 
 circuit court should have rendered upon the facts found, the petition 
 of plaintiff below is dismissed, at her cost. Judgment reversed. 
 
 HUGHES v. Mcdonough. 
 
 (Supreme Court of Judicature of New Jersey, ISSl. 43 N. J. Law, 459, 
 
 39 Am. Rep. 603.) 
 
 The substance of the declaration was, that the plaintiff was a 
 blacksmith and horseshoer by trade, of good character, &c. ; that he 
 had obtained the patronage of one Peter Van Riper, and that on a 
 certain occasion he shod a certain mare of the said Van Riper in a 
 good and workmanlike manner; that the defendant, maliciously in- 
 tending to injure the plaintiff" in his said trade, &c., "did willfully and 
 maliciously mutilate, impair and destroy the work done and performed 
 by the said plaintiff upon the mare of the said Van Riper, without the 
 knowledge of the said Van Riper, by loosing a shoe which was re- 
 cently put on by the said plaintiff, so that if the mare was driven, the 
 shoe would come off easily, and thus make it appear that the said 
 plaintiff was a careless and unskillful horseshoer and blacksmith, and 
 that the said mare was not shod in a good and workmanlike manner, 
 and thus deprive the plaintiff of the patronage and custom of the 
 said Van Riper." 
 
 The second count charges the defendant with driving a nail in the 
 foot of the horse of Van Riper, after it had been shod by the plain- 
 tiff, with the same design as specified in the first count. 
 
 The special damage was the loss of Van Riper as a customer. 
 
 BeaslEy, C. J. The single exception taken to this record is, that 
 the wrongful act alleged to have been done by the defendant does not 
 appear to have been so closely connected with the damages resulting 
 to the plaintiff as to constitute an actionable tort. The contention was 
 that the wrong was done to Van Riper ; that it was his horse whose 
 shoe was loosened, and whose foot was pricked, and that the im- 
 mediate injury and damage were to him, and that, consequently, the 
 damages to the plaintiff were too remote to be made the basis of a 
 legal claim. 
 
 But this contention involves a misapplication of the legal principle, 
 and cannot be sustained. The illegal act of the defendant had a close 
 
 chusetts act of June 2, 1887 (St. 1887, c. 348) discu.ssed in Rideout v. Knox 
 (1889) 148 Mass. 3G8, 19 N. E. .-JOO, 2 L. R. A. 81, 12 Am. St. Rep. 560, and the 
 Indiana statute of February 27, ]909 (Laws 1909, p. 70, c. 26). 
 
 Compare, also, Tlie German Civil Code (1896) § 826 (Wang's trans.): A 
 per.son who willfully causes damage to another in a manner contra bonos 
 mores is bound to compeusate the other fur the damaye."
 
 Ch. 2) TORTS THROUGH MALICE 1235 
 
 causal connection with the hurt done to the plaintiff, and such hurt 
 was the natural, and almost the direct product of such cause. Such 
 harmful result was sure to follow, in the usual course of things, from 
 the specified malfeasance. The defendant is conclusively chargeable 
 with the knowledge of this injurious eft'ect of his conduct, for such 
 effect was almost certain to follow from such conduct, without the 
 occurrence of any extraordinary event, or the help of any extraneous 
 cause. The act had a twofold injurious aspect; it was calculated to 
 injure both Van Riper and the plaintiff; and as each was directly 
 damnified, I can perceive no reason why each cannot repair his loses 
 by an action. 
 
 The facts here involved do not, with respect to their legal sig- 
 nificance, resemble the juncture that gave rise to the doctrine estab- 
 lished in the case of Vicars v. Wilcocks, 8 East, 1. In that instance 
 the action was for a slander that required the existence of special 
 damage as one of its necessary constituents, and it was decided that 
 such constituent was not shown by proof of the fact that as a result 
 of the defamation the plaintiff had been discharged from his service 
 by his employer before the end of the term for which he had contract- 
 ed. The ground of this decision was that this discharge of the plain- 
 tiff from his employment was illegal, and was the act of a third party, 
 for which the defendant was not responsible, and that, as the wrong of 
 the slander had been detrimental only by reason of an independent 
 wrongful act of another, the injury was to be imputed to the last 
 wrong, and not to that which was farther distant one remove. In 
 his elucidation of the law in this case, Lord Ellenborough says, allud- 
 ing to the discharge of the plaintiff" from his employment, that it "was 
 a mere wrongful act of the master, for which the defendant was no 
 more answerable, than if, in consequence of the words, other persons 
 had afterwards assembled and seized the plaintiff and thrown him 
 into a horse-pond by way of punishment for his supposed transgres- 
 sion." The class of cases to which this authority belongs, rests upon 
 the principle that a man is responsible only for the natural conse- 
 quences of his own misdeeds, and that he is not answerable for detri- 
 ments that ensue from the misdeeds of others. But this doctrine, it 
 is to be remembered, does not exclude responsibility when the dam- 
 age results to the party injured through the intervention of the legal 
 and innocent acts of third parties, for, in such instances, damage is 
 regarded as occasioned by the wrongful cause, and not at all by those 
 which are not v/rongful. Where the eff'ect was reasonably to have 
 been foreseen, and where, in the usual course of events, it was likely 
 to follow from the cause, the person putting such cause in motion 
 will be responsible, even though there may have been many concurring 
 events or agencies between such cause and its consequences. * * * 
 
 The principles thus propounded must have a controlling effect in the 
 decision of the question now before this court, as they decisively show 
 that the damage of which the plaintiff complained was not, in a legal
 
 1236 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 sense, remote from the wrongful act. What, in point of substance, 
 was done by the defendant, was this : he defamed, by the medium of 
 a fraudulent device, the plaintiff in his trade, and by means of which 
 defamation, the latter sustained special detriment. If this defamation 
 had been accomplished by words spoken or written, or by signs or 
 pictures, it is plain the wrong could have been remedied, in the usual 
 form, by an action on the case for slander; and, plainly, no reason 
 exists why the law should not afford a similar redress when the same 
 injury has been inflicted by disreputable craft. It is admitted upon 
 the record that the plaintiff has sustained a loss by the fraudulent 
 misconduct of the defendant; that such loss was not only likely in 
 the natural order of events, to proceed from such misconduct, but that 
 it was the design of the defendant to produce such result by his act. 
 Under such circumstances it would be strange indeed if the party thus 
 wronged could not obtain indemnification by appeal to the judicial 
 tribunals. 
 
 ASHLEY y. HARRISON. 
 
 (At Nisi Prius, Sittings after Michaelmas Term, 1793. 1 Peake, 256, 
 
 3 R. R. 686.) 
 
 This declaration stated that the plaintiff during the time of Lent, 
 1793, caused to be performed every Wednesday and Friday night, by 
 divers singers and musicians at a certain place of public amusement 
 called the Covent Garden Theatre, certain m.usical performances for 
 the entertainment of the public for certain rewards paid to him for 
 admission into the said place of public amusement by those persons 
 who were desirous of hearing the said musical performances; by 
 means whereof he derived great gains, &c., yet the defendant. knowing 
 the premises, but contriving to lessen the profits, &c. and to terrify, 
 deter, &c. a certain public singer called Gertrude Elizabeth Mara ; 
 who had been before that time retained by the plaintiff to sing pub- 
 licly for him at the said place, &c. from singing; wrote and published 
 a certain false and malicious paper writing of and concerning the said 
 G. E. Alara, and of and concerning her conduct, as such public singer 
 as aforesaid, containing therein, &c. The libel was then set out, and 
 the declaration concluded that by reason thereof the said G. E. M. 
 could not sing without great danger of being assaulted, ill-treated, and 
 abused, and was terrified, deterred, prevented, and hindered from so 
 singing ; and that the profits of the amusement were thereby rendered 
 much less than they otherwise would have been. 
 
 On the opening of the cause. Lord Kenyon expressed his disapproba- 
 tion of the action, but on Erskine, for the plaintiff, suggesting that the 
 objection was on the record, his Lordship permitted the case to pro- 
 ceed.
 
 Ch. 2) TORTS THROUGH MALICE 1237 
 
 The declaration was proved, and Madame j\Iara said, that "she did 
 not choose to expose herself to contempt again, and therefore refused 
 to sing." 
 
 When the defendant's counsel were proceeding to their defence, 
 they were stopped by 
 
 Lord Kenyon, who said : This action is unprecedented, and I 
 think cannot be supported on principle. The injury is much too 
 remote to be the foundation of an action. If this action is to be main- 
 tained, I know not to what extent the rule may be carried. For aught 
 I can see to the contrary, it might equally be supported against every 
 man who circulates the glass too freely, and intoxicates an actor, by 
 which he is rendered incapable of performing his part on the stage. 
 If any injury has happened, it was occasioned entirely by the vain fears 
 or caprice of the actress. Madame Mara says, she did not choose to 
 expose herself to contempt again. The action then is to depend en- 
 tirely upon the nerves of the actress ; if she chooses to appear on 
 the stage again, no action can be maintained, if she does not, her re- 
 fusal is to be followed with an action. In actions for defamations 
 whereby a woman loses her marriage, it is not sufficient to prove that 
 she was a virtuous woman, and one who might reasonably hope to 
 have settled well in life ; but a marriage already agreed upon must 
 be shown to have been lost. 
 
 The plaintiff was nonsuited. 
 
 LUMLEY V. GYE. 
 
 (Ck)urt of Queen's Bench, 1853. 2 El. & Bl. 216, 95 R. R. 501.) 
 
 The first count of the declaration stated that the plaintiff was lessee 
 and manager of the Queen's Theatre, for performing operas for gain 
 to him ; and that he had contracted and agreed with Johanna Wagner 
 to perform in the theatre for a certam time, with a condition, amongst 
 others, that she should not sing or use her talents elsewhere during 
 the term without the plaintiff's consent in writing: yet defendant, 
 knowing the premises, and maliciously intending to injure the plain- 
 tiff as lessee and manager of the theatre, whilst the agreement with 
 Wagner was in force, and before the expiration of the term, enticed 
 and procured Wagner to refuse to perform: by means of which en- 
 ticement and procurement of defendant, Wagner wrongfully refused 
 to perform, and did not perform during the term. 
 
 Count 2, for enticing and procuring Johanna Wagner to continue 
 to refuse to perform during the term, after the order of Vice-Chan- 
 cellor Parker — affirmed by Lord St. Leonards (see Lumley and Wag- 
 ner, 1 D., M. & G. 604, 91 R. R. 193) — restraining her from perform- 
 ing at a theatre of the defendants. 
 
 Count 3, that Johanna Wagner had been and was hired by the plain- 
 tiff to sing and perform at his theatre for a certain time, as the
 
 1238 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 dramatic artiste of plaintiff, for reward to her, and had become and 
 was such dramatic artiste of plaintiff at his theatre: yet defendant, 
 well knowing &c., maliciously enticed and procured her, then being 
 such dramatic artiste, to depart from the said employment. 
 
 In each count special damage was alleged. 
 
 Demurrer. Joinder. 
 
 The demurrer was argued in the sittings after Hilary Term last 
 before Colkridgk, Wightman, Erle; and Crompton, JJ. 
 
 Willes, for the defendant : 
 
 The counts disclose a breach of contract on the part of Wagner, for 
 which the plaintiff's remedy is by an action on the contract against 
 her. The relation of master and servant is peculiar; and, though 
 it originates in a contract between the employer and the employed, it 
 gives rise to rights and liabilities, on the part of the master, different 
 from those which w^ould result from any other contract. Thus the 
 master is liable for the negligence of his servant, whilst an ordinary 
 contractor is not liable for that of the person with whom he contracts. 
 And a master may lawfully defend his servant when a contractor may 
 not defend his contractee. And so a master may bring an action for 
 enticing away his servant. But these are anomalies, having their 
 origin in times when slavery existed : they are intelligible on the sup- 
 position that the servant is the property of his master : and, though 
 they have continued long after all but free service has ceased, they are 
 still confined to cases where the relation of master and servant, in the 
 strict sense, exists. In the present case Wagner is a dramatic artiste, 
 not a servant in any sense. 
 
 Cowling, contra : 
 
 The general principle is laid down in Comyns's Digest, Action upon 
 the Case (A). "In all cases, where a man has a temporal loss, or dam- 
 age by the wrong of another, he may have an action upon the case, to 
 be repaired in damages." In Comyns's Digest, Action upon the Case 
 for Misfeasance (A, 6), an instance is given : "If he threatens the 
 tenants of another, whereby they depart from their tenures," citing 1 
 Rol. Abr. 108, Action sur Case (N) pi. 21. An action lies for pro- 
 curing plaintiff's wife to remain absent: Winsmore v. Greenbank, 
 Willes, 577. An action for ravishment of ward : and, if "a man pro- 
 cureth a ward to go from his guardian, this is a ravishment in law :" 
 2 Inst. 440. Now, as neither the tenants, the wife nor the ward are 
 servants, it cannot be said that the action for procurement is an 
 anomaly confined to the case of master and servant. * * * 
 
 CrompTon, J. The declaration in this case consists of three counts. 
 * * * To this declaration the defendant demurred : and the ques- 
 tion for our decision is, whether all or any of the counts are good in 
 substance? 
 
 The effect of the first two counts is, that a person, under a bind- 
 ing contract to perform at a theatre, is induced by the malicious 
 act of the defendant to refuse to perform and entirely to abandon
 
 Ch. 2) TORTS THROUGH MALICE 1239 
 
 her contract; whereby damage arises to the plaintiff, the proprietor 
 of the theatre. The third count differs, in stating expressly that the 
 performer had agreed to perform as the dramatic artiste of the plain- 
 tiff, and had become and was the dramatic artiste of the plaintiff for 
 reward to her; and that the defendant maliciously procured her to 
 depart out of the employment of the plaintiff as such dramatic ar- 
 tiste ; whereby she did depart out of the employment and service of 
 the plaintiff; whereby damage was suffered by the plaintiff". It was 
 said, in support of the demurrer, that it did not appear in the dec- 
 laration that the relation of master and servant ever subsisted between 
 the plaintiff and Miss Wagner ; that Miss Wagner was not averred, 
 especially in the first two counts, to have entered upon the service 
 of the plaintiff'; and that the engagement of a theatrical performer, 
 even if the performer has entered upon the duties, is not of such a 
 nature as to make the performer a servant, within the rule of law 
 which gives an action to the master for the wrongful enticing away 
 of his servant. And it was laid down broadly, as a general proposition 
 of law, that no action will lie for procuring a person to break a con- 
 tract, although such procuring is with a malicious intention and causes 
 great and immediate injury. And the law as to enticing servants 
 was said to be contrary to the general rule and principle of law, and 
 to be anomalous, and probably to have had its origin from the state 
 of society when serfdom existed, and to be founded upon, or upon 
 the equity of, the Statute of Labourers. * * * 
 
 The proposition of the defendant, that there must be a service ac- 
 tually subsisting, seems to be inconsistent with the authorities that 
 show these actions to be maintainable for receiving or harbouring 
 servants after they have left the actual service of the master. * * * 
 
 In Blake v. Lanyon, 6 T. R. 221, 3 R. R. 162, a journeyman who 
 was to work by the piece, and who had left his work unfinished, was 
 held to be a servant for the purposes of such an action ; and I think 
 that it was most properly laid down by the court in that case, 
 that a person who contracts to do certain work for another is the 
 servant of that other (of course with reference to such an action) 
 until the work is finished. It appears to me that Miss Wagner had 
 contracted to do work for the plaintrff within the meaning of this 
 rule; and I think that, where a party has contracted to give his per- 
 sonal services for a certain time to another, the parties are in the 
 relation of employer and employed, or master and servant, within 
 the meaning of this rule. And I see no reason for narrowing such 
 a rule; but I should rather, if necessary; apply such a remedy to a 
 case "new in its instance," but "not new in the reason and principle of 
 it" (11 East, 573), that is, to a case where the wrong and damage 
 are strictly analogous to the wrong and damage in a well recognised 
 class of cases. In deciding this case on the narrower ground, I wish 
 by no means to be considered as deciding that the larger ground taken 
 by Mr. Cowling is not tenable, or of saying that in no case except
 
 1240 TOUTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 that of master and servant is an action maintainable for maliciously 
 indncino^ another to break a contract to the injury of the person with 
 whom such contract has been made. It does not appear to me to be 
 a sound answer, to say that the act in such cases is the act of the 
 party who breaks the contract; for that reason would apply in the 
 acknowledged case of master and servant. Nor is it an answer, to 
 say that there is a remedy against the contractor, and the party relies 
 on the contract; for, besides that reason also applying to the case 
 of master and servant, the action on the contract and the action against 
 the malicious wrong-doer may be for a different matter ; and the 
 damages occasioned by such malicious injury might be calculated on 
 a very dift'erent principle from the amount of the debt which might 
 be the only sum recoverable on the contract. Suppose a trader, with 
 a malicious intent to ruin a rival trader, goes to a banker or other 
 party who owes money to his rival, and begs him not to pay the 
 money which he owes him, and by that means ruins or greatly preju- 
 dices the party : I am by no means prepared to say that an action 
 could not be maintained, and that damages beyond the amount of 
 the debt, if the injury were great, or much less than such amount 
 if the injury were less serious, might not be recovered. Where two or 
 more parties were concerned in inflicting such injury, an indictment 
 or a writ of conspiracy at common law, might perhaps have been main- 
 tainable; and, where a writ of conspiracy would lie for an injury 
 inflicted by two, an action on the case in the nature of conspiracy will 
 generally lie ; and in such action on the case the plaintiff is entitled 
 to recover against one defendant without proof of any conspiracy, 
 the malicious injury and not the conspiracy being the gist of the action. 
 1 Wms. Saund. 230. In this class of cases it must be assumed that it is 
 the malicious act of the defendant, and that malicious act only, which 
 causes the servant or contractor not to perform the work or contract 
 which he would otherwise have done. The servant or contractor may 
 be utterly unable to pay anything like the amount of the damage sus- 
 tained entirely from the wrongful act of the defendant : and it would 
 seem unjust, and contrary to the general principles of law, if such 
 wrong-doer were not responsible for the damage caused by his wrong- 
 ful and malicious act. Several of the cases cited by Mr. Cowling on 
 this part of the case seem worthy of attention. 
 
 Without however deciding any such more general question, I think 
 that we are justified in applying the principle of the action for en- 
 ticing away servants to a case where the defendant maliciously pro- 
 cures a party, who is under a valid contract to give her exclusive 
 personal services to the plaintiff for a specified period, to refuse to 
 give such services during the period for which she had so contracted, 
 whereby the plaintiff was injured. 
 
 I think, therefore, that our judgment should be for the plaintiff. 
 
 Coleridge, J. * * * In order to maintain this action, one of 
 two propositions must be maintained; either that an action will lie
 
 Ch. 2) TORTS THROUGH MALICE 1241 
 
 against anyone by whose persuasions one party to a contract is in- 
 duced to break it to the damage of the other party, or that the action, 
 for seducing a servant from the master or persuading one who has 
 contracted for service from entering into the employ, is of so wide 
 an apphcation as to embrace the case of one in the position and 
 profession of Johanna Wagner, After much consideration and en- 
 quiry I am of opinion that neither of these propositions is true ; and 
 they are both of them so important, and, if estabhshed by judicial de- 
 cision, will lead to consequences so general, that, though I regret the 
 necessity, I must not abstain from entering into remarks of some 
 length in support of my view of the law. * * * 
 
 Persuading with effect, or effectually or successfully persuading, 
 may no doubt sometimes be actionable — as in trespass — even where 
 it is used towards a free agent : the maxims qui facit per alium 
 f acit per se, and respondeat superior, are questionable ; but, where 
 they apply, the wrongful act done is properly charged to be the act 
 of him who has procured it to be done. He is sued as a principal 
 trespasser, and the damage, if proved, flows directly and imm.ediately 
 from his act, though it was the hand of another, and he a free agent, 
 that was employed. But when you apply the term of effectual per- 
 suasion to the breach of a contract it has obviously a different mean- 
 ing; the persuader has not broken and could not break the contract, 
 for he had never entered into any; he cannot be sued upon the con- 
 tract; and yet it is the breach of the contract only that is the cause 
 of the damage. Neither can it be said that in breaking the contract the 
 contractor is the agent of him who procures him to do so ; it is still his 
 own act; he is principal in so doing, and is the only principal. This 
 answer may seem technical : but it really goes to the root of the matter. 
 It shows that the procurer has not done the hurtful act ; what he has 
 done is too remote for the damage to make him answerable for it. 
 The case itself of Winsmore v. Greenbank, Willes, 577, seems to me 
 to have little or no bearing on the present : a wife is not, as regards 
 her husband, a free agent or separate person; if to be considered 
 so for the present purpose, she is rather in the character of a serv- 
 ant, with this important peculiarity, that, if she be induced to with- 
 draw from his society and cohabit with another or do him any 
 wrong, no action is maintainable by him against her. In the case 
 of criminal conversation, trespass lies against the adulterer as for 
 an assault on her, however she may in fact have been a willing party 
 to all that the defendant had done. No doubt, therefore, effectual 
 persuasion to the wife to withdraw and conceal herself from her hus- 
 band is in the eye of the law an actual withdrawing and concealing 
 her; and so, in other counts of the declaration, was it charged in this 
 very case of Winsmore v. Greenbank, Willes, ^77. A case explain- 
 able and explained on the same principle is that of ravishment of 
 ward. The writ of this lay against one who procured a man's ward 
 to depart from him; and, where this was urged in a case hereafter
 
 1242 TOUTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 to be cited, Alich. 11 Hen. IV, fol. 23 A, pi. 46, post, p. 527 seq.. 
 Judge Hankf ord gives the answer : the reason is, he says, because 
 the ward is a chattel, and vests in him who has the right. None of 
 this reasoning appHes to the case of a breach of contract: if it does, 
 I should be glad to known how any treatise on the law of contract 
 could be complete without a chapter on this head, or how it happens 
 that we have no decisions upon it. Certainly no subject could be more 
 fruitful or important ; important contracts are more commonly bro- 
 ken with than without persuaders or procurers, and these often re- 
 sponsible persons when the principals may not be so. I am aware 
 that with respect to an action on the case the argument primae im- 
 pressionis is sometimes of no weight. If the circumstances under 
 which the action would be brought have not arisen, or are of rare 
 occurrence, it will be of none or only of inconsiderable weight; but, 
 if the circumstances have been common, if there has been frequent 
 occasion for the action, I apprehend that it is important to find that 
 the action has yet never been tried. * * * 
 
 Again, where several persons happen to persuade to the same ef- 
 fect, and in the result the party persuaded acts upon the advice, how 
 is it to be determined against whom the action may be brought, wheth- 
 er they are to be sued jointly or severally, in what proportions dam- 
 ages are to be recovered ? Again, if, instead of limiting our recourse 
 to the agent, actual or constructive, we will go back to the person 
 who immediately persuades or procures him one step, why are we 
 [to] stop there? The first mover, and the malicious mover too, may 
 be removed several steps backward from the party actually induced 
 to break the contract : why are we not to trace him out ? Morally he 
 may be the most guilty. I adopt the arguments of Lord Abinger and 
 my Brother Alderson in the case of Winterbottom v.' Wright, 10 M. 
 & W. 109, 62 R. R. 534; if we go the first step, we can show no 
 good reason for not going fifty. And, again, I ask how is it that, if 
 the law really be as the plaintiff contends, we have no discussions 
 upon such questions as these in our books, no decisions in our reports? 
 Surely such cases would not have been of rare occurrence : they are 
 not of slight importance, and could hardly have been decided without 
 reference to the Courts in Banc. Not one was cited in the argument 
 bearing closely enough upon this point to warrant me in any fur- 
 ther detailed examination of them. I conclude therefore what oc- 
 curs to me on the first proposition on which the plaintiff's case rests. 
 
 I come now to the second proposition, that the decisions in respect 
 of master and servant, and the seducing of the latter from the employ 
 of the former, are exceptions grafted on the general law traceable 
 up to the Statute of Labourers. This is of course distinct from the 
 question of the extent of the exception, that is, to what classes of 
 servants it applies : but the enquiries are so connected together in fact, 
 and the latter has so obvious a bearing in support of the former, that 
 it will be better to take them both together.
 
 Ch. 2) TORTS THROUGH MALICE 1243 
 
 Now, in the first place, I cannot find any instance of this action 
 having been brought before the statute passed; the weight of which 
 fact is much increased by finding that it was of common occurrence 
 very soon after. The evidence for it is not merely negative, for the 
 mischief and the cause of action appear to have been well known 
 before, and the want of the remedy felt. The common law did give 
 a remedy in certain cases ; and Judges are found pointing out what 
 that remedy was, and to what cases it applied. From the cases col- 
 lected in Fitzherbert's Abridgment, tit. Laborers, it appears that 
 the distinction between the action at common law and the action up- 
 on the statute was well known : wherever the former action lay it 
 was in trespass, and not on the case: in saying which I do not rely 
 merely on the words, — writ of trespass, — which might be applicable 
 to trespass on the case ; but I rely on the operative words of the 
 writ, which stated a taking vi et armis: it might be joined with 
 trespass quare clausum fregit or trespass for the asportation of 
 chattels or false imprisonment. The count necessarily charged the 
 taking of the servant out of the service of the plaintiff; whereas the 
 writ upon the statute, as appears from Fitzherbert's Natura Brevium, 
 167 B, charges the retainer and admission of the servant into the 
 defendant's service after he has been induced to withdraw, or has 
 withdrawn without reasonable cause, from that of the plaintiff. I 
 do not wish unnecessarily to multiply citations from the Year Books ; 
 but it will be necessary to refer to some, and at a greater length than 
 they are found in the abridgments. * * * 
 
 Any one, I am certain, who will go through the cases abstracted 
 by Fitzherbert under the title Laborers, will be satisfied that at com- 
 mon law, before the statute, such an action as the present could not 
 be maintained. Under that title 61 cases are abridged : many of 
 them are for the seduction of servants; but there is no instance of 
 any one in which the action at common law was sustained, unless 
 an actual trespass was charged : and it is clear from the case which 
 I have cited at so much length, that the distinction between taking 
 ^and procuring to go was familiar to the lawyers of that day. I can 
 hardly imagine that this could have been said, if the common law 
 would have given relief in such a case : and, if it could, the rapid 
 growth of the action after the Statute of Labourers had passed would 
 be difficult to account for. 
 
 I come then to the Statute of Labourers (23 Edw. Ill) ; and my 
 object now is to show that nothing in the provisions or policy of that 
 statute will warrant the action under the circumstances of this case; 
 and that the older authorities are decidedly against it. * * * 
 
 I conclude then that this action cannot be maintained, because: 
 1st. Merely to induce or procure a free contracting party to break 
 his covenant, whether done maliciously or not, to the damage of 
 another, for the reasons I have stated, is not actionable. 2nd. That 
 the law with regard to the seduction of servants from their master's
 
 1244 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 employ, in breach of their contract, is an exception, the origin of 
 which is known, and that that exception does not reach the case of 
 a theatrical performer. 
 
 I know not whether it may be objected that this judgment is con- 
 ceived in a narrow spirit, and tends unnecessarily to restrain the reme- 
 dial powers of the law. In my opinion it is not open to this objection. 
 It seems to me wiser to ascertain the powers of the instrument with 
 which you work, and employ it only on subjects to which they are 
 equal and suited; and that, if you go beyond this, you strain and 
 weaken it, and attain but imperfect and unsatisfactory and often 
 unjust, results. But, whether this be so or not, we are limited by only 
 the principles and analogies which we find laid down for us, and are 
 to declare, not to make, the rule of law. 
 
 I think, therefore, with the greatest and most real deference for 
 the opinions of my Brethren, and with all the doubt as to the cor- 
 rectness of my own which these opinions, added to the novelty and 
 difficulty of the case itself, cannot but occasion, ihat our judgment 
 ought to be for the defendant: though it must be pronounced for 
 the plaintiff. 
 
 Judgment for plaintiff.^^ 
 
 LA SOClfiTfi ANONYME DE REINTORQUAGE A HELICE v. 
 
 BENNETTS. 
 
 (High Court of Justice, King'.s Bench Division, 1910. [1911] 1 K. B. 243.) 
 
 Action tried in the Commercial Court before Hamilton, J., without 
 a jury. 
 
 The plaintiffs claimed to recover damages suffered by them by rea- 
 son of the negligence of the defendant's servants. The facts, so far 
 as material, were as follows. 
 
 On April 4, 1910, the steam tug John Bull, belonging to the plain- 
 tiffs, was engaged in towing the ship Kate Thomas from Antwerp to 
 Port Talbot, South Wales, when the steamship India, belonging to. 
 the defendant, by the negligence of defendant's servants, came into 
 collision with and sank the Kate Thomas. The tug received no dam- 
 age either to herself or to her equipment. The plaintiff's alleged that 
 by reason of the negligence of the defendant's servants they were de- 
 prived of their tow and lost the towage remuneration they would 
 otherwise have received, and claimed £80, as the amount of the tow- 
 age remuneration so lost, that being the remuneration fixed by the con- 
 tract for the towage of the Kate Thomas from Antwerp to Port Tal- 
 bot. At the time of the acccident about four-fifths of the voyage from 
 Antwerp to Port Talbot had been completed. The defendant con- 
 is A large part of the opinion of Crompton, J., all of the concurring opin- 
 ions of Kile and Wightniau, JJ., and portions of the dissenting opinion of 
 Coleridge, J., are omitted.
 
 Ch. 2) TORTS THROUGH MALICE 1245 
 
 tended that the plaintiff had no cause of action in respect of the loss 
 of the towage remuneration upon the ground that, although there was 
 negligence on the part of the defendant's servants, the loss of towage 
 remuneration was not damage to the plaintiffs which was the direct 
 consequence of the negligence so as to be recoverable in law. 
 
 It appeared from the report of the master of the John Bull that, 
 seeing that the Kate Thomas was in the most alarming sinking con- 
 dition after the collision, he immediately cast off the hawser in order 
 to be able to render assistance to the ship, but that before reaching 
 the place of the disaster she had sunk. The defendant paid the plain- 
 tiffs for the loss of the hawser. Clause 9 of the towage contract pro- 
 vided as follows: "Sea towage interrupted by accident to be paid 
 pro ratio of distance towed." 
 
 Hamilton, J. * ''^ * In my opinon the plaintiffs have no 
 cause of action. The obligation upon the defendant which was brok- 
 en by his servants was the general one of navigating the seas with 
 reasonable care. In order to give the plaintiffs a cause of action 
 arising out of that breach, they must show not only injuria, namely, 
 the breach of the defendant's obligation, but also damnum to them- 
 selves in the sense of damage recognized by law. This they have 
 failed to do. No doubt, as a direct consequence of the collision, in 
 one sense, the plaintiffs lost the chance of completing their towage 
 contract, because the Kate Thomas went to the bottom. If the plain- 
 tiffs' cause of action had been completed by damage to the tow in- 
 flicted by the defendant's servants whereby the tug was no longer 
 able to tow, then the case would come within Lord Stowell's decision 
 in The Betsey Caines, 2 Hagg. Adm. 28, and the decision of the 
 House of Lords in The Argentino, 14 App. Cas. 519, would apply. 
 But all that has occurred is that in the course of performing a prof- 
 itable contract an event happened which rendered the contract no 
 further performable and therefore less profitable to the plaintiffs. 
 That appears to me to bring the case within the authority of Cattle v. 
 Stockton Waterworks Co., L. R. 10 Q. B. 453, and within the general 
 statement of the law by Lord Penzance in his judgment in Simpson 
 V. Thomson, 3 App. Cas. 279. It has been suggested that a distinc- 
 tion can be drawn between a case where the contract has been en- 
 tered into but performance of it has not been entered upon, in which 
 case it is admitted on the plaintiffs' behalf that the loss does not give 
 a cause of action, and a case where the contract has not only been 
 entered into, but performance of it has commenced. No authority has 
 been cited for making such a distinction and 1 can see none in principle. 
 I think this case involves the very point anticipated by Blackburn, J., 
 in Cattle v. Stockton Waterworks Co., L. R. 10 O. B. 453, where in 
 giving judgment he said : "In the present case the objection is technical 
 and against the merits, and we should be glad to avoid giving it effect. 
 But if we did so we should establish an authority for saying that in 
 such a case as that of Rylands v. Fletcher (1868) L. R. 3 H. L. 330,
 
 1246 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 the defendant would be liable, not only to an action by the owner of 
 the drowned mine, and by such of his workmen as had their tools 
 or clothes destroyed, but also to an action by every workman and person 
 employed in the mine, who in consequence of its stoppage made less 
 wages than he otherwise would have done." It can make no substantial 
 difference whether a contract which has been entered into is already in 
 the course of performance or is only about to be performed. In either 
 case all that has happened is that the conditions under which the con- 
 tract was performable have been altered by the act of the defendant 
 so as to make them less favorable to one of the contracting parties, 
 namely, to the plaintiffs. I can understand that the law might regard 
 any interference by the defendant with the plaintiffs' contractual chanc- 
 es with a third party as a ground of action in their favor, but I can- 
 not understand why, as the policy of the law excludes a right of action 
 in the one case, where the contract has been made but not performed, 
 it should give a cause of action in the other case, where part per- 
 formance has taken place. There must therefore, be judgment for 
 the defendant. 
 
 Judgment for the defendant.^' 
 
 TUTTLE V. BUCK. 
 
 (Supreme Court of Minnesota, 1909. 107 Minn. 14.5, 119 N. W. 946, 22 L. R. A. 
 [N. S.] 599, 131 Am. St. Rep. 446, 16 Ann. Cas. 807.) 
 
 Elliott, J. This appeal was from an order overruling a general 
 demurrer to a complaint in which the plaintiff alleged : That for 
 more than 10 years last past he has been and still is a barber by trade, 
 and engaged in business as such in the village of Howard Lake, Minn., 
 in said county, where he resides, owning and operating a shop for the 
 purpose of his said trade. That until the injury hereinafter com- 
 plained of his said business was prosperous, and plaintiff was enabled 
 thereby to comfortably maintain himself and family out of the income 
 and profits thereof, and also to save a considerable sum per annum, 
 to wit, about $800. That the defendant, during the period of about 
 12 months last past, has wrongfully, unlawfully, and maliciously en- 
 deavored to destroy plaintiff's said business and compel plaintiff to 
 abandon the same. That to that end he has persistently and system- 
 atically sought, by false and malicious reports and accusations of and 
 concerning the plaintiff, by personally soliciting and urging plaintiff's 
 patrons no longer to employ plaintiff, by threats of his personal dis- 
 pleasure, and by various other unlawful means and devices, to induce, 
 and has thereby induced, many of said patrons to withhold from plain- 
 tiff the employment by them formerly given. That defendant is pos- 
 sessed of large means, and is engaged in the business of a banker in 
 
 i» Fait of tlie opinion is omitted.
 
 Ch. 2) TORTS THROUGH MALICE 1247 
 
 said village of Howard Lake, at Dassel, Minn., and at divers other 
 places, and is nowise interested in the occupation of a barber; yet in 
 the pursuance of the wicked, malicious, and unlawful purpose afore- 
 said, and for the sole and only purpose of injuring the trade of the 
 plaintiff, and of accomplishing his purpose and threats of ruining the 
 plaintiff's said business and driving him out of said village, the defend- 
 ant fitted up and furnished a barber shop in said village for conducting 
 the trade of barbering. That failing to induce any barber to occupy 
 said shop on his own account, though offered at nominal rental, said 
 defendant, with the wrongful and malicious purpose aforesaid, and not 
 otherwise, has during the time herein stated hired two barbers in suc- 
 cession for a stated salary, paid by him, to occupy said shop, and to 
 serve so many of plaintiff's patrons as said defendant has been or may 
 be able by the means aforesaid to direct from plaintiff's shop. That 
 at the present time a barber so employed and paid by the defendant is 
 occupying and nominally conducting the shop thus fitted and fur- 
 nished by the defendant, without paying any rent therefor, and under 
 an agreement with defendant whereby the income of said shop is re- 
 quired to be paid to defendant, and is so paid in partial return for his 
 wages. That all of said things were and are done by defendant with 
 the sole design of injuring the plaintiff, and of destroying his said 
 business, and not for the purpose of serving any legitimate interest of 
 his own. That by reason of the great wealth and prominence of the 
 defendant, and the personal and financial influence consequent thereon, 
 he has by the means aforesaid, and through other unlawful means and 
 devices by him employed, materially injured the business of the plain- 
 tiff", has largely reduced the income and profits thereof, and intends 
 and threatens to destroy the same altogether, to plaintiff's damage in 
 the sum of $10,000. 
 
 It has been said that the law deals only with externals, and that a 
 lawful act cannot be made the foundation of an action because it was 
 done with an evil motive. In Allen v. Flood, [1898] A. C. 151, Lord 
 Watson said that, except with regard to crimes, the law does not take 
 into account motives as constituting an element of civil wrong. In 
 Mayor v. Pickles, [1895] A. C. 587, Lord Halsbury stated that if the 
 act was lawful, "however ill the motive might be, he had a right to 
 do it." In Raycroft v. Tayntor, 68 Vt. 219, 35 Atl. 53, 33 L. R. A. 
 225, 54 Am. St. Rep. 882, the court said that, "where one exercises a 
 legal right only, the motive which actuates him is immaterial." In 
 Jenkens v. Fowler, 24 Pa. 318, Mr. Justice Black said that "mis- 
 chievous motives make a bad case worse, but they cannot make that 
 wrong which in its own essence is lawful." This language was quoted 
 in Bohn Mfg. Co. v. Hollis, 54 Minn. 233, 55 N. \V. 1119, 21 L. R. A. 
 337, 40 Am. St. Rep. 319, and in substance in Ertz v. Produce Ex- 
 change, 79 Minn. 143, 81 N. W. 72>7 , 48 L. R. A. 90, 79 Am. St. 
 Rep. 433. See, also, Cooley, Torts f3d Ed.) p. 1505; Auburn & Co. v. 
 Douglass, 9 N. Y. 444. Such generalizations are of little value in dc-
 
 1248 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 termining concrete cases. They may state the truth, but not the whole 
 truth. Each word and phrase used therein may require definition and 
 Hmitation. Thus, before we can apply Judge Black's language to a 
 particular case, we must determine what act is "in its own essence law- 
 ful." What did Lord Halsbury mean by the words "lawful act"? 
 What is meant by "exercising a legal right" ? It is not at all correct to 
 say that the motive with which an act is done is always immaterial, 
 providing the act itself is not unlawful. Numerous illustrations of the 
 contrary will be found in the civil as well as the criminal law. 
 
 We do not intend to enter upon an elaborate discussion of the sub- 
 ject, or become entangled in the subtleties connected with the words 
 "malice" and "malicious," We are not able to accept without limita- 
 tions the doctrine above referred to, but at this time content ourselves 
 with a brief reference to some general principles. It must be remem- 
 bered that the common law is the. result of growth, and that its de- 
 velopment has been determined by the social needs of the community 
 which it governs. It is the resultant of conflicting social forces, and 
 those forces which are for the time dominant leave their impress upon 
 the law. It is of judicial origin, and seeks to establish doctrines and 
 rules for the determination, protection, and enforcement of legal rights. 
 Manifestly it must change as society changes and new rights are recog- 
 nized. To be an efficient instrument, and not a mere abstraction, it 
 must gradually adapt itself to changed conditions. Necessarily its 
 form and substance has been greatly affected by prevalent economic 
 theories. For generations there has been a practical agreement upon 
 the proposition that competition in trade and business is desirable, 
 and this idea has found expression in the decisions of the courts as 
 well as in statutes. But it has led to grievous and manifold wrongs to 
 individuals, and many courts have manifested an earnest desire to 
 protect the individuals from the evils which result from unrestrained 
 business competition. The problem has been to so adjust matters as 
 to preserve the principle of competition and yet guard against its abuse 
 to the unnecessary injury to the individual. So the principle that a 
 man may use his own property according to his own needs and desires, 
 while true in the abstract, is subject to many limitations in the con- 
 crete. Men cannot always in civilized society, be allowed to use their 
 own property as their interests or desires may dictate without refer- 
 ence to the fact that they have neighbors whose rights are as sacred 
 as their own. The existence and well-being of society requires that 
 each and every person shall conduct himself consistently with the fact 
 that he is a social and reasonable person. The purpose for which a 
 man is using his own property may thus sometimes determine his 
 rights, and applications of this idea arc found in Stillwater Water Co. 
 V. Farmer, 89 Minn. 58, 93 N. W. 907, 60 L. R. A. 875, 99 Am. St. 
 Rep. 541, Id., 92 Minn. 230, 99 N. W. 882, and Barclay v. Abraham, 
 121 Iowa, 619, 96 N. W. 1080, 64 L. R. A. 255, 100 Am. St. Rep. 365. 
 
 Many of the restrictions which should be recognized and enforced
 
 Ch. 2) TORTS THROUGH MALIOB 1249 
 
 result from a tacit recognition of principles which are not often stated 
 in the decisions in express terms. Sir Frederick Pollock notes that 
 not many years ago it was dififiicult to find any definite authority for 
 stating as a general proposition of English law that it is wrong to 
 do a willful wrong to one's neighhor without lawful justification or 
 excuse. But neither is there any express authority for the general 
 proposition that men must perform their cont'racts. Both principles, in 
 this generality of form and conception, are modern and there was 
 a time when neither was true. After developing the idea that law 
 begins, not with authentic general principles, but with the enumeration 
 of particular remedies, the learned writer continues : "If there exists, 
 then, a positive duty to avoid harm, much more, then, exists the 
 negative duty of not doing willful harm, subject, as all general duties 
 must be subject, to the necessary exceptions. The three main heads of 
 duty with which the law of torts is concerned, namely, to abstain from 
 willful injury, to respect the property of others, and to use due dili- 
 gence to avoid causing harm to others, are all alike of a comprehensive 
 nature." Pollock, Torts (8th Ed.) p. 21. He then quotes with ap- 
 proval the statement of Lord Bowen that "at common law there was 
 a cause of action whenever one person did damage to another, will- 
 fully and intentionally, without just cause and excuse." In Plant v. 
 Woods, 176 Mass. 492, 57 N. E. 1011, 51 L. R. A. 339, 79 Am. St. 
 Rep. 330, ]\Ir. Justice Hammond said : "It is said, also, that, where 
 one has the lawful right to do a thing, the motive by which he is 
 actuated is immaterial. One form of this statement appears in the 
 first headnote in Allen v. Flood, as reported in [1898] A. C. 1, as fol- 
 lows : 'An act lawful in itself is not converted by a malicious or bad 
 motive into an unlawful act, so as to make the doer of the act liable 
 to a civil action.' If the meaning of this and similar expressions is 
 that, where a person has the lawful right to do a thing irrespective of 
 his motive, his motive is immaterial, the proposition is a mere truism. 
 If, however, the meaning is that where a person, if actuated by one 
 kind of a motive, has a lawful right to do a thing, the act is lawful 
 when done under any conceivable motive, or that an act lawful under 
 one set of circumstances is therefore lawful under every conceivable 
 set of circumstances, the proposition does not commend itself to us 
 as either logically or legally accurate." Similar language was used by 
 Mr. Justice Wells in Walker v. Cronin, 107 Mass. 555 ; by Lord 
 Coleridge in Mogul Steamship Co. v. McGregor, 21 Q. B. D. 544-553 ; 
 by Lord Justice Bowen in the same case, 22) Q. B. D. 593 ; by Mr. 
 Justice Holmes in Aikens v. Wisconsin, 195 U. S. 194, 204, 25 Sup. 
 Ct. 3, 49 L. Ed. 154; by Chief Justice McSherry in Klingel's Pharma- 
 cy V. Sharp, 104 Md. 233, 64 Atl. 1029, 7 L. R. A. (N. S.) 976, 118 
 Am. St. Rep. 399, 9 Ann. Cas. 1184; and by Judge Sanborn in his 
 dissenting opinion in Passaic Print Works v. Ely & Walker Dry Goods 
 Co., 105 Fed. 163, 44 C. C. A. 426, 62 L. R. A. 672>. Numerous cases 
 Hepb. Torts — 79
 
 1250 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part o 
 
 will be found referred to in the note to this case in 62 L- R. A. 673, and 
 in an article in 18 Harvard Law Review, 411. 
 
 It is freely conceded that there are many decisions contrary to this 
 view; but, when carried to the extent contended for by the appel- 
 lant, we think they are unsafe, unsound, and illy adapted to modern 
 conditions. To divert to one's self the customers of a business rival 
 by the offer of goods at lower prices is in general a legitimate mode of 
 serving one's own interest, and justifiable as fair competition. But 
 when a man starts an opposition place of business, not for the sake 
 of profit to himself, but regardless of loss to himself, and for the sole 
 purpose of driving his competitor out of business, and with the inten- 
 tion of himself retiring upon the accomplishment of his malevolent 
 purpose, he is guilty of a wanton wrong and an actionable tort. In 
 such a case he would not be exercising his legal right, or doing an act 
 which can be judged separately from the motive which actuated him. 
 To call such conduct competition is a perversion of terms. It is 
 simply the application of force without legal justification, which in its 
 moral quality may be no better than highway robbery. 
 
 Nevertheless, in the opinion of the writer this complaint is insuffi- 
 cient. It is not claimed that it states a cause of action for slander. 
 No question of conspiracy or combination is involved. Stripped of 
 the adjectives and the statement that what was done was for the sole 
 purpose of injuring the plaintiff, and not for the purpose of serving 
 a legitimate purpose of the defendant, the complaint states facts which 
 in themselves amount only to an ordinary everyday business transac- 
 tion. There is no allegation that the defendant was intentionally run- 
 ning the business at a financial loss to himself, or that after driving 
 the plaintiff out of business the defendant closed up or intended to 
 close up his shop. From all that appears from the complaint he may 
 have opened the barber shop, energetically sought business from his 
 acquaintances and the customers of the plaintiff, and as a result of 
 his enterprise and command of capital obtained it, with the result that 
 the plaintiff, from want of capital, acquaintance, or enterprise, was 
 unable to stand the competition and was thus driven out of business. 
 The facts thus alleged do not, in my opinion, in themselves, without 
 reference to the way in which they are characterized by the pleader, 
 tend to show a malicious and wanton wrong to the plaintiff. 
 
 A majority of the Justices, however, are of the opinion that, on the 
 principle declared in the foregoing opinion, the complaint states a 
 cause of action, and the order is therefore affirmed. 
 
 Affirmed. 
 
 Jaggard, J,, dissents.
 
 Ch. 2) TORTS THROUGH MALICE 1251 
 
 HUSKIE V. GRIFFIN. 
 
 (Supreme Court of New Hampshire, 1909. 75 N. H. 345, 74 Atl. 595, 
 27 L. R. A. [N. S.] 966, 139 Am. St. Rep. 718.) 
 
 In this action, by Huskie against Griffin, there was a judgment of 
 nonsuit in the superior court, and the case was transferred on the 
 plaintiff's exception. 
 
 The plaintiff's evidence tended to prove that, while he was em- 
 ployed by the defendant, he applied for an increase of wages, and 
 was told by the defendant's superintendent that he was at liberty to 
 leave at any time if he could better himself. He sought employment 
 elsewhere, and one day received a note stating that he could have 
 work at the McElwain factory. He showed the note to Griffin's super- 
 intendent, who made no objection to the proposed action, but at once 
 went to the office and drew the plaintiff's wages for him. As soon 
 as the plaintiff had left. Griffin telephoned to Trull, superintendent of 
 the McElwain shop. . Trull's testimony as to the conversation was in 
 part as follows: "He telephoned and said there was a man from 
 my factory came up to his factory with a note and hired, or was about 
 to hire, one of his men, right in the middle of the day, and wanted to 
 know if I thought that was a nice thing to do. I said it was not, and 
 that I would not hire the man; and when I found out about it I 
 told our man not to hire him. Q. That is, you instructed your agent 
 not to hire him? A. Yes, sir; but after that Griffin told me I could 
 hire him, but I told him I didn't want him. Q. That was a little 
 ironical, wasn't it. Air. Trull? A. Well, during the same conversa- 
 tion, right afterward, he said, 'You can have him if you want him, 
 you can hire him.' Q. And you understood that to be a little bit 
 ironical, didn't you. A. I didn't understand anything about it. Q. 
 Well, you didn't hire him, anyhow? A. No, sir; I didn't hire him." 
 On cross-examination, the witness stated the conversation more fa- 
 vorable to the defendant. When the plaintiff reached the McElwain 
 factory he was refused employment. He then returned to the de- 
 fendant, who complained because the plaintiff received a note in the 
 shop. The conversation became heated, and the defendant refused to 
 comply with the plaintiff's request to telephone to Trull and adjust the 
 matter. 
 
 PEaslh;^, J. The parties to this action do not agree as to wliat 
 facts the evidence tended to prove. The defendant argues that be- 
 cause he asked Trull to retain the plaintiff as an employe therefore 
 it cannot be found that the defendant sought to cause the plaintiff's 
 discharge by Trull. The plaintiff"'s claim is that the request to retain 
 him might be found to be a mere cover, well understood by both 
 parties to the conversation. His claim is well founded. A jury might 
 believe that the complaint made by the defendant to Trull was false, 
 and that the defendant, after he had encouraged the plaintiff' to seek
 
 1252 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 employment elsewhere, maliciously caused the plaintiff's discharge 
 from such new employment. The plaintiff's engagement was not for 
 any certain period. Trull might lawfully discharge him at any time. 
 It therefore follows that cases involving recovery for procuring the 
 breach of a binding executory contract (Bixby v. Dunlap, 56 N. H. 
 456, 22 Am. Rep. 475 ; South Wales Miners' Fed. v. Glamorgan Coal 
 Co., [1905] A. C. 239) are not in point here. The issue presented is 
 that of the existence and extent of what has come to be known as the 
 right to an "open market." How far one may lawfully interfere to 
 prevent the making of contracts between third parties is a problem 
 which has been much discussed in other jurisdictions. It is new in 
 this state. Three phases of it are presented by the case at bar : (1) 
 When the interference is by fraud ; (2) when it is without fraud or 
 force (actually applied or reasonably apprehended), but prompted by 
 a motive to injure the aggrieved party; (3) when it is unaccompanied 
 by what are ordinarily considered illegal acts or motives, and is in- 
 duced solely by a desire of the defendant to promote his own welfare. 
 
 1. It is well established that the inherent right of every man to 
 freely deal, or refuse to deal, with his fellowmen is not to be de- 
 stroyed or abridged by acts involving the elements of the common-law 
 action for deceit. This is not denied. On this branch of the case the 
 defendant relies upon the proposition that the facts are not made out. 
 He concedes, as he plainly must concede, that the law is in favor of 
 the plaintift''s position, provided only that there is evidence to support 
 the several necessary findings. As before stated, there was evidence in 
 this case which, if believed by the jury, would lead to the conclusion 
 that the defendant was guilty of fraud. It could be found that the 
 plaintiff' quit the defendant's employ in an honorable manner; that the 
 defendant, with knowledge of the facts, represented that the plaintiff's 
 departure was dishonorable ; that this was done with the intent to cause 
 the new employer to act to the plaintiff's damage, and that such dam- 
 aging action resulted from this cause. The plaintiff was entitled to go 
 to the jury upon the issue of fraud. 
 
 2. Whether motive (when falsehood is absent) is a material ele- 
 ment in these cases is a question upon which the authorities are not 
 so fully agreed. That it is material, and that where malice, or a pur- 
 pose to do the plaintiff injury, is the moving force to the commission 
 of the act, a recovery may be had is the rule in maity jurisdictions. 
 Plant V. Woods, 176 Mass. 492, 57 N. E. 1011, 51 L. R. A. 339, 79 
 Am. St. Rep. 330; Van Horn v. Van Horn, 56 N. J. Law, 318, 28 
 Atl. 669; Doremus v. Hennessy, 176 111. 608, 52 N. E. 924, 54 N. E. 
 524, 43 L. R. A. 797, 802, 68 Am. St. Rep. 203 ; Ertz v. Produce Ex- 
 change, 79 Minn. 140, 81 N. W. 7Z7 , 48 L. R. A. 90, 79 Am. St. Rep. 
 433; Bowen v. Hall, 6 Q. B. Div. 333. The rule is well stated in a 
 recent case in California: "Any injury to a lawful business, whether 
 the result of a conspiracy or not, is prima facie actionable, but may be 
 defended upon the ground that it was merely the result of a lawful
 
 Ch. 2) TORTS THROUGH MALICE 1253 
 
 effort of the defendants to promote their own welfare. To defeat 
 this plea of justification, the plaintiff may offer evidence that the 
 acts of the defendants were inspired by express malice, and were 
 done for the purpose of injuring the plaintiff, and not to benefit them- 
 selves. The principle is the same which permits proof of express 
 malice to defeat the plea of privilege in libel, or the defense of prob- 
 able cause in actions for malicious prosecution or false imprisonment." 
 J. F. Parkinson Co. v. Trades Council, 154 Cal. 581, 98 Pac. 1027, 21 
 L. R. A. (N. S.) 550, 16 Ann. Cas. 1165. The opposite view is taken 
 by high authority. Macauley v. Tierney, 19 R. I. 255, 33 Atl. 1, 37 L. 
 R. A. 455, 61 Am. St. Rep. 770; Bohn Mfg. Co. v. Hollis, 54 Minn. 
 223, 55 N. W. 1119, 21 L. R. A. 337, 40 Am. St. Rep. 319; Judge 
 Jeremiah Smith in 20 Harv. Law Rev. 451, et seq. 
 
 For the reason above indicated, and others which will be given in 
 the discussion of the next issue in this case, it is held that a state- 
 ment of the truth, made for the sole purpose of damaging the plain- 
 tiff' by causing a third party to refuse to further deal with the plain- 
 tiff*, is actionable if damage ensues. The state of mind of an offend- 
 ing person may be proved in various ways. It may appear that there 
 was no good reason for doing the act. In that case, malice may be in- 
 ferred from the proved absence of other motive for the act done. In 
 case there be a sufficient justifiable motive, it may still be proved that 
 in fact malice was the moving force. In either case the question is 
 one of fact. There was in the case at bar sufficient evidence to sup- 
 port a finding that the defendant did what he did for the sole purpose 
 of depriving the plaintiff of the benefit of a contract for employ- 
 ment. The question is not what the defendant now says his purpose 
 was. It is not even what he said his purpose was at the time he 
 made the complaint to Trull. Nor is his motive necessary to be 
 found in a literal application of the words he used. The conversa- 
 tion as testified to was susceptible of more than one interpretation. 
 It may have meant that the defendant intended to cause the plaintiff 
 to be discharged as a matter of small revenge, and while the defend- 
 ant was formally protesting against the act he had intentionally and 
 maliciously caused. It is not, as the defendant claims, a case of guess- 
 ing. It is one of interpreting the acts and words disclosed by the 
 evidence in the case. Upon this issue the case should have been sub- 
 mitted to the jury, under instructions that if they found the act was 
 done solely for the purpose of injuring the plaintiff he was entitled 
 to recover. If the damage was done "for its own sake," liability 
 would be made out. Vegelahn v. Guntner, 167 Mass. 92, 44 N. E. 
 1077, 35 h. R. A. 722, 57 Am. St. Rep. 443, dissenting opinion of 
 Holmes, J. 
 
 3. Beyond the issues of fraud and malicious injury lies one which 
 has caused much of perplexity and conflicting adjudication. How far 
 advantage may or may not lawfully be gained by appeal, persuasion, 
 or threat of loss of future favor — whether those not involved in the
 
 1254 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 initial contest may be dragged into it by these and kindred means — are 
 questions which courts, jurists, and pubHcists have not found it easy 
 to answer. Between the early view that a peaceful strike for higher 
 wages was inherently wicked (King v. Journeymen Tailors of Cam- 
 bridge, 8 j\Iod. 11; In re Journeymen Cordwainers, Yates, Sel. Cas. 
 Ill, 277) and the theory that all honest and peaceful means are per- 
 missible (dis. op. Vegelahn v. Guntner, supra), there is room for every 
 shade of opinion. "It will be seen that in the dififerent courts there 
 is considerable variety and some conflict of opinion." Berry v. Don- 
 ovan, 188 Mass. 353, 74 N. E. 603, 5 L. R. A. (N. S.) 899, 108 Am. 
 St. Rep. 499, 3 Ann. Cas. 738. Cases where the act complained of 
 was committed by one person alone are comparatively rare, the plain 
 reason being that peaceful and truthful persuasion, or promise of 
 future favor, by a single individual is not likely to produce results of 
 a character so grave as to induce the injured party to seek redress 
 through the courts. But when the act is that of many persons, the 
 result has not infrequently been to drive the injured party out of 
 business or deprive him of an opportunity to labor at his chosen call- 
 ing. In many cases it has been decided that the common law govern- 
 ing criminal conspiracies offered a sufficient ground for holding the 
 offenders liable civilly. Lohse Patent Door Co. v. Fuelle, 215 Mo. 
 421, 114 S. W. 997, 22 L. R. A. (N. S.) 607, 128 Am. St. Rep. 492, 
 and authorities there reviewed. It was soon perceived, however, that 
 the argument was unsound; and the theory that acts which might 
 lawfully be done by one or any number of persons, acting singly, were 
 unlawful when done by several acting by a concerted plan was aban- 
 doned in most jurisdictions. Boutwell v. Marr, 71 Vt. 1, 42 Atl. 607, 
 43 L. R. A. 803, 76 Am. St. Rep. 746; Toledo, etc., Ry. v. Company 
 (C. C.) 54 Fed. 730, 19 L. R. A. 387. 
 
 Another ground taken was that there is in the concerted action of 
 the many a coercive element which should be placed on a par with the 
 use of force, or with the undue influence sometimes exercised over 
 persons not fully capable of protecting themselves. Boutwell v. Marr, 
 supra; Plant v. Woods, 176 Mass. 492, 57 N. E. 1011, 51 L. R. A. 
 339, 79 Am. St. Rep. 330; Curran v. Galen, 152 N. Y. 33, 46 N. E. 
 297, 37 L. R. A. 802, 57 Am. St. Rep. 496; Bohn Mfg. Co. v. Hollis, 
 54 Minn. 223, 55 N. W. 1119, 21 L. R. A. 337, 40 Am. St. Rep. 319; 
 Casey v. Union (C. C.) 45 Fed. 135, 12 L. R. A. 193. The reasoning 
 by which this view has been supported not infrequently suggests the 
 true solution of the difficulty. The conclusion has been reached by 
 deciding what was or was not reasonable conduct under the circum- 
 stances of the case. The more recent authorities reason that, as the 
 right to deal or not to deal with others is inherent in the' idea of 
 Anglo-Saxon liberty, prima facie a man can demand an open market; 
 and, since this is so, one who interferes with this free market must 
 justify his acts or respond in damages. Thus far these authorities 
 are vniform; but when they proceed to the determination of what
 
 Ch. 2) TORTS THROUGH MALICE 1255 
 
 amounts to a justification, they differ widely. The cause is not far 
 to seek. The rule which they apply is that of reasonable conduct, yet 
 they discuss and decide each case as though it involved only a question 
 of law. In reality, the issue is largely one of fact, and the result is 
 what would be expected. Judges are men, and their decisions upon 
 complex facts must vary as those of juries might on the same facts. 
 Calling one determination an opinion and the other a verdict does not 
 alter human nature, nor make that uniform and certain which from 
 its nature must remain variable and uncertain. While these cases 
 go too far in what they decide as questions of law, yet the test they 
 constantly declare they are applying is the true one. The standard 
 is reasonable conduct under all the circumstances of the case. Berry 
 V. Donovan, 188 Mass. 353, 74 N. E. 603, 5 L. R. A. (N. S.) 899, 108 
 Am. St. Rep. 499, 3 Ann. Cas. 738; Alacauley v. Tiernev, 19 R. I. 
 255, 33 Atl. 1, 37 L. R. A. 455, 61 Am. St. Rep. 770; Doremus v. 
 Hennessy, 176 111. 608, 52 N. E. 924, 54 N. E. 524, 43 L. R. A. 797, 
 802, 68 Am. St. Rep. 203. "What is the measure or test by which 
 the conduct of a combination of persons must be judged in order to 
 determine whether or not it is an unlawful interference with freedom 
 of employment in the labor market, and as such injurious to an em- 
 ployer of labor in respect of his 'probable expectancies,' has not as 
 yet been clearly defined. Perhaps no better definition could be sug- 
 gested than that which may be framed by conveniently using that 
 important legal fictitious person who. has taken such a large part in 
 the development of our law during the last fifty years — the reasonably 
 prudent, reasonably courageous, and not unreasonably sensitive man. 
 Precisely this same standard is employed throughout the law of nui- 
 sance in determining what degree of annoyance * * * one must 
 submit to." Jersey City Printing Co. v. Cassidy, 63 N. J. Eq. 759, 
 766, 53 Atl. 230, 233. Occasionally courts have recognized in a de- 
 gree the principle that the question should be treated as one of fact. 
 "The judge rightly left to the jury the question whether, in view of 
 all the circumstances, the interference was or was not for a justifiable 
 cause. If the plaintift''s habits, or conduct, or character had been such 
 as to render him an unfit associate in the shop for ordinary work- 
 men of good character, that would have been a sufficient reason for 
 interference in behalf of his shopmates. We can conceive of other 
 good reasons. But the evidence tended to show that the only rea- 
 son for procuring his discharge was his refusal to join the union. 
 The question, therefore, is whether the jury might find that such an 
 interference was unlawful." Berry v. Donovan, 188 Mass. 353, ZS7, 
 74 N. E. 603, 605, 5 L. R. A. (N. S.) 899, 108 Am. St. Rep. 499, 3 
 Ann. Cas. 738. 
 
 There is no such difficulty in dealing with the question here as has 
 been met with elsewhere, and it is not necessary to attempt to recon- 
 cile the conflict which has resulted from the application of a view 
 which does not obtain in this jurisdiction. In this state the question
 
 1256 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 of reasonable conduct, whether in relation to tangible property or to 
 intangible rights, is one of fact. Ladd v. Brick Co., 68 N. H. 185, 
 37 Atl. 1041, and cases cited. But while the question to be settled 
 is within the province of the jury, there are still legal propositions 
 involved in the case. It must be determined whether there is any- 
 thing for the jury to weigh — whether the evidence is not conclusive 
 one way or the other upon the issue of reasonable conduct. 
 
 At the present time no one w'ould think of submitting to a jury the 
 question whether a peaceful strike for higher wages was reasonable. 
 They would be told, as matter of law, that such action was within the 
 laborers' rights. So there may be conduct wdiicli is clearly unreason- 
 able, or not justifiable. An illustration of such conduct is presented 
 by the second ground for recovery in this case. One may not inter- 
 fere with his neighbor's open market or "reasonable expectancies" 
 solely for the purpose of doing harm. It has been said, however, in 
 several cases that a w^rongful motive cannot convert a legal act into 
 an illegal one, and many judges have thought this was the end of the 
 law upon the question. They seem to proceed upon a theory of abso- 
 lute right in the defendant, which is at variance with the holding in 
 many of the same cases, that the defendant may be called upon to 
 justify his conduct. Indeed, the authorities are practically unanimous 
 to the effect that the defendant is liable unless he shows a justifica- 
 tion. If this is true, it follows as matter of course that his right is 
 not absolute. It is a qualified one, and the rightfulness of its exer- 
 cise depends upon all those elements which go to make up a cause for 
 human action. The reasonableness of the act cannot always be satis- 
 factorily determined until something is known of the state of the 
 actor's mind. The "justification may be found sometimes in the cir- 
 cumstances under which it is done, irrespective of motive, sometimes 
 in the motive alone, and sometimes in the circumstances and mo- 
 tive combined." Plant v. Woods, 176 Mass. 492, 57 N. E. 1011, 51 
 L. R. A. 339, 79 Am. St. Rep. 330. 
 
 Since the defendant is called upon to justify — to show reasonable 
 cause for the interference with his neighbor's right — it seems to clearly 
 follow that, where his only reason is his malicious wish to injure the 
 plaintiff, he has no justification. It is a contradiction in terms to say 
 that a desire to do harm for the harm's sake can be called a just mo- 
 tive. In a late case in this state it is said of the use of property that 
 "it cannot be justly contended that a purely malicious use is a rea- 
 sonable use. The question of reasonableness depends upon all the 
 circumstances — the advantage and profit to one of the uses attacked, 
 and the unavoidable injury to the other. Where the only advantage 
 to one is the pleasure of injuring another, there remains no founda- 
 tion upon which it can be determined that the disturbance of the 
 other in the lawful enjoyment of his estate is reasonable or necessary." 
 Horan v. Byrnes, 72 N. H. 93, 100, 54 Atl. 945, 948, 62 L. R. A. 602, 
 101 Am. St. Rep. 670. The same reason applies here. If the evi-
 
 Ch. 2) TORTS THROUGH MALICE 1257 
 
 dence had been conclusive that the act was done solely from a malicious 
 motive a verdict would have been directed for the plaintiff. It is not 
 improbable that there are other plain cases — cases where there is 
 nothing for the jury to pass upon. The third issue in this case does 
 not come within that class. It cannot be said that all reasonable men 
 would conclude that every reasonable man would or would not do 
 what the defendant" did, even though he acted honestly and from a 
 proper motive. If any one doubts this assertion, he has but to read 
 the cases where this and kindred questions have been discussed and 
 decided as those of law. Vegelahn v. Guntner, 167 Alass. 92, 44 N. 
 E. 1077, 35 L. R. A. 722, 57 Am. St. Rep. 443; Berry v. Donovan, 188 
 Mass. 353, 74 N. E. 603, 5 L. R. A. (N. S.) 899, 108 Am. St. Rep. 
 499, 3 Ann. Cas. 738, and cases there cited; L. D. Willcutt & Sons 
 Co. V. Driscoll, 200 Mass. 110, 85 N. E. 897, 23 L. R. A. (N. S.) 
 1236; National Protective Ass'n v. Gumming, 170 N. Y. 315, 68 N. 
 E. 369, 58 L. R. A. 135, 88 Am. St. Rep. 648; Jacobs v. Gohen, 183 
 N. Y. 207, 76 N. E. 5, 2 L. R. A. (N. S.) 292. Ill Am. St. Rep. 730, 
 5 Ann. Gas. 280; Wilson v. Hey, 232 111. 389, 83 N. E. 928, 16 L. 
 R. A. (N. S.) 85, 122 Am. St. Rep. 119, 13 Ann. Gas. 82; Barnes v. 
 Union, 232 111. 424, 83 N. E. 940, 14 L. R. A. (N. S.) 1018, 13 Ann. 
 Gas. 54. When eminent judges come to opposite conclusions upon a 
 question, it can hardly be said that jurors might not reasonably do 
 the same. 
 
 The plaintiff was entitled to go to the jury upon all three grounds 
 which have been considered : (1) Fraud, (2) malicious injury, and (3) 
 unreasonable interference with the open market. Whether section 12, 
 c. 266, Pub. St., affords a basis for a claim of greater right in the 
 plaintiff is a question which has not been argued and is not considered. 
 
 Exception sustained. All concurred.
 
 1258 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 SECTION 3.— AS TO JUSTIFYING OR EXCUSING THE USE 
 OF PROPERTY OR INFLUENCE FOR THE INTEN- 
 TIONAL HARM OF ANOTHER 
 
 I. The: Principle; in Ge;nerai^ 
 
 There are indeed many authorities which appear to hold that to 
 constitute an actionable wrong there must be a violation of some defi- 
 nite legal right of the plaintiff. But those are cases, for the most 
 part at least, where the defendants were themselves acting in the law- 
 ful exercise of some distinct right, which furnished the defence of a 
 justifiable cause for their acts, except so far as they were in viola- 
 tion of a superior right in another. 
 
 Thus every one has an ec[ual right to employ workmen in his busi- 
 ness or service; and if, by the exercise of this right in such manner 
 as he may see fit, persons are induced to leave their employment else- 
 where, no wrong is done to him whose employment they leave, unless 
 a contract exists by which such other person has a legal right to the 
 further continuance of their services. If such a contract exists, one 
 who knowingly and intentionally procures it to be violated may be 
 held liable for the wrong, although he did it for the purpose of pro- 
 moting his own business. 
 
 One may dig upon his own land for water, or any other purpose, 
 although he thereby cuts off the supply of water from his neighbor's 
 well. Greenleaf v. Francis, 18 Pick. 117. It is intimated, in this case, 
 that such acts might be actionable if done maliciously. But the rights 
 of the owner of land being absolute therein, and the adjoining proprie- 
 tor having no legal right to such a supply of water from lands of 
 another, the superior right must prevail. Accordingly it is generally 
 held that no action will lie against one for acts done upon his own 
 land in the exercise of his rights of ownership, whatever the motive, 
 if they merely deprive another of advantages, or cause a loss to him, 
 without violating any legal right; that is, the motive in such cases is 
 immaterial. Frazier v. Brown, 12 Ohio St. 294; Chatfield v. Wilson, 
 28 Vt. 49; Mahan v. Brown, 13 Wend. (N. Y.) 261, 28 Am. Dec. 
 461 ; Delhi v. Youmans, 50 Barb. (N. Y.) 316. A similar decision 
 was made in Wheatley v. Baugh, 25 Pa. 528, 64 Am. Dec. 721, but 
 the suggestion in Greenleaf v. Francis was approved so far as this, 
 namely, that malicious acts without the justification of any right, that 
 is, acts of a stranger, resulting in like loss or damage, might be ac- 
 tionable ; and the case of Parker v. Boston & Maine Railroad, 3 Cush. 
 107, 50 Am. Dec. 709, was referred to as showing that such loss of 
 advantages previously enjoyed, although not of vested legal right,
 
 Ch. 2) TORTS THROUGH MALICE 1259 
 
 might be a ground of damages recoverable against one who caused 
 the loss without superior right or justifiable cause. 
 
 Every one has a right to enjoy the fruits and advantages of his 
 own enterprise, industry, skill and credit. He has no right to be 
 protected against competition ; but he has a right to be free from ma- 
 licious and wanton interference, disturbance or annoyance. If disturb- 
 ance or loss come as a result of competition, or the exercise of like 
 rights by others, it is damnum absque injuria, unless some superior 
 right by contract or otherwise is interfered with. But if it come from 
 the merely wanton or malicious acts of others, without the justifica- 
 tion of competition or the service of any interest or lawful purpose, 
 it then stands upon a dift'erent footing, and falls within the principle 
 of the authorities first referred to. 
 
 Wells, J., in Walker v. Cronin (1871) 107 Mass. 555, 563. 
 
 At Common Law there was a cause of action whenever one person 
 did damage to another wilfully and intentionally, and without just cause 
 or excuse. Under the head of that class of action came the action 
 of slander of title, whether the subject of the slander was real or 
 personal property. If a man falsely and maliciously — because the 
 malice would shew there was no just cause — made a statement about 
 the property of another which was calculated to do, and which did 
 do, damage to the other in the management of that property, an ac- 
 tion would lie at Common Law, and damages would be recoverable 
 and in Chancery, I suppose that even if you could not prove that actual 
 damage had occurred, the Court might, if actual damage was likely 
 to occur, prevent the wrongful act by injunction. 
 
 Bowen, L. J., in Skinner & Co. v. Shew & Co., [1893] 1 Ch. 413, 
 422. 
 
 It has been considered that, prima facie, the intentional infliction 
 of temporal damage is a cause of action, which, as a matter of sub- 
 stantive law, whatever may be the form of pleading, requires a jus- 
 tification if the defendant is to escape. Mogul Steamship Co. v. Mc- 
 Gregor, 23 Q. B. D. 598, 613; S. C, [1892] A. C. 25. If this is the 
 correct mode of approach it is obvious that justifications may vary 
 in extent according to the principle of policy upon which they are 
 founded, and that while some, for instance, at common law, those 
 affecting the use of land, are absolute, Bradford v. Pickles, [1895] 
 A. C. 587, others may depend upon the end for which the act is done. 
 Moran v. Dunphy, 177 Mass. 485, 487, 50 N. E. 125, 52 L. R. A. 115, 
 83 Am. St. Rep. 289; Plant v. Woods, 176 Mass. 492, 57 N. E. 1011, 
 51 L. R. A. 339, 79 Am. St. Rep. 330; Squires v. Wason Manuf. Co., 
 182 Mass. 137, 140, 141, 65 N. E. 32. See cases cited in Passaic Print
 
 1260 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 Works V. Ely & Walker Dry-Goods Co., 105 Fed. 163, 44 C. C. A. 426, 
 62 L. R. A. 673. It is no sufficient answer to this line of thought that 
 motives are not actionable and that the standards of the law are exter- 
 nal. That is true in determining what a man is bound to foresee, but not 
 necessarily in determining the extent to which he can justify harm 
 which he has foreseen. 
 
 Holmes, J., in Aikens v. Wisconsin (1904) 195 U. S. 194, 204, 25 
 Sup. Ct. 3, 49 L. Ed. 154.^'' 
 
 At Common Law every member of the community is entitled to 
 carry on any trade or business he chooses and in such manner as 
 he thinks most desirable in his own interests, and inasmuch as every 
 right connotes an obligation no one can lawfully interfere with an- 
 other in the free exercise of his trade or business unless there exists 
 some just cause or excuse for such interference. Just cause or ex- 
 cuse for interference with another's trade or business may sometimes 
 be found in the fact that the acts complained of as an interference 
 have all been done in the bona fide exercise of the doer's own trade 
 or business and with a single view to his own interests (the Mogul 
 Steamship Case, 23 Q. B. D. 598; [1892] A. C. 25). But it may also 
 be found in the existence of some additional or substantive right con- 
 ferred by letters patent from the Crown or by contract between in- 
 dividuals. In the case of letters patent from the Crown this additional 
 or substantive right is generally descril^ed as a monopoly. In the lat- 
 
 20 "X., who intentionally causes damage to A., has prima facie done an 
 injury or wrong to A., and if X. can show no legal justification for the damage 
 he has thus intentionally done to A., he is liable to an action by A." Pro- 
 fessor A. y. Dieey, 18 Law Quar. Rev. 4. 
 
 "It is submitted that the discussion would be materially simplified if it 
 were understood that all damage wilfully done to one's neighbor is actionable 
 unless it can be justified or excused." Sir Frederick Pollock, Torts (7th Ed.) 
 319. 
 
 "The wilful causing of damage to another by a positive act, whether by one 
 man alone, or by several acting in concert, and whether by direct action 
 against him or indirectly by inducing a third person to exercise a lawful 
 right, is a tort unless there was just cause for infiicting the damage. * * * " 
 Professor James Barr Ames, 18 Harv. Law Rev. 412. 
 
 Quoting these three passages and the opening sentences from the opinions 
 of Bowen, L. J., and Holmes, J., in the text, Professor Jeremiah Smith has 
 remarked: "The above statements of Bowen, Dicey, Holmes, Pollock and 
 Ames all seem to imply that the causing of the damage in question was the 
 object immediately aimed at by the defendant. But they do not necessarily 
 import the doing of damage 'for the sake of the harm as au evil in itself, and 
 not merely as a means to some further end legitimately desired.' On the 
 contrary, the desire to cause the harm is entirely consistent with the absence 
 of personal ill will towards the plaintiff, and also with the existence of au 
 ultimate good motive on the part of the defendant. Conceding that damage 
 as .such, i. e., because it is harmful or damaging to the plaintifl", is the very 
 object immediately desired, yet it may jiot be the ultimate (nid which is 
 sought to be attained. We think that tlic law shoubl be h(;ld to go as far as 
 the above general statements of P>owen, Dicey, Holmes and Pollock, and the 
 more specific statement of Professor Ames." 20 Harv. Law Rev. 263 (1007).
 
 Ch. 2) TORTS THROUGH MALICH 1261 
 
 ter case the contract on which the additional or substantive right is 
 founded is generally described as a contract in restraint of trade. 
 Monopolies and contracts in restraint of trade have this in common, 
 that they both, if enforced, involve a derogation from the common 
 law right in virtue of which any member of the community may ex- 
 ercise any trade or business he pleases and in such manner as he 
 thinks best in his own interests. 
 
 Lord Parker of Waddington, in Attorney General of Australia v. 
 Adelaide Steamship Co., [1913] A. C. 781, 793 
 
 MOGUL STEAMSHIP CO., Limited, v. McGREGOR, GOW 
 
 & CO. et al. 
 
 (Queen's Bench Division, ISSS. 21 Q. B. Div. 544. Court of Appeal, 1889. 23 
 Q. B. Div. 59S. House of Lords. [1892] A. C. 25.) 
 
 In this action, the plaintiffs claimed damages for a conspiracy to 
 prevent them from carrying on their trade between London and China, 
 and an injunction against the continuance of the alleged wrongful acts. 
 The facts were shortly as follows: -^ 
 
 21 The statement here given is from the reports of the ease in the Queen's 
 Bench Division, 21 Q. B. D. 544, and in the Court of Appeal, 2.3 Q. B. D. 598. 
 The facts are fully set forth also in The Mogul Steamship Company v. Mc- 
 (xregor, Gow & Co. (1885) 15 Q. B. D. 476, when the plaintiffs were seeking an 
 interim injunction. In this earlier consideration of the case Ix)rd Coleridge, 
 C. J., remarked: "This is an application for an intei'locutory or interim in- 
 junction before the trial of the action. It is certainly conceivable that such 
 a conspiracy, — because conspiracy undoubtedly it is, — as this might be pi'oved 
 in point of fact: and I do not entertain any doubt, nor does my learned 
 Brother, that, if such a conspiracy were proved in point of fact, and the in- 
 tuitus of the conspirators were made out to be, not the mere honest support 
 and maintenance of the defendants' trade, but the destruction of the plain- 
 tiffs' trade, and their consequent i-uin as merchants, it would be an offence 
 for which an indictment for conspiracy, and, if an indictment, then an action 
 for conspiracy, would lie. * * * [But] even assuming that the plaintiffs 
 are right in their contention it will be competent to the jury at the trial to 
 award, and I have no doubt they vdll award, the plaintiffs abundant damages 
 to compensate them for the injury that they may have sustained at the hands 
 of the defendants. I have always understood, and I am confirmed in that un- 
 derstanding by the larger experience of Lord Justice Fry, that that is al- 
 most of itself a reason for not issuing an injunction prior to the trial of tho 
 action. If the plaintiffs establish their case by the verdict of the jury or the 
 decision of the judge, they will get all they are entitled to. Next, this does 
 not appear to me to be a case in which, as I was at one time inclined to think, 
 the plaintiffs can sustain Irreparable injury by our declining to grant the 
 relief prayed. It may be that they will suffer some damage ; it may be that 
 they will for a time have a difficulty in carrying on their China trade or may 
 have to carry it on at a loss. But injury of that soi-t differs altogether from 
 the injury which is called 'irreparable,' to prevent which injunctions have 
 heretofore been granted in the Court of Chancery, and are now allowed to 
 issue from this Court. For instance, if a fine old ornamental tree in a noble- 
 man's park be cut down, the injury is pnictieally irreparable, and cannot be 
 compensated in damages. It is in cases of that nature tbat an interim in- 
 junction issues. The injury here, if it be made out, obviously is not one of 
 that character." The motion for the interim injunction was therefore refused.
 
 1262 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 The plaintiffs were a shipping company incorporated for the pur- 
 pose of acquiring shares in certain steamships — the Sikh, Afghan, 
 Pathan, and Ghazee — and became the owners of a large number of 
 shares in these ships, which were built for and employed in the China 
 and Australian trades. The defendants were an associated body of 
 shipowners trading (among other places) between China and London, 
 who formed themselves into a conference or association for the pur- 
 pose of keeping up the rate of freights in the tea trade between China 
 and Europe, and securing that trade to themselves by allowing a re- 
 bate of 5 per cent, on all freights paid by shippers who shipped tea 
 for Europe in conference vessels only. The defendants alleged (and, 
 as is found in the judgment, truly alleged) that the large profits de- 
 rived from the tea freights alone enabled them to keep up a regular 
 line of communication all the year" round between England and China, 
 and that without a practical monopoly of the tea trade they must 
 cease to do so. The plaintiffs were admitted to the benefits of this 
 conference for the season of 1884, when the following circular was 
 widely distributed by the defendants among the merchants engaged 
 in the China trade : 
 
 "Shanghai, 10th May, 18&4. 
 
 "To those exporters who confine their shipments of tea and general cargo 
 from China to Europe (not including the Mediterranean and Blacli Sea ports) 
 to the P. & O. Steam Navigation Co.'s, Messageiie Maritime Co.'s, Ocean 
 Steamship Co.'s, Glen, Castle, Shire, and Ben Lines, and to the steamships 
 Oopack and Ningchow, we shall be happy to allow a rebate of 5 per cent, on 
 the freight charged. 
 
 "Exporters claiming the returns will be required to sign a declaration that 
 they have not made nor been interested in any shipments of tea or general 
 cargo to Europe (excepting the ports above named) by any other than the said 
 line;*. 
 
 "Shipments by the steamships Afghan, Pathan, and Ghazee on their present 
 voyages from Hankow will not prejudice claims for returns. 
 
 "Each line to be responsible for its own returns only, which will be payable 
 half-yearly, commencing 30th October next. 
 
 "Shipments by an outside steamer at any of the ports in China or at Hong 
 Kong will exclude the firm making such shipments from participation in 
 the return during the whole six-monthly period within which they have been 
 made, even although its other branches may have given entire support to 
 the above lines. 
 
 "The foregoing agreement on our part to be in force from present date till 
 the 30th April, 188U." 
 
 In May, 1885, the defendants issued and widely distributed among 
 the merchants in the China trade the following circular, which had the 
 effect of excluding the plaintiffs from the benefits of the conference: 
 
 "Shanghai, 11 May, 18S5. 
 
 "Referring to our circular dated 10th May, 1884, we beg to remind you that 
 shipments for London by the steamships Pathan, Afghan, and Aberdeen, or by 
 other non-conference steamers at any of the ports in China or at Hong Kong, 
 will exclude the firm making such shipments from participation in the re- 
 turn during the whole six-monthly period in which they have been made, 
 even although the firm elsewhere may have given exclusive support to tlie 
 conference lines." 
 
