THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW ELEMENTS OF THE LAW OF TORTS. To accompany this volume. CASES OX THE LAW OF TORTS. By Melville M. BiGELOW, Ph.D. ELEMENTS OF THE LAW OF TORTS FOR THE USE OF STUDENTS BY MELVILLE M. BIGELOW, Ph.D., LL.D. SIXTH EDITION BOSTON LITTLE, BROWN, AND COMPANY 1896 Entered according to Act of Congress, in the year 1878, by MELVILLE M. BIGELOW, In tlie office of the Librarian of Congress, at Washington. Entered according to Act of Congress, in the year 1882, by MELVILLE M. BIGELOW, In the office of the Librarian of Congress, at Washington. Copyright, 1886, By Melville M. Bigelow. Copyright, 1891, By Melville M, Bigelow. Copyright, 1804, By Melville M. Bigelow. Copyright, 1896, By Melville M. Bigelow. University Press: John Wilson and Son, Cambridge. p PREFxVCE TO THE SIXTH EDITION. This work now begins, for the first time, with a 'General Doctrine,' or general theory, of the law of torts. What follows — all that has heretofore ap- peared — is an unfolding of the Doctrine as seen in the 'Specific Torts' of the law; the specific torts being classified according to what are taken to be the primary forces, or ' Elements,' of liability, to wit, (1) fraud or malice as means or motive to con- duct, (2) intention considered without regard to means or motive, (3) negligence.^ It must not be supposed that the present work is intended to suggest any method of study or of teaching ; it deals only with rules of law, as the aim of theory in the general scheme of relations intended to bind men together in the State. A word will be proper concerning the classification which separates tlie law of torts from other branches of the law. In this book the subject of torts is con- ^ In other words, the question is, what and how liability arises, (1) from intention plus fraud or malice, (2) from intention alone,. (3) without intention. GTOoee VI PREFACE TO THE SIXTH EDITION. sidered from the point of view of breach of duty. But as there are duties the breach of which does not create a tort, it becomes necessary to adopt a classifi- cation which shall make the discrimination. Now there are two ways (and perhaps more than two) of looking at the subject. You may ask whether the person who has trans- gressed did an act, as by making a misrepresentation, by which tlie other party was misled ; if he did, you may accordingly say that the duty is ' recusable,' that is, in effect, actually or presumptively consensual. You will then have one class of duties, of which con- tract is the type and the chief. If no such act was done, the duty will be ' irrecusable,' that is, para- mount. This will be the domain of tort. Such is tlie classification of Mr. Harriman in his masterly work on Contracts. Or, instead of looking forward to see whether an act done by one person has misled another, you may stop short and ask the question whether the very doing of an act likely to mislead is not a breach of duty to one misled by it ; if it is, the duty will be paramount, for it is assumed that there is notliing of consent at this stage of the case. But the ques- tion may at the outset be broadened and made gen- eral, thus : whether the doing or omitting an act, in the like case of want of consent, is not a breach of duty ; if it is, the duty is paramount. The result is, the duties with which the law of torts is concerned. Such is the classification adopted in this book. PREFACE TO THE SIXTH EDITION. vil The practical difference between the two classifi- cations is that, by the first-named, the subject of deceit is thrown out of the category of torts — from duties paramount to duties consensual ; for in deceit there is an act — misrepresentation — by the wrong- doer which has misled the other party. Other sub- jects, perhaps, would have to follow deceit. It is suggested that the duties of innkeepers and carriers to the public would be of the number ; but that may not be so. There must be a duty before you can classify duties, and there is no duty to become or not to become an innkeeper or a carrier. Becom- ing innkeeper or carrier creates duty with regard to future conduct ; it is not in itself a matter of con- duct, as is misrepresentation ; hence it is not doing an act within the meaning of the classification. The classification of Mr. Harriman shows the spirit and the hand of the reformer; it shows a de- sire to turn the law, wherever practicable, from haphazard and devious lines into a straight-forward course. In other words, it has logic in view as an object to be ajjproached as nearly as possible. Not- withstanding the dangers of it, I am not willing to allow it to appear that I am not in sympathy with such an aim, however closely my own work may follow tlie beaten pathways. Torts, it may be added, are mostly common law wrongs ; and all are consummated wrongs, redressi- ble (in damages) only in courts of the common law. Wrongs not consummated but only apprehended, viii PREFACE TO THE SIXTH EDITION. wrongs cognizable only in admiralty, and wrongs, if there be such, which are cognizable only in equity, are not within the scope of this book. The name tort can be applied to such wrongs only with a mod- ifying term ; some of them deserve the name ' quasi- tort.' M. M. B. Boston, August 2, 1896. NOTE. The citation * Cases,' or ' Cases on Torts' means Bigelow's Cases on Torts, Students' Series, Boston, 1895; the citation ' L. C. Torts,' Bigelow's Leading Cases on Torts, Boston, 1875. CONTENTS. PAGE Cases Cited xv GENERAL DOCTRINE. § 1. Of Right and Privilege: Domain of Tort .... 3 §2. Definition of Tort: Analysis of Definition . ... 9 § 3. Of Piivilege 20 § 4. Of Persons : Persons in Executive, Legislative, or Judicial Position ; Persons under Disability ; Cor- porations; Master and Servant; Principal and Agent; Independent Contractors 23 § 5. Of Legal Cause: Contributory Fault 38 § 6. Of Termination of Liability 40 § 7. Of Death of Plaintiff or Defendant 44 SPECIFIC TORTS. PART I. BREACH OF DUTY TO REFRAIN FROM FRAUD OR MALICE. CHAPTER I. Deceit 49 § 1. Introductory 49 § 2. Of the Representation 50 § 3. Of Defendant's Knowledge of Falsity 63 § 4. Of Plaintiff's Ignorance of Falsity 66 X CONTENTS. PAGE § 5. Of the Intention that the Representation should be acted upon 74 § 6. Of Acting upon the Representation 76 § 7. Of Quasi-Deceit 78 CHAPTER II. INIalicious Prosecution 82 § 1. Introductory 82 § 2. Of the Termination of the Prosecution .... 83 § 3. Of the Want of Probable Cause 89 § 4. Of .Malice 97 § 5. Of Damage 99 § 6. Of Kindred Wrongs 100 CHAPTER III, Conspiracy 103 § 1. Introductory 103 § 2. Of Malice and the Combination 105 § 3. Of Damage 107 CHAPTER IV. Malicious Intkrfkrknce with Contract .... 108 § 1. Introductory 108 § 2. Of Malice 108 § 3. Of Damage 110 § 4. Of the Distinction between Contract and Property 111 CHAPTER V. Slander and Libel 112 § 1. Introductory 112 § 2. Of the Interpretation of Language 113 § 3. Of the Publication of Defamation and Special Damage 115 § 4. Of tlie Imputation of having Committed a Crime . 118 § 5. Of the Imputation of having a Contagious or In- fectious Disease of a Disgraceful Kind . . . 120 CONTENTS. xl PAGE § 6. Of an Imputation affecting the Plaintiff in his Office, Business, or Occupation 121 § 7. Of an Imputation tending to Disinherit the Phiiu- tiff 124 § 8. Of an Imputation conveyed by Writing, Printing, or Figure; tliat is, of Libel 121 § 9. Of the Truth of the Charge 126 § 10. Of Malice and Privileged Communications . . . 127 § 11. Of Criticism U4 PART II. BREACH OF ABSOLUTE DUTY. CHAPTER VI. Assault and Battery 149 § 1. Introductory HO § 2. Of Assaults (without Contact) 14D § 3. Of Batteries 152 § 4. Of Justifiable Assault ; Self-defence ; ' Son Assault Demesne ' 157 § 5. Of Violence to or towards One's Servants . . . ICO CHAPTER VII. False iMrRisoNMExx 165 § 1. Introductory 165 §2. Of the Nature of the Restraint 165 §3. Of Arrests with Warrant 168 § 4. Of Arrests without Warrant 184 CHAPTER VIII. Enticemext and Seduction 191 § 1. Introductory 191 § 2. Of Parent and Child . 192 § 3. Of Guardian and Ward . , 198 § 4. Of Husband and Wife 199 xii CONTENTS. CHAPTER IX. PAGE Trespasses upon Propehty 206 § 1. Introductory 206 § 2. Of Possession 206 § 3. Of What constitutes a Trespass to Property . . 219 CHAPTER X. Conversion 231 § 1. Introductory 231 § 2. Of Possession 232 § 3. Of What constitutes Conversion 236 CHAPTER XL Infringement of Patents, Trade-Marks, and Copy- rights 2.51 § 1. Introductory 251 § 2. Of Patents 2.51 § 3. Of Trade-Marks 261 § 4. Of Copyrights 262 CHAPTER XII. Violation of Rights of Support 270 § 1. Introductory 270 § 2. Of Lateral Support 270 § 3. Of Subjacent Support 278 CHAPTER XIII. Violation of Water Rights 281 § 1. Introductory 281 § 2. Of Usufruct and Reasonable Use of Streams . . 281 § 3. Of Sub-surface Water 286 CHAPTER XIV. Nuisance 287 § 1. Introductory o . . . . 287 § 2. Of What constitutes a Nuisance 288 CONTENTS. XI 11 CHAPTER XV. PAGE Damage by Animals oOO § 1. Introductory 30u § 2. Of Notice of Propensity to do Damage .... 300 § 3. Of Escape of Animals 302 CHAPTER XVI. Escape of Dangerous Things 305 § 1. Introductory 305 § 2. Of the Nature of the Protection Required . . • 305 PART III. BREACH OF DUTY TO REFRAIN FROM NECxLIGEXCE. CHAPTER XVir. Negligence 313 § 1. Introductory 313 § 2. Of the Legal Conception of Negligence in General 31-1 § 3. Of Innkeeper and Guest 320 § 4. Of Bailor and Bailee 321 § 5. Of Professional Services 328 § 6. Of Telegraph Companies 33:3 § 7. Of the Liability of Agents, Servants, Trustees, and the Like 335 § 8. Of Public Bodies and Public Officers 342 § 9. Of the Use of Premises: Duty to Plaintiff . . . 345 § 10. Of Master and Servant: Assuming the Risk . . 357 §11. Of Contributory Fault 367 § 12. Of Comparative Negligence 375 § 13. Of Intervening Forces 375 INDEX 389 CASES CITED. A. PAGE Abrahams v. Kidney . . 195, 196 Abratli v. Nurtheastern Ry. Co 29, 97,"99, 127 Absor V French 225 90 22 319 247 Adams v. Lisber . . V. Waggoner . . Aerkfetz v. Humphreys Agnew V. Johnson . . Albany Inst, for Savings v. dick Albert v. Strange . Aldred v. Constable Aldrioh v. Wright . Alexander v. Southey Allbut V. General Coun Medical Education Allen V. Crofoot . . V. Wright . . Allerton v. Allerton Alton V, Midland Ry. Alvey V. Reed . . . Ames V. Union R. Co. Amick V. O'Hara . . Amory v. Flyn . . . Andre v. Johnson . . Andres v, Koppenheaver Andrews v. Jlarris . . V. Mockford . , Angle V. Chicago Ry. . Arkwright v. Newbold Annistead v. Wilde . Armory v. Delamirie . Armstrong v. Lancashire Co Arthur v. Gaj'le . . Arundell v. White . cil Bur- . 70,71 . . 26.J . . 238 . . 230 249, 250 of , . 139 227, 228 190 35 163, 378, 379 27 379 230 229 157 118, 119 176 78 109 62, 63 320 234 Ry. 381, 382 247 85 Ash V. Dawnay . . . Ashby V. White . . Aston V. Blagrave . . Atkinson v. Matto>-iin . Austin V. Dowliiig . . V. Great Wt-.^tern Ry Ayer v. Bartlett . . . Ayre v. Craveu . . . B. Co. 122. C Bacon v. Sheppard . V. Towne . . Baglehole v. Walters Bailey v. Kalamazoo Pub V. Rome R. Co. V. Wright . . Baird v. Williamson Baker v. Baker . . V. Bolton . . V- Brown . . V. Stone . . . Balston v. Beiisted . Baltimore R. Co. r'. B^ BiHiiford i\ Turnley Barbee v. Armstead Barker v. Braham . Barnes r. Allen . . V. McCrate . . V. Ward . . . Barnett v. Guildford Barnstable r. Thacher Barratt v. Price . . Bartley v. Richtmyer Barton v. Burton Barwick v. English Joint Stock Bank 289, PAGE 226 343 123 172 180 379 213 , 123 218 , 93 73 145 357 222 307 199 164 284 27 286 300 290 204 182 202 130 348 217 209 171 193 '247 31, 35 XVI CASES CITED. Bassett v. Salisburj' Manuf. Co. Batchelor v. Fortescue . . Bate Kefrif^erator Co. v. Gillett Batson v. Donovan Batterson v. Chicago Ry. Co Baum V, Clause . Baxendale v. McMurray Baxter V. Taylor Bayley v. Manchester Baynes v. Brewster . Beach v. Hancock . Beal V. Robeson . . Beall V. South Dev Co Beard v. United States Beattie 'O. Ebury Beck V. Stitzel . . Beckwith v. Fliilbj' Beedle v. Bennett . Beehler v. Daniels . Bell V. Hansley . . Bellann' v. Burch . Bellefuntaine R. Co. v. Belo v. Wren . . Bennet v. Bullock . Bennett v. Bennett . V. Smith . . . Benjamin v. Storr . Berkshire Woollen Co tor Bernina, The . . Bernstein v. Bernstein Beseljii V. Matthews Bibley i'. Carter Bicknell v. Dorion . Biddall v. Maitlaiid Bifjaouette v. Paulet Billings V. Fairbanks r. Wing . . . Bird V. Holhrook . J'. Jones . . . Birdsev r. Butterfield Bishop r. Small 58 Bixbv V. Brundige 100 Blackhnm v. Pugh 141 lilacknian v. .Toiinson .... 63 Blake r. Barnard 150 V. Lanigon .379 Blanchard v. Beers . . 254, 255 PAGE 286 346 258 , . 325 , . 363 120, 127 , . 293 , . 212 R. Co. 31, 33 189, 190 ... 151 ... 97 on Ry. 323, 326, 341 . 158 . 59 . 119 . 187 . 259 . 20 . 22 . 123 Snyder. 383 132, 136 . . 216 . . 199 200, 201 . . 296 Proc- . . 320 381, 382, 384 , . 205 , 84,85 . . 273 . 83 , . 222 117, 199 . . 140 , . 118 346, 370 165, 167 . 57 PAOE Bliss V. Hall ... c ... 290 Bloodworth v. Gray .... 121 Bloxam v. Hubbard .... 249 Blyth V. Birmingham Water- works Co 293 V. Topham , 349 Bolch V. Smith 351 Bonomi v. Backhouse . 270, 271 Boogher v. Life Association . . 29 Booth V. Ratte 295 Bostick V. Rutherford .... 93 Boston Glass Manuf'y i;. Binney 111 Bosworth V. Swansea .... 371 Bovill V. Pimm 257 Bowditch V. Balcliin .... 188 Bowen v. Hall .... 108, 110 Bowker v. Delong 63 V. Evans 45 Boyd V. Cross 89, 97 Boyle V. Brandon 195 Boyson v. Thorn 109 Bradbury v. Hotten . . . . 264 Bradford v. Pickles .... 12 Bradlaugh v. Newdegate . . 102 Bradley v. Fisher . . . . 344 t). Fuller 77 Bradt v. Towsley 116 Brady v. Finn 71 V. Whitney 245 Bramwell v. Halcnmb . . 264, 265 Brannock v. Bouldin .... 106 Brass r. iNIaitland ... 326 377 Bravebov r. Cockfii^id . . . 100 Breese v. U. S. Tel. Co. . 333, 334 Breiman v. Paasch . . . 117, 199 Brembei' r. Jones . . . 368, 370 Brewer r. Boston Theatre . . 341 Bridge v. Grand June. Ry. Co. 372 Bridges v. Hawkesworth . . . 236 Briggs V. Taylor . . . 323, 325 Brinsmead r. Harrison . . . 245 British Banking Co. v. Cham- wood Ry. Co 31, 32, 34 Broad v. Ham .... 82, 90, 93 Broadbent v. Imperial Gas Co. 289 r. Ramsbotham .... 285 Brofkway v. Crawford . . . 187 Bronilev r. Coxwt'll .... 245 V. Wallace .... 200, 204 CASES CITED. XVU PAGE Brooker J?. Coffin 118 Brooks V. Curtis 277 Broughton V. Jackson . ... 8!) Brown v. Accrington Cotton Co. 37 V. Carpenter 2-30 V. Collins 292 V. Eastern Ry. Co. . . . 287 V. French 340 V. Hanson 114 V. Hoburger 229 V. Kendall .... 155, 150 V. Lakenian 68 V. Leach 08 V. McGregor 381 V. Myers 114 V. Nickerson 119 V. Watrouse 298 Browning v. Hanford .... 344 Brownlie v. Campbell .... 50 Briiff V. Mali 78 Brushaber v. Stegemann . . . 160 Bryant v. Amer. Tel. Co. . . 334 Buck V. Aiken 214 Buckley v. Gross 210 Buhner v. Buhner 163 Burke v. Broadway R. Co. . . 383 Barnard v. Haggis .... 27 Bunoughs V. Bayne .... 249 Burrow Lithographic Co. v. Sa- rony 262 Burrows v. March Gas Co. . . 380 Burt V, Place . 91, 93 Bushel V. Miller 237 Busst V. Gibbons 90 Butcher v. Butcher 209 Butler V. Manchester Ry. Co. . 222 Butterfield v. Forrester . . . 372 B3'am v. Farr 257 Byne v. Moore 87, 99 Bywater v. Richardson ... 73 Bywell Castle, The .... 373 Caffrey v. Darby 339 Caird v. Sime 263 Calder v. Halket 178 Caledonian Ry. Co. v. Sprott 272, 280 PAOE Calkins f. Sumner . ." . . . 130 Callahan v. Bean 382 Calloway v. Bleaden .... 253 Camp V. Martin . . . « . . 122 Campbell v. Spottiswoode . . 127, 144, 145 Cann i'. Wilson .... 355, 377 Capital Bank w. Henty . . .113 Cardival v. Smith . . . 83, 86, 87 Carleton v. Franconia Iron Co. 353, 354 Carpenter v. Dresser . . . .241 V. Hale .... 238, 241, 244 V. Tarrant 120 Carr v. Hood 144 Carratt v. Morley . . 177, 178, 180 Carrol v. Statten Island R. Co. 371 Carslake v. Mapledoram . . . 121 Carson v. Edgeworth ... 97, 98 Carstairs v. Taylor 308 Carter v. Baker 256 V. Kingman . . , 233, 238 V. Towne 43, 376 Case V. Boughton 63 V. DeGose .... 217, 218 V. Shepherd 207 Cashill V. Wriglit . . . 320, 321 Cass V. Boston & Lowell R. Co 323, 324 Castrique v. Behrens .... 84 Caswell V. Worth 372 Cavey v. Ledbitter 289 Cecil V. Spurgur 53 Central Ry. Co. v. Kisch . 61, 62, 69 Chambers v. Caulfield .... 204 V. Donaldson 208 V. Robinson 98 Chambersburg Sav. Assoc. Ap- peal 339 Chapman v. New Haven R. Co. 381 V. Rothwell .... 352, 353 Charitable Corp. v. Sutton . . 333 Charless v. Rankin .... 273 Charlton's Appeal 339 Charman v. Southeastern Ry. Co " . 349 Chase v. Silverstone .... 280 Chasemorc v. Richards . 286, 305 Chatfield v. Wilson .... 283 xvm CASES CITED, PAGE Chatham v. Moffatt .... 64 Chatterton v. Secretary of State 133 Chauntler v. Robinson . . . 276 Cheesman v. Exall 234 Chenowith r. Dickinson . . . 325 Chicago V. Robbins .... 38 Chicago Fruit House Co. v. Busch 255 Chicago Ry. Co. v. Ross . 3G0, 361 Chicago & Q. R. Co. v. Van Patten 375 Childers v. Wooler 63 Churchill v. Hulbert .... 222 V. Siggers 101 Cibber v. Sloper 204 Cincinnati Gazette Co. v. Tim- berlake 136 Ciriack v. Merchants' Woollen Co 362, 305, 372 Claflin V. Coramonwealtli Ins. Co 75 Claridge v. So. Staffordshire Tramway Co 214, 314 Clark V. Chambers . . . 375, 382 V. Cleveland 172 V. Downing 153 V. Molyneux 142 V. Rideout 233 Clarke v. Dickson .... 70, 73 V. Midland Ry. Co. . . . 350 Clement v. Maddick .... 263 Clendon v. Dinneford . . 242, 243 Cleveland R. Co. v. Terry . .381 Cliff V. Midland Ry. Co. . 350, 351 Clinton v. Myers 284 Closson V. Staples 83 Clothier v. Webster . . 342, 343 Clough V. Northwestern Rv. Co " . 238 Clowes V. Staffordshire Water- works Co 292 Cluff V. Mutual Ben. Life Ins. Co 158 Coaks V. Boswell 53 Code V. Cassiday 63 Codrington v. Lloyd .... 181 Coffin V. Coffin 132 (Jogel V. Kinselpy 53 Coggill V. Hartford Ry. Co. . . 240 PAGE Coggs V. Bernard 322 Cohen v. Frost 320 Cole V. Curtis 95, 96 V. Maundy 224 V. Stewart 212 V. Turner 153 Coleman v. New York & N. H. R. Co 381 Collen V. Wright . . ,52, 64, 65 Collett V. Foster 181 Collins V. Denison 75 v. Jackson 63 Collis V. Selden .... 356, 378 Columbus Gas Co. v. Freeland . 294 Conierford v. West End Ry. Co 29 Commonwealth v. Blanding . .132 V. Carey 188, 190 V. Collberg 22 V. McLaughlin 188 V. Randall 157 V. Rourke 210 V. Tuck 87 Connolly v. Boston 371 Conrad v. Lane 27 Consolidated Co. v. Curtis . . 237 Consolidated Coal Co. v. Ha- enni .... 358-360, 362-364 Cook V. Hartle 245 Coolidge V. Brigham .... 54 Cooper V. Booth 101 V. Greeley 125 V. Harding 180 V. Landon 52 V. Lovering 58 V. McJunkin 157 V. Utterback 95 V. Willomatt 242 V. Woolley 295 Coote v. Laughworth .... 168 Corbett v. Brown 62 Corby v. Hill 350 Core}' I'. Bath 371 Corning v. Burden 252 Cornish v. Abington .... 75 V. Stubbs 223 Cotterell v. Jones 107 Coulter?'. American Express Co. 373 Coventry's Case 65 CASES CITED. XIX Coverdale v. Charlton Coward v. Baddeley Cowley V. Pulsifer . Cox V. Burbridge . I?. Cook . . . Cragie v. Iladley . Craig V. Ilassell . . Crawsliay v. Thompson Creig V. Ward . . Crepps V. Uurden . Crone i'. Angell . . Crooker v. Bragg . Crown V. Orr . . . Crump V. Lambert . Cuff V. Newark K. Co Culbertson v. Cabeen Cundy v. Lindsay . Curtis V. Ayrault V. Mussey . '. Cutts V. Spring . . D. 357, PAGE , . 213 155, 15G 134, 135 301 372 63 102 79 35 184 114 282 359, 3G2 294, 295 37, 38 . 99 . 239 . 285 . 145 . 208 Dabney v. Manning . • • • 218 I)aiii V. Conintr . ''47 V. Wvcoff . . . . 22 D'Almaiue v. Boosey. . 208 Dalton V. Angus . . 272, 274, 280 Damon v. Moore . . * 195 Daniel p. Petersburg Ry. Co. . 32 Daniels v. Fielding . 101 Danville Tump. Co. v . Stewart 381 Darley Colliery Co. v. Mitchell 270 Dauenhauer v. Devine . 277 Davev v. Southwestern Ilv. Co . 347 .373 David V. Park . . 69 Davidson v. Nichols . , 43 377 Davies v, Jenkins . • • • 181 V. Mann . . . 369, 370 372 Davis V. Care}' . . • • ■ 118 V. Getchell . . 984 V. Reeves . . ■ • • 141 V. Shepstone . . 145 Davison v. Duncan . . 33 136 Dawkins v. Rokebv 131 V. Saxe- Weimar . 131 Dawson v. Chamney . . 320 PAGE Dean v. Keate .... 317, 327 V. Peel 192 De Crcspignj' v. Wellesley . . 143 De Forest r. Jewett . . 363, 364 De Freest v. Warner . . 360, 361 De Graffe v. New York Central K Co. 3.59 Delano v. Curtis 245 Delaware, Lackawanna, &c. R. R. Co. V. Converse .... 319 Delegal v. Highley ... 90, 91 Denton v. Great Northern Ry. Co 64 De Pauw Co. v Stubblefield . 358 Derry v. Peek 63 Deshon v. Bigelow .... 240 Dewey v. Osborn 217 Dews V. Riley 176 Deyo V. Van Valkenburg 165, 174, 181,184 Dezell V. Odell 243 Dickinson v. Grand June. Canal Co V. Worcester . Dietz V. Langfitt . DiUing V. Murray . Dinks V- South Yorkshire Co Dixon V. Bell . . . Dobeil V. Stevens . . Dodd V. Holme . . . Dodson V. Meek . . Dodwell V. Burford Doe ?'. Challis . . . I'. Harlow . . Donald V. Suckling . Donaldson v. Haldane Donovan v. Donovan . V. Laing Syndicate Dooling V. Budgett Pub. Doorman v. Jenkins . Dougherty v. Stcpp . Doupc V. Genin . . . Dowling V. Hennings . Downs V. Harper Hospital Doyle V. Hort . . V. Russell . . Doylcy ii. Roberts . Drew V. Comstock . Co . 286 . 292 97, 98 . 283 Rv. . 349 . 318 . 58 272, 273 . 229 . 1.53 . 217 . 217 . 241 . 331 . 55 . ,381 . 144 324, 338 . 219 . 308 . 277 . 29 . 66 . 173 . 122 . 158 XX CASES CITED. PASS Driggs V. Burton . . 85, 87, 89, 97 Dublin & Wicklow Ey. Co. v. Slattery .... 347, 351, 373 Duff V. Budd 325 Dunham r. Powers . . . 130, 131 Dunlop V. Knapp 343 Dunn V. Hall 33 V. White 63 Dunston v. Paterson .... 169 Durst V. Burton 35 Duval V. Davey 115 Dyckman v. Valiente . . . 247 E. Eager v. Grim wood .... 194 Eaglesfield c. Londonderry . . 59 Eames v. Salem R. Co. . . . 349 Earle v. Holderness .... 245 Eaton V. Boston & L. R. Co. . 380 Eckert v. Long Island R. Co. . 306 Ed wick V. Hawkes .... 222 Einstein v. Marshall ... 64, 65 Electric Tel. Co. v. Brett . . 256 Elizabeth v. Pavement Co. 256, 259 Elliot V. Fitchburg R. Co. . 282, 283 V, Prav 354 Elliott V. Chicago Ry. Co. . . 319 Ellis V. Amer. Tel. Co. . . . 334 V. Andrews . . . . 58, 59 V. Loftus Iron Co. . . . 303 V. Sheffield Gas Co. . . . 38 Elwood V. Western Union Tel. Co 334 Ely V. Ehle 249 Embrey v. Owen . . 281, 282, 283 Emerson v. Davies . . . 264, 266 Emmens v. Pottle . . . . 26, 126 Eno V. Del Vecchio .... 277 Esty V. Milmot 227 Evans v. Carrington .... 53 V. Edmonds 63 V. Merriweather .... 284 V. AValton 194 Evansich v. G. Ry. Co. . . . 383 Everett v. Henderson 165, 180, 181 F. Fairhurstt). Liverpool Loan As- sociation Fairmount Rv. Co. v. Stutler PAGE 27 163, 378 Farnsworth v. Garrard . . . 327 V. Storrs 134 Farrand v. Marshall .... 271 Farrant v. Barnes . . 42, 326, 377 V. Thompson . . . 212, 232 Farrar v. Beswick 247 360, 361 . . 372 . . 252 372 157 68 Co. Farwell v. Boston R. Co. Feital r. Middlesex R. Co. Fermentation Co. v. Maus Ferren v. Old Colony Ry. Fertich v. Michener . . Fields V. Rouse .... Filbert v. Hoflf 214 Fink V. Des Moines Ice Co. . 358 Finlay v. Chirney 45 Fiquet v. Allison 247 Firbank v. Humphreys ... G5 First Baptist Church v, Utica R. Co 295 Fisher v. Bristow 84 V. Budlong 53 V. Prince 245 V. Thirkell 350 Fitzgerald v. Connecticut River Paper Co 357,365-367 Exchange Tel Co. v. Gregory 111 Fitzjolin V. Mackinder . 96 Fitzsimmons v. Joslin . 35 Fleming v. Davis . . . 284 Fletcher v. Smith . . . 307 Flint r Pike .... 135 Flood v. Jackson . . 109 110 Fogg V. Boston & L. R. C 'o. 29 Foley V. Wyeth . , . 271 Folsom V. Marsh . . 205 Foot V. Card .... 199 Forde v. Skinner . . 153 Forster v. Forster . . 195 Fortman v. Rottier . . 83 Foster v. Charles . . 75 V. Essex Bank . . 324 V. Mackinnon . . 70 Fouldes I'. Willoughby 237 ,247 Foulkes V. Metropolitan Ry. Co. 379 Fowler v. HoUius . . 238 CASES CITED. XXI Fox V. Mackreth . 53 Franconia, The . . 163 Frazier v. Brown , 12,280 Frenrson v. Loe . . 259 Freeman v. Cooke . 75 V. Venner . . 76,77 Freer v. Cameron . 353 French v. Viiiing . 66 Frenzel v. Miller . 53 Freto V. Brown . . 197 Frierson v. Hewitt 99, 100 Frisbie v. Fowler . 119 Fritz V. Hobson . . 296 Froglej' V. Lovelace . . 221 Fryer v. Kinnersley , . 142 Fuller V. Fenner . 116 V. Wilson . . . 58 Fulton V. Alexaude r . 324 G. Gable v. Wei:Jensee .... 99 Gaffiiey v. Brown 356 Galena H. Co. v. Garwood . . 373 Galvin 0. Bacon 249 Gallwey v. Marshall . . . 122, 123 Gannon v. Hargadon . • . 285, 292 Garrr. Selden 130,131 Gassett v. Gilbert 143 Gentry v. Madden .... 242, 243 George v. Johnson 73 V. Skivington .... 377, 378 Gerrish v. New Market Maniif. Co 283 Gibbons v. Alison 101 Giblin v. McMullen . . . 323, 324 Gibson v. Erie Ry. Co. . . 363, 364 V. Leonard 20 Giles V. Walker 275 Gill V. Middieton 332 Gilman v. Hill 237 Gilniore v. Driscoll . . . 271-274 Glaspie v. Keater 63 Glassey v. Hestonville Ry. Co. 385 Glavin V. Rhode Island Hospital 29 Godefroy v. Dalton .... 331 GnlTin V. Donnelly 132 Goldnamer v. O'Brien ... 22 PAQE Goldsmid v. Tunbridge Wells Com'rs 292 R. Co 101, Goodenow v. Tappan Goodwin v. Cheveley Goodyear v. Railroad Gordon v. Cuininings V. Harper . Gorliam v. White . Gott V. Pulsifer . . Gould V. Cayuga Bank Graham v. Gautier . V. Noble . . . V. Feat . . . V. St. Charles St, Grainger r. Hill . . Graves v. Dawson . Graj' V. Durland V. James . . V. Northeastern Ry. Co. V. Russell . . Green v. Elgie . . V. S perry . . Greenland v. Chapin Gregg V. Wyman . Gregorv v Brunswick V. Hill . . V. Piper . . Griffin V. Chubb Grigsby v. Clear Lake Water Grill V. General Collier Co. Grinnell v. Wells . Griffith V. Hanks . Griffiths V. Teetgen Griswold v. Sedgwick Gulf Ry. Co. V. Levy Gunter v. Astor . . 122, 131 . 304 . 260 . 350 . 232 257, 258 80,141 . 70 329, 331 , 93 . 208 , 109 166, 227 85, 87 . 196 . 255 . 347 . 267 . 182 . 245 . 369 . 372 105, 107 . 159 . 220 . 98 296 323 193 69 192 170 334 111 Co. H. Hnas V. Damon 244 Hadley v. Clinton Importing Co 53, 54 67 61 372 372 155 193 Hagar v. Grossman Hale r. Phil brick . Haley r. Case . . Hall V. Corcoran V. Fearnley . . V. Hollander . XXll CASES CITED. PAGE Halley v. Stanton 120 Halls V. Thompson ... 54, 67 Hamilton v. Boston .... 372 V. Eno 145 Hampton v. Brown . , . 211, 236 Hankiuson v. Bilby .... 113 Hanson v. Edgerley .... 53 V. McCue 286 Haidaker v. Idle District Coun- cil 38 Hardcastle v. South Yorkshire Ry. Co 349 Hare v. Miller 133 Harris v. Brisco 102 V. Saunders 238 I'. Smith 21J Harrison v. Bush 143 V. Northeastern Ry. Co. . 346 Hart V. Aldridge Ill V. Cole 346, 356 V. Frame 329, 330 V. Skinner 245 Harvard College v. Amory . . 338 Harvey v. Epes 244 V.Watson 203 Hastings v. Lusk .... 129-132 Hatch V. Lane 139 Hathawav v. Rice 157 Hauck y/Tide Water Co. . . 287 Hawkins -v. Hawkins .... 70 Hawj'er v. Hawver .... 115 Hay V. Cohoes Co 310 Hayden v. Manuf. Co. . . • 363 Haves v. Porter 342 " V. Waldron 284 Havnes v. Leland 143 " V. State 158 Hays 1!. You n glove 100 Hearns v- Waterbury Hospital . 29 Heaven v. Pender .... 355, 378 Heoditch v. IMacTlwaine . . . 137 HecKert's Appeal 336 Hedges v. Tagg 192 Heermance v. James .... 200 Hemphill's E'^tate 340 Henderson v. Broomhead 130, 131 Henley v. Lyme Regis . . 342, 379 Ilenwood v. Harrison .... 144 Heriot's Hospital v. Ross . . 29 PAGE Hewes v. Park man .... 245 Hewlett V. Cruchley . . 95 Hibbard v. Thompson . . 332 Hickman v. GrifKn . . . 90 H'llberry v. Hatton . . 238 Hill V. Batemau . . 177 V. Taylor . . . . 166 V. Yates . . . . . 187 Hilliard v. Richardson . 37, 38 V. Wilson . . . . . 101 Hilton V. Granville . . 271 Hinton v. Dibdiu . . . 32:J Hiortr.Bott. . . . . 240 Hoar V. Wood . . . . 130 Hobson I'. Todd . . . . . 219 Hodges I'. Windham . . . 204 Hodgson V. Scarlett . . . 130 Hogan V. Cregan . . . 195 Hogg V. Ward . . . . . 187 Holbrook r. Connor . . . 58 Holcomb V. Rawlyns . . 218 Holdom V. Aver . . 63 Hole V. Barlow . . , . . 289 Holland ),'. Anderson . . 69 Hollej' V. Mix . . . 170, 226 Hollins V. Fowler . . . 236 Holly V. Boston Gas C 0. . . 382 Holmes v. Drew . . 350 V. Mather . . . 155, 156 V. Northeastern R_ Y- < ::o. 38, 350 Holt V. Parsons . . . . 134 Hooper v. Lane . . 171 V. Reeve . . 154 V. Truscott . . 128 Hoosac Tunnel Co. v. O'J 3rien 344 Hopkins v. Crowe . 183 V. Suedaker 35 V. Tanqueray . 51 Houck V. Wachter . 298 Houldon V. Smith . 179 Houndsell v. Smyth 349 Houser v. Tully 320 Hovey v. Page . . 45 Howe V. Newmarch 32 Howland v. Day . 158 V. Vincent . . 348 Hubbard v. Lyman 234 Huff V. Bennett . . 33 Hughes V. Macfie . . 383 CASES CITED. XXlll PAOE Hulett I). Swift 320 Hiuiii>liries v. Brof,'den . 278, 279 Hiiiniiliryst'. Stanlicld ... 124 Hunt, Appellant 338 Hunting r. Kusseil .... 209 Hurdnian v. Northeastern Ry. Co 291 Hurtert f. Weines 115 Hutcheson v. Peck . . 200, 201, 202 Hutchins r. Hutcluns . 18, 10-1, 107 Hvde r. Graham 221 V. Noble 233 Hyraan v. Nye 321 Ihl V. Fortv-second St. R. Co. . 384 lllick 1-. Flint K. Co. . . 358, 303 Ilott V. Wilkes . . . . 340 lisle V V. Nichols . . . 222 227 Indermaur v. Dames . . . 300 Indianapolis U. Co. v. Tj ng . 52 Inman v. Foster 143 Insurance Co. v. Brame . , , 104 V. Tweed . . . . . 43 370 lolanthe Case, The . . , , 202 Ireson r. Pearman . . . , 330 Irwin r. Dearman . . . . 198 Isaaek v. Clark . . . . . 244 Israel v I^rooks . . . . •. Ross, 12 Clark & F. 507, 513, dictum of Lord Cottenham. But see ^Mersey Docks v. Gibbs, L. R. 1 H. L. 93 ; Glavin v. Rhode Island Hospital, 12 R. L 411 ; McDonald v. Massachusetts Hospital, 120 Mass. 432. It will be seen that the English courts have abandoned the doctrine. See Harvard Law Review, April, 1896, p. 541. 30 LAW OF TORTS. It is obvious that disability in the way of immunity from liability for acts or omissions does not of itself involve diminution of rights; nothing but alienage or the commission of crime works abridgment of rights, so far as the subject of rights of action is concerned. All persons except criminals undergoing punishment, and aliens, whatever their incapacity to incur liability, may sue for tort; and the disability of criminals and of aliens to sue has nearly become a thing of the past, under enlightened legislation. The next personal relation to be considered is master and servant, where a tort has been committed by or through the servant. By the term ' servant ' appears to be meant one who, being strictly subordinate to and depend- ent upon the will of his employer within the terms of the employment, does not make, or rather is not engaged to make, contracts for his employer.^ Such a person, when engaged in a lawful employment, and acting as a ser- vant and at the same time not * wilfully ' in the sense of purposely or knowingly participating with his employer in wrongdoing, is not liable for the consequences of his acts or omissions as torts. ' Respondeat superior.' There is no anomaly in this, for it may well be that the wrongfulness of what has been done or omitted depends upon knowledge or means of knowledge pos- sessed only by the master. In such a case there being on the pai-t of the servant nothing to suggest harm or 1 When one is employed to make contracts for the employer, thus bringing about a new relation, the case deserves another name, and has it in ' agency.' See Huffcut, Agency, § 4 ; Harvard Law Review, April, 1896, p. 512. A person may be my servant for general pur- poses, as for instance my coachman, and yet directly my agent, as when I send him to purchase new furnishings for my carriage or to have the carriage painted ; lie would still he called a servant, though exercising exceptionally the function of an agent. GENERAL DOCTRINE. 31 danger, he does not see that any one's rights are being or are likely to be infringed, and hence he cannot be guilty of any breach of duty. The contrary will of course be true where the servant, though acting under command, understands, or ought from facts known to him to understand, that the rights of others will be infringed, and yet executes his orders. As regards the liability of the servant, then, the case is normal, falling in with the general doctrine of rights and duties. It is very different as regards the liability of the master; his liability lies outside anything that has gone before in this consideration of the law of torts. The observability of harm or danger, from facts at hand, or facts one ought to know, is, as we have seen, the basis of duty; but a master maybe liable for the torts of his servant, though to Mm (the master) there was no ground for apprehending harm; he may have been a thousand miles away, — enough that the servant's act or omission was in the course and within the scope of his employment, even though contrary to the master's own orders. Many attempts to account for this doctrine of the law have been made since it became established, and some while it was in process of acceptance. Sometimes it has been said that there is an implied command for every act of the servant in the service of his master;^ but that is only another way of saying that the act is in law author- ized, which is true but is no explanation of the case. It has also been said that the master has put the ser- vant in the master's place to do the master's work, or to do the class of things embraced in the particular case.^ 1 1 Blackstone, 417. 2 Bayley v. Manchester R. Co., L. R. 7 C. P. 41.5 ; Barwick v. Eng- lish Joint St(X-k Bank, L. R. 2 Ex. 2.')9 ; Britisli Banking Co. v. Charu- wood Ry. Co., 18 Q. B. Div. 714, 718; 1 Bigelow, Frauii, 228, note. 32 I^AW OF TORTS. But this also, if in less degree, is unsatisfactory; and so of most other reasons given in the books. The one ground which cannot be disputed, and probably is the true one, is that the judges have on the whole concluded that, in the interests of the State, or on what is often called public policy, it is best that the master should be liable. But the master is liable only when the servant was at the time acting within the scope of his employment, which appears to mean acting for the master;^ and as has already been intimated, a servant may be acting for his master, so as to fix upon the master liability for tort, though the servant was at the time violating his master's plain orders. Thus I may send my servant with horse and wagon on an errand to a certain town, and tell him that he must not go by a certain road because it is in a dangerous condition; but if in the course of the errand he goes by that road, and while in it injures some one by negligent or even by wilfully bad driving, I am liable.^ There was some question formerly whether a master could be held for what were called ' wilful ' torts by his servant, though committed on behalf of the master; but the doubt has disappeared, and the master would now be held liable.^ Thus, if a servant of a railway company should commit an assault upon a passenger in a train, in the course of his employment and not in consequence of something outside of the same, the railway company would be liable.* J British Bankiug Co. v. Charmvood Ry. Co., 18 Q. B. Div. 714 (agency). 2 Howe V. Newmarch, 12 Allen, 49. 3 Id. * See McGilvray v. West End St. Ry., 164 Mass. 122; Daniel v. Petersburgh Ry. Co., 23 S. E. Rep. 327 (N. C.) ; Lynch v. Metropolitan GENERAL DOCTRINE. 33 The moment the servant ceases to act for his master, thouoh still remaiuinii; in the service, the master's lia- bility ceases, and does not arise again until the servant begin once more to act for him.-' Thus, if after starting out upon an errand for his master, the servant should turn aside for purposes of his own or another's, as if he should go off to make a purchase for himself or for some friend, or if he should go to see a game of ball, the master could not be held for torts committed by him while so doing. 2 The doctrine which imposes liability upon the mas- ter is a general one, applying as well to cases of slander and libel, ^ malicious prosecution,^ and other torts, ^ as to cases of negligence and trespass. Closely allied to master and servant, for the purposes under consideration, is the relation of principal and agent. It is sometimes put as a distinction between the two relations, that a servant can exercise no independent discretion, but is subject at all times to the control and direction of his master, while an agent acts largely upon his own discretion; but the distinction will not bear examination. So far as there is a difference in the mat- ter of discretion between the two relations, it is a differ- Uy. Co., 90 N. Y. 77 ; Pennsylvania R. Co. v. Vandiver, 42 Peun. St. 36.T ; Bayley v. Manchester K. Co., L. R. 7 C. P. 415. 1 See Rayner v. Mitchell, 2 C. P. D. 357, as to the servant's re- entering upon his service. '^ See Storey v. Asliton, L. R. 4 Q. B. 476; Rayner r. Mitchell, 2 C. P. D. 357; Mitchell v. Crasweller, 13 C. B. 237. 8 Smith V. Utley, 65 N. W. Rep. 744; Dunn v. Hall, 1 Ind. 344; Huff I'. Bennett, 4 Sandf. 120; Davison v. Duncan, 7 E1..& B. 229. A receiver in chaucery is not exempt from liability. Martin v. Van Schaick, 4 Paige, 479. * Vance v. Erie Ry. Co., 32 N. J. 334 ; ante, p. 29. * Smith 17. Land & House Corp., 28 Ch. D. 7 ; Cases, 26 (Deceit). 3 34 LAW OF TORTS. ence of kind, not a difference between tlie absence and the existence of discretion. A servant must frequently exercise a very wide and important discretion, especially when his master is beyond reach. A servant employed to drive a stage-coach or an electric car has the care of human lives committed to him, and their safety will depend very much upon the exercise of his own discre- tion;^ and on the other hand even the simplest kind of service involves the exercise of discretion, otherwise a stupid servant would be as useful as a bright one. The master cannot be present all the time to direct his servant. The real difference is in the kind of discretion to be exercised; an agent, while, like a servant, subordinate to and not independent of his employer, is employed to make contracts for his principal. That makes a funda- mental difference; but it does not bring about any special result in regard to the principal's liability for his agent's torts. The liability of a principal is the same as that of a master, whatever the tort. And the limits of lia- bility are the same: a principal, like a master, ia liable for his agent's torts only when his agent is acting for him, not when the agent is acting for himself, even though doing something which he might have done for his principal.^ Some courts make a single exception to the general rule by which a principal is held liable for the torts of his agent committed on his behalf; they refuse to hold an Innocent principal liable for the fraudulent misrepre- sentations of his agent, which as a matter of fact were 1 ' That the proper manaj?ement of the boilers and machinery of a steamboat requires skill must be admitted. Indeed, by the Act of Congress of Auj^ust 30, 185'2, great and unusual precautions are taken to exclude from this employment all persons who do not possess it.' New World v. King, 16 How. 469. 2 British Banking Co. v. Charnwood Ry. Co., 18 Q. B. D. 714. GENERAL DOCTRINE. 85 not authorized, though they were made in the course and within the scope of the agent's employment.^ This has been put upon the ground that the general rule imposing liability upon one who, morally speaking, is guiltless is exceptional and harsh. Such a rule it is declared should not be extended to a new class of cases not necessarily within it, except upon grounds of urgent public policy; and no such grounds are considered to exist. The ten- dency of the authorities, however, has been steadily against this view, and accordingly most of the courts, refusing to make any exception, hold the principal liable.^ All would agree that if the principal derived a benefit from his agent's fraud, without offering to return it upon discovering the deception practised, he would be liable. For the torts committed by one of two or more ser- vants to the damage of a fellow servant, the master is not liable, unless statute makes him liable. Cases of the kind seldom arise except in negligence, and hence the rule is commonly justified in terms relating to negli- gence. The servant, in entering the service, assumes the risk of everything which is incidental to the employ- ment, and this is declared to include the negligence of 1 Kennedy v. McKay, 43 N. J. 288 ; Western Bank t-. Addie, L. R. 1 H. L. Sc. 145. See 1 Bigelow, Fraud, 228. The principal is ' inno- cent ' in the double sense of not in fact liaving authorized the repre- sentation, and not knowing or having reason to know that it was false. 2 Allerton v. Allerton, .50 N. Y. 670 ; Creig v. Ward, 3 Keyes, 393 ; Durst V. Burton, 47 N. Y. 107; Jeffrey v. Bigelow, 13 Wend. 518; White V. Sawyer, 16 Gray, 586; Fitzsiinmons v. Joslin, 21 Vt. 119; Presby v. Parker, 56 N. II 409 ; Lee v. Pearce, 68 N. C. 76; Hopkins V. Snedaker, 71 111. 449; Barwick v. English -loint Stock Bank, L. R. 2 Ex. 259 (Ex. Ch.) ; Mackay r. Commercial Bank, L. R. 5 P. C. 394; and other cases cited in 1 Bigelow, Fraud, 227. 36 LAW OF TOUTS. a fellow servant.^ But the exemption from liability is not limited to cases of negligence ; on tlie contrary the employer, whether a master or a principal, is not liable at common law for damage wrongfully done by one ser- vant or agent to his fellow in the course of the business, whatever the nature of the tort, whether negligence, fraud, malice, or anything else. The doctrine that the servant assumes the risk of negligence on the part of his fellows is not then broad enough, even if it were not, what it appears to be, an arbitrary doctrine, untrue in point of fact. It would be still less true to say that a servant assumes the risk of torts in general by his fellows. The truth appears to be that, without resorting to fiction, a servant stands in a different position towards his master from tiiat of a stranger. This may be seen by supposing the case of a man's children, who in law are his servants, or of a man's domestic servants; the idea that one of these could sue the master for torts of another of them, would hardly be entertained. The case of non-domestic ser- vants differs only in degree, and the degree of difference must be considerable to justify an alteration of the com- mon law even in cases of negligence; much more so in other cases. Masters furnish the means of support for servants, and hence should not be liable to their servants unless they have done them wrong. The relation is be- neficent towards the more dependent classes, and should not be discouraged. •s^ The relation of servant or agent is one of strict dependence upon the authority of the employer; it is on that footing that the latter is liable. When the em- ployment does not create dependence, when the person employed is, in the conduct of the employment, inde- 1 Tost, p. 3G0 GENERAL DOCTRINE. 37 pendent of the person engaging him, when la a word he is what is called in the books an ' independent con- tractor,' the employer, except in two or three cases standing upon grounds of their own, is not liable for the torts of such contractor.^ Thus if I enter into con- tract with a builder to erect a house for me, or to make over a factory into a house, or to do any other work, which he is to carry out as if he were working for himself, supplying his own materials,^ he alone will be liable to others, until I resume control, for torts com- mitted in the course of the work, notwithstanding the fact that the work is done for me.^ And so in turn if he should employ an independent sub-contractor for part of the work, such as putting in the gas fittings, such sub- contractor, and not the chief contractor, much less the first employer, will be liable for torts committed in per- forming the sub-contract, until he turns over his w^ork to the principal contractor.* The exceptions to this doctrine are found in cases in which the employer owed some duty to others regardless of the 'independent contract,' which that contract does not relieve him of. Thus the owner of premises owes the duty to others not to maintain, or allow to be main- tained, a nuisance upon his premises, and if in conse- 1 Hilliard v. Richardson, 3 Gray, 349; L. C. Torts, 636; Cuff v. Newark R. Co., 6 Vroom, 17 ; Brown v. Accrington Cotton Co., 3 H. & C. 511. 2 If I .suppl\^ the materials, the builder is not, in that respect, an independent contractor. '^ Hilliard r. Ricliardson, supra. * Cuff v. Newark R. Co., supra; Rapson v. Cubitt, 9 M. & W. 710; Overton v. Freeman, 11 C. B. 867. See L. C. Torts, 657. 'In ascer- taining who is liable for the act of a wrongdoer, you must look to the wrongdoer himself, or to the first person in the ascending line wlio is the einidover and has control over the work. You cannot jro further back and make the employer of that person liable.' Murray v. Carrie, L. R. 6 C. P. 24, 27, Willis, J.; Pollock, Torts, 72, 2d ed. 38 LAW OF TORTS. quence of a contract with another a nuisance is created there, the owner will not escape liability because the per- son immediately guilty of causing it is an independent contractor. ^ The same would be true if the thing authorized to be done by the contract were wholly illegal, or wholly with- out the sanction of law, as if a town, having no author- ity to lay gas pipes through its roads, should contract with a person to lay such pipes, and some one should be injured by that person's negligence.^ And the like would be true of cases in which a corporation, municipal or not, having special duties towards the general public, as in the case of a railroad company, should employ an independent contractor to do work for it in premises which the company was bound to have in fit condition for business of the public; in such a case the railroad company could not delegate or otherwise get rid of its owu dut3' to the public.^ § 5. Of Legal Cause: Contributory Fault. The defendant's misconduct must have been the legal cause, or part of the legal cause, of that of which the plaintiff complains, to enable the plaintiff to recover judgment. Having regard to the defendant and third persons, it need not be the sole cause ; it matters not that others helped the matter along, so far as the right of the injured person to sue any one (as well as all of them) is concerned. But considering only the person injured and the defendant, the defendant's conduct must have been ^ See Hilliard v. Richardson, supra. 2 Ellis V. Sheffield Gas Co., 2 El. & B. 767. 3 Cuff V. New.ark R. Co., supra; Storrs r. Utica, 17 N. Y. 104; Chicago V. Roljbin.s, 2 Black, 418; Holmes v. Northeastern Ry. Co., L. R. 4 Ex. 254; Smith v. Loudon Docks Co., L. R. 3 C. P. 326; Hardaker v. Idle iJistrict Council, 1896, 1 Q. B. 335. GENERAL DOCTlilNE. 39 the sole cause of complaint; if the plaintiff's own con- duct made part of the cause of action, he cannot recover. In such a case the defendant has violated no duty to the plaintiff, whatever duty he may have owed; it is the plaintiff and the defendant together who have done or omitted the thing complained of. And whatever might be said in favor of separating the conduct of the defend- ant from that of the plaintiff, where the plaintiff's conduct was not the sole cause of the injury, the courts gener- ally have looked upon it as unwise, if not impracticable, to attempt to administer the law in that way.^ The courts, however, are very careful to distinguish mere conditions from legal causes.- In a certain sense of the word 'cause,' as used by able metaphysicians, the plaintiff cannot but be part at least of the cause of his misfortune, for unless he or his property was where he or it was at the time in question, no harm could have befallen him, and that of course whether his own con- duct in the matter was wrongful or not. But that is not the conception of cause which the courts have adopted ; the courts distinguish, as was just stated, between things or situations which are but conditions necessary to the happening of any misfortune, and things or situations which in themselves have the promise or potency of mis- fortune. A result is, legally speaking, caused when it happens as the natural effect of that which brings it to pass; the case is this, that standing with knowledge or what should be accounted knowledge of certain facts, harm is likely to follow in natural course. Hence there ^ A few courts have, in cases of negligence, adopted a suggestion of admiralty law, and resorted to a comjianson of fault between the plain- tiff and defendant, rejecting the doctrine of contributory fault. See post, p. 375. 2 See e. g. Newcomb v. Boston Protective Department, 146 Mass. 596; Cases, 557. 40 LAW OF TORTS. can be no breach of duty by the defendant when, in such a case, the plaintiff himself does or omits to do the thing which, though in necessary connection with the defend- ant's misconduct, is likely to produce the harm. On the other hand, if what the plaintiff has done or omitted was not likely to produce the harm, or any harm at all, his doing or omitting is no more than a condition to the result, and the defendant has violated his duty to the plaintiff. He alone, considering none but the plain- tiff and the defendant, has caused the damage.'^ The doctrine in question is obviously a general one, applying to all torts. As a matter of fact, however, it is seldom called into service except in cases of negligence; there almost exclusively it has found its development, and there it has special phases that will require par- ticular examination when the subject of negligence is reached. The reader is accordingly referred to the chap- ter on Negligence for further information. '■^ § 6. Of Termination op Liability. Liability for tort having been incurred, how far does it extend? For it is obvious that a train of unfortunate results may follow. The general answer to the question, though scarcely an answer at all until explained, is that a man is liable for all such consequences of his torts as, legally speaking, he has caused. This answer is often put in terms of a maxim or rule of the Roman law, adopted into our jurisprudence; 'causa proxima, non remota, spectatur,' — the law regards the 'proximate,' not the ' remote ' cause. With reference to this maxim, nothing could be more 1 The case is often treated as a phase of the maxim ' causa iiroxima, non remota, spectatur,' considered in the next section. 2 See also L. C Torts, 721-725, GENERAL DOCTRINE. 41 misleading than to take it in its plain primary sense ; in that sense the law as often regards the ' remote ' and dis- regards the proximate cause, as it does the contrary. A tosses a lighted squib into one of the booths of a market, and B, the owner of the booth, instinctively throws it out and it falls into the booth of C, who repeats the instinctive act, but now the squib strikes D in the face and puts out his eye. C obviously is nearest, or ' proxi- mate ' in the primary sense, to D, and A is most ' remote ' of all; and yet A is liable to D, and C probably is not; A is liable whether C is or is not, supposing that C has acted instinctively and not of purpose, negligence, or other wrongful conduct, towards D.^ It is obvious that the maxim is to be taken in some metaphysical sense; B and C must be regarded as machines, and the final result as happening in the natural course of things. ' Results happening in the natural course of things ' is the more common way of putting the case; a tort having been committed, the wrongdoer is liable for whatever happens in the natural course; in the natural course of things as they were understood to be when the tort was committed. The rule does not mean, broadly, that lia- bility extends to whatever occurs in the course of nature; it means what occurs in the course of nature as things were known when the wrong was first done. Thus a person who, in violation of law, should start a fire in the highway would be liable for damage done by any spread of the fire in the condition of the atmosphere when the fire was started, or while it was still under control; but not perhaps for damage produced by a hurricane or tem- pest suddenly and unexpectedly arising.'^ On the other hand, it is not necessary that the par- ticular mischief resulting should have been foreseen or 1 Scott r. Shepherd, 2 W. Black. 892. 2 Tost, p. 376; Wharton, Negligence, §§ 114-116, 2d ed. 42 LAW OF TORTS. regarded as probable. A person who sets a fire wrong- fully, or does not properly guard a fire which he sets, in a dry stubble in midsummer, is liable for damage done by its spread, under the observable conditions of the air at first prevailing, even in case the fire should unexpectedly cross broad fields and extend to buildings or haystacks beyond.