 The plaintiffs by their statement of claim alleged a conspiracy on 
 the part of the defendants to prevent the plaintiffs from obtaining
 
 Ch. 2) TORTS THROUGH MALICE 1263 
 
 cargoes for their steamers, such conspiracy consisting in a combina- 
 tion and agreement amongst the defendants, having by reason of such 
 combination and agreement control of the homeward shipping trade, 
 pursuant to which combination and agreement shippers were bribed, 
 coerced, and induced to agree to forbear, and to forbear, from shipping 
 cargoes by the plaintiffs' steamers. In the alternative, the conspiracy 
 was alleged to consist of a combination and agreement amongst the 
 defendants pursuant to which the defendants, with intent to injure the 
 plaintiffs and prevent them obtaining cargoes for their steamers, agreed 
 to refuse, and refused, to accept cargoes from shippers except upon 
 the terms that the shippers should not ship any cargoes by the plain- 
 tiffs' steamers, and by threats of stopping the shipment of homeward 
 cargoes altogether, which they had the power and intended to carry 
 into effect, prevented shippers from shipping cargoes by plaintiffs' 
 steamers. * * * 
 
 The defence included a denial of the alleged conspiracy, and an ob- 
 jection that the plaintiffs' statement of claim disclosed no cause ot 
 action. 
 
 The action was tried without a jury, before Lord Coleridge, C. J., 
 who delivered a w^ritten judgment for the defendants, ^^ The plain- 
 tiffs appealed. 
 
 22 In this judgment, 21 Q. B. D. 544, 547, which is omitted here, Lord Cole- 
 rid.w, C. J., i-emarlis: "But it is said that the motive of these acts was to 
 ruin the plaintiffs, and that sucli a motive, it has been held, will render the 
 combination itself wrongful and malicious, and that if damage has resulted 
 to the plaintiffs an action will lie. I concede that if the premises are estab- 
 lished the conclusion follows. It is too late to dispute, if I desired it, as I do 
 not, that a wrongful and malicious combination to ruin a man in his trade 
 may be gi'ound for such an action as this. Was then this combination such? 
 The answer to this question has given me much trouble, and I confess to the 
 weakness of having long doubted and hesitated before I could make up my 
 mind. There can be no doubt that the defendants were determined, if they 
 could, to exclude the plaintiffs from this trade. Strong expressions were 
 drawn from some of them in cross-examination, and the telegrams and let- 
 ters shewed the importance they attached to the matter, their resolute purpose 
 to exclude the plaintiffs if they could, and to do so without any consideration 
 for the results to the plaintiffs, if they were successfully excluded. This, I 
 think, is made out, and I think no more is made out than this. Is this 
 enough? It must be remembered that all trade is and must be in a sense 
 selfish ; trade not being infinite, nay, the trade Of a particular place or dis- 
 trict being possibly very limited, what one man gains another loses. In the 
 hand to hand war of commerce, as in, the conflicts of public life, whether at 
 the bar, in Parliament, in medicine, in engineering, (I give examples only,) 
 men fight on without much thought of others, except a desire to excel or to 
 defeat them. Very lofty minds, like Sir I'hilip Sidney with his cup of water, 
 will not stoop to take an advantage, if they think another wants it more. Our 
 age, in spite of high authority to the contrary, is not without its Sir Philip 
 Sidneys ; but these are counsels of i>erfection which it would be silly indeed 
 to make the measure of the rough business of the world as pursued by ordi- 
 nary men of business. The line is in words difficult to draw, but I cannot 
 see that these defendants have in fact passed the line which separates the 
 reasonable and legitimate selfishness of traders from wrong and malice. In 
 1884 they admitted the plaintiffs to their conference ; in 18S5 they excluded 
 them, and they were determined no doubt, if they could, to make the exclu- 
 sion complete and effective, not from any personal malice or ill will to the
 
 12G4 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 [In the Court of Appeal] 
 
 BowEN, L. J. We are presented in this case with an apparent con- 
 flict or antinomy between two rights that are equally regarded by the 
 law — the right of the plaintiffs to be protected in the legitimate ex- 
 ercise of their trade, and the right of the defendants to carry on their 
 business as seems best to them, provided they commit no wrong to 
 others. The plaintiffs complain that the defendants have crossed the 
 line which the common law permits ; and inasmuch as, for the pur- 
 poses of the present case, we are to assume some possible damage to 
 the plaintiffs, the real question to be decided is whether, on such an 
 assumption, the defendants in the conduct of their commercial affairs 
 have done anything that is unjustifiable in law. The defendants are 
 a number of ship-owners who formed themselves into a league or con- 
 ference for the purpose of ultimately keeping in their own hands the 
 control of the tea carriage from certain Chinese ports, and for the 
 purpose of driving the plaintiff's and other competitors from the field. 
 In order to succeed in this object, and to discourage the plaintiff's' ves- 
 sels from resorting to those ports, the defendants during the "tea har- 
 vest" of 1885 combined to offer to the local shippers very low freights, 
 with a view of generally reducing or "smashing" rates, and thus ren- 
 dering it unprofitable for the plaintiffs to send their ships thither. 
 They offered, moreover, a rebate of five per cent, to all local shippers 
 and agents who would deal exclusively with vessels belonging to the 
 Conference, and any agent who broke the condition was to forfeit the 
 entire rebate on all shipments made on behalf of any and every one 
 of his principals during the whole year — a forfeiture of rebate or al- 
 lowance which was denominated as "penal" by the plaintiffs' counsel. 
 It must, however, be taken as established that the rebate was one which 
 the defendants need never have allowed at all to their customers. It 
 must also be taken that the defendants had no personal ill-will to the 
 plaintiffs, nor any desire to harm them except such as is involved in 
 the wish and intention to discourage by such measures the plaintiffs 
 from sending rival vessels to such ports. The acts of which the plain- 
 tiffs particularly complained were as follows : First, a circular of May 
 10, 1885, by which the defendants offered to the local shippers and 
 their agents a benefit by way of rebate if they would not deal with the 
 plaintiffs, which was to be lost if this condition was not fulfilled. Sec- 
 ondly, the sending of special ships to Hankow in order by competition 
 to deprive the plaintiffs' vessels of profitable freight. Thirdly, the 
 offer at Hankow of freights at a level which would not repay a ship- 
 owner for his adventure, in order to "smash" freights and frighten 
 
 plaintiffs as individuals, but because they were determined, if they could, to 
 keel) the trade to themselves ; and if they permitted persons In the ix)sition 
 of the plaintiffs to come in and share it they thought, and honestly and, as it 
 turns out, lorrectly thought, that for a time at least there vs'ould be au end 
 of their gains."
 
 Ch. 2) TORTS THROUGH MALICE 1265 
 
 the plaintiffs from the field. Fourthly, pressure put on the defendants' 
 own agents to induce them to ship only by the defendants' vessels, and 
 not by those of the plaintiff's. It is to be observed with regard to all 
 these acts of which complaint is made that they were acts that in them- 
 selves could not be said to be illegal unless made so by the object with 
 which, or the combination in the course of which, they were done ; 
 and tliat in reality what is complained of is the pursuing of trade com- 
 petition to a length which the plaintiffs consider oppressive and prejudi- 
 cial to themselves. We were invited by the plaintiff's' counsel to ac- 
 cept the position from which their argument started — that an action 
 will lie if a man maliciously and wrongfully conducts himself so as to 
 injure another in that other's trade. Obscurity resides in the language 
 used to state this proposition. The terms "maliciously," "wrongfully," 
 and "injure" are words all of which have accurate meanings, well 
 known to the law, but which also have a popular and less precise sig- 
 nification, into which it is necessary to see that the argument does not 
 imperceptibly slide. An intent to "injure" in strictness means more 
 than an intent to harm. It connotes an intent to do wrongful harm. 
 "Maliciously," in like manner, means and implies an intention to do 
 an act which is wrongful, to the detriment of another. The term 
 "wrongful" imports in its turn the infringement of some right. The 
 ambiguous proposition to which we were invited by the plaintiff's' coun- 
 sel still, therefore, leaves unsolved the question of what, as between 
 the plaintiffs and defendants, are the rights of trade. For the purpose 
 of clearness, I desire, as far as possible, to avoid terms in their popular, 
 use so slipperv^ and 'to translate them into less fallacious language 
 wherever possible. 
 
 The English law, which in its earlier stages began with but an im- 
 perfect line of demarcation between torts and breaches of contract, 
 presents us with no scientific analysis of the degree to which the in- 
 tent to harm, or, in the language of the civil law, the animus vicino 
 nocendi, may enter into or aff'ect the conception of a personal wrong; 
 see Chasemore v. Richards, 7 H. L. C 349, at p. 388. All personal 
 wrong means the infringement of some personal right. "It is essen- 
 tial to an action in tort," say the Privy Council in Rogers v. Rajendro 
 Dutt, 13 :\roore, P. C. 209, "that the act complained of should under 
 the circumstances be legally wrongful as regards the party complain- 
 ing; that is, it must prejudicially aff'ect him in some legal right; mere- 
 ly that it will, however directly, do a man harm in his interests, is not 
 enough." What, then, were the rights of the plaintiffs as traders as 
 against the defendants? The plaintiffs had a right to be protected 
 against certain kind of conduct ; and we have to consider what conduct 
 would pass this legal line or boundary. Now, intentionally to do that 
 which is calculated in the ordinary course of events to damage, and 
 which does, in fact, damage another in that other person's property 
 or trade, is actionable if done without just cause or excuse. Such in- 
 Hepb.Tokts — SO
 
 1266 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 tentional action when done without just cause or excuse is what the 
 law calls a malicious wrong (see Bromage v. Prosser, 4 B. & C. 247; 
 Capital and Counties Bank v. Henty, 7 App. Cas. 741, at p, 772, per 
 Lord Blackburn). The acts of the defendants which are complained 
 of here were intentional, and were also calculated, no doubt, to do 
 the plaintiffs damage in their trade. But in order to see whether they 
 were wrongful we have still to discuss the question whether they were 
 done without any just cause or excuse. Such just cause or excuse 
 the defendants on their side assert to be found in their own positive 
 right (subject to certain limitations) to carry on their own trade freely 
 in the mode and manner that best suits them, and which they think 
 best calculated to secure their own advantage. 
 
 What, then, are the limitations which the law imposes on a trader 
 in the conduct of his business as between himself and other traders? 
 There seem to be no burdens or restrictions in law upon a trader 
 which arise merely from the fact that he is a trader, and which are 
 not equally laid on all other subjects of the Crown. His right to trade 
 freely is a right which the law recognizes and encourages, but it is 
 one which places him at no special disadvantage as compared with 
 others. No man, whether trader or not, can, however, justify dam- 
 aging another in his commercial business by fraud or misrepresenta- 
 tion. Intimidation, obstruction, and molestation are forbidden ; so 
 is the intentional procurement of a violation of individual rights, con- 
 tractual or other, assuming always that there is no just cause for it. 
 The intentional driving away of customers by shew of violence, Tarle- 
 ton V. AIcGawley, Peak, N. P. C. 270; the obstruction of actors on 
 the stage by preconcerted hissing, Clifford v. Brandon, 2 Camp. 358, 
 Gregory v, Brunswick, 6 J\i. & G. 205 ; the disturbance of wild fowl 
 in decoys by the firing of guns, Carrington v. Taylor, 11 East, 571, 
 and Keeble v. Hickeringill, 1 1 East, 574, n. ; the impeding or threaten- 
 ing servants or workmen. Garret v. Taylor, Cro. Jac. 567; the in- 
 ducing persons under personal contracts to break their contracts. 
 Bowen v. Hall, 6 O. B. D. 333; Lumley v. Gye, 2 E. & B. 216: all 
 are instances of such forbidden acts. But the defendants have been 
 guilty of none of these acts. They have done nothing more against the 
 plaintiffs than pursue to the bitter end a war of competition waged in 
 the interest of their own trade. To the argument that a competition 
 so pursued ceases to have a just cause or excuse when there is ill- 
 will or a personal intention to harm, it is sufficient to reply (as I have 
 already pointed out) that tliere was here no personal intention to do 
 any other or greater harm to the plaintiffs than such as was necessarily 
 involved in the desire to attract to the defendants' ships the entire 
 tea freights of the ports, a portion of which would otherwise have fall- 
 en to the plaintiffs' sliare. I can find no authority for the doctrine 
 that such a commercial motive deprives of "just cause or excuse" acts 
 done in the course of trade which would but for such a motive be 
 justifiable. So to hold would be to convert into an illegal motive the
 
 Ch. 2) TORTS THROUGH MALICE 1267 
 
 instinct of self-advancement and self-protection, which is the very in- 
 centive to all trade. To say that a man is to trade freely, but that he 
 is to stop short at any act which is calculated to harm other trades- 
 men, and which is designed to attract business to his own shop, would 
 be a strange and impossible counsel of perfection. But we were told 
 that competition ceases to be the lawful exercise of trade, and so to 
 be a lawful excuse for what will harm another, if carried to a length 
 which is not fair or reasonable. The offering of reduced rates by the 
 defendants in the present case is said to have been "unfair." This 
 seems to assume that, apart from fraud, intimidation, molestation, or 
 obstruction, of some other personal right in rem or in personam, there 
 is some natural standard of "fairness" or "reasonableness" (to be de- 
 termined by the internal consciousness of judges and juries) beyond 
 which competition ought not in law to go. There seems to be no au- 
 thority, and I think with submission, that there is no sufficient reason, 
 for such a proposition. It would impose a novel fetter upon trade. 
 The defendants, we are told by the plaintiffs' counsel, might lawfully 
 lower rates provided they did not lower them beyond a "fair freight/' 
 whatever that may mean. But where is it established that there is 
 any such restriction upon commerce ? And what is to be the definition 
 of a "fair freight?" It is said that it ought to be a normal rate of 
 freight, such as is reasonably remunerative to the ship-owner. But 
 over what period of time is the average of this reasonable remunera- 
 tiveness to be calculated? All commercial men with capital are ac- 
 quainted with the ordinary expedient of sowing one year a crop of 
 apparently unfruitful prices, in order by driving competition away to 
 reap a fuller harvest of profit in the future ; and until the present ar- 
 gument at the bar it may be doubted whether ship-owners or merchants 
 were ever deemed to be bound by law to conform to some imaginary 
 "normal" standard of freights or prices, or that law courts had a right 
 to say to them in respect of their competitive tariffs, "Thus far shalt 
 thou go, and no further." To attempt to limit English competition in 
 this way would probably be as hopeless an endeavor as the experi- 
 ment of King Canute. But on ordinary principles of law no such 
 fetter on freedom of trade can in my opinion be warranted. A man 
 is bound not to use his property so as to infringe upon another's right. 
 "Sic utere tuo ut alienum non Isedas." If engaged in actions which may 
 involve danger to others, he ought, speaking generally, to take reason- 
 able care to avoid endangering them. But there is surely no doctrine 
 of law which compels him to use his property in a way that judges and 
 juries may consider reasonable: see Chasemore v. Richards, 7 H. 
 L. C. 349. If there is no such fetter upon the use of property known 
 to the English law, why should there be any such a fetter upon trade? 
 It is urged, however, on the part of the plaintiffs, that even if the 
 acts complained of would not be wrongful had they been committed 
 by a single individual, they become actionable when they are the re- 
 sult of concerted action among several. In other words, the plain-
 
 1268 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 tiffs, it is contended, have been injured by an illegal conspiracy. Of 
 the general proposition, that certain kinds of conduct not criminal in 
 any one individual may become criminal if done by combination among 
 several, there can be no doubt. The distinction is based on sound 
 reason, for a combination may make oppressive or dangerous that 
 which if it proceeded only from a single person would be otherwise, 
 and the very fact of the combination may show that the object is 
 simply to do harm, and not to exercise one's own just rights. In the 
 application of this undoubted principle it is necessary to be very care- 
 ful not to press the doctrine of illegal conspiracy beyond that which 
 is necessary for the protection of individuals or of the public ; and 
 it may be observed in passing that as a rule it is the damage wrong- 
 fully done, and not the conspiracy, that is the gist of actions on the 
 case for conspiracy : see Skinner v. Gunton, 1 Wins. Saund. 229 ; 
 Hutchins v. Hutchins, 7 Hill's New York Cases, 104, Bigelow's Lead- 
 ing Cases on Torts, 207. But what is the definition of an illegal com- 
 bination? It is an agreement by one or more to do an unlawful act, 
 or to do a lawful act by unlawful means : O'Connell v. The Queen, 
 11 01. & F. 155; Reg. v. Parnell, 14 Cox, Crim. Cas. 508; and the 
 question to be solved is whether there has been any such agreement 
 here. Have the defendants combined to do an unlawful act? Have 
 they combined to do a lawful act by unlawful means? A moment's 
 consideration will be sufficient to shew that this new inquiry only drives 
 us back to the circle of definitions and legal propositions which I have 
 already traversed in the previous part of this judgment. The unlaw- 
 ful act agreed to, if any, between the defendants must have been the 
 intentional doing of some act to the detriment of the plaintiffs' busi- 
 ness without just cause or excuse. Whether there was any such jus- 
 tification or excuse for the defendants is the old question over again, 
 which, so far as regards an individual trader, has been already solved. 
 The only differentia that can exist must arise, if at all, out of the fact 
 that the acts done are the joint acts of several capitalists, and not of 
 one capitalist only. The next point is whether the means adopted 
 were unlawful. The means adopted w^ere competition carried to a 
 bitter end. Whether such means were unlawful is in like manner 
 nothing but the old discussion which I have gone through, and which 
 is now revived under a second head of inquiry, except so far as a 
 combination of capitalists differentiates the case of acts jointly done 
 by them from similar acts done by a single man of capital. But I 
 find it impossible myself to acquiesce in the view that the English 
 law places any such restriction on the combination of capital as would 
 be involved in the recognition of such a distinction. If so, one rich 
 capitalist may innocently carry competition to a length which would 
 become unlawful in the case of a syndicate with a joint capital no 
 larger than his own, and one individual merchant may lawfully do 
 that which a firm or a partnership may not. What limits, on such a 
 theory, would be imposed by law on the competitive action of a joint-
 
 Ch. 2) TORTS THROUGH MALICE 1269 
 
 stock company limited, is a problem which might well puzzle a casuist. 
 The truth is, that the combination of capital for purposes of tiade and 
 competition is a very different thing from such a combination of sev- 
 eral persons against one, with a view to harm him, as falls under the 
 head of an indictable conspiracy. There is no just cause or excuse 
 in the latter class of cases. There is such a just cause or excuse in 
 the former. There are cases in which the very fact of a combination 
 is evidence of a design to do that which is hurtful without just cause 
 — is evidence — to use a technical expression — of malice. But it is per- 
 fectly legitimate, as it seems to me, to combine capital for all the mere 
 purposes of trade for which capital may, apart from combination, be 
 legitimately used in trade. To limit combinations of capital, when 
 used for purposes of com.petition, in the manner proposed by the argu- 
 ment of the plaintiff's, would, in the present day, be impossible — would 
 be only another method of attempting to set boundaries to the tides. 
 Legal puzzles which might well distract a theorist may easily be con- 
 ceived of imaginary conflicts between the selfishness of a group of in- 
 dividuals and the obvious well-being of other members of the com- 
 munity. Would it be an indictable conspiracy to agree to drink up all 
 the water from a common spring in a time of drought; to buy up 
 by preconcerted action all the provisions in a market or district in 
 times of scarcity : see Rex v. Waddington, 1 East, 143 ; to combine 
 to purchase all the shares of a company against a coming settling-day ; 
 or to agree to give away articles of trade gratis in order to withdraw 
 custom from a trader? May two itinerant match-vendors combine to 
 sell matches below their value in order by competition to drive a 
 third match-vendor from the street? In cases like these, where the 
 elements of intimidation, molestation, or the other kinds of illegality 
 to which I have alluded are not present, the question must be decided 
 by the application of the test I have indicated. Assume that what is 
 done is intentional, and that it is calculated to do harm to others. 
 Then comes the question, Was it done with or without "just cause or 
 excuse?" If it was bona fide done in the use of a man's own prop- 
 erty, in the exercise of a man's own trade, such legal justification 
 would, I think, exist not the less because what was done might seem 
 to others to be selfish or unreasonable : see the summing-up of Erie, 
 J., and the judgment of the Queen's Bench in Reg. v. Rowlands, 17 Q. 
 B. 671. But such legal justification would not exist when the act was 
 merely done with the intention of causing temporal harm, without 
 reference to one's own lawful gain, or the lawful enjoyment of one's 
 own rights. The good sense of the tribunal which had to decide would 
 have to analyze the circumstances and to discover on which side of 
 the line each case fell. But if the real object were to enjoy what 
 was one's own, or to acquire for one's self some advantage in one's 
 property or trade, and what was done was done honestly, peaceably, 
 and without any of the illegal acts above referred to, it could not, in 
 my opinion, properly be said that it was done without just cause or
 
 1270 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 excuse. One may with advantage borrow for the benefit of traders 
 what was said by Erie, J., in Reg. v. Rowlands, 17 Q. B. 671, at page 
 687, n., of workmen and of masters : "The intention of the law is at 
 present to allow either of them to follow the dictates of their own 
 will, with respect to their own actions, and their own property ; and 
 either, I believe, has a right to study to promote his own advantage, 
 or to combine with others tO promote their mutual advantage." 
 
 Lastly, we are asked to hold the defendants' Conference or associa- 
 tion illegal, as being in restraint of trade. The term "illegal" here is 
 a misleading one. Contracts, as they are called, in restraint of trade, 
 are not, in my opinion, illegal in any sense, except that the law will 
 not enforce them. It does not prohibit the making of such contracts ; 
 it merely declines, after they have been made, to recognize their va- 
 lidity. The law considers the disadvantage so imposed upon the con- 
 tract a sufficient shelter to the public. The language of Crompton, J., 
 in Hilton v. Eckersley, 6 E. & B. 47, is, I think, not to be supported. 
 No action at common law will lie or ever has lain against any individ- 
 ual or individuals for entering into a contract merely because it is in 
 restraint of trade. Lord Eldon's equity decisions in Cousins v. Smith, 
 13 Ves. 542, is not very intelligible, even if it be not open to the some- 
 what personal criticism passed on it by Lord Campbell in his "Lives 
 of the Chancellors." If indeed it could be plainly proved that the 
 mere formation of "conferences," "trusts," or "associations" such as 
 these were always necessarily injurious to the public — a view which 
 involves, perhaps, the disputable assumption that, in a country of free 
 trade, and one which is not under the iron regime of statutory mo- 
 nopolies, such confederations can ever be really successful — and if the 
 evil of them were not sufficiently dealt with by the common law rule, 
 which held such agreements to be void as distinct from holding them 
 to be criminal, there might be some reason for thinking that the com- 
 mon law ought to discover within its arsenal of sound common-sense 
 principles some further remedy commensurate with the mischief. Nei- 
 ther of these assumptions are, to my mind, at all evident, nor is it 
 the province of judges to mould and stretch the law of conspiracy in 
 order to keep pace with the calculations of political economy. If 
 peaceable and honest combinations of capital for purposes of trade 
 competition are to be struck at, it must, I think, be by legislation, for 
 I do not see that they are under the ban of the common law. 
 
 In the result, I agree with Lord Coleridge, C. J., and differ, with 
 regret, from the Master of the Rolls. The substance of my view is 
 this, that competition, however severe and egotistical, if unattended by 
 circumstances of dishonesty, intimidation, molestation, or such illegali- 
 ties as I have above referred to, gives rise to no cause of action at 
 common law. I myself should deem it to be a misfortune if we were 
 to attempt to prescribe to the business world how honest and peacea- 
 ble trade was to be carried on in a case where no such illegal elements 
 as I have mentioned exist, or were to adopt some standard of judicial
 
 Ch. 2) TORTS THROUGH MALICE 1271 
 
 "reasonableness," or of "normal" prices, or "fair freights," to which 
 commercial adventurers, otherwise innocent, were bound to conform. 
 
 In my opinion, accordingly, this appeal ought to be dismissed with 
 costs.'^ 
 
 From this decision of the Court of Appeal, the plaintiffs appealed 
 to the House of Lords. 
 
 [In the House of Lords] 
 
 Lord Fiejld. My Lords, I think that this appeal may be decided 
 upon the principles laid down by Holt, C. J., as far back as the case 
 of Keeble v. Hickeringill, cited for the appellants, 11 Mod. 74, 131, 
 and note to Carrington v. Taylor, 11 East, 574. In that case the plain- 
 tiff complained of the disturbance of his "decoy" by the defendant 
 having discharged guns near to it and so driven away the wild-fowl, 
 with the intention and effect of the consequent injury to his trade. 
 Upon the trial a verdict passed for the plaintiff, but in arrest of judg- 
 ment it was alleged that the declaration did not disclose any cause 
 of action. Holt, C. J., however, held that the action, although new in 
 instance, was not new in reason or principle, and well lay, for he 
 said that the use of a "decoy" was a lawful trade, and that he who 
 hinders another in his trade or livelihood is liable to an action if the 
 injury is caused by "a violent or malicious act;" suppose "for in- 
 stance," he said, "the defendant had shot in his own ground, if he had 
 occasion to shoot it would have been one thing, but to shoot on pur- 
 pose to damage the plaintiff is another thing and a wrong." But, 
 he added, if the defendant, "using the same employment as the plain- 
 tiff," had set up another decoy so near as to spoil the plaintiff's cus- 
 tom, no action would lie, because the defendant had "as much liberty 
 to make and use a decoy" as the plaintiff. In support of this view he 
 referred to earlier authorities. In one of them it had been held that 
 for the setting up of a new school to the damage of an ancient one 
 by alluring the scholars no action would lie, although it would have 
 been otherwise if the scholars had been driven away by violence or 
 threats. 
 
 It follows therefore from this authority, and is undoubted law, not 
 only that it is not every act causing damage to another in his trade, 
 nor even every intentional act of such damage, which is actionable, 
 but also that acts done by a trader in the lawful way of his business, 
 although by the necessary results of effective competition interfering 
 injuriously with the trade of another, are not the subject of any 
 action. 
 
 Of course it is otherwise, as pointed out by Lord Holt, if the acts 
 complained of, although done in the way and under the guise of com- 
 petition or other lawful right, are in themselves violent or purely 
 
 23 A concurring opinion by Fry, L. J., and an elaborate dissenting opinion 
 by Lord Esher, M. R., are omitted.
 
 1272 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 malicious, or have for their ultimate object injury to another from 
 ill-will to him, and not the pursuit of lawful rights. No doubt, also, 
 there have been cases in wliich agreements to do acts injurious tq 
 others have been held to be indictable as amounting to conspiracy, 
 the ultimate object or the means being unlawful, although if done 
 by an individual no such consequence would have followed, but I 
 think that in all such cases it will be found that tliere existed either 
 an ultimate object of malice, or wrong, or wrongful means of ex- 
 ecution involving elements of injury to the public, or, at least, negativ- 
 ing the pursuit of a lawful object. 
 
 Now, applying these principles to the case before your Lordships, 
 it appears upon the evidence that the appellants and respondents are 
 shipowners, and have for many years been engaged, sometimes in 
 alliance, at other times in competition, in the carrying trade of the 
 eastern seas to and from Europe and elsewhere. A very important 
 portion of this trade consists of a large amount of freight to be earned 
 at the ports of Hankow and Shanghai during the season by carrying 
 to Europe the teas brought there for shipment, and it was of the 
 respondents' action in that business during the season of 1885 that 
 the appellants complain. They do not allege that the respondents have 
 been guilty of any act of fraud or violence, or of any physical ob- 
 struction to the appellants' business, or have acted from any personal 
 malice or ill-will, but they say that the respondents acted with the cal- 
 culated intention and purpose of driving the appellants out of the 
 Hankow season carrying trade by a course of conduct which, al- 
 though not amounting to violence, was equally effective, and so being 
 in fact productive of injury to them was wrongful and presumably 
 malicious. 
 
 It appeared upon the evidence that both parties have been for some 
 years trading in competition at Hankow for tea freights, which amount- 
 ed to a very considerable sum, and the earning of which was spread 
 over a short annual season. The trade was carried on by a large 
 number of independent shipowners, and the tonnage which was em- 
 ployed may be roughly divided into two classes : First, tonnage en- 
 gaged in regular lines to and from ports in the China and Japan seas 
 all the year through, loading both outwards and inwards ; and sec- 
 ondly, tonnage loading generally outwards to ports in Australia or 
 elsewhere, and only seeking freights and taking up "homeward" berths 
 at Hankow during the short period when freights are abundant there 
 and scarce elsewhere. The several respondents and the "Messageries 
 Maritimes" of France represent substantially the first class of ship- 
 owners. The appellants and other shipowners, who are no parties 
 to this record, but some of whom were in alliance with the appellants, 
 in the same interest, forming a very influential class of traders, may 
 be taken to represent the second. 
 
 The two ports of Hankow and Shanghai are the centres of these 
 competing interests, and it is hardly necessary to add that the com-
 
 Ch. 2) TORTS THROUGH MALICE 1273 
 
 petition was very severe, and the accumulation of tonnage for "home- 
 ward" freights produced by the circulation of an excessive number of 
 ships rendered rates so unremunerative that in each of the years 1879, 
 1883, and 1885, a combination of shipowners known as a "conference," 
 was formed, consisting in the main of the first class of owners, with 
 the object of limiting the amount of tonnage to be sent up the river, 
 and thus securing enhancement and regularity of rates. * * * -* 
 
 It was under these circumstances that the appellants brought the 
 present action, in which they in substance complain, first, of the re- 
 turn of 5 per cent, to the shippers who have not shipped with the ap- 
 pellants, and of the circular to that effect; secondly of the placing up- 
 on tlie berths of extra ships in order to meet the appellants' and oth- 
 er vessels; and thirdly, the reduction of freights to an unremunera- 
 tive extent with the object of securing cargo. I fail, however, to 
 see that any of those things are sufficient to support this action. 
 Ever}'thing that was done by the respondents was done in the exercise 
 of their right to carry on their own trade, and was bona fide so done. 
 There was not only no malice or indirect object in fact, but the ex- 
 istence of the right to exercise a lawful employment, in the pursuance 
 of which the respondents acted, negatives the presumption of malice 
 which arises when the purposed infliction of loss and injury upon 
 another cannot be attributed to any legitimate cause, and is therefore 
 presumably due to nothing but its obvious object of harm. All the 
 acts complained of were in themselves lawful, and if they caused loss 
 to the appellants, that was one of the necessary results of competition. 
 
 It remains to consider the further contention of the appellants that 
 these acts of the respondents, even if lawful in themselves if done 
 b}^ an individual, are illegal and give rise to an action as having been 
 done in the execution of the conference agreement, which is said to 
 amount to a conspiracy, as being in restraint of trade, and so against 
 public policy, and illegal ; but this contention I think, also fails. I 
 cannot say upon the evidence that tlie agreement in question was cal- 
 culated to have or had any such result, nor, even if it had, has any 
 authority (except one, no doubt entitled to great weight, but which 
 has not met with general approval) been cited to shew that such an 
 agreement even if void is illegal, nor any that, even if it be so, any 
 action lies by an individual. 
 
 For these, and the other reasons given by the learned Lords Jus- 
 tices Bowen and Fry, and which I need not recapitulate, I think tliat 
 the appeal fails, and ought to be dismissed. 
 
 2S 
 
 24 A portion of the opinion, giving a numlier of details, is omitted. 
 
 25 The opinions of Lord Halsbury, L. C, I/ord Watson, Lord Bramwell, Lord 
 Morris, and Lord Ilannen are omitted. They concur in holding that the ap- 
 peal should be dismissed, and, for the most part, in expressly adopting tlie 
 reasons assigned by Bowen and Fry, L. JJ., iu the Court of Appeal.
 
 1274 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 TEMPERTON v. RUSSELL et al. 
 (In the Court of Appeal. [1S93] 1 Q. B. 715.) 
 
 The plaintiff, a master mason and builder at Hull, sued the defend- 
 ants, who were respectively the presidents and secretaries of three 
 trade unions at Hull, called the Hull Branch of the Operative Brick- 
 layers' Society, the Hull Branch of the Builders' Labourers'. Society, 
 and the Hull Branch of the Operative Plasterers' Society, and of a 
 joint committee of such trade unions, and members of such committee, 
 for (1) unlawfully and maliciously procuring certain persons who had 
 entered into contracts with the plaintiff to break such contracts, and 
 (2) for maliciously conspiring to induce certain persons not to enter 
 into contracts with the plaintiff, by reason whereof the plaintiff sus- 
 tained damage. * * * 
 
 The learned judge at the trial directed the jury that to induce a 
 person who had made a contract with another to break it, in order to 
 hurt the person with whom it had been made, to hamper him in his 
 trade, or to put undue pressure upon him, or to obtain an indirect ad- 
 vantage, was in point of law to do it maliciously and that, if the jury 
 were satisfied that the defendants or any of them had induced persons 
 to break contracts with the plaintiff, of the existence of which they 
 were aware, and, if their object in doing so was to injure the plaintiff 
 in his trade in order to compel him to do something which he did 
 not want to do, that would be "maliciously" in point of law, and a 
 cause of action would be established. He also directed the jury in 
 substance, that a malicious conspiracy to prevent persons from enter- 
 ing into contracts with another, if followed by damage to the person 
 conspired against, was actionable. He left the following questions 
 to the jury : (1) Did the defendants or any of them maliciously induce 
 the persons named (viz., Brentano, Gibson and others), or any of them, 
 to break tlieir contracts with the plaintiff? (2) Did the defendants, 
 or any two or more of them, maliciously conspire to induce the per- 
 sons named and others not to enter into contracts with the plaintiff, 
 and were such persons thereby induced not to make such contracts? 
 The jury found for the plaintiff, against all the defendants, on both 
 heads, with i50 damages on the first and £200 damages on the sec- 
 ond. The learned judge gave judgment for the plaintiff" for those 
 amounts, and for an injunction to restrain the defendants from in- 
 ducing persons to refuse to take goods from the plaintiff, or endeavor- 
 ing to induce persons to break their contracts with the plaintiff'. The 
 defendants moved for judgment or a new trial, on the ground that the 
 learned judge misdirected the jury, and that there was no evidence 
 to go to the jury in support of the plaintiff's claim against the defend- 
 ants respectively.^® 
 
 26 The statement of facts is abridged, and the arguments of counsel are 
 omitted.
 
 Ch. 2) TORTS THROUGH MALICE 1275 
 
 Lord Esher, M. R. In this case I propose first to state the facts 
 of the case, as I understand the effect of the evidence, and then my 
 views as to the law appHcable to those facts. There appear to have 
 been three trade unions formed in Hull, consisting respectively of per- 
 sons employed in each of the three branches of labor connected with 
 the building trade there. The members of such trade unions respec- 
 tively agree together to form a union, to subscribe certain amounts, 
 and to subject themselves to certain obligations, in consideration of 
 which they are respectively to be entitled to certain benefits. The 
 main condition upon which the members of the union are to be entitled 
 to the benefits of membership is, that they will obey the directions 
 given with regard to certain trade matters by the persons authorized 
 by all of the members to give such directions. If they do not, they 
 may be deprived of the benefits to which they would otherwise have 
 been entitled or expelled from the union. Therefore the members of 
 the union have given up their liberty of action in respect of certain 
 matters, in the sense that they have -bound themselves by agreement 
 not to exercise it on pain of losing certain benefits. These trade un- 
 ions appear to have agreed together that certain rules, which they 
 thought to be for their benefit, should be obsen^ed by the master build- 
 ers of Hull, and that, if any builder would not observe such rules, they 
 would act upon their respective members with a view to compelling 
 him to do so. For this purpose they formed a joint committee, which 
 appears to have been the authority appointed to determine what ac- 
 tion should be taken by the individual members of the trade unions in 
 respect of such building controversies, and, therefore, to have been 
 for this purpose the agent of each of the trade unions, and of the 
 individual members of them. Apparently this committee had power 
 to delegate their authority to one or more individual members. I think 
 that the evidence in this case proves that they did delegate such au- 
 thority to the defendant Russell, who therefore acted in what he did 
 as the delegate of such committee, and so of each of the three unions, 
 and in a sense of each member of them. He, therefore, had authority 
 to give directions to the individual members of the unions what to 
 do in the case of building controversies. The trade unions and the 
 joint committee seem to have come to the conclusion that a certain 
 mode of carrying on building operations in Hull was detrimental to 
 their interests or those of their constituents. They therefore agreed, 
 as I have said, to a set of rules, one of which was the 9th rule which 
 has been referred to.^'' As between themselves, the members of these 
 
 27 This ninth rule provided "that no member of the Operative Briclclayers' 
 Society shall be permitted, under any circumstances, to cont ract for or take by 
 measurement, either in the whole or part, any kind of brickwork, brick-point- 
 ing, or plastering, that may have been contracted for or sub-contracted for 
 under the original contract, nor to take any work of any master builder who 
 is building property for himself; and that no mcmlwr of this society shall be 
 allowed to work on such jobs ; that no member of these societies be allowed to 
 work on any job where labor alone is contracted for,"
 
 1276 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 trade unions had a perfect right to do that and to bind themselves to 
 comply with such rules. But these rules could not bind any person 
 who did not belong to such unions, and they had no right to enforce 
 obedience to them by such a person. A firm of Myers & Temperton, 
 who were builders in Hull, thought fit to carry on their business, as 
 they had a perfect right to do, in a manner inconsistent with the terms 
 of rule 9. The trade unions and their joint committee objected to this, 
 and resolved to coerce the firm into carrying on their business in ac- 
 cordance with the rule. Failing to effect their object by direct ac- 
 tion upon the firm, they endeavored to coerce them through the per- 
 sons who dealt with them and who supplied them widi the means of 
 carrying on their business. Among these persons v/as the plaintiff, 
 a brother of one of the members of the firm. They desired to coerce 
 the firm by preventing these persons from dealing with them. The 
 plaintiff' refused to fall in with these views, and would not agree to 
 cease dealing with his brother's firm. Having failed in preventing him 
 from doing so by direct actioi> upon him, they desired to overcome 
 his resistance and to coerce him, in the same manner as they had 
 sought to coerce the firm, viz., through the persons who had dealings 
 with him. The joint committee in effect said that, if any person con- 
 nected with the building trade in Hull should deal with the plaintiff 
 for materials, the members of the unions should refuse to work for 
 that person upon goods supplied by the plaintiff. They intended thus 
 to coerce the plaintiff" to comply with their views, and they contemplat- 
 ed that, if he did not submit, his business would be destroyed. 
 Though, of course, in point of law such other persons might be free 
 to enter into contracts with the plaintiff', and would be bound to per- 
 form contracts made with him, as before, in point of fact the commit- 
 tee knew that the probable result would be that his business would 
 come to an end, and they thought that the prospect of this would have 
 a strongly coercive eff'ect upon him. 
 
 They were not, I think, actuated in their proceedings by spite or 
 malice against the plaintiff" personally in the sense that their motive 
 was the desire to injure him, but they desired to injure him in his busi- 
 ness in order to force him not to do what he had a perfect right to do. 
 Amongst those who had dealings with the plaintiff were two persons 
 named Brentano and Gibson. The result of the evidence appears to 
 me to be that the joint committee and the defendant Russell, who was 
 acting as the delegate of such committee, knew that Brentano had 
 entered into a contract with the plaintiff, and also, I think, that he 
 would in the course of his business enter in the future into other con- 
 tracts with the plaintiff of a similar description. Russell lets Brentano 
 know that, if he goes on dealing with the plaintiff, harm will come to 
 him, because none of the workmen at Hull who are comprised in the 
 unions will touch the materials supplied by the plaintiff or will do his 
 work. \\'hat was said by Russell to Brentano, and the previous res- 
 olution of the committee which was made known to Brentano, clearly
 
 Ch. 2) TORTS THROUGH MALICE 1277 
 
 had the object of preventing him from carrying out the contract he 
 had already made with the plaintiff, and I should say that the infer- 
 ence any fair-minded man would draw would be that they also had 
 the object of preventing Brentano from entering into contracts with 
 the plaintiff' in the future. The object was not to injure Brentano, 
 but to injure the plaintiff" in his business, in order to force him into 
 obedience to the views of the unions. It was argued that the steps 
 which the joint committee and Russell, their representative, took with 
 regard to the men working for Brentano were only what they had 
 a perfect right to take, that they merely gave notice or advice to such 
 workmen that the rules were being infringed, and that they should 
 withdraw from his employment if he carried out his contract with the 
 plaintiff, and that the workmen could then do as they liked in the 
 matter. It may be spoken of as "notice" or "advice" argumentative- 
 ly; but those words do not represent the truth of the thing. These 
 men had bound themselves to obey; and they knew tliat 
 they had done so, and that, if they did not obey, they would 
 be fined or expelled from the union to which they belonged. It 
 was really an order which was given to them just as much as a di- 
 rection given to a servant is one. It might be said that such a di- 
 rection is not an order, because the sen'ant could not be compelled 
 to obey it; but, if he does not, he will lose his place. The unions 
 through their joint committee, as it appears to me, ordered their mem- 
 bers employed by Brentano to cease to work for him if he performed 
 his contract with the plaintiff', or if he went on dealing with the plain- 
 tiff. I think that the meaning of what Russell said to Brentano was 
 that, if he had made a contract with the plaintiff and proceeded to 
 perform that contract, his men would leave him ; and that, if he went 
 on dealing with the plaintiff' in the future, the same result would fol- 
 low. The intention was that by so acting on Brentano the plaintiff 
 should be compelled to obey their directions, and, if he did not, that 
 his business should be ruined. I think that there was clearly evidence 
 to go to tlie jury against all the defendants of having been parties to 
 these transactions. They were all members of the unions and of the 
 joint committee, and they none of them went into the box except Rus- 
 sell, which they would have done if they could have denied that they 
 were parties to them. The evidence against the defendants with re- 
 gard to the dealings with Gibson is substantially to the same eff'ect. 
 This is not simply a case of men saying that they will not work for a 
 master if he does certain things which they do not like. Brentano 
 and Gibson were dealt with thus for the purpose of injuring the 
 plaintiff', in order to force him into obedience to the policy of the un- 
 ions, which they had no right to impose upon him. 
 
 Then what is the law applicable to these facts? The questions of 
 law were dealt with in the argument of the defendants' counsel boldly 
 but briefly, the main bulk of their arguments being directed to the 
 endeavor to make out that there was no evidence that the defendants
 
 127S TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 were responsible for the matters complained of. It was argued that 
 the action for inducing persons to break a contract is confined to cases 
 of master and servant or cases of personal service. But the case of 
 Bowen v. Hall, 6 Q. B. D. 333, shows that the distinction relied on is 
 not tenable. That was not a case of master and servant. In that 
 case the majority of the judges in the Court of Appeal approved of 
 the view taken by the majority of the judges in Lumley v. Gye, 2 E. 
 & B. 216. Their judgment, after stating that merely to persuade a 
 person to break his contract may not be wrongful in law or fact, pro- 
 ceeds as follows : ''If the persuasion be used for the indirect puq^ose 
 of injuring the plaintiff, or of benefiting the defendant at the expense 
 of the plaintiff, it is a malicious act, which is in law and in fact a 
 wrong act, and therefore a wrongful act, and therefore an actionable 
 act, if injury ensues from it. We think that it cannot be doubted that 
 a malicious act, such as is above described, is a wrongful act in law 
 and in fact. The act complained of in such a case as Lumley v. Gye, 
 and which is complained of in the present case, is therefore, because 
 malicious, wrongful. That act is a persuasion by the defendant of 
 a third person to break a contract existing between such third person 
 and the plaintiff. It cannot be maintained that it is not a natural and 
 probable consequence of that act of persuasion that the third person 
 will break his contract. It is not only the natural and probable conse- 
 quence, but, by the terms of the proposition which involves the suc- 
 cess of the persuasion, it is the actual consequence." Nothing could 
 be more directly in point to the present case with regard to the first 
 ground of action set up. That case is an authority which is binding 
 on us, and it appears to me to apply to the present case. 
 
 The next point is, whether the distinction taken for the defendants 
 between the claim for inducing persons to break contracts already 
 entered into with the plaintiff and that for inducing persons not to 
 enter into contracts with the plaintiff can be sustained, and whether 
 the latter claim is maintainable in law. I do not think that distinction 
 can prevail. There was the same wrongful intent in both cases, wrong- 
 ful because malicious. There was the same kind of injury to the 
 plaintiff. It seems rather a fine distinction to say that, where a de- 
 fendant maliciously induces a person not to carry out a contract al- 
 ready made with the plaintiff and so injures the plaintiff, it is action- 
 able, but where he injures the plaintiff by maliciously preventing a 
 person from entering into a contract with the plaintiff, which he would 
 otherwise have entered into, it is not actionable. At any rate it ap- 
 pears to me that, on the principle acted on in the case of Gregory v. 
 Duke of Brunswick, 6 M. & G. 953, where defendants conspire or com- 
 bine together maliciously to injure the plaintiff by preventing persons 
 from entering into contracts with him, and injury results to the plain- 
 tiff, it is actionable. The judgments in the case of Mogul Steamship 
 Co. V. Macgregor, Gow & Co., [1892] A. C. 25, in the House of Lords, 
 Beem to show that such a combination if followed by damage to the
 
 Ch. 2) TORTS THROUGH MALICE 1279 
 
 plaintiff is actionable. With regard to what was there said, the coun- 
 sel for the defendants rehed on the distinction between an indictment 
 and a civil action, and said that, though such a combination might be 
 the subject of an indictment for conspiracy, it could not be the sub- 
 ject of an action for damages. I agree that there is this distinction, 
 viz., that, in tlie case of an indictment, when the conspiracy is proved 
 the indictment is proved, but in the case of an action it is necessary 
 to go further and to prove damage. Therefore it will not suffice in 
 an action, if the jury only find that the defendants agreed together to 
 take an unlawful course of action, but they do not find that it was 
 taken and that damage resulted to the plaintiff, or if there is no evi- 
 dence on which tlie jury can find that damage resulted to the plain- 
 tiff". But, if there is evidence, and they do find, that damage resulted 
 to the plaintiff, then I think what Lord Bramwell said in the case 
 of Mogul Steamship Co. v. Alacgregor, Gow & Co. applies, and the 
 action will lie. He said: "The plaintiffs also say that these things, 
 or some of them, if done by an individual, would be actionable. This 
 need not be determined directly, because all the things complained of 
 have their origin in what the plaintiffs say is unlawfulness, a conspir- 
 acy to injure: so that, if actionable when done by one, much more 
 are they when done by several, and, if not actionable when done by 
 several, certainly they are not when done by one. It has been object- 
 ed by capable persons that it is strange that that should be unlawful, 
 if done by several, which is not if done by one, and that the thing 
 is wrong if done by one, if wrong when done by several ; if not wrong 
 when done by one, it cannot be when done by several. I think there 
 is an obvious answer, indeed two : one is that a man may encounter 
 the acts of a single person, yet not be fairly matched against several ; 
 the other is that the act when done by an individual is wrong, though 
 not punishable, because the law avoids the multiplicity of crimes : De 
 minimis non curat lex ; while if done by several it is sufficiently im- 
 portant to be treated as a crime." It seems to me that that language 
 recognizes the doctrine of law as being that, if there is an agreement 
 to take an unlawful course of action which amounts to a conspiracy, 
 and that conspiracy causes damage to the plaintiff, an action will 
 he in respect of such conspiracy. It appears to me, therefore, that the 
 combination here entered into by the defendants was wrongful both 
 in respect of the interference with existing contracts and in respect 
 of the prevention of contracts being entered into in the future. I 
 cannot doubt that there was evidence from which the jury might find 
 that people were prevented from dealing with the plaintiff by the reso- 
 lution of the joint committee and the action taken by the defendants, 
 and that the plaintiff was thereby injured, and it appears to me that 
 the jury have so found. For there reasons I think this application 
 must be refused. 
 
 Lopes, L. J. The case which I think must govern our decision as 
 to the first head of claim is Bowen v. Hall. 6 O. B. D. 333, which I
 
 12S0 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 understand to lay down the broad principle that a person who induces 
 a party to a contract to break it, intending thereby to injure another 
 person or to get a benefit for himself, commits an actionable wrong. 
 That appears to me to be the effect of the decision in that case, which 
 was decided in 1881, and never appears to have been since questioned. 
 I presume that the principle is this, viz., that the contract confers 
 certain rights on the person with whom it is made, and not only binds 
 the parties to it by the obligation entered into, but also imposes on all 
 the world the duty of respecting that contractual obligation. That 
 being the law on the subject, the jury found that the defendants did 
 maliciously induce persons who had contracted with the plaintiff to 
 break their contracts. It seems to me that there was abundant evi- 
 dence to support that finding. 
 
 The second question in the case is with regard to inducing persons 
 not to enter into contracts with the plaintiff. The question left to the 
 jury as to that was, whether the defendants maliciously conspired to 
 induce persons not to enter into contracts with the plaintiff, and such 
 persons were thereby induced not to make such contracts. The jury 
 answered that question in the affirmative. That being so, the question 
 is whether, upon that finding, it is shown that the defendants committed 
 an actionable wrong. I think that it is. I will state shortly what I 
 believe to be the law on the subject. The result of the authorities ap- 
 pears to me to be that a combination by two or more persons to induce 
 others not to deal with a particular individual, or enter into contracts 
 with him, if done with the intention of injuring him, is an actionable 
 wrong if damage results to him therefrom. That appears to me to 
 follow from what was said in Gregory v. Duke of Brunswick, 6 M. & 
 G. 953, and in the House of Lords in the case of Mogul Steamship 
 Co. v. Macgregor, Gow & Co., [1892] A. C. 25. It was argued here 
 that there was no evidence that any persons were induced not to en- 
 ter into contracts with the plaintiff. I cannot agree with that con- 
 tention. I think there was sufficient evidence to that effect, and that 
 injury was thereby occasioned to the plaintiff. For these reasons, I 
 think that the verdict ought to stand, and this application should be 
 dismissed.^* Application dismissed. 
 
 LEATHEM V. CRAIG et al. 
 
 (Court of Api>eal in Ireland. [1S99] 2 I. R. 744.) 
 
 Lord Ashbourne, C. This is an action instituted by Mr. 
 Leathem, a flesher or butcher of Lisburn, against five fleshers' as- 
 sistants and members of the Journeymen Butchers' Assistants' Associa- 
 tion, to recover damages for maliciously and wrongfully procuring 
 certain persons to break contracts into which they had entered with 
 the plaintiff, and not to enter into other contracts with the plaintiff'; 
 and for maliciously and wrongfully enticing and procuring certain 
 
 28 A concurring opinion by A. L. Smith, L, J., is omitted.
 
 Ch. 2) TORTS THROUGH MALICE 1281 
 
 workmen in the employment of the said persons to leave the service 
 of their employers, and to break their contracts of service with intent 
 to injure the plaintiff, and to prevent the said persons from carry- 
 ing out their contracts with the plaintiff; and for maliciously and 
 wrongfully intimidating the said persons, and coercing them to break 
 their contracts with the plaintiff", and intimidating the servants in their 
 employ, and coercing them to leave the service of their employers; 
 and for unlawfully conspiring together, and with certain other per- 
 sons, to do the acts aforesaid with intent to injure the plaintiff. 
 
 The case was tried at the Summer Assizes of 1896, at Belfast, be- 
 fore Lord Justice FitzGibbon, and resulted in a verdict for the plain- 
 tiff'. The Queen's Bench Division (Palles, C. B., dissenting) has up- 
 held that verdict, and the defendants have brought the case before 
 this Court on appeal. 
 
 The facts of the case are few and simple, and can be stated very 
 shortly. The plaintiff offended the defendants by employing some 
 men not members of the defendants' Association, and refused to dis- 
 miss them when requested. The plaintiff appears to have tried to 
 come to an amicable agreement with the defendants' Association, and 
 attended a meeting of theirs, where he practically offered to pay the 
 dues and charges requisite to have his non-union men admitted to the 
 Association, and thus remove the sole ground of trade dispute. In 
 his evidence he says: "Shaw objected, and said my men should be 
 put out and walk the streets for twelve months. I said it was a hard 
 case to make a man with nine small children walk the streets for 
 twelve months, and that I would not submit to it." The defendants 
 then called out the plaintiff''s union assistants, and induced one of 
 them to break his contract of service, thus causing possibly some in- 
 convenience to the plaintiff, though not much loss, as labour appears 
 to have been abundant in the neighborhood. 
 
 The plaintiff', however, alleged a much graver element of loss, in 
 the successful efforts of the defendants to prevent his customers deal- 
 ing with him. Some evidence was given as to three, but attention 
 may be concentrated on one. His principal customer appears to have 
 been a Belfast butcher called Munce, who had dealt with him in a 
 very large way for a great number of years. The course of dealing 
 between them was that the plaintiff delivered a very extensive con- 
 signment of meat every week to Munce, which was invariably paid for 
 in due course. The defendants determined to "put a screw" on Munce 
 to withdraw his custom from the plaintiff, and he, yielding to a threat 
 that his assistants would be otherwise called out, reluctantly telegraph- 
 ed to the plaintiff to cease sending him meat. 
 
 The action of the defendants in reference to Munce was the cause 
 
 of the most serious loss sustained by the plaintiff, and was the main 
 
 element of damage proved by him at the trial. Unquestionably, the 
 
 plaintiff was deprived of his best customer through the action of the 
 
 Hepb. Torts — 81
 
 12S2 TORTS THROUGH ACTS OP CONDITIONAL LIABILITY (Part 3 
 
 defendants. A course of dealing most profitable for the plaintiff was 
 broken owing to their intervention. No formal contract may have 
 existed between the plaintiff and Munce, though possibly one might 
 have been implied from week to week, determinable only by adequate 
 notice. But the real ground of large damage was the driving away 
 of the plaintift"'s best customer by the combined action of the defend- 
 ants, and their deliberate damage to a most lucrative part of his trade. 
 In addition, his name was put on a "black list'' under circumstances 
 fully detailed in evidence. 
 
 Lord Justice FitzGibbon, in charging the jury, told them to ask 
 themselves the question whether the action of the defendants was or 
 was not taken for the purpose of injuring Leathem in his trade or 
 business, as distinguished froni being action for the legitimate ad- 
 vancement of the interest of the men themselves. He pointed out that 
 "maliciously" meant with intent to injure, as distinguished from ad- 
 vancing their O'wn interests. He also told them that in calculating 
 damages they were to consider money injury to the plaintiff in his 
 business ; but in considering the amount they were not bound to 
 confine themselves to £ s. d. that could be proved. 
 
 The learned Lord Justice left three questions to the jury: First, 
 Did the defendants, or any of them, maliciously induce the plaintiff's 
 customers or servants named in the evidence to refuse to deal, or to 
 continue, with the plaintiff"? Second, Did the defendants, or any of 
 them, maliciously conspire to induce the plaintiff's customers and 
 serv'ants not to deal with the plaintiff, or not to continue in his em- 
 ployment, and whether the persons thereby induced did so? Third, 
 Did the defendants Davey, Dornan, and Shaw, or any of them, publish 
 the "black list" with the intention of injuring the plaintiff? The jury 
 answered the first and second questions in the affirmative against all 
 the defendants, assessing the damages at £200 ; they also answered the 
 third question in the affirmative against the three defendants named 
 therein, assessing the damages at £50. It was conceded in the argu- 
 ment that no separate damages could be given on the third ques- 
 tion, and it may therefore be disregarded in the consideration of 
 the case. 
 
 The case of Allen v. Flood, [1898] A. C. 1, had not been decided 
 in the House of Lords at the time of the trial before Lord Justice 
 FitzGibbon, and the argument addressed to us substantially amounted 
 to a contention that the decision of the House of Lords had rendered 
 it impossible to uphold the verdict in the present case, and bad prac- 
 tically swept away the authority of Temperton v. Russell, [1893] 1 
 Q. B. 715, on which tiic plaintiff might have otherwise relied. 
 
 The case of Temperton v. Russell, ibid., was unquestionably very 
 like the present in its essential particulars. * * * 29 
 
 2 9 Part.s of the opinion of Lord Ashbourne, C. and the opinions of Porter, 
 yi. R.. and Walker and Holmes, L. JJ., are omitted.
 
 Ch. 2) TORTS THROUGH MALIOEJ 1283 
 
 Before considering how far this decision is afifected by the judgment 
 of tlie House of Lords in the case of Allen v. Flood, [1898] A. C. 
 1, I should like to refer to the case of the Mogul Steamship Com- 
 pany V. Alacgregor & Co., [1892] A. C. 25, when the House of 
 Lords laid down what could not be charged as a conspiracy to in- 
 jure. The facts of that case are important. 
 
 ''Ov/ners of ships, in order to secure a carrying trade exclusively 
 for tliemselves and at profitable rates, formed an association, and 
 agreed that the number of ships to be sent by members of the as- 
 sociation to the loading port, the division of cargoes and the freights 
 to be demanded, should be the subject of regulation, that a rebate 
 of 5 per cent, on the freights should be allowed to all shippers who 
 shipped only with members ; and that agents of members should 
 be prohibited on pain of dismissal from acting in the interest of 
 competing shipowners ; any member to be at liberty to withdraw 
 on giving certain notices. The plaintiffs, who were shipowners ex- 
 cluded from the association, sent ships to the loading ports to endeavour 
 to obtain cargoes. The associated owners thereupon sent more ships 
 to the port, underbid the plaintiffs, and reduced freights so low that 
 the plaintiff's were obliged to carry at unremunerative rates. They 
 also threatened to dismiss certain agents if they loaded the plain- 
 tiff's' ships, and circulated a notice that the rebate of 5 per cent. 
 would not be allowed to any person who shipped cargoes on the plain- 
 tiffs' vessels. The plaintiffs having brought an action for damages 
 against the associated owners alleging a conspiracy to injure the 
 plaintiffs: Held, affirming the decision of the Court of Appeal (23 
 Q. B. D. 598), that since the acts of the defendants were done with 
 the lawful object of protecting and extending their trade and increas- 
 ing their profits, and since they had not employed any unlawful* 
 means, the plaintiffs had no cause of action." 
 
 It will thus be seen that the case of Temperton v. Russell, [1893] 
 1 Q. B. '715, is very like, while the Mogul Case, [1892] A. C. 25, is 
 very unlike, the present ; but each throws a flood of light on the prin- 
 ciples which should guide our decision. 
 
 The facts of the case of Allen v. Flood, [1898] A. C. 1, have 
 been stated so often that it is only necessary to refer to them very 
 shortly. Flood and Taylor, the plaintiffs, were employed as ship- 
 wrights by the Glengall Iron Company, on the terms that they might 
 be discharged at any time. The jury found that Allen, the defendant, 
 maliciously induced the Company to discharge Flood and Taylor 
 from the Company's employment and not to engage them, and that 
 each had suffered £20 damages. The case, when finally presented 
 for decision, was not one of conspiracy or unlawful combination. 
 
 None of the noble and learned Lords who concurred in the opin- 
 ion of the majority laid it down that their decision would apply to 
 a case of conspiracy, and several of them expressly guarded them-
 
 1284 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 selves against their judgments being quoted as applicable to a case of 
 conspiracy. * * * 
 
 How does the decision of Allen v. Flood affect the authority of 
 Tcmperton v. Russell? How does it necessarily compel us to regard 
 the case as no longer entitled to weight? In my opinion it leaves 
 entirely untouched and unshaken the larger part of that case — that in 
 respect of which £200 damages was awarded for conspiracy. 
 
 In the present case the jury has expressly found tliat the defend- 
 ants maliciously conspired to induce the plaintiff's customers and serv- 
 ants not to deal with the plaintiff, and not to continue in his service, 
 and that he was damaged thereby to the extent of £200. Lord Justice 
 FitzGibbon was careful to express what was meant by "maliciously" ; 
 and I take it that the jury found and meant that the defendants acted 
 with motive and intention to injure and punish the plaintiff, and not 
 to advance their own interests, or to further their own trade objects. 
 I am disposed to think that there was evidence of coercion and intimi- 
 dation; but as the jury did not return any separate finding on the 
 subject, I do not enter on the subject as a separate or independent 
 topic. 
 
 The Mogul Steamship Company's Case, [1892] A. C. 25, shows how 
 carefully the law protects all legitimate trade competition, and that the 
 law will not allow it to be interfered with because the combination 
 which is formed for legal purposes is styled a conspiracy. On the 
 other hand the case of Temperton v. Russell, [1893] 1 Q. B. 715, 
 shows that where the elements of a real conspiracy to injure exist, 
 the law will not deny relief to a man who is thereby damaged. 
 
 I am unable to concur in the interesting argument founded on sec- 
 tion 3 of the Conspiracy and Protection of Property Act, 1875. I can- 
 'not regard the acts of the defendants as being done in contempla- 
 tion and furtherance of a trade dispute; and I am also impressed by 
 the argument of Mr. Justice Andrews that the enactment deals with 
 criminal responsibility only, and not with the right of redress for 
 civil wrongs. 
 
 I am unable to find anything in the case of Allen v. Flood, [1898] 
 A, C. 1, as decided by the House of Lords, to apply to a case of con- 
 spiracy like the present; I can see nothing to justify our sending 
 the case for a new trial ; I think that the verdict for £200 damages 
 should be upheld, and the decision of the Queen's Bench Division for 
 that amount affirmed, and this appeal dismissed with costs.
 
 Ch. 2) TORTS THROUGH MALICE 1285 
 
 QUINN, Appellant, and LEATHEM, Respondent 
 (House of Lords, [1901] A. C. 405.) 
 
 Leathern brought an action in Ireland, against five defendants, and 
 in the Queen's Bench Division obtained a judgment, on two causes 
 of action, against all five, for £200 damages, and on an alleged third 
 cause, the publication of a black list, had judgment in the further 
 sum of £50 damages against three of the defendants. In the Irish 
 Court of Appeal the decision below was affirmed as to the judgment 
 for the £200 damages. Ouinn, one of the five defendants, appealed.^" 
 
 Lord LindlDy. My Lords, the case of Allen v. Flood, [1898] A. 
 C. 1, has so important a bearing on the present appeal that it is 
 necessary to ascertain exactly what this House really decided in that 
 celebrated case.^^ 
 
 It was an action by two workmen of an iron company against 
 three members of a trade union, namely, Allen and two others, for 
 maliciously, wrongfully, and with intent to injure the plaintiffs, pro- 
 curing and inducing the iron company to discharge the plaintiffs. 
 The action was tried before Kennedy, J., who ruled that there was 
 no evidence to go to the jury of conspiracy, intimidation, coercion, or 
 breach of contract. The result of the trial was that the plaintiff's ob- 
 tained a verdict and judgment against Allen alone. He appealed, and 
 the only question which this House had to determine was whether 
 what he had done entitled the plaintiff's to maintain their action 
 against him. What the jury found that he had done was, that he had 
 maliciously induced the employers of the plaintiff's to discharge them, 
 whereby the plaintiff's suffered damage. Diff'erent views were taken 
 by the noble Lords who heard the appeal as to Allen's authority to 
 call out the members of the union, and also as to the means used by 
 Allen to induce the employers of the plaintiff's to discharge them ; 
 but, in the opinion of the noble Lords who formed the majority of 
 your Lordships' House, all that Allen did was to inform the employers 
 of the plaintiffs that most of their worl-anen would leave them if they 
 did not discharge the plaintiffs. There being no question of conspir- 
 acy, intimidation, coercion, or breach of contract, for consideration 
 by the House, and the majority of their Lordships having come to the 
 conclusion that Allen had done no more than I have stated, the ma- 
 jority of the noble Lords held that the action against Allen would not 
 lie; that he had infringed no right of the plaintiffs; that he had done 
 nothing which he had no legal right to do, and that the fact that he 
 
 30 The statement of facts is abridRod, and the arguments of counsel and 
 parts of Tx)rd Lindley's opinion are omitted. 
 
 In the House of Lords, there were elaborate opinions, all concurring, from 
 the Earl of Ilalsbury, L. C, Lord Macnaghteu, Lord Shand, Lord Brampton, 
 and Lord Lindley. 
 
 31 On Allen v. Flood, the report of which in the House of Ixjrds runs to ISO 
 pages ([1898] A. C. 3-lSl), see Salmond on Torts (3d Ed.) 473, distinguit^hiug 
 the case from Quinn v. T>eathem.
 
 1286 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 had acted maliciously and with intent to injure the plaintiffs did not, 
 without more, entitle the plaintiffs to maintain the action. 
 
 My Lords, this decision, as I understand it, establishes two propo- 
 sitions : one a far-reaching and extremely important proposition of 
 law, and the other a comparatively unimportant proposition of mixed 
 law and fact, useful as a guide, but of a very different character from 
 the first. 
 
 The first and important proposition is that an act otherwise lawful, 
 although hannful, does not become actionable by being done mali- 
 ciously in the sense of proceeding from a bad motive, and with intent 
 to annoy or harm another. This is a legal doctrine not new or laid 
 down for the first time in Allen v. Flood ; it had been gaining ground 
 for some time, but it was never before so fully and authoritatively 
 expounded as in that case. In applying this proposition care, how- 
 ever, must be taken to bear in mind, first, that in Allen v. Flood 
 criminal responsibility had not to be considered. It would revo- 
 lutionize criminal law to say that the criminal responsibility 
 for conduct never depends on intention. Secondly, it must be borne 
 in mind that even in considering a person's liability to civil proceed- 
 ings the proposition in question only applies to "acts otherwise law- 
 ful," i. e., to acts involving no breach of duty, or, in other words, no 
 wrong to any one. I shall refer to this matter later on. 
 
 The second proposition is that what Allen did infringed no right of 
 the plaintiffs, even although he acted maliciously and with a view to 
 injure them. I have already stated what he did, and all that he did. 
 in the opinion of the majority of the noble Lords. If their view of 
 the facts was correct, their conclusion that Allen infringed no right 
 of the plaintiffs is perfectly intelligible, and indeed unavoidable. 
 Truly, to inform a person that others will annoy or injure him unless 
 he acts in a particular way cannot of itself be actionable, whatever the 
 motive or intention of the informant may have been. 
 
 My Lords, the questions whether Allen had more power over the 
 men than some of their Lordships thought, and whether Allen did 
 more than they thought, are mere questions of fact. Neither of these 
 questions is a question of law, and no court or jury is bound as a mat- 
 ter of law to draw from the facts before it inferences of fact similar 
 to those drawn by noble Lords from the evidence relating to Allen 
 in the case before them. 
 
 I will pass now to the facts of this case, and consider (1) what the 
 plaintiff's rights were ; (2) what the defendants' conduct was ; (3) 
 whether that conduct infringed the plaintiff's rights. For the sake of 
 clearness it will be convenient to consider these questions in the first 
 place apart from the statute which legalizes strikes, and in the next 
 place with reference to that statute. 
 
 1. As to the plaintiff's rights. He had the ordinary rights of a 
 British subject. He was at liberty to earn his own living in his own 
 way, provided he did not violate some special law prohibiting him 
 from so doing, and provided he did not infringe the rights of other
 
 Ch. 2) TORTS THROUGH MALICE 1287 
 
 people. This liberty involved liberty to deal with other persons who 
 were willing to deal with him. This liberty is a right recognized by 
 law ; its correlative is the general duty of every one not to prevent 
 the free exercise of this liberty, except so far as his own liberty of 
 action may justify him in so doing. But a person's liberty or right 
 to deal with others is nugatory, unless they are at liberty to deal with 
 him if they choose to do so. Any interference with their liberty to 
 deal with him affects him. If such interference is justifiable in point 
 of law, he has no redress. Again, if such interference is wrongful, 
 the only person who can sue in respect of it is, as a rule, the person 
 immediately aft'ected by it; another who suffers by it has usually no 
 redress ; the damage to him is too remote, and it would be obviously 
 practically impossible and highly inconvenient to give legal redress to 
 all who suffered from such wrongs. But if the interference is wrong- 
 ful and is intended to damage a third person, and he is damaged in 
 fact — in other words, if he is wrongfully and intentionally struck at 
 through others, and is thereby damnified — the whole aspect of the 
 case is changed : the wrong done to others reaches him, his rights are 
 infringed although indirectly, and damage to him is not remote or un- 
 foreseen, but is the direct consequence of what has been done. Our 
 law, as I understand it, is not so defective as to refuse him a remedy 
 by an action under such circumstances. The cases collected in the 
 old books on actions on the case, and the illustrations given by the late 
 Bowen, L. J., in his aflmirable judgment in the Mogul Steamship Com- 
 pany's Case, 23 Q. B. D. 613, 614, may be referred to in support of 
 the foregoing conclusion, and I do not understand the decision in 
 Allen v. Flood to be opposed to it. 
 
 If the above reasoning is correct, Lumley v. Gye, 2 E. & B. 216, was 
 rightly decided, as I am of opinion it clearly was. Further, the prin- 
 ciple involved in it cannot be confined to inducements to break con- 
 tracts of service, nor indeed to inducements to break any contracts. 
 The principle which underlies the decision reaches all wrongful acts 
 done intentionally to damage a particular individual and actually dam- 
 aging him. Temperton v. Russell, [1893] 1 Q. B. 715, ought to have 
 been decided and may be upheld on this principle. That case was 
 much criticised in Allen v. Flood, and not without reason ; for, ac- 
 cording to the judgment of Lord Esher, the defendants' liability de- 
 pended on motive or intention alone, whether anything wrong was 
 done or not. This went too far, as was pointed out in Allen v. Flood. 
 But in Temperton v. Russell there was a wrongful act, namely, con- 
 spiracy and unjustifiable interference with Brentano, who dealt with 
 the plaintiff. This wrongful act warranted the decision, which I 
 think was right. 
 
 2. I pass on to consider what the defendants did. The appellant 
 and two of the other defendants were the officers of a trade union, 
 and the jury have found that the defendants wrongfully and malicious- 
 ly induced the customers of the plaintiff to refuse to deal with him. 
 and maliciously conspired to induce them not to deal with him. There
 
 1288 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 were similar findings as to inducing servants of the plaintiff to leave 
 him. What the defendants did was to threaten to call out the union 
 workmen of the plaintiff and of his customers if he would not dis- 
 charge some non-union men in his employ. In other words, in order 
 to compel the plaintiff to discharge some of his men, the defendants 
 threatened to put the plaintiff and his customers, and persons lawfully 
 working for them, to all the inconvenience they could without using 
 violence. The defendants' conduct was the more reprehensible be- 
 cause the plaintiff offered to pay the fees necessary to enable his non- 
 union men to become members of the defendants' union; but this 
 would not satisfy the defendants. The facts of this case are entirely 
 different from those which this House had to consider in Allen v. 
 Flood. In the present case there was no dispute between the plain- 
 tiff and his men. None of them wanted to leave his employ. Nor 
 was there any dispute between the plaintiff's customers and their own 
 men, nor between the plaintiff and his customers, nor between the men 
 they respectively employed. The defendants called no witnesses, and 
 there was no evidence to justify or excuse the conduct of the defend- 
 ants. That they acted as they did in furtherance of what they con- 
 sidered the interests of union men may probably be fairly assumed 
 in their favour, although they did not come forward and say so them- 
 selves ; but that is all that can be said for them. No one can, I think, 
 say that the verdict was not amply warranted by the evidence. I have 
 purposely said nothing about the black list, as the learned judge who 
 tried the case considered that the evidence did not connect the appel- 
 lant with that list. But the black list was, in my opinion, a very im- 
 portant feature in the case. 
 
 3. The remaining question is whether such conduct infringed the 
 plaintiff's rights so as to give him a cause of action. In my opinion, 
 it plainly did. The defendants were doing a great deal more than 
 exercising their own rights: they were dictating to the plaintiff and 
 his customers and servants what they were to do. The defendants 
 were violating their duty to the plaintiff and his customers and serv- 
 ants, which was to leave them in the undisturbed enjoyment of their 
 liberty of action as already explained. What is the legal justification 
 or excuse for such conduct? None is alleged and none can be found. 
 This violation of duty by the defendants resulted in damage to the 
 plaintiff — not remote, but immediate and intended. The intention to 
 injure the plaintiff negatives all excuses and disposes of any ques- 
 tion of remoteness of damage. Your lordships have to deal with a 
 case, not of damnum absque injuria, but of damnum cum injuria. 
 
 Every element necessary to give a cause of action on ordinary prin- 
 ciples of law is present in this case. As regards authorities, they were 
 all exhaustively examined in the Mogul Steamship Co. v. MacGregor 
 and Allen v. Flood, and it is unnecessary to dwell upon them again. 
 I have examined all those which are important, and I venture to say 
 that there is not a single decision anterior to Allen v. Flood in favour
 
 Ch. 2) TORTS THROUGH MALICE 1289 
 
 of the appellant. His sheet anchor is Allen v. Flood, which is far from 
 covering this case, and which can only be made to cover it by greatly 
 extending its operation. 
 
 It was contended at the bar that if what was done in this case had 
 been done by one person only, his conduct would not have been ac- 
 tionable, and that the fact that what was done was effected by many 
 acting in concert makes no difference. My Lords, one man without 
 others behind him who would obey his orders could not have done 
 wdiat these defendants did. One man exercising the same control 
 over others as these defendants had could have acted as they did, and, 
 if he had done so, I conceive that he would have committed a wrong 
 towards the plaintiff for which the plaintiff could have maintained 
 an action. I am aware that in Allen v. Flood, Lord Herschell, at pp. 
 128, 138, expressed his opinion to be that it was immaterial whether 
 Allen said he would call the men out or not. This may have been 
 so in that particular case, as there was evidence that Allen had no 
 power to call out the men, and the men had determined to strike be- 
 fore Allen had anything to do with the matter. But if Lord Herschell 
 meant to say that as a matter of law there is no difference between 
 giving information that men will strike, and making them strike, or 
 threatening to make them strike, by calling them out when they do 
 not want to strike, I am unable to concur with him. It is all very 
 well to talk about peaceable persuasion. It may be that in Allen v. 
 Flood, there was nothing more; but here there was very much more. 
 What may begin as peaceable persuasion may easily become, and in 
 trades union disputes generally does become, peremptory ordering, 
 with threats open or covert of very unpleasant consequences to those 
 who are not persuaded. Calling workmen out involves very serious 
 consequences to such of them as do not obey. Black lists are real in- 
 struments of coercion, as every man whose name is on one soon dis- 
 covers to his cost, A combination not to work is one thing, and is 
 lawful. A combination to prevent others from working by annoying 
 them if they do is a very different thing, and is prima facie unlawful. 
 Again, not to work oneself is lawful so long as one keeps off the poor- 
 rates, but to order men not to work wiien they are willing to work is 
 another thing. A threat to call men out given by a trade union of- 
 ficial to an employer of men belonging to the union and willing to 
 work with him is a form of coercion, intimidation, molestation, or an- 
 noyance to them and to him very difificult to resist, and, to say the 
 least, requiring justification. None was offered in this case. 
 
 My Lords, it is said that conduct which is not actionable on the 
 part of one person cannot be actionable if it is that of several acting 
 in concert. This may be so where many do no more than one is sup- 
 posed to do. But numbers may annoy and coerce where one may not. 
 Annoyance and coercion by many may be so intolerable as to become 
 actionable, and produce a result which one alone could not produce. 
 I am aware of the difficulties which surround the law of conspiracy
 
 1290 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 both in its criminal and civil aspects ; and older views have been 
 greatly and, if I may say so, most beneticially modified by the discus- 
 sions and decisions in America and this country. Amongst the Ameri- 
 can cases I would refer especially to Vegelahn v. Guntner, 167 Mass. 
 92, where coercion by other means than violence, or threats of it, was 
 held unlawful. In this country it is now settled by the decision of 
 this House in the case of the Mogul Steamship Co., [1892] A. C. 25, 
 23 Q. B. D. 598, that no action for a conspiracy lies against persons 
 who act in concert to damage another and do damage him, but who 
 at the same time merely exercise their own rights and who infringe 
 no rights of other people. Allen v. Flood emphasizes the same doc- 
 trine. The principle was strikingly illustrated in the Scottish Co-opera- 
 tive Society v. Glasgow Fleshers' Association (1898) 35 Sc. L. R. 645, 
 which was referred to in the course of the argument. In this case 
 some butchers induced some salesmen not to sell meat to the plain- 
 tiffs. The means employed were to threaten the salesmen that if they 
 continued to sell meat to the plaintiffs, they, the butchers, would not 
 buy from the salesmen. There was nothing unlawful in this, and the 
 learned judge held that the plaintiffs showed no cause of action, al- 
 though the butchers' object was to prevent the plaintiffs from buying 
 for co-operative societies in competition with themselves, and the de- 
 fendants were acting in concert. 
 
 The cardinal point of distinction between such cases and the pres- 
 ent is that in them, although damage was intentionally inflicted on the 
 plaintiffs, no one's right was infringed — no wrongful act was commit- 
 ted ; whilst in the present case the coercion of the plaintiff's customers 
 and servants, and of the plaintiff through them, was an infringement 
 of their liberty as well as his, and was wrongful both to them and also 
 to him, as I have already endeavoured to show. 
 
 Intentional damage which arises from the mere exercise of the rights 
 of many is not, I apprehend, actionable by our law as now settled. 
 To hold the contrary would be unduly to restrict the liberty of one 
 set of persons in order to uphold the liberty of another set. Accord- 
 ing to our law, competition, with all its drawbacks, not only between 
 individuals, but l:)etween associations, and between them and individ- 
 uals, is permissible, provided nobody's rights are infringed. The law 
 is the same for all persons, whatever their callings : it applies to mas- 
 ters as well as to men; the proviso, however, is all-important, and it 
 also applies to both, and limits the rights of those who combine to 
 lock-out as well as the rights of those who strike. But coercion by 
 threats, open or disguised, not only of bodily harm but of serious an- 
 noyance and damage, is prima facie, at all events, a wrong inflicted 
 on the persons coerced ; and in considering whether coercion has been 
 applied or not, numbers cannot be disregarded. * * * 
 
 I conclude this part of the case by saying that, in my opinion, the 
 direction given to the jury by the learned judge who tried the case was 
 correct, so far as the liability of the defendants turns on principles of
 
 Ch. 2) TORTS THROUGH MALICE 1291 
 
 common law, and that the objection taken to it by the counsel for the 
 appellant is untenable. I mean the objection that the learned judge 
 did not distinguish between coercion to break contracts of service, 
 and coercion to break contracts of other kinds, and coercion not to 
 enter into contracts. * * * 
 
 My Lords, I will detain your Lordships no longer. Allen v. Flood 
 is in many respects a very valuable decision, but it may be easily mis- 
 understood and carried too far. 
 
 Your Lordships are asked to extend it and to destroy that individ- 
 ual liberty which our laws so anxiously guard. The appellant seeks 
 by means of Allen v. Flood, and by logical reasoning based upon some 
 passages in the judgments given by the noble Lords who decided it, 
 to drive your Lordships to hold that boycotting by trades unions in 
 one of its most objectionable forms is lawful, and gives no cause of 
 action to its victims although they may be pecuniarily ruined thereby. 
 
 My Lords, so to hold would, in my opinion, be contrary to well- 
 settled principles of English law, and would be to do what is not yet 
 authorized by any statute or legal decision. 
 
 In my opinion this appeal ought to be dismissed with costs. 
 
 Order appealed from affirmed, and appeal dismissed with costs. 
 
 READ V. FRIENDLY SOCIETY OF OPERATIVE STONEMA- 
 SONS OF ENGLAND, IRELAND AND WALES et al. 
 
 (Court of Appeal. fl002] 2 K. B. 732.) 
 
 Collins, M. R., read the follov/ing judgment: This is an appeal 
 by the defendants from the decision of the Divisional Court order- 
 ing a new trial of a case decided by a county court judge in favour 
 of the defendants. There is a cross-appeal by the plaintiff asking that 
 fhis Court should give judgment for the plaintiff with damages. The 
 Court below, while agreed that the decision was unsatisfactory, were 
 divided as to the relief; Darling, J-, and Channel!, J., holding that 
 there ought to be a new trial, while Lord Alverstone, C. J., was of 
 opinion that the plaintiff' was entitled to judgment. The parties agreed 
 before them and before us that if judgment were given for the plain- 
 tiff the Court should assess the damages. 
 
 The facts are stated in the judgments as reported below, and I 
 need do no more than summarize them for the purpose of this judg- 
 ment. The claim was for £50 damages for wrongfully and malicious- 
 ly inducing Messrs. Wigg & Wright to break their contract of ap- 
 prenticeship with the plaintiff. The evidence for the plaintiff" was that 
 he had become bound by an indenture of apprenticeship to Messrs. 
 Wigg & Wright, stonemasons, of Ipswich, whereby they undertook 
 to teach him the trade of a mason, paying him wages of 15s. a week 
 during a period of three years. Messrs. Wigg & Wright had in their 
 capacity as masters agreed to certain working rules with the defend-
 
 1292 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 ant society, one of which (6) was as follows : "That boys entering the 
 trade shall not work more than three months without being legally 
 bound apprentice, and in no case to be more than sixteen years of age, 
 except masons' sons and stepsons. Employers to have one apprentice 
 to every four masons on an average." The plaintiiFs father was a 
 mason. The plaintiff was not a member of the society, and was twen- 
 ty-five years of age when he entered into the indenture of apprentice- 
 ship. The defendant society in concert with the other defendants, 
 on becoming aware that the plaintiff' had been taken as an apprentice 
 by Messrs. Wigg & ^Vright, took steps to enforce compliance by them 
 with rule 6 as interpreted by the defendants by threatening in the 
 language of their letter set out in Darling, J.'s, judgment: "If the man 
 in question (the plaintiff") starts working at the trade, we are bound 
 to protest against you for introducing an individual not of the trade; 
 and in accordance with our general rule we have empowered our mem- 
 bers working for your firm to take prompt action in the matter. We 
 regret the thing has occurred, but we feel that the blame does not 
 rest with us in any way." This was in effect a threat that they would 
 call out the workmen in Messrs. Wigg & Wright's employ, all of 
 whom were members of the defendant society, and, as was explained 
 by counsel, if so empowered, would be supported while off' work out of 
 the funds of the society. Messrs. Wigg & Wriglit disputed the con- 
 struction placed by the defendants on rule 6, contending, and as I 
 think rightly, that it did not extend to masons' sons. Feeling, how- 
 ever, that they could not resist the coercion brought to bear on them, 
 they dismissed the plaintiff. It was not suggested before us that the 
 acts complained of were not all done by the defendants in concert. 
 The plaintiff has therefore lost the opportunity, which he was lawfully 
 entitled to, of emerging from the position of a labourer at 15s. a week 
 to that of a mason who may earn up to 35s. and he has brought his 
 action accordingly. No evidence was called for the defendants, and 
 no proof given oi assent by Messrs. Wigg & Wright to any rules oth- 
 er than those put in, of which rule 6 is one. 
 