^ In like manner one who wrong- fully sets a fire or unlawfully allows the fire to get under way among timbers floating down a stream, the burn- ing timbers finally causing the destruction of property several miles below, is liable for the loss; he has in the legal sense caused the loss, however improbable it may have been, because it happened in the natural course of things understood. So again one who unlawfully strikes another will be liable for what ensues naturally from the known state of things in the person struck, though the result appears to be out of proportion to the blow,^ though probably not for consequences due, with the blow, to some occult and unknown disease.^ It is enough in all such cases that the wrongdoer knows, or is bound to know from the facts of which he is aware, that harm will follow, or is likely to follow, his wrongful act or omission in the understood state of things. The conditions to the harm which follows are before him; danger is observable. This is again returning to language used in speaking of duty, and accordingly suggests that the present doctrine also may 1 Smith V. Southwestern Ry. Co., L. R. 5 C P. 98; 6 C. P. 14 ^Ex. Ch.). 2 See Stewart v. Ripen, 38 Wis. 584. 3 Compare Stewart v. Ripen, supra; Sharp v. Powell, L. R. 7 C. P. 258. For other cases involving the general principle, see Vandenburgh V. Truax, 4 Denio, 464; McDonald v. Snelling, 14 Allen, 290 (defend- ant negligently running into a team and causing the horses to run away and collide with plaintiff's sleigh); Farrant v. Barnes, 11 C. B. N. s. 553. GENERAL DOCTRINE. 48 be put in terms of duty. Duty exists where danger, either directly or through facts which the defendant knows or ought to know, is observable. It must follow that duty lasts to, and includes all results flowing natu- rally from the defendant's wrongful act or omission; duty equally must end at, and exclude, results which happen out of natural course, as things were known to exist. And liability must end where duty ends; the plaintiff can have no right towards which there is no correlative duty. The doctrine of duty then, rightly understood, determines both the creation and the termi- nation of liability. There is, or may be, special difficulty where the train of events instead of going on in nature, or through human beings acting mechanically, extends through the acts of men conducting themselves freely and without constraint. In such cases it appears to be necessary that the intermediate human agencies should act in accordance with the purpose of the one further back who set the train in motion. The connection between the sufferer and such person would be broken, if some one, or some force of nature, between them were to act in the matter 'out of course,' that is, in a way not to be expected; the wrongdoer can owe no duty to a person who sustains damage from the wrong, unless in natural or expected course.^ But if the intermediate persons, few or man}', act in accordance with the purpose of the one back of them, though they be not his agents or his servants, he will be liable for damage done, not because the acts of the intermediate persons are his acts, but because he has, legally speaking, caused the damage. He owed a duty to the person who should ultimately fulfil his purpose; 1 See such cases as Carter y. Towne, 103 Mass. 507; Davidson v. Nichols, 11 Alleu, 514; Insurance Co. v. Tweed, 7 Wall. 44, 52. 44 LAW OF TORTS. looking forward to such action created the duty. And that duty he has vioUited. There is some question whether the train thus set in motion, and continued in motion by an independent set of persons, should be inherently dangerous; it is certain that if it is, liability runs back to the person who started it. Thus A, who is a manufacturer of drugs, puts a quantity of belladonna, a violent poison, into jars which he labels dandelion, a harmless drug; he sells the same to B, a wholesale dealer; B in turn sells to C, a retail dealer; and C sells to D, who buys the drug for his own use as dandelion, takes it as such, and is injured. A is liable to D.^ The drug sold (in accord- ance with A's purpose) was inherently dangerous; but there is authority for saying that the result would be the same though the thing in question, as for instance a folding bed, were not inherently dangerous, but danger- ous only for some vice in it.^ The principle in question applies generally to all kinds of tort, but as a matter of fact it seldom finds expression except in cases of negligence; some phases of it are almost of necessity phases of negligence. The conse- quence is that the subject must be considered particu- larly under that head, and it wall not be considered further here.^ § 7. Of Death of Plaintiff or Defendant. Liability for tort ma}- come to an end in a very dif- ferent wa\' from any capable of being stated in terms of the cessation of duty ; ' actio personalis moritur cum persona.' Expressing the rule in terms of the liomau 1 Thomas v. Winchester, 6 N. Y. 397 ; Cases, 567. 2 Lewis ;;. Terry, 43 Pac. Rep. 398 (Cal). 8 See post, pp. 376, 377. GENERAL DOCTRIKE. 45 law, the courts have from early times declared that (most) torts cease to create liability with the death of either of the parties to them.^ Both the origin and the justification of this rule are matter of doubt; but no common law rule has been more steadily maintained, except as statute has affected it. It matters not that an action may already have been set on foot,^ the rule applies with absolute impartiality. It has been suggested that the rule may have come into operation when the processes of the courts were finally putting aside the right of private redress for wrongs which had prevailed under what may be called customary law. ' A process which is still felt to be a substitute for private war may seem Incapable of being continued on behalf of or against a dead man's estate.' ' Whether this be true or not of cases of the death of the wrongdoer, — it would not explain the effect of death by the injured person, — reasons were found even in early times which brought about legislation to limit any pos- sible application of the rule to cases in which the tort directly affected the injured man's property.^ Legisla- 1 See e. g. Bowker i-. Evans, 15 Q. B. Div. 565, death of plaintiff. The rule is not confined to torts. The action for breach of promise of Tnarria2;e ' moritur cum persona.' Finlay v. Chirney, 20 Q. B. Div. 494; Hovey v. Page, 55 Maine, 142; Lattimore v. Simmons, 13 Serg. & R. 183; Stebbins v. Palmer, 1 Pick. 71 ; Smith v. Sherman, 4 Ciish. 408. Aliter, if special damage to property is caused. Finlay v. Chir- ney; Stebbins v. Palmer. See infra. 2 Bowker ?•. Evans, supra, an arbitration. 3 Pollock, Torts, 55, 2d ed., to which is added a dictum by Newton, C. J. from Year Book 19 Hen. 6, pi. 10 (a. n. 1440-1) : ' If one doth a trespass to me and dieth, the action is dead also, because it should be inconvenient to recover against one who was not party to the wrong.' * 'The distinction seems to be between causes of action which affect the estate, and those whicli affect the person only. . . . According to this distinction, an action for the breach of a promise of marriage would not survive; for it is a contract merely personal; at least it 46 LAW OF TORTS. tion of the kind began as early as the year 1330, which gave an action for ' goods and chattels of . . . testa- tors carried away in their life ; ' and twenty-one years later the same right of action was given, by construction of statute, to administrators.^ These statutes have been adopted in America; and to them (as in England) have been added statutes, varying more or less in the different States, in favor of the nearest kindred of persons killed by misconduct of others. The latter statutes, however, have no place in a consideration of General Doctrine. does not necessarily affect property. . . . The injury complained of is violated faith, more resembling in substance deceit and fraud than a mere common breach of promise.' Wilde, J. in Stebbius r. Palmer, 1 Pick. 71, 79. If it be said that the same is true of many other con- tracts which do survive, the only answer perhaps is, that a rule, like that of actio personalis, not founded in sound reason, will be apt to be departed from more or less. 1 4 Edw. 3, c. 7j 25 Edw. 3, st. 5, c. 5. See Phillips v. Homfray, 24 Ch. Div. 439. SPECIFIC TOUTS. PART I. BREACH OF DUTY TO REFRAIN FROM FRAUD OR MALICE. CHAPTER I. DECEIT. § 1. Introductory. Statement of the duty. A owes to B the duty to forbear to mislead him to his damage by false and fraudulent rep- resentations. 1. Deceit is a ground of defence to the enforcement of a contract, and is also ground for proceedings by the in- jured party to rescind a contract. In such cases the same facts, apart from the wrongdoer's knowledge of the actual state of things, are necessary for establishing the deceit as are necessary to an action of or for deceit.^ Hence, with the exception mentioned, authorities concerning the proof of deceit in cases of contract are authorities in regard to actions for damages by reason of deceit. 2. The action at law for damages by reason of deceit is called indifferently an action of deceit or an action /or deceit. In order to establish a breach of the duty above stated, and to entitle B to civil redress therefor, B, unless he come within one of the qualifications to the rule, must make it appear to the court (1) that A has made a false representation of material facts ; (2) that A made the same with knowledge of its falsity ; (3) that B was igno- rant of its falsity, and believed it to be true ; (4) that it 1 King V. Eagle Mills, 10 Allen, 548 ; Wilder v. De Cou, 18 Minn. 470. 50 LAW OF TORTS. [Part I. was made with intent that it should be acted upon ; (5) that it was acted upon Iw B to his damage.^ But each of these general elements of the right of redress must be separately examined and explained, and any qualifications to the same presented. The designation of the parties as A and B may now be dropped, and B will be spoken of as the plaintiff, and A as the defendant. § 2. Of the Representation. It is proper first to consider the meaning, in the law, of the term ' representation,* and thus to ascertain the real foundation of the action under consideration. Ac- cordingly, a representation may be defined to be a state- ment or an act, creating a clear impression of fact upon the mind of another, sufficient to influence the conduct of a man of ordinary intelligence. As a matter of language there may be no difference whatever between a representation and a warrant}'. The statement, 'This horse is sound' ma}' be the one or the other. The following external distinctions, however, will suggest certain tests for deciding cases to which the}- are applicable : A warranty is always annexed to some con- tract and is part of that contract ; the warranty is indeed a contract itself,'^ though a subsidiary one, dependent upon the main agreement. A representation, however, is in no case more than inducement to a contract ; it is never part of one. To carry it into a contract would be to make it a warranty. And again, there ma}' be a repre- sentation, such as the law will take cognizance of, though no contract was made or attempted between the one who 1 Pasley v. Freeman, 3 T. R. 51; s. c. L. C. Torts, 1. 2 Brownlie v. Campbell, 5 App. Ca,s. 925, 953, Lord Blackburn. An affirmative warranty is ordinarily an artificial contract of the law. Ante, p. 17, note. Chap. I. § 2.] DECEIT. 51 made the representation and the one to whom it was made. This would be sufficient to distinguish the two terms, if it were necessary to a warranty tliat it should be expressly annexed to the contract-in-chief; but that is not neces- sary, and that fact sometimes creates difficulty. In writ- ten contracts there can seldom be difficulty in determining whether a particular statement is a warranty or a repre- sentation (when it is either), for the warranty must be part of the writing, since a warranty must be part of the contract-in-chief,^ and it will either be directly incorpo- rated into the general writing or be so connected with it by apt language - that there can be no doubt of the inten- tion of the parties. The difficult}' is with oral contracts, and then in most cases only in regard to sales of personalt}- . "Whether the statement in question is a representation or a warranty is, however, a question of intention ; and an intention to create a warrant}' is shown, it seems, by evidence of mate- rial statements of fact made as an inducement to the sale, at the time the bargain was effected, or during negotia- tions therefor which have been completed in proper reli- ance upon the statements ; * provided nothing at variance with the inference of intention is shown.* If the state- 1 Kain v. Old, 2 B. & C. 627. 2 A warranty may indeed be implied, i. e. arise without language or intention, but such cases are aside from the present purpose. The difficulty under consideration concerns the effect of language used. 3 See Hopkins w. Tanqueray, 15 C. B. 130. This will explain many cases in which it is held that a vendor of personalty is liable for his false representations though he believed them to be true. See Sledge V. Scott, 56 Ala. 202 ; post, p. 64. In such cases there is in reality a v/arranty, and hence the vendor's knowledge is immaterial, though the case is not always put on the ground of warranty. * Such appears to be the effect of the cases. See Benjamin, Sales, §613. 52 LAW OF TORTS. [Part L ment was uot so made, it is a representation if it is any- thing. Wliat difficulty remains is in tlie application of the rule ; and that is a matter for works treating of contracts or torts in detail. A warranty of fact, however, when broken, may be treated, it seems, as a case of misrepresentation, giving rise to an action for deceit, if the elements necessary' to liabilit}' in a proper case of misrepresentation are pres- ent ; ^ and this, it is believed, is true whether the warranty was express or implied. Indeed, in case of implied war- ranty the breach appears to be enough to make the case one of deceit.^ This reduces the matter to a question of the form of action. But it is very doubtful whether an action based on deceit could be maintained where the evi- dence showed nothing but a breach of warranty.^ That would, in the language of pleading, be a variance ; the action should be on the warranty as such. Consider now the definition above given of the term 'representation.' A representation must consist in 'a statement or an act.' There are, it is true, cases in which legal consequences may attend absolute silence ; but there are very few cases* in which an action for damages on account of silence alone can be maintained. There must ordinarily be some additional element to make silence ac- tionable. If the silence consist in withholding part of the truth of a statement, it may be actionable, as will be 1 See Indianapolis R. Co. v. Tyng, 63 N. Y. 653. 2 White V. Madison, 26 N. Y. 117, 124 ; Jefts v. York, 10 Cnsh. 392 ; Johnson v. Smith, 21 Conn. 627 ; Collen v. Wright, 8 El. & B. 647 ; Randell v. Trimen, 18 C. B. 786 ; Seton v. Lafone, 18 Q. B. D. 139, affirmed on appeal, 19 Q. B. Div. 68 ; post, p. 65. 8 Mahurin v. Harding, 28 N. H. 128 ; Cooper v. Landon, 102 Mass. 58 ; Larey v. Taliafferro, 57 Ga. 443. * Silence might be ground for an action in deceit by a cestui que trust against liis trustee, it seems, in a transaction between the two in regard to the trust property to the damage of the former. CiiAP. I. § 2.] DECEIT. 53 seen later ; but in such a case silence is, properlj' speak- ing, only part of the representation. The silence amounts to sa3-ing that what has been stated is all. There is a rlut}- to speak in such a case, and it is only when there is such a duty that silence has any legal significance. Indeed, even passive concealment, that is, intentional withholding of information, when not attended with anv active conduct tending to mislead, is insufficient, accord- ing to the general current of common-law authority, to create a cause of action. P^or example : The defendant, knowing of the existence of facts tending to enhance the l)rice of tobacco, of which facts the plaintiff is ignorant to the defendant's knowledge, buys a quantity of tobacco of the plaintiff at current prices, withholding information of the facts referred to (no question being asked to bring them out). This is no breach of dut}' to the plaintiff.^ Again : The defendant buys of the plaintiff land in which thei-e is a mine, the defendant knowing the fact, and knowing that the plaintiff is ignorant of it. The defend- ant does not disclose the fact in the negotiations for the purchase. This is no breach of dut}'.^ 1 Laidlaw v. Organ, 2 Wheat. 178. See Prescott v. Wright, 4 Gray, 461, 464 ; Kintzing v. McEhath, 5 Barr, 467 ; Smith v. Countryman, 30 N. Y. 655, 670, 671 ; People's Bank v. Bogart, 81 N. Y. 101 ; Hanson v. Edgerley, 29 N. II. 343 ; Fisher v. Budlong, 10 P. I. 525, 527; lladley I'. Clinton Importing Co., 13 Ohio St. 502; Williams v. Spurr, 24 Mich. 335; Law v. Grant, 37 AVis. 548 ; Cogel v. Kinseley, 89 111. 598 ; Frenzel v. Miller, 37 Ind. 1 ; Smith v. Hughes, L. R. 6 Q. B. 597 ; Evans v. Carrington, 2 De G. F. & J. 481 ; Peek v. Gurney, L. R. 9 H. L. 377, Lord Cairns ; Coaks v. Boswell, 11 App. Cas. 232, Lord Selborne. ' Whatever may be the case in a court of morals, there is no legal objection on the vendor to inform the purchaser that he is under a mistake, not induced by the act of the vendor.' Blackburn, J. in Smith v. Hughes, supra. Contra in some of the States. Patterson V. Kirkland, 34 Miss. 423 ; Cecil v. Spurgur, 32 Mo. 462 ; Lunn v. Shermer, 93 N. Car. 164; Merritt i;. Robinson, 35 Ark. 483. 2 Fox V. Mackreth, 2 Bro. C. C. 400, 420, a leading case in equity. See Turner v. Harvey, Jacobs, 169, 178, Lord Eldon. 54 LAW OF TORTS. [Past I. An act, however, attendiug what would otherwise be a case of perfect silence, in regard to the fact in question, ma}' have the effect to create a representation, and la}- the foundation, so far, for an action ; ^ but the act must be sig- nificant and misleading.^ For that purpose, however, it may be slight ; ^ a nod of the head ma}- no doubt be enough, so may a withdrawing of attention from some point to which it is being or about to be directed. To make a representation the statement or act must create a ' clear impression ; ' the plaintiff does not make out the alleged breach of duty if his evidence show only a statement or act of vague or indefinite import. Such statements or acts would have little eflfect upon a man of average intelligence ; and hence, whatever the actual effect produced in a particular case, the law takes no notice of them. For example : The defendant, a vendor of land, points to a certain tree as the probable boundar}- of his premises, and the plaintiff buys relying upon that statement as a statement of the actual boundarj'. The defendant is not liable in damages for the loss sustained b}' the plaintiff.* The representation need not, however, be created by language ; there is no distinction between an impression created by words and one created b}' acts.^ Language is onl}' one of the means of conveying thought. A thought may often be conveyed as distinctly b}' an act ; enough, so far, that a clear impression is created upon the mind. If the impression is capable of being stated as a fact, and is such as might govern the conduct of an average man in 1 Laidlaw v. Organ, supra ; Hadley v, Clinton Importing Co., supra. 3 Id. ;' • Turner v. Harvey, Jacob, at p. 178. f ♦See Halls v. Thompson, 1 Sniedes & M. 443. 6 Lobdell I'. Baker, 1 Met. 193 ; Coolidge v. Brigham, id. .547, 551 ; Mizner v. Kussell, 29 Mich. 229; Paddock v. Strobridge, 29 Vt. 470. These are cases of warranties, but tlie principle is the same. CiiAi-. I. § 2.] DECEIT. 55 regard to some change of position in contemplation, it sat- isfies the rule. It follows that, to constitute a representation, it is not necessary, even when language alone is used, that the statements should be made in terms expressly affirming the existence of some fact. If tlic statement be such as would naturally lead the plaintiff, as a man of average intelligence, to suppose the existence of a particular state of facts, that is as much as if statements had so been made in exact terms. ^ It should be noticed that there is a difference in fact be- tween vagueness and ambiguit}'. Vagueness, as we have seen, is fatal to the idea of a legal representation ; but ambiguity in an impression may only mean that more than one fact has been impressed upon the mind, not that none at all has been left there. In such a case as this the only question that can arise in reason or in law is whether, assuming the facts impressed to be clear and definite, the plaintiff reasonably acted upon the one which was false. That he did this it devolves upon him to show. For ex- ample : The defendants issue a prospectus in regard to a companj', in process of formation to take over certain iron works, which prospectus contains the following statement : 'The present value of the turnover or outi)ut of the entire works is a million pounds sterling per annum.' This state- ment might mean eitlier that the works had actually turned out more than a million's worth at present prices witiiin a year or yearh', or onl3' that the works were capable of turn- ing out so much ; in the former case it is false, in the latter it might be true. The plaintiff, who has been induced to buy shares in the undertaking, must show that he acted upon the statement in the sense in which it was false. ^ 1 Donovan v. Donovan, 9 Allen, 140; Rhode v. Alle}', 27 Texas, 443, 446 ; Lee v. Jones, 17 C. B. N. s. 482 ; s. c. 14 C. B. N. S. 386. 2 Smith V. Chadwick, App. Cas. 187 ; s. c. 20 Ch. Div. 27. 56 LAW OF TORTS. [Part I. The impression created must be of a ' fact,' a word wbicli imports something capable of being known. Does this mean, in the case of a statement, that what is stated must be stated as a fact? There is some confusion in the books in regard to tliis question. It is commonlj' said that the law takes no notice of statements of opinion, or of state- meats in regard to future events or conduct short of con- tract. But that is by no means universally true ; and even when true its truth does not rest upon the ground that such statements are not statements of fact. As a matter of form it is true that statements of opinion and statements relating to the future ordinaril}' are not statements of fact ; but in reality the}- alwa3's involve and imply statements of fact. The fact involved is indeed a mental fact, to wit, the state of mind — the opinion, belief, or intention — of the person speaking. But a mental fact is as ivuXy a fact as a non-mental fact ; the person mailing it knows whether it is true or false. He knows whether his belief or intention is as he has stated. The result is that when a man states that his opinion, belief, or intention is so and so, he has virtually and in real effect stated that he knows of nothing to make his statement of opinion, belief, or intention a sham. If then the law requires that what is stated should be stated as a fact, the case in question fulfils the requirement ; the state- ment is in effect — and that is the real test — a statement of fact. For example : The defendant, seller of a hotel under lease, says to the plaintiff, the buyer, that the tenant is a ' most desirable tenant.' Assuming that what is ' de- sirable' in such a case is matter of opinion, still the state- ment is in effect a statement of fact, for the seller 'impliedly states that he knows facts which justify his opinion.' ^ Again : The defendant, a cattle dealer, selling cattle to the plaintiff, states that he is of opinion that the cattle will 1 Smith V. Land & House Corp., 28 Ch. Div. 7 ; Cases, 26, 33, note. Chap. I. § 2.] DECEIT. 57 weigh 900 lbs. and upwards per head. This in efTeet is a statement of fact, to wit, that the defendant knows nothing to make the opinion a sham.^ Those are cases of statements (in the form) of oi)inion ; hut it is obvious tliat statements in regard to the future stand upon the same footing. Thus, if a person were to saj' tliat a certain ship ' will arrive to-morrow,' that would amount to a statement tliat he knew nothins: to the contrary, and hence would be a statement of fact. So a promise to pa}- for property bought imports a state- ment of intention to pay ; and intention is a matter of fact. It is clear then that the contrast usuall}' drawn or sug- gested is a false one. The true contrast is suggested bj- the following paragraph, to wit, between things, whether put as fact or as opinion, belief, or intention, which are per- suasive of action, and things which are not. The statement or act must be one ' sufficient to influence the conduct of a man of ordinary iutelligence.' The mean- ing of this rule, however, like tliat of the one just consid- ered, is in some particulars a matter of doubt. Thus, in the sale of goods ' simplex commendatio non obligat.' But what is 'simplex commendatio?' A simple statement of value by a vendor is a clear case on the one hand ; a plain statement of fact going to make up value, as the age of a horse, is an equally clear case on the other. But what of statements falling between the two extremes ? The question cannot be definitely answered ; most of the cases that arise have to be determined upon the special facts attending them. That is to say, [)articular rules can seldom be framed to reach them, and general rules have onl}- a remote bearing upon them. One or two limited rules, however, have been laid down 1 Bh-dsey v. Butterfield, 34 Wis, 52. 58 LAW OF TORTS. [Part L touching the subject. It has been declared b}' able courts,^ and denied by others,^ that a vendor's false statements of what an article or a tract of land cost, or what at some time it has brought, or what has been offered for it, may come within the cognizance of the law like ordinary representa- tions of fact. Some courts, indeed, have gone much further than denying this proposition.