 On these facts the learned county court judge held as follows: "I 
 hold that the facts as proved and admitted before me fall short of 
 giving any ground of action against the defendants. The defendants 
 seem to me to have acted bona fide in the best interests of the society 
 of masons, and not to have been in any way actuated by any improper 
 motives. They gave a certain interpretation to rule 6 and acted upon 
 it, and though their interpretation may or may not be correct, as it 
 was honestly held, I do not consider they have acted improperly in 
 their method of enforcing it." 
 
 On these facts the case seems to me to be clear. The plaintiff was 
 entitled to the benefit of the contract which he had made, and that 
 benefit he would have continued to enjoy but for the intervention of 
 the defendants. The object of the defendants' intervention was to 
 deprive him of that benefit. The facts leave no room for doubt as
 
 Ch. 2) TORTS THROUGH MALICE 1293 
 
 to that. He was not a member of their society, and was under no 
 obHgation, legal or moral, to conform to their rules. In these cir- 
 cumstances they conspired to enforce, l>y threats of a formidable char- 
 acter which they had the means of carr}-ing into eti'ect, a breach by 
 his employers and instructors of the contract which the latter had with 
 him; and the only justification they can suggest for this conduct is 
 that Messrs. Wigg & Wright had come under an obligation to them, 
 not perhaps legally enforceable, if not illegal, not to make such a 
 contract as they had made with the plaintift. But the justification 
 to be of any avail must cover their whole conduct, the means they used 
 as well as the end they had in view. As against Messrs. Wigg & 
 Wright they had whatever rights within the law the rules assented 
 to by Messrs. Wigg & Wright afforded them. But to combine to co- 
 erce them, by threats of the character I have described, to break tlieir 
 contract with the plaintiff was in my judgment an illegal act carried 
 out by illegal means. They cannot be in a better position if the rules 
 are unenforceable than they would have been had a breach of them 
 givea them a legal cause of action. But in such case how can they 
 possibly justify taking the law into their own hands and compelling 
 the opposing litigant by coercion to give effect to their view of a dis- 
 puted obligation by breaking his contract with the plaintiff? Further, 
 does not such conduct demonstrate that their object was to defeat the 
 plaintiff''s purpose of becoming a mason? Belief, however honest, that 
 in what they did they were acting in the best interest of the society 
 of masons could be no excuse for conspiring to deprive the plaintiff' of 
 the advantages of his contract. Persuasion by an individual for the 
 purpose of depriving another person of the benefit of a contract, if it 
 is eft'ectual in bringing about a breach of the contract to the damage of 
 that person, gives a cause of action: Lumley v. Gye, 2 E. & B. 216; 
 and a strong belief on the part of the persuader that he is acting for 
 his own interests does not seem to me to improve his position in 
 any respect. Still less can it do so when he does not confine himself 
 to persuasion, but joins with others to enforce their common interests 
 at the plaintiff's expense by coercion. "That a conspiracy to injure 
 — an oppressive combination — differs widely from an invasion of civil 
 rights by a single individual cannot be doubted." See per Lord Mac- 
 naghten in Quinn v. Leathem, [1901] A. C. 495, at p. 511, and per 
 Lord Brampton in the same case, [1901] A. C. at pp. 528 et seq. It 
 seems to me, therefore, that this case stands wholly outside the de- 
 bateable ground traversed in the discussion of Allen v. Flood, [1898] 
 A, C. 1. The action of the defendants was as clearly malicious, or, 
 if the phrase be preferred, "without just cause or excuse," as in Lum- 
 ley v. Gye, which, as well as Temperton v. Russell, [1893] 1 Q. B. 715, 
 has been finally established in Quinn v. Leathem to be a binding au- 
 thority. "There are," says Lord Watson in Allen v. Flood, [1898] A 
 C. 1, at p. 96, "in my opinion, two grounds only upon which a person 
 who procures tlie act of another can be made legally responsible for
 
 1294 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 its consequences. In the first place, he will incur liability if he know- 
 ingly and for his own ends induces that other person to commit an ac- 
 tionable wrong. In the second place, when the act induced is within 
 the right of the immediate actor, and is therefore not wrongful in so 
 far as he is concerned, it may yet be to the detriment of a third par- 
 ty ; and in that case * * * ^he inducer may be held liable if he 
 can be shewn to have procured his object by the use of illegal means 
 directed against that third party." This view is approved by Lord 
 Macnaghten and treated by him as embodying the opinion of the ma- 
 jority in that case. Ouinn v. Leathern, [1901] A. C. 495, at p. 509. 
 The present case inevitably falls under one or other of those proposi- 
 tions, and I think within both. The defendants did knowingly and 
 for their own ends induce the commission of an actionable wrong, and 
 they employed illegal means to bring it about. Such conduct would 
 be actionable in an individual and incapable of justification, a fortiori 
 where the defendants acted in concert. These considerations seem to 
 ine to exclude from discussion in this case the illustrations given in 
 argument of what might in given circumstances be "just cause," or, in 
 other words, suffice to negative malice. There was no relation be- 
 tween the defendants and either of the parties in this case at all anal- 
 ogous to those existing in the instances put of father and child, or 
 doctor and patient, which I leave for solution when the case arises. 
 The defendants have no higher immunity from legal obligations than 
 any other members of the community, and if they have legal rights 
 they can enforce them by legal means only. It is not at all necessary 
 in this case to embark upon the question whether "without just cause" 
 is a complete equivalent for what was meant in the common law by 
 malice. I am inclined to think that, though in many cases adequate 
 as a description, it is not co-extensive with it, nor do I think that in 
 civil actions any more than in criminal it will be possible to eliminate 
 raotives from the discussion. See the weighty observations of Lord 
 Brampton on this point in Quinn v. Leathem, [1901] A. C. 495, at p. 
 524. It is, however, very desirable to guard against the notion that 
 if the act done be illegal "just cause" may still be averred to purge tlie 
 wrong. For instance, where illegal means have been used to bring 
 about the breach of a contract to the detriment of a party thereto, 
 "just cause" cannot come into the discussion at all. The use of il- 
 legal means evidenced malice, and in this connection malice was not 
 equivalent to "without just cause." The cause of intervention might be 
 just, but the means used to enforce it might be illegal. The common law 
 action threw the burden of proof on the plaintiff. It was not enough 
 for him to shew that the defendant had brought about the breach of 
 a contract between a third party and the plaintiff. He had to shew 
 that it was done maliciously, and the burden of proving malice lay 
 upon him. It was not a case of a prima facie cause of action based 
 on the fact that a breach of contract had been brought about to the 
 detriment of the plaintiff, party thereto, by a stranger to the con-
 
 Ch. 2) TORTS THROUGH MALICE 1295 
 
 tract. The common law did not lightly extend rights arising out of 
 contracts to and against persons not parties thereto, owing to the ab- 
 sence of privity. (See the cases collected in the notes to Pasley v. 
 Freeman, 2 Sm. L. C. [10th Ed.] 64.) Some nexus had to be es- 
 tablished between the plaintiff and the stranger, and this was found 
 in malice. Unless the plaintiff could shew this he failed to bring the 
 stranger into such relations with him as to ground a cause of action, 
 and, therefore, the burden was upon the plaintiff to prove a cause 
 of action, not upon the defendant to justify. I think some confusion 
 has crept into the discussions on this matter through want of sufficient 
 regard to these elementary points. 
 
 I think the materials before us are sufficient to enable us to enter 
 judgment, and I agree with the Lord Chief Justice that the defendants' 
 appeal should be dismissed and the plaintiff's cross-appeal allowed, 
 and judgment entered for the plaintiff" for £50.^^ 
 
 HOLBROOK et al. v. MORRISON. 
 
 (Supreme Judicial Court of Massachusetts, 1913. 214 Mass. 209, 
 100 N. E. 1111, 44 L. R. A. [N. S.] 22S, Aud. Cas. 1914B, 824.) 
 
 Morton, J. The complainants are dealers in real estate and own 
 a number of lots on Wellington Hill in the Dorchester district of the 
 city of Boston. The respondent owns a house and lot abutting on 
 two of the lots belonging to the complainants and in close proximity 
 to the others. She has caused to be placed on the front of her house 
 a large sign headed with the words "For Sale," and concluding with 
 the words "Best Offer from Colored Family," all in large letters. 
 The first entrance onto Wellington Hill and the way prospective 
 purchasers would take in going there is past her house. She has 
 also caused, it is alleged, advertisements of like tenor to be inserted 
 in the "Boston Globe," a newspaper of large circulation, and has 
 threatened and is threatening to sell her house and lot to a colored 
 family. This is a bill to restrain the respondent from maliciously 
 interfering with the complainants' business by means of such sign 
 and advertisements and by such threats. The bill alleges that the 
 effect of the respondent's acts has been greatly to injure the sale of 
 the complainants' lots and that the respondent's purpose is to injure 
 the complainants' business, and that she has no real intention of sell- 
 ing her house and lot to members of the negro race. 
 
 The case was heard by a single justice and comes here on a report 
 by him of the evidence and of a finding made by him "that the re- 
 spondent did not put up the sign for the sole purpose of selling her 
 property, but that she did so for the purpose of annoying the com- 
 
 32 The statement of facts and opinions of Stirling and Cozens-Hardy, L. JJ.. 
 are omitted.
 
 1296 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 plainants." This finding was made by the single justice "without 
 going into the question of whether she [the respondent] was justified 
 in having that ill feeling'' ; and the report concludes, "such decree 
 to be entered by the court as justice and equity may require." 
 
 It appeared from the uncontradicted evidence that the threatened 
 sale by the respondent of her house and lot to a colored family has 
 injured and will continue to injure the business of the complainants 
 unless prevented. We interpret the finding made by the single jus- 
 tice as meaning that one purpose which the respondent had in put- 
 ting up the sign and in advertising her property as she did was to 
 sell it. She also had the purpose, as he finds, of annoying the com- 
 plainants. 
 
 There can be no doubt that the respondent has the right to adver- 
 tise her property for sale by signs or othenvise in the usual way, and 
 to sell it if she sees fit to a negro family, even though the effect may 
 be to impair the business of the complainants ; just as, for instance, 
 the owner of land on a hillside may cultivate it in the usual way even 
 though the effect of the surface drainage may be to fill up his neigh- 
 bor's millpond below. Middlesex Co. v. McQjie, 149 Mass. 103, 21 
 N. E. 230, 14 Am. St. Rep. 402. Does the presence in the sign and 
 advertisements of a malevolent motive quoad the complainants al- 
 though they are not named, intended to annoy and in fact annoying 
 and injuring the complainants' business by announcing in effect that 
 the property is for sale to a colored family change what otherwise 
 would be a legal right into an actionable wrong? It would seem 
 clear according to our own decisions that it does not. Rideout v. 
 Knox, 148 Mass. 368, 19 N. E. 390, 2 L. R. A. 81, 12 Am. St. Rep. 
 560; Greenleaf v. Francis, 18 Pick. 118; Walker v. Cronin, 107 
 Mass. 555. See, also, Frazier v. Brown, 12 Ohio St. 294; Chatfield 
 v. Wilson, 28 Vt. 49; Mahan v. Brown, 13 Wend. (N. Y.) 261, 28 
 Am. Dec. 461. In the present case it is plain, as we have said, that 
 the respondent has the right, if she sees fit to do so, to sell her house 
 and lot to a negro family whatever the effect may be upon the com- 
 plainants' business and property. If she had put up the sign and had 
 caused the advertisements to be inserted without any real intention 
 as alleged in the bill of selling her property but solely with the pur- 
 pose of injuring the business and property of the complainants, there 
 can be no doubt that such conduct on her part would have been ac- 
 tionable. As was said in Rideout v. Knox, 148 Mass. 368, 372, 19 
 N. E. 390, 391 (2 L. R. A. 81, 12 Am. St. Rep. 560), "the right to 
 use one's property for the sole purpose of injuring others is not one 
 of the immediate rights of ownership." But as we have construed 
 the finding of the single justice, one of her purposes in putting up 
 the sign was to sell her property, which was a lawful purpose and one 
 of the indefeasible rights of ownership. The case is different, there- 
 fore, from Sherry v. Perkins, 147 Mass. 212, 17 N. E. 307, 9 Am. St. 
 Rep. 689; Quinn v. Leatham [19011 A. C. 495, and other similar
 
 Ch. 2) TORTS THROUGH MALICE 1297 
 
 cases relied on or referred to by the complainants into which we do 
 not deem it necessary to go, where the motive was wholly malicious 
 and the case lacked the element of justification which is present here. 
 If the offering of her property for sale by the respondent in the man- 
 ner in which it has been offered had been or had been found to be 
 a mere pretext on her part for the purpose of gratifying her spite 
 and ill will towards the complainants, or if that had been her domi- 
 nant and controlling purpose there would have been no justification 
 for her conduct. But there is no finding to that effect. On the con- 
 trary it is found that one purpose which she has is to sell her prop- 
 erty, w^hich is a legitimate purpose, and to enable her to accomplish 
 it she has a right to as wide a market as she can command by adver- 
 tisements and signs or otherwise. She has a right to ask for bids 
 from white people or colored people, or both. She is not limited to 
 bidders of any particular race or class or creed. And if one of her 
 purposes in asking for bids from colored families is to annoy and in- 
 jure the complainants, and she succeeds in doing so, her conduct is 
 not thereby rendered unlawful so long as her object is to procure a 
 purchaser for and to sell her house and lot. It follows that the bill 
 must be dismissed. 
 
 Bill dismissed with costs. ^' 
 
 3 3 Compare: Falloon v. Scliilling (188.3) 29 Kan. 292, 44 Am. Rep. 642, where 
 the facts were thus given by Brewer, J.: ''The facts, as stated iu the peti- 
 tion, are that defendant was the owner of a tract of eighty acres adjoining 
 the town of Hiawatha. Out of this tract he conveyed three-fourths of an 
 acre to one Oscar Spalsbury, which last-named tract by sundry conveyances 
 passed to and became the property of plaintiff. It was his homestead. His 
 family consisted of himself, wife, and two boys aged respectively six and one 
 years. Plaintiff's dwelling-house is located within thirteen feet of the east 
 line of his lot, and has three windows opening on that side. The towTi of Hia- 
 watha has been growing rapidly for the last few years, and there is quite a 
 demand for town lots. The eightj^-acre tract, which as alleged was once whol- 
 ly owned by defendant, is eligibly situated for the purposes of an addition to 
 the town of Hiawatha, and defendant was anxious to lay off the entire eighty 
 acres as such as an addition. He offered plaintiff $1,600 for his property, which 
 was refused, the same being reasonably worth $1,900 or $2,000. Thereupon 
 defendant conceived the oppressive and unlawful idea of rendering plaintiff's 
 home obnoxious and unendurable to himself and family by erecting cheap 
 tenement houses on either side of plaintifTs land, and filling them with worth- 
 less negroes, that they might annoy plaintiff's wife, who is a person in deli- 
 cate health, and thereby punish plaintiff for refusing defendant's inadequate 
 offer for the property. In pursuance of this purpose, defendant started to 
 build one of these tenement houses directly on the line of plaintiff's land, and 
 thus distant only thirteen feet from plaintiff's house. Upon these facts the 
 T)etition prays for an injunction restraining the defendant from erecting such 
 buildings." 
 
 Hepb.Torts — 82
 
 1298 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 
 
 GAGNON et al. v. FRENCH LICK SPRINGS HOTEL CO. 
 (Supreme Court of Indiana, 1904. 163 Ind. 687, 72 N. E. 849, 68 L. R. A. 175.) 
 
 The French Lick Springs Hotel Company filed its complaint in 
 the circuit court of Orange county against George S. Gagnon, the 
 Baden Lick Sulphur Springs Company, John L. Howard, and John 
 C. Howard, asking that the defendants be temporarily restrained and 
 enjoined from pumping water on the premises of the defendants, and 
 from doing other acts alleged to be injurious to the property of the 
 plaintiits, and that on final hearing the injunction be made perpetual. 
 ThereuiX)n, an emergency being disclosed, the judge, in the vacation 
 of the court and without notice issued a temporary restraining order 
 pursuant to the prayer of the complaint, and fixed a day for the 
 hearing of the application. The result was a temporary injunction 
 as prayed, against all the defendants. Their motions to dissolve 
 this injunction were subsequently overruled, and the defendants ap- 
 pealed. 
 
 The facts in the controversy, so far as material, were as follows : 
 
 The French Lick Springs Hotel Company owns some 550 acres of land 
 situated in a valley 2% miles long by three-fourths of a mile wide, known as 
 "French Lick Valley," in Orange county, in this state. A group of sprmgs, 
 known as the "French Lick Springs," possessing healing and medicinal proper- 
 ties in a high degree, is situated on the lands of the appellee. The Baden Lick 
 Company is the owner of 80 acres of land situated to the north and northeast 
 of the lands of the French Lick Company, and adjoining the same. John C. 
 and John L. Howard own a tract of land extending from the hilltops to the 
 northeast of French Lick Springs down into said valley and to a point about 
 85 rods distant from the northeast comer of the lands owned by said French 
 Lick Company. The waters flowing from the springs known as the French 
 Lick Springs had for more than 30 years been known throughout the United 
 States to possess healing and medicinal properties, and during that time had 
 attracted many visitors to said valley from all parts of the United States, 
 who came to drink and bathe in such waters. Underlying all the land in the 
 said French Lick valley is a subterranean body of water, and the waters in 
 the natural springs of the French Lick Company are forced upward through 
 the rocks by the hydrostatic pressure of said body of water, and for more 
 than 30 years said springs have had a natural flow resulting from said pres- 
 sure. Within a year prior to the bringing of the action, the Baden Lick Com- 
 pany and the Howards have each sunk a well on their resijective tracts of 
 land in said valley for the purpose of tapping the body of water underlying 
 said valley, and such wells were sunk to such depth as to penetrate such body 
 of water; the Howard well being located at a point 85 rods northeast of the 
 Fi-ench Lick Company's premises, and 160 rods from the natural springs of 
 said company, and the Baden Lick well being located at about one-half mile 
 north of such springs. 
 
 About the 18th of July, 1903, having theretofore placed in said well a power- 
 ful steam pump, they commenced to operate the sam^, pumping water from 
 said subterranean body of water, knowing that the same was connected with 
 such springs, and knowing that their said pump had suflicient power of suc- 
 tion to draw the underlining waters away from said springs and destroy the 
 same; and with such knowledge continued to operate said pump day and 
 night, drawing millions of gallons of water from said body of water, which 
 they allowed to escape on the ground and run into French Lick creek and 
 be wasted, and such pumping being continued up to the time of the commence- 
 ment of this action. Some weeks prior to the 18th of July, 1903, the ai>pellant 
 the Baden Lick Company, by Gagnon, who acted for it, also placed a powerful
 
 Ch. 2) TORTS THROUGH MALICE 1299 
 
 pump in its said well, and operated the same almost continually up to, on, and 
 after said last-mentioned date, drawinj; from said subterranean basin more 
 than a half million gallons of water every day, and allowing all of the same 
 to escape into French Lick creek and be wasted ; such pumping continuing up 
 to the time of the servic-e of the temporary restraining order herein. Gagnon 
 and the Baden Lick Company knew that the removal of a large quantity of 
 water from said subterranean body would result in the destruction of the 
 natural springs, and after the 19th of July they also knew that the joint 
 action of the Howards and themselves in such pumping was resulting in the 
 injury of such springs, and, with such knowledge, continued so to pump and 
 waste said waters until said natural springs of the French Lick Company 
 ceased to flow, and became for the time practically worthless, and so remain- 
 ed until the service of the restraining order. Neither the Baden Lick Com- 
 pany nor the Howards had any use for the waters so pumped by them through 
 their resi>ective wells from said subterranean basin of water, but wasted all 
 of it, and while their pumping was in progress they caused observations to 
 be made to discover its effect on the natural springs of the French Lick Com- 
 pany ; and when they learned that said springs were being exhausted by rea- 
 son of such pumping they continued to pump and waste said waters until the 
 flow of water in said springs stopped, and the value thereof for the time being 
 was destroyed. The connection between the wells of the Baden Lick Com- 
 pany and the Howards and the said natural springs of the appellee through 
 said subterranean body of water is so well defined that when the pumping 
 from said wells from any cause ceased for a few hours, the waters would again 
 begin to flow into and out of the said springs, and when said pumping was 
 again resumed the suction from the pumps would again cause said springs to 
 cease flowing. About 11 p. m. on July 21, 1903 (the day prior to the com- 
 mencement of this action), while the pumps in both of the wells referred 
 to were being operated, John L. Howard, one of the apiJellants, visited the 
 natural spring of the French Lick Company known as "Pluto," and, finding, on 
 examination that the same had ceased to flow, said to his companion, "We 
 have got her down ; she has gone to hell." John Stevens, Howard's manager, 
 after the well was sunk on Howard's land, and prior to placing a pump there- 
 in, said to John C. Howard, "I want you to get me a good pump and put in 
 there, and I will sink old Pluto to hell." After such pump was procured and 
 placed in operation, and was operated until about the time of the commence- 
 ment of this action, Stevens again declared, "I have them working on old 
 
 Pluto, and I don't give a d n if Pluto goes as dry as a chip." John L. 
 
 Howard, before sinking the well referred to said: "I will drill a hole up there 
 deep enough to reach the sulphur water, and it doesn't matter whether it 
 flows out natural or not, for I will put in a compressed air pump, and by 
 this means I can lift the water from the bottom of the well instead of the 
 top, and when this is done it will lower the fresh-water pressure here, and 
 whenever you affect the fresh-water pressure Pluto will not inin out." He 
 again said, "I viill have Pluto right here at my door." And again: "When we 
 get through with them [referring to the French Lick Company], they will 
 either take us back in the company or buy me out at my figures. * * * 
 I know more about Pluto than anybody in this valley, and when I get through 
 with my well they will want me, because I can control Pluto." s-i 
 
 Si "In certain portions of Indiana, and other states, hundreds of feet be- 
 neath the surface, natural gas was found confined under pressure in a stratum 
 of porous rock. Owners of the surface claimed for themselves severally the 
 right of making unrestricted drafts upon the common source of supply. Some 
 owners opened up large wells— gushers — lighted the gas and let it burn day and 
 night. Others who were putting their gas wells to beneficial use for heat, 
 light or fuel purposes, protested against the reckless waste which was weak- 
 ening their wells. Put the wasters refused to quit. The beneficial users urged 
 that, since their wells were being damaged without any benefit to the wasters, 
 the act of the wasters could be attributed to nothing but pure malevolence. 
 What of it, replied the wasters ; we are on our own ground and can do asi we 
 please ; we have as much right as you have to bore gas wells, and it is none 
 of your concern what we do with the gas. This defense or justification has 
 been stated in various forms: 'Where one exercises a legal right only, the
 
 1300 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 DowLiNG, C. J. * * * The English and American cases cited 
 by counsel for appellants undoubtedly state the general rules which 
 have been applied by the courts to subterranean waters, and we have 
 no inclination to question their wisdom and authority in the particu- 
 lar cases to which they apply. But there are well-recognized excep- 
 tions to these rules, and doubtless further exceptions and departures 
 from them will from time to time be found necessary or expedient. 
 Where the diversion of the water is purely malicious, and is detri- 
 mental to another proprietor, it may be prevented by injunction. 
 Miller v. Black Rock, 99 Va. 747, 40 S. E. 27, 86 Am. St. Rep. 924. 
 So where the water is simply wasted. Stillwater v. Farmer, 89 Minn. 
 58, 93 N. W. 907, 60 L. R. A. 875, 99 Am. St. Rep. 541. If the 
 water flows in a definite channel under ground, the same rules apply 
 to it as apply to surface streams, and the landowner cannot use or 
 destroy it at his pleasure. Southern Pacific R. R. Co. v. Dufour, 95 
 Cal. 616, 30 Pac. 783, 19 L. R. A. 92, note. And the courts of New 
 York have held that the drainage of land of a private owner by a city 
 pumping works, which exhausts from all the ground in its vicinity 
 the natural supply of underground or subterranean water, and thus 
 
 motive which actuates him is immaterial.' Ra. v croft v. Tayntor (1S96) 68 Vt. 
 219, 35 Atl. 53, 33 L. E. A. 225, 54 Am. St. Rep. SS2. 'Mischievous motives can- 
 not make that wrong whicla in its own essence is lawful.' Jenkins v. Fowler 
 (185-5) 24 Pa. 308. 'An act lawful in itself is not converted by a malicious or 
 bad motive into an unlawful act.' Allen v. Flood [1898] A. C. 1. It seems to me 
 that these explanations must be taken to mean one or the other of two things. 
 One is, that where an act is lawful without regard to motive, motive need not 
 be regarded. That is worthless as being a mere running around in a circle. 
 The other is that, where an act is lawful if done under one kind of a motive, 
 it is therefore lawful if done under any and every kind of a motive — in short, 
 that motive can never be determinative of the lawfulness of an act. And this, 
 I submit, is not time in morals or losic or law. Plant v. Woods (1S99) 176 
 Mass. 492, 57 N. E. 1011, 51 L. R. A. 339, 79 Am. St. Rep. 330. In the natural 
 gas cases the Supreme Court of Indiana ruled, in substance, that the surface 
 proprietors had coequal rights of access to the common source of supply — the 
 »;o nmon fund; that the right of each was therefore not an absolute right, but 
 v.-as limited and restricted by the coexisting and coextensive rights of the oth- 
 ers : that each therefore had the right to the beneficial use and enjoyment of 
 the wbole supply except as it was cut down by the beneficial use and enjoyment 
 of the others ; that while the loss that came to each from the beneficial use 
 of the common fund by the others was damnum absque injuria, a loss without 
 cause of complaint, none of them was bound to suffer a loss malevolently in- 
 fiicted — inflicteii "for tbe s;U\e of the harm as an end in itself and not merely 
 as a means to some further end legitimately desired.' Aikens v. Wisconsin 
 (1904) 195 U. S. 194, 25 Sup. Ct. 3, 49 L. Ed. 154. And so it was held that 
 the wasters could be stojiped by injunction. Further, a penal statute of the 
 state, punishing the wasting of gas as a species of malicious mischief, was 
 sustained by the Supreme Court of the United States against an attack based 
 on the ground that denying a landowner the right to do as he plea.sed with 
 tbe gas llowiiig from a well in his own soil was a taking of private property 
 without compensation. Ohio Oil Co. v. Indiana (1900) 177 U. S. 390, 20 Sup. 
 Ct. 576, 44 L. Ed. 729. So far as I know there are no natural gas decisions 
 that deny malicious waste may be enjoined, and no cases that fail to treat 
 natural gas and petroleum as being of tbe same class. If adjoining landown- 
 ers bore down into an underlying porous stratmn containing a fiuid, I fail to 
 see any reason why their rights should be different whether they find gas, or 
 oil, or water. Yet the common law of England (Corporation of Bradford v.
 
 Ch. 2) TORTS THROUGH MALICE ' 1301 
 
 prevents the raising on it of crops to which it was or would be pe- 
 cuharly adapted, or destroys such crops after they are grown or 
 partly grown, renders the city liable to the landowner for the damages 
 he sustains, and entitles him to an injunction against the continuance 
 of the wrong. Forbell v. New York, 164 N. Y. 522, 58 N. E. 644, 
 51 L. R. A. 695, 79 Am. St. Rep. 666. In Willis v. Perry, 92 Iowa, 
 297, 60 N. W. 727, 26 L. R. A. 124, it was held that a use for nat- 
 ural purposes takes precedence over artificial ones. A further excep- 
 tion to the rules laid down in Acton v. Blundell, 12 Alees. & W. 335, 
 Chasemore v. Richards, 7 H. L. Cases, 340, and Ewart v. Belfast, 9 
 L. R. (Ireland) 172, was made in the recent case of Katz, Ex'r, v. 
 Walkinshaw, 141 Cal. 116, 70 Pac. 663, 74 Pac. 766, 64 L. R. A. 236, 
 99 Am. St. Rep. 35, w^here it was declared that the owner of a por- 
 tion of a tract of land which is saturated below the surface with an 
 abundant supply of percolating water cannot remove water from wells 
 thereon for sale, if the remainder of the tract is thereby deprived of 
 water necessary for its profitable enjovment. See, also, Bassett v. 
 SaHsbur}' ^Ifg. Co., 43 N. H. 569, 82 Am. Dec. 179; Dexter v. 
 Providence Aqueduct Co., Fed. Cas. No. 3,864; Smith v. Brooklyn, 
 
 Pickles [1895] A. C. 687), that a landowner has an absolute and unqualified 
 right to intercept on his own land underground percolating water, with the 
 effect of preventing his neighbor from getting any from the common fund, 
 even though his motive in so doing be not to benefit himself or his estate, but 
 solely to injure his neighbor, has been quite generally followed in this coun- 
 try, and might be said to be sustained by the weight of authority, if a major- 
 ity constitutes a preponderance. Huber v. Merkel (1903) 117 Wis. 355, 94 X. 
 W. 354, 62 L. R. A. 589, 98 Am. St. Rep. 933, and cases cited in text and note. 
 There are, however, some vigorous decisions in Maine, New Hampshire, New 
 York, Iowa and Miimesota (Chesley v. King [1882] 74 Me. 164, 43 Am. Rep. 
 569; Bassett v. Salisbury Mfg. Co. [1862] 43 X. H. 569, 82 Am. Dec. 179; 
 Swett V. Cutts [1870] 50 N. H. 439, 9 Am. Rep. 276 ; Forbell v. New York 
 [1900] 164 N. Y. 522. 58 N. E. &44. 51 L. R. A. 695. 79 Am. St. Rep. 666 ; Smith 
 v. Broolclvn [1899] 160 N. Y. 357, &4 N. E. 787, 45 L. R. A. 664 ; Barclay v. Abra- 
 ham [1903] 121 Iowa, 619, 96 N. W. 1080. 64 L. R. A. 255. 100 Am. St. Rep. 
 365; Stillwater Co. v. Farmer [1903] 89 Minn. 58, 93 N. W. 907. 60 L. R. A. 
 875, 99 Am. St. Rep. 541) denying the landowner an absolute title in subter- 
 ranean waters, and recognizing in him only a limited and qualified right 
 which must lie used and enjoyed by him with due regard to the equal rights 
 of his neighbors in the common supply. These decisions square with the 
 natural gas and oil cases already mentioned, and properly accord, I believe, 
 with the basic theory of our social system." Judge Francis E. Baker, before 
 the Chicago Bar Ass'n, 1911. The paper is reprinted in 5 Illinois Law Rev. 
 452. 
 
 The "natural gas cases" referred to by Judge Baker are Manufacturers' 
 Gas Co. V. Indiana Nat. Gas Co. (1900) 155 Ind. 461, 57 N. E. 912, 50 L. R. A. 
 768; Lippincott Glass Co. v. Ohio Oil Co. (1898) 150 Ind. 095. 49 N. E. HOG; 
 State V. Ohio Oil Co. a89S) 150 Ind. 21, 49 N. E. 809, 47 L. R. A. 627 ; Ohio 
 Oil Co. V. Indiana (1900) 177 U. S. 190, 20 Sup. Ct. 576, 44 L. Ed. 729. See 
 also, Westmoreland Nat. Gas Co. v. De Witt (1889) 130 Pa. 235, 18 Atl. 724, 5 
 L. R. A. 731. In Hague v. Wheeler (1893) 157 Pa. 324. 27 Atl. 714, 22 L. R. A. 
 141, 37 Am. St Rep. 736, the trial court found that the waste was malicious 
 and entered an injunction. The Supreme Court reversed the decree on the 
 ground that the finding of malice was not sustained. "I think," remarks 
 Judge Baker, that "the Supreme Court should have determiniMl malice, not 
 as a state of mind subjectively held by defendant, but objectively as deter- 
 mined bv the nature and necessary conscKiueuce of the act."
 
 1302 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 18 App. Div. 340, 46 N. Y. Supp. 141. The strong trend of the 
 later decisions is toward a quaHfication of the earlier doctrine that 
 the landowner could exercise unlimited and irresponsible control over 
 subterranean waters on his own land, without regard to the injuries 
 which might thereby result to the lands of other proprietors in the 
 neighborhood. Local conditions, the purpose for which the land- 
 owner excavates or drills holes or wells on his land, the use or non- 
 use intended to be made of the water, and other like circumstances 
 have come to be regarded as more or less influential in this class of 
 cases, and have justly led to an extension of the maxim, "Sic utere 
 tuo ut alienum non Ijedas," to the rights of landowners over subter- 
 ranean waters, and to some abridgment of their supposed power to 
 injure their neighbors without benefiting themselves. 
 
 The only conclusions which can fairly be drawn from the verified 
 pleadings and evidence in this case is that a bitter rivalry exists be- 
 tween the parties to this action, their stockholders and officers, and 
 that, without a real necessity therefor, the appellants dug wells and 
 put machinery and appliances in them and pumped large quantities 
 of water therefrom for the purpose of stopping the flow of water 
 of the mineral springs on the land of the appellee. The thinly dis- 
 guised pretext that some of the acts complained of were done in an 
 attempt to repair a well or stop a leak in it. is an insufficient explana- 
 tion of the injurious proceedings of the appellants, and wholly fails 
 to convince us of their good faith. * * * 
 
 In our opinion, the court did not err in any of its rulings, and the 
 judgment is affirmed.^^ 
 
 ANGLE V. CHICAGO, ST. P., M. & O. RY. CO. 
 
 (Supreme Court of the United States, 1894. 151 U. S. 1, 14 Sup. Ct. 240, 
 
 38 L. Ed. 55.) 
 
 This was an appeal from a decree of the Circuit Court of the 
 United States for the Western District of Wisconsin dismissing plain- 
 tiff's bill. The facts in the case were shortly as follows : 
 
 The state of Wisconsin had granted certain lands to the Chicago, St. Paul, 
 Minneapolis & Omaha Railway Comi)any, hereafter referred to as the Omaha 
 Company, for the pui'i)ose of constructing a defined railway. Certain other 
 lands had been granted by Wisconsin to the Chicago, Portage & Superior 
 liailway Company, hereafter referred to as the Portage Company, for the 
 purpose of constructing another defined railway. The latter road, if con- 
 structed, would be, to some extent, a competitor of the Omaha road. The 
 grant to the Portage Company was conditioned ui)on the completion of the 
 ro;id within a certain time. By a later act of the Wisconsin legislature this 
 time was extended to May 9, 1882. 
 
 In ISSl, the Portage Company made a contract with Horatio Angle for 
 the construction of sixty-five miles of road covered by its land grant before 
 May 5, 1882. Angle commenced work and made such progress that, on January 
 20th, 1882, he had 1,G00 men employed along the line, and it was an assured 
 
 3' Pnrts of the opinion are omitted.
 
 Ch. 2) TORTS THROUGH MALICB 130:^. 
 
 fact tluit. unless interfered with, tie would complete the railway, according 
 to the terms of the contract, on or before May 5, 1SS2. 
 
 But in February, 18S2, the Wisconsin legislature, without inquiry or hear- 
 ing, hurriedly passed an act forfeiting and revoking the grant to the Portage 
 Company, and bestowing it upon the Omaha Company. This action of the 
 legislature was intentionally caused by certain false representations made to 
 the legislators by persons acting on behalf of the Omaha Company. As a 
 result of this, and of other machinations by the Omaha Company, the Portage 
 Company failed to meet its contract with Angle, and he, on his part, was 
 thereby prevented from going on with the building of the road. 
 
 The contract with Angle having been thus broken by the Portage Company, 
 he commer.ced an action at law against that company. While this action was 
 pending Angle died, but a revivor was had in the name of his administratrix, 
 who recovered a judgment for some $200,000. Upon this judgment execution 
 was issued and returned "nulla bona," and thereupon this bill was filed to 
 reach the land grant in the hands of the Omaha Company. 3g 
 
 The bill charged, among other things, that the Omaha Company con- 
 spired with other parties to wrest from the Portage Company its 
 land grant, and to that end to prevent the completion of the contract 
 by Angle and the construction of the road. The defendant's demurrer 
 to the bill was sustained in the Circuit Court, and the decree of dis- 
 missal was entered.^'' 
 
 Mr. Justice Brewer, after stating the facts, delivered the opinion 
 of the court. 
 
 That which attracts notice on even a casual reading of the bill — the 
 truth of all the allegations in which must be taken, upon this record,' 
 to be admitted by the demurrer — is the fact that, while Angle was ac- 
 tively engaged in executing a contract which he had with the Por- 
 tage Company, — a contract whose execution had proceeded so far that 
 its successful completion within the time necessary to secure to the 
 Portage Company its land grant was assured, and when neither he nor 
 the Portage Company was moving or had any disposition to break that 
 contract or stop the work, — through the direct and active efforts of 
 the Omaha Company the performance of that contract was prevented, 
 the profits which Angle would have received from a completion of the 
 contract were lost to him, and the land grant to the Portage Com- 
 pany was wrested from it. 
 
 Surely it would seem that the recital of these facts would carry with 
 it an assurance that there was some remedy which the law would give 
 to Angle and the Portage Company for the losses they had sustained, 
 and that such remedy would reach to the party, the Omaha Company, 
 by whose acts these losses were caused. 
 
 That there were both wrong and loss is beyond doubt. And, as 
 said by Croke, J., in Baily v. ]\lerrell, 3 Bulst. 94, 95, "damage without 
 
 36 The statement of the facts is abridged. 
 
 3 7 For the case below, see Angle v. Chicago, St. P., M. & O. Ry. Co. (C. C. 
 1889), 39 Fed. 912, and Farmers' Ix)an & Trust Co. v. Chicago, P. & S. Ry. Co. 
 (C. C. 1889) 39 Fed. 143. The opinion in the Circuit Court was by Mr. Justice 
 Harlan, who dismissed the bill upon the ground that the Portage road had no 
 interest in the lands which could be subjected in satisfaction of Angle's judg- 
 ment against it
 
 1304 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 fraud gives no cause of action; but where these two do concur and 
 meet together, there an action lieth." The Portage Company held a 
 land grant worth four millions of dollars. It had contracted for the 
 construction of its road, such construction to be completed in time to 
 perfect its title to the land. The contract had been so far executed 
 that its full completion within the time prescribed was assured. The 
 contractor had 1,600 men employed. The rails had been purchased. 
 The company had lifted itself out of the embarrassments which years 
 before had surrounded it. It had taken up all its old stock but $25,- 
 000, which was ignorantly or wrongfully withheld by one of its 
 officers. It had issued 1,000,000 of new stock, had authorized a 
 new issue of bonds, and had arranged for the canceling of all its obli- 
 gations with 700,000 of these bonds and 1,000,000 of stock. It had 
 consummated arrangements with a wealthy company for the ad- 
 vancement of moneys sufficient for its work, and had gone so far as 
 to place in the hands of that company 100,000 of its bonds, upon 
 which $50,000 in cash was to be advanced. Except through some 
 wrongful interference, it was reasonably certain that everything would 
 be carried out as thus planned and arranged. 
 
 At this time the Omaha Company, which was a rival in some re- 
 spects, and which had located a line parallel and contiguous to the 
 line of the Portage Company, interferes, and interferes in a wrongful 
 way. It bribes the trusted officers of the Portage Company to trans- 
 fer the entire outstanding stock into its hands, or at least place it under 
 its control. Being thus the only stockholder, it induces the general 
 manager to withdraw the several engineering corps, whose presence 
 was necessary for the successful carrying on of the work of con- 
 structing the road ; to give such notice as to result in the seizure of 
 all the tools and supplies of the contractor and the company, and the 
 dispersion of all laborers employed. To prevent any action by the 
 faithful officers of the Portage Company, it wrongfully obtains an 
 injunction tying their hands. In the face of this changed condition 
 of afifairs, the company, which had negotiated with the Portage Com- 
 pany, and was ready to advance it money, surrendered the 100,000 of 
 the bonds, and abandoned the arrangement. By false representa- 
 tions to the legislature as to the facts of the case, it persuaded that 
 body to revoke the grant to the Portage Company, and bestow the 
 lands upon itself. 
 
 That this was a wrongful interference on the part of the Omaha 
 Company, and that it resulted directly in loss to the contractor and 
 to the Portage Company, is apparent. It is not an answer to say 
 that there was no certainty that the contractor would have completed 
 his contract, and so earned these lands for the Portage Company. If 
 such a defense were tolerated, it would always be an answer in case 
 of any wrongful interference with the performance of a contract, 
 for there is always that lack of certainty. It is enough that there
 
 Ch. 2) TORTS THROUGH MALICH 1305 
 
 should be, as there was here, a reasonable assurance, considering all 
 the surroundings, that the contract would be performed in the man- 
 ner and within the time stipulated, and so performed as to secure the 
 land to the company. 
 
 It certainly does not lie in the mouth of a wrongdoer, in the face 
 of such probabilities as attend this case, to say that perhaps the con- 
 tract would not have been completed even if no interference had been 
 had, and that, therefore, there being no certainty of the loss, there is 
 no liability. 
 
 Neither can it be said that the Omaha Company had a right to con- 
 tend for these lands ; that it simply made an effort, which any one 
 might make, to obtain the benefit of this land grant. No rights of 
 this kind, whatever may be their extent, justify such wrongs as were 
 perpetrated by the Omaha Company, Here, bribery was resorted to 
 to induce the trusted officers of the Portage Company to betray their 
 trust, and to place at least the apparent ownership of the stock in 
 the hands of the rival company. 
 
 Without notice, without hearing, and by false allegations, it secured 
 an injunction to stay the liands of the honest officers of the Por- 
 tage Company. Such wrongful use of the powers and processes of 
 the court cannot be recognized as among the legitimate means of 
 contest and competition. It burdens the whole conduct of the Omaha 
 Company with the curse of wrongdoing, and makes its interference 
 with the afifairs of the Portage Company a wrongful interference. 
 
 Further, by false representations as to what the Portage Company 
 has done and intends to do, it induced the legislature of the state 
 to revoke the grant to the Portage Company, and bestow it upon itself. 
 The result, and the natural result, of these wrongful actions on the 
 part of the Omaha Company was the breaking down of the Por- 
 tage Company, the disabling it from securing the means of carrying 
 on this work, the dispersion of the laborers, and the prevention of the 
 contractor from completing his contract. It will not do to say that the 
 contractor was not bound to quit the work, but might have gone on and 
 completed his contract, and thus earned the lands for the Portage 
 Company; nor that the wrongful act of the trusted officers of the 
 Portage Company in betraying their trust could have been corrected 
 by the Portage Company by appropriate suit in the courts; tliat the 
 law in one shape or another would have ofifered redress to the Portage 
 Company for all the wrongs that were attempted and done by the 
 Omaha Company. Granting all of this, yet the fact remains that the 
 natural, the intended, result of these wrongful acts was the breaking 
 down of the Portage Company, the unwillingness of the foreign com- 
 pany to furnish it with money, and the prevention of the contractor 
 from completing his contract. 
 
 It is not enough to say that other remedies might have existed and 
 been resorted to by the Portage Company, and that notwithstanding
 
 1306 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 the hands of its officers were tied by this wrongful injunction. It is 
 enough that the Portage Company did break down ; that it broke down 
 in consequence of these wrongful acts of the Omaha Company, and 
 that they were resorted to by the latter with the intention of breaking 
 it down. * * * 
 
 It follows from these considerations that the court erred in sustain- 
 ing the demurrer to this bill, and the decree of dismissal must be 
 
 Reversed, and the case remanded with instructions to overrule the 
 demurrer, and for further proceedings in confomiity to law.^^ 
 
 CUMBERLAND GLASS MFG. CO. v. DE WITT. 
 
 (Court of Appeals of Maryland, 1913. 120 Md. 381, 87 Atl. 927, 
 
 Aiiu. Cas. 1915A, 702.) 
 
 In this action, which was against the glass manufacturing company, 
 the judgment below was for the plaintiff. The defendant appealed. 
 
 Burke, J. The amended declaration upon which this case was 
 tried alleged that since the year 1886 the plaintiff had been a dealer 
 in imported and domestic bottles, demijohns, etc. ; that the defend- 
 ant, the Cumberland Glass Manufacturing Company, a foreign cor- 
 poration, was engaged in the manufacture of glass bottles, window 
 glass, etc., and conducted its factory at Bridgton in the state of New 
 Jersey ; that it complied with the requirements of the law of this 
 state, which permit foreign corporations to transact business here, and 
 that it was in fact doing business here. It further alleged tliat on Feb- 
 ruary 8, 1906, the plaintiff' entered into a written contract with the 
 Mallard Distilling Company of New York to supply them with 1,000 
 gross of half-pint lettered gin flasks, eight-ounce capacity, at the price 
 of $2.40 per gross, and that on or about the same date did verbally 
 enter into an additional contract with said company for another 1,000 
 gross of bottles at $2.40 per gross, which bottles were to be made 
 identical in every respect with those specified in the written contract. 
 It then alleged "that the Cumberland Glass Manufacturing Company 
 did, with knowledge of the existing contract, on or about the 15th day 
 of February, 1906, by and through the medium of their agents, visit 
 the said Mallard Distilling Company, and maliciously and without 
 just cause, with the intent to injure the plaintiff' and to derive a benefit 
 for itself, cause, induce, and procure the said Mallard Distilling Com- 
 pany to rescind, break, and violate their contracts" with the plaintiff. 
 It further alleged that at the time the Mallard Distilling Company 
 broke its contracts, the plaintiff charged the defendant with having 
 
 3 8 Part of the opinion is omitted. In tins omitted portion, Mr. Justice 
 Brewer, speaking for the Court, reached the conclusion that the wrongdoing 
 of the Omaha Company had wrested the title of the lands from the Portage 
 Company and transferred it to itself. "It has become, therefore, a trustee ex 
 maleficio in respect to the property." On this question, Mr. Justice Harlan 
 dissented.
 
 Ch. 2) TORTS THROUGH MALICE 1307 
 
 interfered with and caused the Mallard Company to break the con- 
 tracts ; that the defendant denied that it had in any way interfered 
 with the contracts, or had procured, or caused the same to be broken ; 
 that the plaintiff was unable to procure sufficient proof against the 
 defendant of its violation of duty, and that the proof of the facts 
 was not known or exhibited to him until the latter part of the year 
 1909, but was fraudulently concealed and withheld by the defend- 
 ant. * =!= * 
 
 The declaration is. said to be bad for three reasons: First, because 
 it contains no allegation that the plaintiff was able and willing to 'carry 
 out his contracts with the Mallard Distilling Company; secondly, for 
 duplicity, since it contains two complete, separate, and independent 
 causes of action in one count ; tliirdly, because one of the contracts 
 was unenforceable under the statute of frauds, and the declaration 
 does not allege that but for the defendant's interference the Mallard 
 Company would have carried out this contract, and would not have re- 
 lied upon the defense of the statute. The first and second grounds 
 of objection rest upon the doctrine declared in Dimmick v. Hendley, 
 117 Md. 458, 84 Atl. 171; Milske v. Steiner Mantel Company, 103 
 Md. 235, 63 Atl. 471, 5 L. R. A. (N. S.) 1105, 15 Am. St. Rep. 354, and 
 other cases. But those cases have no application to cases of this kind. 
 The cause of action set out in the declaration is the wrongful inter- 
 ference by the defendant with the contract relations between the plain- 
 tiff* and the Mallard Distilling Company. The cause of action is the 
 tortious act of the defendant in procuring or causing the breach of 
 the plaintift"'s contracts with the Ad^allard Company. The suit is not 
 upon the contracts, nor does it charge the defendant with several dis- 
 tinct torts. It charges one single tort, resulting in damages to the 
 plaintiff. It is well settled that a declaration, whether it is based upon 
 a contract or upon tort, cannot combine in one count two distinct 
 causes of action. But we do not regard tlie declaration in this case as 
 open to this objection. * * * 
 
 Nor does the fact that one of these contracts was oral affect the 
 sufficiency of the narr. The contract is not void, although it might not 
 have been enforceable against the Mallard Company. But this cir- 
 cumstance cannot avail the defendant. This was decided in Knicker- 
 bocker Ice Company v. Gardiner & Co., 107 Md. 556, 69 Atl. 405, 16 
 L. R. A. (N. S.) 746. We are of opinion that the declaration was 
 sufficient. * * * 
 
 Since the decisions of this court in Knickerbocker Ice Company v. 
 Gardiner Dairy Co., and the Sumwalt Ice Co. v. Knickerbocker Ice 
 Co., 114 Md. 403, 80 Atl. 48, there ought not to be any difficulty about 
 the general principles of law in this state applicable to this class 
 of actions. In those cases this court adopted the conclusion reached 
 by the majority of the judges of the Queen's Bench in Lumley v. Gye, 
 ^ El. & Bl. 216. The doctrine of that case has been followed in Eng-
 
 1308 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 land in Bowen v. Hall, 6 Q. B. D. 333 ; Read v. Friendly Society, etc., 
 2 K. B. 88 ; South Wales Miners' P'ederation et al. v. Glamorgan Coal 
 Co., Limited, et al.. Appeal Cases (1905) 239. It has been affirmed 
 by the Supreme Court of the United States in Angle v. Chicago, etc., 
 R. R. Co., 151 U. S. 1, 14 Sup. Ct. 240, 38 L. Ed. 55, and is followed 
 by many of the state courts. That decision, as stated by Lord Mac- 
 naghten in Quinn v. Leathem, Appeal Cases (1901) 495, established 
 this general proposition : "That it is a violation of legal right to in- 
 terfere with contractual relations recognized by law, if there is no 
 sufficient justification for the interference." 
 
 Malice in tliis form of action does not mean actual malice, or ill will, 
 but consists in the intentional doing of a wrongful act without legal 
 justification or excuse. In South Wales Miners' Federation v. Gla- 
 morgan Coal Company, supra, Lord Lindley said : "Bearing in mind 
 that malice may or may not be used to denote ill will, and that in legal 
 language presumptive or implied malice is distinguishable from ex- 
 press malice, it conduces to clearness, in discussing such cases as 
 these, to drop the word 'malice' altogether, and to substitute for it the 
 meaning which is really intended to be conveyed by it. Its use may 
 be necessary in drawing indictments, but when all that is meant by 
 malice is an intention to commit an unlawful act without reference to 
 spite or ill will, it is better to drop the word 'malice' and so avoid all 
 misunderstanding." The same principle was announced in the Knick- 
 erbocker Ice Company Case, supra, in which Judge Boyd said : "Al- 
 though many of the cases speak of the act as being maliciously done, 
 it would seem to be clear that express malice is not necessary if the 
 act is wrongful and unjustifiable." 
 
 Turning now to an examination of the facts appearing in the record 
 we find evidence tending to establish the contracts between the plain- 
 tiff and the Mallard Distilling Company. Did the defendant know 
 of these contracts, and did it intentionally cause the Mallard Company 
 to break them? These are questions of fact. It is not the province 
 of this court to decide these questions. We are merely to determine 
 whether the plaintiff offered evidence from which the jury might have 
 reasonably found that the defendant had this knowledge, and that it 
 intentionally procured their cancellation. In our opinion the evidence 
 of the plaintiff and that of Robert B. Frist and Cliarles M. Kohn was 
 abundantly sufficient to have carried the case to the jury upon these 
 questions. This evidence is uncontradicted, and tends to show that 
 the defendant acquired knowledge of these contracts through Arthur 
 MacLellan, its agent in Baltimore, and that it intentionally deprived 
 the plaintiff of the fruits of the contracts by offering the Mallard Com- 
 pany lower prices on the flasks. "^^ * * Unless, therefore, the de- 
 fendant had a legal excuse or justification for its act, the plaintiff' was 
 entitled to recover; provided the evidence supported the allegation 
 of the replication to the plea of limitations.
 
 Ch. 2) TORTS THROUGH MALICE 1309 
 
 Now, what is the justification upon which the defendant rehes to 
 exonerate itself from responsibihty ? It is the right of competition in 
 trade. It asserts this proposition: That the right of competition jus- 
 tifies a defendant in knowingly and deliberately, for its own benefit or 
 advantage, inducing the breach of a contract by offering lower prices. 
 No case has been cited to support this contention. Counsel for ap- 
 pellant have cited a number of cases bearing upon die right of competi- 
 tion in trade or business. But this is altogether different from the right 
 which one has to be protected from interference with his rights under 
 existing contracts. There is a wide distinction between the two classes 
 of cases, and tliey are governed by distinct rules of law. The prin- 
 ciples applicable to the first class are stated in Klingel's Pharm.acy v. 
 Sharp & Dohme, 104 Md. 218, 64 Atl. 1029, 7 L. R. A. (N. S.) 976, 
 118 Am. St. Rep. 399, 9 Ann. Cas. 1184, and in ?^logul Steamship 
 Company v. McGregor, Gow & Co., Appeal Cases (1892) 25, and other 
 cases cited on appellant's brief. 
 
 In the last-cited case it was said ''that the procuring of people to 
 break their contracts" is an unlawful act. In his opinion in that case 
 Lord Morris said : "All the acts done, and the means used, by the de- 
 fendant were acts of competition for trade. There was nothing in the 
 defendant's acts to disturb any existing contract of the plaintiffs, or 
 to induce any one to break such." In discussing the right of competi- 
 tion in Walker v. Cronin, 107 Mass. 555, the court said: "Every one 
 has a right to enjoy the fruits and advantages of his own enterprise, 
 industry^ skill, and credit. He has no right to be protected against 
 competition ; but he has a right to be free from malicious and wanton 
 interference, disturbance, or annoyance. If disturbance or loss come 
 as a result of competition, or the exercise of like rights by others, it 
 is damnum absque injuria, unless some superior right by contract 
 or otherwise is interfered with." We, therefore, hold that the right to 
 compete furnished no justification to the defendant in this case. 
 
 We also hold that the evidence was legally sufficient to be consid- 
 ered by the jury on the issUe raised upon the plea of limitation. The 
 plaintiff suspected that the contracts with the Mallard Company had 
 been canceled through the act of the defendant, and it made an effort 
 to ascertain that fact. The Mallard Company declined to give him any 
 information, and John F. Perry deliberately misled him, and, except 
 for the information derived from Frist in the fall of 1909, it is doubt- 
 ful if he ever would have been able to connect the defendant with the 
 violation of his contracts. 
 
 The defendant got the full benefit under the general issue plea of 
 all the facts set out in its third plea, and no harm resulted to it in sus- 
 taining the demurrer to that plea. 
 
 The judgment will be affirmed.^* 
 
 8 9 I'arts of the opinion are omitted.
 
 1310 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 II. In Trade or Business Competition 
 
 BOHN MFG. CO. v. HOLLIS et al. 
 
 (Supreme Court of Minnesota, 1893. 54 Minn. 223, 55 N. W. 1119, 
 21 L. R. A. 337, 40 Am. St. Rep. 319.) 
 
 This action is by the Bohn Manufacturing Company for an in- 
 junction. Stripped of all extraneous matter, the case discloses just 
 this state of facts : 
 
 The plaintiff is a manufacturer and vendor of lumber and other building 
 material, having a large and profitable trade at wholesale and retail in this 
 and adjoining states, a large and valuable part of this trade being with the 
 retail lumber dealers. The defendant the Northwestern Lumberman's Associa- 
 tion is a voluntary association of retail lumber dealers, comprising from 25 to 
 50 per cent, of the retail dealers doing business in the states referred to, many 
 of whom are, or have been, customers of the plaintiff. A "retailer," as defined 
 in the constitution of the association, is "any person who is engaged in re- 
 tailing lumber, who carries at all times a stock of lumber adequate to the 
 wants of the community, and who regularly maintains an office as a lumber 
 dealer, and keeps the same open at proper times." Any wholesale dealer or 
 manufacturer of lumber who conforms to the rules of the association may 
 become an honorary member, and attend its meetings, but is not allowed to 
 vote. The object of the association is stated in its constitution to be "the 
 protection of its members against sales by \^holesale dealers and manufac- 
 turers to contractors and consumers." The object is more fully stated, ami 
 the means by which it is to be carried into effect are fully set out, in sections 
 3, 314. 4, and 6 of the by-laws, which are all that we consider material in 
 this case. The plaintiff sold two bills of lumber directly to consumers or 
 contractors at points where members of the association were engaged in busi- 
 ness as retail dealers. Defendant Hollis, the secretary of the association, 
 having been informed of this fact, notified plaintiff, in pursuance of section 
 3 of the by-laws, that he had a claim against it for 10 per cent, of the amount 
 of these sales. Considerable correspondence with reference to the matter 
 ensued, in which the plaintiff, from time to time, promised to adjust the mat- 
 ter, but procrastinated and evaded doing so for so long that finally Hollis 
 threatened that unless plaintiff immediately settled the matter he would send 
 to all the members of the association the lists or notices provided for by 
 section 6 of the by-laws, notifying them that plaintiff refused to comply 
 with the rules of the association, and was no longer in sympathy with it. 
 Thereupon, plaintiff commenced this action for a permanent injunction, and 
 obtained, ex parte, a temporary one, enjoining the defendants from issuing 
 these notices, etc. 
 
 The appeal is from an order refusing to dissolve the temporary in- 
 junction. It is alleged, and in view of the facts was presumed by 
 the court to be true, that if these notices should be issued the mem- 
 bers of the association would thereafter refuse to deal with the plain- 
 tiff, thereby resulting in loss to it of gains and profits. 
 
 Mitchell, J. (after stating the facts). The case presents one 
 phase of a subject which is likely to be one of the most important 
 and difficult which will confront the courts during the next quarter 
 of a century. This is the age of associations and unions, in all de- 
 partments of labor and business, for purposes of mutual benefit and 
 protection. Confined to proper limits, both as to end and means, they
 
 Ch. 2) TORTS THROUGH MALICE 1311 
 
 are not only lawful, but laudable. Carried beyond those limits, they 
 are liable to become dangerous agencies for wrong and oppression. 
 Beyond what limits these associations or combinations cannot go, 
 without interfering with the legal rights of others, is the problem 
 which, in various phases, the courts will doubtless be frequently 
 called to pass upon. There is, perhaps, danger that, influenced by 
 such terms of illusive meaning as "monopolies," "trusts," "boycotts," 
 "strikes," and the like, they may be led to transcend the limits of 
 their jurisdiction, and, like the court of king's bench in Bagg's Case, 
 11 Coke, 98a, assume that, on general principles, they have authority 
 to correct or reform everything which they may deem wrong, or, as 
 Lord Ellsmere puts it, "to manage the state." But whatever doubts 
 or difficulties may arise in other cases, presenting other phases of 
 the general subject involved here, it seems to us that there can be 
 none on the facts of the present case. Both the affidavits and brief 
 in behalf of the plaintiff indulge in a great deal of strong, and even 
 exaggerated, assertion, atid in many words and expressions of very 
 indefinite and illusive meaning, such as "wreck," "coerce," "extort," 
 "conspiracy," "monopoly," "drive out of business," and the like. 
 This looks very formidable, but in law, as well as in mathematics, 
 it simplifies things very much to reduce them to their lowest terms. 
 It is conceded that retail lumber yards in the various cities, towns, 
 and villages are not only a public convenience, but a public necessity ; 
 also, that, to enable the owners to maintain these yards, they must 
 sell their lumber at a reasonable profit. It also goes without saying 
 that to have manufacturers or wholesale dealers sell at retail, direct- 
 ly to consumers, in the territory upon which the retail dealer depends 
 for his customers, injuriously affects and demoralizes his trade. This 
 is so well recognized as a rule of trade, in every department, that gen- 
 erally wholesale dealers refrain from selling at retail within the 
 territory from which their customers obtain their trade. 
 
 Now, when reduced to its ultimate analysis, all that the retail Imn- 
 ber dealers, in this case, have done, is to form an association to pro- 
 tect themselves from sales by wholesale dealers or manufacturers, 
 directly to consumers or other nondealers, at points where a member 
 of the association is engaged in the retail business. The means adopt- 
 ed to effect this object are simply these: They agree among them- 
 selves that they will not deal with any wholesale dealer or manufac- 
 turer who sells directly to customers, not dealers, at a point where a 
 member of the association is doing business, and provide for notice 
 being given to all their members whenever a wholesale dealer or 
 manufacturer makes any such sale. That is the head and front of 
 defendants' offense. It will be observed that defendants were not 
 proposing to send notices to any one but members of the association. 
 There was no element of fraud, coercion, or intimidation, either to- 
 wards plaintiff or the members of the association. True, the secre- 
 tary, in accordance with section 3 of the by-laws, made a demand on
 
 1312 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 plaintiff for 10 per cent, on the amount of the two sales. But this 
 involved no element of coercion or intimidation, in the legal sense of 
 those terms. It was entirely optional with plaintiff whether it would 
 pay or not. If it valued the trade of the members of the association 
 higher than that of nondealers at the same points, it would probably 
 conclude to pay; otherwise, not. It cannot be claimed that the act 
 of making this demand was actionable ; much less, that it constituted 
 any ground for an injunction; and hence this matter may be laid en- 
 tirely out of view. Nor was any coercion proposed to be brought to 
 bear on the members of the association, to prevent them from trading 
 with the plaintiff. After they received the notices, they would be at 
 entire liberty to trade with plaintiff, or not, as they saw fit. By the 
 provisions of the by-laws, if they traded with the plaintiff', they were 
 liable to be "expelled ;" but this simply meant to cease to be members. 
 It was wholly a matter of their own free choice, which they preferred, 
 — to trade with the plaintiff, or to continue members of the associa- 
 tion. So much for the facts, and all that remains is to apply to them 
 a few well-settled, elementary principles of law: 
 
 1. The mere fact that the proposed acts of the defendants would 
 have resulted in plaintiff's loss of gains and profits does not, of itself, 
 render those acts unlawful or actionable. That depends on whether 
 the acts are, in and of themselves, unlawful. "Injury," in its legal 
 sense, means damage resulting from an unlawful act. Associations 
 may be entered into, the object of which is to adopt measures that 
 may tend to diminish the gains and profits of another, and yet, so 
 far from being unlawful, they may be highly meritorious. Com. v. 
 Hunt, 4 Mete. (Mass.) Ill, 38 Am. Dec. 346; Steamship Co. v. Mc- 
 Gregor, 21 Q. B. Div. 544. 
 
 2. If an act be lawful, — one that the party has a legal right w do, 
 — the fact that he may be actuated by an improper motive does not 
 render it unlawful. As said in one case, "the exercise by one man 
 of a legal right cannot be a legal wrong to another," or, as expressed 
 in another case, "malicious motives make a bad case worse, but they 
 cannot make that wrong which, in its own essence, is lawful." Hey- 
 wood v. Tillson, 75 Me. 225, 46 Am. Rep. 373; Phelps v. Nowlen, 
 72 N. Y. 39, 28 Am. Rep. 93 ; Jenkins v. Fowler, 24 Pa. 308. 
 
 3. To enable the plaintiff to maintain this action, it must appear 
 that defendants have committed, or are about to commit, some un- 
 lawful act, which will interfere with, anrl injuriously affect, some 
 of its legal rights. We advert to this for the reason that counsel for 
 plaintiff devotes much space to assailing this association as one whose 
 object is unlawful because in restraint of trade. We fail to see where- 
 in it is subject to this charge; but, even if it were, this would not, 
 of itself, give plaintiff a cause of action. No case can be found in 
 which it was ever held that, at common law, a contract or agreement 
 in general restraint of trade was actionable at the instance oi third
 
 Ch. 2) TORTS THROUGH MALICE 1313 
 
 parties or could constitute the foundation for such an action. The 
 courts sometimes call such contracts "unlawful" or "illegal," but in 
 every instance it will be found that these terms were used in the 
 sense, merely, of "void" or "unenforceable" as between the parties; 
 the law considering the disadvantage so imposed upon the contract a 
 sufficient protection to the public. Steamship Co. v. McGregor, 23 
 O. B. Div. 598, [1892] App. Cas. 25. 
 
 4. What one man may lawfully do singly two or more may lawfully 
 agree to do jointly. The number who unite to do the act cannot 
 change its character from lawful to unlawful. The gist of a private 
 action for the wrongful act of many is not the coml)ination or con- 
 spiracy, but the damage done or threatened tO' the plaintiff by the acts 
 of the defendants. If the act be unlawful, the combination of many 
 to commit it may aggravate the injury, but cannot change the char- 
 acter of the act. In a few cases there may be some loose remarks 
 apparently to the contrary, but they evidently have their origin in a 
 confused and inaccurate idea of the law of criminal conspiracy, and 
 in failing to distinguish between an unlawful act and a criminal one. 
 It can never be a crime to combine to commit a lawful act, but it 
 may be a crime for several to conspire to commit an unlawful act, 
 which, if done by one individual alone, although unlawful would not 
 be criminal. Hence, the fact that the defendants associated themselves 
 together to do the act complained of is wholly immaterial in this case. 
 We have referred to this for the reason that counsel has laid great 
 stress upon the fact of the combination of a large number of persons, as 
 if that, of itself, rendered their conduct actionable. Bowen v. IMathe- 
 son, 14 Allen (Mass.) 499; Steamship Co. v. McGregor, 23 O. B. 
 Div. 598, [1892] App. Cas. 25; Parker v. Huntington, 2 Gray (Mass.) 
 124; Wellington v. Small, 3 Cush. (Mass.) 145, 50 Am. Dec. 719; 
 Payne v. Railway Co., 13 Lea (Tenn.) 507, 49 Am. Rep. 666. 
 
 5. With these propositions in mind, which bring the case down 
 to a very small compass, we come to another proposition, which is 
 entirely decisive of the case. It is perfectly lawful for any man 
 (unless under contract obligation, or unless his employment charges 
 him with some public duty) to refuse to work for or to deal with any 
 man or class of men, as he sees fit. This doctrine is founded upon 
 the fundamental right of every man to conduct his own business in 
 his own way, subject only to the condition that he does not interfere 
 with the legal rights of others. And, as has been already said, the 
 right w^hich one man may exercise singly, many, after consultation, 
 may agree to exercise jointly, and make simultaneous declaration of 
 their choice. This has been repeatedly held as to associations or 
 unions of workmen, and associations of men in other occupations or 
 lines of business must be governed by the same principles. Summed 
 up, and stripped of all extraneous matter, this is all that defendants 
 have done, or threatened to do, and we fail to see anything unlawful 
 
 Hepb.Torts — 83
 
 1314 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 or actionable in it. Com. v. Hunt, supra; Carew v. Rutherford, 106 
 ^lass. 1, 8 Am. Rep. 287; Steamship Co. v. McGregor, [1892] App. 
 Cas. 25. 
 
 Order reversed, and injunction dissolved.*'* 
 
 40 Accord: Macauley Bros. v. Tierney (1895) 19 R. I. 255, 33 Atl. 1, 37 L. 
 R. A. 455, 61 Am. St. Rep. 770: (The plaintiffs were master pluml)ers engaged 
 in the plumbing business in Rhode Island. The National Association of Master 
 Plumbers, of which the plaintiffs were not members, adopted a resolution 
 that they would withdraw their patronage from any firm manufacturing or 
 dealing in plumbing material who sold to a master plumber who was not a 
 member of the National Association or one of its aflJiliated local associations. 
 Notice of this was given to the wholesale dealei's in plumbing materials 
 throughout the United States. As a result, the wholesalers in Rhode Island 
 from whom the plaintiffs were accustomed to buy refused to sell any longer to 
 plaintiffs, nor could they purchase from wholesalers anywhere. The plaintiffs 
 seek an injunction against the officers and members of the Providence Master 
 Plumbers' Association, which was afliliated with the National Association. 
 "The complainants proceed on the theory that they are entitled to protection 
 in the legitimate exercise of their business ; that the sending of the notices to 
 wholesale dealers not to sell supplies to plumbers not members of the associa- 
 tion, under the penalty, expressed in some instances and implied in others, of 
 the withdrawal of the patronage of the members of the associations in case of 
 a failure to comply, was unlawful, because it was intended injuriously to 
 affect the plumbers not members of the association in the conduct of their 
 business, and must necessarily have that effect. It is doubtless true, speaking 
 generallj% that no one has a right intentionally to do an act with the intent to 
 injure another in his business. Injury, however, in its legal sense, means 
 damage resulting from a violation of a legal right. It is this violation of a 
 legal right which renders the act wrongful in the eye of the law and makes it 
 actionable. If, therefore, there is a legal excuse for the act it is not wrong- 
 ful, even though damage may result from its performance. The cause and 
 excuse for the sending of the notices, it is evident, was a selfish desire on the 
 part of the members of the association to rid themselves of the competition 
 of those not members, with a view to increasing the profits of their own busi- 
 ness. The question, then, resolves itself into this: Was the desire to free 
 themselves from competition a suflicient excuse in legal contemplation for 
 the sending of the notices?" Per Matteson, C. J.) 
 
 Scottish Co-op. Society v. Glasgow Fleshers' Ass'n (1898) 35 Sc. L. R. 645: 
 ("Co-operative societies have of recent years been formed in this country with 
 the object of supplying the public with provisions at cheaper rates than are 
 usually charged in shops. Their tendency is no doubt to reduce the trade, the 
 prices, and the profits of the ordinary shopkeeper, and among them of the 
 butchers. The co-operative societies and the butchers are therefore in a posi- 
 tion of antagonism and competition ; and the butchers of Glasgow, or some of 
 them, have recently formed themselves into an association in opposition to 
 the co-operative societies. It occurred to them that the co-operative societies 
 might be put in a position of disadvantage if they could be excluded from the 
 American and Canadian meat market, which, as it happens, is at present car- 
 ried on at only one place in Scotland, — the Yorkhill Wharf in Glasgow, — and 
 is conducted there by means of sales by auction. The association considered 
 that they would attain their object if they could induce the cattle salesmen 
 who were in use to sell the cattle at Yorkhill to refuse to sell to the co-opera- 
 tive stores, and with that view they approached those cattle salesmen and in- 
 timated that they would not buy at their auction sales unless they declined to 
 sell to the co-operative stores. The cattle salesmen were thus placed in a di- 
 lemma, and put to choose between the Glasgow Fleshers' Trade Association, as 
 it is called, and the co-operative stores, and, judging (as I supix)se) that the 
 butchers were the better customers, they yielded to their pressure, and in- 
 timated in their conditions of sale that they would not accept the bids of per- 
 sons connected with the co-operative stores, with the result that the co-oi)era- 
 tive societies have been cut out of the foreign meat market. The arrangement. 
 It will be observed, is or seems to be doubly advantageous to the butchers, for
 
 Ch. 2) 
 
 TORTS THROUGH MALICE 1315 
 
 it relieves them from the competition of the co-operative stores at the auction 
 sales, so presumably reducing the prices when they, the butchers, buy, and 
 also fi-om their competition in the sale in their shops of American and Cana- 
 dian meat, so presumably enabling the butchers to raise their prices when 
 they sell. This action has been brought to try whether this arrangement can 
 be supported in law." Per Lord Kincairney.) 
 
 Heim v. New York Stock Exchange (1901>) G4 Misc. Rep. 529, 118 N. Y. Supp. 
 591: (By a resolution of the New York Stock Exchange any member of this 
 Exchange who transacted business with an active member of the Consolidated 
 Stock Exchange was liable to suspension or expulsion. '"This plaintiff is and 
 was an active member on the Consolidated Exchange, also transacting busi- 
 ness with Albert Loeb & Co., a Stock Exchange house, through whom he bought 
 and sold stocks and bonds upon the floor of said Stock Exchange. On May 
 21, 1909, Albert Loeb & Co. notified the plaintiff that, because of the above 
 resolution of their exchange, he must withdraw his account, and that there- 
 after they could transact no further business with him. It is alleged, and not 
 denied, that by reason of the constitution and resolution above referred to all 
 the members of the Stock Exchange will refuse to buy or sell stocks and bonds 
 for the plaintiff, or any other active member of the Consolidated Exchange. 
 It is conceded that the Consolidated Exchange, organized in 1875 as a mining 
 stock exchange, is to a degree a i-ival of the Stock Exchange; its sales of 
 stocks averaging per annum nearly one-fourth of those of the latter. There 
 are 1,225 members, of whom 4.50 are active. The nature of the business trans- 
 acted upon the floor of the Consolidated Exchange is very largely the same as 
 that of the Stock Exchange. The plaintiff by this action seeks to enjoin the 
 Stock Exchange from enforcing this resolution of nonintercourse as to him, 
 and to prevent Albert Loeb & Co. from rejecting his account upon the reasons 
 stated by them." Per Crane, J.) 
 
 Montgomery Ward & Co. v. South Dakota Retail Merchants' & Hardware 
 Dealers' Ass'n (C. C. 1907) 150 Fed. 413: (The complainants, Montgomery 
 Ward & Co., seek to enjoin the defendants from coercing or inducing whole- 
 salers and jobbers to cease selling merchandise to the complainants. The 
 defendants are members of an association of retail dealers who have agreed 
 among themselves that they will not purchase any merchandise from whole- 
 salers and jobbers who sell to catalogue or mail order houses. The defend- 
 ants have corresponded with jobbers and wholesalers stating that the retail 
 dealers are opposed to wholesalers and jobbers selling to a catalogue or mail 
 order house and request that they do not make such sales. By reason of 
 these letters some wholesalers and jobbers have declined, and continue to 
 decline, to pll to the complainants, so that the complainants are unable to 
 procure many articles of merchandise which they have been accustomed to 
 sell.) 
 
 Whether the defendant's act in such a case is within the statute forbidding 
 contracts in restraint of trade, see Retail Lumber Dealers' Ass'n v. Missis- 
 sippi (1909) 95 Miss. 337, 48 South. 1021, 35 L. R. A. (N. S.) 1054, and note ; 
 Grenada Lumber Co. v. Mississippi (1910) 217 U. S. 433, 30 Sup. Ct. 535, 54 
 D. Ed. 826. 
 
 On the prima facie liability in these cases, compare Ertz v. Produce Ex- 
 change Co. of Minneapolis et al. (1900) 79 Minn. 140, 81 N. W. 737, 48 L. R. 
 A. 90, 79 Am. St. Rep. 433. The question was on a demurrer to a complaint 
 in which the following allegations appeared : That the defendant the Produce 
 ICxchange of Minneapolis and the other defendants w^ere engaged in buying 
 and selling farm produce in Minneapolis and were practically in control 
 of this market; that the plaintiff was a commission merchant buying and 
 selling farm, produce in the Minneapolis market, and as such had been ac- 
 customed to buy of the defendants, paying them in fall ; that on a day named 
 the defendant the Produce Exchange conspired with the other defendants 
 not to sell to or buy from the plaintiff any farm produce ; that in pursuance 
 of this agreement the defendants and others refused to deal with the plain- 
 tiff and circulated among his patrons reports that he was unable to buy 
 such produce, with the intent to induce his patrons to discontinue doing 
 business with him; that as a result, the plaintiff's business was ruined, to 
 his damage .$20,000. Aflirming the trial court in overruling the demurrer to 
 this comidaiut, Start, C. J., remarked: "The defendants rely upon the case
 
 1316 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 Of Bohn Mfg:. Co. v. Hollis (1S93) 54 Minn. 223, 55 N. W. 1119. 21 L. R. A. 
 oo7, 40 Am. St. Rep. 319, in support of their contention that tlie defendnnts' 
 acts in question were lawful. The general propositions of law laid down in 
 the decision in that case are sound as applied to the facts of that particular 
 case. * * * It is to be noted that the defendants in the Bolm Case had 
 similar legitimate interests to protect, which were menaced by the practice of 
 wholesale dealers in selling lumber to contractors and consumers, and that 
 the defendants' efforts to induce parties not to deal with offending wholesale 
 dealers were limited to the members of the association having similar interests 
 to conserve, and that there was no agreement or combination or attempt to 
 induce other persons not members of the association to withhold their patron- 
 age from such wholesale dealer. In this respect the case differs essentially 
 from the one at bar, in which the complaint does not show that the defend- 
 ants had any legitimate interests to protect by their alleged combination. On 
 the contraiy, it is expressly alleged in the complaint that the combination, 
 which was carried into execution, was for the sole purix)se of injuring the 
 plaintiff's business, and that the defendants conspired to induce the plain- 
 tiff's patrons and i)ersons, other than the defendants, to refuse to deal with 
 him. Such alleged acts on the part of the defendants are clearly unlawful. 
 It is true, as claimed by the defendants and as stated in the Bohn Case, that 
 a man, not under contract obligations to the contrary, has a right to refuse 
 to work for, or deal with, any man or class of men, as he sees fit, and that 
 the right which one man may exercise singly, many may lawfully agree to 
 do jointly by voluntary association, provided they do not interfere with the 
 legal rights of others. But one man singly, or any number of men jointly, 
 having no legitimate interests to protect, may not lawfully ruin the busi- 
 ness of another by maliciously inducing his patrons and third parties not 
 to deal with him. See Walker v. Cronin (1871) 107 Mass. 555, 562; Delz v. 
 Winf ree (1S91) 80 Tex. 400, 16 S. W. Ill, 26 Am. St. Rep. 755 ; Graham v. St. 
 Charles St. R. Co. (1S95) 47 La. Ann. 214, 16 South. 806, 27 L. R. A. 416, 
 49 Am. St. Rep. 366; Hopkins v. Oxley Stave Co. (1S94) 28 C. C. A. 99, 83 
 Fed. 912. This is just what the complaint in this case charges the defend- 
 ants with doing, and we hold that it states a cause of action." 
 
 See, also, on the question of prima facie lialnlity, Union Labor Hospital 
 Ass'n v. Vance Redwood Lumber Co. et al. (1910) 158 Cal. 551, 112 Pac. 886, 
 33 L. R. A. (N. S.) 1034. The action was by the hospital association against 
 seven lumber companies to enjoin them from conspiring to annoy and de- 
 stroy the hospital business of plaintiff. The scheme of annoyance and de- 
 struction consisted in this: The defendants compelled every employe to con- 
 sent to the deduction of $1 from his monthly wage, 12iA cents of. which went 
 into a contingent fund to help needy employes who might be injured and 
 871/^ cents went to a hospital for an employe's ticket. This titket entitled 
 the employ^ to medical and surgical care and attendance in case of injury. 
 The hospital could be selected by the employ^ from a list of three or four 
 presented to him, but the Union Labor Hospital was not mentioned and was 
 not on this list. The defendants were all companies engaged in lumbering 
 and milling. The occupations of their men were dangerous. That provision 
 .should be made for the medical and surgical care of the men injured was 
 most proper. No objection is made to this, nor to the means adopted to ef- 
 fectuate it, saving that plaintiff contends that becaiise its liospital Avas not 
 upon the list and because the employes were compelled to take out hospital 
 tickets in one or another of the enumerated hospitals, a species of unlawful 
 discrimination by the defendants against the plaintiff was thus established, a 
 discrimination which it is urged and which the trial court found was an illegal 
 boycott. It was found by the trial judge that the defendants, without any 
 interests of their own to subserve, or any lawful object to promote, did con- 
 spire and confederate together for the purjjose of unlawfully injuring the 
 plaintiff in the manner alleged in the complamt; but it was also found, as 
 shown in the opinion of the court that, the agreement with the four favored 
 hospitals was entered into by the defendants solely ft)r the purpose and with 
 the intent to suljserve their own interests. "These two findings appear to me 
 to stand in absolute and irreconcilable opposition to each other, and tlie re- 
 sult is no finding at all upon a point essential to the validity of the judg- 
 ment." Per Beatty, C. J.
 
 Ch. 2) TORTS THROUGH MALICE 1317 
 
 JACKSON et al. v. STANFIELD et al. 
 (Supreme Court of Indiana, 1894. 137 Ind. 592, 36 N. E. 345, 23 L. R. A. 588.) 
 
 In tliis action, brought by Jackson, the judgment below was for 
 the defendants. The plaintiffs appeal. 
 
 DailEy, J. This is an action brought by the appellants against the 
 appellees for damages, and for relief by injunction, on the ground that 
 the defendants had entered into an unlawful combination for the pur- 
 pose of injuring the appellees in their business, and that in conse- 
 quence thereof plaintiff's had suffered actual damage and were threat- 
 ened with great loss in their business. By request of the parties, the 
 court below made a special finding of the facts and stated its con- 
 clusion of the law thereon, — that the plaintiffs were not entitled to 
 recover. There was no motion for a new trial, and the only questions 
 presented by the record are these : First. Whether the plaintiff's are 
 entitled to an injunction. Second. If not entitled to an injunction, 
 are they entitled to recover damages? * * * 
 
 We have, for convenience, taken so much of the special finding as 
 we deemed material to the questions involved: 
 
 That the plaintiffs, Newton Jackson and Martha E. Jacl^son, are husband 
 and wife. That Newton Jackson has no means, that his wife has means of 
 her own, and for the past three years Newton Jackson has been encrased in 
 the business of buying and selling lumber. That he has bought and sold 
 lumber, dealing with his wife's means, and also on commission, by negotiating 
 sales as agent of a wholesale dealer or manufacturer, and receiving a com- 
 mission therefor, without owning the lumber himself. That the arrangement 
 between plaintiffs was that the husband supported himself and family from 
 his earnings and profits, and if any surplus remained it was the property of 
 his wife. That the business was managed solely by Newton Jackson, in his 
 own name, he occasionally using the word "agent" in connection with his own 
 name, and using from .$3,000 to $4,000 of his wife's means; but defendants 
 had no knowledge that he was acting as agent for his wife. That plaintiffs 
 have kept no himber yard or stock on hand in South Bend. Ind., where they 
 have done business for the past three years. That the defendants are part- 
 ners, retail dealers in lumber in South Bend, Ind., and have kept a lumber 
 yard and stock on hand. That prior to 1SS9 the defendants and other retail 
 dealers in lumber in Indiana, about 1.50 in number, associated themselves 
 together into an association known and designated as the "Retail Lumber 
 Dealers' Association of Indiana," and agreed to a constitution and by-laws for 
 their government, which constitution and by-laws are in these words: * * * 
 
 "Article 2. Conditions of Membership. Any person who may be regularly 
 in the retail lumber trade, owning or operating a lumber yard, in which a 
 general assortment of stock in kind and quantity commensurate with the de- 
 mands of the community where located is kept for sale, may become n mem- 
 ber of this association by subscribing to the constitution and paying the an- 
 nual dues prescribed by the by-laws. * * * 
 
 '■Article 10. Any manufacturer or wholesale dealer may become an honorary 
 member of this association, with all the privileges and benefits save that of 
 voting, upon payment of the annual dues. * * * Sec. 5. Members are en- 
 titled to the protection of this asscK-iation in the towns in which their yards 
 are situated and the adjacent territory, which must be designated in the appli- 
 cation for membership, and written in the membership certificate. If protec- 
 tion is wanted for more than one point, where applicant owns or operates a 
 yard, separate memberships must be taken. * ♦ *
 
 1318 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 "Relations with Wliolesalers. * * * gee. 3. Wlienever and as often as 
 any maniifacturer or wholesale dealer, or their agents, shall sell lumber, 
 sash, doors, or blinds to any person not a regular dealer, as contemplated by 
 article 2 of the constitution of the association, any memlier doing business in 
 the town to which such shipment was made may notify the shipper, manu- 
 facturer, or wholesale dealer who made such shipment that he has a claim 
 against them for such shipment. If the parties cannot adjust the claim, it shall 
 bo the duty of the member to notify the secretary of the facts in the case, 
 who shall refer the case to the executive committee, whose duty it shall be to 
 hear both sides of the question and determine the claim. If the wholesaler 
 or manufacturer refuses to abide by the decision of the executive committee, 
 it shall be the duty of the secretary to notify the members of this association 
 of the name of such wholesaler or manufacturer. It shall also be the duty of 
 the members to no longer patronize said wholesaler or maniifacturer. If any 
 member continues to deal with such dealer or manufacturer, he shall be ex- 
 pelled from the association. If the member refuses to abide by the decision of 
 the executive committee, his name shall be stricken from the membership of 
 the association. It is provided that nothing in this section shall be so con- 
 strued as to entitle members to make complaint on account of lumber sold to 
 manufacturers, and actually used in articles manufactured, nor to railroads 
 or transportation companies, nor, in case of sash, doors, or blinds, to hard- 
 ware merchants who keep a regular stock of such goods. * * * 
 
 We infer from article 2 of the constitution, that "any person in the 
 retail lumber trade, owning and operating a lumber yard in which 
 a general assortment of stock in kind and quantity commensurate with 
 the demands of the community where located is kept for sale, is a 
 regular dealer." The regular dealer, in accordance with the provi- 
 sions of section 3 of the by-laws, when his territory is encroached 
 upon by a wholesale dealer or manufacturer, is authorized to notify 
 the person so offending that he has a claim against him for such sale 
 or shipment, and to make a demand therefor. If the parties cannot 
 adjust it, it is made the duty of the member to notify the secretary of 
 the facts in the case, who shall refer the matter to the executive com- 
 mittee, whose duty it is to hear the grievances and determine the 
 claim. If the wholesaler or manufacturer ignores the decision of the 
 committee, it is the duty of the secretary to notify the members of 
 the association of the name of the person so offending, and of the 
 members to no longer patronize him. If they continue to deal with 
 the oft'ender, they shall be expelled from the association; and if any 
 member refuses to abide by the decision of the executive committee, 
 his name is to be stricken from the membership of the society. 
 
 The facts found by the court disclose that the appellees, as mem- 
 bers of the combination complained oi availed themselves of the 
 means provided for in section 3 to destroy the business of the appel- 
 lants as brokers in lumber, because they were not retail dealers within 
 the definition of the term, and that they effectuated their purpose. 
 The special findings of fact clearly show it to be a compact to sup- 
 press the competition of those dealers who did not own yards with an 
 adequate stock on hand, by driving them out of business. By this 
 plan they reach the wholesale dealer and compel him to pay an ar- 
 bitrary penalty, under a threat of financial injury, and they force him
 
 Ch. 2) TORTS THROUGH MALICE 1319 
 
 to assist in ruining the dealer who does not own a yard. There is 
 such an element of coercion and intimidation in the by-law under con- 
 sideration, towards the wholesale dealers, manufacturers, and even 
 the members of the society, and such provision made for penalties 
 and forfeitures against them, that it will not do to say it was optional 
 with the wholesale dealer whether it would pay the demand or not, 
 or that it was left to the discretion or choice of the members to either 
 trade witli the wholesaler or abandon the association. A conspiracy 
 formed and intended, directly or indirectly, to prevent the carrying 
 on of any lawful business, or to injure the business of any one, by 
 wrongfully preventing those who would be customers from buying 
 anything from the representatives of such business by threats or in- 
 timidation, is in restraint of trade and unlawful. * * * 
 
 The great weight oi authority supports the doctrine that, where 
 the policy pursued against a trade or business is of a menacing char- 
 acter, calculated to destroy or injure the business of the person so 
 engaged, either by threats or intimidation, it becomes unlawful, and 
 the person inflicting the wrong is amenable to the injured party in a 
 civil action for damages therefor. It is not a mere passive, let-alone 
 policy, a withdrawal of all business relations, intercourse, and fellow- 
 ship, that creates the liability, but the threats and intimidation shown 
 in the complaint. The learned counsel for the appellees, in his very 
 able brief, contends that the plaintiffs were only incidentally injured 
 bv the acts of the defendants in enforcing a penalty of $100 against 
 the West Michigan Lumber Company. It will be observed that the 
 Retail Lumber Dealers' Association invites wholesalers to become 
 honorary members, and that said lumber company is an honorary 
 member. But the rules of the association do not affect, alone, mem- 
 bers active and honorary. They extend to and reach any wholesale 
 dealer in the United States with whom the threat to withdraw the 
 trade of 150 retail dealers can have weight. It is shown in the find- 
 ing that Michigan is the source from which most of the lumber in 
 northern Indiana is procured, and that the rules of the association 
 are published in pamphlet form and sent to every wholesale dealer 
 in the United States. The retail dealers who organized the associa- 
 tion in question are members of the various cities and towns where 
 they are located. They have lumber yards containing stock in quan- 
 tity and quality suited to and commensurate with the wants of the 
 consumers in their several localities. These gentlemen are prominent, 
 wealthy, and influential citizens of our- state, whose power, from the 
 elevated stations they occupy, so exercised, enables them to control 
 the wholesale dealers of the United States against the agents and 
 brokers within their own territory, and effectually drive them out of 
 business. It is idle to say that the victim of such a combination is 
 only "incidentally" affected thereby. The object of the association 
 and the result attained is a monoi)oly of the trade by owners of yards, 
 and the broker is simply ignored by the wholesale dealers.
 
 1320 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 It is not in point to cite cases where men voluntarily agree to ob- 
 serve rules adopted by themselves. This is no voluntary affair of the 
 v.?holesale dealers. It is not even a combination of wholesalers. They 
 may and do sometimes become honorary members, so as to keep with- 
 in touch of the retail dealers and secure trade. It is, as stated, an 
 association of retailers to restrict the liberty of wholesalers to sell 
 to consumers and brokers, and the wholesalers must obey or lose their 
 trade. 
 
 It is found as a fact that the market in which the plaintiffs could 
 most profitably buy was in Michigan. Freight and railroad facilities 
 necessarily limited the field. It is also found that the West Michigan 
 Lumber Company is the dealer that made the plaintiff's trade most 
 profitable, and that, for fear of the penalties, this company and an- 
 other refused to deal with them. The West Michigan Lumber Com- 
 pany was willing and anxious to sell to the plaintiffs until fined by 
 the defendants and mulcted in the sum of $100, when it refused to 
 make further sales for the reason that it was afraid of the penalties. 
 Such rules contravene the rights of nonmembers to earn their living 
 by fair competition. 
 
 The case of Eohn Manuf'g Co. v. Hollis (1893) 54 Minn. 223, 55 
 N. W. 1119, 21 L. R. A. ZZ7, 40 Am. St. Rep. 319, is cited by appellees 
 as sustaining the decision of the lower court. It was a case in which 
 a large number of lumber dealers had formed an association very 
 similar in its character to the one in the case at bar. * * * f he 
 opinion proceeds upon the theory that there was no element of co- 
 ercion or intimidation in the acts complained of, but we think the de- 
 cision in this respect is in conflict with approved authority, and is 
 bad as a precedent. 
 
 It appears from the facts found by the court that, after the pay- 
 ment of the $100 fine so assessed, the appellant Newton Jackson made 
 an oft'er to the Studebaker Bros. Manufacturing Company, of South 
 Bend, to sell said company two million feet of lumber, which offer 
 was based on the price list of the West Michigan Lumber Company ; 
 that his commission thereon would have been $500; that the offer 
 of said Jackson was accepted by the Studebaker Bros. Manufactur- 
 ing Company, but the West Michigan Lumber Company refused to 
 sell to or through Jackson by reason of the rules of said association, 
 and on account of having paid said penalty, and said Jackson there- 
 upon did not contract with said Studebaker Bros. Manufacturing 
 Company, but turned over such sale to the West Michigan Lumber 
 Company, and allowed it to make such sale without paying any com- 
 mission to him ; that said Newton Jackson thereafter caused lumber 
 to be purchased for his customers in the name of Smith & Jackson, 
 a firm of regular dealers as defined by the association, in South Bend, 
 and paid to them $83 of his commission for the use of their name, 
 which was a reasonable and fair charge therefor; that by reason of 
 the refusal of the said West Michigan Lumber Company to sell him
 
 Ch. 2) TORTS THROUGH MALICE 1321 
 
 lumber to fill an existing contract said Jackson went to Manistee, 
 Mich., to purchase lumber, and expended in railroad fare and freight 
 $82 more than it would have cost him had said West Michigan Lum- 
 ber Company not refused to sell to him ; that, except for such refusal, 
 the \\"est Michigan Lumber Company could have sold him lumber to 
 fill such contract; that during the year 1890 plaintiffs' business had 
 decreased, and before the commencement of this suit plaintiff's re- 
 quested defendants to permit them to do business as heretofore, and 
 to abandon their position in this matter, and not to complain to the 
 association of sales made to plaintiff's, but defendants refused to do so, 
 and declared their intention to adhere to their position, and that they 
 intended to enforce the rules and by-laws of said association. 
 
 Without further extending this opinion, we only need to say that, 
 if it had not been for the wrongful acts of the appellees, the plaintiffs 
 would have made $583 in profits upon contracts of which they were 
 deprived. They are entitled as compensation to the amount of dam- 
 ages sustained, which is measured by the loss actually incurred. If 
 there was any circumstance to be considered in mitigation of damages, 
 it was incumbent on the defendants to show that fact ; but as the rec- 
 ord is silent on this question, we must infer that none existed. We 
 think the claim for expenses to Manistee and return too remote to be 
 considered in this case. The judgment is reversed, with instructions 
 to restate conclusions of law and render judgment upon the special 
 findings in favor of the appellants for $583, and with the further in- 
 struction to render a judgment perpetually enjoining the defendants 
 from in any wa}^ other than fair, open competition, interfering with 
 the plaintiffs in their business, and from demanding a penalty or mak- 
 ing a claim against any one, under the by-laws of said association, who 
 may sell to the plaintiffs, or through them to a consumer,'*^ 
 
 MARTELL v. WHITE et al. 
 
 (Supreme Judic-ial Court of Massachusetts, 1904. 185 Mass. 255, 69 N. E. 10S5, 
 64 L. R. A. 260, 102 Am. St. Rep. 341.) 
 
 Tort by Martell for conspiracy to injure his business. In the supe- 
 rior court a verdict was ordered for the defendants. The plaintiff 
 excepted. 
 
 Hammond, J. The evidence warranted the finding of the following 
 facts, many of which were not in dispute : The plaintiff was engaged 
 in a profitable business in quarrying granite and selling the same to 
 granite workers in Quincy and vicinity. About January, 1899, his 
 customers left him, and his business was ruined, through the action of 
 
 <i Parts of the opinion are omitted.
 
 1322 TORTS THROUGH ACTS OP CONDITIONAL LIABILITY (Part 3 
 
 the defendants and their associates. The defendants were all members 
 of a voluntary association known as the Granite Manufacturers' As- 
 sociation of Quincy, Mass., and some of them were on the executive 
 committee. The association was composed of "such individuals, firms, 
 or corporations as are, or are about to become manufacturers, quar- 
 riers, or polishers of granite." There was no constitution, and, while 
 there were by-laws, still, except as hereinafter stated, there was in 
 them no statement of the objects for which the association was fonned 
 The by-laws provided among other things, for the admission, suspen- 
 sion, and expulsion of members, the election of officers, including an 
 executive committee and defined the respective powers and duties of 
 the officers. One of the by-laws read as follows : "For the purpose of 
 defraying in part the expense of the maintenance of this organization, 
 any member thereof having business transactions with any party or 
 concern in Quincy or its vicinity, not members hereof, and in any way 
 relating to the cutting, quarrying, polishing, buying or selling of gran- 
 ite (hand polishers excepted) shall for each of said transactions con- 
 tribute at least $1 and not more tlian $500. The amount to be fixed 
 by the association upon its determining the amount and nature of said 
 transaction." 
 
 Acting under the by-laws the association investigated charges which 
 were made against several of its members that they had purchased 
 granite from a party "not a member" of the association. The charges 
 were proved, and, under the section above quoted, it was voted that the 
 ofifending parties "should respectively contribute to the funds of the 
 association" the sums named in the votes. These sums ranged from 
 $10 to $100. Only the contribution of $100 has been paid, but it is a 
 fair inference that the proceedings to collect the others have been de- 
 layed only by reason of this suit. The party "not a member" was the 
 present plaintiff, and the members of the association knew it. Most 
 of the customers of the plaintiff were members of the association, and 
 after these proceedings they declined to deal with him. This action 
 on their part was due to the course of the association in compelling 
 them to contribute as above stated, and to their fear that a similar 
 vote for contribution would be passed, should they continue to trade 
 with the plaintiff. The jury might properly have found, also, that the 
 euphemistic expression, "shall contribute to the funds of the associa- 
 tion," contained an idea which could be more tersely and accurately 
 expressed by the phrase "shall pay a fine," or, in other words, that the 
 plain intent of the section was to provide for the imposition upon 
 those who came within its provisions of a penalty in the nature of a 
 substantial fine. 
 
 The bill of exceptions recites that "there was no evidence of threats 
 or intimidation practiced upon the plaintiff himself, and the acts com- 
 plained of were confined to the action of the society upon its own 
 mcmliers." We understand this statement to mean simply that the 
 acts of the association concerned only such of the plaintiff's customers
 
 Ch. 2) TORTS THROUGH MALICE 1323 
 
 as were members, and that no pressure was broug-ht to bear upon the 
 plaintiff, except such as fairly resulted from action upon his customers. 
 While it is true that the by-law was not directed expressly against the 
 plaintiff" by name, still he belonged to the class whose business it was 
 intended to affect, and the proceedings actually taken were based upon 
 transactions with him alone, and in that way were directed against his 
 business alone. It was the intention of the defendants to withdraw 
 his customers from him, if possible, by the imposition of fines upon 
 them, with the knowledge that the result would be a great loss to the 
 plaintiff. The defendants must be presumed to have intended the nat- 
 ural result of their acts. Here, then, is a clear and deliberate inter- 
 ference with the business of a person, with the intention of causing 
 damage to him, and ending in that result. The defendants combined 
 and conspired together to ruin the plaintiff in his business, and they 
 accomplished their purpose. In all this, have they kept within lawful 
 bounds ? It is elemental that the unlawfulness of a conspiracy may be 
 found either in the end sought, or the means to be used. If either is 
 unlawful, within the meaning of the term as applied to the subject, 
 then the conspiracy is unlawful. It becomes necessary, therefore, to 
 examine into the nature of the conspiracy in this case, both as to the 
 object sought and the means used. 
 
 The case presents one phase of a general subject which gravely con- 
 cerns the interests of the business world, and, indeed, those of all or- 
 ganized society, and which in recent years has demanded and received 
 great consideration in the courts and elsewhere. Much remains to be 
 done to clear the atmosphere, but some things, at least, appear to have 
 been settled; and certainly at this stage of the judicial inquiry it can- 
 not be necessary to enter upon a course of reasoning or to cite authori- 
 ties in support of the proposition that, while a person must submit to 
 competition, he has the right to be protected from malicious interfer- 
 ence with his business. The rule is well stated in Walker v. Cronin, 
 107 Mass. 555, 564, in the following language: "Every one has a right 
 to enjoy the fruits and advantages of his own enterprise, industry, skill 
 and credit. He has no right to be protected against competition, but he 
 has a right to be free from malicious and wanton interference, disturb- 
 ance, or annoyance. If disturbance or loss come as a result of competi- 
 tion, or the exercise of like rights by others, it is damnum absque in- 
 juria, unless some superior right by contract or otherwise is interfered 
 with. But if it come from the merely wanton or malicious acts of oth- 
 ers, without the justification of competition or the service of any inter- 
 est or lawful purpose, it then stands upon a different footing." In a case 
 like this, where the injury is intentionally inflicted, the crucial question 
 is whether there is justifiable cause for the act. If the injury be inflict- 
 ed without just cause or excuse, then it is actionable. Bowen, L. J., in 
 Mogul Steainship Co. v. McGregor, 23 Q. B. D. 598, 613 ; Plant v. 
 Woods, 176 Mass. 492, 57 N. E. 1011, 51 L. R. A. 339, 79 Am. St. Rep. 
 330. The justification must be as broad as the act, and must cover not
 
 1324 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 only the motive and the purpose, or, in other words, the object sought, 
 but also the means used. 
 
 The defendants contend that both as to object and means, they are 
 justified by the law applicable to business competition. In considering 
 this defense, it is to be remembered, as was said by Bowen, L. J., in 
 Mogul Steamship Co. v. McGregor, L. R. 23 O. B^ D. 598, 611, that 
 there is presented "an apparent conflict or antinomy between two 
 rights that are equally regarded by the law — the right of the plaintiff 
 to be protected in the legitimate exercise of his trade, and the right of 
 the defendants to carry on their business as seems best to them, pro- 
 vided they commit no wrong to others." Here, as in most cases where 
 there is a conflict between two important principles, either of which is 
 sound, and to be sustained within proper bounds, but each of which 
 must finally yield, to some extent, to the other, it frequently is not pos- 
 sible by a general formula to mark out the dividing line with reference 
 to every conceivable case, and it is not wise to attempt it. The best 
 and only practicable course is to consider the cases as they arise, and, 
 bearing in mind the grounds upon which the soundness of each prin- 
 ciple is supposed to rest, by a process of elimination and comparison 
 to establish points through which, at least, the line must run, and be- 
 yond which the party charged with trespass shall not be allowed to go. 
 
 While the purpose to injure the plaintiff appears clearly enough, the 
 object or motive is left somewhat obscure, upon the evidence. The 
 association had no written constitution, and the by-laws do not ex- 
 pressly set forth its objects. It is true that from the by-laws it appears 
 that none but persons engaged in the granite business can be members, 
 and that a member transacting any business of this kind with a per- 
 son not a member is liable to a fine, from which it may be inferred that 
 it is the idea of the members that, for the protection of their business, 
 it would be well to confine it to transactions among themselves, and 
 that one, at least, of the objects of the association is to advance the 
 interests of the members in that way. The oral testimony tends to 
 show that one object of the association is to see that agreements made 
 between its members and their employes and between this association 
 and similar associations in the same line of business, be kept and "lived 
 up to." Whether this failure to set out fully in writing the objects, is 
 due to any reluctance to have them clearly appear or to some other 
 cause, is, of course, not material to this case. The result, however, 
 is that its objects do not so clearly appear as might be desired; but, 
 in view of the conclusion to which we have come as to the means used, 
 it is not necessary to inquire more closely as to the objects. It may 
 be assumed that one of the objects was to enable the members to com- 
 pete more successfully with others in the same business, and that the 
 acts of which the plaintiff complains were done for the ultimate pro- 
 tection and advancement of their own business interests, with no in- 
 tention or desire to injure the plaintiff, except so far as such injury
 
 Ch. 2) TORTS THROUGH MALICE 1325 
 
 was the necessary result of measures taken for their own interests. If 
 that was true, then, so far as respects the end sought, the conspiracy 
 does not seem to have been illegal. 
 
 The next question is whether there is anything unlawful or wrong- 
 ful in the means used, as applied to the acts in question. Nothing 
 need be said in support of the general right to compete. To what ex- 
 tent combination may be allowed in competition is a matter about 
 which there is as yet much conflict, but it is possible that, in a more 
 advanced stage of the discussion, the day may come when it will be 
 more clearly seen, and will more distinctly appear in the adjudication 
 of the courts, than as yet has been the case, that the proposition that, 
 what one man lawfully can do any number of men, acting together 
 by combined agreement lawfully may do, is to be received with newly 
 disclosed qualifications, arising out of the changed conditions of civil- 
 ized life and of the increased facility and power of organized combina- 
 tion, and that the difference between the power of individuals, acting 
 each according to his own preference, and that of an organized and ex- 
 tensive combination, may be so great in its effect upon public and 
 private interests as to cease to be simply one of degree, and to reach 
 the dignity of a difference in kind. Indeed, in the language of Bowen, 
 L. J., in the Mogul Steamship Case ubi supra (page 616) : "Of the 
 general proposition that certain kinds of conduct not criminal in one 
 individual may become criminal if done by combination among several, 
 there can be no doubt. The distinction is based on sound reason, for 
 a combination may make oppressive or dangerous that which, if it 
 proceeded only from a single person, would be otherv\dse; and the 
 very fact of the combination may show that the object is simply to do 
 harm, and not to exercise one's own just rights." See, also, opinion 
 of Stirling, L. J., in Giblan v. National Amalgamated Labourers' Un- 
 ion, [1903] 2 K. B. 600, 621. Speaking generally, however, competition 
 in business is permitted although frequently disastrous lo those en- 
 gaged in it. It is always selfish, often sharp, and sometimes deadly. 
 Conspicuous illustrations of the destructive extent to which it may be 
 carried are to be found in the Mogul Steamship Case, above cited, 
 and in Bowen v. Matheson, 14 Allen, 499. The fact, therefore, that 
 the plaintiff was vanquished is not enough, provided that the contest 
 was carried on within the rules allowable in such warfare. It is a 
 right however, which is to be exercised with reference to the existence 
 of a similar right on the part of others. The trader has not a free 
 lance. He may fight, but as a soldier, not as a guerilla. The right of 
 competition rests upon the doctrine that the interests of the great pub- 
 lic are best subserved by permitting the general and natural laws of 
 business to have their full and free operation, and that this end is best 
 attained when the trader is allowed, in his business, to make free use 
 of these laws. He may praise his wares, may oft'er more advantageous 
 terms than his rival, may sell at less than cost, or in the words of
 
 1S26 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 Bowen, L. J., in the Mogul Steamship Case, ubi supra, may adopt "the 
 expedient of sowing one year a crop of apparently unfruitful prices, 
 in order, by driving competition away to reaHze a fuller harvest of 
 profit in the future." In these and many other obvious ways he may 
 secure the customers of his rival, and build up his own business to the 
 destruction of that of others ; and, so long as he keeps within the oper- 
 ation of the laws of trade, his justification is complete. But from the 
 very nature of the case, it is manifest that the right of competition 
 furnishes no justification for an act done by the use of means which 
 in their nature are in violation of the principle upon which it rests. The 
 w^eapons used by the trader who relies upon this right for justifica- 
 tion must be those furnished by the laws of trade, or at least must 
 not be inconsistent with their free operation. No man can justify an 
 interference with another man's business through fraud or misrepre- 
 sentation, nor by intimidation, obstruction, or molestation. In the case 
 before us the members of the association were to be held to the policy 
 of refusing to trade with the plaintiff by the imposition of heavy fines, 
 or, in other words, they were coerced by actual or threatened injury 
 to their property. It is true that one may leave the association if he 
 desires, but, if he stays in it, he is subjected to the coercive effect of 
 a fine to be determined and enforced by the majority. This method 
 of procedure is arbitrary and artificial, and is based in no respect upon 
 the grounds upon which competition in business is permitted, but, on 
 the contrary, it creates a motive for business action inconsistent with 
 that freedom of choice out of which springs the benefit of competition 
 to the public, and has no natural or logical relation to the grounds up- 
 on which the right to compete is based. Such a method of influenc- 
 ing a person may be coercive and illegal. Carew v. Rutherford, 106 
 Mass. 1, 8 Am. Rep. 287. 
 
 Nor is the nature of the coercion changed by the fact that the per- 
 sons fined were members of the association. The words of Munson, 
 J., in Boutwell v. Marr, 71 Vt. 1, 9, 42 Atl. 607, 609, 43 L. R. A. 803, 76 
 Am. St. Rep. 746, are applicable here : "The law cannot be compelled, 
 by any initial agreement of an associate member, to treat him as one 
 having no choice but that of the majority, nor as a willing participant 
 in whatever action may be taken. The voluntary acceptance of by-laws 
 providing for the imposition of coercive fines does not make them le- 
 gal and collectible, and the standing threat of their imposition may 
 properly be classed with the ordinary threat of suits upon groundless 
 claims. The fact that the relations and processes deemed essential to a 
 recovery are brought within the membership and proceedings of an 
 organized body cannot change the result. The law sees in the member- 
 ship of an association of this character both the authors of its coercive 
 system and the victim of its unlawful pressure. If this were not so, 
 men could deprive their fellows of established rights and evade the 
 duty of compensation simply by working through an association."
 
 Ch. 2) TORTS THROUGH MALICE 1327 
 
 In view of the considerations upon which the right of competition 
 is based we are of opinion that as against the plaintiff the defendants 
 have failed to show that the coercion or intimidation of the plaintiff's 
 customers by means of a fine is justified by the law of competition. 
 The ground of the justification is not broad enough to cover the acts 
 of interference in their entirety, and the interference, being injurious 
 and unjustifiable, is unlawful. We do not mean to be understood as 
 saying that a fine is of itself necessarily, or even generally, an illegal 
 implement. In many cases it is so slight as not to be coercive in its 
 nature ; in many it serves a useful purpose to call the attention of a 
 member of an organization to the fact of the infraction of some inno- 
 cent regulation ; and, in many, it serves as an extra incentive to the 
 performance of some absolute duty or the assertion of some absolute 
 right. But where, as in the case before us, the fine is so large as to 
 amount to moral intimidation or coercion, and is used as a means to en- 
 force a right not absolute in its nature, but conditional, and is inconsist- 
 ent with those conditions upon which the right rests, then the coercion 
 becomes unjustifiable, and taints with illegality the act. 
 
 The defendants strongly rely upon Bowen v. Matheson, 14 Allen, 
 499; Mogul Steamship Co. v. McGregor [1892] A. C. 25; Bohn Mfg. 
 Co. V. Hollis, 54 Minn. 223, 55 N. W. 1119, 21 L. R. A. 337, 40 Am. St. 
 Rep. 319; Macauley Bros. v. Tierney, 19 R. I. 255, 33 Atl. 1, Z7 L. R. 
 A. 455, 61 Am. St. Rep. 770; and Cote v. Murphy, 159 Pa. 420, 28 
 Atl. 190, 23 L. R. A. 135, 39 Am. St. Rep. 686. In none of these cases 
 was there any coercion by means of fines upon those who traded with 
 the plaintiff. Inducements were held out, but they were such as are 
 naturally incident to competition — for instance, more advantageous 
 terms in the way of discounts, increased trade, and otherwise. In the 
 Minnesota case there was among the rules of the association a clause 
 requiring the plaintiff to pay 10 per cent., but tlie propriety or the le- 
 gality of that provision was not involved. In Bowen v. Matheson, it 
 is true that the by-laws provided for a fine, but the declaration did not 
 charge that any coercion by means of a fine had been used. A demur- 
 rer to the declaration was sustained upon the ground that there was no 
 sufficient allegation of an illegal act. The only allegation which need 
 be noticed here was that the defendants "did prevent men from ship- 
 ping with" the plaintiff, and as to this the court said : "This might be 
 done in many ways which are legal and proper and, as no illegal meth- 
 ods are stated, the allegation is bad." This comes far short of sus- 
 taining the defendants in their course of coercion by means of fines. 
 
 For the reasons above stated, a majority of the court are of opinion 
 that the case should have been submitted to the jury. Exceptions sus- 
 tained.^^ 
 
 *2 Part of the opinion is omitted.
 
 1328 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 CHAMBERS et al. v. BALDWIN. 
 
 (Court of Appeals of Kentucky, 1S91. 91 Ky. 121, 15 S. W. 57, 11 L. R. A. 545, 
 
 34 Am. St. Rep. 165.) 
 
 Appeal by the plaintiffs below from a judgment sustaining a demur- 
 rer to their petition. The cause of action as stated in this petition 
 was substantially as follows : 
 
 That, as partners doing business under the firm name of Chambers & Mar- 
 shall, they made a contract with one Wise, whereby he sold, and agreed to 
 deliver to them in good order during delivery season of 1877, his half of a 
 crop of tobacco, then undivided, which he had raised on shares upon the 
 farm of appellee ; in consideration whereof they promised to pay on delivery 
 at the rate of five cents per pound. That they were ready, able, and willing 
 to receive and pay for the tobacco as and at the time agreed on, and demanded 
 of him compliance with the contract; but he had already delivered it to ap- 
 pellee and Newton Cooper, tobacco dealers, and then notified appellants he 
 would not deliver it to them, and they might treat the contract as broken and 
 at an end. That appellee knew of the existence of said contract, but mali- 
 ciously, on account of his personal ill will to Chambers, one of appellants, and 
 with design to injure by depriving them of profit on their purchase, and to 
 benefit himself by becoming purchaser in their stead, advised and procured 
 Wise, who would else have kept and performed, to break the contract, where- 
 by they have been damaged $ . Tliat he (Wise) was at the time known 
 
 by appellee to be, and now is, insolvent; so, being without other redress, they 
 bring this action. 
 
 Ldwis, J., after stating the substance of the petition. Appellee is 
 alleged to have been actuated to do the act complained of by ill will 
 to one of appellants only, which, however, to avoid confusion we will 
 treat as a malicious intent to injure both; and also by a design to 
 benefit himself by becoming purchaser of the tobacco for the firm of 
 which he was a member. And thus two questions of law arise on de- 
 murrer to the petition : First, whether one party to a contract can 
 maintain an action against a person who has maliciously advised and 
 procured the other party to break it; second, whether an act lawful 
 in itself can become actionable solely because it was done maliciously. 
 
 As appellee, being no party to the contract, did not, nor could, him- 
 self break it, his wrong, if any, was in advising and procuring the 
 equivalent of canceling, and inducing Wise to do so. Consequently, 
 while the remedy of appellants against him (Wise) was by action ex 
 contractu, recovery being limited to actual damage sustained, their ac- 
 tion against appellee is, and could be, in no other than in form ex de- 
 licto; recovery, if any at all, not being so limited. Nevertheless, in 
 Addison on Torts (volume 1, p. 37) it is said: "Maliciously inducing 
 a party to a contract to break his contract, to the injury of the person 
 with whom the contract was made, creates that conjunction of wrong 
 and damage which supports an action." The authority cited in sup- 
 port of the proposition thus stated, without qualification, is the Eng- 
 lish case of Lumley v. Gye, 2 El. & Bl. 228, decided in 1853, followed 
 by Bowen v. Ilall^ decided in 1881, and reported in 20 Amer. Law Reg. 
 (N. S.) 578, though it is proper to say there was a dissenting opinion
 
 Cll. 2) TORTS THROUGH MALICE 1329 
 
 in each case. The action of Lumley v. Gye was in tort, the complaint 
 being that the defendant mahciously enticed and procured a person, 
 under a binding contract to perform at plaintiff's theater, to refuse to 
 perform, and abandon the contract The majority of judges held, and 
 the case was decided upon the theory, that remedies given by the com- 
 mon law in such cases are not in terms limited to any description of 
 servants or service ; and the action could be maintained upon the prin- 
 ciple, laid own in Comyn's Digest, that, "in all cases wdiere a man has 
 a temporal loss or damage by the wrong of another, he may have an 
 action upon tlie case to be repaired in damages." The position of 
 Justice Coleridge was to the contrary, — that, as between master and 
 servant, there was an admitted exception to the general rule of the 
 common law confining remedies by action to the contracting parties, 
 dating from the statute of laborers, passed in 25 Edw. III., and both 
 on principle and authority limited by it; and that "the existence of 
 intention, that is, malice, will in some cases be an essential ingredient 
 in order to constitute the wrongfulness or injurious nature of the act; 
 but it will neither supply the want of the act itself, or its hurtful con- 
 sequences." 
 
 We have been referred to some American cases as being in harmony 
 with the two cases mentioned. In Walker v. Cronin, 107 Mass. 555, 
 it was held that where a contract exists by which a person has a legal 
 right to continuance of service of workmen in business of manufactur- 
 ing boots and shoes, and another knowingly and intentionally procures 
 it to be violated, he may be held liable for the wrong, although he 
 did it for the purpose of promoting his own business. But it was 
 not alleged the defendant in that case had any such purpose in pro- 
 curing the persons to leave and abandon the employment of the plain- 
 tiff; the real grievance complained of being damage by the wanton 
 and malicious act of defendant and others. In Haskins v. Royster, 70 
 N. C. 601, 16 Am. Rep. 780, it was held that if a person maliciously, 
 entices laborers or croppers on a farm to break their contract, and de- 
 sert the service of their employer, damages may be recovered against 
 him. But both those cases relate to rights and duties growing out of 
 the relation of employer and persons agreeing to do labor and per- 
 sonal service, and do not apply here, except so far as the decisions rest 
 upon other grounds than the statute of laborers. In Jones v. Stanly, 
 76 N. C. 355, it was, however, held that the same reasons which con- 
 trolled the decisions rendered in Haskins v. Royster "cover every case 
 in which one person maliciously persuades another to break any con- 
 tract with a third person. It is not confined to contracts for service." 
 But we have not seen any other case in which the doctrine is stated so 
 broadly. Chesley v. King, 74 Me. 164, 43 Am. Rep. 569, we do not 
 regard at all decisive, because the court went no further than to say 
 they were inclined to the view that there may be cases where an act, 
 otherwise lawful, when done for the sole purpose of damage to a per- 
 Hepb.Torts — 84
 
 1330 TORTS THROUGH ACTS OP CONDITIONAL LIABILITY (Part 3 
 
 son, without design to benefit the doer or others, may be an invasion 
 of the legal rights of such person. Cooley on Torts, 497, agreeing 
 with Justice Coleridge, says : "An action cannot, in general, be main- 
 tained for inducing a third person to break his contract with the plain- 
 tiff ; the consequence, after all, being only a broken contract, for which 
 the party to the contract may have his remedy by suing upon it." 
 And it seems to us that the rule harmonizes with both principle and 
 policy, and to it there can be safely and consistently made but two 
 classes of exception ; for, as to make a contract binding, the parties 
 must be competent to contract and do so freely, the natural and rea- 
 sonable presumption is that each party enters into it with his eyes open, 
 and purpose and expectation of looking alone to the other for redress 
 in case of breach by him. One such exception was made by the Eng- 
 lish statute of laborers to apply where apprentices, menial servants, 
 and others, whose sole means of living was manual labor, were en- 
 ticed to leave their employment, and may be applied in this state in 
 virtue of and as regulated by our own statutes. The other arises 
 where a person has been procured against his will, or contrary to 
 his purpose, by coercion or deception of another to break his contract. 
 Green v. Button, 2 Cromp. M. & R. 707; Ashley v. Dixon, 48 N. 
 Y. 430, 8 Am. Rep. 559. But as Wise was not induced by either force 
 or fraud to break the contract in question, it must be regarded as 
 having been done of his own will, and for his own benefit. And his 
 voluntary and distinct act, not that of appellee, being the proximate 
 cause of damage to appellants, they, according to a familiar and rea- 
 sonable principle of law, cannot seek redress elsewhere than from 
 him. 
 
 That an action on the case will lie whenever there is. concurrence 
 of actual damage to the plaintiff, and wrongful act by the defendant, 
 is a truism, yet, unexplained, misleading. The act must not only be 
 the direct cause of the damage, but a legal wrong, else it is damnum 
 absque injuria. But whether a legal wrong has been done for which 
 the law affords reparation in damages depends upon the nature of the 
 act, and cannot be consistently or fitly made to depend upon the mo- 
 tive of the person doing it; for an act may be tortious, and conse- 
 quently actionable, though not malicious, nor even willful. If it was 
 not so, there could be no reparation for an act of pure negligence, 
 though ever so hurtful in its effects. And it is just as plain that an 
 act which does not of itself amount to a legal wrong, without, cannot 
 be made so by a bad motive accompanying it ; for there is no logical 
 process by which a lawful act, done in a lawful way, can be trans- 
 formed or not into a legal wrong according to the motive, bad or 
 good, actuating the person doing it. The proposition is clearly and 
 forcibly stated in Jenkins v. Fowler, 24 Pa. 308, as follows : "Ma- 
 licious motives make a bad case worse, but they cannot make that 
 wrong which in its own essence is lawful. Where a creditor who ha.s 
 a* just debt brings a suit or issues execution, though he does it out of
 
 Ch. 2) TORTS THROUGH MALICE 1331 
 
 pure enmity to the debtor, he is safe. In slander, if the defendant 
 proves the words spoken to be true, his intention to injure the plain- 
 tiff by proclaiming his infamy will not defeat justification. One who 
 prosecutes another for a crime need not show he was actuated by cor- 
 rect feelings, if he can prove that there was good reason to believe the 
 charge was well founded. In short, any transaction which would be 
 lawful if the parties were friends cannot be made the foundation of 
 an action merely because they happen to be enemies. As long as a 
 man keeps himself within the law by doing no act which violates it, we 
 must leave his motives to Him who searches hearts." In Frazier v. 
 Brown, 12 Ohio St. 294, the cause of action stated was diversion, with 
 malicious intent, by the defendant of subterraneous water on his own 
 land from adjoining land of the plaintiff; but it was held there could 
 be no recovery, because, as said by the court, "the act done, to wit, the 
 using of one's own property, being lawful in itself, the motive with 
 which it is done, — whatever it may be as a matter of conscience, — 
 is, in law a matter of indifference." In Chatfield v. Wilson, 28 Vt. 
 49, the action was for the same cause substantially, and the language 
 of the court was : "An act legal in itself, and which violates no right, 
 cannot be made actionable on account of the motive which induced 
 it." In Mahan v. Brown, 13 Wend. (N. Y.) 261, 28 Am. Dec. 461, 
 the complaint was that the defendant wantonly and maliciously erected 
 on his own premises a high fence near to and in front of plaintiff's 
 window, without benefit to himself, and for the sole purpose of an- 
 noying the plaintiff, thereby rendering her house uninhabitable. But 
 it was held the action would not lie, because, no legal right of the 
 plaintiff having been injured, the defendant had not so used his prop- 
 erty as to injure another, and, whether his motive was good or bad, 
 she had no legal cause of complaint. To the same effect is the de- 
 cided weight of authority in the United States. Adler v. Fenton, 24 
 How. 412, 16 L. Ed. 696; Phelps v. Nowlen, 72 N. Y. 39, 28 Am. 
 Rep. 93; Benjamin v. Wheeler, 8 Gray (Mass.) 410; Iron Co. v. 
 Uhler, 75 Pa. 467, 15 Am. Rep. 599; Plank-Road Co. v. Douglass, 9 
 N. Y. 444. 
 
 Upon neither principle nor authority could this action have been 
 maintained if the same thing it is complained appellee did had been 
 done by a person on friendly terms with appellant Chambers, or by a 
 stranger, though he might have profited by the purchase to the damage 
 of appellants ; for competition in every branch of business being not 
 only lawful, but necessary and proper, no person should, or can upon 
 principle, be made liable in damages for buying what may be freely 
 offered for sale by a person having the right to sell, if done without 
 fraud, merely because there may be a pre-existing contract between 
 the seller and a rival in business, for a breach of which each party 
 may have his legal remedy against the other. Nor, the right to buy 
 existing, should it make any difference, in a legal aspect, what motive
 
 1332 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 influenced the purchaser. Competition frequently engenders, not only 
 a spirit of rivalry, but enmity; and, if the motive influencing every 
 business transaction that may result in injury or inconvenience to a 
 business rival was made the test of its legality, litigation and strife 
 would be vexatiously and unnecessarily increased, and the sale and ex- 
 change of commodities very much hindered. As pertinently inquired 
 in Plank-Road Co. v. Douglass, "Independently of authority, if malig- 
 nant motive is sufiicient to make a man's dealings with his own prop- 
 erty, when accompanied by damage to another, actionable, where is 
 this principle to stop?" And as correctly said by Lord Coleridge in 
 Bowen v. Hall : "The inquiries to which this view of the law [making 
 an act lawful or not according to motive] would lead, are dangerous 
 and inexpedient inquiries for courts of justice. Judges are not very 
 fit for them, and juries are very unfit." 
 
 In our opinion, no cause of action is stated in the petition, and the 
 demurrer was properly sustained. Judgment aflirmed.*^ 
 
 BITTERMAN v. LOUISVILLE & N. R. CO. 
 
 (Supreme Court of the United States, 1907. 207 U. S. 205, 28 Sup. Ct. 91, 
 52 L. Ed. 171, 12 Ann. Cas. 693.) 
 
 Upon a bill filed on behalf of the Louisville & Nashville Railroad 
 Company, the circuit court of the United States for the eastern dis- 
 trict of Louisiana entered a decree perpetually enjoining Bitterman 
 and four other ticket brokers, engaged in business in the city of New 
 Orleans, from dealing in nontransferable round-trip tickets issued at 
 reduced rates for passage over the lines of railway of the complain- 
 ant on account of the United Confederate Veterans' Reunion and the 
 Mardi Gras celebration held in the city of New Orleans in the years 
 1903 and 19CM-, respectively. On an appeal prosecuted by the railroad 
 company, complaining of the limited relief awarded, the circuit court 
 of appeals held that the defendants should also be enjoined generally 
 from dealing in nontransferable round-trip reduced-rate tickets when- 
 ever issued by the complainant, and ordered the cause to be remanded 
 to the circuit court with directions to enter a decree in accordance with 
 the views expressed in the opinion. 75 C. C. A. 192, 144 Fed. 34. 
 A writ of certiorari was thereupon allowed. 
 
 It was averred in the bill that complainant was a Kentucky cor- 
 poration, operating about 3,000 miles of railway for the carriage of 
 passengers, baggage, mail, express, and freight, its lines of road ex- 
 tending from New Orleans through various states, and making con- 
 nections by which it reached all railroad stations in the LTnited States, 
 Canada, and Mexico. The persons named as defendants were averred 
 to be citizens and residents of Louisiana, each engaged in the city of 
 
 *3 Accord, Boyson v. Thorn (1893) 98 Cal. 578, 33 Pac. 492, 21 L. R. A. 233.
 
 Ch. 2) TORTS THROUGH MALICE 1333 
 
 New Orleans as a ticket broker or scalper in the business of buying 
 and selling the unused return portions of railroad passenger tickets, 
 especially excursion or special-rate tickets issued on occasions of fairs, 
 expositions, conventions, and the like. It was further averred that the 
 defendants were joined in the bill, "because their business and trans- 
 actions complained of are in act, purpose, and effect identical, and in 
 order to prevent a multiplicity of suits, the same relief being sought as 
 to each and all of them." 
 
 Six articles or paragraphs of the bill related to an approaching re- 
 union of United Confederate Veterans to be held in the city of New 
 Orleans, which it was expected would necessitate the transportation 
 by the railroads entering New Orleans of 100,000 visitors, one fourth 
 of which number would pass over the lines of railway of the com- 
 plainant. A necessity was alleged to exist for special reduced rates 
 of fare to secure a large attendance at such reunion, and it was averred 
 that a rate of 1 cent a mile, one-third the regular rate, had been agreed 
 upon for nontransferable round-trip, reduced-rate tickets which were 
 to be issued for the occasion, and it was stated "that among the condi- 
 tions on the face of said ticket, which ticket contract is signed by the 
 original purchaser and the company, is one that said ticket is non- 
 transferable, and, if presented by any other than the original purchaser, 
 who is required to sign the same at date of purchase, it will not be 
 honored, but will be forfeited, and any agent or conductor of any of 
 the lines over which it reads shall have the right to take up and can- 
 cel the entire ticket." And for various alleged reasons, based mainly 
 upon the large number of expected purchasers, it was averred that the 
 return portion of each ticket was not required to be signed by the 
 original purchaser or presented to an agent of the complainant in the 
 city of New Orleans for the purpose of the identification of the holder 
 as the purchaser of the ticket. 
 
 It was averred that each defendant was accustomed to buy and sell 
 the return coupons of nontransferable tickets, for the express purpose, 
 and no other, of putting them in the hands of purchasers, to be fraud- 
 ulently used for passage on the trains of complainant, and it was fur- 
 ther averred that the defendants intended in like manner to fraudu- 
 lently deal in the return portion of the tickets about to be issued for 
 the reunion in question, and that complainant would sustain irreparable 
 injury, for which it would have no adequate remedy at law, unless it 
 was protected from such wrongful acts. 
 
 AIr. Justice; White;, after stating the case, delivered the opinion 
 of the court. * * * That the complainant had the lawful right 
 to sell nontransferable tickets of the character alleged in the bill at re- 
 duced rates we think is not open to controversy, and that the condi- 
 tion of nontransferability and forfeiture embodied in such tickets was 
 not only binding upon the original purchaser, but upon anyone who ac- 
 quired such a ticket and attempted to use the same in violation of its 
 terms, is also settled. Mosher v. St. Louis, I. M. & S. R. Co., 127 U.
 
 1334 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 S. 390, 32 L. Ed. 249, 8 Sup. Ct. 1324. See also Boylan v. Hot 
 Springs R. Co., 132 U. S. 146, 33 L. Ed. 290, 10 Sup. Ct. 50. * * * 
 Any third person acquiring a nontransferable reduced-rate railroad 
 ticket from the original purcliaser, being therefore bound by the clause 
 forbidding transfer, and the ticket in the hands o.f all such persons 
 being subject to forfeiture on an attempt being made to use the same 
 for passage, it may well be questioned whether the purchaser of such 
 ticket acquired anything more than a limited and qualified owner- 
 ship thereof, and whether the carrier did not, for the purpose of en- 
 forcing the forfeiture, retain a subordinate interest in the ticket, 
 amounting to a right of property therein, which a court of equity 
 would protect. Board of Trade v. Christie Grain & Stock Col, 198 
 U. S. 236, 49 L. Ed. 1031, 25 Sup. Ct. 637, and authorities there cited. 
 See also Sperry & H. Co. v. Mechanics' Clothing Co. (C. C.) 128 Fed. 
 800. 
 
 We pass this question, however, because the want of merit in the 
 contention that the case as made did not disclose the commission oi a 
 legal wrong conclusively results from a previous decision of this court. 
 The case is Angle v. Chicago, St. P., M. & O. R. Co., 151 U. S. 1, 
 38 L. Ed. 55, 14 Sup. Ct. 240, where it was held that an actionable 
 wrong is committed by one ''who maliciously interferes in a contract 
 between two parties and induces one of them to break that contract 
 to the injury of the other." That this principle embraces a case like 
 the present, that is, the carrying on of the business of purchasing and 
 selling nontransferable reduced-rate railroad tickets for profit, to the 
 injury of the railroad company issuing such tickets, is, we think clear. 
 It is not necessary that the ingredient of actual malice, in the sense 
 of personal ill will, should exist to bring this controversy within the 
 doctrine of the Angle Case. . The wanton disregard of the rights of 
 a carrier, causing injury to it, which the business of purchasing and 
 selling nontransferable reduced-rate tickets of necessity involved, con- 
 stitute legal malice within the doctrine of the Angle Case. We deem 
 it unnecessary to restate the grounds upon which the ruling in the 
 Angle Case was rested, or to trace the evolution of the principle in 
 that case announced, because of the consideration given to the subject 
 in the Angle Case and the full reference to> the authorities which wa? 
 made in the opinion in that case. * * * 
 
 Affirmed.** 
 
 <4 The statement of facts is abridged, and parts of the opinion are omitted.
 
 Ch. 2) TORTS THROUGH MALICB 1335 
 
 NATIONAL PHONOGRAPH CO., Limited, v. EDISON-BELL 
 CONSOLIDATED PHONOGRAPH CO., Limited. 
 
 (Court of Appeal. [190S] 1 Ch. 33,j.) 
 
 The plaintiffs were dealers in Edison phonographs, records, and 
 blanks. To secure uniformity of price and prevent their business 
 from being injured by any dealer cutting prices, the plaintiffs sold 
 their goods only upon the terms of two printed documents, described 
 as the "factor's agreement" and "the retail dealer's agreement" appli- 
 cable to the wholesale and the retail trade respectively. Both the 
 factor's agreement and the retail dealer's agreement provided that 
 the plaintift"'s goods should not be sold at less than current list prices, 
 or to dealers on the plaintiff's' suspended list. The defendant company 
 dealt in phonographic goods and wished to sell the plaintiffs' mar 
 chines. The plaintiffs, however, for trade reasons, desired to pre- 
 vent the defendant company from having this trade, and to that end 
 placed their name on the suspended list. The defendant company 
 sought to frustrate this design to embarrass them in their business. 
 
 In 1903 one Ell, a dealer in phonographic materials, became a cus- 
 tomer of one of the plaintiffs' factors, Simpson & Co., for the pur- 
 pose of obtaining through them the plaintiffs' goods. Simpson & Co., 
 before doing business with EU, required him to sign the retail deal- 
 er's agreement, which he accordingly did. Ell was also a customer 
 of the defendant company, and had purchased goods from them. In 
 1904 Ell, as the result of an interview with one Presland, an employee 
 of the defendant company, obtained twenty-seven of the plaintiffs' 
 phonographs from Simpson & Co., and supplied them through Pres- 
 land to the defendant company. Ell paid to Simpson & Co. the pre- 
 scribed factor's price for the machines with money paid to him by 
 the defendant company, making no profit himself out of the trans- 
 action. 
 
 In 1904, two persons, Hughes and Leach, acting on behalf of and 
 with the authority of the defendant company, assumed fictitious 
 names, and, representing falsely that they were independent dealers in 
 phonographic goods, applied to wholesale dealers who had entered 
 into factors' agreements with the plaintiff's, and, having signed retail- 
 ers' agreements in fictitious names, obtained from the wholesale deal- 
 ers a large number of the plaintiffs' machines with the usual trade 
 discounts. These machines were in fact, though not to the knowl- 
 edge of the wholesale dealers, obtained for and were handed over to 
 the defendant company. 
 
 It appeared from the evidence that the defendant' company sold 
 phonograph records, which fitted the plaintiff's' machines, at a 
 cheaper rate than the records sold by the plaintiff's (Is., as against Is. 
 6d.), and that records were a better paying product than the machines 
 themselves. It was stated that the defendant company had obtained
 
 133G TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 about 700 of the plaintiff's machines. The plaintiffs alleged that the 
 acts of the defendant company o<i which they complained had caused 
 them great injury in their business. No direct pecuniary loss was 
 proved, but a general falling off of business was shewn, which, it was 
 said, was due to the fact that the sale of the plaintiffs' machines by 
 the defendant company caused a demand for the records of the de- 
 fendant company rather than for those of the plaintiffs, whereas 
 if the plaintiff's' machines could only be obtained by the public from 
 retailers who had signed the plaintiff's' retailer's agreement, the re- 
 tailers would have obtained from the factors, and the public from the 
 retailers, the plaintiff's records ; it was also said that persons going to 
 the defendant company's place Oif business to purchase the plaintiffs' 
 machines might ultimately be induced to purchase the defendant com- 
 pany's machines instead of the plaintiff''s, and it was further said that 
 the plaintiffs' business would be injured by the acts of the defendant 
 company, because if retailers saw that the plaintiff's' machines were 
 being sold by the defendant company, and knew that the defendant 
 company were on the suspended list, the retailers would think that 
 the plaintiff's were incapable of maintaining their agreements, and 
 would consequently cease to stock the plaintiffs' goods. 
 
 In respect of both these transactions — the EH transaction and the 
 Hughes and Leach transaction — the plaintiffs sued for an injunction 
 and damages. The action came on for hearing before Joyce, J., who 
 held that it failed altogether, and dismissed it with costs. The plain- 
 tiffs appealed to the Court of Appeal.*^ 
 
 Kenneidy, L. J., read the following judgment: In this case the 
 plaintiffs' claim for damages and an injunction is based upon two dis- 
 tinct sets of circumstances, with which I will deal in the same order 
 as that in which they have been dealt with in the judgment appealed 
 against. The real defendant is the defendant company. The other 
 defendants are practically nominal defendants only. The plaintiffs 
 deal in phonographs and phonographic goods. These they sell to 
 wholesale traders, whom they call factors, and they in their turn re- 
 sell to retail dealers. The plaintiffs act upon a system of restrictive 
 and exclusive trading. They exact from the factors who purchase from 
 them an agreement not to sell to retail dealers except for certain dis- 
 counts which the plaintiffs prescribe ; not to sell to any retail dealers 
 who decline to sign an agreement form to which I will presently refer ; 
 
 <5 The statement of facts is abridged, and the armnnonts of counsel are 
 omitted. 
 
 For the defendant it was urged by Hughes, K. C, and J. G. Wood that "nei- 
 ther Quinn v. Leathern nor South Wales ISIiners' Federation v. Glamorgan Coal 
 Co. has anything to do with this case. In the former there was a conspiracy 
 deliberately to injure, and in the latter case the miners were induced to break 
 their contract in order to coerce the masters, and there necessarily was loss to 
 the masters. With regard to the complaint tlint the defendants obtained goods 
 by using fictitious names, it is not wrongful or a tort to buy goods under an 
 ali;is. The only result is that the seller's malicious intent to boycott is frus- 
 trated."
 
 Ch. 2) TORTS THROUGH MALICE 1337 
 
 and not to sell to any person whose name is on a list which they de- 
 scribe as "our suspended list," and which, although it is in the agree- 
 ment itself only stated to include those who are referred to in the sev- 
 enth condition, is a list in which the plaintiffs include the name of any 
 person whom they choose in this way to proscribe. If a factor fails 
 to observe any of these or certain further stipulations of the agree- 
 ment, he may be at once cut off from any further supply of goods and 
 be placed on the suspended list. The retail dealer's agreement, which 
 he must sign and give to the factor before he can buy from the fac- 
 tor, purports to bind the retail dealer (inter alia) not to sell to any 
 one at a discount or at less than current list prices, or to any dealer 
 who is on the plaintiff's' suspended list. If a retail dealer fails to ob- 
 serve any of the stipulations, he may be placed by the plaintiffs on 
 their suspended list, and so be cut off from any further supply of 
 goods. The justification alleged by the plaintiffs for this system con- 
 sists, as alleged by them, in the maintenance of price and the en- 
 couragement to hold large stocks of the plaintiff's' wares, which the 
 assurance of this is said to aff'ord to factors and dealers. * * * ^e 
 
 The learned judge has given judgment for the defendants in regard 
 to both of the transactions. 
 
 In regard to the first, which I will call the Ell transaction, he has 
 held, first, that there was no contract existing between the plaintiffs 
 and Ell upon which the plaintiff's could have successfully sued Ell; 
 secondly, that the plaintiffs failed to prove that the defendant com- 
 pany or Presland directly procured or incited Ell to violate the con- 
 tract, if any existed; thirdly, that, if any contract existed between 
 the plaintiffs and Ell, it did not create a contractual relation between 
 them within the meaning of Lord Macnaghten's judgment in Quinn 
 V. Leathem, [1901] A. C. 495; and fourthly, that the plaintiff's had 
 failed to prove the real and actual damage which was essential to their 
 case. I agree with Joyce, J., as to the first of tliese grounds ; as to 
 the second, which is one of fact, I should be slow to differ from the 
 learned judge who himself heard the witnesses give their testimony. 
 If either of these conclusions is correct the plaintiffs' claim on this 
 part of their case fails, and it is unnecessary for the purposes of this 
 appeal to consider the third and fourth grounds on which the learn- 
 ed judge has also decided adversely to the plaintiffs. I reserve, till 
 I deal with the Leach and Hughes case, any consideration of the ques- 
 tion of damage. But, as the question of contractual relation involves 
 a legal point of much general importance, and as, with sincere respect, 
 I am not disposed to concur in the view which Joyce, J., has ex- 
 pressed, I do not think that, whilst agreeing for other reasons with 
 the result of his judgment on this branch of the case, I ought to pass 
 over the point altogether without comment. The learned judge holds 
 that a valid contract by A, with B. not to do a particular act or acts 
 
 46 Part of the opinion, stating the facts of the two transactions, is omitted.
 
 1338 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 — for instance, not to purchase goods from or sell goods to C. — does 
 not constitute a contractual relation in the sense in which Lord 
 Macnaghten must be understood to have used that phrase in Quinn 
 V. Leathem, [1901] A. C. 495, and in substance, as I understand his 
 judgment, that an action at the suit of B. against one who procured 
 or incited A. to break his contract not to do the particular act or acts 
 could not properly be based upon any principles which are laid down 
 in such cases as Lumley v. Gye, 2 E. & B. 216, Quinn v. Leathem, 
 [1901] A. C. 495, and South Wales Miners' Federation v. Glamorgan 
 Coal Co., [.1905] A. Cy 239. Now, I agree that in these cases, as well 
 as in Bowen v. Hall, 6 Q. B. D. 333, and Temperton v. Russell, 
 [1893] 1 Q. B. 715, the contractual relation, which the parties sued 
 in those cases were held to have unlawfully interrupted, involved 
 something more than an obligation to abstain from doing a particu- 
 lar act or acts. In each case there subsisted between the contracting 
 parties, by virtue of the contract, that which, for want of a better 
 phrase, I think might be described as a more or less continuous course 
 of dealing, as, for example, of personal service, though the case is 
 not confined to personal service, of which without justification the 
 party sued had successfully tried to procure the rupture. I agree with 
 the defendants' counsel that the decision of the Court of Appeal in 
 Exchange Telegraph Co. v. Gregory & Co., [1896] 1 Q. B. 147, 157, 
 cited by the plaintiffs, does not throw light upon this part of the case 
 when carefully looked at. That decision as is correctly stated at the 
 close of the head-note in the Law Reports, simply was that the plain- 
 tiffs in that case had a right of property at common law, and were 
 entitled to an injunction to restrain the defendant from infringing 
 that right. And indeed, in the following passage in his judgment 
 Rigby, L. J., suggested that there is some limitation : "It is not every 
 procuring of a breach of contract that will give a right of action," ^'' 
 
 4 7 On this remark by Rigby, J., this comment is made by Joyce, .7., in the 
 principal case, [190S| 1 Ch. ;]35, 8.50: "For instance, sometimes it happens that 
 a lady, having contracted to marry A., is induced to change her mind and 
 marry B., as, it must be presumed, upon a pressing invitation by him to do so. 
 If B. was aware of the lady's previous engagement to A., can A., instead of 
 bringing an action for breach of promise against the lady, recover damages in 
 an action of tort against her husband B., upon the gi'ound that he has inter- 
 fered with a contractual relation lietwecn the lady and A. and induced her 
 to break her contractV Could A., if he commenced his action soon enough, ob- 
 tain an injunction against B. to restrain him from procuring the lady to marry 
 him? If the contention of the counsel of the plaintiffs before me be correct, 
 these questions would have to be answered in the aflirmative. Again, suppose 
 A. is employed by B., with a stipulation that after the termination of the en- 
 gagement he shall not enter into any similar employment in the same neigh- 
 bourhood, then suppose A., being no longer employed by B., enters the service 
 of C, carrying on a similar Itusiness in the same town, can B. sue C. for dam- 
 ages and obtain an injunction to prevent his employing A. when he is no long- 
 er iu the service of B.V We have heard lately that publishei's, when they issue 
 a boo!< at a net price, stipulate that the booksellers they supply shall not resell 
 within six months at less than .such net price. Does any one who, within six 
 months from the publication of such a book at a net price, asks, or if you like 
 induces, the b(K)lvseller to let him have a copy for less than the net price, reu' 
 der himself liable to an action at the suit of the publisher?"
 
 Ch. 2) TORTS THROUGH MALICE 1330 
 
 I am not aware of any case in which the line or nature of the Hmi- 
 tation has been defined. But, if it had been necessary, which it is 
 not, to decide the point, I do not see how, in view of the decisions of 
 the House of Lords to which I have just referred, and of the lan- 
 guage used by Lord Watson in Allen v. Flood, Lord Lindley in 
 Ouinn V. Leathern, and Lord Macnaghten in the same case, I could 
 concur with Joyce, J., if he has held that in no circumstances could the 
 intentional procurement of a breach of contract not to do a particu- 
 lar act constitute in law an actionable wrong. 
 
 The case made out by the plaintiffs in regard to the Hughes and 
 Leach transactions appears to me to differ, in important respects, 
 from the EU transaction. By intentional misrepresentations the de- 
 fendant company, through their agents or servants, procured from 
 the factors goods of the plaintiffs' manufacture which the factors 
 would not have parted with if they had known that the persons with 
 whom they were dealing -were agents or servants of a firm included 
 in the suspended list. There has been, in a sense, a sale contrary to 
 the terms and the intention of the factor's agreement. Then comes 
 the question, Did such a transaction constitute, on the part of the 
 factors, in each case an actionable violation of their contract with 
 the plaintiff's, which I assume to be valid in point of law? I do not 
 think it did. The factors did not know, or have reason to suppose, 
 that they were selling to the defendants ; on the contrary, they were 
 intentionally misled by Hughes and Leach into the belief that they 
 were selling to independent retail dealers, who had their own places 
 of business and were in no way connected with the defendants. The 
 names given by Hughes and Leach were not names on the suspended 
 list. It seems to me that a sale honestly made by a factor under these 
 circumstances ought not, according to the proper interpretation of 
 the agreement, to be held to be a sale to a person on the suspended 
 list, and, as such, constituting a breach of the agreement. The de- 
 fendants' counsel contended that, if this be so — if the plaintiffs 
 could not successfully sue the factor for damages or justly place him 
 on the suspended list under the seventh condition— the plaintiffs' 
 case at once fails, because (they argue) the defendants' stratagem, how- 
 ever reprehensible, did not produce a violation by the factors of 
 the contracts with the plaintiffs. I think that this is too narrow a 
 view. I am certainly disposed toi hold that if A., who knows that 
 B., the producer of an article, has sti]:)ulated in selling it to C, the 
 factor, that he shall not resell, it to A., procures by an intentional 
 misrepresentation to C. a sale to himself, he has committed towards 
 B. an actionable wrong provided tliat B. can prove he has been there- 
 by damaged, although, in the particular circumstances, B. may have 
 no cause of action against C. in respect of the transaction. I agree 
 with the defendants' counsel that Exchange Telegraph Cp, v. Greg- 
 ory & Co., [1896] 1 Q. B. 147, is not an authority for such a propo- 
 sition, for in that case the subscriber who improperly supplied the
 
 1340 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part S 
 
 defendant with the information in which the plaintiffs had proprie- 
 tary rights must have known that he was violating his contract with 
 the plaintiffs in so doing. There is no suggestion in the case, as re- 
 ported, that he did not. But I think a sufficient declaration of the 
 soundness of the view which I have expressed appears in a passage in 
 the judgment of Bowen, L. J., in Mogul Steamship Co. v. McGregor, 
 Gow & Co., 23 O. B. D. 614, to which my attention has been drawn : 
 "No man, whether trader or not, can, however, justify damaging 
 another in his commercial business by fraud or misrepresentation. 
 Intimidation, obstruction, and molestation are forbidden ; so is the 
 intentional procurement of a violation of individual rights, contrac- 
 tual or other, assuming always that there is no just cause for it." 
 And in Allen v. Flood, [1898] A. C. 96, Lord Watson remarks: 
 "When the act induced is within the right of the immediate actor and 
 is therefore not wrongful in so far as he is concerned, it may yet be 
 to the detriment of a third party; and in that case, according to the 
 law laid down by the majority in Lumley v. Gye, 2 E. & B. 216, the 
 inducer may be held liable if he can be shewn to have procured his 
 object by the use of illegal means directed against that third party." ^^ 
 
 WEST VIRGINIA TRANSP. CO. v. STANDARD OIL CO. et al. 
 
 (Supreme Court of Appeals of West Virginia, 1902. 50 W. Va. Oil, 
 40 S. E. 591, 56 L. R. A. 804, 88 Am. St. Rep. 895.) 
 
 Trespass on the case against the Standard Oil Company and the 
 Eureka Pipe Line Company. A demurrer to the declaration, which 
 was framed in two counts, was sustained by the Circuit Court, and 
 the plaintiff brings error.*" 
 
 Brannon, j. * * * What wrongful acts does this first count 
 state? The formation of trade combination — call it "monopoly" — 
 is not actionable alone. How far the grant of exclusive privilege 
 by the state (and this is the only monopoly, legally speaking) is valid 
 when its right is contested, is one thing. We are not dealing with 
 that. This monopoly is not that. It is the act of persons and corpo- 
 rations, by union of means and effort, drawing to themselves, in the 
 field of competition, the lion's share of trade. This is not monopoly 
 condemned by law. * * * 
 
 Observe the question here is not one of enforcing a contract in 
 favor of a monopoly, or of determining whether its conditions are 
 
 48 The opinions of Lord .AJverstono, C. J., and Buckley, L. J., are omitted. 
 
 Tlie result of the case was that "the defendant couipauy agreed to au in- 
 junction in the form suggested by Buckley, L. J. ;" that is, "to restrain the de- 
 fendant company, their servants and agents, from inducing any jiersons or 
 firms who have entered into factors' agreements with the i)laintilf company to 
 deal witli tlie defendant company in goods of the plaintiff company by repre- 
 senting or leading to the belief that the purchaser is not the defendant com- 
 pany," 
 
 4 The statement of facts is abridged.
 
 Ch. 2) TORTS THROUGH MALICE 1341 
 
 reasonable; not a question of how far the courts would go to enforce 
 a contract between the Standard Oil Company and producers, or be- 
 tween the Eureka Company and producers binding the latter to trans- 
 port oil only over that line ; not a proceeding by the state to forfeit 
 a charter for misuse. The question here is, has the company, by illegal 
 act, violated the rights of the plaintiff? Counsel for plaintiff put 
 emphasis on the charge of conspiracy and malice; but there can be 
 no conspiracy to do a legitimate act, — an act which the law allows, 
 — nor malice therein. To give action there must not only be con- 
 spiracy, but conspiracy to do a wrongful act. If the act is lawful, 
 no matter how many unite to do it. Bohn Mfg. Co. v. Ilollis, 54 
 Minn. 223, 55 N. W. 1119, 21 L. R. A. 337, 40 Am. St. Rep. 319. 
 "A conspiracy cannot be made the subject of an action, though dam- 
 ages result, unless something is done which, without the conspiracy, 
 would give right of action. The true test as to whether such action 
 wall lie is whether the act accomplished after the conspiracy is formed 
 is itself actionable." Delz v. Winfree, 80 Tex. 400, 16 S. W. Ill, 
 26 Am. St. Rep. 755. An agreement to get trade into your own 
 hands, — that being the sole purpose, — though it harm others, is not 
 actionable. Steamship Co. v. McGregor, 21 O. B. Div. 544, 23 O. 
 B. Div. 598 (see note below); Huttley v. Simmons, [1898] 1 O. B. 
 Div. 181. The case cited by counsel (Morris Run Coal Co. v. Barclay 
 Coal Co., 68 Pa. 173, 8 Am. Rep. 159), was a combination of coal 
 companies to enhance prices to the public. So People v. Sheldon, 139 
 N. -Y. 251, 34 N. E. 785, 23 L. R. A. 221, 36 Am. St. Rep. 690, 
 and People v. Milk Exchange, 145 N. Y. 267, 39 N. E. 1062, 27 L. 
 R. A. 437, 45 Am. St. Rep. 609, involved right of a corporation to fix 
 prices of milk, and it was declared against public policy, sO' as to 
 forfeit charter. Jackson v. Stanfield, 137 Ind. 592, 36 N. E. 345, 
 37 N. E. 14, 23 L. R. A. 588, comes nearer the point, though it, too, 
 has in it the element of an agreement harmful to the public, and is 
 not a case where owners of property and business, as here, seek to 
 further their interests by inducing others to trade with them, and not 
 with competitors. There it w^as a pure agreement to compel others 
 not to deal with a party (a boycott), not, as in this instance, to compel 
 persons to deal with the defendants. State v. Standard Oil Co., 
 49 Ohio St. 137, 30 N. E. 279, 15 L. R. A. 145, 34 Am. St. Rep. 541, 
 was an agreement to control productit)n and prices against the pub- 
 lic interests, and was a proceeding by the state to withdraw a char- 
 ter, not an action by an individual on the theory of private injur)\ 
 I do not say that an individual damaged by a combination against 
 public policy and law cannot sue. I say he can. In Bohn Mfg. Co. 
 V. Hollis, 54 Minn. 223, 55 N. W. 1119, 21 L. R. A. 337. 40 Am. 
 St. Rep. 319, it is held that "any man, unless under contract obli- 
 gation, or unless his employment charges him with some public duty, 
 has right to refuse to work for or deal with any man or class of men, 
 as he sees fit ; and this right, which one man may exercise singly.
 
 1342 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 any number may exercise jointly." The wholesale merchants refuse 
 to deal with consumers in favor of retail dealers. Can we consumers 
 sue them? "He may refuse to deal with any man or class of men. 
 It is no crime for any number of persons, without any unlawful ob- 
 ject in view, to associate and agree that they will not work for or 
 deal with certain men, or classes of men, or work under a certain 
 price, or without certain conditions." Carew v. Rutherford, 106 Mass. 
 1, 14, 8 Am. Rep. 287. The great Chief Justice Shaw said that the 
 legality of the association depends upon its object, and whether it 
 be innocent or otherwise. Com. v. Hunt, 4 Mete. (Mass.) Ill, 38 
 Am. Dec. 346. The law allows men to combine to obtain a lawful 
 benefit to themselves. Greenh. Pub. Pol. 651. In Olive v. Van Pat- 
 ten, 7 Tex. Civ. App. 630, 25 S. W. 428, while condemning the par- 
 ticular act involved in that case, the court declared the right to com- 
 pete, though it injured the plaintiff. "This would be legitimate. 
 They could do this without responsibility for injurious consequence 
 to the plaintiff's business ; but they could not, without some legal 
 purpose directly serving their own business, maliciously induce oth- 
 ers not to trade with the plaintiff." Who can say that the acts at- 
 tributed to the defendants did not benefit them? Had they done these 
 acts to benefit strangers, from malice, it would be dift'erent. Now, 
 these companies were furthering their own interests in lawful com- 
 petition with others. If they possessed the lav^^ful right above stated, 
 what matters it that they did have the intent to cut down the business 
 of others, or that they did cut it down and injure others, though 
 they did this that they might themselves fatten? So far this first 
 count charges only the exercise by the defendants of a right of con- 
 stitutional liberty, accorded alike to all, — simply the right of self- 
 advancement in legitimate business, — self-preservation, we may say. 
 
 •1^ 'I' 'K 
 
 Second Count. It specifies as its pointed gravamen that the defend- 
 ants and Shattuck conspired to destroy the plant and business of the 
 plaintiff, and did by threats and unfair means oblige persons owning 
 and producing oil to ship it by other means of transportation than 
 those of the plaintiff, which persons had before been the customers 
 of the plaintiff; and that the West Virginia Oil Company and Shat- 
 tuck notified such customers not to ship any oil over the plaintiff's 
 line, and not to permit plaintiff to do any business in transporting 
 oil, so far as such customers could prevent it. While the first count 
 does, the second count does not, state that the defendants were en- 
 gaged in the business of buying, refining, and transporting oil as com- 
 petitors with the plaintiff, and thus present a justification for their 
 action, but simply charges that they interfered unlawfully and mali- 
 ciously with the plaintiff's business, with malign purpose to destroy it. 
 This, I think, is a legal cause of action. It is argued for the defend- 
 ants that it is not stated that the plaintiff had contracts with its 
 patrons with which the defendants interfered, and without right in-
 
 Ch. 2) TORTS THROUGH MALICE 1343 
 
 duced such patrons to break such contracts; and that, as such cus- 
 tomers had right to deal with whom they pleased, the defendants 
 could not commit an actionable wrong in inducing them to withdraw 
 their usual patronage from the plaintiff. But it does seem to me that, 
 though those customers had such right, it did not impart to the de- 
 fendants any right and immunity to step in between them and the 
 plaintiff', and induce those customers to withdraw their patronage, 
 not for the benefit of the defendants in the exercise of the right of 
 free competition, but in malice only to injure and destroy the plaintiff. 
 Cases above cited show this. In Delz v. Winfree, 80 Tex. 400, 16 S. 
 W. Ill, 26 Am. St. Rep. 755, it is held that while one has a right 
 to deal with whom he pleases, yet this right is limited to him, and 
 does not give another the right to influence him not to deal. It is 
 an officious act, hurtful to another, not done in legitimate competition, 
 without just excuse, done only to injure a fellow. It is a "boycott." 
 Cook, Trade & Labor Combin. § 9; Crump's Case, 84 Va. 927, 6 
 S. E. 620, 10 Am. St. Rep. 895; Beach, Monop. 311, 322. "In all 
 cases where a man has a temporal loss or damage by the wrong of 
 another, he may have an action on the case tO' be repaired in damages. 
 The intentional causing of such loss to another, without justifiable 
 cause, and with the malicious purpose to inflict it, is of itself a wrong." 
 Walker v. Cronin, 107 Mass. 555; Carew v. Rutherford, 106 Mass. 
 1, 8 Am. Rep. 287. "Every one has a right to enjoy the fruits of his 
 own enterprise, industry, skill, and credit. He has no right to be 
 protected against skill and competition, but he has a right to be free 
 from malicious and wanton interference, disturbance, and annoyance. 
 If disturbance and annoyance come as a result of competition, or the 
 execution of like rights by others, it is damnum absque injuria, un- 
 less some superior right by contract or otherwise is interfered with. 
 But if it comes from the mere wanton or malicious acts of others, 
 without the justification of competition, or the service of any inter- 
 est or lawful purpose, it then stands on a different footing," and the 
 wrong is actionable. Walker v. Cronin, supra ; 1 Eddy, Trade Comb. 
 § 480. 
 
 Counsel for defendants, in answer to the second count, take the 
 position that no contract is stated as subsisting between the plaintiff 
 and its patrons, and that the defendants are not charged with inducing 
 the violation of any contract, and that as these patrons of the plaintiff 
 had perfect right to withhold their patronage, and could not be sued 
 for so doing, the defendants did no legal wrong in inducing those pa- 
 trons to do so. I do not concur in this view. The authorities above 
 logically repel it. That there is no binding contract between employer 
 and employe, or between the trader and his usual customers, makes 
 no difl'ercnce. Presumably, the customers would have continued their 
 voluntary patronage- but for the wrongful intervention and influence 
 of the intervener. I think this contention is met by Chipley v. Atk'in- 
 son, 23 Fla. 206, 1 South. 934, 11 Am. St. Rep. 367; Benton v. Pratt,
 
 1344 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 2 Wend. (N. Y.) 385, 20 Am. Dec. 623 ; Rice v. Manley, 66 N. Y. 
 d,2, 23 Am. Rep. 30. 
 
 I understand the law to be as follows : One may without liability 
 induce the customers of another to withdraw their custom from him, 
 in the race of competition, in order that the former may himself get 
 the custom, there being no contract ; and it is no matter that such 
 person is injured, and it is no matter that the other party was moved 
 by express intent to injure him ; motive being immaterial where the 
 act is not unlawful. But where the act is not done under the right 
 of competition, or under the cover of friendly, neighborly counsel, 
 but wantonly or maliciously, with intent to injure another, it is ac- 
 tionable, if loss ensue. Nor is it material in the latter case that there 
 was no binding contract between the business man and his customers. 
 
 ^ ^ ^ 5li 
 
 DUNSHEE V. STANDARD OIL CO. et al. 
 
 (Supreme Court of Iowa, 1911. 152 Iowa, 618, 132 N. W. 371, 
 36 L. R. A. [N. S.] 263.) 
 
 This was an action at law against tlie Standard Oil Company and 
 others, to recover damages for an alleged unlawful interference with 
 the trade of plaintiff's assignor. The judgment below was for the 
 plaintiff, and the defendants appealed. There was an appeal by the 
 plaintiff also, but in the discussion of the case the defendants only 
 are spoken of as appellants. 
 
 Weaver, J. During all the period covered by this controversy, 
 tli€ Standard Oil Company has been a wholesale dealer in oil at the 
 city of Des Moines. In the year 1893 the Crystal Oil Company 
 (plaintiff's assignor), a local corporation, entered the retail trade in 
 oil, selling its goods from tank wagons hauled about the streets, and 
 delivered to its customers at their homes. Its business grew from 
 year to year until, in 1898, it employed from four to eight wagons, 
 covering the territory of the city very generally. During the period 
 mentioned, the Crystal Company purchased its supplies from the 
 defendant, but in 1898 it for some reason began to make purchases 
 from other wholesale dealers. Trouble at once ensued. The defend- 
 ant, which, up to that time, had abstained from the retail trade, pro- 
 ceeded to equip itself with tank wagons, teams, and drivers substan- 
 tially equal in number to those of the Crystal Company, and began 
 active solicitation for the patronage of the "ultimate consumer." At 
 the end of some months of strife, the Crystal Company abandoned 
 the contest and quit the business at a loss, claiming to have been driven 
 out by the tactics of its rival. The plaintiff, as assignee of said com- 
 
 50 A considorahle portion of the opinion is omitted. The case was reversed 
 and remanded, but apparently not exclusively for the reasons given above.
 
 Ch. 2) TORTS THROUGH MALICE 1345 
 
 pany, brings this action for damages, alleging a conspiracy between 
 the Standard Oil Company and its managers, agents, and employes 
 to ruin the business of said Crystal Company, and setting forth al- 
 leged wrongful acts done in pursuance of such conspiracy by which 
 said company's business was destroyed. * * * 
 
 1. Upon the issues of fact, we shall attempt no general review of 
 the testimony. For present purposes it is enough to say that the case 
 as made by the plaintiff tends strongly to show that defendant in- 
 stalled its scheme of retail distribution of oil in the city of Des Moines 
 not for the purpose of establishing a retail trade, but as a mere tem- 
 porary expedient to drive out the Crystal Cbmpany, and that, this 
 being accomplished and having the field to itself, it withdrew its 
 wagons and drivers, and gave its whole attention to its wholesale 
 business. In the prosecution of its business, the Crystal Company 
 was accustomed to supply its customers with cards to be displayed 
 from a window or other conspicuous place, indicating a desire to pur- 
 chase oil and inviting the distributor to stop and furnish the needed 
 supply. The evidence further tends to show that w^hen the Standard 
 entered the field its drivers were directed to give special attention to 
 the Crystal Company's "green cards," and that, at the outset at least, 
 there w^as little or no attempt to build up a retail trade with the 
 public generally, but to take aw^ay or destroy the trade of the Crystal 
 Company. Some of the witnesses say the Standard's drivers would 
 make it a point to get in advance of the Crystal's wagons, and wher- 
 ever a green card was displayed would stop and make the sale if pos- 
 sible, sometimes permitting the buyer to suppose that he or she was 
 dealing with a Crystal agent, and in other cases appropriating or 
 carr}'ing aw^ay the Crystal's cards. The Standard's hand in these ef- 
 forts was not disclosed to the public. The drivers were instructed 
 to do business ostensibly as independent dealers driving their own 
 wagons, none of which were marked wath the Standard's name, 
 though in fact the outfits were furnished and all expenses paid by it, 
 and the entire business was carried on under the secret management 
 of its agent, w^ho held frequent meetings with the drivers, urging 
 them to "go after the green cards," to "hustle the green cards," to 
 "go after the Crystal Oil Company," and at the same time cautioned 
 them to "keep quiet" about the real ownership and management. It 
 is further testified that when the Crystal Company had been elimi- 
 nated the manager in charge had a final meeting of the drivers at his 
 residence, where he said, "The fight is over and we have bought them 
 out." Plaintiff also shows that defendants' movement in the matter 
 followed closely upon the Crystal Company's exercise of its right to 
 purchase part of its oil from another dealer, and had refused to yield 
 to the Standard's insistence that it wanted "all or none" of the Crys- 
 tal's trade. In short, the record as a whole is sufficient to justify the 
 inference that the real end sought to be accomplished was to bar or 
 IIepb. Torts — 85
 
 1346 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 exclude from the retail trade one who would not give the Standard 
 Company, as a wholesale dealer, its exclusive patronage. The defend- 
 ants take issue upon the charge as thus preferred, but the jury could 
 properly find the facts to be as above outlined. 
 