^ But it is generally agreed that such statements when made, not b}' the vendor, but b3* a stranger, may constitute actionable misrepresentations. For example : The defendant, not being the seller of the propert}', falsely states that a tannery has on a previous sale brought a certain price. This is a misrepresentation capable of sustaining an action under the law.^ I It is settled law that statements of the income of prop- erty', or of the rental receipts of a leasehold estate to be sold, constitute representations of fact which may safely be acted upon. For example : The defendant, seller of a public-house, falsely tells the buyer, the plaintiff, that the receipts of the house have been £160 per month, and that the tap is let for £82 per annum, and two rooms for £27 per annum. This is a false representation sufficient to in- fluence conduct, and not a mere statement of value. ^ So possibly if the statement were that the present ' value' of 1 Van Epps v. Harrison, 5 Hill, 63 ; Page v. Parker, 43 N. H. 363 ; Somers v. Richards, 46 Vt. 170 ; Ives v. Carter, 24 Conn. 392 ; McAleer V. Horsey, 35 Md. 439 ; JMcFadden v. EoLiuson, 35 Ind. 24 ; Morehead V. Eades, 3 Busli, 121. The rule in these cases appears to be the better one. 2 Medbury v. Watson, 6 Met. 246 ; Cooper v. Lovering, 106 Mass. 79 ; Martin v. Jordan, 60 Maine, 531 ; Bishop v. Small, 63 Maine, 12. 3 Holbrook v. Connor, 60 Maine, 576, false statements concerning deposits of oil in lands, and that the lands were of great value for mak- ing oil, held mere opinion, by a majority. * Medbury v. Watson, 6 Met. 246. ^ DobcU V. Stevens, 3 B. & C. 623 ; Medbury v. Watson, supra, at p. 260 ; Ellis v. Andrews, 56 N. Y. 83, 86. See Fuller v. Wilson, 3 Q. B. 58 ; Lysney v. Selby, 2 Ld. Raym. 1118. Chap. I. § 2.] DECEIT. 59 the property is a certain sum per year ; for that might meau its annual return. ^ Statements concerning the pecuniar3' condition of an in- dividual also stand upon a different footing from statements of value ; the}' may govern conduct. For example : The defendant says to the plaintiff, ' F is pecuniarily responsi- ble. You can safely trust him for goods to the amount of £3,000.' This is a representation of fact which may govern conduct.^ Again, to come within the notice of the law, the repre- sentation, if not made by a lawyer to a layman, or by a man professing familiarity with the law to one not familiar witli it, must, it seems, be more than a mere representa- tion of what the law is. The reason of this has some- times been said to be that all men are presumed to know the law ; ' ignorantia legis neminem excusat.' But it may be doubted whether that is the true ground of the rule ; if it were, misrepresentation of the law by one's legal counsel could hardl}' be made the foundation of an}' lia- bility. A better reason appears to be that the law is understood I)}' all men to be a special branch of learning ; and hence what one layman may say to another will sel- dom have the effect to alter conduct. But whatever the ground, the rule appears to be treated as settled. For example : The defendant misrepresents the legal effect of a contract which he thereby induces the plaintiff to enter into with him, both parties being laymen. The defendant is not liable in damages for the loss inflicted upon the plaintiff. 1 See Smith v. Chadwick, 9 App. Cas. 187, ante, p. 55. But see Ellis V. Andrews, ut supra. 2 Pasley v. Freeman, 3 T. R. 51 ; Cases on Torts, 1. Such repre- sentations must now in many states be proved by writing signed by the party to be charged. 3 Upton V. Tribilcock, 91 U. S. 45. See Lewis v. Jones, 4 B. & C. 506 ; Beattie v. Ebury, L. R. 7 Ch. 777, 804 ; Eaglesfield v. London- 60 LAW OF TORTS. [Part L As the language above used, however, plainly implies, it is not broadly true that a misrepresentation of the law ma}- not be ground for an action of deceit. If a person having superior means of knowing the law, and professing to know it, though not a lawyer and not professing to be, should knowingly give false information of it in order to influence the conduct of one ignorant of the same, there would (so far) be an actionable misrepresentation. For example : An immigrant, lately arrived from abroad, meets an old citizen, who professes familiarity with the land titles of tlie country, and proposes to sell land to him, to which lie falsel}' assures tlie immigrant the title is good. This is a misrepresentation capable of sustaining an action.^ Tlie proposition in the last paragraph may be generalized. In ordinar}'^ cases the representation must be such as to influence the conduct of a man of average intelligence ; but the courts have not turned over the simple to be the prey of rogues. If a person is mentall}' deficient, or is but a child, tlie courts will protect him from designing men where thej' would leave others to their own folh'.^ It is practicall}' the same thing with saying that the statement or act should be sufficient to influence conduct, to say that it should be material ; which latter is the usual way of stating the rule. But whichever way the rule is stated, it is not to be understood that the law will not take notice of the case if influences from other sources may have operated upon the plaintiff. The onh' question upon this point is whether the representation made bv the defendant was adequate to influence, and did influence, deny, 4 Ch. Div. 693, Jessel, M. R., explaining the nature of a repre- sentation of law. And see West London Bank v. Kitson, 13 Q. B, Div. 360, 363, Bowen, L. J. 1 Moroland v. Atchison, 10 Texas, 303. 2 Sec post, p. 73. Chap. I. § 2.] DECEIT. 61 the plaintiff, not whether it was the sole inducement to the action taken ; if it was sunicient to influence him, and did influence him to some real extent, that is enough. Tlie courts will not be astute to find that one of several induce- ments present was not adequate to the damage.-' So far of the definition. Further, it is for the plaintiflf to show that the repre- sentation was false. But a representation is false in contemplation of law as well as of morals if it is false in a plain, practical sense ; if, that is to say, it would be apt to create a false impression upon the mind of the average man. For example : The prospectus of a company about to construct a railway describes the contract for the woik as entered into at ' a price considered within the available capital of the company.' Tlie fact is that there is a merely nominal capital of £500,000, and from this the sum of £.50,000 is to be deducted for the purchase of the concession for making the railway, and the contract price for making it is £420,000. The representation is false; the term ' available capital ' not being a true description of capital to be raised by borrowing.^ An example in contrast with the foregoing may be stated. A prospectus of a company formed for buying a certain business declares that the price of purchase is a stated sum, and that no 'promotion mone}-' is to be paid to the directors of the company for making the purchase. In fact the sum paid for the business is somewhat less than the sum stated in the prospectus, and shares of the stock representing the diflerence are now transferred, * James v. Hodsden, 46 Vt. 127; Safford v. Grout, 120 Mass. 20 ; Jordan v. Pickett, 78 Ala. 331; Hale v. Philbrick, 47 Iowa, 217; Mc- Aleer v. Horsey, 35 Md. 439 ; Reynell v. Sprye, 1 De G. M. & G. 660. 2 Central Ry. Co. t;. Kiseh, L. R. 2 H. L. 99. Another good ex- ample, Smith v. Land k, House Corp., 28 Ch. Div. 7 ; Cases, 26. 62 LAW OF TORTS. [PartJ. part to the directors of the company who effected the purchase, which part is afterwards transferred to the com- pany on complaint, and part to the solicitors in the trans- action. This is not misrepresentation.^ The defendant cannot, then, escape liabihty by showing that the representation was, if literally taken, true, or true if taken in some forced or unnatural sense. ^ So too the defendant cannot rel}' upon the truth of the actual lan- guage used, when that is but part of the whole state of facts, and what was suppressed would, had it been stated, have given to the language used a contrary effect. If the part suppressed would have made the part stated false, there is a false representation.^ For example : The de- fendant, desirous of buying stock of the plaintiff, a lady, of the value of which he knows that she is ignorant, tells her of a fact calculated to depreciate the value of the stock, but omits to disclose to her other facts within his knowledge which would have given correct information upon the subject. This is a breach of dut}' to the plain- tiff.* Again : The plaintiff being about to suppl}' the defendant's son with goods on credit, asks the defendant if the son has property to the value of £300, as the son has asserted. The defendant answers in the affirmative, stating that he has advanced the sum to his son, but fail- ing to state that his son has given his promissory note for the amount. This is a false representation, though true in a literal sense. ^ ^ Arkwright v. Newbold, 17 Ch. Div. 301. 'Nobody was ever luoky enough to sell a property without having some considerable deduction made out of the gross price, there being such persons as auctioneers and solicitors to be paid.' James, L. J. 2 Mizner v. Kussell, 29 Mich. 229. 3 Peek V. Gurney, L. R. 6 H. L. 377, 403, Lord Cairns ; Central Ry. Co. V. Kisch, L. R. 2 H. L. 99, 113. 4 Mallory v. Leach, 35 Vt. 156. 5 Corbett v. Brown, 8 Bing. 33. Ghap. I. § 3.] DECEIT. 63 § 3. Of Defendant's Knowledge op Falsity. In order to entitle a plaintiff to recover damages for misrepresentation, it is necessary, by the more general current of autboritj^, for him to prove that the defendant made the false representation fraudulently. A contract may, indeed, in man}^ cases be rescinded or its enforce- ment successfully' resisted, for an innocent misrepresenta- tion, that is to say for a false representation believed to be true at the outset by the party who made it ; ^ but if damages are sought, fraud must be proved, whether at law or in equity.'^ Fraud within the meaning of this rule, maj' be proved in one of three, and in some States in one of four ways, according to the nature of the case. It may be proved by showing (1) that the defendant made the representation with knowledge of its falsit}' ; or (2) that he made it reck- lesslv, without knowing whether it was true or false, ^ or in some States (3) that he made it positivel}' as, or appar- ently as, of his own knowledge, when he only believed it to 1 Arkwriccht v. Newbold, 17 Ch. Div. 301 ; Redgrave v. Hurd, 20 Ch. Div. 1; Blackman v. Johnson, 35 Ala. 252 ; Sledge v. Scott, 56 Ala. 202. 2 Case V. Boughton, 11 Wend. 106, 108 ; Morgan v. Skiddy, 62 N. Y. 319; Cragie v. Hadley, 99 N. Y. 131; Code v. Cassiday, 138 Mass. 437 ; Bowker v. Delong, 141 Mass. 315 ; Malmrin v. Harding, 28 N. H. 128 ; Holdom v. Ayer, 110 111. 448 ; Lamm v. Port Deposit Assoc, 42 Md. 233 ; Dunn v. White, 63 Mo. 181 ; Collins v. Jackson, 54 Mich. 186 ; Spangler v. Chapman, 62 Iowa, 144 ; Sims v. Eiland, 56 Miss. 83 and 607; Deny v. Peek, 14 App. Cas. 237, reversing 37 Ch. Div. 541 ; Joliffe V. Baker, 11 Q. B. D. 255 ; Arkwright v. Kewbold, 17 Ch. Div. 301, 320 ; Redgrave v. Hurd, 20 Ch. Div. 1 ; Reese Mining Co. v. Smith, L. R. 4 H. L. 64 ; Childers v. Wooler, 2 El. & E. 287 ; Evans v. Edmonds, 13 C. B. 777, 786. But see Glaspie v. Keater, 5 C. C. A. 474 ; Lamberton v. Dunham, 30 Atl. 716 (Penn.). Proving the defendant's knowledge of the falsity of his representa- tion is often called proving the 'scienter,' a term of the old common law pleading. 8 Negligence is not enough. Le Lievre r. Gould, 1893, 1 Q. B. 491. 64 LAW OF TORTS. [Part I. be true without having actual knowledge, or (4) that he made it under circumstances in which he was so specially related to the facts that it was his duty to know whether the representation was true or not.^ The fourth of these aspects of the case calls for a few remarks. There the defendant stands in a peculiar situa- tion in regard to the facts ; the facts are specially within his reach ; they are not facts that others ma}-, even hv inquiry, know as well. The result is, that any represen- tation made by him touching them is likely to carry great weight, greater, other things being equal, than represen- tations made in other cases. This fact may well be held enough to govern his conduct, and to require him to know the truth of the representation ; in a word, he may beheld practically to have warranted the representation to be true, and, warranting it, he cannot require the part}^ with whom he has dealt to prove that he knew it to be false when he made it.^ 1 As to knowledge of falsity, that will be sufficient, as far as it goes, for any representation falling within the notice of tlie law. As to the second and third aspects of the case, see Chatham v. Moffatt, 147 Mass. 403, C. Allen, J. : 'The fraud consists in stating that the party knows the thing to exist, when he does not know it to exist ; and if he does not know it to exist, he must ordinaril}' be deemed to know that he does not. Forgetfulness of its existence after a former knowledge, or a mere belief of its existence, will not warrant or excuse a statement of actual knowledge.' This rule is sweeping, for most representations sued upon are positive assertions as of knowledge. The rule may not prevail everywhere, but it appears to be sound. 2 See White t'. Madison, 26 N. Y. 117, 124 ; Jefts v. York, 10 Gush. 392, 396, Shaw, C. J. ; Collen v. Wright, 8 El. & B. 647, Ex. Ch. See Denton v. Great Northern Railway Co., 5 El. & B. 860, in regard to representations by railway time tables. Whether the text would apply generally to representations made by any with whom the plaintiff was not dealing, qusere. (In such cases 'warranty' would be a term of convenience merely). Compare the distinction taken in Einstein v. Marsliall, 53 Ala. 1.^3 ; but they may not have been intended to apply to cases like that of the text. Chap. I. § 3.] DECEIT. 65 Accordingly, this phase of fraud may perhaps be treated as a case either of warranty or of deceit.^ It is believed that cases of implied as well as of express warranty are capable of being treated as falling under the head of de- ceit as thus explained.^ A typical illustration will serve to make the application of these remarks clear : If a person assume to act for another in respect of a matter over which he has no authority, he renders himself liable for misrep- resentation to the person whom he ma}- thus have misled, though he ma}' have honestly believed that he had the authority assumed.^ The matter of his authority was a fact peculiarly witliin his own means of knowledge, and it was therefore his duty to acquaint himself with the situation. And this matter of representations of author- ity has sometimes received a prett}' wide interpretation.'* Cases falling under this phase of the subject appear, however, apart from questions of authority or agency, 1 In Jefts V. York, supra, Chief Justice Shaw says of implied repre- sentations of agency that the action should be in tort. 2 For the purpose of defence to or rescission of most contracts, by reason of misrepresentations which were innocent, it is not necessary that these should have been warranties. Defence or rescission is to bo distinguished from an action for damnges. That, at all events, is the more general rule. For the rule in Alabama see Einstein v. Marshall, 58 Ala. 153. * Jefts V. York, ut snpra ; White v. Madison, ut supra; Mahnrin v. Harding, 28 N. H. 128 ; Noyes v. Lovering, 55 Maine, 403 ; Collen v. Wright, 8 El. & B. 647, 658 ; Coventry's Case, 1891, 1 Ch. 202, 211. Tlie term ' warranty ' here is conventional. See also Eandell v. Trimen, 18 C. B. 786 ; Firbank v. Humphreys, 18 Q. B. D. 54 ; Seton v. Lafone, 19 Q. B. D. 68. The majority in Collen v. Wright would, no doubt, have agreed that an action for deceit could have been maintained. See Jefts V. York. * See May v. Western Union Tel. Co., 112 Mass. 90, which goes to the verge of interpretation. When the facts supposed to create the authority are fully stated, and no warranty is created, the plaintiff has taken his own risk. Newmann v. Sylvester, 42 Ind. 106. 5 66 LAW OF TORTS. [Pakt L and other cases of warrant}',* to stand upon narrow ground, and the principle of liability is not to be extended to cases not clearly within it. Thus, the fact that a per- son allows his name to be used as director or trustee of a corporation or other company, in prospectuses containing false representations, does not impose upon him in law the dut}' to know the truth of the statements, and so subject him to liability. To prove such fact is not to prove fraud.^ AVhat creates the duty to know the facts, in other cases than ordinary warrant}', is a difficult question to answer. The following rule, laid down by an Irish judge, is all, per- haps, that the nature of the case permits : "What a man must know, it was in substance declared, must have regard to his particular means of knowledge, and to the nature of the representation ; and this must be subject to the test of the knowledge which a man, paying that attention which ever}' one owes to his neighbor in making a representation to be acted upon, would have acquired in the particular case by the use of such means.^ § 4. Of Plaintiff's Ignorance of Falsity. The next element of the breach of duty is that requiring the plaintiff to show that he was ignorant of the truth of the matter concerning which the representation was made, and believed that it was true. Both of these situations must, in general, be true of the plaintiff; he must have been ignorant of the true state of things, and have trusted the representation of them as made by the defendant. He must have been deceived ; and to render the defendant liable, the plaintiff must 1 See e. g. French v. Vining, 102 Mass. 132, sale of food for cattle; Jeffery v. Bigelow, 13 Wend. 518. 2 Morgan v. Skiddy, 62 N. Y. 319 ; Western Bank v. Addie, L. E. 1 H. I.. Sc. 14.5. 3 Doyle V. Hort, 4 L. R. Ir. 661, 670, Palles, C. B. Chap. I. § 4.] DECEIT. 67 have been deceived by the defendant. If the plaintiff liad knowledge of the facts in question, or if without having knowledge thereof he acted upon independent information, and not upon a belief of the truth of the defendant's representation, he is in the one case not deceived at all,^ and in the other is not deceived by the person of whom he complains. Should a purchaser of propert}' therefore make all desired investigation of his own in regard to the truth of representations made by the vendor, he will be barred from alleging that the latter made false representations. More than this, if in such a case there was no warranty, the purchaser cannot say that the vendor concealed facts of importance from him ; provided nothing was done or said to prevent the purchaser from making as ample inves- tigation as he chose. For example : The defendant, vendor of a large tract of land, represents the estate to contain only fifty or sixty acres of untillable soil, and the plaintiff, the purchaser, before the sale, examines all the land more than once. The defendant is not guilty of a breach of duty to the plaintiff, though it turns out that the estate contains three hundred acres unfit for cultivation. ^ Aside from such cases, there are few cases in which the plaintiff, if he was actually ignorant of the true state of facts and supposed the representation to be true, is con- sidered by the law as fixed with knowledge of the facts ; the duty resting upon him being, as it seems, only a gen- eral duty of diligence, rathei- than a duty, like that in the preceding section, towards the opposite party. The im- putation of knowledge is then of much lessened force ; it is generally, indeed, reduced to a case of presumptive evi- dence, if it arises at all. 1 Hager v. Grossman, 31 Ind. 223 ; Tuck v. Downing, 76 111. 71 ; Whiting V. Hill, 23 Mich. 399. 2 Halls V. Thompson, 1 Sniedes & M. 443. 68 LAW OF TORTS. [Part L It has sometimes been laid clown that if the means of knowledge be equally open to both parties, tlie plaintiff, as a prudent man, must be deemed to have availed him- self of such means (or is not to be excused if he has not done so), and hence that, in contemplation of law, he has not been deceived by the defendant's misrepresenta- tion ; the result being that, unless there was a warranty, no action can be maintained.^ There is, indeed, no lia- bility in any case in which the party complained of has made no misrepresentation, has not been guilty of fraud of any kind, and has made no warranty. ' Caveat emptor.' But for the broad doctrine before stated, there is little support in the more recent specific adjudications upon the subject. Some courts, however, have come to draw a distinction between means of knowledge at hand and general means of knowledge, in cases of misrepresentation ; enforcing the doctrine in question where the means are at hand (and only in such cases). For example : The plaintiff buys a quantity of manufactured rubber goods from the defend- ant at the defendant's factory. The defendant makes false representations, but no warrant}-, in regard to the goods, and the plaintiff, because of the representations, does not examine them specially, though they are at hand and in condition to be examined. It is held that the plaintiff cannot recover damages.^ Even this doctrine can hardly be considered as accept- able generally, in the light of most of the recent authori- ties as distinguished from the mere dicta of the books. It may be hard to believe that a plaintiff did not avail himself of means of knowledge directly at hand ; but 1 Vernon v. Keys, 12 East, 632 ; Slaughter v. Gerson, 13 Wall. 379, dictum ; Messer v. Smith, 59 N. H. 41 ; Leavitt v. Fletcher, 60 N. H. 182 ; Lytle v. Bird, 3 Jones, 222 ; Fields v. Rouse, ib. 72. 2 Salem Rubber Co. v. Adams, 23 Pick. 256. See Brown v. Leach, 107 Mass. 364 ; Cases, 33 and note. Chap. I. § 4.] DECEIT. 69 there is in principle, and by authorit}', only a probability of fact to be overcome even in such a case. There is, b}* the better rule, no conclusion of law either that the plain- tiff availed himself of the means, or that it was his duty to do so ; the plaintiff may still show that he was misled b}' the defendant's representation.^ p'or example : A prospectus of a company in process of formation falsely states that the capital stock is a certain sum, and the plaintiff is induced by this statement to subscribe for shares of stock in the company. The plaintiff might have learned the true state of things by examining the records of the company, which were open to his inspection, but does not make the examination. He is not barred of redress.^ Again : The defendant, vendor of land, makes to the plaintiff false representations concerning his title to the land. An examination of the public registry would disclose the truth. The plaintiff may rely upon the rep- resentations, and need not go to the registry.^ 1 Mead v. Bunn, 32 N. Y. 275, 280 ; Schwenk v. Naylor, 102 N. Y. 683 ; Linington v. Strong, 107 111. 295 ; Weber v. Weber, 47 Mich. 569 ; West o. Wright, 98 Iiul. 335 ; McClellan v. Scott, 24 Wis. 81, 87 ; Griffith v. Hanks, 46 Texas, 217 ; Central Ry. Co. v. Kisch, L. R. 2 H. L. 99, 120 ; Smith v. Land & House Corp., 28 Ch. Div. 7 ; Red- grave V. Hurd, 20 Ch. Div. 1, 13 ; Reynell v. Sprye, 1 De G. M. & G. 668, 709; Stanley v. McGauran, 11 L. R. Ir. 314 ; Sankey v. Alexander, Ir. R. 9 Ex. 259, 316. 2 Centra] Ry. v. Kisch, supra. 8 Parham v. Randolph, 4 How. (Miss.) 435; Kiefer v. Rogers, 19 Minn. 32 ; Holland v. Anderson, 38 Mo. 55. See Ehode v. Alley, 27 Texas, 443. Perhaps, however, because of the time and expense possibly to be incurred, the registry would not be considered as at hand, so as to be immediately available for verification. A fortiori, of parties in Jlassa- chusetts in regard to the Patent Office at Washington. David v. Park, 103 Mass. 501. So too of a piece of land covered with snow : Martin V. Jordan, 60 Maine, 531 ; Rhode i;, Annis, 75 Maine, 17; or flooded: Jackson v. Armstrong, 50 Mich. 65. Upon this whole subject of means of knowledge see 1 Bigelow, Fraud, 522 et seq. 70 LAW OF TORTS. IPaut L The subject may be further illustrated by a quite differ- eut sort of case. Every mau is presumed to know the contents of a written contract signed by him ; but no presumption of knowledge will stand in the way of a charge of misrepresentation or other fraud in regard to the contents of the writing.^ No doubt it would be im- prudent not to read or to requke the reading of an instru- ment before signing or accepting it ; indeed, the courts would turn a deaf ear to a man who sought to get rid of a contract solely on the ground that its terms were not what he supposed them to be. But the case would be different where a plaintiff charged fraud upon the defend- ant in reading the contract to him, or in stating its terms, or in secretly inserting terms not agreed upon.- The usual course of proceeding in regard to cases of the kind now under consideration is to rescind the con- tract ; but such a course may have become impossible.^ And whether it be possible or not, it is a well-estab- lished rule of law that one who has been induced bv fraud to enter into a contract, whether executory or wholly (as by sale and payment) executed, may treat the contract as binding, retain its fruits, and sue for the fraud by which it was effected.* Hence in the case of a 1 Albany lust, for Savings v. Burdick, 87 N. Y. 40 ; Robinson v. Glass, 94 Ind. 211 ; Hawkins v. Hawkins, 50 Cal. 556 ; Sebnylkill v. Copley, 67 Pi-nn. St. 386 ; JIartindale v. Hanis, 26 Ohio St. 379 ; Foster v. Mackinnon, L. R. 4 0. P. 704 ; Stanley v. McGauran, 11 L. R. Ir. 314. 2 Albany Inst, for Savings v. Burdiek, supra ; Stanley v. McGauran, supra. 3 See Clarke v. Dickson, El. B. & E. 148. 4 Strong V. Strong, 102 N. Y. 69 ; Gould v. Cayuga Bank, 86 N. Y, 75 ; Whitney v. Allaire, 4 Denio, 554 ; s. c. 1 Comst. 305 ; Mallory v. Leach, 35 Vt. 158 ; Clarke v. Dickson, supra ; Ri'gina v. Saddlers' Co., 10 H. L. Cas. 404, 421 ; Western Bank v. Addie, L. R. 1 H. L. Sc. 167. CiiAi-. I § 4.] DECEIT. 71 written contract knowingly misread, misstated, or mis- written, the party wronged may (probably) maintain an action of deceit for the damage he may have incurred, while at the same time treating the contract as in itself valid. But the defendant must have been guilty of fraud, as by knowingly misreading or misstating the instrument. Should he profess to state no more than the effect of a long writing, he could not, it seems, be liable in dam- ages for a mistake ; though equity would reform the instrument at the instance of the party injured. The explanation of all this is not far to seek. It is not for a person who admits that he has been guilty of endeavoring to mislead another by misrepresentation, to say to him, when called to account, ' You ought not to have trusted me ; you were negligent ; you ought to have made inquiry.'^ The law requires, indeed, the exercise of prudence by both parties ; but that is all. If prudence on the one side has been disarmed by misrepre- sentation on the other, the law cannot justly refuse re- lief. Besides, the case of a plaintiff so situated is quite different from that of a defendant so related to the facts as to be bound to know the truth. In this latter case no one has misled the defendant ; in the case under consideration, on the other hand, the misrepresentation has, upon the hypothesis, misled the plaintiff. The case is not varied in law by the circumstance that the plaintiff may have made some partial examination on his own behalf ; if still he was misled, and prevented from making such examination as otherwise he would have made, he will be entitled, so far, to recover.^ For 1 Albany Inst, for Savings v. Burdick, 87 N. Y. 40 ; Smith v. Land and House Corporation, 28 Ch. Div. 7 ; Cases, 26; Speed v. Hollings- worth, 38 Pac. R. 496 (Kans.). But see Brady v. Finn, 162 Mass, 260. 2 Cases first cited in note 1, supra. 72 LAW OF TOUTS. [Part J. example : Representations concerning a hotel about to be sold at auction are made by the seller in printed particu- lars of sale. The buyer, having seen the statements, sends his agent to look over the premises to see whether it will be advisable to buy. The agent goes accordingly, and having made some examination, advises the purchase, which is made. The buyer may show that he was induced by the representations of the seller to buy.^ The case will of course be different if the defendant's representation was not of a nature to mislead, as where it is a statement of mere opinion, or if it did not in fact mislead. And where the facts are open to the plaintiff equally with the defendant, there is a presump- tion, it seems, that the plaintiff availed himself of the means of inquiry ; which presumption must be overcome before he can recover. When the defendant induces the plaintiff to abstain from seeking information, mere concealment of material facts may become a breach of duty ; and redress will not be refused in such a case merely because a sharp business man might not have been deceived. Nor is the rule of law different when the defendant suggests exam- ination to the plaintiff, but in such a way as to indicate that such a step would be quite unnecessary. For exam- ple : The defendant, in selling to the plaintiff property at a distance, suggests to the plaintiff that he go and look at the property, ' as their judgment might not agree, and, if not satisfied, he would pay the plaintiff's ex- penses, but if satisfied the plaintiff should pay them him- self.' This is deemed to justify the plaintiff in acting upon the defendant's representations without examining the property.^ ^ Smith V. Laud and House Corporation, supra, 2 Webster v. Bailey, 31 Mich. 30. Chap. 1. § 4.] DECEIT. 73 Even though a party sell at the risk of the purchaser, * with all faults,' as he may, he will have no right to practise fraud ; and if he should do so he will be liable as for a breach of his legal duty to the purchaser. For example : The defendant sells to the plaintiff a vessel, ' hull, masts, yards, standing and running rigging, with all faults, as they now lie.' He, however, makes a false statement, that the ' hull is nearly as good as when launched,' and takes means to conceal defects which he knew to exist. This is a breach of duty to the plaintiff.^ But the case would be different if the seller, though aware of the defects, do nothing to conceal them.^ When the parties, by reason of physical or mental Infirmity on the one side, or of the fact that the one party is in the occupation or management of the other's business, or has the general custody of his body, do not stand upon an equal footing, the objection to a suit for false representations, tliat the party to whom they were made was negligent in not malving inquiry or examina- tion, has still less force. Examples of this class of cases may be readily found in the case of transactions with aged persons, or with cestuis que trust by trustees, or with wards by guardians.* Not even the subsequent acts of accepting and paying for goods upon delivery will bar the purchaser of I'edress, though the goods were open to his inspection at the time, if the fraud was not then discovered, and especially if such acceptance and payment were procured by fraudu- lent artifices on the part of the vendor.* For example : 1 Schneider v. Heath, 3 Campb. 506. See "Whitney v. Boardman, 118 Mass. 242, 247 ; George v. Johnson, 6 Hunii)h. 36. 2 Baglehole v. Walters, 3 Campb. 154 (overruling Jlcllish v. Mot- tenx, Peake, 156) ; Pickering v. Dowson, 4 Taunt. 779 ; Bywater «. Richardson, 1 Ad. & E. 508. 8 See ante, p. 60. * See Clarke v. Dickson, El. B. & E. 148. 74 LAW OF TORTS. [Pakt t The defendant, a manufacturer and vendor of tobacco, knowingly uses damaged tobacco in the manufacture, aud intentioually uses boxes of green lumber ; and while the tobacco is being made up he exhibits to the plaintiff from time to time, in order to mislead him, specimens of tobacco as of the kind he (the defendant) is suppljnng the plaintiff, when in fact the defendant is supplying him with a different aud inferior kind. Notwithstanding accept- ance of the goods aud payment for them, the plaintiff is entitled to damages against the defendant.'^ § 5. Of the Intention that the Representation should be acted upon. In regard to that element of the breach of duty under consideration which requires the plaintiff to prove that the defendant intended his representation to be acted upon, it is to be observed that, while the rule is probably iuflexi- ble, its force appears chiefly in those cases in which the deception was practised with reference to a negotiation with a third person, and not with the defendant. In cases of that kind, au instance of which is found in false repre- sentations to the plaintiff of the solvency of a third per- son,'^ it is plain that the transaction with such third person, though shown to have been caused by the defendant's false representation, affords no evidence of an intention in the defendant that the representation should be acted upon by the plaintiff. It would be perfectly consistent with mere evidence that the plaintiff acted upon the de- fendant's misrepresentation in a transaction with a thix-d person, that the defendant, though he knew the falsity of his representation, did not know, and had no reason to ^ Mc Aroy v. Wright, 25 Ind. 22. An act does not amount to tue iver of a \vronf( unless it he done with knowlec 2 rasley v. Fiucuian, 3 T. R. 51, ante, p. 27. waiver of a \vronf( unless it he done with knowledge of the wrong. Cum: 1. § 5] DECEIT. 75 suppose, that the plaintiff would act upon it. The repre- sentation niiglit, for all this, have been a mere idle false- hood, such as would not justify any one in acting upon it. It follows that wliere a party complains of false repre- sentations, whereby he was caused to suffer damage in a transaction with some third person, it devolves upon him to give express evidence either that the defendant in- tended that he should act upon the representation, or that the plaintiff' was justified in inferring such intention, — it matters not which ; ^ and that it is not enough to prove that the misrepresentation was made with knowledge of its falsity.^ When, however, the effect of the false representation was to bring the plaintiff into a business transaction with the defendant, the case is quite different. Proof of such a fact shows at once the intent of the defendant to induce the plaintiff to act upon the representation ; and it follows that no evidence need be offered of an intention to that effect, or of reasonable ground to suppose an intention. The principle appears most frequently in cases of sales ; the rule of law being, that if the plaintiff, the purchaser, establish the fact that the defendant, the vendor, knew that his representation was false, it is not necessary for the plaintiff to give further evidence to show that the de- fendant intended to induce the plaintiff to buy.^ For example : The defendant sells a horse to the plaintiff representing that it is sound, when he knows that it is not. Further evidence of intention is not necessary.* ^ See Freeman v. Cooke, 2 Ex. 654 ; Coinish v. Abington, 4 H. & N. 549. 2 See Pasley v. Freeman, 3 T. R. 51 ; s. c. L. C. Torts, 1. 8 Collins V. Denison, 12 Met. 549 ; Claflin v. Commonwealth Ins. Co., 110 U. S. 81 ; Johnson v. Wallower, 15 Minn. 474 ; s. c. 18 Minn. 288 ; Foster v. Charles, 6 Bing. 396 ; .s. c. 7 Bing. 105 ; Polhill V. Walter, 3 B. & Ad. 114. * Collins V. Denison, supra. 76 LAW OF TORTS. [Part L Indeed, it is probably not necessary in any case, if the cause of action is carefully stated, that it should appear that the defendant intended to injure the plaintiff. It has already been stated that a person honestly professing to have authority to act for another is liable as for fraud for the damages sustained, if he has not the authority.^ In such cases it is obvious that the representation may have been made for the benefit of the plaintiff.^ So too in cases in which the defendant has made the misrepresenta- tion with knowledge of its falsity, it is plain that he may really have dcsii-jd and expected that the plaintiff would derive a benefit from the transaction. § 6. Of Acting upon the Representation. It is fundamental that the defendant's representation should have been acted upon by the plaintiff, and acted upon to his injury, to enable him to maintain an action for the alleged breach of duty.^ Indeed, fraudulent con- duct or dishonesty of purpose, however explicit, will not afr'ord a cause of action unless shown to be the very ground upon which the plaintiff acted to his damage.* The defendant must have caused the damage. So strong is the rule upon this subject that it is deemed necessary to this action that the damage as well as the acting upon the representation must already have been suffered before the bringing of the suit, and that it is not suflficient that it may occur. For example : The defend- ant induces the plaintiff to indorse a promissory note before its maturity by means of false and fraudulent rep- 1 Ante, p. 36. 2 See Polhill v. Walter, 3 B. & Ad. 114. « Pasley v. Freeman, 3 T. R. 51 ; Smith v. Chadwick, 9 App. Caa. 187 ; Freeman v. Venner, 120 Mass. 424. * Rutherford v. Williams, 42 Mo. 18. Cii^vp. 1. § 6.] DECEIT. 77 resentations. An action therefor cannot be maintained before the plaintiff has been compelled to pay the note.^ A person who has been prevented from effecting an attachment upon property by the fraudulent representa- tions of the owner or of his agent is deemed to have suft"ered no legal damage thereby, though subsequently another creditor should attach the whole property of the debtor and sell it upon execution to satisfy his own debt.^ The person thus deceived, having acquired no lien upon or right in the property, cannot lose any by reason of the deceit. The most that can be said of such a case, it has been observed, is that the party intended to attach the property, and that this intention has been frustrated ; ^ and it could not be certainly known that that intention would have been carried out.* If the attachment had been already levied and was then lost through the deceit, the rule would of course be different.^ It must appear, moreover, that the jylaintiff was entitled to act upon the representation ; and this will depend upon the intention, or the reasonably presumed intention, of the defendant. The representation may have been in- tended for (1) one particular individual only (in which case he alone is entitled to act upon it), or (2) it may have been intended for any one of a class, or (3) for any one of the public, or (4) it may have been made to one person to be communicated by him to another. Any one so in- tended, who has acted upon the misrepresentation to hia damage, will be entitled to redress for any damage sus- tained by acting upon the representation.^ For example : ^ Freeman v. Venner, 120 Mass. 424. 2 Bradley v. Fuher, 118 Mass. 239. But see Kelsey v. Murphy, 26 Penn. St. 78. 8 Id. ; Lamb v. Stone, 11 Pick. 527. * Bradley v. Fullei-, supra. * Id. 6 Richardson v. Silvester, L. R. 9 Q. B. 34 ; Swift v. Winterbotham, L. R. 8 Q. B. 244 ; Peek v. Gurney, Law R. 6 H. L. 377. 78 LAW OF TORTS. [Part L The defendants put forth a prospectus to the public, con- taining false representations, for the purpose of selling shares of stock in their company. The plaintiff, as one of the public, may act upon the representations, and, having bought stock accordingly, recover damages for the loss sustained thereby.^ § 7. Of Quasi-Deceit. "We come now to certain cases which may be called cases of quasi-deceit. They vary somewhat in legal as- pect from deceit proper as presented in the foregoing pages, and 3'et they have enough in common with that subject to be treated as kindred to it. The subjects re- ferred to are (1) the simulation of another's quasi-trade- mark ^ or business sign, and (2) disparaging statements of another's property, otherwise called slander of title. By quasi-trademark is meant a mark or device not regis- tered according to statute and not a subject of property- in the plaintiff. The action therefore is not based upon any infringement of a property right ; it is based upon simulation, — upon deception practised b}' the defendant on the public to the damage of the plaintiff.^ In order to sustain an action for damages based upon such a case, it must appear (1) that the defendant knew of the existence of the plaintiff's mark when he committed the alleged wrong, (2) that he intended to palm off the goods as the goods of the plaintiff, or to represent that 1 Andrews v. Mockford, 1896, 1 Q. B., 372, distinguishing Peek v. Gurney, L. R. 6 H. L. 377. See also New York R. Co. v. Schuyler, 34 N. Y. 30 ; Bruff v. Mali, 36 N. Y. 200, 205. 2 In the case of a legal trademark the wrong would be a violation of a property right as well as deceit; that case then need not be con- sidered in a chapter on deceit. In considering cases of quasi-trade- marks we have cases of deceit only for our subject. 3 See Rcddaway v. Banham, 1896, A. C. 199; Ratcliffe v. Evans, 1892, 2 Q. B. 524, 528, as to damage. Chap. I. § 7.] DECEIT. 79 the business ^vhich he was carrying on was the plaintiffs business, or business of which the planitiff had a special patronage, and (3) that the public were deceived thereby.^ For example : The defendant sells a medicine labelled ' Dr. Johnson's ointment ; ' the label being one which the plaintiff had previously used, and was still using when the defendant began to make use of the same. The plaintiff cannot recover without showing that the defendant has used the label for the purpose of indicating that the medi- cine has been prepared b\' the plaintiff.^ Again : The plaintiff Sykes is a maker of powder-flasks and shot-belts, upon which he has placed the words ' Sykes Patent.' There is no valid patent upon them, in fact, as has been decided by the courts ; but the maker has continued to use the words upon the goods to designate them as of his own making. Tiie defendant, whose name is also Sykes, makes similar goods, and puts upon them the same words, with a stamp closely resembling that of the plaintiff, so as to sell the goods 'as and for' the plaintiffs goods. This is a breach of duty.^ Again : The defendant has the words ' Revere House ' painted upon coaches which he uses to carry passengers from the railroad station to a hotel of the name. By contract with the proprietor of 1 Sykes v. Sykes, 3 B. & C. 541 ; Cases, 55 ; Rodgers v. Nowill, 5 C. B. 109 ; JMorison v. Salmon, 2 Man. & G. 385 ; Crawshay v. Thompson, 4 Man. & G. 357, 379, 383. See 1 Bigelow, Fraud, 560, 565. In a 231'oceeding for injunclion it is not necessary, even in these eases of quasi-trademark, to prove the defendant's knowledge or intent to de- ceive. Simple priority of use of the mark is enough. See Millington V. Fox, 3 Mylne & C. 338 ; Singer Machine Co. v. Wilson, 3 App. Cas. 376 ; Eeddavvay v. Bentham Hempspinning Co., 1892, 2 Q. B. 639, 644, 646. The subject of trademarks is being gradually assimilated to the law of property, and actions for deceit are apparently becom- ing infrequent under the influence of a better right. Post, p. 261. 2 Singleton v. Bolton, 3 Doug. 293. This supposes, of course, that the medicine was not patented. 8 Sj'kes V. Sykes, supra. 80 LAW OF TORTS. [Part I. the hotel, the plaintiff has the exclusive right to repre- sent that he has the patronage of the hotel. The defend- ant comuiits no breach of duty to the plaintiff, unless he so makes use of the designation upon his coaches as to indicate that the proprietor of the hotel has granted to him such a right of patronage.^ Slander of title originally was the name of an action for false and disparaging statements in regard to the plaintiff's title to land ; but in recent times the action and name have been extended to false and disparaging statements in regard to property of every kind, and that too whether the statements relate to title or to quality.^ The only real connection the action has with actions for slander (or libel) is in the name the action bears and in the structure of the declaration, which in following the declara- tion in slander has followed a false and misleading anal- ogy. The plaintiff in actions at law for slander of title has to prove that the statements are false, that they were made with actual malice, and that they have been followed by damage. 3 None of these things is required in actions for slander, as will be seen ; the requirement of them all shows the affinity of the action with the action for deceit. But slander of title may perhaps be more correctly described by saying that it marks the transition from fraud to malice. Malice in this wrong appears to mean the same thing as 1 Marsh v, Billings, 7 Gush. 322 ; s. c. L. C. Torts, 59. 2 Malachy v. Soper, 3 Bing. N. C. 371; Cases, 40 (title to person- alty) ; Gott V. Pulsifer, 122 Mass. 235 (quality of personalty, ' CardifT Giant'). 3 Gott V. Pulsifer, 122 Mass. 235 ; Malachy v. Soper, 3 Bing. N. C. 371 ; Cases, 40 ; Pater v. Baker, 3 C. B. 831, 868 ; Kendall v. Stone, 2 Satidf. 269 (reversed on another point 5 N. Y. 14) ; Stark v. Chitwood, 5 Kans. 141 ; McDanield v. Baca, 2 Cal. 868. See Mellin v. \Yhite, 1894, 3 Ch. 276, C. A. Chap. 1. § 7.] DECEIT. 81 malice in the class of cases next to be consitlered. Fraud is certainly a different thing, and yet it is probably true of this and of all other actions requiring proof of (actual) malice, that proof of fraud in the ordinary sense will satisfy the case.^ On the other hand, while malice may be proved by evidence short of fraud, it is clear that innocent misrepresentations are no more actionable in slander of title than in deceit. For example : the defendant, to the damage of the plaintiff, falsely states to a third person, with whom the plaintiff has made a contract for the sale of certain lands, that the plaintiff's ' title to those estates will hereafter, sooner or later, be contested. At the time they were sold by ' the plaintiff's vendor, ' he was not in a state of soundness or competency.' The defendant makes this statement in good faith, believing it to be true. This is no breach of duty to the plaiutitl'.^ 1 Malice here appears to be the doing of the act wilfully and inten- tionally, without just cause or excuse. See Ratcliffe v. Evans, 1892, 2 Q. B. 524, 527, Bowen, L. J. See also Mellin v. White, 1894, 3 Ch. 276, C. A. 2 Pitt V. Donovan, 1 Maule & S. 639. CHAPTER II. MALICIOUS PROSECUTION. § 1. Introductoky. Statement of the duty. A owes to B the duty to forbear to institute against bun a prosecution, with malice and witliout reasonable and probable cause, for an offence falsely charged to have been committed by B. 1. When a tennination of prosecution is referred to without further explanation, such a termination is meant as will, in connection with the other elements of the action, permit an action for malicious prosecution. 2. The word ' prosecution ' includes such civil actions as may be the subject of a suit for malicious prosecution. 3. The term ' probable cause ' is used for brevity, in this chapter for ' reasonable and probable cause.' ^ In order to maintain an action for a malicious prosecu- tion, three things are necessary, and possibly four, to wit, (1) the prosecution complained of must have terminated before the action for redress on account of it is begun ; (2) it must \\n.Y^e been instituted without probable cause ; (3) it must have been instituted maliciously ; (4) actual damage must be proved in cases in which the charge in itself would not be actionable, assuming that an action 1 There may be some slight difference in meaning in special cases, between ' reaf5onahle ' and 'probable' cause. See the huiguage of Tin- dal, C. J. in Broad v. Ham, 6 Biiig. N. C. 722, 725, quoted in Lister V. Ferryman, L. R. 4 H. L. 521, 530, 540. Ordinarily, however, the words are synonymous. Chap. II. § 2] MALICIOUS PROSECUTION. 83 for malicious prosecution is niaintainaljle ia such a case. And it devolves upon the plaintiff to prove all these facts. Actions for malicious prosecution are brought, for tlie greater part, only for wrongful criminal prosecutions. For a civil suit instituted of malice and without probable cause there is no redress,^ it seems, except in a few cases ; ^ and these appear, in the main, to be cases of actions invol- ving charges of ' scandal to reputation or the possible loss of libert}^,' ^ such as ' proceedings in bankruptcy against z trader, or the analogous process of a petition to wind up a compan}^''* and cases in which property has been attached maliciously and without probable cause, but pro- fessedly under attachment laws, or has been thus taken in replevin.^ But where there has been a wrongful arrest, there is ground for a suit for false imprisonment, though there may be none for malicious prosecution.^ § 2. Of the Termination of the Prosecution. The action for a malicious prosecution is given for the preferring in court of a Jalse charge, maliciously and without proper grounds. And, as it cannot be known 1 The rule in England is very clear, ' In the present, day, and ac- cording to our present law, the bringing of an ordinary action, how- ever maliciously, and however great the want of reasonable and probable cause, will not support a subsequent action for malicious prosecution.' Quartz Hill Mining Co. v. Eyre, 11 Q. B. Div. 674, (3S)0, Bowen, L. J. But there are some exceptions, as in cases involving false imputations touching business reputation. See id. p. 691. Actions for malicious civil suits are more common in the United States. See Cooley, Torts, 217-220, 2d ed. 2 See however Closson v. Staples, 42 Vt. 209. Further see Bicknell V. Dorion, 16 Pick. 478, 488-490 ; Cardival v. Smith, 109 Mass. 158. '^ 11 Q. B. Div. 691, Bowen, L. J. ; Pollock, Torts, 279, 2d ed. 4 Pollock, 279 ; 11 Q. .B. Div. 691. 5 Fortman v. Rottier, 8 Ohio St. 548. See O'Brien v. Barry, 106 Mass. 300 ; Johnson v. King, 64 Texas, 226. « Chapter vii. 84 LAW OF TORTS. [Part L by satisfactory evidence whether the charge is true or false before the verdict aad judgment of the court trying the cause, it is deemed necessary for tlie defendant to await the termination of the proceeding before instituting an action for malicious prosecution. Or, as the reason has more commonly been stated, if the suit for the alleged malicious prosecution should be permitted before the prosecution itself is terminated, inconsistent judgments might be rendered, — a judgment in favor of the plaintiff in the action for the prosecution and a judgment against him in that prosecution ; ' and it is often said that judg- ment against the party prosecuted would show, and that conclusively, that there was probable cause for the prosecution.^ It will be seen in the next section (relating to probable cause) that this is an erroneous view of the effect of the judgment. But since conviction would show that the charge was not false, it would be fatal to any action for malicious prosecution. This is true even though the prosecution take place in a proceeding from which there is no appeal. Con- viction in such a case is equally fatal with a conviction in a tribunal from the judgment of which the defendant has a right of appeal ; since to allow the action for malicious pros- ecution would be (so it is deemed) virtually to grant an ap- peal ; a thing contrary to law in the particular case. For example : The defeudaut procures the plaintiff to be ar- rested (falsely, maliciously, and without probable cause, as the latter alleges) and tried before a justice of the 1 Fisher v. Bristow, 1 Doug. 215. 2 Parker v. Farley, 10 Cush. 279, 282; Morrow v. Wheeler & W, Manuf. Co., 165 Mass. 349 ; Castrique v. Behrens, 3 El. & E. 709. See Besebe v. Matthews, L. R. 2 C. P. 684 ; 1 Smith's Leading Cases, 258, 6th ed. But an action for malicious prosecution against the present plaintiff, by proceedings against him in bankruptcy, may be maintained notwithstanding an adjudication against him, if this has been set aside. Metropolitan Bank v. Pooley, 10 App. Cas. 210. Chap. II. § 2.] MALICIOUS PROSECUTION. 