 As we understand appellants' contention, it is that their conduct did 
 not transgress the bounds of legitimate competition, and that so long 
 as they kept within this limitation the question of the alleged malice 
 or motive inspiring their acts is wholly immaterial. Cases involving 
 the question thus suggested have frequently arisen, both in this coun- 
 try and in England, and there is much inharmony in the expressions 
 of judicial opinion thereon. Many authorities may be found holding 
 without apparent qualification or exception, that the law takes no ac- 
 count whatever of motives as constituting an element of civil wrong. 
 In other words, if a man do a thing which is otherwise lawful, the 
 fact that he does it maliciously and for the express purpose of in- 
 juring his neighbor affords the latter no remedy at law. Such is the 
 net eft'ect of Raycroft v. Tayntor, 68 Vt. 219, 35 Atl. 53, 33 L. R. A. 
 225, 54 Am. St. Rep. 882; Jenkins v. Fowler, 24 Pa. 308, and oth- 
 ers of that class. If this be the correct view of the law, a man may 
 excavate the earth near the boundary of his own land for the mere 
 purpose of seeing the foundation of the house of his neighbor slide 
 into the pit thus prepared for it; he may dig through his own soil 
 to the subterranean sources of his neighbor's spring or well and di- 
 vert the water into a ditch, where it will serve no purpose of use or 
 profit to himself or any one else ; if a banker or merchant, he may 
 punish the blacksmith who refuses to patronize him by temporarily 
 establishing a shop on the next lot and hiring men to shoe horses 
 without money and without price, until he has driven the offending 
 smith to come to his terms or to go out of business ; and if a farmer, 
 dependent upon a subterranean supply of water for the irrigation of 
 his soil or watering of his live stock, he may contrive to ruin his 
 competing neighbor by wasting the surplus not reasonably required 
 for his own use. The laws of competition in business are harsh 
 enough at best ; but if the rule here suggested were to be carried to 
 its logical and seemingly unavoidable extreme there is no practical 
 limit to the wrongs which may be justified upon the theory that "it 
 is business." Fortunately, we think, there has for many years been 
 a distinct and growing tendency of the courts to look beneath the let- 
 ter of the law and give some effect to its beneficent spirit, thereby 
 preventing the perversion of the rules intended for the protection of 
 human rights into engines of oppression and wrong. It is doubtless 
 true that under many circumstances an act is legally right and de- 
 fensible without regard to the motive which induces or characterizes 
 it; but there is abundance of authority for saying that this is by no 
 means the universal rule, and that an act which is legally right when 
 done without malice may become legally wrong when done malicious-
 
 Ch. 2) TORTS THROUGH MALICE 1347 
 
 ly, wantonlv, or without reasortable cause. * * * '^^ In Parkinson 
 V. Council,' 154 Cal. 581, 98 Pac. 1027, 21 h. R. A. (N. S.) 550, 16 
 Ann. Cas. 1165, the court, while reaching the opposite conclusion 
 generally, concedes it to be the law that: "Any injury to a lawful 
 business, whether the result of conspiracy or not, is prima facie ac- 
 tionable, but may be defended on the ground that it was merely a law- 
 ful effort of the defendants to promote their own welfare. To defeat 
 this plea of justification, the plaintiff may offer evidence that the 
 acts of the defendants were inspired by express malice, and were done 
 for the purpose of injuring the plaintiff, and not to benefit them- 
 selves." * * * 22 
 
 Coming to the case in hand, we may concede to the appellants the 
 undoubted right to establish a retail oil business in Des Moines, to 
 employ agents and drivers, and send them out over the same routes 
 and make sales to the same people with whom the Crystal Oil Com- 
 pany was dealing ; but in so doing it was bound to conduct such busi- 
 ness with reasonable regard and consideration for the equal right of 
 the Crystal Company to continue supplying oil to such of its custom- 
 ers as desired to remain with it. If, however, there was no real pur- 
 pose or desire to establish a competing business, but, under the guise 
 or pretense of competition, to accomplish a malicious purpose to ruin 
 the Crystal Company or drive it out of business, intending themselves 
 to retire therefrom when their end had been secured, then they can 
 claim no immunity under the rules of law which recognize and pro- 
 tect competition between dealers in the same line of business seeking 
 in good faith the patronage of the same people. And if, under such 
 pretense of competition, defendants maliciously interfered with the 
 business of the Crystal Oil Company in the manner charged, and 
 injury to the latter was thereby inflicted, a right of action exists for 
 the recovery of damages. It may be conceded that authorities are 
 not wanting to sustain the position that, even though the Standard 
 Oil Company had no intention of becoming a retail dealer in oil in 
 Des Moines, but entered the business of selling oil in this manner 
 temporarily, for the sole purpose of driving the Crystal Company 
 out, it is a matter into which the courts will not inquire ; but we think 
 such precedents are out of harmony with fundamental principles of 
 justice, which, as we have said, underlie the law, as well as out of 
 harmony with the later and better-considered cases. True the Stand- 
 ard Company, as a wholesale dealer, would violate no law in oft'ering 
 its product for sale at retail at half price in the territory supplied by 
 the Crystal Company, but such fact, if proven, would have a distinct 
 bearing upon the reasonableness of its methods employed in divert- 
 
 61 Judge Weaver here cited a number of authorities, and quoted from Vau 
 Horn V. \an Horn (1890) 52 N. J. Law, 284, 20 Atl. 485, 10 L. R. A. 184. 
 
 6 2 Huskie v. Griffin (1909) 75 N. H. 345, 74 Atl. 595, 27 D. R. A. (N. S.) 9CG, 
 139 Am. St. Rep. 718, given in text, ante. 12.">1, is here quoted at length, and 
 other cases are cited.
 
 1348 TORTS THROUGH ACTS OP CONDITIONAL LIABILITY (Part 3 
 
 ing trade from said company, as well as upon the charge that in in- 
 terfering between the Crystal Company and its customers the Stand- 
 ard Company was actuated by malice or spirit of wanton assault upon 
 the business of another, who had given it offense. * * * °^ No 
 man entering or carrying on business has any right to demand pro- 
 tection against fair competition, and if he cannot meet it and succeed 
 he must expect to fail, and for losses and injuries resulting the law 
 affords him no remedy. But if competition be "war," in which 
 "everything is fair," or if it be so regarded by those who participate 
 therein, certainly the law will not give that doctrine its sanction. It 
 follows of necessity that the trial court did not err in refusing to 
 direct a verdict in defendants' favor. 
 
 2. In ruling upon the defendants' motion for a directed verdict, the 
 trial court seems to have held or suggested that proof that defend- 
 ants, in pursuance of their alleged conspiracy, had interfered with 
 contracts made between the Crystal Company and its patrons would 
 give rise to a cause of action, and upon the final submission of the 
 cause it instructed the jury, as a matter of law, that the display of 
 the green cards were orders upon the Crystal Company for the de- 
 liver}' of oil, and that a malicious interference by the defendants 
 with the filling of such orders by the Crystal Company would be a 
 wrong for which an action would lie, if such interference was in pur- 
 suance of a conspiracy between the defendants to injure the business 
 of said company. Of this instruction both parties complain, and we 
 are inclined to the view that it cannot be sustained as broadly as 
 stated. 
 
 Referring, first, to plaintiff's exception, we think the proposition 
 last stated places a too narrow construction upon the rule of law here 
 applicable, in that it seems to require, not only the proof of a malicious 
 wrong and injury therefrom, but further proof that such wrong was 
 done in pursuance of a conspiracy previously formed. The gravamen 
 of the charge made is not the alleged conspiracy, but the wrong done 
 to the plaintiff's assignor, and if the wrong is sufficiently established 
 by the evidence a recovery may be had by the party injured, although 
 there be a failure of proof of the conspiracy. 
 
 The defendants' exception to the instruction is that the display of 
 the cards by the Crystal Company's customers cannot be said as a 
 matter of law, to constitute orders upon that company. The point 
 is well made. True, if there were some prior arrangement or agree- 
 ment with a customer by which the display of a card would evidence 
 a definite order, such act might be as effective as the sending of a 
 written request to the company for a stated quantity of oil at a defi- 
 nite price; but the record does not disclose such a state of facts, and 
 we think that, so far as the evidence goes, the display should be 
 
 08 The court here quotes from Tuttle v. Buck (1909) 107 Minn. 145, 119 N. W. 
 940, 22 L. R. A. (N. S.) 599, 131 Am. St. Rep. 446, 16 Ann. Cas. 807, given in 
 text, ante, p. 124G, us illustrating the principle.
 
 Ch. 2) TORTS THROUGH MALICE 1349 
 
 treated rather as a notice or invitation to the Crystal Company's driv- 
 ers, observance of which on their part would lead to a sale. 
 
 But we are not of the opinion that an actual contract must exist be- 
 fore wanton interference by a third party would amount to a legal 
 wrong. For illustration, if, instead of displaying cards, it was the 
 habit of the Crystal Company's customers to communicate their wants 
 by messenger or by telephone, and that defendant in the zeal of com- 
 petition should maliciously intercept the messenger and induce him 
 to reveal the nature of his errand, or should maliciously tap the tel- 
 ephone wire and with the advantage thus acquired should rush their 
 wagons to the front and deprive the company of the sales which it 
 would otherwise have made, we think no advocate of the widest al- 
 lowable license of unrestricted competition would contend that this 
 would not constitute a legal wrong, even though the conduct com- 
 plained of did not in fact amount to an interference with an existing 
 contract. For the same reason we think the defendants could not, 
 upon the plea of competition, justify any malicious interference with 
 existing contracts or orders of the Crystal Company, or interfere 
 witli or remove the cards posted as an invitation or notice to said com- 
 pany for the delivery of oil ; but we think the court cannot assume 
 to say, as a matter of law, that the display of such cards constituted 
 in itself either a contract or order. It may be open to some question 
 whether the error of the instruction was of a prejudicial character, 
 but, taking the record as a whole, we think it the safer conclusion to 
 solve that doubt in the appellants' favor. 
 
 3. The trial court correctly instructed the jury that, if plaintiff had 
 established his right to recover because of the wrongful and mali- 
 cious acts of the defendants as charged, he was entitled to a verdict 
 for the actual damages so sustained by the Crj^stal Company, to which 
 sum the jury w^ere at liberty to add exemplary damages. It also, 
 in another connection and in a general way, told the jury that, if found 
 entitled to recover, plaintiff should also be allowed interest on the 
 damages so sustained. The jury returned a general verdict for plain- 
 tiff for a sum stated in round numbers, but not indicating what part, 
 if any, of said amount was allowed as exemplary damages. Neither 
 does it indicate how much of the verdict is for interest, nor on what 
 part of it interest was computed. The point is made that interest is 
 not allowable upon exemplary damages, and as there are no data 
 or basis from which to determine what part of the verdict represents 
 damages of that kind there is no way in which the court can cure 
 or remove the prejudice. We see no way to avoid the force of this 
 objection. It may be that little or no allowance was made for exem- 
 plary damages; it may also be that no interest was computed; but 
 there is nothing by which to determine that fact. It may also be that 
 much the larger part of the verdict was for exemplary damages, and if 
 so, and interest was computed thereon (as the jury under the court's 
 charge may have felt authorized to do), the amount of the recovery
 
 1350 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 must have been very materially increased by that item. Interest as 
 such upon exemplary damages is not recoverable. 16 Am. & Eng. 
 Ency. Law (2d Ed.) 1031. The error is one which is not amenable to 
 correction in this court, except by an order for a new trial. * * * 
 
 For the reasons stated, the judgment of the district court is re- 
 versed, and the cause remanded for a new trial. 
 
 Reversed.^* 
 
 BOGGS V. DUNCAN-SCHELL FURNITURE CO. 
 
 (Supreme Court of Iowa, 1913. 163 Iowa, 106, 143 N. W. 4S2, L. R. A. 1915B, 
 
 1196.) 
 
 This action was brought against the Duncan-Schell Furniture Com- 
 pany to recover damages for an alleged injury to the plaintiff's busi- 
 ness. The plaintiff claimed that on February 1, 1910, he was the ex- 
 clusive agent for the sale of the New Improved White sewing machine 
 in Lee county and adjoining counties ; that the defendant Duncan- 
 Schell Furniture Company, prior to that time, had been selling the 
 same machines for profit, or as agents for the said sewing machine 
 company; that, after plaintiff had secured the sole and exclusive 
 agency for said machine, and while he was selling the same as agent, 
 the defendants, for the purpose of destroying plaintift"'s business, and 
 breaking him up financially, anl putting him out of business, maliciously 
 and willfully procured various old styles of said White sewing ma- 
 chine, and advertised the same at a price of $24.75, and published 
 that they were selling the latest improved drop head White sewing 
 machine for that price, the same kind of machine which the plain- 
 tiff was handling, and was selling for $45 ; that the selling price of 
 the sewing machines, and the price at which the defendants sold the 
 machine during the time the defendant company was the agent, was 
 $45; that defendants further advertised and published that they had 
 just received new White sewing machines, both rotary and vibrator, 
 which they would sell at $24.75 ; that they did not have any such 
 machines, and the statement that they had just received them was 
 untrue ; that the defendants had not received, at any time, any new 
 White sewing machines of the rotary type; that they further falsely 
 said that the machines just received by tliem were of the latest pattern 
 of said machine. The usual market price of the latest improved White 
 sewing machine was $45, and the defendants knew this at the time. 
 Plaintiff says all the foregoing acts were committed by the defendants 
 willfully and maliciously, and for the sole purpose of driving the plain- 
 tiff out of business in the sale of his machines, and for the purpose of 
 falsely putting the plaintiff in the light of a dishonest dealer, and 
 unworthy of patronage, in that he was attempting to sell a $25 ma- 
 
 6 4 Parts of the opinion are omitted.
 
 Ch. 2) TORTS THROUGH MALICE 1351 
 
 » 
 
 chine for $45. Defendants' answer to plaintiff's claim is a general 
 denial. Upon the issues tlnis tendered, the cause was tried to a jury, 
 and resulted in a verdict and judgment for the plaintiff. The defend- 
 ants appealed. 
 
 On the trial these facts appeared in the evidence: 
 
 The defendant Duncan inserted the following advertisments in one of the 
 daily papers published in Keokuk on or about March 2d: 
 
 "Duncan-Schell Furniture Co. March Sale Special. 
 "[Followed by a cut of a White Sewing Machine.] 
 "Automatic Drop Lift White Sewing Machine, both Vibratory and 
 Rotary, Latest Pattern $24.75" 
 
 And again: 
 
 "March Sale Prices on Sewing Machines. 
 "More White Machines just received. March Sale price on White 
 Sewing Machines, the latest patterns, both Vibratory and Rotary. .. .$24.75" 
 
 Again: 
 
 "March Sale on Special Sewing Machines. 
 
 "[With cut of White Machine in advertisement.] 
 "More White Sewing Machines just received. 
 "March Sale Special. 
 
 "White Sewing Machines in latest patterns, both vibratory and ro- 
 tary $24.75" 
 
 Again, with the same heading: 
 
 "The March Sale of Drop Head White Sewing Machines of the lat- 
 est pattern $25.00" 
 
 Again, with the same caption: 
 
 ".$25.00 buys the latest improved 6 Drawer Drop Head White Sewing Ma- 
 chine, with Automatic Lift and best set of attachments." 
 
 Again, the same caption, with cut of White Sewing Machine: 
 
 "The best machine at any price $25.00 
 
 "Your money back in 365 days if you are not convinced you have the 
 best on earth. White Sewing Machine with White Sewing Machine 
 Co.'s guarantee $25.00" 
 
 Then in September appeared the following advertisement: 
 
 "Duncan-Schell Furniture Co.'s Annual September Sale. 
 "$25.00 buys the latest improved 6 Drawer, Drop Head White Sewing Ma- 
 chine, with Automatic Lift and best set of attachments." 
 
 Then follows practically the same advertisement that appeared in March. 
 
 Some time before these advertisements appeared, and on or about Febru- 
 ary 1st, Duncan had said to the plaintiff: "Boggs, I understand that you are 
 going to take the agency for the White sewing machine. You know you have 
 no money, and you cannot get the machines, and. if you get them, I will run 
 you out of business with the same machine." After the advertisements came 
 out in March, Duncan said to the plaintiff: "Boggs, have we starved you out 
 yet? If you are not starved out yet, we will soon see that you are starved 
 out." 
 
 The defendants did not buy any White sewing machines of the White Sew- 
 ing Machine Company in 1910, or at any time after that. On an offer by the 
 White Sewing Machine Company in September, 1910, to buy, at the defend- 
 ants' own price, all the White machines which the defendants then had, Dun- 
 can declined to sell at all, saying that he wanted to keep them as souvenirs. 
 When told that he was hurting Boggs and the White Sewing Machine Com- 
 pany, he answered that he did not care for that; he advertised as he pleased. 
 
 The Duncan-Schell Furniture Company, prior to the time Boggs became 
 the sole a^'ent, had handled these White sewing machines, and sold them at 
 retail, and had done so for a number of years. Boggs was then in the serv-
 
 1352 TOUTS THROUGH ACTS OP CONDITIONAL LIABILITY (Part 3 
 
 ice of the defendant company as its asent in disposing of those machines. 
 When Boggs quit, the company had 12 White macluues on hand, eight in its 
 Keokulv store, and four in its Carthage store. The latter were brought to 
 Keokuk in March, 1910. The company had bought these machines outriglit 
 from the White Sewing Machine Company. They were not the latest improv- 
 ed pattern of the White machine, and did not have the attachments adver- 
 tised. The company had not just received thorn, as stated in the advertise- 
 ment, and they were not furnished with the improvements advertised. The 
 machines handled by the plaintiff were of that character and kind, and had 
 the latest improvements. 5 5 
 
 Gaynor, J., after stating the facts shown in the evidence : So it is 
 apparent that, upon the issues tendered by the plaintiff, there was evi- 
 dence upon which the jury might well find all the material facts, upon 
 which plaintiff bases his right to recover, established, both as to what 
 the defendants did, and as to the motive by which they were ac- 
 tuated in the doing. We do not understand that the defendants seri- 
 ously questioned this, but contend that, conceding the facts to be 
 established as alleged, and as established by the evidence, still the plain- 
 tiff has no right to recover : (1) Because the defendants had an abso- 
 lute right to publish the advertisements complained of, and their 
 motive in so doing cannot be questioned. (2) That, inasmuch as the 
 advertisements complained of made no attack upon the plaintiff', or 
 upon the machines kept for sale by the plaintiff, no legal right of 
 Boggs was assailed by the defendants, and whether they thought 
 good or ill of him when they published these articles is immaterial. 
 (3) That public policy forbids that the motive of established trader, 
 in publishing a legal advertisement of his own wares, shall be inquired 
 into or questioned. 
 
 Defendants' contention resolves itself into the proposition that ma- 
 licious motives in the doing of an act may make the act worse, where 
 the act is wrongful or unlawful, yet it cannot make that wrong or un- 
 lawful which is, in itself not unlawful or wrongful ; or, in other words, 
 that an action cannot be predicated upon the doing of an act which 
 does not, in itself, amount to a legal wrong, because the party doing 
 the act was moved to it by a wicked or malevolent heart. There- 
 fore the defendant contends that, as it had in its possession certain 
 White sewing machines, and had the same for sale, the fact that they 
 wrongfully or purposely deceived the public as to the character or the 
 quality of the articles for sale would not entitle one engaged in the 
 same business to complain, though the defendant, in the doing of the 
 act, had the purpose and intent to injure his competitor, and was, in 
 fact, actuated by malice towards his competitor, and though the com- 
 petitor lost his business by reason of the defendant's conduct. 
 
 This would seem like a simple proposition, and, abstractly consider- 
 ed, would appeal to any mind, possessing legal acumen, as sound. No 
 one could seriously question the proposition that, if one does that only 
 which he has a right to do under the law, and does it in a legal 
 
 65 The statement of facts is abridged, and part of the opinion is omitted.
 
 Ch. 2) TORTS THROUGH MALICE 1353 
 
 way, he ought not to be called to account for his conduct, no matter 
 what his motive might be, and there are many authorities to support 
 the abstract proposition tlxat a lawful act cannot be made the founda- 
 tion of an action because it was done with an evil motive, and some 
 cases have held that the motive with which an act is done is not an 
 element of a civil wrong. It may go to enhance the damages, but is 
 not an element of the wrong itself. 
 
 In Guethler v. Altman, 26 Ind. App. 587, 60 N. E. 355, 84 Am. St. 
 Rep. 313, an action in which a merchant sought to recover damages of 
 the members of the school board and a teacher in the school, on the 
 ground that tliey had willfully and maliciously prevented their stu- 
 dents, by threats and intimidations, from trading at plaintiff's store, 
 alleging that they had talked to the pupils, advising them to stay away 
 from plaintiff's place of business, and to purchase their supplies else- 
 where, and threatening that, if they did not do so, they would be sus- 
 pended, and that, as a result of the wrongful act of the defendants, 
 plaintiff was injured in his business, plaintiff alleged that, when high 
 school pupils started to enter his store, they would discover they were 
 being w^atched by the defendant, Crull, and they would turn away and 
 not enter ; that Crull wrote letters to the parents of the pupils contain- 
 ing threats that, if the pupils visited plaintift''s store, they would be 
 suspended, and that it w-as all done with the systematic purpose and 
 intent of injuring plaintiff in his business ; that Crull was following 
 the instructions of the other defendants in what he did ; and that 
 plaintiff was thereby injured in his business. The case was disposed 
 of on demurrer. In the opinion delivered by the Supreme Court, it 
 says: "It was not an unlawful act for Crull to advise or persuade 
 the pupils not to visit appellant's store. The fact that he acted mali- 
 ciously does not change the rule. The act which is not unlawful 
 in itself, and which violates no right, cannot be made actionable be- 
 cause of the motive which induced it. A malicious motive will not 
 make that wrong which, in its own essence, is lawful, and cites, in 
 support of tliat rule, Chatfield v. Wilson, 28 Vt. 49 ; Jenkins v. Fowl- 
 er, 24 Pa. 308 ; Frazier v. Brown, 12 Ohio St. 294 ; Phelps v. Nowlen, 
 72 N. Y. 39, 28 Am. Rep. 93 ; Cooley on Torts (2d Ed.) 832 ; Boyson 
 v. Thorn, 98 Cal. 578, 33 Pac. 492, 21 L. R. A. 233. Many other cases 
 might be cited in support of this abstract proposition. 
 
 These cases present, as strongly as any, the application of the ab- 
 stract rule contended for by appellant. They present the general rule 
 to concrete cases that, what a man has a lawful right to do, he may 
 do, no matter what his motive may be, no matter what injuries may 
 result from it, and yet not be called to answer for his conduct. 
 
 It is not so difficult to know what the law is as to know what is a 
 just and fair and right application of tlie law to a given state of facts. 
 As civilization advances, and the social and business conditions be- 
 come more involved and complicated, when even legitimate competi-
 
 1354 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 tion has become so strong that even honest men are tempted to force 
 their way beyond the Hmits of legitimate competition, the law — which 
 is a rule of civil conduct for the government of men in their social 
 and business relationships — oug'ht to keep pace with the new condi- 
 tions. The integrity of the social order, the stability of business itself, 
 requires, and the law should require, that every man conduct him- 
 self in full recognition of the fact that he is a member of that social 
 order; that he not only has rights, but has corresponding duties; 
 and that the performance of those duties is as binding upon him as a 
 member of the social order as are the rights given to him. Men, as 
 members of organized society, under the law, have the right to do cer- 
 tain things ; but that right is restricted and limited by the duty imposed 
 upon them not to exercise those rights wantonly and willfully to the 
 injury of another. In the exercise of the law-given right, the well- 
 being of the social order requires that each person should exercise 
 his right consistently with the fact tliat he is a member of the social 
 order out of which his rights grew. While a person has the right 
 to pursue his avocations and his business for his own pleasure and 
 profit, he has no right, directly or indirectly, to willfully and mali- 
 ciously injure another in his lawful business or occupation. Men have 
 the right to engage in lawful competition, and, though the competi- 
 tion may have the effect of driving another out of business, if the com- 
 petition is lawful, no action arises, though injury resulted from the 
 competition. Where there is lawful competition for gain, for su- 
 premacy in business, for the legitimate control of business, even though 
 the purpose and effect of the competition is to drive from business 
 competitors, yet, if the competition is laAvful and carried on in a law- 
 ful way, no action will lie. There is a difference between lawful com- 
 petition and simulated competition carried on with the sole purpose 
 and intent, not of profit and gain, but of maliciously injuring otliers 
 engaged in that particular business. 
 
 The case before us does not present a case of lawful competition, but 
 a case of simulated or pretended competition, designed and carried out 
 with malice for the purpose of injury to the plaintiff in his business. 
 At least the jury might have so found from the evidence. * * * 
 
 Every man has the legal right to advance himself before his fellows, 
 and to build up his own business enterprises, and to use all lawful 
 means to tlxat end, although in the path of his impetuous movements 
 he leaves strewn the victims of his greater industry, energy, skill, prow- 
 ess or foresight. But the law will not permit him to wear the garb 
 of honor only to destroy. The law will not permit him to masquerade 
 in the guise of honest competition solely for the purpose of injuring 
 his neighbor. The law will not permit him to simulate that which is 
 right for the sole purpose of protecting himself in the doing of that 
 which is palpably wrong. * * * 
 
 We find no error in the record, and the case is affirmed.
 
 Ch. 2) TORTS THROUGH MALICE 135i 
 
 III. In Labor Contests; Strikes, Lockouts, Boycotts 
 
 But the vital question remains whether a court of equity will, under 
 any circumstances, by injunction, prevent one individual from quit- 
 ting the personal service of another? An affirmative answer to this 
 question is not, we think, justified by any authority to which our at- 
 tention has been called or of which we are aware. It would be an in- 
 vasion of one's natural liberty to compel him to work for or to re- 
 main in the personal service of another. One who is placed under 
 such constraint is in a condition of involuntary servitude, — a condi- 
 tion which the supreme law of the land declares shall not exist with- 
 in the United States, or in any place subject to their jurisdiction. 
 Courts of equity have sometimes sought to sustain a contract for 
 services requiring special knowledge or peculiar skill, by enjoining 
 acts or conduct that would constitute a breach of such contract. To 
 this class belong the cases of singers, actors, or musicians, who after 
 agreeing, for a valuable consideration, to give their professional serv- 
 ice, at a named place and during a specified time, for the benefit of 
 certain parties, refuse to meet their engagement, and undertake to 
 appear during the same period for the benefit of other parties at an- 
 other place. Lumley v. Wagner, 1 De Gex, M. & G. 604, 617; Id., 
 5 De Gex & S. 485, 16 Jur. 871 ; Montague v. Flockton, L. R. 16 Eq. 
 189. While in such cases the singer, actor, or musician has been en- 
 joined from appearing during the period named at a place and for 
 parties different from those specified in his first engagement, it was 
 never supposed that the court could by injunction compel the affirma- 
 tive performance of the agreement to sing or to act or to play. In Powell 
 Duffryn Steam-Coal Co. v. Taff Vale Ry. Co., 9 Ch. App. 331, 335, 
 Lord Justice James observed that when what is required is not merely 
 to restrain a party from doing an act or wrong, but to oblige him to 
 do some continuous act involving labor and care, the court has never 
 found its way to do this by injunction. In the same case Lord Jus- 
 tice Mellish stated the principle still more broadly, perhaps too broad- 
 ly, when he said that a court can only order the doing of something 
 which has to be done once for all, so that the court can see to its be- 
 ing done. 
 
 The rule, we think, is without exception that equity will not compel 
 the actual, affirmative performance by an employe of merely personal 
 services, any more than it will compel an employer to retain in his 
 personal service one who, no matter for what cause, is not acceptable 
 to him for service of that character. The right of an employe en- 
 gaged to perform personal service to quit that service rests upon the 
 same basis as the right of his employer to discharge him from further 
 personal service. If the quitting in the one case or the discharging in 
 the other is in violation of the contract between the parties, tlie one in-
 
 1356 TOUTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 jured by the breach has his action for damages; and a court of equi- 
 ty will not, indirectly or negatively, by means of an injunction restrain- 
 ing the violation of the contract compel the affirmative performance 
 from day to day or the affirmative acceptance of merely personal serv- 
 ices. Relief of that character has always been regarded as impracti- 
 cable. 
 
 Mr. Justice Harlan, in Arthur v. Oakes (1894). ^« 
 
 In 1705 it was decided that, if wild ducks alight in the plaintiff's 
 decoy pond, the defendant, though he has the right to set up a rival 
 decoy pond on his own land and by offering greater inducements per- 
 suade the wild ducks to pass by the plaintift"s pond and come to his 
 own, and though he has the further right on his own land to shoot or 
 shoot at the wild ducks that are on or are passing over his own land, 
 even if the eft"ect is to scare away the wild ducks that are on the plain- 
 tiff's land, still he has no right to shoot off guns or explode rockets on 
 his own land, when the purpose and the only possible effect is to fright- 
 en the wild ducks from the plaintiff''s pond. Whether the law was so 
 determined on account of the difficulty of enforcing statutes to regulate 
 the movements of ducks, or because the competition was between mem- 
 bers of the same caste, it is needless to speculate ; but certain it is that 
 the court had no difficulty in deciding that an action would lie even 
 if the plaintiff had no dominant right over the defendant — would lie 
 simply because the defendant was abusing a coequal right of his own — 
 was doing a harm purely for the sake of the harm. 
 
 Through all these instances, and more can undoubtedly be found, one 
 broad principle runs — a principle broad enough to serve as a basis 
 for a classification of all litigation under one or the other of two 
 heads. Under one the plaintiff complains of a harm that flows from 
 the defendant's invasion of the plaintift''s absolute, exclusive, dominant 
 right ; under the other the plaintiff complains of a harm that flows 
 from the manner in which the defendant exercises his coequal, com- 
 petitive right. And the principle running through all the instances I 
 have given of the latter class is this : Wherever there is an antinomy 
 — a conflict between coequal and competitive rights — the one party 
 must suffer in silence the harm that is the direct and natural conse- 
 quence of the other's bona fide effort to benefit himself by the exercise 
 of his competitive right, but does not have to submit to the harm that 
 is attributable exclusively to malevolence. Take the spite fence, for 
 
 BO 03 Fed. 310, 317, 11 C. C. A. 209, 25 L. R. A. 414; Justice Harlan there 
 delivering the opinion of the Circuit Court of Appeals for the Seventh Cir- 
 cuit. On the point that the relief snsfiostofi was impracticable, specific ref- 
 erence was made to Toledo. A. A. & N. M. Ky. Co. v. I'ennsylvaiiia Co. (G. C. 
 189:3) 54 Fed. 730. 740. 19 L. II. A. 387, Taft, J., and authorities cited; Fry, 
 Spec. rerf. (3d Am. Ed.) §§ 87-91, and authorities cited.
 
 Ch. 2) TORTS THROUGH MALICE 1357 
 
 instance. The harm to you is one and the same whether your neighbor 
 Hmits your access to hght and air by means of a useless fence fifty 
 feet high or a useful house fifty feet high. If he builds tlie useful 
 house, he knows that your supply of light and air will be curtailed, 
 and in that sense he intends harm. But the hann you suffer is only 
 the inevitable harm that comes from his beneficial enjoyment of his 
 property. Organized society, government, has conferred upon you 
 and your neighbor coequal rights, limited and conditioned by coequal 
 obligations. If he builds the useless fence to punish you, I say he is 
 exercising neither a legal nor a moral right. If he thinks you guilty 
 of violating the laws of the land, organized society, government, has 
 not authorized him to act as prosecutor, judge, jury, and executioner. 
 If he thinks you guilty of violating the laws of God, he has not been 
 ordained to administer God's punishment. 
 
 The underlying principle above stated may be expressed in a slightly 
 different form : Wherever there is a conflict between coequal and 
 competitive rights, so exercise your right that you do not unnecessarily 
 interfere with your neighbor in the exercise of his eqvial, reciprocal 
 right. This was a universal maxim of the civil law. "Sic utere tuo 
 ut alienum non Isedas." It was transported sporadically by the old 
 English chancellors into the English common law. In our land, under 
 our pledges of manhood equality, no interpretation of our common 
 law should long endure that gives to any man under any circumstances 
 the right to inflict a wanton and malicious injury. 
 
 By "wanton and malicious" I do not mean the subjective state of 
 mind of the doer of the harm, as determined by some psychologist or 
 other; I mean the character of the act as determined objectively by 
 weighing the external facts and circumstances ; I mean motive as 
 judged by setting up ideally the average good neighbor as a standard, 
 just as in the law of negligence we set up ideally the average prudent 
 man as a standard. 
 
 I have been endeavoring to develop before you the idea that the 
 strike is not a question that stands by itself, to be solved according 
 to separate and unique principles, to be dealt with by processes that 
 are applicable to it alone. While at first blush it may seem a far cry 
 from wild ducks to strikes, yet on reflection I hope you will agree 
 that the contestants in the wald game cases, in the light and air cases, 
 in the spring and well cases, in the natural oil and gas cases, did not 
 have — any one of them as against his opponent — an absolute and ex- 
 clusive right; that the right of each was limited and qualified by the 
 right of the other ; and that their rights in the common source of sup- 
 ply — the common fund — were coexistent and coequal. And since, as 
 I have already stated, a strike, originating in a competition or strug- 
 gle over the division between wages and dividends, involves a com- 
 petition or struggle for control of the labor market — involves the ef- 
 fort of each side to draw to itself the common fund of available labor
 
 1358 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 — I hope you will also agree that the strike case is not unique, but is 
 merely one of a broad class. And if the principles of truth and jus- 
 tice that govern all other cases of the same kind have been properly 
 declared, then a means for measuring the rights of labor in its con- 
 flict with capital is to apply the saine principles to the strike case. 
 
 If we examine, for example, a supposititious strike of bricklayers 
 against their employing contractor, we find that they intend to deprive 
 him of their own labor and to prevent him from getting otlicr labor 
 to take their places. They knowingly inflict the harm as a means of 
 compelling him to grant their demands. This infliction of harm is un- 
 justifiable unless the harm comes from a truly competitive act. That 
 is, the demands must be pending. For if there were no demands pend- 
 ing, the infliction of harm would properly be charged to a desire to 
 harm for the sake of harm as the end. And further, the demands must 
 really and substantially relate to the terms and conditions of the brick- 
 layers' employment. For instance, a demand that the contractor some- 
 how or other compel the theaters to employ union musicians is out- 
 side of the direct and immediate interests of bricklayers as bricklayers; 
 and a strike merely to enforce such a demand — a sympatlietic strike 
 — is therefore unlawful. For the sympathetic strike, like the spite 
 fence, is not the beneficial use of a coequal right, but is the usurpation 
 of the power to punish. 
 
 This infliction of harm is unjustifiable unless the harm is only the 
 harm that naturally and directly flows from the good-faith exercise 
 of the competitive right. That is, the loss to his business that the 
 contractor suffers by reason of the striking bricklayers presenting their 
 side of the controversy to other bricklayers (actual or potential) so 
 that the other bricklayers freely and of their own judgment decline to 
 work for the contractor, must be suffered by him without complaint. 
 Therefore, persuasion and picketing limited to learning who the new 
 bricklayers are to whom to present their cause, are lawful ; and all 
 judgments to the contrary are wrong, as I believe. But the use of 
 force or intimidation to keep other bricklayers away from the contractor 
 against their will is unjustifiable, because it deprives the contractor 
 of his coequal right of access to a free labor market. And it must not 
 be forgotten that force and intimidation are just as unlawful when 
 exercised under the guise of persuasion or picketing. More unjustifia- 
 ble than the use of force and intimidation to keep new bricklayers 
 away is the combined assault of the striking bricklayers upon the 
 business of outsiders for the purpose of compelling them to cut off 
 all intercourse with the contractor. The strikers may deprive the con- 
 tractor of their own society and trade, if they choose, for that is in the 
 exercise of a coequal right; but concerted pressure by the strikers 
 to coerce members of society who are not directly concerned in the 
 pending controversy with the contractor to make raids in the rear — 
 the secondary boycott — is wrong not only because such action is not
 
 Ch. 2) TORTS THROUGH MALICE 1359 
 
 within the immediate field of competition, but because the direct, the 
 primary attack is upon society itself. 
 
 Without attempting to follow further this supposititious case of the 
 bricklayers, and without considering the many difficult complications 
 of fact that have arisen or may hereafter arise in labor cases, I venture 
 to express my belief that a just decree can always be framed by ap- 
 plying to the controversy the principle of coequal and coexistent rights 
 in a common fund as the means of solution. 
 
 Society — government — has a definite interest in seeing to it that 
 harm shall be kept at the minimum and that harm shall never be in- 
 flicted for the mere sake of the harm. But independently of the in- 
 terests of society, one set of rules should govern the action of both 
 contestants. Any fighter who wants to be fair would not ask for more. 
 If blows below the belt are prohibited on one side, they should be pro- 
 hibited to the other. If the sympathetic strike is a foul blow, a sym- 
 pathetic lock-out is equally foul. If a boycott under certain circum- 
 stances is held to be an attack in the rear and tlierefore prohibited, 
 under like circumstances a blacklist as an attack in tlie rear should 
 also be prohibited. In short, the same rights and the same restrictions 
 should be applied to both. And for the enforcement of these mutual 
 and reciprocal rights and restraints the courts of our land offer to 
 both parties equally, all the instrumentalities of law and of equity. 
 
 Judge Francis E. Baker, before Chicago Bar Ass'n (1911)."^ 
 
 The word "boycott" at the present time is no more obnoxious than 
 was the word ''strike" a quarter of a century ago. Then it was sought 
 through the courts of equity to invoke the injunctive writ to restrain 
 laboring men from organizing a peaceable strike. In some instances, 
 inferior federal courts granted injunctions, but they were never up- 
 held in the superior courts of the country. It is well settled now that a 
 man, or a number of men, may refuse to continue to work for their 
 employer, and they may combine for tlie purpose of organizing a 
 strike. They may advise others to quit work and join in the strike, so 
 long as no contractual rights are invaded, and they may advise others 
 not to engage their services to the employer against whom the strike 
 is directed. All this is within their constitutional rights, and is justi- 
 fied by their freedom to do those things which they think will better 
 their condition. It is no answer that it may not, in many instances, 
 accomplish that end, or that it invariably damages the employer and 
 interferes with his property rights. Of course, a man has a property 
 right in his business, so has a laboring man a property right equally 
 
 5 7 Judge Baker's paper has been printed in 5 111. I-/a\v Rev. 453, 462^65. 
 
 On the right to strike, historically considered, see Mr. W. A. Purrington's 
 article on "The Tubwomen v. The Brewers of London," 3 Columbia Law Re- 
 view 446 (1903). See, also, 24 Cyc. 820.
 
 1360 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 sacred in his labor ; and when these rights conflict, there must, of ne- 
 cessity, be injury to one or the other, or both. This is the result of 
 conflicting opinion and an exigency of the contractual relation, for 
 which the law furnishes no relief. 
 
 I am not unmindful of the rule of the common law that combinations 
 of two or more persons to injure the rights of others were held to be 
 illegal. But if the injury there referred to be held to include the com- 
 bination of two or more persons to withhold patronage from another, 
 then the rule of the common law has long since been overruled by the 
 courts of this country in dealing with strikes. I am aware that, at 
 common law, a combination of two or more persons to do an unlawful 
 thing, even if nothing is done in furtherance of the intent, is a con- 
 spiracy, — a substantive ofliense ; while in the case of an individual, 
 there can be no offense until there is some affimiative act tending to 
 carry the intent into effect. But that has no bearing where the unlaw- 
 ful intent is the same, and the offense has actually been committed, ei- 
 ther by the individual or by a number of persons combined together for 
 that purpose. 
 
 The old rule that one may do lawfully what, if done by two or more 
 persons in combination together, may become unlawful, has been 
 greatly modified in this country. It is a rule that gained currency at a 
 time when even the right of assembly was looked upon with disapprov- 
 al and suspicion. When this rule was first announced by the English 
 courts, a labor union would not have been tolerated. In one of the 
 early English cases, decided in 1721 (Tubwomen v. Brewers of Lon- 
 don, 3 Columbia L. Rev. 447), it was held to be a criminal conspiracy 
 for two or more persons to combine together and refuse to continue 
 to work for their employer unless he should comply with their demand 
 for higher wages. In other words, it was held to be a criminal con- 
 spiracy for workmen to join together and strike. It was conceded in 
 the same case that one person might abandon his employment if his 
 demand was not complied with, but it was held unlawful for two or 
 more persons to combine together for the purpose of demanding higher 
 wages. It was held that such a combination constituted a criminal 
 conspiracy. The same rule was applied as late as 1809 in New York, 
 in the case of Re Journeymen Cordwainers, reported in Yates, Sel. 
 Cas. 111. 
 
 The right of laboring men to organize into unions, and the right of 
 these unions to conduct peaceable strikes, is justified because of their 
 inability to compete single-handed in contests with their employers. In 
 this competition, any peaceable and lawful means may be resorted to, 
 and it is only when the means employed become unlawful that the 
 courts will interfere. The law recognizes the right of both labor and 
 capital to organize. The contest between employer and employe is one 
 which courts of equity should recognize as entitled to be fought out 
 upon the basis of equality; and the rule applied by the courts to the
 
 Ch. 2) TORTS THROUGH MALICE 1361 
 
 Strike is based, I think, upon that principle. The fundamental princi- 
 ple underlying this contest is, that the employer who employs one 
 thousand workmen is in possession of the same competitive power to 
 force those workmen to his terms as the one thousand workmen, by 
 the most powerful lawful organization, have to force him to a compli- 
 ance with their terms. The contest, therefore, opens with the one on 
 one side and a thousand on the other upon a substantial basis of equal- 
 ity. The employer has a property right in his business which he asks 
 the courts to protect, and which is entitled to protection. It consists, 
 among other things, in his right to employ whom he pleases. That right 
 extends to a discrimination against workmen of a certain class, or to 
 men belonging to labor organizations. He may use in his business such 
 types of machinery and appliances as he may think adapted to carry 
 out his work most successfully, so long as they are reasonably safe 
 and sanitary. The law protects him in these rights, and the courts 
 W'ill require others to respect them. On the other hand, the thousand 
 employes have a property right in their labor, which is equally sacred 
 with that of the employer. They have a right to engage their services 
 wherever and to wdiomsoever they can secure the largest rewards and 
 the fairest treatment. They have a right to cease working for their 
 employer, with due regard for their contractual relations, w^hen in their 
 judgment, they can better their condition by so doing. They have a 
 right to organize for this purpose, and they have a right to advise 
 otliers to join their organization, and the law will protect them in the 
 exercise of these rights equally with the rights of the employer. The 
 refusal of the employes to work for the employer may result in his 
 financial ruin, but the loss wall be no greater than the damage his re- 
 fusal to employ the one thousand laborers may w'ork in the aggregate 
 upon them and those dependent upon their labor. In this contest be- 
 tween employer and employed, it should be remembered that the one 
 who most strictly recognizes and observes the legal and equitable rights 
 of the other enters the struggle with tremendous odds in his favor. 
 
 Applying the same principle, I conceive it to be the privilege of one 
 man, or a number of men, to individually conclude not to patronize a 
 certain person or corporation. It is also the right of these men to agree 
 together, and to advise others, not to extend such patronage. That 
 advice may be given by direct communication or through the medium 
 of the press, so long as it is neither in the nature of coercion or a 
 threat. As long as the actions of this combination of individuals are 
 lawful, to this point it is not clear how they can become unlawful be- 
 cause of their subsequent acts directed against the same person or cor- 
 poration. To this point, there is no conspiracy, — no boycott. The 
 word "boycott" is here used as referring to what is usually understood 
 as "the secondary boycott." It is, therefore, only when the combina- 
 tion becomes a conspiracy to injure by threats and coercion the proper- 
 ty rights of another, that the power of the courts can be invoked. 
 Hepb.Tobts — 86
 
 1362 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 This point must be passed before the unlawful and unwarranted acts 
 which the courts will punish and restrain are committed. 
 
 Van Orsdel, J., in American Fed. of I^abor v. Buck's Stove and 
 Range Co. (1909) 33 App. D. C. 83.=« 
 
 PICKETT et al. v. WALSH et al. 
 
 (Supreme Judicial Court of Massacliusetts, 1906. 192 Mass. 572, 78 N. B. 753, 
 6 L. R. A. [N. S.] 1067, 116 Am, St, Rep, 272, 7 Ann, Cas, 638.) 
 
 Bill to enjoin Walsh and others from combining and conspiring 
 to interfere with the plaintiffs in pursuing their trade of brick and 
 stone pointers. The facts in dispute are thus stated by Loring, J, : 
 
 It appeal's from the evidence that the trade of brick and stone pointing is 
 a trade which, in the neighborhood of the city of Boston at any rate, has been 
 carried on to some extent as a separate trade for nearly if not quite 100 years. 
 It further appears that there are now some 45 men engaged in that trade in 
 the vicinity of that city. 
 
 The trade of a brick or stone pointer consists in going over a building (gen- 
 erally when it is first erected) to clean it and put a finish on the mortar of the 
 joints. Apparently in the city of Worcester, and to some extent in the city of 
 Boston, this work of pointing is done by bricklayers and stone masons. 
 
 The dispute which gave rise to the suit now before us had its origin in a set 
 of rules adopted in January, 1905, by the Bricklayers' and Masons' Interna- 
 tional Union of America, to which the two unions here in question were sub- 
 ordinate unions. This set of rules contained a provision that bricklaying ma- 
 sonry should consist (inter alia) of "all pointing and cleaning brick wall," and 
 that stone masonry should consist (inter alia) of the "cleaning and pointing of 
 stone work." The practical working of the principles of brick and stone ma- 
 sonry as defined in these rules was left to the subordinate unions. 
 
 By the constitution, by-laws and rules of order of the Bricklayers' Union No. 
 3, it is provided that members shall not accept employment "where a difliculty 
 exists in consequence of questions involving the rules which govern the union," 
 and that any member violating a law of the union shall on conviction "be 
 reprimanded, suspended or fined at the discretion of the union." « * * 
 
 There was an executive committee of the two unions. On July 28, 1905, this 
 executive committee voted "that beginning September 18, 1905, no member of 
 the bricklayers' and masons' unions of Boston and vicinity, will work on any 
 building where the contractor will not agree to have the pointing done by 
 bricklayers or masons," 
 
 This action of the executive committee was formally adopted by the Brick- 
 layers' Union No. 3, and seems to have been informally adopted by the Stone 
 Masons' Union No. 9. In pursuance thereof the following circular letter was 
 issued: "The bricklayers' and masons' unions of Boston and vicinity have 
 voted that no bricklayer or mason will work for any firm or contractor who 
 will not employ bricklayers or masons to do the pointing of brick, terra cotta 
 and stone masonry. This action will go into effect September 18, 1905." 
 
 In September, 1905, L. D. Willcutt & Son as general contractors wore erect- 
 ing (among other buildings) a stone building on the conier of Massachusetts 
 avenue and Boylston street in Boston. On the 18th day of that month, Mr. L, 
 D. Willcutt of that fii'm was notified that if he did not discharge the pointers 
 who were working for his finn in pointing that building all the masons and 
 bricklayers working for his firm on other buildings in Boston (all of whom 
 were union men) would strike. Thereupon he .susi)ended the work which was 
 being done by the pointers on the building on the corner of Massachusetts 
 avenue and Boylston street. This evidence was admitted to show that there 
 
 5 8 S. c. 32 K R. A. (N. S.) 748. On the origin of the word "boycott," see 
 State v. Glidden (1887) 55 Conn. 46, 70, 8 Atl. 890, 3 Am, St, Rep. 23.
 
 Ch. 2) TORTS THROUGH MALICE 1363 
 
 was a general scheme tliat where pointiug was given to any one besides union 
 bricklayers and stone masons there would be a strike. 
 
 On November 13, 1905, the defendant Walsh, the walking delegate of the 
 Stone Masons' Union No. 9, and the defendant Driseoll, the walking delegate 
 of the Bricklayers' Union No. 3, came to the Ford Building, for which the 
 corporation of L. P. Soule & Son Company were the general contractors, and 
 found that the cleaning and pointing of that building was being done under a 
 contract between the owners of the building and Robert II. Pickett, one of the 
 plaintiffs here. They then went to a brick building which was being erected 
 by the L. P. Soule & Son Company as contractors, namely, a cold storage ware- 
 house on Eastern avenue, where Driseoll notified the man that the pointing at 
 the Ford Building was being done by pointers. In consequence all the brick- 
 layers employed by the L. P. Soule & Son Company on the cold storage build- 
 ing, 50 in all, being union men. struck work on that or the next day. The 
 next day, November 14, Walsh went to a stone building which was being erect- 
 ed by the same corporation for the International Trust Company on the cor- 
 ner of Arch and Devonshire streets, and told the workmen there of the point- 
 ing on the Ford building ; whereupon all the stone masons working there, 5 or 
 6 in all, being union men, struck work. * * * 
 
 It appeared from the testimony of Parker F. Soule. an officer of the Tj. P. 
 Soule & Son Company, that it was cheaper to make a contract with pointers 
 for the work of pointing and cleaning than to employ stone masons and brick- 
 layers to do that work. It appeared from other evidence tliat the wages of n 
 bricklayer or stone mason were 55 cents an hour, while pointers are paid .$3.00 
 a day of eight hours, or STVo cents an hour. It further appeared from Mr. 
 Soule's testin]ony that he preferred to give the work to the pointers because 
 in cleaning a building acid has to be used, and. if the acid is used to excess, 
 stains are caused which in some instances it is imix)ssible to "get out" ; he 
 did not think that the bricklayers and stone masons were competent to use 
 these acids. He preferred al*o to give the work to the pointers because the 
 work which is done by the pointers usually is done by contract, in which case 
 the general contractor who employs the pointers is relieved from responsibility 
 on account of accidents which may occur because of the fact that tlie work is 
 done on a swinging stage, at times at great heights. It also appeared from 
 the evidence that L. P. Soule & Son Com]>any were not the only contractors 
 who thought they got better work at a smaller cost and with less liability by 
 making a contract with stone pointers for the doing of this work than by em- 
 ploying stone masons and bricklayers to do it. 
 
 All this was explained to the walking delegate of the Bricklayers' Union 
 here in question, at an interview between Mr. Soule and the walking delegate 
 of that union held within two days of the strike. It also appeared that at that 
 interview the delegate told I\Ir. Soule that while it had been against the rules 
 of the union that any member should take piece work, the taking of piece work 
 recently had been allowed ; whereui>on Mr. Soule told him that "if he had 
 any members of his union who were reliable men. whom we could have confi- 
 dence enough in to let a contract to, who would give prices as low, * * * 
 he would have no trouble in getting all the stone pointing tliere was going." No 
 offer to make a contract on these terms was made, and on the evidence it must 
 be assumed that there was nothing in this statement of the defendant Walsh. 
 
 On these facts, inter alia, a bill was filed, on November 20, 1905, 
 against the officers of the Unincorporated Bricklayers' Union No. 3, 
 the officers of the Unincorporated Stone Masons' Union No. 9, the 
 walking delegates of these unions respectively, Driseoll and Walsh, 
 and certain other persons. The purpose of the bill as stated in the 
 prayers for relief was to enjoin the defendants (1) "from combining 
 and conspiring in any way to compel L. P. Soule & Son Company, or 
 any other person, firm or corporation, by force, threats, intimidation 
 or coercion, to discharge the complainants in the bill of complaint, 
 * * * or to refrain from further employing them in and about
 
 1364 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 their trade and occupation"; (2) "from combining and conspiring to 
 compel the owners of the so-called Ford Building on Ashburton Place 
 in the city of Boston to break or decline to carry out tlieir said contract 
 with the complainant Robert H. Pickett" ; and (3) "from combining 
 and conspiring to interfere with the said complainants, or any of them, 
 in the practice of their trade and occupation, or to prevent them from 
 obtaining further employment thereat." 
 
 At the hearing, a final decree in favor of the plaintiff, on all those 
 grounds, was made in tlie superior court, and the defendants ap- 
 pealed. ^^ 
 
 LoRiNG, J., after stating the facts and the pleading. There seem 
 therefore to be three causes of action upheld by the decree."*' * :i= * 
 In the third cause, the plaintiffs sought to be protected against a strike 
 by the defendants in order to get tlie work of pointing for the mem- 
 bers of their unions. * * * 
 
 The question, so far as this the third cause of action goes, apart from 
 a question of fact which we will deal with later, is whether the defend- 
 ant unions have a right to strike for the purpose for which they struck ; 
 or, to put it more accurately and more narrowly, it is this: Is a union 
 of bricklayers and stone masons justified in striking to force a contrac- 
 tor to employ them by the day to do cleaning and pointing at higher 
 wages than pointers are paid, where the contractors wish to make 
 contracts with the pointers for such work to be done by the piece, be- 
 cause they think they get better work at less cost with no liability 
 for accidents, and where the pointers wish to make contracts for that 
 work with the contractors on terms satisfactory to them? 
 
 In other words, we have to deal with one of the great and pressing 
 questions growing out of the powerful combinations, sometimes of 
 capital and sometimes of labor, which have been instituted in recent 
 years where their actions come into conflict wnth the interests of indi- 
 viduals. The combination in the case at bar is a combination of work- 
 men, and the conflict is between a labor union on the one hand and sev- 
 eral unorganized laborers on the other hand. 
 
 It is only in recent years that these great and powerful combinations 
 have made their appearance, and the limits to which they may go in 
 enforcing their demands are far from being settled. 
 
 It is settled however that laborers have a right to organize as labor 
 unions to promote their welfare. Further, there is no question of 
 the general right of a labor union to strike. 
 
 On the other hand, it is settled that some strikes by a labor union 
 are illegal. It was held in Carew v. Rutherford, 106 Mass. 1, 8 Am. 
 Rep. 287, that a strike by the members of labor unions was illegal 
 when set on foot to force their employer to pay a fine imposed upon 
 
 6» The statement of the case is abridged. 
 
 «o Ouly so much of the opinion is given as relates to this third cause.
 
 Ch. 2) TORTS THROUGH MALICE 13G5 
 
 him by the union of which he was not a member, for not giving the 
 union all his work. * * * 
 
 We are brought to the question of the legality of the strike in the 
 case at bar, namely, a strike of bricklayers and masons to get the 
 work of pointing, or, to put it more accurately, a combination by the 
 defendants, who are bricklayers and masons, to refuse to lay bricks 
 and stone where the pointing of them is given to others. The defend- 
 ants in effect say we want the work of pointing the bricks and stone 
 laid by us, and you must give us all or none of the work. 
 
 The case is a case of competition between the defendant unions and 
 the individual plaintiffs for the work of pointing. The work of point- 
 ing for which these two sets of workmen are competing is work which 
 the contractors are obliged to have. One peculiarity of the case there- 
 fore is that the fight here is necessarily a triangular one. It neces- 
 sarily involves the two sets of competing workmen and the contractor, 
 and is not confined to the two parties to the contract, as is the case 
 where workmen strike to get better wages from their employer or oth- 
 er conditions which are better for them. In this respect the case is 
 like Mogul Steamship Co. v. McGregor, 23 Q. B. D. 598, on appeal 
 [1892] A. C. 25. 
 
 The right which the defendant unions claim to exercise in carry- 
 ing their point in the course of this competition is a trade advantage, 
 namely, that they have labor which the contractors want, or, if you 
 please, cannot get elsewhere; and they insist upon using this trade 
 advantage to get additional work, namely, the work of pointing the 
 bricks and stone which they lay. It is somewhat like the advantage 
 which the owner of back land has when he has bought the front lot. 
 He is not bound to sell them separately. To be sure the right of 
 an individual owner to sell both or none is not decisive of the right of 
 a labor union to combine to refuse to lay bricks or stone unless they 
 are given the job of pointing the bricks laid by them. There are 
 things which an individual can do which a combination of individuals 
 cannot do. But having regard to the right on which the defendants' 
 organization as a labor union rests, the correlative duty owed by it 
 to others, and the limitation of the defendants' rights coming from the 
 increased power of organization, we are of opinion that it was within 
 the rights of these unions to compete for the work of doing the point- 
 ing and, in the exercise of their right of competition, to refuse to lay 
 bricks and set stones unless they were given the work of pointing them 
 when laid. See in this connection "l^lant v. Woods, 176 Mass. 492, 
 502, 57 N. E. 1011, 51 L. R. A. 339, 79 Am. St. Rep. 330; Berry v. 
 Donovan, 188 Mass. 353, ZS?, 74 N. E. 603, 5 L. R. A. (N. S.) 899, 
 108 Am. St. Rep. 499, 3 Ann. Cas. 738. 
 
 The result to which that conclusion brings us in the case at bar 
 ought not to be passed by without consideration. 
 
 The result is harsh on the contractors, who prefer to give the work
 
 1366 TORTS THROUGH ACTS OF COXDITIOXAL LIABILITY (Part 3 
 
 to the pointers because (1) the pointers do it by contract (in which case 
 the contractors escape the liabiHty incident to the relation of employer 
 and employe) ; because (2) the contractors think that the pointers do 
 the work better, and if not well done the buildings may be permanently 
 injured by acid ; and finally (3) because they get from the pointers 
 better work with less liability at a smaller cost. Again, so far as the 
 pointers (who cannot lay brick or stone) are concerned, the result is 
 disastrous. But all tliat the labor unions have done is to say you must 
 employ us for all the work or none of it. They have not said that 
 if you employ the pointers you must pay us a fine, as they did in 
 Carew v. Rutherford, 106 Mass. 1, 8 Am. Rep. 287. They have not 
 undertaken to forbid the contractors employing pointers, as they did 
 in Plant v. Woods, 176 Mass. 492, 57 N. E. 1011, 51 L. R. A. 339, 79 
 Am. St. Rep. 330. So far as the labor unions are concerned the con- 
 tractors can employ pointers if they choose, but if the contractors 
 choose to give the work of pointing the bricks and stones to oth- 
 ers, the unions take the stand that the contractors will have to get some 
 one else to lay them. The effect of this in the case at bar appears 
 to be that the contractors are forced against their will to give the 
 work of pointing to the masons and bricklayers. But the fact that 
 the contractors are forced to do what they do not want to do is not 
 decisive of the legality of the labor union's acts. That is true wher- 
 ever a strike is successful. The contractors doubtless would have 
 liked it better if there had been no competition between the brick- 
 layers and masons on the one hand and the individual pointers on the 
 other hand. But there is competition. There being competition, they 
 prefer the course they have taken. They prefer to give all the work to 
 the unions rather than get nonunion men to lay bricks and stone to 
 be pointed by the plaintiffs. 
 
 Further, the effect of complying with the labor unions' demands 
 apparently will be the destruction of the plaintiff's business. But the 
 fact that the business of a plaintiff is destroyed by the acts of the 
 defendants done in pursuance of their right of competition is not 
 decisive of the illegality of them. It was well said by Hammond, J., 
 in Martell v. White, 185 Mass. 255, 260, 69 N. E. 1085, 1087, 64 L. R. 
 A. 260, 102 Am. St. Rep. 341, in regard to the right of a citizen 
 to pursue his business without interference by a combination to de- 
 stroy it : "Speaking generally, however, competition in business is per- 
 mitted, although frequently disastrous to those engaged in it. It is 
 always selfish, often sharp, and sometimes deadly." 
 
 We cannot say on the evidence that pointing is something foreign 
 to the work of a bricklayer or a stone mason, and therefore some- 
 tliing which a union of bricklayers and stone masons have no right 
 to compete for or insist upon and so to bring the case within Carew 
 v. Rutherford, 106 Mass. 1, 8 Am. Rep. 287; March v. Bricklayers' 
 and Plasterers' Union No. 1, 79 Conn. 7, 63 Atl. 291, 4 L. R. A. (i\. S.)
 
 Ch, 2) TORTS THROUGH MALICE 13G7 
 
 1198, 118 Am. St. Rep. 127, 6 Ann. Cas. 848; and Giblan v. National 
 Amalgamated Labourers' Union, [1903] 2 K. B. 600. On the con- 
 trary the evidence shows that in Boston the pointing is done to some 
 extent by bricklayers and stone masons, and there is no evidence that 
 the trade of pointing exists outside that city. 
 
 The protest of the defendant unions against the plaintiffs' being 
 allowed to organize a pointers' union is not an act of oppression.*^ 
 It is not like the refusal of the union in Quinn v. Leathern, [1901] A. 
 C. 495, to work with the nonunion men or to admit the nonunion 
 men to their union. The defendants' unions are not shown to be un- 
 willing to admit the plaintiffs to membership if they are qualified as 
 bricklayers or stone masons. But the difficulty is that the plaintiffs are 
 not so qualified. They are not bricklayers or masons. The unions 
 have a right to determine what kind of workmen shall compose the 
 union, and to insist that pointing shall not be a separate trade so far 
 as union work is concerned. They have not undertaken to say that the 
 contractors shall not treat the two trades as distinct. What they in- 
 sist upon is that if the contractors employ them they shall employ them 
 to do both kinds of work. 
 
 The application of the right of the defendant unions, who are com- 
 posed of bricklayers and stone masons, to compete with the individ- 
 ual plaintiff's, who can do nothing but pointing (as we have said), is 
 in the case at bar disastrous to the pointers and hard on the contrac- 
 tors. But this is not the first case where the exercise of the right of 
 competition ends in such a result. The case at bar is an instance 
 w^here the evils which are or may be incident to competition bear verj- 
 harshly on those interested but in spite of such evils competition is 
 necessary to the welfare of the community. * * * 
 
 TEMPERTON v. RUSSELL et al. 
 
 (Court of Appeal. [1893] 1 Q. B. 715.) 
 [This case is given in the text, ante p. 1274.*^-] 
 
 61 It appeared from the evidence that the brick and stone pointers of 
 Boston had applie<i to the Building Trades Council for a charter, that the de- 
 fendant unions had protested, and that the requested charter had been denied. 
 
 6 2 On the question whether Temperton v. Russell "denies to the laborer a 
 right which is allowed to the trader," see Professor Jeremiah Smith, "Crucial 
 Issues in Labor Litigation," 20 Harv. Law Rev. 429, 443, 444 (1907).
 
 1368 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 PLANT et al. v. WOODS et al. 
 
 (Supreme Judicial Court of IMassaehusetts, 1000. 176 Mass. 492, 57 N. E. 1011, 
 51 L. R. A. 339, 79 Am. St. Rep. 330.) 
 
 Bill in equity by the officers and members of a labor union to re- 
 strain the officers and members of another labor union from any acts 
 or the use of any methods tending to prevent the members of the 
 plaintiff association from securing employment or continuing in tlieir 
 employment. From a decree for the plaintiffs tlie defendants appeal. 
 
 Hammond, J. This case arises out of a contest for supremacy be- 
 tween two labor unions of the same craft, having substantially the same 
 constitution and by-laws. The chief difference between them is that 
 the plaintiff union is affiliated with a national organization having its 
 headquarters in Lafayette, in the state of Indiana, while the defend- 
 ant union is affiliated with a similar organization having its headquar- 
 ters in Baltimore, in the state of Maryland. The plaintiff union was 
 composed of workmen who, in 1897, withdrew from the defendant 
 union. There does not appear to be anything illegal in the object of 
 either union, as expressed in its constitution and by-laws. The defend- 
 ant union is also represented by delegates in the Central Labor Union, 
 which is an organization composed of five delegates from each trades 
 union in the city of Springfield, and had in its constitution a provi- 
 sion for levying a boycott upon a complaint made by any union. The 
 case is before us upon the appeal of the defendants from a final 
 decree in favor of the plaintiffs, based upon the findings stated in the 
 report of the master. 
 
 The contest became active early in the fall of 1898. In September 
 of that year the members of tlie defendant union declared "all painters 
 not affiliated with the Baltimore headquarters to be nonunion men," 
 and voted "to notify bosses" of that declaration. The manifest ob- 
 ject of the defendants was to have all the members of the craft sub- 
 jected to the rules and discipline of their particular union, in order 
 that they might have better control over the whole business, and to 
 that end they combined and conspired to get the plaintiffs, and each 
 of them, to join the defendant association, peaceably, if possible, but 
 by threat and intimidation if necessary. Accordingly, on October 7th, 
 they voted that, "If our demands are not complied with, all men work- 
 ing in shops where Lafayette people are employed refuse to go to 
 work." The plaintiffs resisting whatever persuasive measures, if any, 
 were used by the defendants, the latter proceeded to carry out their 
 plan in the manner fully set forth in the master's report. Without re- 
 hearsing the circumstances in detail, it is sufficient to say here that the 
 general method of operations was substantially as follows : 
 
 A duly authorized agent of the defendants would visit a shop where 
 one or niore of the plaintiffs were at work, and inform the employer 
 of the action of the defendant union with reference to tlie plaintiffs.
 
 Ch. 2) TORTS THROUGH MALICE 13G9 
 
 and ask him to induce such of the plaintiffs as were in his employ 
 to sign applications for reinstatement in tlie defendant union. As to 
 the general nature of these interviews the master finds that the de- 
 fendants have been courteous in manner, have made no threats of per- 
 sonal violence, have referred to the plaintiffs as nonunion men, but 
 have not otherwise represented them as men lacking good standing 
 in their craft; that they have not asked that the Lafayette men be 
 discharged, and in some cases have expressly stated that they did not 
 wish to have them discharged, but only that they sign the blanks for 
 reinstatement in the defendant union. The master, however, further 
 finds, from all the circumstances under which those requests .were 
 made, that the defendants intended that employers of Lafayette men 
 should fear trouble in their business if they continued to employ such 
 men, and that employers to whom these requests were made were 
 justified in believing that a failure on the part of their employes who 
 were Lafayette men to sign such reinstatement blanks, and a failure 
 on the part of the employers to discharge them for not doing so, 
 would lead to trouble in the business of the employers in the nature 
 of strikes or a boycott; and the employers to whom these requests 
 were made did believe that such results would follow, and did suggest 
 their belief to the defendants, and the defendants did not deny that 
 such results might occur ; that the strikes which did occur appear to 
 have been steps taken by the defendants to obtain the discharge of 
 such employes as were Lafayette men who declined to sign application 
 blanks for reinstatement; that these defendants did not in all cases 
 threaten a boycott of the employers' business, but did threaten that the 
 place of business of at least one such employer would be left off from 
 a so-called "fair list" to be published by the Baltimore union. The 
 master also found that, from all the evidence presented, the object 
 which the Baltimore men and the defendant association sought to ac- 
 complish in all the acts which were testified to was to compel the mem- 
 bers of the Lafayette union to join tlie Baltimore union, and as a 
 means to this end they caused strikes to be instituted in the shops 
 where strikes would seriously interfere with the business of the shops, 
 and in all other shops they made such representations as would lead 
 the proprietors thereof to expect trouble in their business. 
 
 We have, therefore, a case where the defendants have conspired 
 to compel the members of the plaintiff union to join the defendant 
 union, and, to carry out their purpose, have resolved upon such coercion 
 and intimidation as naturally may be caused by threats of loss of 
 property by strikes and boycotts, to induce the employers either to get 
 the plaintiffs to ask for reinstatement in the defendant union, or, that 
 failing, then to discharge them. It matters not that this request to 
 discharge has not been expressly made. There can be no doubt, upon 
 the findings of the master and the facts stated in his report, that the 
 compulsory discharge of the plaintiffs in case of noncompliance with 
 the demands of the defendant union is one of the prominent features
 
 1370 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (i'art 3 
 
 of the plan agreed upon. It is well to see what is the meaning of this 
 threat to strike, when taken in connection with the intimation that the 
 employer may "expect trouble in his business." It means more than 
 that the strikers will cease to work. That is only the preliminary skir- 
 mish. It means that those who have ceased to work will by strong, 
 persistent and organized persuasion and social pressure of every de- 
 scription do all they can to prevent the employer from procuring work- 
 men to take tlieir places. It means much more. It means that, if 
 these peaceful measures fail, the employer may reasonably expect that 
 unlawful physical injur}^ may be done to his property; that attempts 
 in all the ways practiced by organized labor will be made to injure him 
 in his business, even to his ruin, if possible; and that by tlie use 
 of vile and opprobrious epithets and other annoying conduct, and actual 
 and threatened personal violence, attempts will be made to intimidate 
 those who enter or desire to enter his employ; and that whether or 
 not all this be done by the strikers or only by their sympathizers, or 
 with the open sanction and approval of the former, he will have no 
 help from them in his efforts to protect himself. However mild the 
 language or suave the manner in which the threat to strike is made 
 under such circumstances as are disclosed in this case, the employer 
 knows that he is in danger of passing through such an ordeal as that 
 above described, and those who make the threat know that as well as 
 he does. Even if the intent of the -strikers, so far as respects their 
 own conduct and influence, be to discountenance all actual or threat- 
 ened injury to person or property or business except that which is the 
 direct necessary result of the interruption of the work, and even if 
 their connection with the injurious and violent conduct of the turbu- 
 lent among them or of their sympathizers be not such as to make them 
 liable criminally, or even answerable civilly in damages to those who 
 suffer, still, with full knowledge of what is to be expected, they give 
 the signal, and in so doing must be held to avail themselves of the 
 degree of fear and dread which the knowledge of such consequences 
 will cause in the mind of those — whether their employer or fellow 
 workmen — against whom the strike is directed ; and the measure of 
 coercion and intimidation imposed upon those against whom the strike 
 is threatened or directed is not fully realized until all those probable 
 consequences are considered. Such is the nature of the threat, and 
 such the degree of coercion and intimidation involved in it. If the de- 
 fendants can lawfully perform the acts complained of in the city of 
 Springfield, they can pursue the plaintiffs all over the state in the same 
 manner, and compel them to abandon their trade, or bow to the be- 
 hests of their pursuers. 
 
 It is to be observed that this is not a case between the employer and 
 employed, or, to use a hackneyed expression, between capital and 
 labor, but between laborers all of the same craft, and each having the 
 same right as any one of the others to pursue his calling. In this as 
 in every other case of equal rights the right of each individual is to
 
 Ch. 2) TORTS THROUGH MALICE 1371 
 
 be exercised with due regard to the similar right of all others, and the 
 right of one be said to end where that of anotlier begins. The right 
 involved is the right to dispose of one's labor with full freedom. This 
 is a legal right, and it is entitled to legal protection. Sir William Erie, 
 in his book on Trades Unions (page 12), has stated this in the follow- 
 ing language, which has been several times quoted with approval by 
 judges in England : "Every person has a right, under the law, as be- 
 tween himself and his fellow subjects, to full freedom in disposing of 
 his own labor or his own capital according to his own will. It fol- 
 lows that every other person is subject to the correlative duty arising 
 therefrom, and is prohibited from any obstruction to the fullest ex- 
 ercise of this right which can be made compatible with the exercise 
 of similar rights by others. Every act causing an obstruction to an- 
 other in the exercise of the right comprised within this description, 
 done not in the exercise of the actor's own right, but for the purpose 
 of obstruction, would, if damage should be caused thereby to the party 
 obstructed, be a violation of this prohibition." The same rule is stated 
 with care and discrimination by Wells, J., in Walker v. Cronin, 107 
 Mass. 555 : ''Every one has a right to enjoy the fruits and advantages 
 of his own enterprise, industry, skill, and credit. He has no right to 
 be protected against competition, but he has a right to be free from 
 malicious and wanton interference, disturbance, or annoyance. If 
 disturbance or loss come as the result of competition, or the exercise 
 of like rights by others, it is damnum absque injuria, unless some su- 
 perior right by contract, or otherwise, is interfered with. But if it 
 come from the merely wanton or malicious acts of others, witliout the 
 justification of competition, or the service of any interest or lawful 
 purpose, it then stands upon a different footing." In this case the 
 acts complained of v/ere calculated to cause damage to the plaintiffs, 
 and did actually cause such damage ; and they were intentionally done 
 for that purpose. Unless, therefore, there was justifiable cause, the 
 acts were malicious and unlawful. Walker v. Cronin, ubi supra ; 
 Carew v. Rutherford, 106 Mass. 1, 8 Am. Rep. 287, and cases cited 
 therein. 
 
 The defendants contend that they have done nothing unlawful, and 
 in support of that contention they say that a person may work for 
 whom he pleases, and, in the absence of any contract to the contrary, 
 may cease to work when he pleases, and for any reason whatever, 
 whether the same be good or bad ; that he may give notice of his in- 
 tention in advance, with or without stating the reason ; that what one 
 man may do several men acting in concert may do, and may agree 
 beforehand that they will do, and may give notice of the agreement; 
 and that all this may be lawfully done, notwithstanding such con- 
 certed action may, by reason of the consequent interruption of the 
 work, result in great loss to the employer and his other employes, and 
 that such a result was intended. In a general sense, and without ref- 
 erence to exceptions arising out of conflicting public and private in-
 
 1372 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 terests, all this may be true. It is said also that, where one has the 
 lawful right to do a thing, the motive by which he is actuated is im- 
 material. One fonn of this statement appears in the first headnote 
 in Allen v. Flood, as reported in (1898) App. Cas. 1, as follows: "An 
 act lawful in itself is not converted, by a bad or malicious motive, into 
 an unlawful act, so as to make the doer of the act liable to a civil ac- 
 tion." If the meaning of this and similar expressions is that, where 
 a person has the lawful right to do a thing irrespective of his motive, 
 his motive is immaterial, the proposition is a mere truism. If, how- 
 ever, the meaning is that where a person, if actuated by one kind 
 of a motive, has a lawful right to do a thing, the act is lawful when 
 done under any conceivable motive, or that an act lawful under one 
 set of circumstances is therefore lawful under ever}^ conceivable set 
 of circumstances, the proposition does not commend itself to us as 
 eitlier logically or legally accurate. In so far as a right is lawful it 
 it lawful, and in many cases the right is so far absolute as to be lawful 
 whatever may be the motive of the actor, — as, where one digs upon 
 his own land for water (Greenieaf v. Francis, 18 Pick. 117), or makes 
 a written lease of his land for the purpose of terminating a tenancy 
 at will (Groustra v. Bourges, 141 Mass. 7, 4 N. E. 623) ; but in many 
 cases the lawfulness of an act which causes damage to another may 
 depend upon whether the act is for justifiable cause, and this justifica- 
 tion may be found sometimes in the circumstances under which it is 
 done, irrespective of motive, sometimes in the motive alone, and some- 
 times in the circumstances and motive combined. This principle is of 
 very general application in criminal law, and also is illustrated in many 
 branches of the civil law, as in cases of libel, and of procuring a wife 
 to leave her husband. Tasker v. Stanley, 153 Mass. 148, 26 N. E. 
 417, 10 L. R. A. 468, and cases therein cited. Indeed, the principle 
 is a prominent feature underlying the whole doctrine of privilege, 
 malice, and intent. See, on this, an instructive article in 8 Harv. Law 
 Rev. 1, where the subject is considered at some length. It is manifest 
 that not much progress is made by such general statements as those 
 quoted above from Allen v. Flood, whatever may be their meaning. 
 
 Still standing for solution is the question, under what circumstances, 
 including the motive of the actor, is the act complained of lawful, and 
 to what extent? In cases somewhat akin to the one at bar this court 
 has had occasion to consider the question how far acts manifestly 
 coercive and ""intimidating in their nature, which cause damage and 
 injury to the business or property of another, and are done with in- 
 tent to cause such injury, and partly in reliance upon such coercion, 
 are justifiable. In Bowen v. Matheson, 14 Allen, 499, it was held to 
 be lawful for persons engaged in the business of shipping seamen to 
 combine together into a society for the purpose of competing with 
 other persons engaged in the same business, and it was held lawful 
 for them, in pursuance of that purpose, to take men out of a ship 
 if men shipped by a nonmcmber were in that ship, to refuse to furnish
 
 Ch. 2) TORTS THROUGH MALICE 1373 
 
 seamen through a iionmember, to notify the pubhc that they had com- 
 bined against nonmembers and had "laid the plaintiff on the shelf," 
 to notify the plaintiff's customers and friends that the plaintiff could 
 not ship seamen for them, and to interfere in all these ways with the 
 business of the plaintiff" as a shipping agent, and compel him to aban- 
 don the same. The justification for these acts so injurious to the 
 business of the plaintiff, and so intimidating in their nature, is to be 
 found in the law of competition. No legal right of the plaintiff was 
 infringed upon, and, as stated by Chapman, J., in giving the opinion 
 of the court (page 503), "if the effect of these acts was to destroy the 
 business of shipping masters who are not members of the association, 
 it is such a result as, in the competition of business, often follows 
 from a course of proceeding that the law permits." The primary 
 object of the defendants was to build up their own business, and this 
 they might lawfully do to tlie extent disclosed in that case, even to 
 the injury of their rivals. Similar decisions have been made in other 
 courts where acts somewhat coercive in their nature and eft'ect have 
 been held justifiable under tlie law of competition. Steamship Co. v. 
 McGregor (1892) App. Cas. 25; Manufacturing Co. v. Hollis, 54 
 Minn. 223, 55 N. W. 1119, 21 L. R. A. 337, 40 Am. St. Rep. 319; 
 IMacauley v. Tierney, 19 R. I. 255, 33 Atl. 1, 37 L. R. A. 455, 61 Am. 
 St. Rep. 770. 
 
 On the other hand, it w^as held in Carew v. Rutherford, 106 Mass. 
 1, 8 Am. Rep. 287, that a conspiracy against a mechanic — who is un- 
 der the necessity of employing workmen in order to carry on his busi- 
 ness — to obtain a sum of money from him, which he is under no legal 
 obligation to pay, by inducing his workmen to leave him, or by deter- 
 ring others from entering into his employ, or by threatening to do this, 
 so that he is induced to pay the money demanded under a reasonable 
 apprehension tliat he cannot carry on his business without yielding 
 to the demands, is illegal, if not criminal, conspiracy; that the acts 
 done under it are illegal, and that the money thus obtained may be 
 recovered back. Chapman, C. J., speaking for the court, says that 
 "there is no doubt that, if the parties under such circumstances suc- 
 ceed in injuring the business of the mechanic, they are liable to pay 
 all the damages done to him." That case bears a close analogy to the 
 one at bar. The acts there threatened were like those in this case, 
 and the purpose was, in substance, to force the plaintiff to give his 
 work to the defendants, and to extort from him a fine because he had 
 given some of his work to other persons. Without now indicating 
 to what extent workmen may combine, and in pursuance of an agree- 
 ment may act by means of strikes and boycotts to get tlie hours of 
 labor reduced, or their wages increased, or to procure from their em- 
 ployers any other concession directly and immediately affecting their 
 own interests, or to help themselves in competition with their fellow 
 workmen, we think this case must be governed by the principles laid 
 down in Carew v. Rutherford, ubi supra. The purpose of these de-
 
 1374 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part .'{ 
 
 fendants was to force the plaintiffs to join the defendant association, 
 and to that end they injured the plaintiffs in their business, and mo- 
 lested and disturbed them in their efforts to work at their trade. It 
 is true they committed no acts of personal violence, or of physical 
 injury to property, although they threatened to do something which 
 might reasonably be expected to lead to such results. In their threat, 
 however, there was plainly that which was coercive in its effect upon 
 the will. It is not necessary that the liberty of the body should be re- 
 strained. Restraint of the mind, provided it would be such as would 
 be likely to force a man against his will to grant the thing demanded, 
 and actually has that effect, is sufficient in cases like this. As stated 
 by Lord Bramwell in Reg. v. Druitt, 10 Cox, Cr. Cas. 592: "No 
 right of property or capital is so sacred or carefully guarded by the 
 law of the land as that of personal liberty. That liberty is not liberty 
 of the mind only ; it is also a liberty of the mind and will ; and the 
 liberty of a man's mind and will to say how he should bestow himself, 
 his means, his talent, and his industry is as much a subject of the law's 
 protection as that of his body." It was not the intention of the de- 
 fendants to give fairly to the employer the option to employ them or 
 the plaintiffs, but to compel the latter against their will to join the 
 association, and to that end to molest and interfere with them in their 
 efforts to procure work by acts and threats well calculated by their 
 coercive and intimidating nature to overcome the will. The defendants 
 might make such lawful rules as they please for the regulation of 
 their own conduct, but they had no right to force other persons to 
 join them. The necessity that the plaintiffs should join this associa- 
 tion is not so great, nor is its relation to the rights of the defendants, 
 as compared with the right of the plaintiffs to be free from molesta- 
 tion, such as to bring the acts of the defendant under the shelter of 
 the principles of trade competition. Such acts are without justifica- 
 tion, and therefore are malicious and unlawful, and the conspiracy 
 thus to force the plaintiffs was unlawful. Such conduct is intolerable, 
 and inconsistent with the spirit of our laws. The language used by 
 this court in Carew v. Rutherford, 106 Mass. 1, may be repeated here 
 with emphasis, as applicable to this case: "The facts alleged and 
 proved in this case are peculiarly offensive to the free principles which 
 prevail in this country, and, if such practices could enjoy impunity, 
 they would tend to establish a tyranny of irresponsible persons over 
 labor and mechanical business which would be extremely injurious to 
 both." See, in addition to the authorities above cited, Com. v. Hunt, 
 4 Mete. (Mass.) HI, 38 Am. Dec. 346; Sherry v. Perkins, 147 Mass. 
 214, 17 N. E. 307, 9 Am. St. Rep. 689; Vegelahn v. Guntner, 167 
 Mass. 97, 44 N. E. 1077, 35 L. R. A. 722, 57 Am. St. Rep. 443 ; St. 
 1894, c. 508, § 2; State v. Donaldson, 32 N. J. Law, 151, 90 Am. 
 Dec. 649; State v. Stewart, 59 Vt. 273, 9 Atl. 559, 59 Am. Rep. 710; 
 State V. Glidden, 55 Conn. 46, 8 Atl. 890, 3 Am. St. Rep. 23 ; State 
 V. Dyer, 67 Vt. 690, 32 Atl. 814; Lucke v. Assembly, 17 Md. 396, 26
 
 Ch. 2) TORTS THROUGH MALICE 1375 
 
 Atl. 505. 19 h. R. A. 408, 39 Am. St. Rep. 421. As the plaintiffs have 
 been injured by these acts, and there is reason to beheve that the de- 
 fendants contemplate further proceedings of the same kind, which will 
 be likely still more to injure the plaintiffs, equity lies to enjoin the de- 
 fendants. Vegelahn v. Guntner, ubi supra. 
 
 Some phases of the labor question have recently been discussed in 
 the very elaborately considered case of Allen v. Flood, ubi supra. 
 Whether or not the decision made therein is inconsistent with the 
 propositions upon which we base our decision in this case, we are not 
 disposed, in view of the circumstances under which that decision was 
 made, to follow it. We prefer the view expressed by the dissenting 
 judges, which view, it may be remarked, was entertained not only by 
 three of the nine lords who sat in the case, but also by the great ma- 
 jority of the common-law judges who had occasion officially to express 
 an opinion. There must be, therefore, a decree for the plaintiffs. 
 We think, however, that the clause, "or by causing or attempting to 
 cause any person to discriminate against any employer or members of 
 plaintiffs' said association (because he is such employer) in giving or 
 allowing the performance of contracts to or by such employer," is 
 too broad and indefinite, inasmuch as it might seem to include mere 
 lawful persuasion and other similar and peaceful acts : and for that 
 reason, and also because, so far as respects unlawful acts, it seems 
 to cover only such acts as are prohibited by other parts of the decree, 
 we think it should be omitted. Inasmuch as the association of the 
 defendants is not a corporation, an injunction cannot be issued against 
 it as such, but only against its members, their agents and servants. As 
 thus modified, in the opinion of the majority of the court, the decree 
 should stand. Decree accordingly. 
 
 Holmes, C. J. (dissenting). When a question has been decided by 
 the court, I think it proper, as a general rule, that a dissenting judge, 
 however strong his convictions may be, should thereafter accept the 
 law from the majority, and leave the remedy to the legislature, if that 
 body sees fit to interfere. If the decision in the present case simply 
 had relied upon Vegelahn v. Guntner, I should have hesitated to say 
 anything, although I might have stated that my personal opinion had 
 not been weakened by the substantial agreement with my views to 
 be found in the judgments of the majority of the house of lords in 
 Allen v. Flood. But, much to my satisfaction, if I may say so, the 
 court has seen fit to adopt the mode of approaching the question which 
 I believe to be the correct one, and to open an issue which otherwise 
 I might have thought closed. The difference between my Brethren 
 and me now seems to be a difference of degree, and the line of reason- 
 ing followed makes it proper for me to explain where the difference 
 lies. 
 
 I agree that the conduct of the defendants is actionable unless justi- 
 fied. May v. Wood, 172 Mass. 11, 14, 51 N. E. 191, and cases cited. 
 I agree that the presence or absence of justification may depend upon
 
 1376 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 tlie object of their conduct; that is, upon the motive with which they 
 acted. Vegelalin v. Guntner, 167 Mass. 92, 105, 106, 44 N. E. 1077, 
 35 L. R. A. 722, 57 Am. St. Rep. 443. I agree, for instance, that, 
 if a boycott or a strike is intended to override the jurisdiction of the 
 courts by the action of a private association, it may be illegal. Weston 
 V. Barnicoat, 175 Mass. 454, 56 N. E. 619, 49 L. R. A. 612. On the 
 other hand, I infer that a majority of my Brethren would admit that 
 a boycott or strike intended to raise wages directly might be lawful, 
 if it did not embrace in its scheme or intent violence, breach of con- 
 tract, or other conduct unlawful on grounds independent of the mere 
 fact that the action of the defendants was combined. A sensible work- 
 ingman would not contend that the courts should sanction a combina- 
 tion for the purpose of inflicting or threatening violence, or the in- 
 fraction of admitted rights. To come directly to the point, the issue is 
 narrowed to the question whether, assuming that some purposes would 
 be a justification, the purpose in this case of the threatened boycotts 
 and strikes was such as to justify the threats. That purpose was not 
 directly concerned with wages. It was one degree more remote. The 
 immediate object and motive was to strengthen the defendants' society 
 as a preliminary and means to enable it to make a better fight on 
 questions of wages or other matters of clashing interests. 
 
 I differ from my Brethren in thinking that the threats were as law- 
 ful for this preliminary purpose as for the final one to which strength- 
 ening the union was a means. I think that unity of organization is 
 necessary to make the contest of labor effectual, and that societies of 
 laborers lawfully may employ in their preparation the means which 
 they might use in the final contest. 
 
 Although this is not the place for extended economic discussion, and 
 although the law may not always reach ultimate economic conceptions, 
 I think it well to add that I cherish no illusions as to the meaning and 
 effect of strikes. While I think the strike a lawful instrument in the 
 universal struggle of life, I think it pure phantasy to suppose that 
 there is a body of capital of which labor, as a whole, secures a larger 
 share by that means. 
 
 The annual product, subject to an infinitesimal deduction for the 
 luxuries of the few, is directed to consumption by the multitude, and 
 is consumed by the multitude always. Organization and strikes may 
 get a larger share for the members of an organization, but, if they 
 do, they get it at the expense of the less organized and less powerful 
 portion of the laboring mass. They do not create something out of 
 nothing. 
 
 It is only by devesting our minds of questions of ownership and oth- 
 er machinery of distribution, and by looking solely at the question of 
 consumption, — asking ourselves what is the annual product, who con- 
 sumes it, and what changes would or could we make, — that we can 
 keep in the world of realities.
 
 Ch. 2) TORTS THROUGH MALICE 1377 
 
 But, subject to the qualifications which I have expressed, I think 
 it lawful for a body of workmen to try by combination to get more 
 than they now are getting, although they do it at the expense of their 
 fellows, and to that end to strengthen their union by the boycott and 
 the strike. 
 
 NATIONAL PROTECTIVE ASS'N OF STEAM FITTERS AND 
 HELPERS et al v. GUMMING et al. 
 
 (Court of Appeals of New York, 1902. 170 N. Y. 315, 63 N. E. 3G9, 5S U R. A. 
 
 135, 88 Am. St Rep. 648.) 
 
 This action was brought by the National Protective Association of 
 Steam Fitters and Helpers, a domestic corporation, and Gharles Mc- 
 Queed, a member of the corporation, suing for the benefit of himself 
 and his fellow members. The defendants were two individuals, Gum- 
 ming, the walking delegate of the Enterprise Association of Steam 
 Fitters, and Nugent, the walking delegate of the Progress Associa- 
 tion of Steam Fitters, tliese associations, as such, each being an un- 
 incorporated association of more than seven members, and certain 
 other persons. The prayer was to restrain the defendants, and each 
 of them, from preventing the employment of members of the plain- 
 tiff corporation, and from coercing or obtaining by command, threats, 
 strikes, or otherwise, the dismissal or discharge by any employer, con- 
 tractor, or owner, of members of this corporation, or the plaintiff Mc- 
 Queed, from their work, employment, or business. 
 
 On the issues raised by the denials of the several defendants, the 
 trial Justice, in stating the grounds upon which he proceeded, found 
 specifically as follows : 
 
 "That the defendants have entered into a combination which, in effect pre- 
 vents, and will continue to prevent, the plaintiff McQueed and the other mem- 
 bers of the plaintiff association from working at his or their trade in tlie 
 city of New York ; * * * that the defendant Gumming threatened to 
 cause a general strike against the plaintiff association and against tlie phiin- 
 tiff McQueed wherever he found them at work, and that he would not allow 
 them to work at any job in the city of New York, except some small jobs 
 where the men of the Enterprise Association were not employed, and that he 
 and the defendant Nugent threatened to drive the plaintiff association out of 
 existence; * * * that the defendants, Gumming and Nugent, while acting 
 in their capacity of walking delegates for their respective associations, and 
 members of the board of delegates, caused the plaintiff McQueed and other 
 members of the plaintiff association to be discharged by their employers from 
 various places of work upon buildings in the course of erection by [naming 
 three different employers who were erecting buildings at different places in the 
 boroughs of Brooklyn and Manhattan], by threatening the said employers that 
 if they did not discharge the members of the plaintiff association, and employ 
 the members of the Enterprise Progress Association in their stead, the said 
 walking delegates would cause a general strike of all men of other trades em- 
 ployed on said buildings, and that the defendant Gumming, as such walking 
 delegate, did cause strikes * * * in order to prevent tlie members of the 
 plaintiff association from continuing with the work they were doing at the 
 time the strike was ordered, and that the said employers, by reason of said 
 IlEPn. Torts — 87
 
 1378 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 threats and the acts of the defendants Cummiug and Nugent, discharged the 
 members of the plaintiff association, * * * a^j employed the members of 
 the Enterprise and Progress Associations in their stead ; * * * that the 
 threats made by the defendants, and the acts of said walking delegates in 
 causing the discharge of the members of the plaintiff association by means of 
 threats of a general strike of other working men, constituted an illegal com- 
 bination and conspiracy, injured the plaintiff association in its business, de- 
 prived its members of employment and an opportunity to labor, prevented, 
 them from earning their livelihood in their trade or business. * * *" 
 
 A .ludgmeut was directed and entered restraining the defendants from "pre- 
 venting the work, business, or employment of the plaintiff corporation, or any 
 of its members, in the city of New York or elsewhere, and from coercing or 
 obtaining, by command, threats, strikes, or otherwise, the dismissal or dis- 
 charge by any employer, contractor, or owner of the members of the plaintiff 
 corporation, or the plaintiff McQueed, or any or either of them, from their 
 work, employment, or business, or in any wise interfering with the lawful busi- 
 ness or work of the plaintiff corporation or of its members. But the defend- 
 ants are not, nor is any one of them, enjoined and restrained from refusing to 
 work with the plaintiff or any member of the plaintiff corporation." 
 
 The decision in the Special Term awarded to the plaintiffs sub- 
 stantially all the relief demanded in their complaint, and a judgment 
 was entered accordingly. Gumming and the Enterprise Association 
 and Nugent and the Progress Association appealed. In the Appellate 
 Division the judgment of the Special Term was reversed. ^^ The plain- 
 tiffs then appealed to the Court of Appeals.*'* 
 
 Parker, C. J. The order of the Appellate Division should be af- 
 firmed, on the ground that the facts found do not support the judg- 
 ment of the Special Term. * * * 
 
 If the organization notifies the employer that its members will not 
 work with nonmembers, and its real object is to benefit the organiza- 
 tion and secure employment for its members, it is lawful. If its sole 
 purpose be to prevent nonmembers working, then it is unlawful. I do 
 not assent to this proposition, although there is authority for it. It 
 seems to me illogical and little short of absurd to say that the everyday 
 acts of the business world, apparently within the domain of competi- 
 tion, may be either lawful or unlawful according to the motive of the 
 actor. If the motive be good, the act is lawful. If it be bad, the 
 act is unlawful. Within all the authorities upholding the principle 
 of competition, if the motive be to destroy another's business in or- 
 der to secure business for yourself, the motive is good, but, accord- 
 ing to a few recent authorities, if you do not need the business, or do 
 not wish it, then the motive is bad; and some court may say to a 
 jury, who are generally the triors of fact, that a given act of competi- 
 tion which destroyed A.'s business was legal if the act was prompt- 
 ed by a desire on the part of the defendant to secure to himself the 
 
 «3 See National Protective Ass'n of Steam Fitters v. Gumming (1900) 53 
 App. Div. 227, 65 N. Y. Supp. 946. 
 
 6 4 The statement of the case is taken partly from the report of the case in 
 the Appellate Division, and i>artly from the statement of the findings given in 
 the introductory portion of .Judge Vaun's opinion. Several passages are omit- 
 ted, as indicated, from the opinions given, and a short opinion by Judge Gray 
 is entirely omitted.
 
 Ch. 2) TORTS THROUGH MALICE 1370 
 
 benefit of it, but illegal if its purpose was to destroy A.'s business in 
 revenge for an insult given. But for the purpose of this discussion 
 I shall assume this proposition to be sound, for it is clear to me that, 
 applying that rule to the facts found, it will appear that the Appellate 
 Division order should be sustained. 
 
 While I shall consider every fact found by the learned trial judge, 
 I shall consider the findings in a different order, because it seems to me 
 the more logical order. He finds "that the defendants Gumming and 
 Nugent, while acting in their capacity of walking delegates for their 
 respective associations and members of the board of delegates, caused 
 the plaintiff McOueed and other members of the plaintiff association 
 to be discharged by their employers from various pieces o.f work upon 
 buildings in the course of erection, * * * ^y threatening the 
 * * * employers that if they did not discharge the members of the 
 plaintiff association, and employ the members of the Enterprise and 
 Progress Associations in their stead, the said walking delegates would 
 cause a general strike of all men oi other trades employed on said 
 buildings, and that the defendant Gumming, as such walking delegate, 
 did cause strikes * * * in order to prevent the members of the 
 plaintiff association from continuing with the work they were doing 
 at the time the strike was ordered, and that said employers, by reason 
 of said threats and the acts of the defendants Gumming and Nugent, 
 discharged the members of the plaintiff association, and employed 
 the members oi the Enterprise and Progress Associations in their 
 stead." Now there is not a fact stated in that finding which is not 
 lawful, within tlie rules which I have quoted supra. Those principles 
 concede the right of an association to strike in order to benefit its 
 members ; and one method of benefiting them is to secure them em- 
 ployment, — a method conceded to be within the right of an organiza- 
 tion to employ. There is no pretense that the defendant associations 
 or their walking delegates had any other motive than one which the 
 law justifies, — of attempting to benefit their members by securing their 
 employment. Nowhere throughout that finding will be found even a 
 hint that a strike was ordered, or a notification given of the intention 
 to order a strike, for the purpose of accomplishing any other result 
 than that of securing the discharge of the members of the plaintiff 
 association, and the substitution of members of the defendant associa- 
 tions in their place. Such a purpose is not illegal within the rules laid 
 down in the opinion of Judge Vann, nor within the authorities cited 
 therein. On the contrary, such a motive is conceded to be a legal one. 
 It is only where the sole purpose is to do injury to another, or the act 
 is prompted by malice, that it is insisted that the act becomes illegal. 
 No such motive is alleged in that finding. It is not hinted at. On the 
 contrary, the motive which always underlies competition is asserted 
 to have been the animating one. It is beyond the right and the power 
 of this court to import into that finding, in contradiction of another 
 finding or otherwise, the further finding that the motive which
 
 13S0 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 prompted the conduct of defendants was an unlawful one, prompted 
 by malice, and a desire to do injury to plaintiffs, without benefiting the 
 members of the defendant associations. I doubt if it would ever have 
 occurred to any one to claim that there was anything in that finding 
 importing a different motive from that specially alleged in the finding, 
 bad not the draftsman characterized the notice given to the employers 
 by the associatioiis of their intention to strike as "threats." The de- 
 fendant associations, as appears from the finding quoted, wanted to 
 put their men in the place of certain men at work who were nonmem- 
 bers, working for smaller pay, and they set about doing it in a per- 
 fectly lawful way. They determined that if it were necessary they 
 Vv'ould bear the burden and expense of a strike to accomplish that re- 
 sult, and in so determining they were clearly within their rights, as all 
 agree. They could have gone upon a strike without oft'ering any ex- 
 planation until the contractors should have come in distress to the of- 
 ficers of the associations, asking the reason for the strike. Then, aft- 
 er explanations, the nonmembers would have been discharged, and 
 the men of defendant associations sent back to work. Instead of tak- 
 ing that course, they chose to inform the contractors of their deter- 
 mination, and the reason for it. It is the giving of this information — 
 a simple notification of their determination, which it was right and 
 proper and reasonable to give — that has been characterized as 
 "threats" by the Special Term, and which has led to no inconsiderable 
 amount of misunderstanding since. But the sense in which the word 
 was employed by the court is of no consequence, for the defendant 
 associations had the absolute right to threaten to do that which they 
 had the right to do. Having the right to insist that plaintift"'s men be 
 discharged, and defendants' men put in their place, if the services 
 of the other members of the organization were to be retained, they 
 also had the right to threaten that none of their men would stay un- 
 less their members could have all the work there was to dot. 
 
 The findings further stated that the defendants Gumming and Nu- 
 gent were the walking delegates of the defendant associations, and 
 as such were members of the board of delegates of the building trades 
 in New York, and were therefore in control of the matters in their 
 respective trades. The trial court also found "that the defendant 
 Gumming threatened to cause a general strike against the 
 plaintiff association and against the plaintiff McQueed wher- 
 ever he found them at work, and that he would not allow them. 
 to work at any job in the city of New York, except some small 
 jobs where the men of the Enterprise Association were not employed, 
 and that he and the defendant Nugent threatened to drive the plain- 
 tiff association out of existence." Now, this finding should be read 
 in connection with and in the light of the other findings which I have 
 already read and commented on, and which show that the purpose of 
 the strike was to secure the employment of members of the defendant 
 associations in the places filled by the members of plaintiff's associa- 
 
 I
 
 Ch. 2) TORTS THROUGH MALICE 1381 
 
 tion, who were willing to work for smaller wages, — a perfectly proper 
 and legitimate motive, as we have seen. But if the otlier findings be 
 driven from the mind while considering this one, which the opinions 
 of the Appellate Division indicate was not justified by the evidence, it 
 will be found that it fairly means no more than that the defendant as- 
 sociations did not purpose to allow McQueed and the members of his 
 association to work upon any jobs where members of defendant associa- 
 tions were employed ; that they were perfectly willing to allow them to 
 have small jobs, fitted, perhaps, for men w^io were willing to work 
 for small wages, but that the larger jobs, where they could afford to 
 pay and would pay the rate of wages demanded by defendant as- 
 sociations, they intended to secure for their members alone, — a deter- 
 mination to which they had a perfect right to come, as is conceded 
 by the rules which I have quoted. Having reached that conclusion, de- 
 fendants notified McOueed, who had organized an association when he 
 failed to pass the defendants' examination, that they would prevent 
 him and the men of his association from working on a certain class 
 of jobs. They did not threaten to employ any illegal method to ac- 
 complish that result. They notified them of the purpose of the de- 
 fendants to secure this work for themselves, and to prevent McOueed 
 and his associates from getting it, and in doing that they but informed 
 them of their intention to do what they had a right tO' do; and, when 
 an man purposes to do something which he has the legal right to do, 
 there is no law which prevents him from telling another, who will be 
 affected by his act, of his intention. A man has a right, under the 
 law, to start a store, and to sell at such reduced prices that he is able 
 in a short time to drive the other storekeepers in his vicinity out of 
 business, when, having possession of the trade, he finds himself soon 
 able to recover the loss sustained while ruining the others. Such has 
 been the law for centuries. The reason, of course, is that the doctrine 
 has generally been accepted that free competition is worth more to 
 society than it costs, and that on this ground the infliction of damages 
 is privileged. Com. v. Hunt, 4 Mete. (Mass.) Ill, 134, 38 Am. Dec. 346. 
 Nor could this storekeeper be prevented from carrying out his scheme 
 because, instead of hiding his purpose, he openly declared to those 
 storekeepers that he intended to drive them out of business in order 
 that he might later profit thereby. Nor would it avail such storekeep- 
 ers, in the event of their bringing an action to restrain him from ac- 
 complishing their ruin by underselling them, to persuade the trial court 
 to characterize the notification as a "threat," for on review the an- 
 swer would be, "A man may threaten to do that which the law says 
 he may do, provided that, wathin the rules laid down in those cases, his 
 motive is to help himself." A labor organization is endowed with 
 precisely the same legal right as is an individual to threaten to do that 
 which it may lawfully do. 
 
 Having finished the discussion of the facts, I reiterate that, within 
 the rules of law I have quoted, it must appear, in order to make out
 
 1382 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 a cause of action against these defendants, that in what they did they 
 were actuated by improper motives, — by a mahcious desire to injure 
 the plaintiffs. There is no such finding of fact, and there is no right 
 in this court to infer it if it would, and, from the other facts found, it 
 is plain that it should not if it could. 
 
 The findings conclude with a sentence which commences as fol- 
 lows : "I find that the threats made by the defendants, and the acts 
 of the said walking delegates in causing the discharge of the mem- 
 bers of the plaintiff association by means of threats of a general strike 
 of other workmen, constituted an illegal combination and conspiracy." 
 That is not a finding of fact, but a conclusion of law, that the trial 
 court erroneously, as I think, attempted to draw from the facts found, 
 which I have already discussed, and which clearly, in my judgment, 
 require this court to hold that the defendants acted within their legal 
 rights. 
 
 In the last analysis of the findings, therefore, it appears that they 
 declare that members of the organizations refused to work any longer, 
 as they lawfully might ; that they threatened to strike, which was also 
 v.'ithin their lawful right, but without any suggestion whatever in the 
 findings that they threatened an illegal or unlawful act. And such 
 findings are claimed to be sufficient to uphold a judgment that abso- 
 lutely enjoins the defendant associations and their members from strik- 
 ing. This is certainly a long step in advance of any decision brought 
 to my attention. * * * 
 
 Vann, J., dissenting, after stating the findings of the trial justice. 
 * * * The Appellate Division, according to its order, which is the 
 only evidence of its action that we can consider, did not reverse upon 
 a question of fact; and a reversal upon the law, only, is an affirmance 
 of the facts found, which are thus placed beyond our control, as there 
 was some evidence to support the findings. People v. Adirondack Ry. 
 Co., 160 N. Y. 225, 235, 54 N. E. 689 ; Code Civ. Proc. § 1338. Thus 
 we have before us a controversy, not between employer and employe, 
 but between different labor organizations, wherein one seeks to restrain 
 the others from driving its members out of business, and absolutely 
 preventing them from earning a living by working at their trade, 
 through threats, made to the common employer of members of all the 
 organizations, to destroy his business unless he discharged the plain- 
 tiff's members from his employment. The primary question is whether 
 the action of the defendants was unlawful, for a lawful act done in a 
 lawful manner cannot cause actionable injury. It is not the duty of one 
 man to work for another unless he has agreed to, and if he has so 
 agreed, but for no fixed period, either may end the contract whenever 
 he chooses. The one may work or refuse to work at will, and the other 
 may hire or discharge at will. The terms of employment are subject 
 to mutual agreement, without let or hindrance from any one. If the 
 terms do not suit, or the employer does not please, the right to quit is 
 absolute, and no one mav demand a reason therefor. Whatever one
 
 Ch, 2) TORTS THROUGH MALICE 1383 
 
 man may do alone, he may do in combination with others, provided 
 they have no unlawful object in view. Mere numbers do not ordinarily 
 affect the quality of the act. Workingmen have the right to organize 
 for the purpose of securing higher wages, shorter hours of labor, or 
 improving their relations with their employers. They have the right to 
 stril<:e (that is, to cease working in a body by prearrangement until a 
 grievance is redressed), provided the object is not to gratify malice, or 
 inflict injury upon others, but to secure better terms of employment 
 for themselves. A peaceable and orderly strike, not to harm others, 
 but to improve their own condition, is not a violation of law. They 
 have the right to go farther, and to solicit and persuade others, who do 
 not belong to their organization, and are employed for no fixed period, 
 to quit work, also, unless the common employer of all assents to law- 
 ful conditions, designed to improve their material welfare. They have 
 no right, however, through the exercise of coercion, to prevent others 
 from working. When persuasion ends, and pressure begins, the law is 
 violated ; for that is a trespass upon the rights of others, and is ex- 
 pressly forbidden by statute. Pen. Code, § 168. They have no right, 
 by force, threats, or intimidation, to prevent members of another labor 
 organization from working, or a contractor from hiring them or con- 
 tinuing them in his employment. They may not threaten to cripple 
 his business unless he will discharge them, for that infringes upon lib- 
 erty of action, and violates the right which every man has to conduct 
 his business as he sees fit, or to work for whom and on what terms he 
 pleases. Their labor is their property, to do with as they choose ; but 
 the labor of others is their property, in turn, and is entitled to protec- 
 tion against wrongful interference. Both may do what they please 
 with their own, but neither may coerce another into doing what he does 
 not wish to with his own. The defendant associations made their own 
 rules and regulations, and the plaintiff corporation did the same. Nei- 
 ther was entitled to any exclusive privilege, but both had equal rights 
 according to law. The defendants could not drive the plaintiff's mem- 
 bers from the labor market absolutely, and the plaintiff could not drive 
 the defendants' members therefrom. The members of each organiza- 
 tion had the right to follow their chosen calling without unwarrantable 
 interference from others.' Public policy requires that the wages of 
 labor should be regulated by the law of competition and of supply and 
 demand, the same as the sale of food or clothing. Any combination to 
 restrain "the free pursuit in this state of any lawful business," in or- 
 der "to create or maintain a monopoly," is expressly prohibited by stat- 
 ute, and an injunction is authorized to prevent it. In re Davies, 168 
 N. Y. 89, 96, 61 N. E. 118, 56 L. R. A. 855 ; Laws 1897, c. 3S3 ; Laws 
 1899, c. 690. 
 
 A combination of workmen to secure a lawful benefit to themselves 
 should be distinguished from one to injure other workmen in their 
 trade. Here we have a conspiracy to injure the plaintiffs in their busi-
 
 1384 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 ness, as distinguished from a legitimate advancement of the defend- 
 ants' own interests. While they had the right by fair persuasion to get 
 the work of the plaintiff McQueed, for instance, they had no right, ei- 
 ther by force or by threats, to prevent him from getting any work what- 
 ever, or to deprive him of the right to earn his living by plying his 
 trade. Competition in the labor market is lawful, but a combination 
 to shut workmen out of the market altogether is unlawful. One set 
 of laborers, whether organized or not, has no right to drive another set 
 out of business, or prevent' them from working for any person upon 
 any terms satisfactory to themselves. By threatening to call a general 
 strike of the related trades, the defendants forced the contractor to 
 discharge competent workmen who wanted to work for him, and whom 
 he wished to keep in his employment. They conspired to do harm to 
 the contractor in order to compel him to do harm to the plaintiffs, and 
 their acts in execution of the conspiracy caused substantial damage to 
 the members of the plaintiff corporation. * * * 
 
 The object of the defendants was not to get higher wages, shorter 
 hours, or better terms for themselves, but to prevent others from fol- 
 lowing their lawful calling. Thus one of the defendants said to the 
 plaintiff ]\IcOueed: "I will strike against your men wherever I find 
 them, and not allow them to work on any job in the city, except some 
 small place where the Enterprise men are not em.ployed." The same 
 man said to one of the contractors that he could not have the plain- 
 tiff's men in his employment and unless they were discharged he would 
 order a "general strike of the whole building." They were discharged 
 accordingly, although the contractor testified that they were good work- 
 men, that their work was satisfactory, and that he had no reason for 
 discharging them, other than the threats made. Another contractor 
 testified that two of the defendants told him that he must take the 
 plaintiff's men off and put their men on, "or else the whole building 
 would be tied up, as they would not allow the other men to work." The 
 usual discharge followed, although the men were satisfactory to their 
 employer. The same witness testified that "Mr. Gumming would nei- 
 ther allow my men to work, nor would he allow his men to go to work 
 until the time had been paid for between the interval they struck and 
 the time they were to go to work again." A member of the plaintiff" 
 corporation swore that "Mr. Gumming told us that, if he ever found 
 us on a job in the vicinity of New York, he would strike it by order 
 of the board of delegates. He said they would not allow us to work 
 on any job, except it was a small job, — a cheap job, — and he allowed 
 us to do it." The threat was repeated in substance to the employer, 
 who discharged the witness, and he was not employed on the building 
 afterwards. There was other evidence to the same effect, and, al- 
 though the defendants denied making these threats, the trial judge 
 accepted the version of the plaintiff's witnesses, and hence we must do 
 the same. I assume, therefore, that the defendants caused the dis-
 
 Ch. 2) TORTS THROUGH MALICE 1385 
 
 charge of the plaintiff's men by threatening to cripple their employer's 
 business unless he discharged them, and that they also molested them 
 by threatening to prevent them from working at their trade in the 
 city of New York, by calling a general strike of all trades on any 
 building where they might be employed. The action of the defendants 
 was wrongful and malicious, and their object was to force men who 
 had learned a trade to abandon it and take up some other pursuit. 
 There is no finding that the defendants maintain a higher standard of 
 skill than the plaintiff's. * * * 
 
 The conclusions I have announced are supported by the weight 
 of authority in this country and in England. The leading case in this 
 state is controlling in principle, and requires a reversal of the order 
 appealed from. Curran v. Galen, 152 N. Y. 33, 46 N. E. 297, 37 L. 
 R. A. 802, 57 Am. St. Rep. 496. The plaintiff in that case alleged in 
 his complaint that the defendants wrongfully conspired to injure him 
 and take away his means of earning a livelihood ; that they threat- 
 ened to accomplish this unless he would join their association; that 
 in pursuance of the conspiracy, "upon plaintiff"s refusing to become 
 a member of said association," the defendants '"made complaint to 
 the plaintiff''s employers, and forced them to discharge him from 
 their employ, and, by false and malicious reports in regard to him, 
 sought to bring him into ill repute with members of his trade and 
 employers, and to prevent him from prosecuting his trade and earn- 
 ing a livelihood." The answer set forth an agreement between a 
 brewer's association and a labor organization, of which defendants 
 were members, to the effect that all employes of the brewery com- 
 panies belonging to the former should be members of the latter, and 
 that no employe should work for a longer period than four weeks 
 without becoming a member. It was further alleged that the plain- 
 tiff was retained in the employment of one of the brewing companies 
 for more than four weeks after he was notified of the provisions 
 of said agreement requiring him to become a member of the local as- 
 sembly ; that the defendants requested him to become a member, and, 
 on his refusal to comply, they, through their committee, notified the 
 officers of said company that the plaintiff, after repeated requests, 
 had refused for more than four weeks to become a member of said 
 assembly ; and that they did so solely in pursuance of said agreement, 
 and in accordance with the terms thereof, without intent or purpose 
 to injure plaintiff in any way. The plaintiff demurred to this defense 
 upon the ground that it was insufficient, in law, upon the face thereof. 
 The demurrer was sustained in all the courts. 77 Hun, 610, 28 N. 
 Y. Supp. 1134; 152 N. Y. 33, 46 N. E. 297, 37 L. R. A. 802, 57 Am. 
 St. Rep. 496. All the judges who sat in this court united with Judge 
 Gray in saying that: "Public policy and the interests of society favor 
 the utmost freedom in the citizen to pursue his lawful trade or calling, 
 and if the purpose of an organization or combination of workingmen
 
 1386 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 be to hamper or to restrict that freedom, and, through contracts or 
 arrangements with employers, to coerce other workingmen to become 
 members of the organization, and to come under its rules and con- 
 ditions, under the penalty of the loss of their position and of depriva- 
 tion of employment, then that purpose seems clearly unlawful, and 
 militates against the spirit of our government and the nature of 
 our institutions. The effectuation of such a purpose would conflict 
 with that principle of public policy which prohibits monopolies and 
 exclusive privileges. It would tend to deprive the public of the serv- 
 ices of men in useful employment and capacities. It would, to use the 
 language of Mr. Justice Barrett in People v. Smith, 5 N. Y. Cr. R., at 
 page 513, 'impoverish and crush a citizen for no reason connected in 
 the slightest degree with the advancement of wages or the maintenance 
 of the rate.' " * * * 65 
 
 L. D. WILLCUTT & SONS CO. v. BRICKLAYERS' BENEVO- 
 LENT & PROTECTIVE UNION NO. 3 et al. 
 
 (Supreme Judicial Court of Massachusetts, 1908. 200 Mass. 110, 85 N. E. 897, 
 
 23 L. R. A. [N. S.] 12.37.) 
 
 This bill, brought by the L. D. Willcutt & Sons Company, ran orig- 
 inally against two unincorporated labor unions by name, but was 
 amended so as to run only against certain individuals as officers and 
 members of these unions and against their other members as thus 
 represented. No question was made that the defendants did not 
 sufficiently represent all the members of both unions. 
 
 In the Superior Court the justice who heard the case entered a 
 decree in favor of the defendants and reported the facts for the opin- 
 ion of the Supreme Judicial Court. The case grew out of a trade 
 dispute between the plaintiff and certain members of the union who 
 were in the plaintiff's employ. Briefly, the facts were as follows : 
 
 In April, 1906, these unions adopted a code of working rules, in which, be- 
 side some minor demands not now material, they demanded that wases be in- 
 creased five cents an hour, that all foremen should be members of the unions, 
 that the business agent of the unions should be allowed to visit any building 
 under construction to attend to his official duties, and that wages should be 
 Pit id during working hours. The plaintiff declined to accept these rules, and 
 a strike followed. 
 
 By the constitution and rules of the, unions it appeared that a code of fines 
 and penalties was established by the International Union, an association 
 composed of these and other similar unions throughout the country, and that 
 this code was being actively enforced by the local unions. One rule provided 
 that any member violating any section of the working code should be fined 
 upon conviction not less than $5 nor more than .$25, one of these sections being 
 that "no member of the union shall work with a nonunion man who refuses 
 to join the union." Various other penalties wore provided, varying from .$5 
 to S.oOO for each offense, to be imposed upon iwrsons designated as "common 
 scabs," "inveterate or notorious scabs," and •'iniion wreckere" ; these terms 
 
 o". O'Brien, Haight, and Gray, JT., concurred with Parlcer, C. J. Bartlett 
 and Martin, JJ., concurred with Vann, J.
 
 Ch. 2) TORTS THROUGH MALICE 1387 
 
 being applied to those wlio in different ways persist in working after a strike 
 has been called. These fines in their operation are likely to be coercive in 
 their nature. 
 
 This code was actively enforced by the unions, and most of the members of 
 the unions who left their work did so through fear of the fines that would be 
 imposed upon them if they continued to work. The defendants Driscoll and 
 Reagan on one occasion found two men at work for the plaintiff, one a jour- 
 neyman who had been and the other a foreman who was a member of the 
 union. Eeagan threatened the joumeyman with a fine of $100 if he contin- 
 ued to work, and Driscoll notified the foreman that he was called out. Both 
 refused to leave. Driscoll reported the fact at a meeting of tl\e union and a 
 vote was passed that charges be preferred against the men for working con- 
 trary to the rules. A preliminary injunction was issued in tliis case, and no 
 further steps were taken under the vote. 
 
 The defendants established a strike headquarters, and provided a strike fund 
 from which payments were made to the strilvcrs and other men out of work. 
 Some of the defendants made constant visits to a .iob of the plaintiff, general- 
 ly at noontime, to persuade men whom the plaintiff had hired to leave its em- 
 ploy. They offered as inducements in some cases to nonunion men inembership 
 without the full payments usually required, and in other cases work else- 
 where. Men frequently left the plaintiff's employ after these talks, in some 
 cases stating that they would like to work but could not run the risk of being 
 fined. The defendant Driscoll induced two men to go who otherwise would 
 have continued at work, by paying them with funds of the unions the wages 
 due them from the plaintiff and providing them with transportation to Utica, 
 N. T., where he had secured other work for them. 
 
 Hammond, J. (after stating the facts). * * * The strike had 
 four objects. Of these the demand for an increase of wages was 
 properly enforceable by a strike. The demand that wages should be 
 paid during working hours amounts merely to a demand for a short- 
 er day, and also was properly enforceable by a strike. The reason- 
 ableness of such demands we have not the means of determining; 
 and it is settled that such matters are best left to be adjudicated in 
 the freedom of private contract between the interested parties. More 
 difficult questions are presented by the demands that all foremen shall 
 be members of the unions, and that the business agent of the unions 
 shall be allowed to visit any building under construction. See as to 
 the first of these points a very interesting article by Professor Smith. 
 20 Harvard Law Review, 431, note 1. But it is unnecessary under 
 the circumstances to determine these questions, as the plaintifif re- 
 plied with a bare refusal of all the demands. 
 
 We are of opinion therefore that this strike must be regarded as 
 simply a strike for higher wages and a shorter day. It was not a 
 mere sympathetic strike, as in Pickett v. Walsh, 192 Mass. 572, 587, 
 78 N. E. 753, 6 L. R. A. (N. S.) 1067, 116 Am. St. Rep. 272, 7 Ann. 
 Cas. 638, or one whose immediate object was only remotely connected 
 with the ultimate object of the strikers, as in Plant v. Woods, 176 
 Mass. 492, 57 N. E. 1011, 51 L. R. A. 339, 79 Am. St. Rep. 330. It 
 was a direct strike by the defendants against the other party to the 
 dispute, instituted for the protection and furtherance of the interests 
 of the defendants in matters in which both parties were directly in- 
 terested and as to which each party had the right, within all lawful 
 limits, to determine its own course. Such a strike must be treated 
 as a justifiable strike so far as respects its ultimate object.
 
 1388 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 But however justifiable or even laudable may be the ultimate ob- 
 jects of a strike, unlawful means must not be employed in carrying" 
 it on; and it is contended by the plaintiff that the use of fines and 
 threats of fines, under the circumstances disclosed in the record, are 
 unlawful. The question is stated by the trial judge in the following- 
 language : "In case of a justifiable strike, has the contractor the right 
 to invoke the aid of the court to prevent the labor union from im- 
 posing a fine [which the court has found to be coercive in its nature] 
 or taking action to impose one upon one or more of its members un- 
 der its rules to induce them to leave the contractor's employ to his 
 injury?" Under the findings of the court it would seem that the ques- 
 tion is not intended to be quite sO' broad as otherwise might be in- 
 ferred from its language. The language is broad enough to include 
 the case where the employe is under a contract to stay with his em- 
 ployer and where to leave would be a violation of that contract. 
 But no such state of things appears upon the record. The plaintiff 
 "hired its masons by the day and paid them on the basis of the num- 
 ber of hours worked, and it might have discharged them and they 
 might have left at the close of any day." The question must there- 
 fore be considered as applying only to cases where the employe by 
 leaving violates no contractual right of the employer. 
 
 The question how far the imposition of fines by an organization 
 upon its members where the effect is to injure a third party is jus- 
 tifiable, was considered by this court in Martell v. White, 185 Mass. 
 255, 69 N. E. 1085, 64 h. R. A. 260, 102 Am. St. Rep. 341, and it 
 was there adjudged that the imposition of such a fine by which mem- 
 bers of the organization were coerced into refusing to trade with the 
 plaintiff, not a member, to his great damage, was inconsistent with 
 the ground upon which the right to competition in trade is based, and 
 as against him was not justifiable. * "' * 
 
 That principle, if applicable to the facts of this case, is decisive. 
 The majority of the court are of the opinion that it is applicable, 
 and hence that there should be a decree for the plaintiff enjoining 
 intimidation or coercion by fines. 
 
 Under ordinary circumstances this opinion would end here. But 
 inasmuch as a minority of the court still think that the principle laid 
 down in Martell v. White, with reference to intimidation by fines 
 imposed by an organization upon its members, is not correct, and 
 also perhaps, that, even if correct, it is not applicable to the facts of 
 this case, and are unwilling to accept that principle as law in this 
 commonwealth notwithstanding the authority of that case, it may be 
 well to say something in addition to what was there said. We are 
 also somewhat influenced to take this action by reason of the import- 
 ance of the question and its relation to a part of the law still in the 
 nebulous but clearing stage. 
 
 Before entering more fully upon the discussion it is well to get a 
 clear conception of what the case is. To begin with, it is not a con-
 
 Ch. 2) TORTS THROUGH MALICE 1389 
 
 test between the members of two competing- labor unions, as was 
 Plant V. Woods, 176 Mass. 492, 57 N. E. 1011, 51 L. R. A. 339, 79 
 Am. St. Rep. 330, nor is it a conflict between an organization and one of 
 its members in a matter in which no third party is interested. Nor 
 does the plaintiff corporation contend that it has any right to compel 
 the intimidated workman to enter its employ. Neither is it seeking, in 
 behalf of a member of a union, to enforce or defend the right of such 
 member to be free from a fine or threat of a fine. The plaintiff has no 
 concern with the imposition of fines by a union upon its members 
 unless, and only so far as, such an imposition is in violation of a 
 right of the plaintiff'. Even if the fine be illegal the plaintiff has no 
 standing in court to complain unless some one of its rights is invaded 
 to its damage. In a word, the case is not between the party imposing 
 the fine and the person fined, nor between the person fined as such 
 and a third party who suff'ers, but on the contrary it is between such 
 third party and the party imposing the fine. If it were only between 
 the person fined and the party imposing the fine, then with some de- 
 gree of plausibility it might be said that the former had no right to 
 complain, or at least had waived that right; but it is manifest that 
 neither of the immediate parties to the fine can, either by an agree- 
 ment among themselves or by waiver, justify the invasion of the right 
 of a third party, if any he has, to object to it. 
 
 What is the complaint of the plaintiff? It is a corporation en- 
 gaged in the construction of buildings and employing a number of 
 men. Its men left its employ on a strike. To keep them away the 
 defendants threatened with fines such as were members of the unions, 
 and by that means kept them away from the plaintiff' when otherwise 
 they would have stayed ; all to the great damage of the plaintiff. 
 Shortly stated the case is this: The plaintiff''s men are being coerced 
 by threats of a fine to leave its employ, greatly to its injury, the fines 
 to be levied in accordance with the by-laws of a voluntary associa- 
 tion of which the proposed victims are members. This injury to the 
 plaintiff is intended by the defendants. Has the plaintiff any stand- 
 ing in equity to an injunction against the infliction of such injury? 
 
 It is to be premised that the right which the plaintiff seeks to have 
 protected against the acts of the defendants arises from no contract 
 or statute, but out of the nature of things. It is one of the large 
 body of .rights which have their foundation in the fitting necessities 
 of civilized society. It is the common law right to a reasonably 
 free labor market. Vice Chancellor Stevenson, in speaking of it, says 
 it has been called a "probable expectancy" and describes it as "the 
 right which every man has to earn his living or pursue his trade 
 without undue interference." Jersey City Printing Co. v. Cassidy, 
 63 N. J. Eq. 759, 765, 53 Atl. 230. ?Ie further remarks (pages 765, 
 766 of 63 N. J. Eq., and page 233 of 53 Atl.) : "It will probably be 
 found * * * that the natural expectancy of employers in rela- 
 tion to the labor market and the natural expectancy of merchants
 
 1390 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 in respect to the merchandise market must be recognized to the same 
 extent by courts of law and courts of equity and protected by sub- 
 stantially the same rules. It is freedom in the market, freedom in 
 the purchase and sale of all things, including both goods and labor, 
 that our modern law is endeavoring to insure to every dealer on either 
 side of the market." And in Atkins v. Fletcher Co., 65 N. J. Eq. 
 658, 664, 55 Atl. 1074, 1076, the same judge says: "The elemental 
 right of the employer of labor which the courts recognize today no 
 doubt is the right to employ, while the corresponding right of the 
 workman is the right to be employed. In other words, the right to 
 buy labor and the right to sell labor are recognized by the law, and 
 their enjoyment is greatly impaired or destroyed unless freedom in 
 the labor market — freedom on both sides of the labor market — is 
 maintained. Each party to a contract for the sale of labor has an 
 interest in the freedom of the other party with respect to making the 
 contract." In Mie words of Lord Lindley in Ouinn v. Leathem [1901] 
 A. C. 495, 534, "a person's liberty or right to deal with others is nuga- 
 tory unless they are at liberty to deal with him if they choose to do 
 so." This right of the employer is conclusively established by the 
 numerous cases which hold that he may maintain an action against 
 those who by intimidation prevent persons from entering into his 
 employ. See remarks of Lord Halsbury in Allen v. Flood [1898] 
 A. C. 1, 71, 72. In our own reports such a case may be found in 
 Vegelahn v. Guntner, 167 Mass. 92, 44 N. E. 1077, 35 L. R. A. 722, 
 57 Am. St. Rep. 443. This is the right — the right to a free labor 
 market — which the plaintiff claims has been invaded by the defend- 
 ants, and for which he seeks protection. 
 
 The defendants also have rights. They have the right to work or 
 not to work, to sell their labor upon such terms as they see fit and 
 to combine for the purpose of getting more pay or a shorter day. And 
 for the purpose of strengthening their organization and making it 
 more effective they have the right to make appropriate by-laws for 
 its internal management, and for the regulation of the conduct of 
 its members toward each other in matters affecting the general in- 
 terests of the body; and they may enforce obedience to such by-laws 
 and regulations by fines or other suitable penalties. 
 
 But not much progress is made by this general statement of the 
 rights of the respective parties. We are still only on the skirmish 
 line. In the jurisprudence of any civilized country there are'but few, 
 if any, absolute rights — rights which bend to nothing and to which 
 everything else must bend. The right to one's life would seem to be 
 quite absolute, but it must yield to the private right of self-defense 
 and to the public right to punish for crime. And so in the case be- 
 fore us, neither the right of the plaintiff to a free labor market nor 
 the right of the union to impose a fine upon its members is absolute. 
 Neither is to be considered apart from the other, or without refer- 
 ence to any other conflicting right, whether public or private; but
 
 Ch. 2) TORTS THROUGH MALICE 1391 
 
 each must be regarded as having in the rules of human conduct its 
 own place beyond the limits of which it must not go. Moreover it 
 must be borne in mind (what sometimes seems to be forgotten by 
 the actors upon each side of such controversies) that the controversy 
 is not a warfare in the sense that for the time bcinor the usual rules 
 of conduct are changed, as in the case of an actual war between two 
 countries. There is no martial law in these cases, no change in the 
 ordinary rules of society, but these rules remain the same as before, 
 commanding what was theretofore right and prohibiting what was 
 theretofore wrong. 
 
 The right of an employer to free labor is subject to the right of 
 the laborer to hamper him by many expedients short of fraud or in- 
 timidation amounting to injury to the person or property of those 
 who desire to enter his employ, or threats of such injury. For in- 
 stance, persuasion not amounting to such intimidation is lawful, and 
 j>erhaps the same may be said of social pressure even when carried to 
 the extent of social ostracism, not including however any threat in a 
 business point of view. See Vegelahn v. Guntner, 167 Mass. 92, 44 
 N. E. 1077, 35 L. R. A. 722, 57 Am. St. Rep. 443 ; Jersey City Print- 
 ing Co. v. Cassidy, 63 N. J. Eq. 759, 769, 53 Atl. 230; 20 Harvard 
 Law Review, 267. Social rights and privileges must take care of 
 themselves. The law cannot prescribe with whom one shall shake 
 hands or associate as a friend. 
 
 So long also as the by-laws of a union relate to matters in which 
 no one is interested except the association and its members, and vio- 
 late no right of a third party or no rule of public policy, they are 
 valid. Fines may be imposed, for instance for tardiness, absence, 
 failure to pay dues, or for misconduct affecting the organization or 
 any of its members ; and for numerous other acts. It cannot be 
 successfully contended, however, that as against the right of some 
 party other than the association and its members an act, otherwise 
 a violation of the third party's rights, is any less a violation because 
 done by some member in obedience to a by-law. If a member com- 
 mits an assault upon a person, and is called into court by the common- 
 wealth upon a criminal complaint or in a civil action by the victim, 
 he can find no valid ground of defense in the fact that he committed 
 the assault in compliance with the requirements of a contract with 
 some other person, or in obedience to a by-law of an association of 
 which he was a member. So a by-law providing that, upon an order 
 to strike, every employe shall quit work even although such an act 
 should be in violation of a contract then existing between him and 
 his employer for continuous service, and that for failure thus to break 
 his contract the member should be fined, doubtless would be declared 
 invalid. And the principle at the bottom of such a decision is this, 
 namely: An interference with the right of a third party cannot be 
 justified upon the ground that the intruder is acting in accordance 
 with an agreement between him and some other person. In a word.
 
 1392 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 SO long as a fine is imposed for the guidance of members in matters 
 in which outside parties have no interest, or in which there is no 
 violation of a right of an outside party, then no such party can com- 
 plain. But when the right of such a party is invaded, it is no defense, 
 cither to the person fined or to those who have imposed the fine, that 
 the invasive act was done in accordance with the by-laws of an as- 
 sociation. 
 
 In the case before us, standing opposed to each other are these 
 two rights : The right of the employer to a free labor market, and 
 the right of the striking employes in their strife with him to impair that 
 freedom; and the crucial question is, how far can the latter go? On 
 which side of the line shall stand the matter of coercion by fines im- 
 posed by a union upon its members to impair that freedom? Is the 
 employer's right to a free market subject to this system of mutual 
 intimidation and coercion by fines, or is the right to establish such a 
 system subject to the right of the employer to a free market? If the 
 employer's right is not subject to this method of intimidation, then 
 of course as against him it is unlawful. If it is subject to it, then he 
 cannot complain, no matter how severe the blow. 
 
 So far as concerns the law of this commonwealth at least, some 
 things seem to be settled. It is settled that the flow of labor to the 
 employer cannot be obstructed by intimidation or coercion produced 
 by means of injury to person or property, or by threats of such 
 injury. Vegelahn v. Guntner, 167 Mass. 92, 44 N. E. 1077, 35 L. R. 
 A. 722, 57 Am. St. Rep. 443. In that case Allen, J., said: "Such an 
 act [picketing as a means of intimidation] is an unlawful interference 
 with the rights both of employer and employed. An employer has a 
 right to engage all persons who are willing to work for him at such 
 prices as may be mutually agreed upon ; and persons employed or 
 seeking employment have a corresponding right to enter into or remain 
 in the employment of any person or corporation willing to employ 
 them. These rights are secured by the Constitution itself. Com. v. 
 Perry, 155 Mass. 117, 28 N. E. 1126, 14 L. R. A. 325, 31 Am. St. Rep. 
 533; People v. Gillson, 109 N. Y. 389, 17 N. E. 343, 4 Am. St. Rep. 
 465; Braceville Coal Co. v. People, 147 111. 66, 71, 35 N. E. 62, 22 
 L. R. A. 340, 37 Am. St. Rep. 206; Ritchie v. People, 155 111. 98, 
 40 N. E. 454, 29 L. R. A. 79, 46 Am. St. Rep. 315 ; Low v. Rees Print- 
 ing Co., 41 Neb. 127, 59 N. W. 362, 24 L. R. A. 702, 43 Am. St. Rep. 
 670." See, also. Sherry v. Perkins, 147 Mass. 212, 17 N. E. 307, 9 Am. 
 St. Rep. 689. And it is unnecessary to cite cases in support of the 
 proposition that such is the great weight of authority elsewhere, even 
 though the ultimate object of the strike be legal. 
 
 There can be no doubt that fining is one method of injuring a man 
 in his estate, and that a threat to fine is a threat of such an injury. 
 Indeed this is recognized by the decree made by the trial court in 
 this very case, so far as it affects Reagan, one of the defendants.
 
 Ch. 2) TORTS THROUGH MALICE 1393 
 
 who it was found had threatened with a fine a man once but not 
 then a member of a union. 
 
 It is urged however that although this method of intimidation is gen- 
 erally an invasion of the employer's right to a free market and there- 
 fore illegal, yet when the intimidation is exerted by a union upon its 
 members in accordance with its by-laws in a strike whose object is 
 legal; it is justifiable and legal. To this the obvious reply is that the 
 rule of freedom to contract is founded upon principles of public pol- 
 icy, that each party to a contract is interested in the freedom of the 
 other party, that it can make no difference to the public or to the em- 
 ployer (who in this case is the other party) that the person intimidated 
 is or is not a member of the society intimidating. In either case the 
 injury is the same and is from the same cause namely intimidation. 
 The workman is no longer free. In Longshore Printing Co. v. How- 
 ell, 26 Or. 527, 38 Pac. 547, 28 L. R. A. 464, 46 Am. St. Rep. 640, 
 the court, after speaking of the general right of labor unions to make 
 rules, proceeds thus : "It must be understood, however, that these as- 
 sociations, like other voluntary societies, must depend for their mem- 
 bership upon the free and untrammelled choice of each individual mem- 
 ber. No resort can be had to compulsory methods of any kind to in- 
 crease or keep up or maintain such membership. Nor is it permissible 
 for associations of this kind to enforce the observance of their laws, 
 rules and regulations through violence, threats or intimidation, or to 
 employ any methods that would induce the intimidation or deprive 
 persons of perfect freedom of action." 
 
 The keynote on this matter is struck in Booth v. Burgess, 72 N. J. 
 Eq. 181, 197, 65 Atl. 226, 233, in the following language: "No sur- 
 render of liberty or voluntary agreement to abide by by-laws on the 
 part of the employes who are first coerced, made by them when they 
 enter their labor unions, can * * * affect the right of the com- 
 plainant to a free market, which right he will enjoy for all it may be 
 worth if these employes are permitted to exercise their liberty. The 
 employes may be able to surrender their own right but they certainly 
 cannot surrender the rights of other parties" — citing Boutwell v. 
 Marr, '71 Vt. 1, 42 Atl. 607, 43 L. R. A. 803, 76 Am. St. Rep. 746, and 
 Berry v. Donovan, 188 Mass. 353, 74 N. E. 603, 5 L. R. A. (N. S.) 
 899, 108 Am. St. Rep. 499, 3 Ann. Cas. 738. And in Downes v. Ben- 
 nett, 63 Kan. 653, 662, 66 Pac. 623, 626 (55 L. R. A. 560, 88 Am. St. 
 Rep. 256), there is a recognition of the same doctrine : "This is not 
 the case of a union or association of persons intimidating its members 
 from engaging in a specific service offered by an employer and stand- 
 ing ready and open to be entered. In such cases, on a showing of 
 continuous damage caused by inability to secure employes, preventive 
 relief has been afforded." Boutwell v. Marr, 71 Vt. 1, 42 Atl. 607, 43 
 L. R. A. 803, 76 Am. St. Rep. 746. 
 Hepb.Torts— 88
 
 1394 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 An opposite doctrine leads to strange conclusions. For instance, if 
 ten men banded together undertake by coercion to keep two other 
 men from entering an employment, and they do this in order to force 
 the employer, for lack of ability to get the two, to employ them (the 
 ten), the employer's right to a free market is invaded, and if he suffers 
 thereby he may proceed either in equity or law against the ten ; but 
 if the ten men first induce the two other men to enroll tliemselves in 
 the same organization with the ten, then, it is said, the ten man may 
 by fines or threats of fines so intimidate the two men as to frighten 
 them from the employer, and that such intimidation is no violation of 
 the employer's right. A rule of law which leads to such inconsisten- 
 cies is not to be adopted. It does not distinguish between coercion 
 and noncoercion, but between organized coercion and sporadic coercion. 
 It makes a distinction entirely foreign and immaterial to the ground 
 upon which the right to a free market is based. 
 
 If it be said that fines are not in themselves illegal, and that conse- 
 quently their use cannot be illegal, the answer is that when they are 
 used as a method of coercion and create a kind of coercion inconsist- 
 ent with the right of a person they are, as against that person's right, 
 illegal. If it be said as we have heard it said that fines are inno- 
 cent and cannot be illegal because they are used by all governments 
 as a method of punishing criminals, the answer is that if the prin- 
 ciple is true that, what a government may do to punish for crime, in- 
 dividuals or societies may do to enforce private rights, then it fol- 
 lows that a by-law providing for imprisonment or even death may 
 be legal. 
 
 If it be said that the member fined may take his choice either to leave 
 tlie organization or abide by its rules to which he has before assented, 
 and that where there is a choice there can be no coercion, the answer 
 is that in almost every conceivable case of coercion short of an actual 
 overpowering of the physical forces of the victim there is a choice. 
 The highwayman, who presents his cocked pistol to the traveler and 
 demands his purse under pain of instant death in case of refusal, 
 offers his victim a choice. He may either give up his purse and live, 
 or refuse and die. In Carew v. Rutherford, 106 Mass. 1, 8 Am. 
 Rep. 287, the victim had a choice either to pay a fine or take the con- 
 sequences of a refusal. And so the member of a labor union has 
 the choice either to pay the fine or leave the union. Is it difficult to 
 realize what that choice is in these days of organized labor? Is it 
 too much to say that many times it is very difficult, indeed practically 
 impossible, for a workman to get bread for himself and his family 
 by working at his trade unless he is a member of a union? It is true 
 he lias a choice between paying his fine and not paying it, but is it 
 not frequently a hard one ? May not the coercion upon him sometimes 
 be most severe and effective? Such is not a free choice. And a mar-
 
 Ch. 2) TORTS THROUGH MALICE 1395 
 
 ket filled with such men is not a reasonably free market. In this con- 
 nection the language of Boutwell v. Marr, 71 Vt. 1, 42 Atl. 607, 43 L. 
 R. A. 803, ud Am. St. Rep. 746, seems significant and appropriate : 
 "The law cannot be compelled by any initial agreement of an associate 
 member to treat him as one having no choice but that of the majority, 
 nor as a willing participant in whatever action may be taken. The 
 voluntary acceptance of by-laws providing for the imposition of co- 
 ercive fines does not make them legal and collectible. * * * The 
 fact that the relations and processes deemed essential to a recovery 
 are brought within the membership and proceedings of an organized 
 body cannot change the result. The law sees in the member of an 
 association of tliis character both the authors of its coercive system 
 and tlie victims of this unlawful pressure. If this were not so, men 
 could deprive their fellows of established rights, and evade the duty 
 of compensation simply by working through an association." 
 
 If it be said that without fines the same result may be indirectly 
 reached by the organization by exercising two rights, namely the right 
 to expel a member and the right to charge an initiation fee upon his re- 
 turn, and since the same result may thus be legitimately reached, no- 
 body is harmed if it be reached by fine, the reply is that if the pur- 
 pose of expulsion and the subsequent initiation fee be each a part 
 of one and the same transaction, namely, the imposition of a fine, and 
 the two acts are in substance the procedure by which the intimidation 
 by fine is exercised, and such is the intention, then there may be a strong 
 reason for holding that such a procedure is one imposing a fine and 
 should be treated as such. Ordinarily, however, each separate act should 
 be treated by itself and its validity judged by itself. The fact tliat 
 separately and independently executed they incidentally may have the 
 effect of a fine is immaterial on the question of the right to fine. The 
 fact that a result may be incidentally reached in one way does not show 
 that the same result may be lawfully reached in another way. 
 
 In considering this question we cannot lose sight of the great pow- 
 er of organization. It should be taken into account when one is con- 
 sidering where the line should be drawn between the right of the em- 
 ployer to a free market and the right of workmen to interfere with 
 that market by coercion through the rules of a labor union. It is not 
 universally true that what one man may do any number of men by 
 concerted action may do. In Pickett v. Walsh, 192 ]\Iass. 572, 78 N. 
 E. 753, 6 L. R. A. (N. S.) 1067, 116 Am. St. Rep. 272, 7 Ann. Cas. 
 638, Loring, J., after alluding to the great increase of power by com- 
 bination, says: "The result of this greater power of coercion on the 
 part of a combination of individuals is that what is lawful for an 
 individual is not the test of what is lawful for a combination of in- 
 dividuals, or to state it in another way, there are things which it is 
 lawful for an individual to do which it is not lawful for a combination 
 of individuals to do."
 
 1396 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 This organization of labor to better the condition of the laborer is 
 natural and proper. There can be no doubt that it is the most effective 
 way, perhaps the only effective way, in which as against the organiza- 
 tion of capital tlie rights of the laborer can be adequately protected. 
 In many ways the labor unions have succeeded in bettering the condi- 
 tion of the laborer; and so far as their ultimate intentions and the 
 means used in accomplishing them are legal they are entitled to pro- 
 tection to the extreme limit of the law. 
 
 But their powers must not be so far extended as to encroach upon 
 the rights of others. It is clear that if the power to intimidate by fine 
 be regarded as one of the powers which labor unions may rightfully 
 exercise, then the right to a free market for labor — nay, even the right 
 of the laborer to be free — is seriously interfered with, to the injury 
 both of the public and the employer as well as the laborer. 
 
 In ^lartell v. White, 185 Mass. 255, 69 N. E. 1085, 64 L. R. A. 260, 
 102 Am. St. Rep. 341, it was said: "The right of competition rests up- 
 on the doctrine that the interests of the public are best subserved by 
 permitting the general and natural laws of business to have their full 
 and free operation, and that this end is best attained when the trader 
 is allowed in his business to make free use of those laws." So of com- 
 petition in labor ; and so of competition between the employer and 
 employe. The contest between them is only competition on a wide 
 basis. As was said by Knowlton, C. J., in Berry v. Donovan, 188 
 Mass. 353, 358, 74 N. E. 603, 605, 5 L. R. A. (N. S.) 899, 108 Am. St. 
 Rep. 499, 3 Ann. Cas. 738, "In a broad sense the contending forces 
 may be called competitors." If the contest be carried on under the 
 rules which regulate the law of supply and demand, leaving those en- 
 gaged on either side to act under the general and natural laws of busi- 
 ness, free from artificial coercion or intimidation as the words are 
 ordinarily understood in this connection, then neither party has the 
 right to complain ; but if the coercion or intimidation by threats of a 
 direct personal loss, due not to causes arising out of the situation 
 or logical to the situation, but to a cause having no natural relation 
 to the situation and entirely inconsistent with the basic principle of 
 freedom of action under the natural laws of business, then there is 
 cause for the complaint. Such a method of coercion must be declared 
 illegal, as in violation of the right of the public and all concerned to a 
 reasonably free labor market, that is, a market where all may act under 
 this basic principle of freedom. 
 
 In view of these considerations and of others more fully set forth, 
 in iMartell v. White, which are not here repeated, and in Boutwell v. 
 Marr, ubi supra, a majority of the court are of opinion that the 
 overwhelming sense of the thing is that the principle that the right of 
 the employer is not subject to coercion or intimidation by injury or 
 threats of injury to the persons or property of laborers standing in the 
 market to meet him, should apply to the coercion and intimidation ex-
 
 Ch. 2) TORTS THROUGH MALICE 1397 
 
 erted by labor unions upon their members by fines or threats of fines. 
 Any other conchision is inconsistent with the existence of a reasonably 
 free labor market to which both the employer and the employe are 
 entitled. 
 
 Our attention has not been called to any case, nor are we aware of 
 any, in which the precise point here involved has been discussed, 
 which is inconsistent with the conclusion which we have reached. We 
 are not aware of any case in which it has been adjudged that where a 
 third party has a right to insist that those with whom he deals shall 
 be free from coercion the rule does not apply to coercive acts by way 
 of fines or threats of fines, imposed or to be imposed, by a voluntary 
 association upon its members in accordance with its by-laws. The case 
 of Bowen v. Matheson, 14 Allen, 499, was explained in Plant v. 
 Woods, 176 Mass. 492, S7 N. E. 1011, 51 L. R. A. 339, 79 Am. St. 
 Rep. 330. Neither in that case nor in Pickett v. Walsh, supra, was 
 there any evidence of coercion by fines. And the same may be said 
 of Mogul Steamship Co. v. McGregor, 15 O. B. D. 476, 21 Q. B. D. 
 54^^, 23 Q. B. D. 598, [1892] A. C. 25. In that case there was simply 
 a withdrawal of trade advantages under certain conditions. The de- 
 fendants had two prices — one price for one class of customers, and 
 a different one for another class. There was nothing in the nature 
 of an arbitrary fine. As stated by Fry, L. J., in the case as reported 
 in 23 Q. B, D. 598, 622: "Competition was in substance the only 
 weapon which the defendants intended to use against their rivals in 
 trade. No thought of using violence, molestation, intimidation, fraud, 
 or misrepresentation was entertained by the defendants." See, also, in 
 same case the language of Coleridge, C. J., 21 Q. B. D. 544, 552, and 
 that of Halsbury, Lord Chancellor, [1892] A. C, on p. 36, as follows: 
 "After a most careful survey of the evidence in this case, I have been 
 unable to discover anything done by the members of the associated 
 body of traders other than an offer of reduced freights to persons who 
 would deal exclusively with them" — and that of Lord Watson, on page 
 43 of the same volume. * * * 
 
 The result is that in the opinion of a majority of the court there 
 should be a decree restraining and enjoining the defendants, their 
 agents and servants from intimidating by the imposition of a fine, or 
 by a threat of such fine, any person or persons from entering into the 
 employ of the plaintiff or renoaining therein, or from in any way being 
 a party or privy to the imposition of any fine or threat of such im- 
 position upon any person desiring to enter into or remain in the em- 
 ploy of the plaintiff; and it is 
 
 So ordered.°^ 
 
 ■8 The statement of facts is abridged and parts of tlie opinion are omitted. 
 Knowlton, C. J., and Slioldon, ,7., dissented from tlie reasoning of tlie majori- 
 ty, upon the ground that the strike in this case was lawful, "because it must
 
 1398 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 GIBLAN V. NATIONAL A^TALGAMATED LABOURERS' UN- 
 ION OF GREAT BRITAIN AND IRELAND. 
 
 (Court of Appeal. [1903] 2 K. B. 600.) 
 
 The action was brought by James Giblan, a labourer, residing at 
 Newport, Mon., against the National Amalgamated Labourers' Union 
 of Great Britain and Ireland, Harry W, Williams, its general secre- 
 tary, and John Tooniey, its local secretary at Newport, claiming dam- 
 ages for loss of wages; also an injunction to restrain the defendants 
 respectively, or their agents or coadjutors, (a) from interfering in any 
 manner howsoever with any person or persons, company or corpora- 
 tion, with a view to causing such person or persons, company or cor- 
 poration, to break his or their contract or contracts with the plaintiff, 
 or to cease to employ him, or to abstain from entering into contracts 
 with him; (b) from preventing, or attempting to prevent, any person 
 or persons from working with the plaintiff' ; and (c) from otherwise 
 molesting or interfering in any manner with the plaintiff in follow- 
 
 be treated as instituted and carried on for the lawful purpose of obtaining 
 higher wages and shorter periods of labor,"' and the method employed was 
 ueither forbidden by any rule of law or "inconsistent with some rule of pub- 
 lic policy. * * * What seems to us the fallacy of the majority opinion is 
 its failure to act upon the fact that the strike in this case was upon justifiable 
 grounds, and of course was lawful. It follows that the action of each mem- 
 ber of the union in trying to maintain the strike, without force, or wrongful 
 coercion or intimidation exercised upon any one. was justifiable and lawful. 
 It was not an interference with the rights of the plaintiff, because, as we have 
 seen, the right of au employer to conduct his business without interference in 
 the labor market is subordinate to the right of his employes to strike and to 
 maintain the strike in a lawful manner. As against this right of the em- 
 ployes the employer has no right to have their labor flow to him uninfluenced 
 or undiverted." 
 
 But compare the remark of Professor .Teremiah Smith in 20 Harv. I^aw Rev. 
 355 (1907): "Assuming that a combination, in its intrinsic nature, is not nec- 
 essarily unlawful, and assuming also that the obvious aiming at monopoly 
 by labor combinations does not make them unlawful, still such combinations 
 may use special methods which are unlawful. Two methods deserve particu- 
 lar consideration here: The expulsion of members and the imposition of fines. 
 * * * Suppose that is one of the articles of agi'eement that disobedient 
 memliers may be heavily fined : and that thereafter the majority use the 
 threat of imposing a heavy fine in order to induce a minority member to join 
 in action damaging to a third person. Is this, as against the third person, an 
 unlawful method of inducoment?" 
 
 It has been held unlawful in Vermont and Massachusetts. Boutwell v. Marr 
 (isnoi 71 Vt. 1. 42 Atl. 007, 4?, L. R. A. 803, 76 Am. St. Rep. 746. and Martell 
 V. White (1004) 183 Mass. 25r). 69 N. H. lO.So. 64 L. R. A 200, 102 Am. St. Rep. 
 341. And this result seems correct. The initial agreement of the member does 
 no) make the imposition of the fine a lawful method of coercion. "* • * 
 When the will of the majority of an organized tKxly, in matters involving the 
 rights of outside parties, is enforced upon its members by means of fines and 
 penalties, the situation is essentially the same as when unity of action is se- 
 cured amon'.' unorganized individuals by threats or intimidation." Munson, 
 J., in Boutwell v. Marr (1809) 71 Vt. 1, 8, 42 Atl. 607, 43 L. R. A. S03, 76 Am. 
 St. Rep. 746.
 
 Ch.2) 
 
 TORTS THROUGH MALICE 1399 
 
 ing his calling. The facts leading to the commencement of the action 
 were as follows : 
 
 In 1S91 the plaintiff, wlio was at tlie time a riveter employed in the busi- 
 ness of repairing ships, became a member of the defendant union. He lived at 
 Ne'R'port, Mon., where there was a branch of the union, and ultimatel.v he 
 l)ecame treasurer of that branch, holding that office in 1S96 and 1897. In 1S99 
 some difficulties arose with reference to his accounts ; and it was alleged that 
 he hod retained a sum in hand of about f3S, which should have been handed 
 over to the society. He was seen by the general secretary, the defendant Wil- 
 liams, in reference to the matter, and on September 28, 1899, an agreement 
 was signed by which he admitted his indebtedness to the society in a sum of 
 £36. 9s. 2d., and agreed to pay this by £10 on October 9, 1890. and £1 a month 
 until the whole debt was liquidated. As he failed to carry out this agreement 
 an action was brought against him in the county court, at the instance of the 
 union, in December, 1899, when judgment was obtained against him for the 
 amount of the arrears payable under the agreement, which at that time 
 amounted to about £11. By the judgment he was ordered to pay £5 forth- 
 with, and the balr.nce of the axuount by installments of £1 per month. Shortly 
 afterwards he ixiid £4, but after making that payment he failed to make any 
 further payments under the judgment or the agreement. 
 
 On February 5, 1900, whilst the plaintiff was engaged at work at the Prihce 
 of Wales Dry Dock at Swansea, the defendant Williams went to the foreman 
 and gave him notice that unless the plaintiff was dismissed the other union 
 men who were employed there would be called out on strike. In consequence of 
 that the plaintiff's employers discharged him, and for some two or three weeks 
 he was out of employment. After that, however, he again obtained employ- 
 ment, and was in full work until nearly the close of the year 1900. Mean- 
 while, he had made no payments in respect of the amount he owed the imion, 
 and in June, 1900. a judgment summons was issued against him at tlie instance 
 of the union in the eountj- court, claiming that £11 was due from him. This 
 proved to be an error, and the summons was dismissed with costs. This fact, 
 according to the plaintiff's case, irritated the officials and members of the 
 union, and determined them, by the course they subsequently took, to punish 
 him by preventing him from obtaining employment or from continuing to work 
 if he happened to obtain a job. He was still a member of the union, and had 
 duly paid his contributions as such. In August, 1900, his poiiition in relation 
 to the union, and his indebtedness to that body, came up for consideration at 
 the annual genei'al meeting of the union, which took place on August 6, 7. and 
 8, at the town hall. Newport, when a resolution for his expulsion was passed, 
 which was embodied in the following minutes: "The general secretary ex- 
 plained what he had done in this matter, and the position at present. He said 
 that Giblan seemed determined not to pay back to the society his defalcations, 
 but was putting it to all the trouble and expense he could. Afer the whole of 
 the facts had been stated, it was moved by brothers J. Bui'ns and Kenny, 'That 
 after hearing the genei'al secretary's statement re Giblan's actions, and the 
 amount of his defalcations, he shall be expelled from this union and shall 
 only be allowed to rejoin by paying to the society such moneys as are due, 
 being defalcations when treasurer of Newport No. 4 branch. The terms of 
 pavment to be arranged with the general secretary on the basis of this resolu- 
 tion.' " 
 
 The plaintiff having thus been expelled from the union, the defendant Wil- 
 liams, on August 11, 1900, wrote to the then treasurer of the Newport branch, 
 informing him of the resolution, and requesting him to post by registered letter 
 to the plfiiiitiff a notice of his expulsion, also requesting him to consider the 
 plaintiff" a non-member, and so to inforin the members of that and other 
 branches, and to post up in the club-room a notification that he was not a 
 member, and that he nmst be treated by the members as a non-unionist until 
 further orders. Notice of expulsion was accordingly sent to the plaintiff". At 
 a district joint committee meeting held at Newport on October 13, 1900, sev- 
 eral union men were fined for working wath the plaintiff as being an expelled 
 member. 
 
 On December 29, 1900, the plaintiff was in employment at NewT)ort, when 
 the defendant Toomey, the union's local secretary there, went to his employer
 
 1400 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 and gave him notice that unless tlie plaintiff was discharged other men in the 
 employment would be called out by the union; and Toomey also gave notice 
 to the other men, being members of. the union, that if they worked with the 
 plaintiff they would be called out. Consequently the plaintiff was discharged. 
 In a similar way, on four subsequent occasions, at Newpoit, Sharpness, and 
 Swansea, the last occasion being on April 19, 1901, once through the inten-en- 
 tion of the defendant Williams, and thrice through that of the defendant 
 Toomey, the plaintiff was prevented from retaining employment, in each case 
 notice being given to the union men in the employment that if tbey worked 
 with the plaintiff they would be called out. It appeared that another ground 
 for those proceedings against the plaintiff was that he, a non-unionist, was ob- 
 taining employment when union men were out of work. 
 
 The action was tried at Cardiff before Walton, J., with a jury, when 
 after hearing a considerable amount of evidence the learned judge 
 left the following questions to the jury: 
 
 (1) Did the defendants Williams and Toomey, acting together or 
 individually, call out the union men or threaten to call them out 
 unless the plaintiff was stopped? (2) If they or either of them did, 
 did they or he by so doing prevent, or endeavour to prevent, the 
 plaintiff" from getting employment or retaining his employment? (3) 
 Was this done in order to compel the plaintiff to pay the arrears of 
 his defalcations? (4) Was it done in order to punish the plaintiff 
 for not paying such arrears ? The following alternative questions were 
 also submitted to the jury in the event of their answering the above 
 questions in the affirmative : (5) Was what the defendants Williams 
 and Toomey, or either of them, did only to warn the employers that 
 the union men would leave in consequence of union workmen being 
 unwilling to work with the plaintiff? (6) Was this done in conse- 
 quence of the union men objecting to work with the plaintiff? (7) 
 What damages, if any? The jury answered the first three questions 
 in the affirmative, and the fourth also as regarded Williams, but in 
 the negative as regarded Toomey. Their replies to the alternative 
 questions were in the negative, and they assessed the damages at 
 ilOO. 
 
 The result was that Walton, J., came to the conclusion that the 
 defendant Williams was individually liable to the plaintiff for the 
 acts complained of, but he gave judgment for the other defendants, 
 the union and Toomey. The plaintiff' appealed against so much of 
 the judgment as refused the relief he claimed by his action. The de- 
 fendant Williams did not appeal from the judgment against him.''^ 
 
 RoMER, L. J. What are the facts of this case as stated by Walton, 
 J., and found by the jury? In effect they are that the defendants 
 Williams and Toomey, as officers of the defendant union, had, by 
 virtue of their position, control over the men of the union, and con- 
 sequently power to influence employers by calling out or threatening 
 to call out the men unless the demands of the defendants Williams and 
 Toomey were complied with; and accordingly that the defendants 
 
 «7 The statement of facts is abridged, and the arguments of counsel are 
 omitted.
 
 Ch. 2) TORTS THROUGH MALICE 1401 
 
 combined to prevent, and did prevent, the plaintiff from getting or 
 retaining employment by calling out or threatening to call out the 
 men ; and, further, that this caused damage to the plaintiff to the ex- 
 tent of £100, and the jury negatived the suggestion that what tlie de- 
 fendants did, first, was only to warn the employers that the men 
 would leave in consequence of the men objecting to work with the 
 plaintiff; and, secondly, was done in fact in consequence of the men 
 objecting to work with the plaintiff. Lastly, it is found that the de- 
 fendants acted as they did in order to compel the plaintiff to pay the 
 arrears of some moneys due from him to the union. 
 
 The question then is whether, on these facts, the defendant Toomey 
 ought not to have been held liable to tlie plaintiff, as well as the de- 
 fendant Williams who was also found to have been actuated by a 
 desire to punish the plaintiff for not paying the arrears. Now, since 
 the decision of the House of Lords in the case of Ouinn v. Leathem, 
 [1901] A. C. 495, I take it to be clear, even if it had not been clear 
 before, that a combination of two or more persons, without justifica- 
 tion, to injure a workman by inducing employers not to employ him or 
 continue to employ him, is, if it results in damage to him, actionable. 
 But although I think there is no difficulty in stating the law, I fully 
 realize that considerable difficulty may often arise in particular cases 
 in ascertaining what is a "justification" within the meaning of my 
 statement. As to this, I can only say that regard must be had to 
 the circumstances of each case as it arises, and that it is not practical- 
 ly feasible to give an exhaustive definition of the word to cover all 
 cases; and I would refer to what I have already said on a similar 
 point in the judgment I have just delivered in the case of the Gla- 
 morgan Coal Co. V. South Wales Miners' Federation, [1903] 2 K. 
 B. 545. I will only add that I do not think any excessive practical 
 difficulty would arise in directing a jury on the point in any particular 
 case ; and I may refer as illustrating this, to the direction given to 
 the jury by FitzGibbons, L. J., in the case of Ouinn v. Leathem, 
 [1901] A. C. at p. 500. In the case now before us I cannot say that I 
 feel any difficulty in applying the law as regards the defendant Toomey. 
 For, on the facts, I have simply to detennine whether two or more 
 persons, who by virtue of their position have special power to carry 
 out their design, are justified in combining to prevent, and in fact 
 preventing, a workman from obtaining any employment in his trade 
 or calling, to his injury, merely because they wish to compel him to 
 pay a debt due from him. In my opinion they are not justified; and 
 consequently the defendants Toomey and Williams are, in my opin- 
 ion, liable to the plaintiff for the damage suffered by him through the 
 conduct of the defendants. 
 
 I may point out, with reference to some observations made in the 
 course of the argument, that this is not a case where the defendants, 
 knowing of the plaintiff's defalcations, thought it their duty to warn
 
 1402 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 employers as to the plaintiff's character, or where the plaintiff's fel- 
 low-workmen, by reason of that character, declined to work with him. 
 The findings of the jury negative any such case. And, further, I desire 
 to add, with reference to an argument addressed to us on behalf of 
 the defendants, that the intent on the part of the defendants Williams 
 and Toomey to injure the plaintiff appears from the findings of the 
 jury. The intent of the defendants was to prevent the plaintiff's 
 obtaining or retaining employment, in order to compel him to pay a 
 debt due from him ; and from this the intent to injure the plaintiff ap- 
 pears to me to follow. 
 
 But I should be sorry to leave this case without observing that, in 
 my opinion, it was not essential, in order for the plaintiff to suc- 
 ceed, that he should establish a combination of two or more persons 
 to do the acts complained of. In my judgment, if a person who, by 
 virtue of his position or influence, has power to carry out his design, 
 sets himself to the task of preventing, and succeeds in preventing, a 
 man from obtaining or holding employment in his calling, to his injury, 
 by reason of threats to or special influence upon the man's employers, 
 or would be employers, and the design was to carry out some spite 
 against the man, or had for its object the compelling him to pay a 
 debt, or any similar object not justifying the acts against the man, 
 then that person is liable to the man for the damage consequently 
 suffered. The conduct of that person would be, in my opinion, such 
 an unjustifiable molestation of the man, such an improper and inex- 
 cusable interference with the man's ordinary rights of citizenship, as 
 to make that person liable in an action. And I think this view is 
 borne out by the views expressed by the members of the House of 
 Lords who decided the case of Quinn v. Leathem, [1901] A. C. 
 495.''« 
 
 The remaining question is as to the liability of the defendant union. 
 That depends upon whether, if the acts complained of had been done 
 by the executive committee, the union would have been liable. I have 
 come to the conclusion tliat the union would have been liable on the 
 principle stated in Barwick v. English Joint Stock Bank, L. R. 2 Ex. 
 259, — that the acts were done in the service and for the benefit of the 
 union. 
 
 Stirling, L. J. The findings of the jury in this case, even when 
 taken most favourably for the defendants, appear to amount to this — 
 that the defendants Williams and Toomey, acting together, prevented 
 or endeavoured to prevent the plaintiff from being employed, by 
 threatening his employers that the union men would be called out on 
 strike unless they dismissed him (which those employers could do 
 without breach of any contract between them and the plaintiff), and 
 that Williams and Toomey so acted with the object of compelling the 
 
 «8 For a discussion of this point, see Salmond on Torts (3d Ed.) 476-479.
 
 Ch. 2) TORTS THROUGH MALICE 1403 
 
 plaintiff to pay the arrears of his defalcations as a former officer of 
 the union. 
 
 I shall first consider the case as against the defendant Toomey, 
 which appears to turn on the question whether he and his codefendant 
 Williams have been engaged in an unlawful conspiracy. 
 
 In the case of Mulcahy v. Reg. (1868) L. R. 3 H. L. 306, 317, Willes, 
 J. (advising the House of Lords), defined a conspiracy as consisting 
 in the agreement O'f two or more to do an unlawful act or to do a 
 lawful act by unlawful means.®® 
 
 In this case I assume that the defendants agreed to do what they 
 did for a lawful object, namely, to obtain payment from the plaintiff 
 of what he owed to the trade union. It must then be made out that 
 they sought to do so by unlawful means. It was contended in argu- 
 ment that unlawful means must be such as would be wrongful if com- 
 mitted by a single individual : I cannot agree. In Mogul Steamship 
 Co. V. McGregor (1889) 23 O. B. D. 598, 616, Bowen, L. J., states 
 the law thus : "Of the general proposition, that certain kinds of con- 
 duct not criminal in any one individual may become criminal if done 
 by combination among several, there can be no doubt. The distinction 
 is based on sound reason, for a combination may make oppressive or 
 dangerous that which if it proceeded only from a single person would 
 be otherwise, and the very fact of the combination may shew that the 
 object is simply to do harm and not to exercise one's own just rights. 
 In the application of this undoubted principle it is necessary to be very 
 careful not to press the doctrine of illegal conspiracy beyond that 
 which is necessary for the protection of individuals or of the public; 
 and it may be observed in passing that as a rule it is the damage 
 wrongfully done, and not the conspiracy, that is the gist of actions 
 on tlie case for conspiracy." This view of the law has been recogniz- 
 ed in the House of Lords in the same case on appeal, [1892] A. C. 25, 
 and also in Quinn v. Leathern, [1901] A. C. 495, particularly by Lord 
 Macnaghten, at pp. 510, 511, by Lord Brampton, at pp. 529-531, and by 
 Lord Lindley, at p. 538. Lord Brampton further says, at pp. 528, 529 ; 
 "The essential elements, whether of a criminal or of an actionable 
 conspiracy, are, in my opinion, the same, though to sustain an action 
 special damage must be proved." This agrees with what is laid down 
 by Bowen, L. J., in the last sentence cited above, and is supported by 
 the case of Barber v. Lesiter (1860) 7 C. B. (N. S.) l75,\o which 
 Lord Brampton refers. In the present case damage has been found 
 by the jury. 
 
 The question then arises whether the preventing the plaintiff from 
 obtaining employment, by threats of calling out the union men unless 
 he was dismissed, is an unlawful act on the part of Toomey and Wil- 
 liams acting in combination; and in considering this question there 
 
 9 On conspiracy as a substantive wrong, see also Pollock on Torts (9tli Ed.) 
 328 ; Salmond on Torts (3fl Ed.) 471 ; Burdick on Torts (3d Ed.) 325 ; 27 Hals- 
 bury's Laws of England, 655-658.
 