85 peace on a criminal complaint of assault and battery. The plaintiff (then defendant) is convicted, and no appeal is allowed by law. The defendant is not liable for mali- cious prosecution.* It is often said that the plaintiff must have been acquitted of the charge preferred, to enable him to sue for malicious prosecution. But this, though a clear rule of law to a certain extent, is by no means universally true.^ An acquittal would, indeed, be a bar to another prosecution for the same cause ; while anything short of an acquittal in fact or in law would leave the accused still liable to trial. Nevertheless, there are several classes of cases in regard to which it is not necessary that the proceedings in the prosecution in question should have gone the length of an acquittal. These will now be shown. It is not necessary, it seems, to the termination of a civil suit, such as will permit an action for malicious pros- ecution, that the suit should have gone to actual judg- ment, or even to a verdict by the jury. A civil suit is entii-ely within the control of the plaintiff, and he may withdraw and terminate it at any stage ; and, should he take such a step, the suit is terminated. For example : The defendant (in the suit for malicious prosecution) writes in the docket book, opposite the entry of the case against the plaintiff, ' Suit witlidrawn.' This is a suffi- cient termination of the cause for the purposes of the now plaintiff.^ It is not necessary, indeed, that the party should make a formal entry of the withdrawal or dismissal of the suit, in order (without a judgment or verdict) to terminate it 1 Besebe v. Matthews, L. R. 2 C. P. 684. 2 Briggs V. Burton, 44 Vt. 124, 143 ; Graves v. Dawson, 130 Mass. 78, infra, pp. 87, 88. 8 Arundell v. White, 14 East, 216. 86 LAW OF TORTS. [Part L sufficiently for the purposes of an action by the opposite party. Any act, or omission to act, which is tantamount to a discontinuance of the proceeding has the same effect. For example : The defendant, having procured the arrest of the plaintiff in a civil cause, fails to enter and prose- cute his suit. This is a termination of the proceedino-.^ If, however, the (civil) prosecution went to judgment, the judgment must have been rendered in favor of the de- fendant therein, in order to enable him to sue for malicious prosecution. Judgment against the defendant would con- clusively establish the plaintiff's right of action ; ^ it could not, therefore, be treated as a false prosecution ^ though it might have been attended with malice, — unless, indeed, it was concocted in fraud.* In a criminal trial the situation is, indeed, different. Such a proceeding is instituted by the pultlic, and, when by indictment, is under the control of the attorney- general, or other prosecuting ofhcer ; it is never under the control of the prosecutor. He has no authority over it ; and, this being the case, he cannot, in principle, be bound by the action of the prosecuting officer. Should such officer, therefore, enter a dismissal of the suit before the defendant, having been duly indicted, has been put in jeopardy, this act, it seems, gives no right to the pris- oner against the prosecutor. The course of proceeding was not arrested by the prosecutor, and he has a right to insist that the law shall take its regular course, and place the prisoner in jeopardy, before he shall have the power to seek redress. For example : The defendant procures 1 Cardival v. Smith, 109 Mass. 158. 2 O'Brien v. Barry, 106 Mass. 300, 304. ^ Id. Or, as the case is sometimes put, judgment for the plaintiff would sliow that he had probable cause lor the prosecution, a point to be considered hereafter. * Burt V. Place, 4 Wend. 591 ; Payson v. Caswell, 22 Maine, 212. Chap. II. §2.] MALICIOUS PROSECUTION. 87 the plaintiff to be indicted for arson. The prosecuting olficer, failing to obtain evidence, enters a ' nolle prosequi ' before the jury is sworn. The i)rosecution is not termi- nated in favor of the prisoner.^ If, however, the prosecution was arrested by the grand jury's finding no indictment upon the evidence, and the consequent discharge of the prisoner, this is, it seems, an end of the prosecution, such as will enable hira (other ele- ments present) to bring the action under consideration.'^ And the same is true when the prosecution is begun by complaint before a magistrate who has jurisdiction only to bind over or discharge the prisoner. The magistrate's entry that the prisoner is discharged entitles him, so far, to bring an action. And this is true, though the prose- cutor withdraw his prosecution. For example : The de- fendant prefers against the plaintiff a charge of forgery before a justice of the peace, who has authority only to bind over or discharge the prisoner. The justice's min- utes contain the following entry : ' After full hearing in the case, the complainant withdrew his prosecution, and it was thereupon ordered ' that the plaintitf be discharged. An action for malicious prosecution is now proper.^ In none of the foregoing classes of cases has there been an acquittal of the party prosecuted, or anything tanta- mount in law to an acquittal. To be acquitted in a pros- ecution for crime (the only case calling for remark), the 1 Bacon v. Towne, 4 Cush. 217. It has sometimes been said that the accused cannot sue in any case in which a 'nolle prosequi' has been entered, — that he must show a verdict of acquittal. Parker v. Farlej^ 10 Cush. 279 ; P>r()wn v. Lakeman, 12 Cush. 482 ; Cardival v. Smitli, 109 Mass. 158. But that doctrine has been overturned in the State in which it was laid down. Graves v. Dawson, 130 Mass. 78 ; .s. c. 133 Mass. 419. See also Driggs v. Burton, 44 Vt. 124, 143. Further as to ' nolle prosequi ' see Commonwealth v. Tuck, 20 Pick. S.'iS, 365. 2 See Byne v Moore, 5 Taunt. 187 ; s. c. L. C. Torts, 181. * Sayles v. Briggs, 4 Met. 421. 88 LAW OF TORTS. [Part L accused must have been put in jeopardy ; but a state of jeopardy is not reached until tlie swearing of the petit jury. Hence if acquittal were necessary, an action for malicious prosecution could not be instituted upon the failure of the grand jury to find an indictment, or upon the discharge of a magistrate who has no power to con- vict. In neither case has the prisoner been in jeopardy. The fact appears to be that, notwithstanding the language of some of the judges, a termination of the proceedings with an acquittal, actual or virtual, is necessary only in case of an indictment or information against the prisoner. In other cases, it is only necessary that the prosecution should be dismissed.^ By way of summary, the various rules of law may be thus stated : A civil suit is terminated (1) when the plain- tiff has withdrawn, or otherwise discontinued, his action ; or (2) when judgment has been rendered in favor of the 1 The rule requiring an acquittal of the party prosecuted is founded, it seems, upon an early Englisli statute entitled ' Malicious Appeals.' Westm. 2, c. 12 ( 13 Edw. 1). By tliis statute it was ordained that when any person maliciously 'appealed [that is, accused and prosecuted] of felony surmised upon liim, dotli acquit himself in the King's Court in due manner,' &c., the appellor shiill be imprisoned and be liable in damages to the injured party. A few years later statutes were passed against conspiracies to indict persons maliciously. L. C. Torts, 190. Between these statutes and the statute first mentioned, and taking its shape from them, the action for malicious ju'osecution arose. Had not the statutes been lost sight of in the modern authorities, the explana- tion of the subject would have been more satisfactory than it has some- times been. The various statutes applied to cases of prosecutions for felony alone ; in such cases it was provided that ac([uittal was neces- sary. All other cases stand, so far as the statutes affect the law, as at common law. Prosecutions for misdemeanors, prosecutions before in- ferior courts, and civil prosecutions are left to the wisdom of the judges (except those falling within the statute of Malicious Distresses in Courts Baron, which required proof only of malice and a false com])laint. L. C. Torts, 192). Chap II. § 3.] MALICIOUS PROSECUTION. 89 defendant. A criminal suit is terminated (1) -Rlien the prosecution, if brought before a magistrate, has been dis- missed, or (2) wlien, if preferred before the grand jin-y, that body has found no indictment; or (3) when, an in- dictment having been found, and tlie prisoner having been put in jeopardy, a verdict acquitting the prisoner has been rendered or is called for by law. Perhaps tiie pris- oner should also have been discharged ; but he is entitled to a discharge in all these eases. § 3. Of the Waxt of Probable Cause. Supposing the plaintiff to have begun his action after the termination of the prosecution, it then devolves upon him further to establish the defendant's breach of duty by showing that he instituted the prosecution without proba- ble cause. ^ And this appears to mean that he ought to show that no such state of facts or circumstances was known as would induce one of ordinary intelligence and caution to believe the charge preferred to be true.^ Or, conversely, probable cause for preferring a charge of crime is shown by ' facts which would create a reasonable suspicion in the mind of a reasonable man.'^ To act, therefore, on very slight circumstances of sus- picion, such as a man of caution would deem of little weight, is to act without probable cause. For example : The defendant procures the arrest of the plaintiff upon a charge of being implicated in the commission of a robbery, which in fact has been committed by a third person alone, who absconds. The plaintiff, who has been a fellow- 1 Turner v. Ambler, 10 Q. B. 2.^2. 2 Driggs V. Burton, 44 Vt. 124 ; Boyil v. Cross, 35 Md. 194. 3 Broughton v. Jackson, 18 Q. B. 378 ; Banton v. Williams, 2Q. B. 169, Ex. Ch. ; Boyd v. Cross, supra ; Eanisey v. Arrott, 64 Texas, 320. 90 LAW OF TORTS. [Part L workman with the criminal, has been heard to say that he (the phiintil'f) had been told, a few hours before the rob- bery, that the robber had absconded, and that he had told the plaintiff that he intended to go to Australia. The robber has also been seen, early in the morning after the robbery, coming from a public entry leading to the back door of the plaintiff's house. The defendant has no probable cause for the arrest.^ But though the prosecutor be in a situation to show that he had probable cause, so far as regards the strength of his information, still if he did not believe the facts and rely upon them in procuring the arrest, he has committed a breach of duty towards the person arrested. For ex- ample : The defendant goes before a magistrate and pre- fers against the plaintiff the charge of larceny, for which there was reasonable ground in the facts within the de- fendant's cognizance. The defendant, however, does not believe the plaintiff guilty, but prefers the charge in order to coerce the plaintiff to pay a debt which he owes to the defendant. The defendant has acted without probable cause. '^ The question of probable cause is to be decided by the circumstances existing at the time of the arrest, and not by the turn of subsequent events ; ^ such at all events is the general rule. If the defendant had at that time such grounds for supposing the plaintiff guilty of the crime charged as would satisfy a cautious man, he violates no 1 Busst V. Gibbons, 30 Law J. Ex. 75. Comp. Lister v. Ferryman, L. R. 4 H. L. 521, as to hearsay. 2 Broad v. Ham, 5 Bing. N. C. 722. Had the defendant believed the charge, would it have been material that he procured the arrest mainly for the purpose of getting his pay ''. 8 Swain v. Stafford, 4 Ired. 392 and 398 ; Delegal v. Highley, 3 Bing. N. C. 950. But see Adams v. Lisber, 8 Blackf. 241 ; Hickman V. Griffin, 6 Mo. 37. See L. C. Torts, 198-200. CuAP. II. § 3] MALICIOUS PROSECUTION. 91 duty to the plaintiff in procuring his arrest, though such grounds be immediately and satisfactorily explained away, or the truth discovered by the prosecutor himself. For example : The defendant procures the plaintiff to be arrested for the larceny of certain ribbons, on reasonable grounds of suspicion. He afterwards finds the ribbons in his own possession. He is not liable.^ On the other hand, in accordance with the same princi- ple, if the prosecutor was not possessed of facts justify- ing a belief that the accused was guilty of the charge, it matters not that subsequent events (short of a judgment of conviction, as to which presently) show that there ex- isted, in fact, though not to the prosecutor's knowledge, cu'cumstances sufficient to have justified an arrest by any one cognizant of them. He has violated his duty in pro- curing the arrest. For example : The defendant to aa action for malicious prosecution shows facts sufficient to constitute probable cause, but does not show that he was cognizant of such facts when he procured the plaintiff's arrest. The defence is not good.^ It has, however, been declared that conviction is con- clusive evidence of the existence of probable cause , ^ and this though the verdict is afterward set aside and, upon a new trial, an acquittal follows.^ But this, it will be seen, is inconsistent with the rule that the question of probable cause is to be determined by the state of facts within the prosecutor's knowledge (supposing him to have acted bona fide upon such facts) at the time of the arrest. Con- viction does not, in point of fact, prove that the prose- 1 Swain v. Stafford, 4 Ired. 392 and 398. 'i Delegal v. Highley, 3 Bing. N. C. 950. 8 Whitney v. Peckham, 15 Mass. 243 (by a trial magistrate) ; Par- ker V. Farley, 10 Gush. 279, 282. See ante, p. 84. Contra, Burt v. Place, 4 "Wend. 591 ; Metropolitan Bank v. Pooley, 10 App. Cas. 210, ante, p. 84, note. * Whitney o. Peckham, supra. See also Parker v. Farley, supra. 92 LAW OF TORTS. [Pakt L cutor at the time had reasonable grounds to suspect the guilt of the prisoner ; such grounds, that is, as would have induced a cautious man to arrest the suspected per- son. It would, it seems, be more accurate to say that the old Statute of Malicious Appeals, which in reality lies at the foundation of the law concerning criminal prosecu- tions, by plain implication exempted the prosecutor (of felony) from liability in case of the conviction of the prisoner.^ There are other seeming anomalies relating to this phase of probable cause ; one of them is found in the effect accorded by some courts to the action of the grand jury, or to that of a magistrate who has power only to bind over the accused for trial. That action is said to furnish prima facie (i.e. sufficient) evidence in regard to probable cause, in a suit for malicious prosecution. P'or example : The now defendant prosecutes the now plaintiff before the grand jury, on a charge of larceny, and the grand jury throws out the bill. This is deemed prima facie evidence of want of probable cause in the pres- ent suit.'^ Again : A magistrate binds over a person ac- 1 Ante, p. 88, note. If the forgotten statute be followed, this will "be true only in cases of conviction of what was felony at common law. In other cases the conviction could not, by the statute, bar an action ; nor could it bar an action for malicious prosecution on grounds of es- toi>i)el, because the parties to the two actions are different ; the crimi- nal suit being between the State and the prisoner. The judgment could not, properly taken, be more than prima facie evidence of proba- ble cause, even if, of itself alone, it could be considered as amounting to any evidence on that point. The question before the petit jury, as has elsewhere been observed (post, p. 94, note), is, not whether there was probable cause for the arrest, within tli(> knowledge of the prosecutor, but whether the prisoner is guilt)^ However, the language of many of the decisions is that the conviction is conclusive of probable cause ; and the author at one time considered this to be correct. L. C. Torts, 196, 197. See ante, p. 84. 2 See Nicholson v. Coghill, 6 Dowl. & R. 12, 14, Holroyd, J. ; Chap. II. §3.] MALICIOUS PROSECUTION. 93 cused of crime, who is afterwards tried and acquitted. This is deemed prima facie evidence of probable cause in an action against the prosecutor for malicious prosecution.^ Other courts have taken a ditfereut view of the matter, denying that the action of the grand jury or of the magis- trate is sufficient evidence in the action for malicious prosecution. How can it be, they say in effect, that what is no evidence at all before the grand jury or the magis- trate in the same case can be prima facie evidence before a petit jury in a different case ? ^ To this reasoning it might be added that the grand jury or the magistrate does not consider what prompted the prosecutor, but whetlier there is now sufficient evidence to justify holding the accused further for trial. But the contrary doctrine, after all, is only a doubtful application of the rule of the relevancy of a later fact to prove an earlier, and hence may be thought not inconsistent with the true meaning of probable cause. Further, it has been seen^ that in certain peculiar cases an action for a malicious civil suit may be brought. Now while it is held that the mere omission to appear and prosecute an action, whereby the defendant obtains a judgment of nonsuit, is no evidence of want of probable cause,* it is deemed that a voluntary discontinuance, bei.ng a positive act,^ may show prima facie evidence of the same. For example (taking a case from the old law which permitted an arrest in an ordinary civil suit) : The Broad v. Ham, 5 Bing. N. C. 722, 727, Coltman, J. ; Bostick v. Kutheifoid, 4 Hawks, 83 ; Williams v. Norwood, 2 Yerg. 329. 1 Bacon v. Towne, 4 Cush. 217 ; Graham v. Noble, 13 Serg. & R. 270 ; Burt v. Place, 4 Wend. 591. See Reynolds v. Kennedy, 1 Wils. 232; Sutton v. Jolinstone, 1 T. R. 493, 505, 506. '■^ Israel v. Brooks, 23 111. 575. 8 Ante, p. 83. * Sinclair v. Eldred, 4 Taunt. 9 ; Webb v. Hill, 3 Car. & P. 485. 6 Sed qu. of the relevancy of such fact. 94 LAW OF TORTS. [Part L now defendant procures the now plaintiff to be arrested and held to bail in an action on contract. The case comes on for trial very shortly afterwards, and the plain- tiff discontinues his suit. This is deemed prima facie evidence of want of probable cause. ^ Again, the mere abandonment of the prosecution by the prosecutor, and the acquittal of the prisoner, are no evidence of a want of probable cause. '^ 8uch facts in themselves show nothing except that the prosecution has failed. It may still have been undertaken upon reasona- ble grounds of suspicion.^ Still, the circumstances of the abandonment ma^- be such as to indicate prima facie a want of probable cause. For example : The defendant presents two bills for perjurv against the plaintiff, but does not himself appear before the grand jur}', and the bills are ignored. He presents a third bill, and, on his own testimony, the grand jury return a true bill. The defendant now keeps the prosecution suspended for three j-ears, when the plaintiff, taking down the record for trial, is acquitted ; the defendant declining to appear as a witness, though in court at the time and called upon to testify. These facts indicate the absence of probable cause.'* If the prosecutor takes the advice of a practising law- yer upon the question whether the facts within his know- ledge are such as to justify a complaint, and acts bona fide upon the advice given, he will be protected even 1 Nicholson v. Coghill, 6 Dowl. & R. 12 ; Webb v. Hill, 3 Car. & P. 485. 2 Willans v. Taylor, 6 Bing. 183 ; Vanderbilt v. Mathis, 5 Duer, 304 ; Cases, 58 ; Johnson v. Chambers, 10 Ired. 287. ^ The magistrate or grand jury decides whether there is reasonable ground for putting the prisoner upon trial ; the petit jury decides wlietlicr tlie prisoner is guilty. * Willans v. Taylor, (J Bing. 183. Chap. IL§3.] MALICIOUS TROSECUTION. 95 though tha counsel gave erroneous advice.^ That is, lie will be protected, though he might not have been in possession of facts such as would have justified a prose- cution without the advice. For example : The defend- ant states to his attorney the facts in his possession concerning a crime supposed to have been committed by the plaintiff. The attorney advises the defendant that he can safely procure the plaintiff's arrest. The defend- ant is not liable, though the facts presented did not in law constitute probable cause. ^ The prosecutor must, however, as the proposition itself states, act bona fide upon the advice given, if he rest his defence upon such a ground alone. P'or exam- ple : The defendant procures the arrest of the plaintiff, having first taken the advice of legal counsel upon the facts. This advice is erroneous, and it is not acted upon in good faith believing it to be correct ; the arrest being procured for the indirect and sinister purpose of com- pelling the plaintiff to sanction the issuance of certain illegal bonds. The defendant is liable."'' If, after taking legal advice and before the arrest, new facts come to the knowledge of the prosecutor, he cannot justify the arrest as made on advice, unless such new facts are consistent with the advice which has been given. If they should be of a contrary nature, cast- ing new doubt upon the party's guilt, the proseciitor cannot safely proceed to procure an arrest except upon new advice ; unless indeed the entire chain of facts in his possession shall satisfy the court that there existed • Cooper V. Utterbach, 37 Md. 282 ; Ohiistead v. Partridge, 16 Gray, 381 ; Cole v. Curtis, 16 Minn. 182 ; Kuvenga v. Mackintosh, 2 B. & C. 693 ; Snow v. Allen, 1 Stark. 502. 2 Snow V. Allen, supra. 3 Kavcnga v. IMackintosh, 2 B. & C. 693. See Hewlett v. Cruchlej', 5 Taunt. 277, 283. 96 LAW OF TORTS. [Paet L a reasonable ground for his action. To make use of the advice given, when the new facts indicate that the accused is not guilty, would not be to act upon the advice in good faith. ^ Again, if the only defence be that the prosecutor acted upon legal advice, a breach of duty may still be made out if it appear that the prosecutor untruly stated to the counsel the facts within his knowledge. The plaintiff's case, so far as it rested on the proof of want of probable cause, would be established by showing that the actual facts known to the prosecutor (differing from those on which the advice was obtained) showed that he had no reasonable ground for instituting the prosecution. The result is, that the defence of advice of legal coun- sel, to establish probable cause, must not be resorted to as a mere cover for the prosecution, but must be the result of an honest and fair purpose ; and the statement made at the time by the prosecutor to his counsel must be full and true, and consistent with that purpose.'^ This defence of having acted upon legal advice is, it seems, a strict one, confined to the case of advice obtained from lawyers admitted to practise in the courts. Such persons are certified to be competent to give legal advice, and their advice when properly obtained and acted upon is conclusive of the existence of probable cause. But if the prosecutor act upon the advice of a person not a lawyer, and therefore not declared competent to give legal advice, the facts must be shown upon which the advice was obtained, however honestly and properly it was sought and acted upon. It is not enough that the advice was given by an officer of the law, professing familiarity with its principles, if such a person were not 1 See Fitzjohn v. Mackinder, 9 C. B. N. s. 505, 531, Ex. Ch. Cock- burn, C. J. ; Cole I'. Curtis, 16 Minn. 182. » Walter v. Sample, 25 Penn. St. 275. Chap. II. § 4.J MALICIOUS PROSECUTION. 97 a lawyer. For example : The defendant procures the arrest of the plaintiff iii)on advice of a justice of tlie peace, with whom he has been in the habit of advising on legal matters ; but the justice is not a lawyer. This is not evidence of probable cause. ^ The want of probable cause is not to be inferred because of mere evidence of malice, since a person may maliciously prosecute another whom he has the strongest evidence against ; whom, indeed, he may have caught in the com- mission of the crime. ^ There must be some evidence indicating that the prosecutor instituted the suit under circumstances which would not have induced a cautious man to act. It should be observed, finally, that it is necessary for the plaintiff, even in a jury case, to convince the judge of the want of probable cause upon the facts proved. The facts material to the question of probable cause must be found by the jury; but the judge decides whether the facts so found establish probable cause or want of it.' § 4. Of Malice. To make out a breach of duty b}' the defendant, the plaintiff must also produce evidence that the prosecu- tion was instituted with express or actual malice towards the accused.^ Malice is not to be inferred because of 1 Beal V. Robeson, 8 Ired. 276. * Turner v. Ambler, 10 Q. B. 252, 257 ; Boyd v. Crosp, 35 Md. 194. 8 Panton v. Williams, 2 Q. B. 169, Ex. Ch. ; Lister v. Perryman, L. R. 4 H. L. .521 ; Abrath v. Northeastern Ry. Co. 11 App. Cas. 247 ; Dietz V. Langfitt, 63 Penn. St. 234 ; Driggs v. Burton, 44 Vt. 124 : Boyd V. Cross, supra. * Vanderbilt v. Mathis, 5 Duer, 304 ; Cases, 58 ; Pangburn v. Bull, 1 Wend. 345 ; Carson v. Edgeworth, 43 Mich. 241 ; Dietz v. Langfitt, 63 Penn. St. 234. 7 98 LAW OF TORTS. [Part L mere proof of a want of probable cause, ^ any more than want of probable cause is to be inferred because of mere proof of malice ; it may be inferred as a fact from want of probable cause, but it is not a necessary inference.^ A man may institute a prosecution against another with- out the least motive of malice towards him, though he had no sufficient ground for doing so.