 1404 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 must be borne in mind the observation of Bowen, L. J., just quoted, as 
 to the necessity of using great care not to extend too far the doctrine 
 of illegal conspiracy. In the Mogul Case, [1892] A. C. 25, it was 
 decided that acts done by traders in the exercise of their right to car- 
 ry on a legal business were not illegal, although highly detrimental 
 to another trader engaged in a similar and competing business. Fry, 
 L. J., puts the matter thus, 23 Q. B. D. 625 : "The right of the plain- 
 tiffs to trade is not an absolute but a qualified right — a right condi- 
 tioned by the like right in the defendants and all Her Majesty's sub- 
 jects, and a right therefore to trade subject to competition." So 
 also every workman is entitled to dispose of his labour on his own 
 terms ; but that right is conditioned by the right of every other work- 
 man to do the like. In particular, each employee is, as I think, at lib- 
 erty to decide for himself whether he will or will not work along with 
 another individual in the same employ; and if all the workmen but 
 one determine that they will not continue their labour in company with 
 that one, they may inform their employer of their decision. On this 
 I refer to what was said in Allen v. Flood, [1898] A. C. 1, by Lord Wat- 
 son, at pp. 98-9, and Lord Davey, at p. 173. Those who desire to ex- 
 ercise such a right must indeed proceed with care, for the law forbids 
 in this connection various classes of acts. I think, however, that it is 
 unnecessary on this occasion to discuss this part of the subject, for 
 the fifth and sixth findings of the jury appear to me to negative any 
 suggestion that the acts of Williams and Toomey were done on behalf 
 of the fellow-labourers of the plaintiff, or in exercise of any right of 
 theirs to withdraw themselves from an employment in which he took 
 part. These acts were directed to inflict harm on the plaintiff by 
 preventing him fro.m obtaining or retaining employment, and conse- 
 quently from earning his livelihood in the only way in which he could 
 do so. By their acts they, Williams and Toomey, caused him as seri- 
 ous an injury as can well be done to a working man; and that injury 
 resulted in damage. They did those acts from time to time, as the 
 plaintiff succeeded in obtaining employment, by going to his employer 
 and threatening that they would resort to the powers which were, or 
 v/ere believed to be, vested in them as officers of a trade union, and 
 which involved a resort to tlie power of numbers in a way which 
 might and probably would cause detriment to the employer. It may, 
 in my opinion, be fairly inferred from the evidence that this course 
 of conduct was intended to be continued until the plaintiff made terms 
 satisfactory to the trade union. Such acts, so persisted in, seem to 
 me to be in the nature of molestation or coercion ; and although they 
 do not involve recourse to physical force, I am far from satis^ed that 
 they are not such as to be illegal even if done by a single individual. 
 Fry, L. J., in the same judgment in the Mogul Case, says: "I do not 
 doubt that it is unlawful and actionable for one man to interfere with 
 another's trade by fraud or misrepresentation, or by molesting his 
 customers, or those who would be his customers, whether by physical
 
 Ch. 2) TORTS THROUGH MALICE 1405 
 
 obstruction or moral intimidation." It is unnecessary, however, to 
 decide this point, for these acts which inflicted injury on the plaintiff, 
 resulting in damage, were done by two persons in combination, and 
 amounted to an interference with the plaintiff's rights no less serious 
 than that which was the subject of the action of Gregory v. Duke of 
 Brunswick (1843-44) 6 Man. & G. 205, 953, a case which has been 
 treated as an authority in the House of Lords in Quinn v. Leathem, 
 [1901] A. C. at p. 503. It was there held that a conspiracy to hiss an 
 actor off the stage, and so injure him in his trade or calling, was il- 
 legal, and that acts done in pursuance of such a conspiracy were not 
 excused by shewing that the actor was an unfit person to appear be- 
 fore the public. So here, the acts of the defendants Williams and 
 Toomey were not excused, in my opinion, by the fact that the plaintiff 
 had been guilty of defalcations and owed a considerable sum to the 
 trade union. I do not in the least extenuate the wrongs suffered by 
 the trade union at tlie hands of the plaintiff' : I think he behaved bad- 
 ly and the trade union shewed him great forbearance : still, even a 
 criminal ought not to be persecuted but to be punished according to 
 law. If the plaintiff was guilty of a criminal offence he might and 
 ought to have been prosecuted, in which case the appropriate punish- 
 ment would have been meted out to him by a legal tribunal. If he 
 failed to pay a just debt, the law provides ample means for enforcing 
 payment of it. In certain cases, though not universally, the non-pay- 
 ment of a debt is punishable by imprisonment. The plaintiff might 
 possibly have been punished in this way : an attempt to punish him 
 was made and was defeated on technical grounds only ; but, so far 
 as I can see, the attempt might have been repeated with a fair pros- 
 pect of success. This was not done, but Williams and Toomey adopt- 
 ed the course which has resulted in the present action. If the ex- 
 istence O'f the default or debt were admitted as a valid excuse for de- 
 priving a defaulter or debtor of his employment, a punishment might 
 be inflicted on him far greater than that which is allowed by law. 
 
 I come, therefore, to the conclusion that the defendants Williams 
 and Toomey were guilty of a tort in respect of which they are liable 
 to the plaintiff in this action; and I pass on to consider whether the 
 defendants, the trade union, are also liable. * * * ^'^ 
 
 Appeal allowed.'^ ^ 
 
 70 On this question, Stirling, L, J., reactiecl the conclusion that the union 
 was liable. 
 
 Ti An opinion by Vaughan Williams, L. J., that the appeal must be allowed, 
 is omitted.
 
 1406 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 GLAMORGAN COAL CO., Limited, et al. v. SOUTH WALES 
 MINERS' FEDERATION et al. 
 
 (King's Bench Division. [1903] 1 K. B. 118. Court of Appeal. 
 
 [1903] 2 K. B. 545.) 
 
 This action was brought by the Glamorgan Coal Company, Limited, 
 and seventy-three other plaintiffs against the South Wales Miners' 
 Federation, its trustees, its officers, and a number of the members of 
 its executive council, to recover damages for wrongfully and mali- 
 ciously procuring and inducing the workmen in the plaintiffs' col- 
 lieries to break their contracts of service with the plaintiffs. In the 
 alternative, the plaintiff's also sue the defendants for wrongfully, 
 unlawfully, and maliciously conspiring together to do the acts com- 
 plained of. The conspiracy count is put this way: The defendant 
 federation, by its agents, its executive council, and the other defend- 
 ants (naming them), well knowing the terms and conditions of the con- 
 tracts of service with the workmen, wrongfully, unlawfully, and ma- 
 liciously conspired together to do the acts complained of, that is, to 
 procure the workmen to break their contracts of service by taking holi- 
 days, called stop-days. The plaintiff's claim both damages and an in- 
 junction. 
 
 The defendants, after denying the material allegations in the state- 
 ment of claim, alleged in substance that the acts complained of, if 
 done at all, were done with reasonable justification and excuse. 
 
 In his written judgment in the Divisional Court Bigham, J., made 
 a finding of facts, in which the following, among other facts, appear : 
 
 The plaiutiflfs are seventy-four limited liability companies associated to- 
 gether for the protection of their own interests under the style of the Mon- 
 mouthshire and South Wales Coal Owners' Association. They work upwards 
 of 200 collieries in the South Wales district, and in these collieries they em- 
 ploy about 100,000 men. For the last twenty or twenty-five years the masters 
 and the men in the South Wales colliery district have worked together under 
 an agreement, called the sliding scale agreement, by which the rate of wages 
 paid to the men is made to depend on the price for the time being of a certain 
 agreed class of coal — that is to say, as the price of that coal rises or falls so 
 the rate of wages moves up or down. It is thus to the interest, not only of the 
 masters, but also of the men, to keep up the price of coal, but, at tho same 
 time, not to drive it up to such a point as will unduly interfere with the de- 
 mand. Against the producers of coal there are always arrayed a number of 
 coal dealers, known as merchants or middlemen, who buy coal to be shipped to 
 foreign ports, or for resale in the South Wales market The interest of these 
 men is, of course, to keep down prices, so that they may buy as cheaply as 
 possible. They fre<iuently sell large quantities of coal for forward delivery 
 at prices below those current for immediate delivery, trusting to supply them- 
 selves later on by purchases fi'oni one or other of the many collieries at prices 
 which will make their bargains remunerative. This has the effect of depress- 
 ing the market, and on more than one occasion, and particularly in the years 
 IS'JG and 1897, the masters and men have tried together to devise some scheme 
 to so regulate the output of the mines, by means of stop-days or otlierwise, as 
 to counteract this effect. There has, however, always been a difficulty in get- 
 ting a sufficient number of the colliery proin-ietors to fall in witli any scheme 
 having for its ol).ject the restriction of output, and thus nothing has been done. 
 On April 1, 1898, a strike broke out in the South Wales district, and the col-
 
 Ch.2) 
 
 TORTS THROUGH MALICE 1407 
 
 lieries were closed from that date to August 31. On September 1 work was 
 resumed throughout the district. At the collieries of foi-ty-seven of the plain- 
 tiff companies it was resumed under an agreement which embodied the old 
 sliding scale. By this agreement it was provided that a joint committee of 
 masters and men should be formed, which should be called the joint sliding 
 scale committee ; and that it should be comprised of twelve masters, represent- 
 ing the forty-seven firms, and of twelve men elected by the colliers in the 
 employment of those firms. Each half of this committee was to have its own 
 secretary, elected from its own twelve members, and it was contemplated that 
 each half might from time to time meet separately to discuss matters affect- 
 ing its own interests. One of the principal objects of the joint committee was 
 to ascertain, by audits of the sales of the forty-seven firms, the average price 
 of coal, for the purpose of regulating wages thereby. The agreement contained 
 many other provisions in addition to the provision for the formation of the 
 joint committee, but it is only necessary to refer to one of them — clause 23 of 
 the embodied sliding scale agreement, which is as follows: 'It is hereby 
 agreed that all notices to terminate contracts on the part of the employers, as 
 well as employed, shall be given only on the first day of any calendar month, 
 and to terminate on the last day of the same month.' Although only forty- 
 seven of the plaintiffs were parties to that agreement and were alone to be 
 represented on the joint sliding scale committee, the men employed by the 
 other twenty-seven plaintiffs went back to work on the same terms, both as to 
 wages and notice, as those contained in the agreement. On October 11, 1898, 
 the defendant federation was formed, and practically all the miners in the 
 South Wales district became members of it. Tliey number about 128,000, and 
 they include all, or very nearly all, the men who work for the plaintiffs. 
 
 The federation prospered greatly so that by the end of 1900 it found itself 
 in the possession of funds amounting to £100.000. The price of coals also 
 rose, and with it the rate of wages. But in October or November, 1900, the 
 council of the federation seemed to have felt some apprehension that this pros- 
 perity was being threatened by the merchant and the middleman. It is at 
 this season of the year that foreign governments and others make their con- 
 tracts for forward delivei"y of coal, and the prices at which these contracts 
 were being effected alarmed the council, and foreshadowed a fall in prices. 
 
 To guard against this, and in the honest belief that the danger was real, 
 the council of the federation passed a resolution ordering a stoi>-day for Fri- 
 day, November 9. A further resolution was passed that a general conference 
 of the federation should be convened for November 12. In the meanwhile the 
 following manifesto was ordei'ed to be circulated: "Fellow Workmen — Your 
 council, having seriously considered the present condition of the coal trade, 
 are strongly of opinion that an organized attempt is being made to unduly in- 
 terfere with trade and prices to such an extent as will prejudice the interest 
 of the members of the federation. With a view of preventing the industry be- 
 ing exploited by merchants and middlemen, we have unanimously resolved 
 that a general holiday be taken throughout the coal field by all colliery work- 
 men on Friday next, November 9, 1900. We also request you upon that day 
 to hold general meetings for the purpose of appointing delegates to attend a 
 conference at the Cory Memorial Hall on Monday next, November 12, 1900, to 
 consider and determine our future policy, as embodied in the following reso- 
 lution: That the conference hereby authorizes the council to declare a gen- 
 eral holiday at any time they think it necessary for the protection of our 
 wages and the industry generally. W. Abraham." This manifesto had the de- 
 sired effect, and on November 9 all the colliers in the coal field, including the 
 men working in the plaintiffs' collieries, stopped work. No notice of any 
 kind was served on the masters, and they knew nothing of the matter xmtil 
 they saw a report of Mr. Abraham's si>eech in the newspapers of November 6. 
 This stoppage on November 9 is the first matter of which the plaintiff's com- 
 plain in this action. On November 12, 1900, the conference which had been 
 convened for that day was held, and at it a resolution was passed authorizing 
 the council of the federation to declare a general holiday at any time they 
 might think it necessary for the protection of wages and of the industry gen- 
 erally. 
 
 In ordering the stop-day on November 9, the federation acted as they 
 thought in the best interest of the men, and without any intention, malicious
 
 1408 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 or otherwise, of injuring the plaintiffs. About three weeks after this stop- 
 day, the associated owners met, and, after negativing the expediency of prose- 
 cuting the men, resolved as follows: "That tlie owners' side of the sliding 
 scale committee ix>iut out to the workmen's representatives that a resolution 
 has been passed by the association, that, if the men make any future illegal 
 stoppage, the owners will take proceedings against the men." 
 
 On October 23, 1901, the federation published the following signed manifes- 
 to: "To the workmen employed at the South Wales and Monmouthshire Col- 
 lieries. It having come to the knowledge of your representatives upon the 
 sliding scale committee that large contracts have already been made at con- 
 siderably lower prices than the average price declared by the last sliding scale 
 audit, and fearing the result of those contracts upon annual and other con- 
 tracts about to be made, which must of necessity mean a heavy reduction in 
 wages, it was unanimously resolved that the workmen shall observe as gen- 
 eral holidays Friday and Saturday next." Telegrams were then sent to all 
 the collieries in South Wales, notifying the fact that the stop-days had been 
 declared. Subsequently two other stop-days were ordered by the federation, 
 one for October 31 and one for November 6. 
 
 The result of all this was that the men stayed away from work on the four 
 days, and so broke their contracts with the masters. 
 
 In concluding his finding of facts, Bigham, J., remarked as fol- 
 lows : 
 
 "There was no quarrel at all between the masters and the men, and, 
 so far as I can see, no ill will. The men objected to the course of 
 business adopted by the middlemen, and in this objection some, at least, 
 of the masters seem to have shared. The evidence satisfies me that 
 the action of the federation, and of the other defendants in 1901, was 
 dictated by an honest desire to forward the interest of the workmen, 
 and was not, in any sense, prompted by a wish to injure the mas- 
 ters. Neither the federation nor the other defendants had any pros- 
 pect of personal gain from the operation of the stop-days. Having 
 been requested by the men, by the resolution of November 12, 1900. 
 to advise and direct them as to when to stop work, the federation and 
 the other defendants, who were its officers, in my opinion, did to 
 the best of their ability advise and direct the men. Whether they ad- 
 vised them wisely I cannot say, though I am inclined to think not. 
 But I am satisfied that they advised them honestly and without malice 
 of any kind against the plaintiflfs. 
 
 "I have to decide, in these circumstances, whether an action in 
 tort will lie against the defendants. The advice and guidance of the 
 defendants was solicited and given. If followed, it involved, as the 
 defendants knew, the breaking of the subsisting contracts. It was 
 followed, as the defendants wished it should be ; and damage resulted 
 to the masters; but there was no malicious intention to cause injury, 
 no profit was gained for themselves by the defendants, and their sole 
 object was to benefit the men, whom they were advising and direct- 
 ing." 
 
 On these facts the judgment in the Divisional Court was for the 
 defendants on both branches of tlie plaintiffs' claim. The plaintiffs 
 appealed.
 
 Ch. 2) TORTS THROUGH MALICE '1409 
 
 [In the Court of Appeal] 
 
 The following" judgments were read: 
 
 Vaughan Williams, L. J. * * * This decision of Bigham, 
 J., does not, of course, involve any such proposition as that the 
 workmen have a right to break the contracts entered into by them 
 respectively because each one of them may think honestly that it is 
 either for his individual advantage, or for the advantage of the work- 
 men collectively, that the contracts should be broken. Each work- 
 man will, of course, be liable to be sued for his own breach of con- 
 tract. The question is whether an action will lie for procuring a 
 breach of contract or for conspiracy. Taken in its simplest form, 
 the question would be whether, if a hundred men in the same em- 
 ploy agreed that they would each of them with the same object break 
 their respective contracts on a given day, an action would lie, either 
 against each of them for procuring breaches of contract by the others, 
 or against the hundred collectively for conspiracy, or whether it could 
 be said that there was anything in the relation of the men one to 
 another which negatived an action in the form of an action for pro- 
 curing a breach of contract, or an action for conspiracy, in a case in 
 which that which was agreed to be done, or to do which the com- 
 bination was formed, was undoubtedly a wrongful act, for which each 
 one could be sued for breach of his own personal contract. It seems 
 to me that if these prima facie causes of action, arising for procuring 
 a breach of contract or combining to procure it, do not lie, it must 
 be either on the ground that community of interest excludes a pro- 
 curing each of the other connected by community of interest, or be- 
 cause the relation of the parties, whoever they are, raises a duty 
 to counsel one another and to arrange for concerted action. Some 
 such proposition would cover the instances suggested by the learned 
 judge and by counsel in argument, such as a brother advising a sister, 
 or a parent a child, or a doctor a patient, or a 'solicitor a client, but 
 the principle is the same in each case, and the question must be the 
 same in each case. Is the relation such as to raise the duty? In each 
 of those cases the person breaking the contract is not the agent of 
 the person giving the advice, however influential the adviser may be. 
 The action for procuring a breach of contract is an action for wrong- 
 fully interfering in the contractual relations of other persons. The 
 effect, if any, of the duty or right arising from the relation is only 
 that it negatives the prima facie presumption of malice which the law 
 supposes from interference with the contractual rights between the 
 parties to a contract of which the interferer has notice; and the de- 
 fendant can always rebut the prima facie presumption thus arising by 
 the proof of circumstances raising a duty to advise ; but the plaintiff 
 on his part can neutralize this by proof of express malice.' In no 
 other sense is it true to say that, in an action for procuring a breach 
 
 IlErB.TOBTS — SO
 
 1410 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 of contract, it is necessary to prove malice or motive, or anything 
 more than mere notice of the contract. I think that similar observa- 
 tions arise on conspiracy ; for, prima facie, a combination to inter- 
 fere with the civil rights of another, whether it be his right to full 
 freedom in disposal of his own labor or his own capital or any other 
 right of citizenship, is an unlawful combination, because such in- 
 terference, if carried into effect, is an actionable wrong, and it is this 
 fact, and not any mere malicious motive, which constitutes the com- 
 bination a conspiracy. This prima facie wrongful interference may 
 be negatived by showing that the exercise of the defendants' own 
 rights involved the interference complained of, which interference is 
 merely the exercise of the right of a man to interfere in a matter in 
 which he is jointly interested with others, and such interference gives 
 no cause of action. In such a case there will be intentional procure- 
 ment of a violation of individual rights, contractual or other, but 
 just cause for it, as being done for the maintenance of the equal civil 
 rights of the defendants. * * * 
 
 But whatever may be the identity of the federation and the men, 
 it seems impossible in any action for breach of contract merely, and 
 nothing else, brought against the federation, as the collective forensic 
 name of the men, to sign a judgment against the federation, because 
 the federation are not parties to the contract which has been broken. 
 It follows that, if the federation is liable at all, it must be either in 
 an action for procuring breaches of contract or conspiracy, and in 
 either form of action there is a prima facie case against the federa- 
 tion, and the federation, being a separate entity from the men, must 
 shew some sufficient justification for their interference. The federa- 
 tion and the members of their council who are defendants seek to 
 base this justification on the suggestion that their relation to the men 
 raises a duty on their part to advise the men, or, at all events, nega- 
 tives their being mere meddlers. It was argued before us that the 
 defendants were not mere advisers, but that they were actors who did 
 the very thing complained of, in that they issued the notices ordering 
 the stop-days, and compelled reluctant men to break their contracts by 
 staying away from work without giving proper notices to their em- 
 ployers, and that the view of the federation was that men who refused 
 to stay away would be guilty of disloyalty to the federation ; but this 
 argument does not convince me that the federation were not acting 
 as advisers, nor does the fact that the federation actually issued the 
 notices deprive the defendants of their character of advisers. It is 
 not suggested in this case that the men stayed away from work under 
 threats, intimidation, or physical compulsion. I think, therefore, the 
 judgment of Bigham, J., must be affirmed for the reasons given by 
 him. * * * 
 
 RoMDR, L. J. The law applicable to this case is, I think, well set- 
 tled. I need only refer to two passages in which that law is shortly
 
 Ch. 2) TORTS THROUGH MALICE 1411 
 
 and comprehensively stated. In Quinn v. Leathern, [1901] A. C. 
 495, at p. 510, Lord Macnaghten said: "A violation of legal right 
 committed knowingly is a cause of action, and it is a violation of legal 
 right to interfere with contractual relations recognized by law if there 
 be no sufficient justification for the interference." And in Mogul 
 Steamship Co. v. McGregor, Gow & Co., 23 Q. B. D. 598, at p. 614, 
 Bowen, L. J., included in what is forbidden "the intentional procure- 
 ment of a violation of individual rights, contractual or other, assum- 
 ing always that there is no just cause for it." But although, in my 
 judgment, there is no doubt as to the law, yet I fully recognize that 
 considerable difficulties may arise in applying it to the circumstances 
 of any particular case. When a person has knowingly procured an- 
 other to break his contract, it may be difficult under the circum- 
 stances to say whether or not there was "sufficient justification or 
 just cause" for his act. I think it would be extremely difficult, even 
 if it were possible, to give a complete and satisfactory definition of 
 what is "sufficient justification," and most attempts to do so would 
 probably be mischievous. I certainly shall not make the attempt. 
 * * * But, though I deprecate the attempt to define justification, 
 I think it right to express my opinion on certain points in connection 
 with breaches of contract procured where the contract is one of mas- 
 ter and servant. In my opinion, a defendant sued for knowingly pro- 
 curing such a breach is not justified of necessity merely by his show- 
 ing that he had no personal animus against the employer, or that it 
 was to the advantage or interest of both the defendant and the work- 
 man that the contract should be broken. I take the following simple 
 case to illustrate my view. If A. wants to get a specially good work- 
 man, who is under contract with B., as A. knows, and A. gets the 
 workman to break his contract to B.'s injury by giving him higher 
 wages, it would not, in my opinion, afiford A. a defence to an ac- 
 tion against him by B. that he could establish he had no personal ani- 
 mus against B., and that it was both to the interest of himself and 
 of the workman that the contract with B. should be broken. I think 
 that the principle involved in this simple case, taken by me by way 
 of illustration, really governs the present case. For it is to be re- 
 membered that what A. has to justify is his action, not as between 
 him and the workman, but as regards the employer B. And, if I 
 proceed to apply the law I have stated to the circumstances of the 
 present case, what do I find? On the findings of fact it is to my 
 mind clear that the defendants, the federation, procured the men to 
 break their contracts with the plaintiffs — so that I need not consider 
 how the question would have stood if what the federation had done 
 had been merely to advise the men, or if the men, after taking ad- 
 vice, had arranged between themselves to break their contracts, and 
 the federation had merely notified the men's intentions to the plain- 
 tiffs. The federation did more than advise. They acted, and by their
 
 1412 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 agents actually procured the men to leave their work and break their 
 contracts. In short, it was the federation who caused the injury to 
 the plaintiffs. This was practically admitted before us by the coun- 
 sel for the federation, and, indeed, such an admission could not, in 
 my opinion, be avoided, having regard to the facts stated by the 
 learned judge in his judgment. And it is not disputed that the fed- 
 eration acted as they did knowingly. So that the only question which 
 remains is one of justification. Now the justification urged is that it 
 was thought, and I will assume for this purpose rightly thought, to 
 be in the interest of the men that they should leave their work in 
 order to keep up the price of coal, on which the amount of wages of 
 the men depended. As to this, I can only say that to my mind the 
 ground alleged affords no justification for the conduct of the federa- 
 tion towards the employers; for, as I have already pointed out, the 
 absence on the part of the federation of any malicious intention to 
 injure the employers in itself aft'ords no sufficient justification. But 
 it was said that the federation had a duty towards the men which 
 justified them in doing what they did. For myself I cannot see that 
 they had any duty which in any way compelled them to act, or justi- 
 fied them in acting, as they did towards the plaintiffs. And the fact 
 that the men and the federation, as being interested in or acting for 
 the benefit of the men, were both interested in keeping up prices, and 
 so in breaking the contracts, affords in itself no sufficient justification 
 for the action of the federation as against the plaintiffs, as I have 
 already pointed out. I think, therefore, that the appeal must succeed. 
 
 Stirling, L. J. The law applicable to the decision of this case is, 
 in my judgment, as stated by Lord Macnaghten in Quinn v. Leathern, 
 [1901] A. C. 495, at p. 510. Referring to Lumley'^. Gye, 2 E. & B. 
 216, his lordship said: "Speaking for myself, I have no hesitation in 
 saying that I think the decision was right, not on the ground of mali- 
 cious intention — that was not, I think, the gist of the action — but on 
 the ground that a violation of legal right committed knowingly is 
 a cause of action, and that it is a violation of legal right to interfere 
 with contractual relations recognized by law if there be no sufficient 
 justification for the interference." If it were necessary to say any- 
 thing more on the subject of Lumley v. Gye, I should be content to 
 refer to what was said by Lord Herschell in Allen v. Flood, [1898] 
 A. C. at pp. 121-123, to which I can add nothing. 
 
 In my opinion, therefore, only two questions have to be considered : 
 (1) Did the defendants interfere with the contractual relations be- 
 tween the plaintiff's and their workmen? (2) Was there in law suf- 
 ficient justification for the interference? 
 
 As to the first question : Bigham, J., has expressly found that 
 whatever was done in the way of interference was the act of the 
 federation. I need not refer to specific acts beyond this — that all 
 the men working at the South Wales and Monmouthshire Collieries
 
 Ch. 2) TORTS THROUGH MALICB 1413 
 
 were directed to observe as holidays two days, October 25 and 26, 
 1901, contrary to the contracts entered into by the workmen. The 
 uncontradicted evidence of Evan Williams at the trial shows that 
 in consequence of that direction men who otherwise would have 
 worked on those twO days did not do so. In these circumstances it 
 seems to me to be made out that the federation wilfully and with 
 notice of the contracts procured some men to break their contracts, 
 and therefore knowingly brought about a violation of legal rights, 
 which is actionable unless there is sufficient justification for what was 
 done. That interference with contractual relations known to the law 
 may in some cases be justified is not, in my opinion, open to doubt. 
 For example, I think that a father who discovered that a child of 
 his had entered into an engagement to marry a person of immoral 
 character would not only be justified in interfering to prevent that 
 contract from being carried into efl:'ect, but would greatly fail in his 
 duty to his child if he did not. This duty is recognized by the courts ; 
 for the Court of Chancery and the Chancery Division of the High 
 Court of Justice have continually so interfered on behalf of wards 
 of Court, sometimes with a heavy hand ; and the principle on which 
 the judges of those courts have acted is simply that of doing on 
 behalf of the ward that which a right-minded father would do in 
 the true interest of his child. I conceive that circumstances might 
 occur which would give rise to the same duty in the case of a con- 
 tract of ser\'ice. I need not say that the present is a very different 
 case from that which I have just put. It would no doubt be desirable 
 if a general rule could be fomiulated which would determine in what 
 cases such a justification exists; but no such rule has been laid down, 
 and I doubt whether this can be done; so far as I can see it must 
 be left (in the language of Lord Bowen) to the tribunal to analyze 
 the circumstances of each particular case and discover whether a 
 justification exists or not. 
 
 In the present case the learned judge finds that the federation and 
 the other defendants "had lawful justification or excuse for what they 
 did in this, that having been solicited by the men to advise and guide 
 them on the question of stop-days, it was their duty and right to give 
 them advice, and to do what might be necessary to secure that the 
 advice should be followed" ; and the existence of this duty has been 
 strongly pressed upon us in argument by the learned counsel for the 
 several defendants. It will be observed that the learned judge ex- 
 pressly finds that the defendants were not mereh' advisers, but also 
 agents "to do what might be necessary to secure that the advice should 
 be followed." In the view which I take of the facts the defendants 
 not only gave advice, but acted, and their action took the form of 
 interfering with the contractual relations between the masters and the 
 men. If in so doing they committed a tort, it would be no answer to 
 say that they acted upon the advice of a third person, as, for example,
 
 1414 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 their own solicitor; and it is difficult to see how they can be in a 
 better position simply because the advice on which they acted emanat- 
 ed from themselves. 
 
 In my judgment the liability of the defendants must turn on the 
 answer to be given to the question whether the circumstances of the 
 case were in fact such as to justify the defendants, or any of them, 
 in acting as they did. 
 
 The circumstances were these: Middlemen at Cardiff were at- 
 tempting to reduce the price of coal, and it was feared that some 
 employers might yield to the pressure of competition and enter into 
 agreements for the sale of coal at prices lower than those existing 
 at the time, with the result that the wages of the miners, which were 
 regulated by a sliding scale, would be reduced. 
 
 To counteract this it was considered desirable by the men's advisers 
 that prices should be sustained by diminishing the output of coal, and 
 that this should be effected by the men taking the holidays complained 
 of. It was not contended or suggested that a limitation of the output 
 of coal was an illegitimate object or aim on the part of the men, 
 or that, if it could have been attained without the breach of con- 
 tracts (as, for example, by the service of proper notices putting an 
 end to those contracts), the men would not have been within their 
 legal rights. The difficulty which presented itself was this, — that 
 one of the terms of the arrangement under which the sliding scale 
 of wages existed was that notices of the determination of contracts 
 of employment should only be given on the first day of a calendar 
 month to terminate on the last day, and this prevented notices of de- 
 termination being effective at the desired moment. The critical pe- 
 riod was known to occur in October or November. The men persuad- 
 ed themselves that it was the masters' interest as well as their own 
 that they should have power to take holidays at this period ; but this 
 was a point on which the masters were entitled to have their own 
 opinion ; and from what occurred in November, 1900, it was known 
 to the men that the masters' view did not agree with that of the men. 
 If the men had faith in the soundness of their opinion, their course 
 was to negotiate through the defendants for a modification of the 
 sliding scale arrangement; what they actually thought fit to do was 
 that while insisting on the benefit of the sliding scale they treated 
 themselves as emancipated from the observance of one of the terms on 
 which that scale had been agreed to, although the masters objected, 
 and although the course taken by the men might result in serious 
 damage to the masters, or some of them. This is, I think, a difficult 
 position to maintain. The justification set up seems to me to amount 
 to no more than this — that the course which they took, although it 
 might be to the detriment of the masters, was for the pecuniary inter- 
 est of the men; and I think it wholly insufficient. The defendants 
 took active steps to carry this policy into effect, and, as I have said,
 
 Ch. 2) TORTS THROUGH MALICE 1415 
 
 interfered to bring about the violation of legal rights. In my judg- 
 ment they fail to justify those acts, and the appeal ought to be al- 
 lowed. * * * 
 Appeal allowed.''* 
 
 SOUTH WALES MINERS' FEDERATION et ah, Appellants, v. 
 GLAMORGAN COAL CO., Limited, et ah. Respondents. 
 
 (House of Lords. [1905] A, C. 239.) 
 
 In this action, brought by the Glamorgan Coal Company, the judg- 
 ment in the King's Bench Division was for the defendants. ^^ This 
 decision was reversed by the Court of Appeal,''* which entered judg- 
 ment for the plaintiffs. The defendants then appealed to the House 
 of Lords. '^^ 
 
 Earl of Halsbury, L. C. My Lords, I cannot think that in this 
 case there is anything to be determined except the question of fact. 
 
 1 say so because the questions of law discussed are so well settled by 
 authority, and by authority in this House. 
 
 To combine to procure a number of persons to break contracts is 
 manifestly unlawful. This is found as a fact to have been done here, 
 and is also found to have caused serious damage to the persons who 
 were entitled to have these contracts performed. 
 
 It is, further, a principle of the law, applicable even to the crim- 
 inal law, that people are presumed to intend the reasonable conse- 
 quences of their acts. It is not, perhaps, necessary to have recourse 
 to such a presumption where, as upon the facts stated, it is apparent 
 that what they were doing must necessarily cause injury to the em- 
 ployers. We start, then, with the infliction of an unlawful injury 
 upon the persons entitled to have the services of their workmen. It 
 follows that this is an actionable wrong unless it can be justified. 
 
 Now it is sought to be justified, first, because it is said that the men 
 were acting in their own interest, and that they were sincerely under 
 the belief that the employers would themselves benefit by their col- 
 lieries being interrupted in their work ; but what sort of excuse is this 
 for breaking a contract when the co-contractor refuses to allow the 
 breach ? It seems to me to be absurd to suppose that a benefit which 
 he refuses to accept justified an intentional breach of contractual 
 
 7 2 The statement of facts from 1 K. B. 118, and parts of the opinions of 
 Vaughan Williams, Romer, and Stirling, L. .JJ., are omitted. 
 
 "3 Glamorgan Coal Company v. South Wales Miners' Federation, [1903] 1 
 K. B. 118. 
 
 7 4 Glamorgan Coal Company v. South Wales Miners' Federation, [1903] 
 
 2 K. B. 545. 
 
 7 5 The reporter's statement of the facts and the summary of the arguments 
 of counsel, which occupied six days, and part of Lord James' opiuion, are 
 omitted. For the facts, see the reix)rt of the case in the lower courts, ante, 
 p. 1406.
 
 1416 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 rights. It may, indeed, be urged in proof of the allegation that there 
 was no ill-will against the employers. I assume this to be true, but 
 I have no conception what can be meant by an excuse for breaking 
 a contract because you really think it will not harm your co-con- 
 tractor. 
 
 I absolutely refuse to discuss the cases which have been suggested 
 widely apart from the question of what pecuniary advantage may be 
 reaped from breaking a contract, where, upon moral or religious 
 grounds, people may be justly advised to refuse to perform what they 
 have agreed to do. 
 
 Some cases may be suggested when higher and deeper considerations 
 may, in a moral point of view, justify the refusal to do what has been 
 agreed to be done. Such cases may give rise to the consideration 
 whether, in a moral or religious point of view, you are not bound to 
 indemnify the person whom your refusal injures ; but a court of law 
 has only to decide whether there is a legal justification. 
 
 Again, I refuse to go into a discussion of the duty or the moral 
 right to tender advice. The facts in this case shew nothing in the 
 nature of advice, even if the supposed duty could be created by people 
 who made them their official advisers who were to advise them even 
 to break the law. But, as I have said, these are peremptory orders 
 given by the official superiors of the body, and it has been found by 
 the learned judge who tried the case that the body sued was responsi- 
 ble for the interference with the workmen. 
 
 I think the appeal should be dismissed. 
 
 Lord Macnaghten. My Lords, I agree in the motion which my 
 noble and learned friend the Lord Chancellor proposes, and I also 
 agree with him in thinking that the question before your Lordships 
 lies in a very narrow compass. 
 
 It is not disputed now — it never was disputed seriously — that the 
 union known as the South Wales Miners' Federation, acting by its 
 executive, induced and procured a vast body of workmen, members of 
 the union, who were at the time in the employment of the plaintiffs, 
 to break their contracts of service, and thus the federation acting by 
 its executive knowingly and intentionally inflicted pecuniary loss on 
 the plaintiffs. It is not disputed that the federation committed an 
 actionable wrong. It is no defence to say that there was no malice or 
 ill-will against the masters on the part of the federation or on the part 
 of the workmen at any of the collieries thrown out of work by the 
 action of the federation. It is settled now that malice in the sense 
 of spite or ill-will is not the gist of such an action as that which the 
 plaintiffs have instituted. Still less is it a defence to say that if the 
 masters had only known their own interest they would have wel- 
 comed the interference of the federation. 
 
 It was argued — and that was the only argument — that although the 
 thing done was prima facie an actionable wrong, it was justifiable 
 under the circumstances. That there may be a justification for that
 
 Ch. 2) TORTS THROUGH MALICE 1417 
 
 which in itself is an actionable wrong I do not for a moment doubt. 
 And I do not think it would be difficult to give instances putting aside 
 altogether cases complicated by the introduction of moral considera- 
 tions. But what is the alleged justification in the present case? It was 
 said that the council — the executive of the federation — had a duty cast 
 upon them to protect the interests of the members of the union, and 
 lliat they could not be made legally responsible for the consequences 
 of their action if they acted honestly in good faith and without any 
 sinister or indirect motive. The case was argued with equal candour 
 and ability. But it seems to me tliat the argument may be disposed 
 of by two simple questions. How was the duty created? What in 
 fact was the alleged duty? The alleged duty was created by the 
 members of the union themselves, who elected or appointed the officials 
 of the union to guide and direct their action; and then it was contend- 
 ed that the body to whom the members of the union have thus com- 
 mitted their individual freedom of action are not responsible for what 
 they do if they act according to their honest judgment in furtherance 
 of wdiat they consider to be the interest of their constituents. It seems 
 to me that if that plea were admitted there would be an end of all 
 responsibility. It would be idle to sue the workmen, the individual 
 wrong-doers, even if it were practicable to do so. Their counsellors 
 and protectors, the real authors of the mischief, would be safe from 
 legal proceedings. The only other question is, What is the alleged 
 duty set up by the federation? I do not think it can be better de- 
 scribed than it was by Mr. Lush. It comes to this — it is the duty on 
 all proper occasions, of which the federation or their officials are to 
 be the sole judges, to counsel and procure a breach of duty. 
 
 I agree with Romer and Stirling, L. JJ., and I think the appeal 
 must be dismissed. 
 
 Lord Jame;s. My Lords, * * * at the trial and at the bar of 
 your Lordships' House the counsel for the appellants contended that 
 their clients had good cause and excuse for the alleged unlawful act 
 they committed. That such justification — such "good cause and ex- 
 cuse" — may exist is, I think, a sound proposition. The above words 
 of Lord Macnagliten and of Bowen, L. J., so declare. The facts upon 
 which this attempted justification in this case is based are fully before 
 your Lordships and need not be recapitulated. I take the results of 
 them to be that in one sense the defendants acted in good faith. They, 
 I think, honestly believed that the stoppage of work they resolved upon 
 would increase the price of coal and so benefit both the workmen 
 and the employers. Towards their employers the defendants enter- 
 tained no malice. At the same time they knew that the employers 
 had given notice of their objection to any such stoppage of work. 
 And so the federation not only advised, but resolved and ordered that 
 the workmen should break their contracts under conditions that would 
 constitute an unlawful act in the men. As far as the defendants could 
 exercise control the men were not allowed toi make use of their own
 
 1418 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 discretion. In order, therefore, to establish the existence of good 
 cause and excuse all the defendants can say is, "We, the federation, 
 had tlie duty cast upon us to advise the workmen. We did advise them 
 to commit an unlawful act, but in giving that advice we honestly be- 
 lieved that they would be in a better financial position than if they 
 acted lawfully and fulfilled their contracts." Even if it be assumed 
 that such allegations are correct in fact, I think that no justification 
 in law is established by them. The intention of the defendants was 
 directly to procure the breach of contracts. The fact that their mo- 
 tives were good in the interests of those they moved to action does 
 not form any answer to those who have suffered from the unlawful 
 act. During the arguments that have been addressed to your Lord- 
 ships I do not think quite sufficient distinction was drawn between 
 the intention and the motives of the defendants.'^® Their intention 
 clearly was that the workmen should break their contracts. The de- 
 fendants' motives no doubt, were that by so doing wages should be 
 raised. But if in carrying out the intention the defendants purposely 
 procured an unlawful act to be committed, the wrong that is thereby 
 inflicted cannot be obliterated by the existence of a motive to secure a 
 njoney benefit to the wrong-doers. 
 
 For these reasons I think the judgment of the Court of Appeal 
 should be affirmed. 
 
 Order of the Court of Appeal affirmed and appeal dismissed with 
 costs. '^■'' 
 
 LARKIN et al., Appellants, v. LONG, Respondent. 
 
 (House of Lords. [1915] A. C. 814.) 
 
 This action was brought against Larkin, who was the organizing 
 secretary of an association of dock labourers known as the Transport 
 Workers' Union, Hopkins and Redmond, who were delegates of this 
 association, and three other defendants, Newman, William Long, and 
 Donohoe, members of an association of employers called the Steve- 
 dores' Association. The action was for damages and an injunction 
 in respect of an alleged conspiracy on the part of the defendants to 
 procure and induce the plaintiff's labourers to leave his employment. 
 The facts out of which the action arose were as follows : 
 
 The plaiutiff, Matthew Long, had been a stevedore in the port of Dublin for 
 many years. lie had never had any dispute with his men or with the Trans- 
 port Workers' Union and lie had always paid the highest rate of wages. Until 
 1912 there had been no .stevedores' association in the port. In June, 1912, the 
 Irish Transport and General Workers' Union proposed a change in the condi- 
 tions of employment of labour in the port of Dublin, with a view to procuring 
 
 7 8 "At present 'intent' and 'motive' are often used interchangeably, as 
 thongb they were exact efiuivaleuts of each other." Professor Jeremiah Smith, 
 20 Ilarv. Law Rev. 25(5 (1907). For the distinction between the two terms, 
 and for instances in which they have been confounded, see Ibid. 256-259. 
 
 7 7 The concurring opinion of Lord Lindley is omitted.
 
 Ch. 2) TORTS THROUGH MALICE 1419 
 
 the employment of a larger number of men in the discharge of a ship, and the 
 Dublin stevedores were invited by circular to meet representatives of the 
 Transport Workers' Union at the headquarters of the union, to discuss the 
 matter. The plaintiff attended this meeting. Larkin submitted to the steve- 
 dores a manuscript list of new prices for labourers in some branches of the 
 stevedoring business. Some of the stevedoi'es objected that they could not pay 
 the proposed rates of wages owing to the undercutting of prices due to com- 
 petition amongst theuiselves. Larkin then suggested that the stevedores ought 
 to form an association to protect themselves against the shipowners. No deci- 
 sion was arrived at and the meeting was adjourned. At the adjourned meet- 
 ing, held on June IS, which the plaintiff also attended, the new list of prices 
 was produced and discussed. The plaintiff informed the meeting that the list 
 did not affect his business as the rate of wages and terms of employment were 
 the same as those then current in his business, and he took no further inter- 
 est in the matter and attended no further meetings. He first became aware 
 that tlie Stevedores' Association had been formed on July 24, 1912, from his 
 brother William Long, who showed him the list of rates that the stevedores 
 had drawn up to charge to the shipowners, and told him that he had been sent 
 by Newman to give him the list. William Long then asked the plaintiff to 
 join the association and, on the plaintiff's refusal, told him that unless he join- 
 ed and charged the same rates he would get no men to work for him, as they 
 (the stevedores) had made an arrangement with Larkin not to allow the men 
 to work. The plaintiff replied that he had no dispute with his workmen and 
 that it was none of Larkin's business. William Long then said: "That is all 
 nonsense. What is it Larkin caimot do?" 
 
 On July 27 the plaintiff met Newman, William Long, and Donohoe in Dub- 
 lin. Newman asked tlie plaintiff" what he was going to do, and he replied that 
 he had made up his mind not to join the association. Newman then warned 
 the plaintiff that he would not get men to work for him, as Larkin had prom- 
 ised to assist the association in every way and to withdraw men from the 
 plaintiff unless he joined. On August 6 a meeting was held of the Transport 
 Workers' Union, when the attitude of the plaintiff in refusing to join the 
 Stevedores' Association was discussed and eventually the meeting was ad- 
 journed. The adjourned meeting was held on August 7, and it was then re- 
 solved that members of the union should not be allowed to work for the 
 plaintiff and that the union otiicials be instructed to that effect. On the same 
 day, the Sieben Jarl arrived at the port, and on that evening the plaintiff was 
 informed by Larkin that he had arranged with the stevedores to assist them 
 in every way and to withdraw the men from the plaintiff unless he joined the 
 association. The plaintiff had engaged thirty-three men to discharge the 
 Sieben Jarl, and the work of discharging was begun at 6 a. m. the next day. 
 At 7:15 a. m. Hopkins and Redmond, acting imder Larkin's directions, came 
 down to the ship and ordered the men off, and told the plaintiff' that he would 
 be further stopped unless he joined the association. The men thereupon ceased 
 work and reported themselves at headquarters. 
 
 On August 19, the plaintiff issued the writ in this action. On two 
 subsequent occasions, namely, on August 22 and September 23, Hop- 
 kins prevented the plaintiff" from discharging ships by calling oft' the 
 men he had engaged. 
 
 The statement of claim, delivered on October 21, 1912, succinctly 
 set forth the plaintiff"'s cause or causes of action, in these terms : 
 
 "In or about the months of August and September, 1912, the defendants 
 wrongfully and maliciously conspired and agreed to combine amongst them- 
 .selves and did so combine to procure, cause, and induce the aforesaid work- 
 men of the plaintiff to leave his employment and abstain from continuing 
 therein, and did further procure, cause, and induce dock labourers and others 
 to refuse to work for the plaintiff. In furtherance and pursuance of the said 
 conspiracy the defendants did in fact procure, cause, and induce workmen of 
 the plaintiff to leave his employment and abstain from continuing therein 
 and did further in fact procure, cause, and induce dock labourers and others 
 to refuse to work for the plaintiff."
 
 1420 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 On tlie trial of the action, Palles, C. B., upon the findings of a spe- 
 cial jury, entered judgment for the plaintiff for £200 and granted an 
 injunction. An application by the defendants for judgment or a new- 
 trial was refused by the Divisional Court and afterwards by the Court 
 of Appeal. The officials of the Transport Workers' Union then ap- 
 pealed to the House of Lords. 
 
 Serjeant Sullivan, K. C. (of the Irish and also of the English Bar), 
 and H. R. Poole (of the Irish Bar), for the appellants. * * * 
 There was here no unlawful combination amongst the defendants. That 
 depends upon the object of the defendants in compelling the plaintiff 
 to join the Stevedores' Association. If the object of the defendants 
 was not the injury of the plaintiff but the furtherance of their trade 
 interests, that was perfectly legitimate. A combination to secure a 
 monopoly necessarily involves the prevention of other persons from 
 carrying on that trade, but although injury may result to those per- 
 sons, no action for conspiracy will lie if the object is to improve the 
 trade and not to injure others. This test applies equally whether it 
 is a combination of men or of masters : Ward, Lock & Co. v. Op- 
 erative Printers' Assistants' Society, [1906] 22 Times L. R. 327; 
 Bulcock V. St. Anne's Master Builders' Federation, [1902] 19 Times 
 L. R. 27. Here the object of the defendants in compelling the plain- 
 tiff' to join the Stevedores' Association was to find employment in 
 the trade for as many union men as possible. Quinn v. Leathem, 
 [1901] A. C. 495, differs from the present case in almost every par- 
 ticular ; the combination, the acts done, and the end sought to be 
 achieved were all different in character. There were here no threats 
 and intimidation such as existed in that case.* 
 
 Lord Atkinson. My Lords, this is an appeal against an order of 
 the Court of Appeal in Ireland, affirming an order of the King's Bench 
 Division of the High Court of Justice in Ireland * * * ^ 
 
 The next ground relied on by the appellants in support of the ap- 
 peal was that set forth in the fifth paragraph of their defence, to the 
 effect that at the time the things complained of were done by them a 
 trade dispute was pending between the plaintiff, the dock labourers 
 of the port of Dublin, and the Transport Workers' Union acting on 
 their behalf, relative to the wages and rate of remuneration to be 
 paid by the plaintiff to dock labourers for their work in discharging 
 cargoes, and that in refusing to allow any of such labourers to work 
 for the plaintiff, and in withdrawing them from his employment, they 
 were acting as they lawfully might in contemplation and furtherance 
 of such trade dispute within the meaning of the Trade Disputes Act, 
 1906 (6 Edw. VII, c. 47). 
 
 The jury have found on the issues raised on this plea that there 
 was no dispute between the plaintiff and the dock labourers. And 
 
 * The statement of the case is abridged, and part of the arguments of coun- 
 sel is omitted. 
 
 t For the decision of the Court of Appoal in Ireland, see [1914J 2 I. R. 285.
 
 Ch. 2) TORTS THROUGH MALICE 1421 
 
 they have also found that the dispute was a dispute between the plain- 
 tiff and the Stevedores' Association, into which the stevedores brought 
 Larkin, Hopkins, and Redmond to assist. And further, that the la- 
 bourers did not insist that the plaintiff should become a member of 
 the Stevedores' Association. 
 
 There was, in my opinion, ample evidence to sustain all these find- 
 ings. The evidence of the two defendants, William Long and New- 
 man, would be quite sufficient in itself for that purpose. It was plain 
 upon the evidence that the only dispute which existed was a dispute 
 between the members of the Stevedores' Association and the plain- 
 tiff. The Association sought tO' force the plaintiff to enter its ranks 
 in order that he might thereby be compelled to adopt the scale of 
 remuneration for any dock labourers he might employ which this As- 
 sociation had adopted. Larkin, Hopkins, and Redmond, at the re- 
 quest of the Association, came to their aid, and sought to bring pres- 
 sure to bear upon the plaintiff" to force him to enter it, by refusing 
 to permit the dock labourers who were members of the Transport 
 Union to work for him. 
 
 But these officers of the union of employes by so aiding the as- 
 sociation of employers in its contest with the plaintiff, another em- 
 ployer, did not change the character of the original dispute. It was 
 from the first a dispute between an individual stevedore and an as- 
 sociation of stevedores. 
 
 The Trade Disputes Act of 1906 has no application to such dis- 
 putes.^ It only deals with disputes between employers and workmen 
 and workmen and workmen. This dispute was neither of these. This 
 defence, therefore, wholly fails. 
 
 On behalf of the appellants, Serjeant Sullivan insisted that the fact 
 that the members of the Transport Union thought it for their own 
 interest to pass a rule that they should not work for a stevedore who 
 was not a member of the Stevedores' Union was quite legitimate, that 
 they were not bound to work for him or for any other person for 
 whom they did not choose to work, and were, in the legitimate pro- 
 
 t The Trades Dispute Act, 1900 (6 Edw. VII, c. 47), to "provide for the resu- 
 latiou of Trade Unions and Trade Disputes," declares, in its third section, tiiat 
 "an act done by a person in furtherance or contemplation of a trade dispute 
 shall not be actionable on the ground only that it induces some other person to 
 break a contract of employment or that it is an interference with the trade, 
 business, or employment of some other person, or with the right of some other 
 person to dispose of his capital or his labour as he wills." The definition of 
 a "trade dispute" is thus framed in section 5, subsection 3, of the same act: 
 "The expression 'trade dispute' means any disiiute between employers and 
 workmen, or between workmen and woi-kmen, which is connected with the em- 
 ployment and non-employment, or the terms of employment, or with the condi- 
 tions of labour." The scope uf tbe.se provisions was considered by Lord Pai*- 
 raoor, in Larkin v. Long, [11)15] A. C. 814, S44-84G, who remarks: "To hold 
 that the acts in this case bring the dispute within the Act of 190G would be 
 in effec-t to disregard the delinition of the Act of 1900, and to bring within the 
 ])rotection of the Act every dispute of whatever character in which workmen 
 and their representatives determined to take part with one side or the other."
 
 1423 TORTS THROUGH ACTS OP CONDITIONAL LIABILITY (Part 3 
 
 motion of their own interest, entitled, within the decision of Mogul 
 Steamship Co. v. McGregor, Gow & Co., [1892] A. C. 25, to observe 
 that rule, though it might incidentally cause injury to those who desired 
 to employ these workmen, but for whom they themselves did not de- 
 sire to work. It is undoubtedly true that the members of a trade 
 union need not work for whom they do not desire to work. That is 
 the right to personal freedom of action referred to in the following 
 well-known passages from the judgment of Lord Bramwell in Reg. 
 V. Druitt (1867) 10 Cox, C. C. 592, at p. 600, and from the essay of 
 Sir W. Erie on Trade Unions (p. 12). They have been many times 
 approved of in your Lordships' House. They respectively run thus : 
 "The Liberty of a man's mind and will, to say how he should bestow 
 himself and his means, his talents, and his industry was as much a 
 subject of the law's protection as was that of his body." And, "Ev- 
 ery person has a right under the law, as between himself and his fel- 
 low subjects, to full freedom in disposing of his own labour or 
 his own capital, according to his own will. It follows that every 
 person is subject to the correlative duty arising therefrom, and is pro- 
 hibited from any obstruction to tlie fullest exercise of this right which 
 can be made compatible with the exercise of similar rights by others." 
 
 But it is equally true that the members of trade unions are bound 
 to respect the right of other workmen to work for whom they please, 
 on what terms and at what times they please, so long as they do noth- 
 ing illegal, and are also bound to respect the right of an employer to 
 undertake any work he pleases to undertal^e, and to employ what 
 workmen he chooses, on whatever terms they both agree to, unless 
 there is something unlawful in his action. If, therefore, any two or 
 more members of a trade union, whatever its rules may be, wilfully 
 and knowingly combine to injure an employer by inducing his work- 
 men to break their contracts with him, or not to enter into contracts 
 with him, resulting in damage to him, that is an entirely different mat- 
 ter. That is an invasion of the liberty of action of others, and has 
 no analogy to the action of the defendant in the Mogul Case, [1892] 
 A. C. 25 ; for there, as Lord Halsbury pointed out in Quinn v. Leath- 
 em, [1901] A. C. 495, no legal right has been interfered with, no 
 coercion of mind or will had been eft'ected, all were left free to trade 
 on what terms they willed, and nothing was done except in rival trad- 
 ing which could be supposed to interfere with the appellant's interest. 
 
 The fact that members of a trade union are merely acting in obedi- 
 ence to a rule of their union believed by them to be for their benefit 
 is no defence to an action for the breach of any contracts they have 
 entered into, — Read v. Friendly Society of Operative Stonemasons, 
 [1902] 2 K. B. 88, 732,— and still less is it a defence to the wilful 
 and malicious infringement in combination of that legal right of 
 personal freedom of action which they claim for themselves, but 
 which others are entitled to quite as fully and as absolutely as they 
 are.
 
 Ch. 2) TORTS THROUGH MALICE 1423 
 
 I am clearly of opinion that the decision appealed from was right 
 and should be upheld, and the appeal should be dismissed with costs. 
 
 My Lords, I am directed by the Lord Chancellor to say that he con- 
 curs in the judgment I have just read.|t 
 
 IRON MOLDERS UNION et al. v. ALLIS-CHALMERS CO. 
 
 (United States Circuit Court of Appeals, 1908. 91 C. C. A. 631, 166 Fed. 45, 
 
 20 L. R. A. [N. S.] 315.) 
 
 This is an appeal, ''* in a strike injunction suit, from a final decree 
 which enjoined four Wisconsin labor unions ^^ and some sixty in- 
 dividuals who were officers and members from doing the following : ^ 
 
 "(4) And from congregating upon or about the company's premises 
 or the streets, approaches and places adjacent or leading to said prem- 
 ises for the purpose of intimidating its employes or preventing or hin- 
 dering them from fulfilling their duties as such employes or for the 
 purpose of in such manner as to induce or coerce by threats, violence, 
 intimidation or persuasion, any of the said company's employes to leave 
 its service or any person to refuse to enter its service. 
 
 "(5) From congregating upon or about the company's premises or 
 the sidewalk, streets, alleys or approaches adjoining or adjacent to 
 or leading to said premises, and from picketing the said complainant's 
 places of business or the homes or boarding houses or residences of the 
 said complainant's employes. 
 
 tt Lord Parker of Waddington, Lord Sumner, Lord Parmoor, and Lord 
 Duuedin concurred, the first three in judgments which are here omitted. The 
 order of the Court of Appeal in Ireland was affirmed, and the appeal dis- 
 missed with costs. 
 
 Ts For the report of this case in the District Court, see Allis-Chalmers Co. 
 V. Iron Molders Union (1906) 150 Fed. 155. 
 
 7 9 These unions were unincorporated. On the procedural question of suing 
 them in their association names, Judge Baker remarked: "No Wisconsin stJit- 
 ute authorized an unincorporated voluntary association to be sued in its com- 
 mon name. So the objection might have prevailed if it had been seasonably 
 made. Karges Furniture Co. v. Amalgamated Wood Workers' Union (1905) 
 165 Ind. 421, 75 N. E. 877, 2 L. R. A. (N. S.) 788, 6 Ann. Cas. 820 ; Pickett v. 
 Walsh (lOOGj 192 Mass. 572, 78 N. E. 753, 6 L. R. A. (N. S.) 1067, 116 Am. St. 
 Rep. 272, 7 Ann. Cas. 638. But the members could have been reached, of 
 course, either by naming and serving them all, or, if that were impracticable 
 on account of their numbers, by suing some as representatives of all. Tlie 
 bill treated the unions as representative of their membership; an individual 
 member filed a verified answer in the names of the unions, alleging that he 
 had been authorized by them so to do ; and the case was carried through three 
 hearings (temporary injunction, contempt, final decree) without a suggestion 
 that there was a defect of parties, or rather a defect in the fonu under which 
 appellee asked to have the membership of the unions brought into court. An 
 objection of this kind will not be entertiiined on appeal unless it has been first 
 duly presented in the trial court. Barnes v. Chicago Tj-iK>graphical Union 
 (1908) 2.'^!2 111. 424, S3 X. E. 940, 14 L. R. A. (N. S.) 1018, 13 Ann. Cas. 54." 
 
 80 Eleven sections of this decree are omitted.
 
 14i'4: TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 "(6) From interfering with the said company's employes in going 
 to and from their work. 
 
 "(7) From going singly or collectively to the homes of the said com- 
 pany's employes for the purpose of intimidating or threatening them 
 or collectively persuading them to leave its service." 
 
 "(16) From by threats, intimidation, persuasion, force or violence, 
 compelling or attempting to compel or induce any of the apprentices 
 in the employ of the said complainant to break their contracts and 
 leave the employ of the said complainant." 
 
 Baker, Circuit Judge. * * * So far as persuasion was used to 
 induce apprentices or others (section 16 of the decree) to break their 
 contracts to serve for definite times, the prohibition was right. And 
 the reason, we believe, is quite plain. Each party to such a contract 
 has a property interest in it. If either breaks it, he does a wrong, for 
 which the other is entitled to a remedy. And whoever knowingly 
 makes himself a party to a wrongful and injurious act becomes equally 
 liable. But in the present case the generality of the men who took 
 or sought the places left by the strikers were employed or were of- 
 fered employment at will, as the strikers had been. If either party, 
 with or without cause, ends an employment at will, the other has no le- 
 gal ground of complaint. So if the course of the new men who quit or 
 who declined employment was the result of the free play of their in- 
 tellects and wills, then against them appellee had no cause of action, 
 and much less against men who merely furnished information and 
 arguments to aid them in forming their judgments. Now it must not 
 be forgotten that the suit was to protect appellee's property rights. 
 Regarding employments at will, those rights reached their limit at this 
 line: For the maintenance of the incorporeal value of a going busi- 
 ness appellee had the right to a free access to the labor market, and 
 the further right to the continuing services of those who accepted 
 employment at will until such services were terminated by the free 
 act of one or the other party to the employment. On the other side 
 of this limiting line, appellants, we tliink, had the right, for the pur- 
 pose of maintaining or increasing the incorporeal value of their ca- 
 pacity to labor, to an equally free access to the labor market. The 
 right of the one to persuade (but not coerce) the unemployed to ac- 
 cept certain terms is limited and conditioned by the right of the other 
 to dissuade (but not restrain) them from accepting. For another 
 thing that must not be forgotten is that a strike is one manifestation 
 of the competition, the struggle for survival or place, that is inevita- 
 ble in individualistic society. Dividends and wages must both come 
 from the joint product of capital and labor. And in the struggle where- 
 in each is seeking to hold oi enlarge his ground, we believe it is funda- 
 mental that one and the same set of rules should govern the action of 
 both contestants. For instance, employers may lock out (or threaten 
 to lock out) employes at will, with the idea that idleness will force them 
 to accept lower wages or more onerous conditions; and employes at
 
 Ch. 2) TORTS THROUGH MALICE 1425 
 
 will may strike (or threaten to strike), with the idea that idleness of 
 the capital involved will force employers to grant better terms. These 
 rights (or legitimate means of contest) are mutual and are fairly bal- 
 anced against each other. Again, an employer of molders, having 
 locked out his men, in order to effectuate the purpose of his lockout, 
 may persuade (but not coerce) other foundrymen not to employ mold- 
 ers for higher w^ages or on better terms than those for which he made 
 his stand, and not to take in his late employes at all, so that they may 
 be forced back to his foundry at his own terms ; and molders, hav- 
 ing struck, in order to make their strike effective may persuade (but 
 not coerce) other molders not to work for less wages or under worse 
 conditions than those for wdiich they struck, and not to work for 
 their late employer at all, so that he may be forced to take them back 
 into his foundry at their own terms. Here, also, the rights are mutual 
 and fairly balanced. On the other hand, an employer, having locked 
 out his men, will not be permitted, though it w^ould reduce their fight- 
 ing strength, to coerce their landlords and grocers into cutting off 
 shelter and food ; and employes, having struck, will not be permitted, 
 though it might subdue their late employer, to coerce dealers and users 
 into starving his business. The restraints, likewise, apply to both com- 
 batants and are fairly balanced. These illustrations, we believe, mark 
 out the line that must be observed by both. In contests between cap- 
 ital and labor the only means of injuring each other that are lawful 
 are those that operate directly and immediately upon the control and 
 supply of work to be done and of labor to do it, and thus directly af- 
 fect the apportionment of the common fund, for only at this point 
 exists the competition, the evils of which organized society will en- 
 dure rather than suppress the freedom and initiative of the individual. 
 But attempts to injure each other by coercing members of society who 
 are not directly concerned in the pending controversy to make raids 
 in the rear carmot be tolerated by organized society, for the direct, the 
 primary, attack is upon society itself. And for the enforcement of 
 these mutual rights and restraints organized society offers to both 
 parties, equally, all the instrumentalities of law and of equity. 
 
 With respect to picketing as well as persuasion, we think the decree 
 went beyond the line. The right to persuade new men tO' quit or de- 
 cline employment is of little worth unless the strikers may ascertain 
 who are the men that their late employer has persuaded or is attempt- 
 ing to persuade to accept employment. Under the name of persua- 
 sion, duress may be used ; but it is duress, not persuasion, that should 
 be restrained and punished. In the guise of picketing, strikers may 
 obstruct and annoy the new men, and by insult and menacing attitude 
 intimidate them as effectually as by physical assault. But from the 
 evidence it can always be determined whether the efforts of the pickets 
 are limited to getting into communication with the new men for the 
 purpose of presenting arguments and appeals to their free judgments. 
 IIepb.Tobts — 90
 
 1426 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 Prohibitions of persuasion and picketing, as such, should not be includ- 
 ed in the decree. Karges Furniture Co. v. Amalgamated Wood Work- 
 ers' Union, 165 Ind. 421, 75 N. E. 877, 2 L. R. A. (N. S.) 788, 6 Ann. 
 Cas. 829; Everett-Waddy Co. v. Typographical Union, 105 Va. 188, 
 53 S. E. 273, 5 L. R. A. (N. S.) 792, 8 Ann. Cas. 798. * * * si 
 
 81 Part of Judge Baker's opinion and the corresponding parts of the order 
 are omitted. A concurring opinion by Judge Grosscup is omitted. 
 
 Compare the remarks of Hadley, J., in Karges Furniture Co. v. Amalgamat- 
 ed W. W. U. No. 131 (1905) 165 Ind. 421, 75 N. E. 877, 2 L. R. A. (N. S.) 788, 6 
 Ann. Cas 829: "It is ai'gued that the maintenance of pickets at the plaintiff's 
 factory was an unlawful interference with its business, and that the appoint- 
 ment, instruction, and the receiving of daily reports from such pickets consti- 
 tuted all participating members of the union civil conspirators. Whether pick- 
 eting is lawful or unlawful depends in each particular case upon the conduct 
 of the pickets themselves. The fact that they are serving under appointment 
 and instructions from their union adds nothing to their rights and privileges 
 as affecting third persons. Under no circumstances have pickets the right to 
 employ force, menaces, or intimidation of any kind in their efforts to induce 
 noustriking workmen to quit, or to prevent those about to take the strikers' 
 places to refrain from doing so ; neither have they the right, as pickets or 
 otherwise, to assemble about the working place in such numbers or in such 
 manner as to impress workmen employed, or contemplating employment, with 
 fear and intimidation. Beaton v. Tarrant (1902) 102 111. App. 124 ; Yegelahu 
 V. Guntuer (1896) 167 Mass. 92. 44 N. E. 1077, 35 L. R. A. 722, 57 Am. St. Rep. 
 443 ; Murdock v. Walker (1893) 152 Pa. 595, 25 Atl. 492, 34 Am. St. Rep. 678. 
 It is, however, generally conceded in this counti'y and in England that work- 
 men, when free from contract obligations, may not only themselves, singly and 
 in combination, cease to work for any employer, but may also, as a means of 
 accomplishing a legitimate purpose, use all lawful and peaceful means to in- 
 duce others to quit or refuse employment. The law, having granted workmen 
 the right to strike to secure better conditions from their employers, grants them 
 also the use of those means and agencies, not inconsistent with the rights of 
 others, that are necessary to make the strike effective. This embraces the right 
 to support their contest by argument, persuasion, and such favors and accom- 
 modations as they have within their control. The law will not deprive endeav- 
 or and energy of their just reward, when exercised for a legitimate purpose and 
 in a legitimate manner. So, in a contest between capital and labor on the 
 one hand to secure higher wages, and on the other to resist it, argument and 
 persuasion to win support and co-operation from others are proper to either 
 side, provided they are of a character to leave the persons solicited feeling at 
 liberty to comply or not, as they please. Likewise a union may appoint pick- 
 ets or a committee to visit the vicinity of factories for purpose of taking note 
 of the persons employed, and to secure, if it can be done by lawful means, their 
 names and places of residence for the purpose of peaceful visitation. Eddy on 
 Comb. § 537 ; Perkins v. Rogg (1892) 28 Wkly. Law Bui. 32. The decided cases 
 are not in harmony with respect to the right to persuade, but the clear weight 
 of authority is to the effect that so long as a moving party does not exceed his 
 absolute legal rights, and so does not invade the absolute rights of another, he 
 may do as he pleases, and may persuade others to do like him. To illustrate: 
 A. resides in a populous, residential part of the city. B. has established a 
 saloon in the same square. Keeping a saloon there is lawful business. Many 
 of the neighbors patronize the saloon, and the business prospers. A. disap- 
 proves of the business in that place, and withholds his patronage. He has the 
 absolute right to withhold it. The other neighbors have the absolute right to 
 bestow theii-s. B. has no absolute right to the patronage of either, and with- 
 out patronage will fail in business. Here it is plain that A. has the absolute 
 right to stand on the street corner and note all his neighbors who enter and 
 leave the saloon, hail them on the street, or visit them at their respective homes, 
 and by argument and persuasion (they being willing to listen) endeavor to in 
 duoe thorn to cease their patronage. A.'s object is to make B.'s business un- 
 profitable and losing, and thus compel him to move away, and improve the
 
 Ch. 2) TORTS THROUGH MALICE 1427 
 
 The decree is modified by striking out "persuasion" and "persuad- 
 ing" from the 4th and 7th paragraphs; further modified by adding 
 after "picketing" in the 5th paragraph "in a threatening or intimidat- 
 ing manner" ; * * * affirmed as to the * * * 16th paragraph. 
 
 PIERCE V. STABLEMEN'S UNION, LOCAL NO. 8,760 et al. 
 
 (Supreme Court of California, 1909. 156 Cal. 70, 103 Pac. 324.) 
 
 This was an action by Pierce against the Stablemen's Union and oth- 
 ers, to enjoin the defendants from illegal interference with the plain- 
 tiff's business. The following facts were found: 
 
 The plaintiff conducted a livery stable in San Francisco. The officers of the 
 defendant union asked him to "unionize" his stable by discharging his non- 
 union employes, and employing union men in their places. Upon his refusal 
 a strike of the union men was declared. Following the strike, a boycott was 
 decreed. A patrol about plaintiff's place of business was established, and, un- 
 der the findings, these representatives of the defendants, the pickets, "called 
 forth in loud, threatening, and menacing tones to the patrons and customers 
 of plaintiffs not to patronize plaintiffs in their said business. Defendant, the 
 Stablemen's Union, through its agents and representatives, has stated to, and 
 threatened, patrons and customers and other persons dealing with plaintiffs 
 that, if said patrons and customers and other persons continued to patronize 
 and do business with plaintiffs, said Stablemen's Union would cause them re- 
 spectively to be boycotted in their business." Menacing terms and threatening 
 language were made use of by the agents, representatives, and pickets of the 
 union towaixi the employes of the plaintiff, such as: "Unfair stable, union 
 men locked out, and nonunion men put in. Look at this stable ; the only un- 
 fair stable on Market street; the stable that always was, and always will be, 
 unfair. This is a scab stable. When we catch you outside, we will finish you. 
 We will get you yet. It is a scab stable, full of scabs. We will fix you yet. It 
 is a matter of time when we will get you all right. You will never get out of 
 the stalile alive. We will break you in half. We will beat you to death. 
 When we catch you outside, we will finish you." 
 
 Upon these findings in the superior court a judgment for an in- 
 junction was granted. This judgment by its terms commanded the 
 defendant, its agents, and employes to desist and refrain — 
 
 "from in any wise interfeiing with, or harassing, or annoying, or obstructing 
 plaintiff's in the conduct of the business of their stable, known as the 'Nevada 
 
 place and attractiveness of A.'s neighborhood. Now if A. converts all of his 
 neighbors to his course of conduct by argument, reason, entreaty, and other 
 fair and proper means, and thereby effects the suppression of the saloon and 
 financial ruin of B., it is damnum absque injuria. A, has done nothing but 
 what the law protects him in doing. Eddy on Comb. §'§ 537, 539 ; Beach on 
 Mon. & Ind. Trusts, § 107; Union P. By. Co. v. Reuf (C. C. 1902) 120 Fed. 
 102 ; Foster v. Retail Clk., etc., Ass'n (1902) 39 Misc. Rep. 4S, 78 N. Y. Supp. 
 860 ; Rogers v. Evarts (Sup. 1891) 17 N. Y. Supp. 264 ; Perkins v. Rogg, 28 
 Wkly. Law Bui. .•]2 ; Reg. v. Druitt, 10 Cox, Cr. R. 592; Reg. v. Hilbert, 13 
 Cox, Cr. R. 82. According to the finding, the pickets, after being chosen and 
 before going out, were "invariably" instructed by the presiding officer of the 
 union to observe only i)eaceable means, and under no circumstances resort to 
 force, menaces, threats, or intimidation of any kind. There is no finding of 
 any departure from these instructions by any picket, and we must therefore 
 presume, as against the plaintiff", that there was none, and consequently hold 
 that the maintaining of the pickets at the plaintiff's factory under the facts 
 proved was not unlawful." 
 
 See also Cleorge .lon.-is Glass Co. v. Glass Bottle Blowers' Ass'n (1907) 72 
 N. J. Eq. 653, 66 Atl. 953.
 
 1428 TORTS THROUGH ACTS OP CONDITIONAL LIABILITY (Part 3 
 
 Stables,' anrl situated at No. 1350 Market street, in the city and county of San 
 Francisco ; or from in any wise molesting, interfering with, tlireatening, in- 
 timidating, or harassing any employe or employes of plaintiffs; or from in- 
 timidating, harassing, or interfering with any customer or customers, patron 
 or patrons, of plaintiffs in connection with the business of plaintiffs, either by 
 boycott or by threats of boycott, or by any other threats ; or by any kind of 
 force, violence, or intimidation, or by other xnilawful means, seeking to induce 
 any employe or employes of plaintiffs to withdraw from the service of plain- 
 tiffs ; or by any l<ind of violence, threats, or intimidation inducing, or seeking 
 to induce, any customer or customers, patron or patrons, of plaintiffs to with- 
 draw their patronage or business from them, or from stationing or placing in 
 front of said plaintiffs' place of business any picket, or pickets, for the pur- 
 pose of injuring, obstructing, or in any wise interfering with, the business of 
 idaintiffs, or for the purpose of preventing any customer or customers, patron 
 or patrons, of plaintiffs from doing business with them ; or from in any other 
 way molesting, intimidating or coercing, or atteuipt to molest or intimidate or 
 coerce, any customer, patron, or employg of plaintiffs now or hereafter deal- 
 ing with, or any employe now or hereafter employed by or working for, plain- 
 tiffs in their said business." 
 
 From the judgment as thus framed and rendered the defendants 
 have appealed. 
 
 Henshaw, J, * * * T^Ye think that to-day no court would ques- 
 tion the right of an organized union of employes, by concerted action, 
 to cease their employment (no contractual obligation standing in the 
 way), and this action constitutes a "strike." We think, moreover, 
 that no court questions the right of those same men to cease dealing 
 by concerted action, either socially or by way of business, with their 
 former employer, and this latter act, in its essence, constitutes the 
 primary boycott. But what acts organized labor may do, and what 
 means it may adopt to accomplish its end, without violation of the 
 law, have presented questions of much nicety, over which the courts 
 have stood, and still stand, widely divided. It would not be profitable 
 to discuss and analyze these widely divergent cases. It is sufficient to 
 formulate briefly the principles adopted in this state many of which 
 have recently found elaborate expression in the case of Parkinson v. 
 Building & Trades Council of Santa Clara, 154 Cal. 581, 98 Pac. 1040, 
 21 L. R. A. (N. S.) 550, 16 Ann. Cas. 1165. The right of united 
 labor to strike, in furtherance of trade interests (no contractual ob- 
 ligation standing in the way) is fully recognized. The reason for the 
 strike may be based upon the refusal to comply with the employes' 
 demand for the betterment of wages, conditions, hours of labor, the 
 discharge of one employe, the engagement of another — any one or 
 more of the multifarious considerations which in good faith may be 
 believed to tend toward the advancement of the employes. After 
 striking, the employe may engage in a "boycott," as that word is here 
 employed. As here employed, it means not only the right to the con- 
 certed withdrawal of social and business intercourse, but the right 
 by all legitimate means — of fair publication, and fair oral or written 
 persuasion — to induce others interested in, or sympathetic with, their 
 cause to withdraw their social intercourse and business patronage from 
 the employer. They may go even further than this, and request of
 
 Ch. 2) TORTS THROUGH MALICE 1429 
 
 another that he withdraw his patronage from tlie employer, and may 
 use the moral intimidation and coercion of threatening a like boycott 
 against him if he refuse so to do. This last proposition necessarily 
 involves the bringing into a labor dispute between A. and B., C, who 
 has no difference with either. It contemplates that C, upon the re- 
 quest of B., and under the moral intimidation lest B. boycott him, may 
 thus be constrained to withdraw his patronage from A., with whom he 
 has no controversy. This is the "secondary boycott," the legality of 
 which is vigorously denied by the English courts, the federal courts, 
 and by the courts of many of the states of this nation. 
 
 Without presenting the authorities, which are multitudinous, suffice 
 it to state the other view, in language of the president of the United 
 States, but recently uttered : "A body of workmen are dissatisfied with 
 the terms of their employment. They seek to compel their employer 
 to come to their terms by striking. They may legally do so. The loss 
 and inconvenience he suffers he cannot complain of. But when they 
 seek to compel third persons, who have no quarrel with their em- 
 ployer, to withdraw from all association with him by threats that, 
 unless such third persons do so, the workmen will inflict similar in- 
 jury on such third persons, the combination is oppressive, involves 
 duress, and, if injury results, it is actionable." President Taft, Mc- 
 Clure's Magazine, June, 1909, p. 204. Notwithstanding the great 
 dignity which attaches to an utterance such as this, which, as has been 
 said, is but tlie expression of numerous courts upon the subject-mat- 
 ter, this court, after great deliberation, took what it believed to be the 
 truer and more advanced ground, above indicated and fully set forth 
 in Parkinson v. Building Trades Council, etc., supra. In this respect 
 this court recognizes no substantial distinction between the so-called 
 primary and secondary boycott. Each rests upon the right of the 
 union to withdraw its patronage from its employer, and to induce by 
 fair means any and all other persons to do the same, and, in exercise 
 of those means, as the unions would have the unquestioned right to 
 withhold their patronage from a third person who continued to deal 
 Vv'ith their employer, so they have the unquestioned right to notify 
 such third person that they will withdraw their patronage if he con- 
 tinues so to deal. However opposed to the weight of federal authority 
 the views of this court are, that they are not unique may be noted by 
 reading National Protective Association v. Gumming, 170 N. Y. 315, 
 63 N. E. 369, 58 L. R. A. 135, 88 Am. St. Rep. 648; Lindsay v. Mon- 
 tana Federation of Labor, 37 Mont. 264, 96 Pac. 127, 18 L. R. A. (N. 
 S.) 707, 127 Am. St. Rep. 722, where the highest courts of those states 
 formulate and adopt like principles. 
 
 It has been said that it is important to any correct understanding 
 of, or adjudication upon, such questions that a definition of the word 
 ''boycott" should be first stated. Thus, to say that a boycott is a "con- 
 spiracy" immediately implies illegality, and puts the conduct of the 
 boycotters under the ban of the law. So also does the definition which
 
 1430 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (P'art 3 
 
 describes boycotting as "illegal coercion," designed to accomplish a 
 certain end. As we have undertaken to define boycott, it is an or- 
 ganized effort to persuade or coerce, which may be legal or illegal, 
 according to the means employed. In other jurisdictions where a defi- 
 nition is given to a boycott which imports illegality, the injunction 
 will of course lie against boycotting as such. In this state the injunc- 
 tion will issue depending upon the circumstance whether the means 
 employed, or threatened to be employed, are legal or illegal. 
 
 We are thus brought to consider the method of "picketing," the 
 use of which appellants contend is a legal weapon in their hands. So 
 far in this discussion we have dealt exclusively with the respective 
 rights of the employer and of the employe. There are other parties, 
 however, whose rights are entitled to equal consideration, and whose 
 rights always become involved and imperiled when picketing is adopted 
 as a coercive measure in aid of a boycott. 
 
 If the strikers have the right, as above indicated, to withdraw patron- 
 age themselves, and by fair publication, written and oral persuasion, to 
 induce others to join in their cause, and finally by threat of like boy- 
 cott, to coerce otlaers into so doing, their rights go no further than 
 this. It is the equal right of the employer to insist before the law 
 that his business shall be subject at the hands of the strikers to no 
 other detriment than that which follows as a consequence of the legal 
 acts of the strikers so above set forth. It is not to be forgotten that 
 when the employes have struck, they occupy no contractual relation- 
 ship whatsoever to their former employer, and have no right to coerce 
 him, or attempt to coerce him, by the employment of any other means 
 than those which are equally open to any other individual, or associa- 
 tion of individuals. No sanctity attaches to a trades union which puts 
 it above the law, or which confers upon it rights not enjoyed by any 
 other individual or association. The two classes of persons to whom 
 we have adverted, and whose rights necessarily become involved where 
 a picket or patrol is established, are, first, the rights of those employed, 
 or seeking employment, in the place of the striking laborers ; and, sec- 
 ond, the rights of the general public. It is the absolute, unqualified 
 right of every employe, as well as of every. other person, to go about 
 his legal business unmolested and unobstructed, and free from intimi- 
 dation, force, or duress. The right of a labor association to strike is no 
 higher than the right of a nonunion workman to take employment in 
 place of the strikers. Under the assurance and shield of the Consti- 
 tution and of the laws, the nonunion laborer may go to and from 
 his labor, and remain at his place of labor, in absolute security from 
 unlawful molestations, and wherever such protection is not fully ac- 
 corded, their execution, and not the laws themselves, is to be blamed. 
 In this country a man's constitutional liberty means far more than his 
 mere personal freedom. It means that, among other rights, his is tlie 
 right freely to labor and to own the fruits of his toil. Ex parte
 
 Ch. 2) TORTS THROUGH MALICE 1431 
 
 Jentzsch, 112 Cal. 468, 44 Pac. 803, 32 L. R. A. 664. Any act of 
 boycotting, therefore, which tends to impair this constitutional right 
 freely to labor, by means passing beyond moral suasion, and playing 
 by intimidation upon the physical fears, is unlawful. 
 
 The inconvenience which the public may suffer by reason of a boy- 
 cott lawfully conducted is in no sense a legal injury. But the public's 
 rights are invaded the moment the means employed are such as are cal- 
 culated to, and naturally do, incite to crowds, riots, and disturbances 
 of the peace. A picket, in its very nature, tends to accomplish, and 
 is designed to accomplish, these very things. It tends to, and is de- 
 signed by physical intimidation to, deter other men from seeking 
 employment in the places vacated by the strikers. It tends, and is 
 designed, to drive business away from the boycotted place, not by 
 the legitimate methods of persuasion, but by the illegitimate means 
 of physical intimidation and fear. Crowds naturally collect; disturb- 
 ances of the peace are always imminent and of frequent occurrence. 
 Many peaceful citizens, men and women, are always deterred by 
 physical trepidation from entering places of business so under a boy- 
 cott patrol. It is idle to split hairs upon so plain a proposition, and 
 to say that the picket may consist of nothing more than a single in- 
 dividual, peacefully endeavoring by persuasion to prevent customers 
 from entering the boycotted place. The plain facts are always at 
 variance with such refinements of reason. Says Chief Justice Shaw, 
 in Commonwealth v. Hunt, 4 Mete. (Mass.) Ill, 38 Am. Dec. 346: 
 "The law is not to be hoodwinked by colorable pretenses ; it looks 
 at truth and reality through whatever disguise it may assume." If 
 it be said that neither threats nor intimidations are used, no man can 
 fail to see that there may be threats, and there may be intimidations, 
 and there may be molesting, and there may be obstructing, without 
 there being any express words used by w^hich a man should show vio- 
 lent threats toward another, or any express intimidation. We think 
 it plain that the very end to be attained by picketing, however artful 
 may be the means to accomplish that end, is the injury of the boy- 
 cotted business through physical molestation and physical fear, caused 
 to the employer, to those whom he may have employed, or who may 
 seek employment from him, and to the general public. The boycott 
 having employed these means for this unquestioned purpose is illegal, 
 and a court will not seek by overniceties and refinements to legalize 
 the use of this unquestionably illegal instrument. Vegelahn v. Gunt- 
 ner [167 Mass. 92, 44 N. E. ^1077, 35 L. R. A. 722, 57 Am. St. Rep. 
 443], supra; Crump v. Commonwealth, 84 Va. 927, 6 S. E. 620, 10 
 Am. St. Rep. 895; Union Pacific v. Reuf (C. C.) 120 Fed. 124; 18 
 Ency. of Law (2d Ed.) p. 85. 
 
 In conclusion, then, and applying these principles to the injunction 
 here under consideration, it appears that, while the injunction was 
 properly granted, it was broader in its terms than the law warrants.
 
 1432 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 It was, for example, too broad in restraining' defendants from "in any 
 wise interfering with" plaintiff's business, since the interference which 
 we have discussed, of publication, reasonable persuasion, and threat 
 to withdraw patronage, is legal, and such as defendants could em- 
 ploy. So, also, was the injunction too broad in restraining defendants 
 from "intimidating any customer by boycott or threat of boycott" since, 
 as has been said, the secondary boycott is likewise a legal weapon. In 
 all other respects, however, the injunction was proper. 
 
 The trial court is directed to modify its injunction in the partic- 
 ulars here specified, and in all other respects the judgment will stand 
 affirmed. ^^ 
 
 Shaw, J, I agree with all that is said by Justice Henshaw in his 
 opinion, except the part relating to the so-called "secondary boycott" 
 and the attempt to draw a distinction between the compulsion of third 
 persons caused by picketing and the compulsion of third persons pro- 
 duced by a boycott. My views concerning the "secondary boycott" 
 are expressed in my dissenting opinion in Parkinson v. Building Trades 
 Council, 154 Cal. 581, 98 Pac. 1040, 21 L. R. A. (N. S.) 550, 16 Ann. 
 Cas. 1165. The means employed for the coercion or intimidation of a 
 third person in a "secondary boycott" are unlawful whenever they 
 are such as are calculated to, and actually do, destroy his free will, 
 and cause him to act contrary to his own volition in his own business, 
 to the detriment of the person toward whom the main boycott or strike 
 is directed ; in other words, whenever the means used constitute du- 
 ress, menace, or undue influence. Whether this coercion or compul- 
 sion comes from fear of physical violence, as in the case of picketing, 
 or from fear of financial loss, as in the "secondary boycott," or from 
 fear of any other infliction, is, in my opinion, immaterial, so long 
 as the fear is sufficiently potent to control the action of those upon 
 whom it is cast. I can see no logical or just reason for the distinction 
 thus sought to be made. There is no such distinction in cases where 
 contracts or wills are declared void, because procured by duress, 
 menace, or undue influence. There should be none where actual in- 
 jury is produced or threatened through such means acting' upon third 
 persons. Nor do I believe any well-considered case authorizes any 
 such distinction. The opinions in the case of National Protective As- 
 sociation V. Gumming, 170 N. Y. 315, 63 N. E. 369, 58 L. R. A. 135, 
 88 Am. St. Rep. 648, are devoted to a discussion of the right to strike, 
 and the limitations of that right, and not to a discussion of the "sec- 
 ondary boycott." A close analysis of the cases on the subject will, 
 as I believe, show that this court stands alone on this point. 
 
 82 A part of Mr. Justice Henshaw's opinion is oniittod. Beatty, C. J., and 
 Lorigaii and Melvin, ,7 J., confurred in the oijinion. Anf^ollotti and Sloss, J J., 
 concurred in tlie judgment, on tlie facts as found, altli()u,u;li not proparc(l to 
 hold that tlierc may not lic acts coniinj: witliin the term "picketing," as it is 
 accepted and understood in labor disputes, that are entirely lawful.
 
 Ch. 2) TORTS THROUGH MALICE 1433 
 
 For these reasons I do not agree to tlnat part of the judgment di- 
 recting a modification of the injunction. I beheve tliat it should stand 
 in the form as given by the court below. 
 
 MARCH V. BRICKLAYERS' AND PLASTERERS' UNION 
 
 NO. 1 et al. 
 
 (Supreme Court of Errors of Connecticut, 1906. 79 Conn. 7, G-3 Atl. 291, 
 4 L. R. A. [N. S.] 119S, 118 Am. St. Rep. 127, 6 Ann. Cas. 848.) 
 
 In this action, brought by March against the union, the plaintifif seeks 
 to recover $100 which he paid to the defendant union under the cir- 
 cumstances shown in the opinion. The judgment below was for the 
 plaintiff. The defendants appeal. 
 
 PriCntici;, J. The complaint alleges that the defendants conspired, 
 combined, and confederated with each other and other persons to 
 extort, demand, and obtain from the plaintiff the sum of $100; that 
 in pursuance of that conspiracy and combination they threatened to in- 
 jure the plaintiff in his property and business, unless said sum was 
 paid ; and that by reason of said conspiracy and combination, and by 
 reasons of said threats, intimidation, and coercion, and by such means 
 alone said sum was paid by the plaintiff* to the defendants. It is found 
 that the payment was made, that the combination between the mem- 
 bers of the defendant union to secure that payment and Butler's agen- 
 cy for it existed, and that the money was paid through the operation 
 of that combination. So far there is no contention here. The plain- 
 tiff further claims that the combination for the purposes of its con- 
 troversy with him, resulting in the payment by him, was an unlawful 
 one. He claims that it was unlawful (1) because its object was un- 
 lawful; and (2) because the means to accomplish that object were 
 unlawful. He also claims that, as the payment was one into which 
 he was coerced through the operation of this unlawful conspiracy, he 
 is entitled to recover it back. The defendants do not deny that a com- 
 bination or confederation of men either for the accomplishment of 
 an unlawful object or for the accomplishment of a lawful object by 
 unlawful means is unlawful, neither do they deny that, if the combina- 
 tion between them which resulted in the payment in question was an 
 unlawful one, the plaintiff is entitled to recover. 
 
 The contention between 'the parties, therefore, becomes primarily re- 
 solved into one as to whether the conceded confederation of the defend- 
 ants through which the payment was obtained was an unlawful one 
 by reason of the unlawful character of eidier its object or the means 
 employed. The plaintiff asserts the right to a judgment upon narrower 
 grounds than those thus suggested and notwithstanding a failure to 
 establish an unlawful conspiracy. This claim, however, is subordinate 
 to his main proposition, and need not be considered unless it shall
 
 1434 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 appear that his principal contention already stated fails him. The dis- 
 agreement between the plaintift' and the defendants as to the lawful- 
 ness of the object of the latter's combination is one which arises chiefly, 
 if not entirely, out of a difference of view as to what is to be regard- 
 ed as that object. The defendants say that the object was the ulti- 
 mate object of the union, to wit, among other things, the promotion 
 of the welfare of its members and the advancement of their rights and 
 privileges as laboring men, or, if not that, the freeing of themselves 
 from the competition of those not members of the union, or, if not that, 
 and the object is to be brought into closer relation to the matters in 
 controversy, the compelling of "unfair" bosses to become "fair." The 
 plaintiff' finds the object sought in the immediate injury attempted to 
 be inflicted upon him — the extortion of the $100 from him as the 
 price of his freedom from harassment in the marketing of his product. 
 These differences in the analysis of the situation disclosed by the rec- 
 ord are more formal than vital. Their chief importance arises from 
 the changed form which must be given to the discussion of the under- 
 lying questions involved and the different use of terms which must 
 be made according, as one view or the other be adopted. For the 
 purposes of our consideration, therefore, we may well assume, as did 
 the court below, that the object sought by the defendants in what they 
 confederated to do was some one of the more remote objects, as 
 claimed by them, and that this object was a lawful one. This, of 
 course, involves the transferring into the field of means that which 
 would in the other view be regarded as an end and the consideration 
 of all that the defendants did in the accomplishment of its object as 
 means to that accomplishment. 
 
 The question before us. thus becomes narrowed down to the single 
 inquiry as to whether or not the defendants in the pursuit of their 
 object, whether it be regarded as their general welfare as laboring men, 
 or the diminution of outside competition, or the enlargement of their 
 field of opportunity by increasing the number of employers of union 
 labor only, used unlawful means. This question suggests the possibil- 
 ity of a wide range of inquiry, involving the consideration of import- 
 ant legal principles which have been much discussed, and upon cer- 
 tain of which there has been some divergence of opinion. The facts 
 of this case, however, are such as to require from us the application 
 of no principles which have not been long and well established, and 
 but few of them. The salient facts in the story spread upon the record 
 are that this defendant association through their representative, the 
 defendant Butler, demanded of the plaintiff the payment to them of 
 a sum of money upon the threatened alternative that, if payment was 
 refused, he would by their action in refusing to handle his product 
 in their work then in progress be annoyed and harassed in the en- 
 joyment of the benefit of the market for that product which he had 
 obtained, and in all probability be wholly deprived of that market.
 
 Ch. 2) TORTS THROUGH MALICE 1435 
 
 The action thus threatened was within the power of the defendants to 
 take. The consequences which would flow to the plaintiff from it, 
 if taken, were such as might well excite in him a reasonable appre- 
 hension of serious injury. To the pressure thus brought to bear upon 
 him he yielded and paid the sum exacted. There is nothing in the 
 record to relieve this picture. It does not improve it to say that the 
 defendants were seeking to enforce a penalty or to collect damages as- 
 sessed. They had no right to inflict a penalty upon or assess damages 
 against this man, who owed them no duty through association in the 
 membership of the union, by contract or otherwise. The plaintiff 
 owed them nothing. To overawe him into the payment of something 
 by means of threats of injury in their power to inflict and of such a 
 character as to naturally arouse a reasonable apprehension of serious 
 consequences to him, in the event of his refusal, was an act of the 
 purest extortion, using that word in its widest meaning, by means of 
 threats and intimidation, and in the plainest violation of our stat- 
 ute (Gen. St. 1902, § 1296), our decisions, and the universally accept- 
 ed principles of the common law. State v. Glidden, 55 Conn. 46, 8 Atl. 
 890, 3 Am. St. Rep. 23 ; State v. Stockford, 17 Conn. 227, 58 Atl. 769, 
 107 Am. St. Rep. 28. The statement of what the defendants undertook 
 to do easily discloses that this is not the ordinary case found in the 
 books involving the exercise by trade, capital, or labor combinations 
 of claimed powers in their struggles for success. These cases have 
 not infrequently called for the determination of nice legal questions, 
 and the application of doctrines which, while they might be pertinent 
 to the present situation, are wholly unnecessary for the decision of 
 the simpler question before us. The most elemental principles of jus- 
 tice and right which have by universal consent been adopted into the 
 common law suffice for a conclusion that money cannot be lawfully 
 exacted of a man in the manner here successful. We are aware 
 of no case wherein the progress of a labor or trade controversy a simi- 
 lar attempt to extort money as the price of forbearance from threat- 
 ened injurious action has ever come before the courts, save that of 
 Carew v. Rutherford, 106 ^lass. 1, 8 Am. Rep. 287, where the attempt 
 is characterized as a species of annoyance and extortion which the 
 common law has never tolerated. 
 
 It is attempted to justify the action of the union in its money de- 
 mand upon the proposition that, as its members had the right to de- 
 cline to handle the plaintiff's brick, they had the right to waive the 
 exercise of that right upon such conditions as they might impose. The 
 proposition is that money demanded and obtained as tlie price of for- 
 bearance from the commission of an act of injury, even when the 
 commission of that act is held over the man to coerce and intimidate 
 him into compliance with the demand, is lawfully obtained, if the 
 threatened act was one which the threatener might lawfully do. Such 
 a proposition could oftentimes be used to justify the vilest blackmailer,
 
 1436 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 and is palpably unsound, in tliat it ignores certain elements which may- 
 be present to convert the proceeding into a wrong or a crime. 28 Am. 
 & Eng. Ency. Law (2d Ed.) 141. 
 
 It is further said that the action of the defendants was justified 
 in the exercise of the rights of fair trade competition. If it be as- 
 sumed that these journeymen, bricklayers, and this brick manufacturer 
 whose business touched each other, only in that the latter sold brick 
 to persons for whom tlie former worked, are to be regarded as trade 
 competitors, so that the recognized doctrines applicable to such com- 
 petitors are applicable to them, it yet remains tliat the means resorted 
 to in this case would not be permitted. 
 
 There is no error. All concur.*^ 
 
 BURNHAM et al. v. DOWD. 
 
 (Supreme Judicial Court of Massachusetts, 1914. 217 Mass. 351, 104 N. E. 
 
 841, 51 L. R. A. [N. S.] 778.) 
 
 Sheldon, J.** * * * ••j^j-^g leading material facts found by the 
 master may be summarized as follows : The plaintiffs carry on a busi- 
 ness which includes the selling at wholesale and retail of masons' sup- 
 plies. The defendants are members of a voluntary unincorporated 
 association or labor union in Holyoke, hereinafter called the union. 
 It is the object and purpose of all the members of this union to make 
 themselves and the union as powerful as possible in Holyoke and its 
 immediate environment, and to exert their power for the purpose of 
 bettering the labor conditions of members of the union, especially with 
 reference to rates of wages and periods of labor. It is a part of their 
 principles which all the members of the union are under obligation 
 to respect and uphold, that all men of their craft or trade working in 
 Holyoke or its immediate vicinity, that is, within the jurisdiction of 
 their union, must be members thereof ; that all their members should 
 refuse to work with men of their craft who w"ere not members of the 
 union or had not declared their intention to join it; should refuse 
 to work for employers who were declared "unfair" by the union; and 
 should refuse to use in their work any materials that had been sold 
 or furnished by any merchant who was declared unfair by the union. 
 They aimed to accomplish their purpose, of bettering the labor con- 
 ditions of their members, primarily by persuasion coupled with the 
 fear of consequences if the party addressed should not yield, and sec- 
 ondarily, if necessary, by troubles and loss to the business of contrac- 
 tors or merchants. This union was connected with the Building 
 Trades Oouncil of Holyoke, which represented the various building 
 
 83 The statement of facts is abridged. 
 
 84 Parts of the opinion are omitted.
 
 Ch. 2) TORTS THROUGH MALICE 1437 
 
 trades unions (some 14 in number) of Holyoke and vicinity, and was 
 composed of delegates sent from these unions. In July, 1911, one 
 Gauthier employed nonunion masons in certain construction work in 
 Holyoke, against the protest of this union; and the plaintiffs fur- 
 nished to him mason materials. In August, 1911, the union voted to 
 refuse to handle any building material of any firm that furnished 
 stock to Gauthier or to any "unfair" contractor. Soon after this, the 
 delegates from the union to the Building Trades Council reported 
 these facts to that body ; and the agent of the council sent a written 
 notice to the plaintiff' that Gauthier was "doing work contrary to laws 
 of Building Trades Council," and was "therefore recognized by us as 
 being unfair," and expressing the hope of "co-operation in this mat- 
 ter." The plaintiffs continued to furnish material to Gauthier. There- 
 upon, by successive votes, the union declared that the plaintiffs were 
 "unfair." This was for the reason that the plaintiffs continued to fur- 
 nish masons' supplies to Gauthier, and refused to promise not to sell 
 to any party who should not be in good standing with the union. All 
 the members of the union would have refused since August, 1911, 
 and would refuse now and in tlie future (so long as the plaintiffs were 
 held by the union to be unfair) to work with materials purchased from 
 the plaintiff's. It has not been and in the future it will not be prac- 
 ticable, without the labor of members of the union, to perfoTm build- 
 ing contracts of any size or importance in Hol3^oke or its immediate 
 vicinity, without serious inconvenience, trouble and loss to the con- 
 tractors, and the defendants have intended that owners and contrac- 
 tors should fear this result if they purchased masons' supplies from 
 the plaintiffs. The union and its officers and members, including some 
 of the defendants, have notified various owners and contractors, who 
 either were buying or were intending to buy masons' supplies from 
 the plaintiffs for construction work upon which members of the union 
 necessarily were employed, that the plaintiff's were upon the "unfair" 
 list of the union, and that its members would not use or work upon ma- 
 terial furnished by the plaintiff's, and in substance threatened to strike 
 if masons' supplies were purchased from the plaintiff's. These con- 
 tractors and owners feared, and it was intended that they should fear 
 and they were justified in fearing, that these threats would be carried 
 out; and in consequence thereof they ceased or refrained from buy- 
 ing supplies of the plaintiff', as otherwise they would have done, and 
 the plaintiff's' sales of masons' supplies were considerably dnninished 
 and their profits lessened in consequence of these facts. This state 
 of aff'airs will continue, to the serious loss and damage of the plain- 
 tiffs, unless they shall promise not to sell to any one considered unfair 
 by the union. 
 
 The defendants did not act from actual personal malice towards the 
 plaintiff's ; but their acts were done in pursuance of their union prin- 
 ciples and purposes, as above stated, and without caring for the in- 
 jurious consequences to the plaintiff's. Indeed these injurious consc-
 
 1438 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 qiiences were anticipated and contemplated by the defendants. They 
 did not attempt to declare or enforce any boycott against the plain- 
 tiffs, except as this is included in the acts that have been mentioned. 
 During the period involved in this case, some of the defendants have 
 bought for their own use small quantities of masons' supplies from 
 the plaintiffs, and others of the defendants during the same time 
 have made purchases from the plaintiffs in other branches of the plain- 
 tiff's' business. 
 
 Although there has been a little contrariety of decisions in other 
 jurisdictions, we do not consider that there is any doubt as to the rule 
 of law to be applied in this case. The defendants have no real trade 
 dispute with the plaintiffs. No one of the members of the union is, 
 or so far as appears ever has been, employenl by the plaintiffs. The 
 plaintiffs have not interfered or sought to interfere with the employ- 
 ment of any of those members, or with the rates of pay, the periods 
 of labor, or any of the conditions of such employment. There is no 
 competition between these parties, as there was in Bowen v. IMatheson, 
 14 Allen, 499. The matter that lies at the foundation of these pro- 
 ceedings is a dispute between the union and Gauthier. He employs 
 or has employed nonunion labor; the defendants (including under 
 this term all the members of the union) object to this. They have a 
 right to say that they will do no work for him unless he will give 
 to them all the work of their trade, that they will do all or none of 
 his work. That was settled by our decision in Pickett v. Walsh, 192 
 Mass. 572, 78 N. E. 753, 6 L. R. A. (N. S.) 1067, 116 Am. St. Rep. 
 272, 7 Ann. Cas. 638. If they were employed by Gauthier, and if he 
 employed also nonunion men of their craft, they would have a right, 
 unless they were bound by some term of their contract of employment, 
 to strike unless all of this work should be given to them or to their 
 associates. But it was pointed out in the same case that not all strikes 
 are lawful ; and it now is settled in this commonwealth that it is a 
 question of law whether any particular strike is a lawful one. Reyn- 
 olds V. Davis, 198 Mass. 294, 84 N. E. 457, 17 L. R. A. (N. S.) 162 ; 
 De Minico v. Craig, 207 Mass. 593, 94 N. E. 317, 42 L. R. A. (N. S.) 
 1048. But the second point decided in Pickett v. Walsh, supra, is 
 in our opinion decisive of the principal question raised in this case. It 
 was there held that the members of a labor union who are employed 
 by a contractor to do work upon a building, and who have no dispute 
 with that contractor as to work which they or their fellows are doing 
 for him, cannot lawfully strike against him for the mere reason that 
 he is doing work and employing some of their fellows upon another 
 building upon which nonunion men are employed to do like work, not 
 by him, but by the owner, of that building. The language and reason- 
 ing of that decision are applicable here. The reason of the decision 
 was that, as the court said (Loring, J., 192 Mass. 587, 78 N. E. 760, 
 6 L. R. A. [N. S.] 1067, 116 Am. St. Rep. 272, 7 Ann. Cas. 638), 
 such a strike "has an element in it like that in a sympathetic strike, in
 
 Ch. 2) TORTS THROUGH MALICE 1439 
 
 a boycott and in a blacklisting, namely : It is a refusal to work for A., 
 with whom the strikers have no dispute, because A. works for B., 
 with whom the strikers have a dispute, for the purpose of forcing A. 
 to force B. to yield to the strikers' demands." So in the case at bar, 
 the threat of the defendants was to strike against owners and con- 
 tractors, with whom the defendants had no dispute, for the purpose of 
 forcing tliose owners and contractors to refuse to buy masons' sup- 
 plies from the plaintiffs, and thus by the loss of business and of the 
 profits to be derived therefrom, force the plaintiff's to refuse to sell 
 to Gauthier or others whom the defendants might call unfair, and thus 
 put a pressure upon those persons which should force them to cease 
 employing nonunion masons and to give all their mason work to the 
 defendants. This was a step further than what was held in Pickett 
 V. Walsh to be an unlawful combination for an unjustifiable interfer- 
 ence with another's business. It was in intention and eff'ect a boycott ; 
 and it was none the less so because it was aimed at only one branch of 
 the plaintiff's' business. There is no more right to interfere with one 
 branch of a merchant's business, to obstruct it and lessen its prof- 
 its, and so far as may be done to destroy it entirely, than there is so 
 to interfere with, obstruct and destroy the whole of that business. 
 The difference is merely one of degree, not of kind. And Pickett v. 
 Walsh is well supported as to this point both upon the reasoning of 
 the opinion and by authority. * * * ^^ 
 
 As was said in Hopkins v. Oxley Stave Co., 83 Fed. 912, 917, 28 
 C. C. A. 99, 105 : "Persons engaged in any service have the power, 
 with which a court of equity will not interfere by injunction, to aban- 
 don that service, either singly or in a body, if the wages paid or the 
 conditions of employment are not satisfactory ; but they have no right 
 to dictate to an employer what kind of implements he shall use, or 
 whom he shall employ." * * * 
 
 The defendants contend earnestly that each one of them has a per- 
 fect right to refrain from dealing himself, and to advise his friends 
 and associates to refrain from dealing, with the plaintiff's, and that 
 
 8 5 Mr. Justice Sheldon here cited or referred to a large number of cases, 
 and especially "the cases collected on page 588 of 192 Mass.," page 760 of 78 
 N. E. (6 L. R. A. [N. S.] 1067, 116 Am. St. Hep. 272, 7 Ann. Cas. 638 [1906]). 
 See also New Euirland Cement Gun Co. v. McGivern (1914) 218 Mass. 198, 105 
 N. E. 885, where De Courcy, ,T., remarks: "It was not lawful for them to strike 
 to compel Monahan, with whom they had no trade dispute, to compel the gen- 
 eral contractor to compel the owner to compel the plaintiff to give to the de- 
 fendants the work they demanded. In other words, it was an unjustifiable in- 
 terference with the plaintiff's business to injure others in order to compel 
 them to coerce the plaintiff. Martin, Modern Law of Labor Unions, § 77, and 
 cases cited. The acts of coercion and procuring breaches of contract mentiouetl 
 in the sixth finding plainly are not justified by the law of this commonwealth. 
 It is unnecessary to consider further the unlawfulness of such a secoudaiy 
 or compound boycott in view of the full discussion of the subject in the recent 
 opinions of this court in Pickett v. Walsh (1906) 192 Mass. 572, 78 N. E. 758, 
 6 L. R, A, (N. S.) 1067, 116 Am. St. Rep. 272, 7 Ann. Cas. 638, and Burnham v. 
 Dowd (1914) 217 Mass. 351, 104 N. E. .S^tl, 51 L. R. A. (N. S.) 778, iu which 
 cases are collected the authorities in this and other jurisdictions."
 
 1440 TORTS THROUGH ACTS OF CONDITIONAL LIABILITY (Part 3 
 
 they have a right to do together and in concert what each one of tliem 
 lawfully may do by himself. But that is not always so. It is especially 
 true in dealing with such questions as these that the mere force of 
 numbers may create a difference not only of degree, but also of kind. 
 No doubt the defendants' organization is a lawful one, and certainly 
 some of the objects aimed at by the union thus formed are both legal 
 and of high utility. But, as was pointed out by the Supreme Court of 
 the United States in Gompers v. Buck's Stove & Range Co., 221 U. 
 S. 418, 31 Sup. Ct. 492, 55 L. Ed. 797, 34 L. R. A. (N. S.) 874, "the 
 very fact that it is lawful to form these bodies, with multitudes of 
 members, means that they have thereby acquired a vast power, in the 
 presence of which the individual may be helpless. This power, when 
 unlawfully used against one, cannot be met, except by his purchas- 
 ing peace at the cost of submitting to terms which involve the sacrifice 
 of rights protected by the Constitution ; or by standing on such rights 
 and appealing to the preventive powers of a court of equity. When 
 such appeal is made it is the duty of government to protect the one 
 against the many as well as the many against the one." To the same 
 effect is what was said by this court, through Mr. Justice Hammond, 
 in Martell v. White, 185 Mass. 255, 260, 69 N. E. 1085, 1087, 64 L. R. A. 
 260, 102 Am. St. Rep. 341, quoting the words of Lord Justice Bowen 
 in Mogul Steamship Co. v. McGregor, 23 Q. B. D. 598, 616: "Of the 
 general proposition that certain kinds of conduct not criminal in any 
 one individual may become criminal if done in combination among 
 several, there can be no doubt." So in Pickett v. Walsh, 192 Mass. 
 572, 78 N. E. 753, 6 L. R. A. (N. S.) 1067, 116 Am. St. Rep. 272, 
 7 Ann. Cas. 638, it was held among other things that "what is lawful 
 if done by an individual may become unlawful if done by a combina- 
 tion of individuals." And see the cases collected on page 582 of 192 
 Mass., on page 757 of 78 N. E. (6 L. R. A. [N. S.] 1067, 116 Am. St. 
 Rep. 272, 7 Ann. Cas. 638), in that opinion. This principle is pecu- 
 liarly applicable to cases like the one at bar. There is no such thing 
 in our modern civilization as an independent man. No single indi- 
 vidual could continue even to exist, much less to enjoy any of the com- 
 forts and satisfactions of life, without the society, sympathy and sup- 
 port of at least some of those among whom his lot is cast. Every 
 individual has the right to enjoy these, and is bound not to interfere 
 with the enjoyment of them by others. That right indeed is usually 
 one of merely moral obligation, incapable of enforcement by the courts, 
 but it is none the less an actual wrong for any body of men actively 
 to cause the infringement of that right in definite particulars; and 
 especially where such an infringement is made possible only by the 
 concerted action of many in combination against one and results in 
 direct injury to his business or property, the courts should interfere 
 for the protection of that person. 
 
 In Worthington v. Waring, 157 Mass. 421, 32 N. E. 744, 20 L. R. 
 A. 342, 34 Am. St. Rep. 294, where the court refused to enjoin the
 
 Ch. 2) TORTS THROUGH MALICE 1441 
 
 defendants from putting the names of the plaintiffs upon a blacklist 
 and thus making it impossible for them to obtain in that neighbor- 
 hood employment in their trade, there was a misjoinder of plaintiffs. 
 Apart from this technical difficulty, the decision was put upon the 
 ground that while courts of equity may protect property from threat- 
 ened injury when the property rights are equitable or when they can- 
 not be protected adequately at law, yet equity has in general no juris- 
 diction to restrain the commission of crime or to assess damages for 
 torts already committed, and the rights there alleged to have been vio- 
 lated were said to be merely personal rights and not rights of prop- 
 erty. That case is not applicable here, for the rights now in question 
 are distinctly property rights. Accordingly we need not consider 
 whether the doctrine of that case can be reconciled with our later de- 
 cisions, or whether it now would be followed if the same state of facts 
 were again presented. 
 
 The question of damages remains to be dealt with. Upon that we 
 find no error in the master's report. That the plaintiffs have sustained 
 substantial damage is manifest ; and the mere facts that it may be im- 
 possible to determine the total amount of their loss, and that it may 
 be difficult to ascertain with absolute certainty the money value of 
 even the damages that can be proved, is no reason for refusing to 
 allow to the plaintiff what has been found to be capable of substantial 
 proof. Fox V. Harding, 7 Cush. 516; Speirs v. Union Drop Forge 
 Co., 180 Mass. 87, 61 N. E. 825; C. W. Hunt Co. v. Boston Kiev. 
 Ry., 199 Mass. 220, 235, 85 N. E. 446 et seq. ; De Minico v. Craig, 
 207 Mass. 593, 600, 94 N. E. 317, 42 L. R. A. (N. S.) 1048. We find 
 nothing inconsistent with this in Todd v. Keene, 167 Mass. 157, 45 N. 
 E. 81 ; John Hetherington & Sons v. William Firth Co., 210 Mass. 8, 
 23, 95 N. E. 961, et seq., or the other cases relied on by the defendants. 
 Doubtless merely speculative damages or any damages that have not 
 been proved cannot be recovered ; but this does not require absolute 
 mathematical demonstration or prevent the drawing of reasonable 
 inferences from the facts and circumstances in evidence. 
 
 The result is that the plaintiff's are entitled to a decree enjoining the 
 defendants from keeping the names of the plaintiff's upon their unfair 
 list, from threatening to strike or to leave the work of any owner, 
 builder or contractor by reason of such persons having purchased ma- 
 sons' supplies from the plaintiffs or having dealt otherwise with the 
 plaintiffs, and from ordering or inducing any strike against an owner, 
 builder or contractor for such reason, and that the plaintiff's shall re- 
 cover from the defendants the sum of $500 with interest from the 
 date of the filing of the master's report, and their costs of suit, and 
 have execution therefor. 
 
 So ordered. 
 
 Hepb.Tokts — 91 
 
 *
 
 INDEX 
 
 [the figubes befeb to pages] 
 
 ABATEMENT OF NUISANCE, 200, 396, 39S, 399, 402. 
 
 ABUSE OF PROCESS, 1200-1203. 
 
 ACCIDENT, 
 
 As an excuse in negligence, 1092-1095. 
 As an excuse in trespass, 155-168. 
 
 ACTION, 
 
 Common law action as a test of a tort. 15. 
 
 Malicious institiition of, whether a tort, 1194, 1195, note. 
 
 ACTION ON THE CASE, 
 Origin of, 316, 317. 
 Influence of on the law of torts, 318. 
 
 ACT OF GOD, 
 
 Effect of, as a concurring cause, 849, 886, 888, 894, 899. 
 
 ACTS AT PERIL, 155 note, 156, 764-799. 
 
 ACTUAL DAMAGE, 
 
 Importance of, in the doctrine of torts, 
 In general, 6, 7. 
 Special aspects considered, 
 
 In trespass, 28, 29, 115 note. 
 
 In defamation, 574-582, 638-641. 
 In negligence, 963-908. 
 In malicious torts, 1185, 1258, 1259, 1260. 
 In nuisance, 347. 
 
 ADMIRALTY RULE, 
 
 As to plaintiff's recovery in contributory fault, 1113, 1114 note. 
 
 ADVICE OF COUNSEL, 
 
 As an excuse in malicious prosecution, 1196, 1198, 
 
 AGENT, 
 
 Conversion by, 488, 490, 523. 
 Trespass by, 31, 91, 94, 97. 
 
 AIR, 
 
 Passage through, whether a trespass to owner of subjacent land, 111, 112 
 note. 
 
 ANIMALS, 
 
 Killing of, when excusable, 197, 198, 199, 200, 402. 
 Liability for damage caused by. 
 
 Of owner with knowledge, 768, 770, 772, 774. 
 
 In trespass, 33, 34 note. 35 note, 108. 
 When subject matter of c<iuversion, 447. 
 As a nuisance, 200, 358, 359 note. 
 
 APPRENTICE, 
 
 Discipline of, 266, 267. 
 
 Hepb.Tobts (1443)
 
 1444 INDEX 
 
 [The figures refer to pages] 
 
 ARREST, 
 
 Battery, distiniriiished from, 241. 
 I'arties liable in trespass, 245, 
 I'riuia facie cause in, elements of: 
 In general, 100-102. 
 
 Contact, whether essential to an arrest, 89 note. 
 Contact, whether suflicient if not submitted to, 101. 
 Submission to show of authority, whether suthcient as an arrest, 101, 
 
 102, 246. 
 Sunnuous, distinguished from arrest, 100. 
 
 Worils alone, whether suthcient as an arrest, 89 note, 100, 102. 
 Prima fa cie_ excuses in: 
 Under judicial process. 
 In general, 231-241. 
 In special : 
 
 Arrest under unconstitutional statute, 235, 236, 238, 240, 241. 
 Judicial officer, when liable; 233. 
 Lack of jurisdiction, 231, 232, 233, 236. 
 Complaining witness, when liable, 236. 
 Mistake as to person arrested, 232. 
 Warrant not in possession of arresting officer, 238. 
 Warrant not produced in evidence by defendant, 240. 
 Without warrant : 
 xVrrest on view, 
 
 JMisdemeanor, in general, 242, 243. 
 Breach of the peace, 247, 251, 253. 
 Felony, 257. 
 Arrest on suspicion, 
 
 Misdemeanor, in general, 245. 
 Breach of the peace, 247, 252. 
 Felony, 257, 259, 261. 
 When bystander may give in charge, 250, 251, 258. 
 
 ASl'ORTATION, 
 
 As a form of trespass, 116, 117, 118, 120. 
 As a form of trover and conversion, 475. 
 
 ASSAULT, 
 
 Battery distinguished from, 47, 55. 
 Essentials in: 
 
 Act of violence. 
 
 When sufficient, 47, 48, 194. 
 When insufficient, 40 and note, 52. 
 Actual damage, whether essential, 28, 47, 48, 
 Contract, whether essential, 28, 47, 48. 
 Intent to harm, whether essential, 51. 
 
 Threat of violence, whether sufficient per se, 51, 53 note, 193. 
 Justilicalion or excuse, see Battery. 
 Pleading an assault, what facts required, 54 and note. 
 
 ASSUMPSIT, 
 
 Histoiical relation of, to negligence, 902, note. 
 
 ASSUMPTION OF RISK, 
 
 As a defense, in general, 146 note. 
 
 In negligence, 1114-1143. 
 
 In trespass, 146-155, 160, 164 note. 
 
 .VTTRACTIVE NUISANCE, 
 
 Doctrine of, 995, 999, 1001 note, 1002, 1006, 1009. 
 
 AUTOMOBILE, 
 
 Unlicen.sed, whether a trespasser on public highway, 986. 
 
 BALLOON, 
 
 Passing over land, whether a trespass, 111.
 
 INDEX 1445 
 
 [The figures refer to pages] 
 
 BATTERY, 
 
 Assault distinsrviished from, 47, 55. 
 Defiuition of. Go. 
 
 Negligence distinguished from, 63. 
 Parties liable, 56, 61, 71, 72 note. 
 Prima facie cause, elements of: 
 In general, 55-79. 
 Special features considered: 
 
 Accidental impact, 31, 5G, 64, 68, 71, 74. 
 Actual damage, 28. 
 Anger, whether essential, 148. 
 Defendant's act of force, legal effect if 
 Done without carelessness, 68. 
 Done for a lawful purpose, 68. 
 Done in sport, 76. 
 
 Done with good intention, 73, 77, 78. 
 Done through another, 31, 56, 59 note, 71. 
 Impact on plaintiff, legal effect if 
 Not immediate, .55, 60, 61. 
 
 Occurring without intentional act by defendant, 29, 62, 64, 67 note. 
 Unintended by defendant but occurring from his intentional act, 
 
 31, 56, 71, 74. 
 Occurring through instinctive act of another unintentionally 
 caused by defendant's act of force, 56, 59 note. 
 Justification or excuse in battery. 
 Forms of, considered: 
 
 Accident, 31, 156, 158. 160. 164 note, 165. 
 
 Assumption of risk. 146, 148, 149, 151 note, 152, 153, 160, 164 note. 
 Consent, in general, 135, 137, 138, 145. 
 Implied consent, 141 note. 
 Unlawful consent, 142, 143. 144 note. 
 Defense of the person. 172. 190, 191 and note, 192, 193, 195. 
 Defense of property, 182, 202, 204, 208, 216. 
 Mistake. 172, 175. 
 How shown, 126, 1.30. 131, 205. 
 Mediate act. whether battery legally possible through, 55, 56, 60, 61. 
 Negligence, distinguished from battery, 63. 
 Passive act, whether battery legally possible through, 62. 
 
 BLAMEWORTHINESS, 
 
 As a test in tort, 4, 5 and note, 28, 31, 36, 68, 78, 155, 156, 159, 160, 164, 
 169, 170, 171, 185, 246, 591, 611. 
 
 BOYCOTT. 
 
 Use of the term, 1359. 
 
 Primarj^ boycott, 1428. 
 
 Secondary boycott, 1429, 1432. 
 Prima facie liability for, 1258, 1259. 
 When excusable, 1428, 1429. 
 When not excusable, 1429, 1434, 1437, 1438, 1439 note. 
 
 BREACH OF THE PEACE, 
 
 When arrest for, is excusable, 247, 251, 252, 253. 
 
 CHASTISEMENT, 
 
 See Discipline. 
 
 CIVIL ACTION, 
 
 Malicious institution of, whether a tort, 1194, 1195 note. 
 
 COMMENT, 
 
 See Fair Comment. 
 
 COMPARATIVE NEGLIGENCE, 
 Doctrine of, 1112 note.
 
 1446 INDEX 
 
 [The figures refer to pages] 
 
 COMPETITION, 
 
 As a justitication for inteutional harm, 1310-1354. 
 
 CONSENT, 
 
 As a justification, in general, 132. 
 As a justification in trespass. 
 
 Valid consent, 133, 134, 145. 
 
 Invalid consent, 142, 143, 144 note. 
 
 Implied consent, 141 note. 
 
 CONSPIRACY, 
 
 As a tort, 1269, 1273, 1282, 1311, 1325, 134,1, 1362, 1369, 1873, 1385. 
 
 CONTRACT, 
 
 Inducing breach of, as a tort, 1237, 1266, 1287, 1292, 1309, 1329, 1338. 
 Inducing not to enter into, as a tort, 1280, 1285, 1337. 
 
 CONTRIBUTORY FAULT, 
 
 ' Assumption of risk, 146-155. 160, 164 note, 1114-1143. 
 Contributory negligence, 1096-1113. 
 
 Admiralty rule, as to, 1113, 1114 note. 
 Common law doctrine, 
 In general, 1096-1114. 
 Rise of, 1097 note. 
 Battery, whether doctrine of contributory negligence applies to, 148, 
 
 149 note. 
 Causal relation in, 1100, 1103. 
 Comparative negligence distinguished, 1112. 
 Nuisance, whether doctrine of contributory negligence applies in, 347 
 
 note. 
 Plaintiff's prima facie case, whether freedom from contributory neg- 
 ligence is part of, 969-981. 
 Wilful injun', whether doctrine of contributory negligence applies 
 to, 1107. 
 And see Imputed Negligence ; Last Clear Chance. 
 
 CORPORATIONS, 
 
 Principle of liability in tort, 96. 
 
 CULPABILITY, 
 
 As a test in tort, see Blameworthiness. 
 
 DAMAGE, 
 
 See Actual Damage. 
 
 DANGEROUS THINGS, 
 
 Liability for escape of, 779-799. 
 
 DECEIT, 
 
 Base affirmation, whether sutficient, 1213. 
 Elements of the cause, 1220. 
 False statement. 
 
 Distinguished from deceit, 1214, 1215, 1219. 
 Fraud, 
 
 Nature of in deceit, 1224. 
 Misrepresentation in 
 
 Nature of, 1215, 1219. 
 Motive, 
 
 Effect of, 1224. 
 Naked lie. 
 
 Distinguished from deceit, 1215. 
 Prima facie cause in deceit, elements ot: 
 In general, 1215, 1219, 1224. 
 In special, as respects 
 
 Acting on the misrepresentation, 1214. 
 Actual damage, 1215. 
 Collusion, 1217.
 
 INDEX 1447 
 
 [The figures refer to pages] 
 
 DECEIT— Continued, 
 
 Prima facie cause in deceit, elements of — Continued: 
 In special, as respects — Continued 
 
 Intent, that plaintiff act on misrepresentation, 1215. 
 Knowledge of the falsehood, 1217. 
 Lack of care in making statement 1225. 
 Reliance on the representation, 1214. 
 Prima facie justification in deceit: 
 In general. 1214, 1219. 
 
 Assertion without knowledge, effect, 1218, 1219. 
 Honest belief in truth of assertion, effect, 1224. 
 Motive, effect of, 1224. 
 DEFAMATION, 
 Action for. 
 
 In the early local courts, 556, 557. 
 In the ecclesiastical courts, 555, 556, 557, 558. 
 In the king's courts, 5.55, 556, 557, 559 note. 
 In the star chamber, 557, 559. 
 Actual damage, importance of. 
 In libel, 6.38-641. 
 In slander, 574-582. 
 Colloquium, office of, 648. 
 
 Construction of the language used, see Language or Representation. 
 Disease, false charge of. whether defamatory. 604. 
 Insanity, false charge of. whether defamatory, 564. 
 Ironical statement, when defamatory, 597. 
 Judicial proceedings, false statement in. when defamatory, 660, 662, 663, 
 
 665, 666 note. 
 Language or representation, test of its meaning in defamation, 
 In general, 642, 645, note, 646, 648 note. 
 In special. 
 
 Apparently innocent statement, 597. 
 Ironical statement, 597. 
 Laudatory statement, 595. 
 Colloquium, office of, 648. 
 Contest, effect of, 645. 
 
 In mitiori sensu, doctrine of, 644, 645 note. 
 Innuendo, effect of, 647. 
 Prevailing rule of construction, 645 note. 
 Laudatory statement, when defamatory, 595. 
 
 Legislative proceedings, false statement in, when defamatory, 646, 648. 
 Malice, 
 
 As part of plaintiff's prima facie cause, see Prima facie cause, ele- 
 ments of. 
 As a factor in plaintiff's reply, 738, 739 note, 740, 741, 750, 754, 756, 
 759. 
 Malicious falsehood, distinguished from defamation, 599. 
 Mercantile agency, communications by, whether privileged, 707, 711 note. 
 Moving pictures, defamation by means of, 601. 
 Nuisance, distinguished from defamation, 343. 
 Officious publication, effect of, 702. 
 Prima facie cause in defamation, elements of: 
 Defamatory statement, 
 
 TMiat is defamatory, 584, 586, 589, 591, 5^7, 601, 602, 606. 
 What is not defamatory, although harmful, 559, 595. 599, 600 note. 
 Non-opprobrioiLS statement, whether defamatory, 603. 
 Malice, whether essential. 
 
 Malice in fact distinguished from malice in law, 635, note, 636, 
 
 637. 
 Form of pleading, 634 note, 635 note. 
 Lial)ility without actual malice, 591, 606, 611. 
 Origin of doctrine of malice in defamation, 635 note.
 
 1448 INDEX 
 
 [The figures refer to pages] 
 
 DEFAMATION— Continued, 
 
 Prima facie cause in defamation, elements of — Continued: 
 Of and conceniins plaintiff. 
 In general, 607-618. 
 Accidental use of plaintiff's name, 611. 
 Innuendo, whether sufficient, COS. 
 
 Picture of plaintiff, under name of author, 591, 609, 610 note. 
 Publication, 019-633. 
 Importance of. 
 
 In tortious defamation. 619, 620, 625, 626. 
 In criminal libel, 621 note. 
 Forms of, considered, 
 
 Circiilation of book, 630. 
 
 Circulation of newspaper, 631 note, 632, note, 633 note. 
 Decoy publication, 622 note. 
 Whether there is a publication if 
 
 Statement made to plaintiff alone, 619, 620. 
 
 Statement to plaintiff reaches third person in expected course, 
 
 623, 624 note. 
 Statement made to defendant's stenographer, 627. 
 Statement made to plaintiff's agent, 622 note. 
 Statement made to plaintiff's clerk, 623, 624 note. 
 Statement made to plaintift''s wife. 621. 
 Statement made in foreign tongue, 625. 
 Statement made in native tongue, 626. 
 Statement made in public place, 620. 
 Prima facie justification in defamation: 
 Defendant's case in: 
 
 General is.sue, whether justification may be shown under, 678. 
 Kinds of justification considered: 
 
 Defamation incited by plaintiff, 721, 724. 
 Fair comment, 728-738. 
 I'rivilege, 658-717. 
 Repetition of the statement, 
 In general 
 
 On stated authority, 718, 720 note. 
 On plaintiff's own statement, 721. 
 Truth of the charge, 649-658. 
 Unlawful business by plaintiff', 725, 727. 
 Plaintiff's avoidance of prima facie justification, 
 Burden of proof, 754. 
 Kinds of avoidance considered : 
 
 Excess, 741, 742 note, 743, 744, 746, 747. 
 Malice, 738, 739, note, 740, 741, 750, 754, 756, 759. 
 In joint tort feasor, 756. 
 Privilege: 
 
 Absolute privilege, 6.59-676. 
 
 Meaning of Ihe term, 6.59 note. 
 "VN^hether statement absolutely privileged if 
 Made by counsel, 662-065. 
 Statement pertinent, 662. 
 Statement not pertinent, 663, 665, 666 note. 
 Made. by a judge, 660. 
 Made in legislature, 672 note, 673 note. 
 Made by a party litigant, 660, note. 
 Made by a prosecuting witness, 059. 
 Made by witness in a civil suit, 6()7-676. 
 
 Testimony relevant. 6(!7, 669, note, 673. 
 Testimony irrelevant, 669 note, 671, 672 note. 
 Made in the preliminary statement, 676.
 
 INDEX 1449 
 
 [The figures refer to pages] 
 
 DEFAINIATION— Continued, 
 
 Privilege — Continued : 
 
 Conditional privilege : 
 
 Meaning of the term, 678 note. 
 Forms of, considered, in 
 
 Communications in pursuance of a duty : 
 Statement requested, 693, 705, 707. 
 
 Statement not requested, 693, 696, (i99, 702, 703 note, 706. 
 Conmiunications in protection of private interest: 
 Common interest, 712, 713, 714 note, 716. 
 Individual interest, 715, 716. 
 Reports in public interest: 
 
 Of legislative proceedings, 679. 
 Of judicial proceedings, 678, 683, 684. 
 Of quasi judicial proceedings, 6S6. 
 Of a pleading in a suit, 690. 
 Of a public meeting, 688. 
 Of a stockholders' meeting, 684. 
 Qualified privilege: 
 
 Meaning of the term, 678 note. 
 See conditional privilege, ante. 
 Truth of the charge. 
 
 Characteristics as a defense, in general, 649. 
 Belief in the charge, as made, whether sufficient, 651. 
 Extent of this justification, 651, 652, 653. 
 Good intent, whether essential, 650, 657 note. 
 Pardon, efCect of a showing of, 655, 656. 
 Special plea of the tiaith, whether essential, 643, 651. 
 Strictness of proof, required, 652. 
 Wrongful purpose in plaintiff, false assertion of, whether defamatory, 559. 
 
 DEFENDANT'S WELFARE, 
 
 As a defense against a charge of intentional harm, 1253. 
 
 DEFENSE OF THE PERSON, 
 
 As a justification in trespass, 190-196. 
 Defense of others, 192, 195. 
 Self defense, 49, 131, 190, 191, 192, 193, 194. 
 
 DEFENSE OF PERSONAL PROPERTY, 
 As a justification in trespass : 
 
 In general, 196, 197, 202, 204, 205 note. 
 In the case of a nuisance, 200. 
 Limits of the doctrine, 198, 199, 204. 
 
 DEFENSE OF REAL PROPERTY, 
 As a justification in trespass : 
 In general. 207-230. 
 
 Defendant's possession, what suflScient, 207, 210, 214, 215. 
 Limits of the doctrine, 210, 212, 217, 218, 220. 
 Forcible entry, as a form of, 221-228. 
 Request to leave, when necessary, 209. 
 
 DEODAND, 
 
 Its analogy in torts, 155 note. 
 
 DESTRUCTION, 
 
 Of a chattel, as a form of trespass, 115 note. 
 
 DETINUE, 
 
 Nature of the cause, in general, 295, 296, 297. 
 
 Its relation to debt, 294. 
 
 Its relation to replevin, 295. 
 
 As a real action. 299. 
 
 By a loser against a finder, 298, 299 note, 300.
 
 1450 INDEX 
 
 [The figures refer to pages] 
 
 DETINUE— Continued, 
 
 On inability to i-edeliver, 301. 
 For a sum of money, 312, 314 note. 
 Plaintiff's title, 303. 
 Limits of the action, 305, 312, 315. 
 
 DISCIPLINE, 
 
 As a justification In trespass, 266-274. 
 Scope of the rule, in general, 266. 
 
 Discipline by husband, 266, 267 note. 
 
 Discipline by schoolmaster, 267, 269. 
 
 Discipline by shipmaster, 270. 
 Limits of the defense, 266, 269, 270, 271, 
 Excess of discipline, 272. 
 
 Replication of immoderate castigavlt, 266. 
 
 DISPARAGEMENT OF GOODS, 
 Elements of the cause, 1209. 
 Puffing advertisement distinguished from, 1212. 
 
 DISTRESS, As a justification in trespass, 281, 282. 
 DURESS, As a justification in trespass, 29, 30. 
 
 ECONOMIC ADVANCEMENT. 
 
 As justification for intentional harm, 1253. 
 
 EMERGENCY, As a justification in trespass, 139, 141 note, 187, 279 note. 
 
 ENT^ICING AWAY, 
 
 Of servant, wife, child, 533-554. 
 
 ENTRY, 
 
 As a cause in trespass, 28. 
 
 Forms of, 107, 108, 111, 112, 113, 287. 
 
 EQUITABLE RELIEF, 
 
 When granted in torts, 16, 17. 
 
 EXECUTION, LEVY OF, 
 
 As a cause in conversion, 4S0, 481. 
 As a cause in trespass, 43, 116, 481. 
 
 EXTRA-HAZARDOUS USE, 
 Doctrine of, 776-799. 
 
 FAIR COMMENT, 
 
 Doctrme of, 728-738. 
 
 FALSEHOOD, 
 
 Deceit distinguished from, 1215, 1219. 
 
 FALSE IMPRISONMENT, 
 
 Act of force, whether essential, 84, 85, 88, 89 note, 90. 
 Actual damage, whether essential, 91. 
 Contact, whether essential, 84, 90, SO note. 
 Consciousness of restraint, whether essential, 82. 
 
 Tx»ss of freedom of locomotion, distinguished from imprisonment, 81 note. 
 Malicious prosecution, distinguished from imprisoumeut, 103, 230. 
 Parties liable, 233, 236, 245, 253. 
 Pleading imprisonment, what sufficient, 99. 
 
 Police officer, whether he may arrest on view for violation of city ordi- 
 nance, 242, 243. 
 Prima facie cause, elements considered: 
 
 In general, 80-100. 
 
 Actual damage, whether essential, 90, 91. 
 
 Consciousness of the restraint, whether essential, 82. 
 
 Restraint in all directions, whether essential, 80, si note. 
 
 Rwstrainiug act, forms of the, 84, 87, 88, 90, 91, 92, 94.
 
 INDEX 1451 
 
 [The figures refer to pages] 
 
 FALSE IMPRISONMENT— Continued, 
 
 Prima facie justification or excuse, forms of: 
 Arrest under judicial process, 
 
 Justification Lnsufiicient, 233-241. 
 Justification sufficient, 231. 
 Arrest without warrant, 
 
 Justification insufficient, 242, 243, 245, 252, 261. 
 Justification sufficient, 247, 251, 253, 257, 259. 
 Restraining act, the, 
 
 Act of force, whether essential, 84, 85, 88, 89 note, 90. 
 Continued restraint, as a fresh cause, 97. 
 Corporal touch, whether essential, 84, 90, 89 note, 241. 
 Distinguished from refusal to act, 84, 92. 
 Extent of, as essential to imprisonment, 80. 
 Forms of, in imprisonment, 87, 90, 91, 94, 100, 102, 241. 
 Partial restraint, whether imprisonment, 80. 
 Rough shadowing, as imprisonment. 90, and note. 
 Words alone, whether sufficient. 89 note, 100, 102, 241. 
 Refusal to act, whether imprisonment, 84, 92. 
 
 FELONY. 
 
 Arrest on view of. 257. 
 
 Arrest on suspicion of, 257, 259, 261. 
 
 FENCE, 
 
 See Spite Fence. 
 
 FIRE, 
 
 Destruction of property to prevent its spread. 
 Nature of liability for its escape, 764-767, 765 note. 
 
 FOR"CIBLE ENTRY. 
 
 As an excuse in trespass, 207, 221, 223 note, 224, 226, 228. 229. 
 
 FOREIGN SFBSTANCES, 
 
 Liability for escape of, from defendant's land, see Extra-Hazardous Use. 
 
 FRAUD, 
 
 Nature of in deceit, 1224. 
 
 FRESH PURSUIT, 
 
 Importance of as a defense in trespass, 203 note. 204. 
 
 HIGHWAY, 
 
 Impassable, when an excuse in trespass, 178, 180 note. 
 
 IMPRISONMENT, 
 
 See False Imprisonment. 
 
 IMPUTED NEGLIGENCE, 
 
 Doctrine of, 1144-1150. 
 
 INDUCING BREACH OF CONTRACT, 
 
 As a tort, 1237, 1266, 1287, 1292, 1309, 1329, 1338. 
 
 INEVITABLE ACCIDENT, 
 
 As a justification in trespass, 68, 155, and note, 156, 157 note, 158, 159, 160, 
 
 164, 165. 
 Burden of proof as to, 167. 
 
 INFANT, 
 
 Whether liable in tort, 10, 56, 76. 
 
 INJUNCTION, 
 
 As a tort remedy, 19. 
 
 INSANE PERSON, 
 
 Whether liable in tort, 10, 156. 
 
 INSULT, 
 
 Whether an excuse in battery, 193.
 
 1452 INDEX 
 
 [The figures refer to pages] 
 
 INTENTIONAL ACT, 
 
 Its importance in trespass, 29, 30, 35. 
 Different forms in trespass, 31, 33. 
 
 INTENTIONAL HARM THROUGH USE OF PROPERTY OR INFLUENCE, 
 When a prima facie tort, 1227, 1234. 1237, 1246, 1251, 1258, 1259, 12G0. 
 Wlien not a tort, 1229, 1232 note, 1236, 1328. 
 When excusable: 
 
 In general, 1295, 1297 note. 
 
 Insufficient excuse, 1274, 1280, 1285, 1291, 1298, 1302, 1306. 
 ^^ufiicient excuse, 1261, 1295, 1297 note. 
 In trade or business competition. 
 
 Insufficient excuse, 1317, 1321, 1.332, 1335, 1340, 1344. 
 Sufficient excuse. 1310, 1314 note, 1335, 1340. 
 In labor contests; strikes, lockouts, boycotts in general, 1355. 
 Insufficient excuse, 
 
 I'njustifiable boycott, 1427, 1433, 1436. 
 Unjustifiable strike, 1367, 1368, 1386, 1398, 1406, 1415. 
 Sufficient excuse. 
 
 Justifiable boycott, 1427. 
 Justifiable strike, 1362, 1377, 1386. 
 JUDGE, 
 
 Defamatory statements by, whether privileged, 660, 661 note. 
 
 JUDICIAL PROCEEDINGS, 
 
 Defamatory statements in, whether privileged, 659, 662, 663, 664 note, 667, 
 671, 672 note. 
 
 JUDICIAL PROCESS, 
 
 Arrest under, as a justification in trespass, 231. 
 
 JURISDICTION, 
 
 In arrest under judicial process, 2.33, 235, 236. 
 Of the king's courts in trespass, 24, 25, 20, 27. 
 
 JUSTIFICATION OR EXCUSE, IN TORT ACTIONS, 
 
 Its importance in relation to a prima facie cause, 4 note, 122. 
 In actions for trespass. 
 In general, 122-131. 
 Forms of, considered: 
 Accident, 155-167. 
 Arrest, 231-265. 
 
 Assumption of risk, 146-154, 160, 164 notew 
 Defense of the person, 190-195. 
 Defense of personal property, 196-206. 
 Defense of i*eal property, 207-230. 
 Discipline, 266-274. 
 Leave and license, 132-145. 
 Mistake, 16S-175. 
 Necessity, 175-189. 
 Instances of failure to show, 123, 124, 126, 127, 128, 129, 130, 131. 
 In actions for negligence. 
 
 Whether permissible under "not guilty" in trespass on the case, 494. 
 Forms of, considered: 
 Accident, 1092-1095. 
 Assumption of risk, 1114-1143. 
 Imputed negligence, 1144-11.50. 
 Contributory negligence, 969-981, 1096-1113. 
 In actions for intentional harm, 
 
 When justification needed, in general, 1258-1309. 
 Forms of, considered: 
 
 In competition in Itusiness or trade, 1310-1.354. 
 In contests between capital and labor, 1.355-1441. 
 
 LABOURERS, STATUTE OF, 
 
 Applicability of, In actions for inducing breach of contract of service, 1243,
 
 INDEX 1453 
 
 [The figures refer to pages] 
 
 LAND, 
 
 Owner's acts at peril in use of, 77G. 
 
 Use of for tlie intentional harm of another, 1229, 1298. 
 
 LANGUAGE, 
 
 Construction of, in defamation, 642, 644, 645 note, 646, 648 note, 
 
 LAST CLEAR CHANCE, 
 Doctrine of, 1151-1181. 
 
 LEAVE AND LICENSE, 
 
 As a justification in trespass, 132-146. 
 
 Implied license, 133, 134, 1.S5 note, 141 note. 
 Limits of the doctrine, 137, 138, 141, note, 142, 143. 
 Effect on riglit of action for seduction, 145. 
 
 LEGAL CALSE, 
 
 See Proximate Cause. 
 
 LEGISLATIVE PROCEEDINGS, 
 
 Reports of, how far privileged in defamation, 679. 
 
 Statements in, how far privileged in defamation, 672 note, 673 note. 
 
 LIBEL, 
 
 Action for : 
 
 In courts of law, 583, 584. 
 
 In ecclesiastical courts, 556, 557. 
 
 In star chamber, 557. 
 Actual damage in, 638-641. 
 Distinguished from oral defamation : 
 
 Accidental nature of distinction, 557. 
 
 On authority, 575, 584, 586, 604. 
 Injunction, 
 
 Whether it will be granted to prevent libel, 1210. 
 Test in, 584, 586, 589, 591. 
 
 See Defamation. 
 
 LOSS OF SERVICE, 
 
 Employing servant under contract with another, 537. 
 Enticing servant away. 
 
 In general. 533, .535, 5-39. 
 Limits of the principle, 541, 545. 
 Whether malice essential, 538. 
 
 And see Seduction and Loss of Service. 
 
 MALICE, 
 
 Use of the term, 1182, 1183. 
 
 Malice in fact, 635, 636, 637. 
 Malice in law, 635, 636, 637. 
 Presumption from intentional infliction of temporal damage, 1258, 1259, 
 
 1260 and note. 
 Individual torts turning on malice, 1183-1257. 
 
 Justitication or excuse, in actions for the malicious use of property or 
 inliuence, 1258-1441. 
 
 MALICIOUS ABUSE OF PROCESS, 
 
 DistinguLshed from 
 
 Action on a false surmise, 1200. 
 Action for malicious arrest, 1202. 
 Action for malicious prosecution, 1203. 
 Vexatious suit, 1200. 
 Prima facie cause in, elements of: 
 In general, 1202. 
 In special, as respects 
 
 A showing of termination of defendant's suit, 1201, 1202. 
 
 A showing of want of probable cause, 1202. 
 
 A showing of malice, 1202.
 
 1454 INDEX 
 
 [The figures refer to pages] 
 
 MALICIOUS APPEALS, STATUTE OF, 
 
 Its relation to action for malicious prosecution, 1183, 
 
 MALICIOUS ARREST, 
 
 Distinguished from malicious abuse of process, 1202. 
 
 MALICIOUS FALSEHOOD, 
 
 Distinguished from defamation, 1203. 
 
 Principle of, 1203. 
 
 Different forms of, 1203-1212. 
 
 MALICIOUS INSTITUTION OF CIVIL ACTION, 
 Whether a tort, 1194, 1195 note. 
 
 MALICIOUS PROSECUTION, 
 Action for, origin of, 1184. 
 Imprisonment, distinguished, 103, 105 note. 
 
 Malice in. whether distinct from want of probable cause, 1187, 1189. 
 Malicious institution of civil action, distinguished, 1194, 1195. 
 Prima facie cause in, elements of: 
 In general, 1184-1195. 
 In especial, whether essential to show : 
 Actual damage, 1185. 
 Malice in former suit, 1185, 1191. 
 Termination of prosecution, 1184. 
 Want of probable cause, 1185, 1187, 1191, 1196. 
 Justification or excuse in. 
 In general, 1196-1200. 
 
 Advice of counsel, as an excuse, 1196, 1198. 
 Plaintiff guilty of the offense. 
 In general, 1199. 
 If fact unknown to defendant at time of prosecution, 1199. 
 
 MALICIOUS USE OF PROPERTY OR INFLUENCE, 
 Prima facie cause in, 1227-1257. 
 Prima facie justification in, 1258-1441. 
 
 MISTAKE, 
 
 Accident distinguished from, 168. 
 
 As an excuse in trespass, 169, 170, 171, 175. 
 
 Exceptions to the rule, 172, 259. 
 
 MODERATE CASTIOAYIT, 
 
 Use of the plea in justification of a battery, 273. 
 Replication of immoderate castigavit, 266. 
 
 MOLLITER MANUS IMPOSUIT, 
 
 Use of the plea in showing defense of property, 207, 208. 
 
 MOTIVE, 
 
 Distinguished from intent, 1418 note. 
 Effect of a bad motive, 1247, 1252, 1256. 
 
 NECESSITY, 
 
 Actual, distinguished from supposed necessity, 29, 30 note, 185, 199. 
 As a justification in trespass, 175-190. 
 
 NEGLIGENCE, 
 
 Meaning of the term, 902. 
 
 Origin of the doctrine, 901, 902, 903. 
 
 Action for, origin of, 902, 903. 
 
 Accident as an excuse in, 1092-1095. 
 
 Actual damage as an element in. 963-908. 
 
 Assumpsit, relation of to, 902 note. 
 
 Assumption of risk, as a defence, 1114-1143. 
 
 Comparative negligence, doctrine of, 1112 note.
 
 INDEX 14:55 
 
 [The figures refer to pages] 
 
 NEGLIGENCE— Coutinued, 
 
 Conti-aetor, negligence by, whether liable to third persons: 
 
 The rale, 1043. 1047. 1067, 1072. 1075. 
 
 Exceptions, 1051, 1052, 1055, 1063, 1068, 1077, 1083. 
 Contributory negligence, see Contributory Fault. 
 Degrees of care in negligence, 933. 
 Duty to use care, as an element in negligence, 916-1043. 
 
 In relation to contractual obligation. 1043-1083. 
 
 In relation to the ownership or possession of property, 9S2 1042. 
 
 In the absence of contractual and property obligation, 1084-1091. 
 Gross negligence, 
 
 L'se of the term. 934, 935, 938, 942, 945. 
 Humanitax-ian doctrine. 
 
 Last clear chance, 1151-1181. 
 
 Visitor in danger, 1087. 
 Imputed negligence as a defense, 1144-1150. 
 Intentional injury, distinguished from negligence, 912, 915. 
 Invitee, duty of care towards an, 1026-1042. 
 Last clear chance. 
 
 Doctrine of, 1151-1181. 
 Licensee, duty of care towards a, 1014-1025. 
 Meaning of the word "negligence," 902. 
 Nuisance, distinguished from negligence, 339, 341 note. 
 Ordinary negligence, 
 
 L'se of the term, 934. 935, 937. 
 Prima faoie case in negligence, 
 
 Elements of, 916-1042. 
 Prima facie justification or excuse in negligence, 
 
 Doctrine of, 1092-1150. 
 Third person, 
 
 Contractor's duty of care towards, 1043-1083. 
 Tort, whether negligence is a, 904. 
 
 Trespass, distinguished from negligence, 905, 906, 907, 909, 911. 
 Trespasser, duty of care towards a, 982-1013. 
 Turntable theory, 995, 999, 1002, 1006, 1009. 
 Wilful injury, distinguished from negligence, 912, 915. 
 
 NUISANCE, 
 
 Abatement of. 200, 396. 398, 399. 
 
 Action for, origin of, 318. 
 
 Actual damage as an. essential in nuisance, 385, 386, 388 note, 391, 393, 
 
 395 note. 
 Annoyance, kinds and degrees of. in general, 373-382. 
 
 Lists of specific nuisances, 373 note. 
 
 Fear of ill health, 376, 380 note. 
 
 Noise, 381, 382. 
 
 Physical discomfort, without ill health, 376. 
 
 Smells, 376 and note. 
 Assise of nuisance, 396. 
 
 Contributory negligence, whether doctrine of, applies in nuisance, 347 note. 
 Defamation, distinguished from nuisance, 343. 
 Definition of. 
 
 At common law, 318, 346, 375, 402. 
 
 Statutory, 343, 375, 402. 
 Injunction, as a remedy in nuisance, 
 
 Granted when, 401, 402. 
 
 Refused when, 403. 
 Negligence distinguished from nuisance, 339, 341 note* 
 Pleading in nuisance. 
 
 Forms of declaration, 344 note. 
 
 Whether word "nuisance" is essential, 345. 
 
 Whether specific damage must appear affirmatively, 347 and note.
 
 1456 INDEX 
 
 [Ttie figures refer to pages] 
 
 NUISANCE— Continued, 
 
 Prima facie cause in nuisance: 
 In general, 344-395. 
 Plaintiff's interest, nature of, 34S-351: 
 
 Legal estate in the land, essential to plaintiff, 349, 353 note. 
 Legal estate in tlie land, not essential to plaintiff, 351, 353 note. 
 Defendant's act in nuisance, 
 
 Nature and forms of, 354-372. 
 
 Annoyance without direct act hy defendant, whether a nuisance: 
 Natural causes permitted by defendant, 354. 
 Mediate act by defendant, 356. 
 
 Act of animal owned by defendant, 200, 358, 359 note. 
 Act of defendant's tenant, 362, 365. 
 Act of defendant's worlcmen, against his will, 367. 
 Sujiporting an existing nuisance, 359, 361, 362. 
 Adventitious advantage from existing nuisance, 360. 
 Actual damage. 
 
 Essential to plaintiff's case, 385, 393, 395 note. 
 Not essential, 386, 388 note, 391. 
 Effect of, as respects statute of limitations, 388. 
 Prima facie justification in nuisance: 
 
 Admissibility of, under plea of not guilty, 406 note. 
 Effect of showing certain facts, considered, 
 That i>laintiff was careless, 406. 
 That plaintiff" came to the nuisance, 414, 415. 
 Continuance, without notice, of nuisance created by others, 359, 
 
 361, 362, 430. 
 Independent acts co-operating to cause the nuisance, 406, 408. 
 Lawful business in convenient place, 416. 
 License by legislative authority. 4.33. 435. 
 Local standard of comfort, 421, 424, 428. 
 MistalvC causing nuisance, 413. 
 Public benefit, 380 note. 
 Reasonable use of property, 406. 
 
 Reasonable care to prevent annoyance, 409, 410 note, 411 note, 412. 
 Effect of showing excess above local standard, 429. 
 Private nuisance distinguished from public: 
 In general, 318-333. 
 Private nuisance although common to many, 321, 324, 326, 328, 332 
 
 note. 
 I'ublic but not private. 322, 323 note. 
 Test of a private nuisance, 318, 328. 
 Test of a public nuisance, 326 note, 328, 
 Remedies in nuisance: 
 
 Abatement, 306, 398, 399. 
 
 Action for damages, 399. » 
 
 Assise of nuisance, 396. 
 Injunction, 401, 402. 
 Special damage: 
 
 Importance of, in nuisance, 318. 
 Instances of. 321, 324. 
 Spite fence, distinguished from nuisance, 1232. 
 Standards of comfort regarded in, 
 Elasticity of the te.st, 429. 
 Normal sensibility, 381. 
 Abnormal sensibility, 382. 
 Local standai'd, 424, 427 note, 428, 429. 
 Trespass distinguished from nuisance, 334, 335, 337. 
 
 OPEN MARKET, 
 
 Prima facie violation of right to, 1252, 125G.
 
 INDEX 1457 
 
 [The figures refer to pages] 
 
 PARTY LITIGANT, ' 
 
 Statements by, when privileged in defamation, 664 note, 666 note. 
 
 PERIL, 
 
 Acting at, 155 note, 156. See Extra-Hazardous Use. 
 
 PER QUOD SERVITIUM AMI SIT, 
 
 As a characteristic of certain torts, 533. 
 
 PICKETING, 
 
 Whether unlawful, in labor disputes, 1430. 
 
 POLICE OFFICER, 
 
 Whether he may arrest on view for violation of city ordinance, 242, 243. 
 
 PRESERVATION OF LIFE, HEALTH, PROPERTY, 
 
 As an excuse in trespass, 175, 181, 1S7, 257, 275, 276 note. 
 
 PRIVACY, Right of, 610 note. 
 
 PRIVATE PERSON, Arrest by, 247, 251, 252, 257, 261. 
 
 PRIVATE WAY, 
 
 If impassable, whether an excuse for a trespass on adjoining property, 180. 
 
 PRIVILEGED COMMUNICATIONS, 
 In defamation, 658-717. 
 
 PRIZE FIGHT, 
 
 Whether consent to excuses the other, 142. 
 
 PROTECTION OF LIFE, 
 
 As an excuse in trespass, 175, 187, 257. 
 
 PROTECTION OF PROPERTY, 
 As an excuse in trespass, 181. 
 
 PROXIMATE CAUSE, 
 
 Origin and use of the term, 800 and note, 813. 
 
 Anticipation of intervenmg act, effect of, 862, 865 note, 866, 869, 870, 874, 
 
 877. 
 Anticipation of result, effect of, 814-838. 
 Causal relation, importance of showing a, 
 
 As respects the cause of action, S(X), 801-810 note. 
 As respects the measure of damages, 800. 
 "Cause," definition of, 800. 
 Co-operative agencies and legal cause, 883. 
 In general 883, 884, 893. 
 
 Deviation by defendant, co-operating with act of God, 886, 889. 
 Negligence by defendant, co-operating with act of God, 888, 894. 
 Intervening agency as a test of legal cause, 
 Forms of 
 
 Act of animal intervening, 853. 
 
 Natural force intervening, 850. 
 
 Act of plaintiff intervening, 841, 842, 844. 
 
 Act of third person intervening, 855, 857, 859, 861, 862, 865 note, 
 
 866, 870, 872, 874, 877. 
 Illegal act intervening, 862, 866, 870, 872, 874. 
 Reasonable anticipation of the intervening act, effect if 
 
 Intervening act was reasonably to have been anticipated, 862, 
 
 865 note, 866, 874. 
 Intervening act was not reasonably to have been anticipated, 869, 
 870, 874, 877. 
 Probability of result ag a test of legal cause, 814, 838. 
 
 Plaintiff's damage not probable, 814, 815, and note, 817, 822, 825, 828, 
 
 829, 832, 835. 
 Plaintia''s damage probable, 814. 
 PUPIL, 
 
 Discipline of, when justifiable, 266, 267, 2G9. 
 
 Belief of guilty, distinguished from reasonable cause to believe, 271. 
 
 Hepb. Torts— 92
 
 1J:58 INDEX 
 
 [The figures refer to pages] 
 
 KEASONABLE CAUSE TO BELIEVE, 
 
 As au element in justification. 109, 271. 
 Bona fide belief distingnislied from, 271. 
 
 RECAPTION OF PERSONAL PROPERTY, 
 As a justification in trespass. 196, 202, 204. 
 Limits of tlie defense, 203, 204. 
 
 REGNAL YEARS, 
 
 Name of sovereign with date of commencement of reign, 
 
 ^'illiiiui I October 14, 10B6. 
 
 William II September 20. 1087. 
 
 Henry 1 Augu.st 5, 1100. 
 
 Stephen December 26, 1135. 
 
 Henry II December 19, 1154. 
 
 Richard I September 23, 1189. 
 
 Jolm May 27, 1199. 
 
 Henry III October 28, 1216. ^ ^ 
 
 Edward I November 20, 1272. 
 
 Edward II July 8, 1307. 
 
 Edward III January 25. 1326. -«C/ 
 
 Richard II June 22, 1377. 
 
 Henry 1\ September 30, 1399. 
 
 Henry V March 21, 1413. 
 
 Henry VI September 1. 1422. 
 
 Edward IV :March 4, 1461. 
 
 Edward ^' April 9, 1483. 
 
 Richard III June 26, 1483. 
 
 Henry \II August 22, 1485. 
 
 Henry VIII April 22, 1509. 
 
 Edward VI January 28, 1547. 
 
 Mary July 6, 1553. 
 
 Elizabeth November 17. 1558. 
 
 James I March 24, 1603. 
 
 Charles I March 27, 1625. 
 
 The Commonwealth Jauuary 30, 1649. 
 
 Charles II January 30, 1649. 
 
 James II February 6, 1685. 
 
 William and Mary February 13, 1689. 
 
 Anne March 8, 1702. 
 
 George I August 1, 1714. 
 
 George II Juno 11, 1727. 
 
 George III October 25, 1700. (, v 
 
 George I\ January 29, 1820. 
 
 William IV June 26, 1830. 
 
 Victoria June 20, 1837. 4? *i 
 
 Edward VII January 22. 1901. 
 
 George V May 6, 1910. 
 
 REPLEVIN,- 
 
 Its relation to detinue, 295. 
 
 What title sufficient for plaintiff. 304. 
 
 Limits of the action, 305, 306, 309. 
 
 REPORTS, 
 
 Of judicial, legislative, and public proceedings, 
 Whether privileged if defamatory, 678-692. 
 
 RES IPSA LOQUITUR, 
 
 Use of the term, 952 note. 
 
 SAFETY OF I'LAINTIFF, 
 
 As an excuse in trespass, 275-279. 
 Limits of this defense, 276 note.
 
 INDEX 1451) 
 
 [The figures refer to pages] 
 
 SCHOOLMASTER, 
 
 Disciiiline by, us an excuse in battery, 2G7, 269. 
 
 SEDUCTION, 
 
 Woman's right of action for her own seduction, 145, 534. 
 
 SEDUCTION AND LOSS OF SERVICE, 
 
 Nature and limits of tlie cause, 533, 541, 542, 543, 545, 546. 
 
 Proper form of action for, 533 note. 
 
 Of child, nature of parent's right, 534, 539, 542, 543. 
 
 Of niece, wliether uncle may sue. 545. 
 
 Of servant, nature of master's right, 533, 534, 535, 537. 
 
 Of sister, whether brother may sue, 545. 
 
 SELF DEFENSE, 
 
 As a justification in trespass, 172, 190, 191 and note, 192, 193. 
 
 SELF HELP, 
 
 Principle of, in torts, 172, 182, 190, 191 and note. 192, 193, 202, 204, 205 
 note, 208, 216, 221, 223 note, 224, 226, 228, 396, 398, 399. 
 
 SLANDER, 
 
 Action for, when permitted in courts of law, 555, 559, 583. 
 
 Crime, words imputing, as slander, 559-562. 
 
 Disease, words imputing, as slander, 564-56.5. 
 
 Disparagement in trade, profession, or office, as slander, 566-573. 
 
 Distinguished from libel, 575. 
 
 Ecclesia.stical courts, jurisdiction in slander, 556, 557, 558. 
 
 Kinds of, recognized in courts of law, 559-582. 
 
 Slander per se, 559-573. 
 
 Slander through special damage, 574-582. 
 Special damage, slander through: 
 
 In general, 574-582. 
 
 What amounts to, 575. 577. 581. 
 
 What not sufficient, 576, 577, 581, note, 582. 
 See Defamation. 
 
 SLANDER OF TITLE, 
 
 Nature of the tort, 1205, 1207. 
 
 SON ASSAULT DEMESNE, 
 
 Use of the plea in justification for a trespass, 191 note. 
 
 SPITE FENCE, 
 
 Whether a tort, 1229. 
 Distinguished from a nuisance, 1232, 
 
 STATUTES, TABLE OF, 
 
 3 Edw. I. (Statute of Westminster I), 535. 
 
 6 Edw. I. (Statute of Gloucester), c. 9, 190. 
 
 13 Edw. I. (Statute of Westminster II), c. 12, 1183. 
 
 13 Edw. I. (Statute of Westminster II), c. 24, 294. 
 
 23 Edw. III. (Statute of Labourers), 534. 
 
 5 Rich. II. c. 7, 207. 223, 230. 
 
 3 Hen. VII. c. 1, 249. 
 
 43 Eliz. c. 6, 27. 
 
 1 Jac. I. c. 12, 560. 
 
 22-23 Car. II. c, 9, 47, 55. 
 
 5 «& 6 W. & M. c. 12, 26. 
 
 6 Anne, c. 31, 765. 
 
 6 Edw. VII. c. 47, 1420, 1421. 
 
 STRIKES, 
 
 Principle of the justifiable strike. 1.3.57, 1362, 1365, 1377, 1386. 
 Principle of the unjustifiable strike, 1274, 1367, 1368, 1398, 1406. 
 
 SUICIDE, 
 
 As a proximate result, 835, 838.
 
 1460 INDEX 
 
 (The figures refer to pages] 
 
 "TORT," 
 
 Meaning of tlie word, 1. 
 Definitions of, 16. 
 Difficulty of defiiiing, 3. 
 
 TRESPASS, 
 
 Act of, considered. 
 
 As an intentional act of force, 29, 30, 31. 
 
 By an animal in owner's absence, 33, 35. 
 
 Til rough duress, 29. 
 
 Through operation of a natural force, 31. 
 Actual damage. 
 
 Whether essential, 28, 29, 115 note. 
 
 Unintentional, whether a trespass, 36, 38, 43. 
 Characteristics of, 28-16. 
 
 "Contra pacem," importance of, in trespass, 26. 
 Distinguished from other torts, 
 
 Nuisance, 334. 335, 337. 
 
 Trover and conversion. 437, 438, 440, 496. 
 Forms of trespass, 47-121, 280-293. 
 Jurisdictional features in trespass, 26-27. 
 Justification of trespass, 122-279. 
 Scope of the word as a term of law, 23. 
 "Vi et annis," importance of, in trespass, 23, 25, 27. 
 
 TRESPASS AB INITIO, 
 
 Elements and forms of, 280, 282, 284, 287, 288. 
 Enti-y by consent, effect of, 282. 
 Non-ieasauce, effect of, 280, 288, 293. 
 
 TRESPASSER, 
 
 Duty of care towards a, 982-1013. 
 
 TRESPASS TO PERSONAL PROPERTY, 
 
 Distinguished from detention of personal property, 117. 
 Forms of, 
 
 Through asportation, 202. 
 Through destmction, 198, 199, 218. 
 Levy of a writ of fi. fa. as, 43, 45. 
 Prima facie cause, elements of: 
 In general, 45, 114-121. 
 In especial, 
 
 If no actual damage, 114. 
 If no actual seizure, 116. 
 If through mistake, 118. 
 Prima facie justification: 
 In general, 197-206. 
 Principle of the defense, 196, 198, 199, 200 note, 202, 203 note. 
 
 Recaption, as a form of, 202, 204, 206. 
 Servant, injury to. 
 
 As cause in tx'espass to master, 120. 
 Wife, injury to, 
 
 As a cause in trespass to husband, 121. 
 
 TRESPASS TO REAL PROPERTY, 
 Distinguished from ejectment, 106. 
 Prima facie cause, elements of: 
 
 In general, 28, 29, 30, 31, 33, 36, 105-113. 
 In special, 
 
 Accidental damage, 36. 
 
 Actual damage, whether essential, 28, 109, 110. 
 
 Actual damage through concussion, whether sufficient, .38, 43, note. 
 
 Character of ivossession ncHiJessary for plaintiff, 1(K>, 107, 108. 
 
 Defeudajit's act, 29, 30, 31, 33, 35, 38, 43 note, 105.
 
 INDEX 14G1 
 
 [The figures refer to pages] 
 
 TRESPASS TO REAL PROPERTY— Continued, 
 Primu facie cause, elements of — Continued: 
 In special — Continued, 
 
 Property affected, whether a trespass if 
 Entry on part only of tract, 105. 
 Entry on subjacent space, 113. 
 Entry on superjacent space, 112. 
 Justification in trespass to real property: 
 
 Forms of considered, 28, 29, 159, 1(j9, 170, 178, ISO, 181, 183, 187. 
 
 TRESPASS, WRIT OF, 
 
 Its origin and purpose, 23, 25, 26, 294, 295. 
 Its relation to the king's peace, 25. 
 Jurisdictional features in, 26. 
 
 TROVER, 
 
 See Trover and Conversion. 
 
 TROVER AND CONVERSION, 
 Action for: 
 
 Origin of, 316, 318. 
 
 When concurrent with trespass, 480 note, 185. 
 Animals, as subject matter of conversion, 447. 
 Building, as subject matter of conversion, 446. 
 Demand and refusal: 
 
 Conversion through, 469-474, 470 note. 
 Conversion without, 475-493. 
 Detinue, distinguished fi-om trover, 443 and note. 
 Fixtures, whether subject matter of conversion, 445, 447. 
 Judgment for plaintiff, effect of as to property in conversion, 451, 452 
 
 note, 454. 
 Land, whether subject matter of conversion, 445, 446 note. 
 Money, whether subject matter of conversion, 448, 449. 
 Nature of the tort of conversion, 437-455. 
 Negligence distinguished from conversion, 441, 442 note. 
 Possession, right of, in conversion, 456 note. 
 Prima facie cause in conversion, 455-493. 
 Declaration in conversion, 437, 465, 467. 
 Demand, 469-474. 
 Plaintiff's right: 
 
 In general, 456-464. 
 Finder, as plaintiff, 456, 457. 
 Officer in possession, as plaintiff, 456, 459. 
 Ownership as the test, 461, 464. 
 Defendant's act: 
 
 Importance of showing ac*t of conversion, 405-466. 
 Kature in general, 529. 
 
 In case of infant, 467. 
 Different forms of, considered: 
 Alteration of quality, 478. 
 Asportation, 475. 
 
 Assertion of ownership in words only, 476. 
 Assertion of ownership through sale, 482. 
 By bailee, 488, 490. 
 Destniction of chattel, 479. 
 Fraudulent acquisition, 483. 
 Prevention of removal, ,^)06. 
 
 Purchase in good faith from one without right, 477. 
 Refusal of plaintiff's demand, 469^74. 
 Sale bona lide of goods bought of one without title, 497. 
 Taking in excess of right, 496. 
 User, 484, 487, 488.
 
 1462 INDEX 
 
 [The figures refer to pages] 
 
 TROVER AND CONVERSION— Continued, 
 Prima facie justification or excuse: 
 Affirmative defenses, 
 
 Wlietlier admissible under plea of not guilty, 404. 
 
 Whether admissible under answer of denial, 499. 
 
 Vagueness in the doctrine, 495, 498, 499. 
 Excuses considered, 
 
 Asportation by defendant as conduit pipe, 516. 518. 
 
 Asportation to reach defendant's property, 512. 513. 
 
 Asportation to return chattel to owner, 513, 514. 
 
 Conditional-refusal to deliver, 501, 502, 504. * 
 
 Delivery by mistake, 526. 
 
 Destruction to save life, 511. 
 
 Impossibility of delivery, 500. 
 
 Loss of the chattel, 495. 
 
 Mistake resulting in delivery, 526, 527. 
 
 Mortgagee's dominion in good faith without removal of goods, 525. 
 
 Preventing plaintiff from moving his property, 506, 509. 
 
 Purchase in good faith. 524, 525. 
 
 Refusal when return impossible, 500. 
 
 Refusal when defendant's possession due to plaintiff's unlawful 
 act, 504. 
 
 Refusal qualified, 501, 502, 504. 
 
 Return of chattel after act of conversion, 529. 
 
 Sale bona fide of chattel bought of one without title, 497. 
 
 Salvage, 495. 
 
 Tender and refusal after demand and refusal, 500. 
 
 User by agent acting bona fide for principal, 523. 
 
 User by infant, 521. 
 
 User by mistake, 520. 
 
 User under necessity to save property, 519. 
 Replevin, distinguished from conversion, 443. 
 Subject matter of conversion, considered: 
 In general, 445. 
 Animals, 447. 
 Buildings, 446. 
 Fixtures, 445, 447. 
 Fragments of building, 446 note. 
 Money, 448, 449, 450 note. 
 Trespass, distinguished from conversion, 437, 438, 440. 
 
 TURNTABLE DOCTRINE, 993, 995, 999, 1001 note, 1002, 1009. 
 
 VI ET ARMIS, fj 
 
 As an essential in trespass, 23, 25, 27. . 
 
 
 L 
 
 f 
 
 WATER IN ARTIFICIAL RESERVOIR, 
 
 Liability for damage from escape of, 776-791, 795, 797. 
 
 WESTMINSTER THE SECOND, [ 
 
 Statute of, chapter 24. 
 
 Tort actions before its enactment, 294. 
 
 Its terms, 316 note. 
 
 Its effect in giving rise to actions on the case, 316, 317 note. 
 
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