^ The jury must be allowed, and it is their duty, to pass upon the question of malice as a distinct matter. There is, therefore, no such thing in the law of malicious prose- cution as implied malice or malice in law.^ For exam- ple : Evidence having been introduced in an action for a malicious prosecution, which showed that the defendant had instituted the prosecution without probable cause, the judge instructs the jury that there are two kinds of malice, malice in law and malice in fact, and that in the present case there was malice in law because the prosecution was wrongful, being without probable cause. Tliis is errone- ous ; the existence of malice is a question for the jury,^ It is not necessary, however, notwithstanding the lan- guage of some of the old decisions,® to prove the existence of an intense hostility and rancor ; evidence of slight hos- tility, or of the existence of any sinister motive, or indi- rect motive of wrong, is sufficient. For example : The defendant is shown to have gone out of his way in a prosecution of the plaintiff, by publishing the proceed- ings against him. This is evidence of malice.'' 1 Yanderbilt v. Matliis, 5 Duer, 304 ; Cases, 58 ; Griffin v. Chuhb, 7 Texas, 603, -617. 2 Carson v. Edgeworth, 43 Mich. 241 ; Dietz v. Langfitt, 63 Penn. St. 234. 8 Griffin v, Chubb, supra, at p. 61 6. * Mitchell V, Jenkins, 5 B. & Ad. 588 ; Carson v. Edgeworth, supra. 5 Mitchell V. Jenkins, supra. 6 Savil V. Roberts, 1 Salk. 13. "> Chambers v. Robinson, 2 Strange, 691. See Stevens v. Midland Chap. n. §5.] MALICIOUS PROSECUTION. 99 § 5. Of Damage. If the charge upon which the prosecution was instituted was such as (being untrue) would have constituted action- able slander liad it not been preferred in court, the plain- tiff, upon proof of the termination of the prosecution, the want of probable cause, and malice, has made out a case, and is entitled to judgment. It is not necessary for him to prove that he has sustained any pecuniary damage. For example : The defendant causes the plaintiff to be indicted for the stealing of a cow, falsely, without proba- ble cause, and of malice. The plaintiff is entitled to re- cover without producing evidence that he has sustained any actual damage.^ But it has been decided that it is only for the prose- cution of a charge the mere oral imputation of which would constitute actionable slander that the institution of the prosecution can be actionable without damage.^ For example ; The defendant falsely prefers against the plaintiff a simple charge of assault and battery, with- out cause and with malice. The plaintiff cannot re- cover for a malicious prosecution without proof of special damage. Ry. Co. 10 Ex. 356, that by the term * malice ' is meant any indirect motive of wrong. ' Any motive other than that of simply instituting a prosecution for the purpose of bringing a person to justice is a malicious motive.' And see Abrath v. North Eastern Ry. Co. 11 Q. B. Div. 440, 450, where Bowen, L. J. speaks of proceedings ' initiated in a malicious spirit, that is, from an indirect and improper motive, and not in further- ance of justice.' See also Gabel v. Weisensee, 49 Texas, 131 ; Culbert- son V. Cabeen, 29 Texas, 247. 1 See Frierson v. Hewitt, 2 Hill (S. Car. ), 499 ; Byne v. Moore, 5 Taunt. 187, Mansfield, C. J. ; s. c. L. C. Torts, 181. 2 Byne v. Moore, supra. See Quartz Hill Mining Co. v. Eyre, 2J Q. B. biv. 674, 692. 3 Byne v. Moore, supra. 100 LAW OF TORTS. [Pabt I. It follows that this action for a malicious prosecution cannot be maiutained without proof of damage when the prosecutor has procured the indictment of the plaintiff for the commission of that which is not a criminal offence. For example : The defendant procures the plaintiff to be indicted for the killing of the former's cattle. The plaintiff must prove special damage ; the offence, though charged as a crime, being only a trespass.^ § 6. Of Kindred Wrongs. If the prosecution fail b}' reason of the circumstance that the court in issuing its warrant exceeded its jurisdic- tion, or that the warrant or indictment was defective, it might not be clear in principle whether the accused should sue for malicious prosecution or for slander ; supposing the charge to have been defamatory. It would give him an obvious advantage to sue for slander, since then he would not be compelled to prove a want of probable cause or the existence of malice ; and the proper remedy is deemed to be an action for malicious prosecution.^ In this connection attention should be directed to ac- tions for abuse of the process of the courts. An action is given by law for such an act without requiring the plain- tiff to prove either the termination of the proceeding in which the abuse of process has taken place, or the want 1 Frierson v. Hewitt, 2 Hill (S. Car.), 499. 2 Pippet V. Hearn, 5 B. & Aid. 634 ; Morris v. Scott, 21 Wend. 281 ; Stone v. Stevens, 12 Conn. 219 ; Hays v. Younglove, 7 B. Mon. 545 ; Shaul v. Brown, 28 Iowa, 37. See Braveboy v. Cockfield, 2 McMuU. 270 ; Turpin v. Keniy, 3 Blackf. 210. Contra, Bixby v. Brundige, 2 Gray, 129. If the supposed court was no court known to the law, as e. g. if it was only some self-constituted body like a vigi- lance committee, an action for defamation could probably be main- tained ; of course au action for false imprisonment would be proper. CiiAP. II. §6.J MALICIOUS PROSECUTION. 101 of probable cause for instituting tliat proceeding. For example : The defendant under process of the court in an action for a debt not due, procures the plaintiff through duress to deliver valuable property (a ship's register) to him. The defendant is liable in damages, without evi- dence of the termination of the suit or of the want of probable cause. ^ Nor (probably) need malice be proved, apart from the abuse of process. To maintain such an action, however, the plaintiff's case must be something other than a proceeding for a malicious prosecution. The ground of action must be, not a false prosecution (that is, a prosecution upon an accusation which has been tried and not sustained), but an unlawful use of legal process ; and such an act may be committed as well in the course of a well-founded prose- cution as in a false one. If the wrong suffered consist in an unlawful arrest, the action will be for a false imprisonment, of which here- after, or for a malicious arrest ; ^ if it consist in an unlaw- ful extortion of a contract or of property, the action will in substance be for duress, an example of which has already been given.' Other instances may be found in actions for malicious issuance of a warrant,* the levying of an execution for far more than is due,^ the malicious 1 Grainier v. Hill, 4 Bing. N. C. 212 ; s. c. L. C. Torts, 184. 2 Jeiiiiigs V. Florence, 2 C. B. n. s. 467. See 32 & 33 Vict. c. 62. § 18: Daniels v. Fielding, 16 M. & W. 200; Gibbons v. Alison, 3 C. B. 181. 3 In case a contract were thus obtained, the injured party could elect to affirm the validity of the contract, and sue for the duress, or he could deny the validity of the agreement, and plead the duress in an action upon it. * Cooper %\ Booth, 3 Esp. 135 : Phillips v. Naylor, 4 H. & T^\ 565. 5 Churchill v. Siggers, 3 El. & B. 938 ; Jenings t?. Florence, supra; Somner v. "Wilt, 4 Serg. & R. 19 ; Hilliard v. 'WilBon, 65 Texas, 286. 102 LAW OF TORTS. [I'art L or otherwise wrongful levy of an attachment,^ and the malicious causing an execution to issue against one on behalf of the public.'^ These are cases of the wrongful resort to rather than of abuse of process. Recent English decisions have also brought to light the existence of a right of action for maintenance.* This is a tort founded upon early statutes making maintenance a criminal offence ; * an action for damages being permitted only where the defendant has aided the prosecution of some suit in which he had no interest, or, it seems, motive other than that of stirring up or keeping alive strife. It has lately been decided that if the defendant's conduct was based on charity, reasonable or not, the action will fail.5 1 Zinn V. Rice, 154 Mass, 1 ; Stewart v. Cole, 46 Ala. 646; Spengler V. Davy, 15 Gratt. 381. 2 Craig V. HaseU, 4 Q. B. 481. 8 Bradlaugb v. Newdegate, 11 Q. B. D. 1 ; Harris v. Brisco, 17 Q. B. Div. 504; Metropolitan Bank v. Pooley, 10 App. Cas. 210. * It is doubtful if a corporation can be liable for tbe otfence. 10 App. Cas. at p. 218, Lord Selborue. ^ Harris v. Brisco, supra. CHAPTER liL CONSPIRACY. § 1. Introductory. Statement of the duty. A owes to B the duty to forbear to carry out, wholly or partly, agaiust him, to his damage, any unlawful conspiracy entered into with C. The law of conspiracy, in its civil aspect, has been treated as a branch of the law of malicious prosecution ; and with that subject it has, indeed, in one of its features, a close connection. Civil actions for conspiracy were for- merly instituted, in most cases, for redress on account of unlawful combinations for instituting criminal prosecu- tions of the grade of felony. Combinations for other unlawful purposes were redressed in other forms of ac- tions ; generally, it appears, In an action of deceit, some- times, however, in an action of trespass. Distinct and peculiar rules of law prevailed in former times concerning conspiracies of the first-named class. A writ of conspiracy could be sustained only b}' proof of an actual combination to indict tlie plaintiff of felony, with the other elements of an action for malicious prosecution. Failure to prove tiie combination was fatal, even though enough were proved to establish a right of action for a simple false prosecution. The action for the latter of- fence was a distmct proceeding. In later times the writ 104 LAW OF TORTS. [Part I of conspiracy was employed for the redress of prosecu- tions below the grade of felouy ; and then it came to be considered unnecessary, in such an action, to establish an actual combination, notwithstanding the allegation of con- spiracy. The law, however, relating to prosecutions for felony remained as before, and the plaintiff failed if the evidence showed that the prosecution was instituted or procured by but one person.^ This distinction, however, has in modern times become obsolete. An action for an alleged conspiracy can now be maintained in any case otherwise proper, though the plaintiff be unable to prove that the unlawful act com- plained of was undertaken by more than one person.* The result is, that conspiracy' as a ground of civil liability has nearly disappeared from the law,^ leaving little else than a phase of agency.^ The existence, then, of an ac- tual couspii'acy being unnecessary to the plaintiff's action, nothing remams, if he prove against but one person, except that which would be the ground of action agamst that person had he been alone sued. The case would then be nothing more than an action for deceit, malicious prosecution, false imprisonment, or other like tort, accord- ing to the nature of the wrong actually provable. But it would hardly be satisfactory to leave the subject here. If it be said of conspiracy, as it may be, that it is no longer a cause of civil redress even when damage has 1 See upon this subject the historical notes on malicious prosecu- tion and conspiracy, in tlie author's Leading Cases on Torts, pp. 190- 196, 210-214. 2 Savill V. Roberts, 1 Lord Raym. 374, 379 ; 1 Saund. 230, note ; Parker v. Huntington, 2 Gray, 124 ; Ilutchins v. Hutchins, 7 Hill, 104 ; Cases, 76. See Mogul Steamship Co. v. McGregor, 21 Q. B. D. 544 ; s. c. 23 Q. B. Div. 598. 8 The case is different with criminal liability ; that remains a great branch of the law. 4 See e. g. Page v. Parker, 43 N. H. 363. Chap. III. § 2.] CONSPIRACY. 105 followed, it may be answered that the same is true of malice generally ; nor is fraud alone a cause of action. And though conspiracy may not be an element of liability in the same sense that either of these may be, still there are cases where the defendant's liability turns wholly upon the question of tlie existence of a conspiracy and his participation therein. It may become important then to know whether in a particular case there has been a conspiracy. There are, indeed, three phases of the subject which make it important to consider conspiracy in a book on torts. First, the plaintiff may have so stated his case against a defendant, who did not in fact participate in the doing of the harm complained of, as to be unable to recover with evidence of anything, such as an ordinary agency, short of conspiracy ; ^ the existence of a con- spiracy has then become an element of his case. Sec- ondly, the case may be such that no damage could be inflicted, in the nature of things, without an unlawful combination.'^ Thirdly, it may be that in a case turning on malice, e. g. a case of malicious prosecution, the only means of proving the malice is to prove a conspiracy. § 2. Of Malice and the Combination. In the sense of the existing law, a conspiracy is simply a confederacy or combination of two or more persons to do an unlawful act, or to do a lawful act in an unlawful manner. The wrong is a phase of malice ; the conspiracy itself constituting, or at least forming evidence of, the malice alleged by the plaintiff.^ To make a party liable with others for a conspiracy re- 1 See Gregory v. Brmiswick, 6 Man. & G. 9.i3, 959. 2 Id. ; Moojul Steamship Co. v. McGregor, 1892, A. C. 25, 60. 8 Id. 205, 953. 106 LAW OF TORTS. [Part I. suiting in damage, he must either have onginally colhided with the rest, or afterwards joined them as an associate, or actually participated in the execution of the scheme, or afterwards adopted it. A defendant cannot be found guilty by evidence of mere silent observation, even with approval, of the conspiracy. For example : The defend- ant is shown to have been cognizant of, and to have (silently) approved, the unlawful enticing away of the plaintiff's daugliter. This is not sufficieut to establish a conspiracy and breach of duty ; the defendant not having thereby become a party to the plot.^ But it matters not, where the object of the unlawful combination is phmder and gain to the conspirators, tliat some of them derive no benefit from the execution of the scheme. They are equall}' liable, though the overt acts were committed by others who refused to divide, or failed to obtain, the spoil. For example : Several agents, of whom the defendant is one, conspire to injure their com- mon principal, and succeed ; the defendant is liable though he derives no benefit from the success.^ It is equally well settled that though there was no in- tention of making a profit out of the scheme, but only a desire to harass and inflict loss upon the plaintiff, the action is maintainable. For example : The defendant, an attorney, knowing that his client has no just claim against the plaintiff, maliciously and without probable cause, procures, in concert with his client, an arrest and civil prosecution of the plaintiff. The defendant is liable for the damage sustained by the plaintiff.^ Again, as has already been suggested, there may be cases in which the wrong could not be done without an unlawful combination ; * in such a case proof of conspiracy i Brannock v. Bouldin, 4 Ired. 61. 2 Walsham v. Staiuton, 1 De G. J. & S. 678. . 8 Stockley v. Hornidge, 8 Car. & P. 11. ♦ Mor,'ul Steamship Co. v. McGregor, 1892, A. C. 25, 60 ; Cases, 80, 93, 99 ; Lambton v. Mellisb, 1894, 3 Ch. 163. CuAP. III. § 3.] CONSPIRACY. 107 must, it seems, be made. Thus, one man alone could hardly succeed in hissing an actor off the stage ; and though others might join him, there would probably ]>e no redress, however unjust the act. But preconcert would make a different case. For example : The defendant and others conspire to prevent the plaintiff, an actor, from performing at a theatre, and, in pursuance of the con- spiracy, employ others to go to the theatre and interrui)t the plaintiff in his part, and the plan is carried out, to the damage of the plaintiff. The defendant is liable.-^ § 3. Of Damage. It is of the essence of liability for conspiracy, when conspiracy is made a ground of civil action, that it cause damage.^ For example : The defendants are alleged to have conspired together, maliciously and without probable cause, to institute, and tlien to have instituted, an action against the present plaintiff in the name of a third person, for their benefit. No damage is alleged. The plaintiff cannot recover.^ Again : The defendants conspire suc- cessfully, by false representations, to induce the plaintiff's father to revoke his will in favor of the plaintiff. The plaintiff sustains no damage in contemplation of law, as no legal right of the plaintiff was infringed.* 1 Gregory v. Brunswick, 6 Man. & G. 205, 953. See also Mogul Steamship Co. v. McGregor, 1892, A. C. 25, 45 ; Tempertou v. Rus- sell, 1893, 1 Q. B. 715, 729. 2 Cotterell v. Joues, 11 C. B. 713 ; Hutchins v. Hutchins, 7 Hill, 104 ; s. c. L. C. Torts, 207 ; Place v. Minster, 65 N. Y. 89 ; Kimball V. Harnian, 34 Md. 407. But not if the action would lie against one of the defendants without proving damage. * Cotterell v. Jones, suj)ra. * Hutchins v. Hutchins, supra; ante, pp. 12, 13. CHAPTER IV. MALICIOUS INTERFERENCE WITH CONTRACT. § 1. Introductory. Statement of the duty. A owes to B the duty to for- bear to induce, maliciousl}', C to break a contract between B and C, or to refuse to enter into contract with B, to B's damage. § 2. Of Malice. The subject of malicious interference with the contracts of others, causing a breach of them, is a tort of but re- cent distinct and settled recognition. To entice away a servant from his master has been wrongful from early times ; ^ but that, in England, is a statutory doctrine, ^ pe- culiar, probably, to the case of servants who labor with their hands.^ In such cases it is perhaps not necessary, in England, that the act of the defendant should have been malicious, further than that it was done with notice of the relation of master and servant. This is true also in America, as a matter of the American common law.* ^ See Lumley v. Gye, 2 El. & B. 216 ; s. c. L. C. Torts, 306. This case is an epitome of the history of the whole subject. See esptcially the dissenting opinion of Mr. Justice Coleridge. 2 Statute of Laborers, 23 Edw. 3. 8 Wightman, J. in Luraley v. Gye ; Bowen v. Hall, 6 Q. B. Div. 333- See Mogul Steamship Co. v. McGregor, 21 Q. B. D. 544 ; s. c. 23 Q. B. Div. 598; 1892, A. C. 25; Cases, 80. But see Walker y. Cronin, 107 Mass. 555, 567 ; Cases, 102. * Walker v. Cronin, supra, journeymen shoemakers. Chap. IV. § 2.] INTERFERING WITH CONTRACT. 109 In recent times it has been held that for a third person maliciously to induce a party to any kind of contract to break his promise to the plaintiff, or to refuse to make a contract with the plaintiff, is actionable, if actual damage ensue. For example : W is under an engagement with the plaintiff to sing exclusively at his theatre for a certain season. The defendant, ' maliciouslj' intending to injure the plaintiff,' induces W to break her contract and refuse to sing for the plaintiff during the time agreed upon, to the plaintiff's damage. This is a breach of dut}'.^ By a slight change of words this example ma}' be made an example of inducing W to refuse to contract with the plaintiff.''^ In such cases malice is considered necessary to the right of action. But what the term ' malice ' here means was not left clear by the case just cited. An expression of one of the justices in that case might indicate that to cause the breach, with notice of the existence of the contract, would be sufficient to constitute malice ; ^ but that would be to put a dangerous check upon common and generall}' deemed lawful acts of competition, and something more than this has accordingly been thought necessary.^ In a late reconsideration of the subject in a similar case of contract for exclusive services, not man- 1 Lumley v. Gye, 2 El. & B. 216 ; s. c. L. C. Torts, 306 ; Temperton V. Russell, 1893, 1 Q. B. 715, C. A. ; Cases, 109 ; Augle v. Chicago Ey., 151 U. S. 1, 13, 14. But see Boyson v. Thorn, 33 Pac. Kep. 492, Califoruia. 2 For an actual example of the kind, as well as of causing the breach of a contract, see Temperton v. Russell, supra. Also see Flood V. Jackson, 1895, 2 Q. B. 21, C. A. ; Graham v. St. Charles St. R. Co., 27 L. R. A. 416 (La.) ; Walker v. Cronin, 107 Mass. 555. But see Rice V. Albee, 164 Mass. 88, and qu. 3 ' It must now be considered clear law that a person who wrong- fully and maliciously, or, which is the same thing, with notice, interrupts the relations subsisting between master and servant,' etc. Cromptou, J. in Lumley v. Gye, supra. * See Pollock, Torts, 480, 2d ed. 110 LAW OF TORTS. [Part I. ual, the English Court of Appeal treated malice as a necessary part of the plaintiff's case, and considered the term as meaning that the defendant must have sought to induce the part}' to break his contract ' for the indirect purpose of injuring the plaintiff, or of benefiting the defendant at the expense of the plaintiff.'^ A malicious act of tliat kind was held to be a wrongful act.^ Put generally, this appears to mean that the act is shown to be malicious if the plaintiff shows that it was done with- out just cause or lawful excuse.^ § 3. Of Damage. It is not enough that there has been a breach of the contract ; for the purpose of an action for the wrongful interference, actual damage must be proved.* It is not necessary, however, that there should have been an en- gagement for a fixed period of time, such as ' for the season ; ' the action lies equally where no time is fixed, or where the engagement is merely from day to da}', or b}' the piece. For example : The defendant maliciously induces workmen, working b}^ the piece, to leave the 1 Bowen v. Hall, 6 Q. B. Div. 333, 338, Lord Esher. The argu- ment that the damage was caused, not by the defendant, but by the party who broke his contract, was answered by Lord Esher's saying that the result was both intended and brought about by the defendant. 2 Id. Comp. what is said, ante, p. 99, note. 3 Flood V. Jackson, 1895, 2 Q. B. 21, 40, Lopes, L. J. See Walker v. Cronin, 107 Mass. 555, 566, 567. Welles, J. for the court : ' Every one has a right to enjoy the fruits and advantages of his own enterprise, skill, and credit. He has no right to be pro- tected against competition ; but he has a right to be free from malicious and wanton interference, disturbance, or annoyance. If disturbance or loss comes . . . from the merely wanton or malicious acts of others, without the justification of competition or the service of any interest or lawful purpose, it then ' is unlawful. 4 Temperton v. Russell, 1893, 1 Q. B. 715, C. A. ; Cases, 109. Chap. IV. §4.] INTERFERING WITH CONTRACT. IH plaintiffs emplo^'ment. This is a breach of dut}-, for the plaintiff was entitled to the fruits and advantages to arise from a continuance of the employment.^ Indeed, it has latel}- been held that specific damage need not be shown in cases in which it appears that some damage, however undefined, must have resulted.^ Still, it is deemed not unlawful to induce workmen to enter another's service upon the expiration of their present engagement, though they had had no intention of quitting.^ § 4. Of the Distinction between Contract and Property. What has been said of the statement of the duty in question will show, when read in contrast with cases of wrongs to property in the ordinar}' sense, that contract is not treated as property, though the first impression from the subject might be that it was. The distinction between rights of property and rights of contract is not impugned. The former are absolute, and breach of them is a breach therefore of an absolute duty ; that is to say, it is not necessar}- to consider the motive with which an interfer- ence with a right of propert}' takes place. Nor indeed is special damage necessar}-, in such a case, to constitute the tort. 1 "Walker v. Cronin, 107 Mass. 555 ; Cases, 102 ; Gnnter v. Astor, 4 J. B. Moore, 12 ; Hart v. Aldridge, 1 Cowp. 54, stated in Luniley v. Gye, L. C. Torts, 306, at p. 323, jourueymeu shoemakers working by the piece. 2 Exchange Tel. Co. v. Gregory, 1896, 1 Q. B. 147, C. A. Comp. Ratcliffe v. Evans, 1892, 2 Q. B. 524, 528, Bowen, L. J. 3 Boston Glass JIanuf y v. Binne}', 4 Pick. 425 ; Walker v. Cronin, 107 Mass. 555, 568. CHAPTER y. SLANDER AND LIBEL. § 1. Iktroductory. Statement of the duty. A owes to B the duty to for- bear to publish of B (1) defamation in its nature action- able per se, (2) defamation in its nature not actionable per se to the damage of B. 1. Defamation is any language, oral or written, or any figure, tending to bring the person of whom it is published into hatred, ridicule, or disgrace, or to injure him in respect of his vocation. 2. The term ' figure' is here used to denote painting, picture, sign, or effigy. 3. Slander is oral defamation. 4. Libel is defamation by writing, printing, or figure. 5. Publication is the making defamation known to a third person. 6. Whenever language is spoken of as defamatory it is understood to be false. 7. What the phrase ' defamation in its nature action- able per se ' means will be made known by the proposition of law following, and the consideration of its parts. The general proposition of law is, that the first of the two above-stated duties is violated by A by the publication of words, language, or figure of a false and defamatory Chap. V. § 2.] SLANDER AND LIBEL. 113 character concerning B, in either of the following ways : (!) where A iniputes to 15 the coinuiission of a criminal otlence pnnishable by imprisonment, or other corporal penalty, in the lirst instance,^ clearh' if the offence is in- dictable and involves moral turpitude, or is punishable by an infamous punishment; (2) wiiere A imputes to B the having a contagious or infectious disease of a disgraceful kind ; (3) where A makes a derogatory imputation con- cerning B in respect of his office, business, or occupation ; (4) where A makes an imputation concerning B tending to disinherit him ; (5) where the defamation is a libel. Each of these classes of defamation must be examined. § 2. Of the Interpretation of Language. Before proceeding to the consideration of any of these classes of breaches of duty, it should be observed that, subject perhaps to one exception, the language or figure complained of is to be understood presumptively in its natural and usual sense, i.e. in the sense in which the persons who heard or read or saw it, as men of ordinary intelligence, would understand it.^ It is not to be cou- 1 Pollock, Torts, 219, 2d ed. It is not enough that the offence ig punishable by ' fine in the first instance, with possible imprisonment in default of payment.' Id., referring to Webb v. Beavan, 11 Q. B. D. 609. The offence charged need not in England be indictable. Webb V. Beavan. 2 Hankinson v. Bilby, 16 M. & W. 442 ; Simmons v. Mitchell, 6 App. Cas. 156. Whether the words in .slander are legally defamatory or net is, commonly at least, a question of law. Capital Bank v. Henty, 7 App. Cas. 741. In criminal cases of libel the jury were made the judges whether the language was libellous or not, in England, by Fox's Act, 32 Geo. 3, c. 60. The same practice prevails in this country. The practice under Fox's Act has been adopted in England in civil cases of libel also ; in some of our States the same is true, in others not. 8 114 LAW or TORTS. [Part L strued in a milder sense (' mitiori sensu ') merely because it is capable, by a forced construction, of being inter- preted in an innocent sense. For example : The defend- ant publishes of the plaintiff the following words : ' You are guilty of the death of D.' This is an imputation of the commission of murder, and is not to be construed * mitiori sensu.' ^ It should, however, be clear, in order to make language actionable without proof of damage, that tlie imputation was slanderous or libellous (according to its nature) within the meaning of some one of the above stated five classes. If this be not the ease, it will not be deemed a breach of the duty ; and this too whether the question of interpreta- tion come before the court or before the jury. In one case, at least, the interpretation adopted has been appar- ently contrary to the understanding of men of ordinary intelligence ; and that is where an imputation is made of what would ordinarily be understood as a crime, but the language of which does not necessarily import a crime in the legal sense. For example : The defendant publishes of the plaintiff the following words : ' He has taken a false oath against me in Squire Jamison's court.' This is deemed not to be an imputation of the commission of perjury ; ^ the term ' perjury ' signifying the taking of a false oath knowingly, before a court of justice, with ref- erence to a cause pending. Apart from this particular exception in regard to the 1 Peake v. Oldliam, 1 Cowp. 275 ; Cases, 122. - Ward V. Clark, 2 Johns. 10 ; Cases on Torts, 128. See Crone v. An;^e\\, 14 Mich. 340; Brown v. Hanson, 53 Ga. 632. 'The offence need not be specified ... at all if the words impute felony generally. But if particulars are given, they must be legally consistent with the offence imputed.' Pollock, Torts, 220, 2d ed., referring to Jackson v. Adams, 2 Bing. N. C. 402. See Stitzell v. Eeynolds, 67 Pcnn. St. 54 ; Brown ?-. Myers, 40 Ohio St. 99 ; Underbill v. Welton, 32 Vt. 40. But see Stroebel v. Whitney, 31 Minn. 384. Chap. V. §3.] SLANDER AND LIBEL. 115 legal sense of a crime, it follows from what has been said that it is immaterial whether the defamatory charge be affirmative and direct, or indirect so as to be matter of inference merely, or that it is ironical, or that it is made in allegory or other artful disguise. It is enough that the charge would naturally be understood to be defamatory by men of average intelligence. § 3. Of the Publication of Defamation and Special Damage. In accordance with observation 5, in the introductory section, it should be noticed that defamation is not published when addressed only to the plaintiff, no one else being present^ who could understand the language.^ That is, the language or representation cannot in such a case be actionable. And this is true, though the alleged wrong be directly followed by great dejection of mind on the part of the plaintiff, and consequent sickness and in- ability to carry on his usual vocation, and expense attend- ing upon his restoration to health or upon the employment of help to carry on his business. For example : The defendant says to the plaintiff, ' You have committed adultery with F.' The plaintiff, a farmer, suffers imme- diate distress of mind and body, becomes sick and unable to attend to his work, his crops suffer, and he is compelled 1 SheffiU V. Van Deusen, 13 Gray, 304. See Marble v. Chapin, 132 Mass. 225, 226. Communication of defamation by the defendant to his wife has lately been held in England not to be publication. Wennhak V. Morgan, 20 Q. B. D. 635. But an accusation of the husband in the presence of his wife (or the converse) would be a publication. No- lan V. Traber, 49 Md. 460 ; Hawver v. Hawver, 78 111. 412 ; Duval v. Davey, 32 Oliio St. 604. See Wenman v. Ash, 13 C. B. 836, which suggests a doubt in regard to accusations of the wife made to the hus« band. 2 See Hurtert v. Weines, 27 Iowa, 134. 116 LAW OF TORTS. [Part I to employ extra help to carry on necessary work. The defendant has not violated any legal duty to the plaintiff.^ Indeed, if the language complained of be not actionable per se (that is, if it be not actionable without the proof of special damage), the fact that the publication of the defamation occurred in the presence of a third person who, by authority, reported it to the plaintiff with such a result as that stated in the foregoing example, would not, it is held, make the defamer liable.^ This, however, proceeds upon the ground that the effect of distress of mind, followed by sickness, is not such damage as the law requires when the defamation is not actionable per se. The rule of law upon this subject is, that defamation not actionable per se may be a breach of duty if it be attended with special damage. But special damage (and damage of a general nature as well) must be the natural and usual result of the wrong complained of, as effect follows cause ; and, as it is sometimes declared in effect, mental distress with its consequences will not satisfy this doctrine, effect upon the mind and then upon health being largely due to individual peculiarities, and not being certain or uniform.^ Or, better still, damage resulting from fear of injury to reputation, or from wounded feelings, is not damage to reputation ; that can only be injured when it has been defamed before a third person. 1 Compare Terwilliger v. Wands, 17 N. Y. 54, 63, and Wilson V. Goit, Id. 442, which, taken together, justify the example. ^ Terwilliger v. Wands, 17 N. Y. 54, 63, reaffirmed in Wilson v. Goit, Id. 442, and overruling Bradt v. Towsley, 13 Wend. 253, and Fuller V. Fenner, 16 Barh. 333. But see McQueen v. Fulgham, 27 Texas, 463. ^ Such damages are commonly spoken of as ' remote;.' Comp. Vic- torian Rys. Comm'rs v. Coultas, 13 App. Cas. 222. But the authori- ties are not (piite consistent ; mental distress being treated as ground for damages if a right of action is otiicrwise shown. See ante, pp. 18, 19; Warren v. Boston & M. R., 163 Mass. 484, 487. Chap. V. §3.] SLANDEH AND LIBEL. 117 The damage complamed of must then in all cases, whether general or special, have been sustained through the action of a third person. Special damage may so re- sult in several ways, so as to make the publication of defamation actionable when it would not be actionable per se ; as by the loss of a marriage. For example : The defendant charges the plaintiff, an unmarried female, with unchastity in the presence and hearing of C, to whom the plaintiff is engaged to be married. C, in consequence of the charge, terminates the engagement. The defendant is liable to the plaintiff.^ The same would be true of the loss of the consortium of wife"'^ and perhaps of husband.^ The same would also be true of the refusal to tlie plaintiff of civil entertainment at a public house.'* So of the fact that the plaintiff has been turned away from the house of her uncle, and charged not to return until she shall have cleared up her character ; ^ and so in general of the loss by the plaintiff even of gratuitous hospitable entertainment.^ The special feature of the law of slander and libel» however, consists in this, that defamation may be action- able per se ; and the consideration of the various phases of such defamation will now follow. Let it be clearly observed, that in defamation arising under any of the heads now to be separately examined, the plaintiff estab- lishes the breach of duty, and consequently his right to 1 See Terwilliger v. Wands, 17 N. Y. 54, 60. But see McQueen v. Fulgham, 27 Texas, 463. 2 Bigaouette v. Paulet, 134 Mass. 123. 8 See Lynch v. Kniglit, 9 H. L. Cas. 577 ; Jaynes v. Jayncs, 39 Hun, 40 ; Warner v. :MiUer, 17 Abb. N. C. 221 ; Breiman v. Paasch, 7 Abb. N. C. 249. See post, chapter viii. § 4. * Olmsted v. Miller, 1 Wend. 506. See Moore v. Meagher, 1 Taunt. 39. 5 Williams v. Hill, 19 Wend. 305. s Id. ; Moore v. Meagher, 1 Taunt. 39 ; ante, p. 5. 118 LAW OF TORTS. [Part I. recover, by simply proving publication.^ In cases of defamatory publications not falling iiucler the following beads, the plaintiff must also prove damage ; that is the only difference between the two classes of cases. § 4. Of the Imputation op having Committed a Crime. Different rules have obtained in different States con- cerniug the nature of the offence the false imputation of which is actionable per se. In some States it has been laid down that, unless the offence charged is indictable and involves moral turpitude, or unless it is one the pun- ishment of which is infamous, there is no right of action without proof of special damage. A punishment is infa- mous at common law which disqualifies the offender from being a witness in the courts ; a punishment is not iufa- mous when, for instance, it is named in the same category with the punishment of trivial olTences, such as vagrancy, begging, and fortune telling, and a charge of such an offence would not be actionable per se. For example : Tlie defendant publishes of the plaintiff the charge ' She is a common prostitute.' The punishment of this offence, where charged, is classed with the punishment of trivial offences such as those just mentioned. The defendant is not liable without proof of special damage.^ 1 Webb V. Beavan, 11 Q. B. D. 609. 2 Brooker v. Coffin, 5 Jolms. 188 ; Cases on Torts, 126 ; Davis v. Carey, 141 Penn. St. 314 ; McQueen v. Fulgham, 27 Texas, 463 ; Un- derhilf v. Welton, 32 Vt. 40 ; Poilard v. Lyon, 91 U. S. 225. See also as to disgracefulness, Andres v. Ivopi)enlieaver, 3 Serg. & R. 255. Per- haps charges of crime Y)unisliable by imprisonment in a state prison wouhl cover this class of cases. Common-law punishments of tlie pil- lory, stocks (?), and the like were infamous ; but these are of the past. Ex parte Wilson, 114 U. S. 417. Punishment of simple assaults or batteries is not infamous. Andres v. Koppeuheaver, supra ; Billings V. Wing, 7 Vt. 439. Chap. V. §4.] SLANDER AND LIBEL. 119 In other States probably, as in England, it "would be enough that the crime was puuishable in the first instance by imprisonment.^ In still other States it is not necessary that the offence should be punishable by imprisonment at all, if the offence is punishable and disgraceful ; this rule being laid down : Whenever an offence has been charged conviction of which subjects the offender to a punishment which, though not ignominious, would bring disgrace, the accusation, if false, is actionable per se.^ The offence, accordingly, need not be indictable. It is not necessary anywhere that the accusation should be of the commission of a crime in the strict sense ; enough, even where the first rule above stated prevails, that the imputation is of the commission of a misdemeanor if the offence involves moral turpitude.^ For example ; The defendant falsely publishes of the plaintiff the words ' You have removed my landmarks, and cursed is he that removeth his neighbor's landmark.' The words are ac- tionable per se.* The authorities, further, are not altogether in harmony in regard to the question whether it is necessary that the charge, if true, would subject the object of it to punish- ment, or whether the test in this particular is the degra- dation involved ; but the weight of authority favors the latter as the test, assuming that the offence charged is in law a crime. Although, then, the charge show that the 1 Ante, p. 113, note. 2 Miller V. Parish, 8 Pick. 384 ; Brown v. Nickerson, 5 Gray, 1 (imputing drunkenness to a woman in a single instance). See Meyer V. Schleicbler, 29 Wis. 646 ; Frisbie v. Fowler, 2 Conn. 707 ; Zeliff v. Jennings, 61 Texas, 458, 466. 3 Young V. Miller, 3 Hill, 21 ; Smith v. Smith, 2 Sneed, 473 ; Beck V. Stitzel, 21 Penn. St. 522. See Andres v. Koppenheaver, Serg. & R. 255. * Young V. Miller, supra. But the meaning of * moral turpitude ' is not fixed. 120 LAW OF TORTS. [Part L punishment has already been suffered, and do not, render the plaintiff liable to indictment, the degradation involved in the (false) accusation renders the defendant liable. For example : The defendant falsely says of the plaintiff, ' Robert Carpenter [the plaintiff] was in Winchester jail, and tried for his life, and would have been hanged had it not been for L, for breaking open the granary of farmer A, and stealing his bacon.' The defendant is liable.^ Again : The defendant falsely says of the plaintiff, ' He was arraigned at Warwick for stealing of twelve hogs, and, if he had not made good friends, it had gone hard with him.' The defendant is liable.^ Again: The de- fendant falsely says of the plaintiff, ' He is a convict, and has been in the Ohio penitentiary.' The plaintiff is enti- tled to maintain an action.^ § 5. Of the Imputation of having a Contagious or Infectious Disease of a Disgraceful Kind. By the early common law a charge to come under this head must have been of having the leprosy, or the plague, or the syphilis. At the present time the duty has come to be so far enlarged as to require the forbearance from publishing false accusations concerning another of the having any disease of a contagious or infectious nature involving disgrace. For example : The defendant falsely ^ Carpenter v. Tarrant, Cas. Temp. Hardw. 339. The plaintiff al- ways alleges falsity of the charge, but need not prove it. 2 Halley v. Stanton, Croke Car. 268. 2 Smith V. Stewart, 5 Barr, 372. It would be otherwise if the words were true. Bauni v. Clause, 5 Hill, 199. A person is no longer a felon after suffering the punishment of felony ; so that tlie fact that he was once a felon would not sustain a plea of the truth of a charge ot felony. Leyman v. Latimer. 3 Ex. Div. 352. Chap. V. § 6] SLANDER AND LIBEL. 121 charges the plaintiff with having the gonorrha3a. This is actionable per se.^ Tliis doctrine of law proceeds upon the ground that charges of such a kind tend to exclude a person from so- ciet}' ; and the rule requires the charge to be made in the present tense. To accuse another falsely of having had a disgraceful disease is not actionable without proof of special damage. For example : The defendant says of the plaintiff, • She has had the pox.' The defendant is not liable tliough the charge be false, unless the plaintiff prove special damage.^ § 6. Of an Imputation affecting the Plaintiff in his Office, Business, or Occupation. In order that an imputation ma}^ in law be said to affect a man injuriously under this head, and be actionable per se, it should have a natural tendency to injure him in his occupation. It is not enough that it may possibly so in- jure him. If it has not a natural tendenc}" to injure him, that is, if it would not be the usual effect of the charge to injure the plaintiff in his occupation, as by causing dis- charge, the plaintiff cannot recover without proving special damage. For example : The defendant publishes of the plaintiff, a clerk to a gas-light company', the words, ' You are a disgrace to the town, unfit to hold your situation for vour conduct with harlots. You are a disgrace to the situation you hold.' The plaintiff cannot recover without proof of actual damage, the language not having a natu- ral tendency to cause the plaintiff's discharge from his employment.^ 1 Watson i;. McCarthy, 2 Kelly, 57. See Bloodwoith r. Gray, 7 Man. & G. 334. 2 See Carslake v. Mapledoram, 2 T. R. 473 ; s. c. L. C. Torts, 84. 8 Linnhy v. Allday, 1 Tyrwh. 217; Cases, 131. See Morasse v. Brochu, 151 Mass. 567, 576. 122 LAW OF TORTS. [Part I Defamation has a natural tendency to injure the plain- tiff in his office, business, or occupation, within the mean- ing of the rule, when it strikes at his qualification for the performance of the duties of his situation, or when it alleges some misconduct or negligence in the course of transacting these duties.^ For example : The defendant charges the plaintiff', a clergyman, holding the office of pastor of a church, with incontinence. This is ground of an action.^ Again : The defendant says of the plain- tiff, a lawyer, the words having relation to the plaintiffs professional qualifications, ' He is a dunce.' This may perhaps be treated as a breach of the defendant's legal duty to the plaintiff.^ AVhen the defamation complained of does not show on its face that it was published of the plaintiff in relation to his occupation, this must be made to appear ; * though even then, as has been stated, the defamation will not be actionable unless it had a natural tendency to injure the plaintiff in his occupation, in the sense already explained. In cases, however, in which the imputation is alleged to have been made of the plaintiff in his occupation, when the same does not have the natural tendency mentioned, it may be shown by the' plaintiff that the defamation was published under circumstances which bring the case within the rule of liability. But without such evidence, the plaintiff must fail. For example : The defendant charges the plaintiff, as a physician, with incontinence. This does not imply disqualification, or necessarily pro- 1 Id. ; Camp v. Martin, 23 Conn. 86. 2 Gallwey v. Marshall, 9 Ex. 29i. 8 Peard v. Jones, Croke Car. 382. It is doubtful whether a court would now treat such a statement as actionable. To call a lawyer a 'cheat' is held actionable. Bush i». Cavenaugh, 2 Barr, 187. Further see Goodenow i\ Tappan, 1 Ohio, 60 ; Doyley v. Roberts, 3 Bing. N. CL 835. * Ayre v. Craven, 2 Ad. & E. 2. Chap. V. § 6 ] SLANDER AND LIBEL. 123 fessional miscouduct ; and, without evidence connecting the imputation with the plaintiff's professional conduct, he cannot recover.^ If the imputation in itself come within the rule of lia- bility under this head, it matters not that it was published of a servant, even one acting in a menial capacity. For example : The defendant falsely speaks the following of the plaintiff, a menial servant, before the latter's master, ' Thou art a cozening knave, and hast cozened thy mas- ter of a bushel of barley.' The defendant is liable to the plaintiff.^ It is probably actionable to impute disqualification of a person holding a merely honorary or confidential otfice, not of emolument. 3 It certainly is so to impute to such a person misconduct in the office.* For example : The de- fendant says of the plaintiff, who holds a public office of mere honor, touching his office, ' You are a rascal, a vil- lain, and a liar.' This is a breach of the duty under consideration.^ In all cases included under the present section, it is necessary that the plaintiff should have been in the exer- cise of the duties of the particular vocation at the time of the alleged publication of the defamation.® For example : The defendant says of the plaintiff, who had been a lessee of tolls at the time referred to by the defendant, ' He was wanted at T ; he was a defaulter there.' The words are not actionable per se.' 1 Ayre v. Craven, 2 Ad. & E. 2. 3 Seaman v. Bigg, Croke Car. 480. 8 Onslow V. Home, 3 Wils. 186. * Id. * Aston V. Blagrave, Strange, 617. 6 Bellamy v. Burch, 16 M. & W, 590 ; Gallwey v. Marshall, 9 Ex. 294. "^ Bellamy v. Burch, supra. Some of the old cases are contra, but they were overruled. 124 LAW OF TORTS. [Part I. § 7. Or AN Imputation tending to Disinherit THE Plaintiff. If the words tend to impeach a present title of the plaintiff, the action, though commonly called an action for slander of title, is not properly speaking an action of slander ; as has already been stated, such a case is in substance an action for deceit, to be governed by the rules of law prevailing upon that subject.^ Cases of actions for defamation tending to defeat an expected title are rare, and appear to have been confined to charges impeaching the legitimacy of birth of an heir apparent. Such an imputation has been deemed action- able, as being likely to cause the plaintiff's disherison. For example : The defendant publishes of the plaintiff, an heir apparent to estates, the words, * Thou art a bas- tard.' The defendant is liable without proof of special damage.^ § 8. Of an Ijiputation conveyed by "Writing, Printing, OR Figure ; that is, of Libel. The four preceding sections exhaust the possible heads of oral defamation, actionable per se ; that is, of slan- der. Libellous defamation may also be conveyed in any of the four ways above considered ; but it may also be conveyed in other ways. A libel is a writing, print, picture or efligy, calculated to bring one into hatred, ridicule, or disgrace. The definition shows that the law of libel is of wider extent than that of slander. Many words when written or printed become actionable per se which, if they had 1 See ante, p. 80. 2 Humphi-ys v. Stanfeild, Croke Car. 469. Chap. V. § 8.] SLANDER AND LIBEL. 125 been orally published, would not have been actionable without proof of special damage. And, besides these, there is the whole class of defamatory representations, such as picture and effigy, which in their nature are incapable of oral publication. Whether the distinction is well founded or not, the manner of the publication, as libel, makes it actiona])le.^ For example : The de- fendant writes and publishes of the plaintiff the follow- ing : ' I sincerely pity the man that can so far forget what is due not only to himself, but to others, who, under the cloak of religious and spiritual reform, hypo- critically, and with the grossest impurity, deals out his malice, uncharitableness, and falsehoods.' The plaintiff can maintain an action for libel. ^ Again : The defend- ant prints the following of the plaintiff : ' Our army swore terribly in Flanders, said Uncle Toby ; and if Toby was here now, he might say the same of some modern swearers. The man at the sign of the Bible [the plaintiff] is no slouch at swearing to an old story.' The impu- tation is libellous, though not importing perjury.* Again : The defendant prints the following of the plaintiff : ' Mr. Cooper [the plaintiff] will have to bring his action to trial somewhere. He will not like to bring it in New York, for we are known here, nor in Otsego, for he is known there.' The publication of this language is deemed libellous.* At common law, no immunity is conferred upon the proprietors, publishers, or editors of books, newspapers, or other prints, for the publication of defamation. Tliey are liable for the publication of libellous matter in their prints, though the publication may have been made with- • Thorley v. Kerry, 4 Taunt. 355 ; Cases, 135. 2 Thorley v. Kerry, supra. 3 Steele v. South wick, 9 Johns. 214. * Cooper V. Greeley, 1 Denio, 347. 126 LAW OF TORTS. [Part L out their knowledge or even against their orders. Thia is not true of news-vendors.-' And it is held that if the alleged libel were of such a nature that a man of common intellio;ence could not know that it was intended for a libel, and it was not in fact known that it was, neither the editor nor the proprietor of the printing establishment, or of the print, would be liable.^ Upon the whole subject of newspaper libel the student must beware of local statutes ; these cannot be consid- ered in this book. § 9. Of the TRUin of the Chaege. The truth of the charge, whether it was made orally or by printed or written language, is, in the absence of statute,^ a good defence to an action for damages for the publication of alleged defamation, though malicious and not reasonably believed to be true. Evidence of such a fact shows, indeed, that the charge is not legally defamatory. A person has no right to a false char- acter ; and his real character suffers no damage, such at least as the law recognizes, from speaking the truth. This rule appears to go to the extent of justifying a party in publishing of another the fact that he has suf- fered the penalty of the law for the commission of crime, even though he may have been pardoned therefor and have since become a good and respectable citizen. For example : The defendant publishes of the plaintiff the statement that the latter had several years ago stolen an axe. That is true, though, after conviction thereof, the 1 Emmens v. Pottle, 16 Q. B. Div. 354; Caises, 141. 2 Smith V. Ashley, 11 Met. 367. 8 There are statutes upon the subject in some of the States, proba- bly in most of the States as to criminal prosecutions for libel. Chap. V. § 10.] SLANDER AKD LIBEL. 127 plaintiff was pardoned, and has since become a trnsted citizen and an otHce-holder. Tlie accusation is deemed justifiable in law.^ Belief in the truth of the accusation, however, is not a defence,'^ though the law allows the defendant to show it in mitigation of damages.^ And this is equally true of the editors and publishers of books, newspapers, or periodicals, as of other persons.* The truth of effigy, picture, or sign, so far as such may relate to the physical person of the party intended, and not to his character, is (probably) no justification of a malicious publication. A man is not responsible for his physical peculiarities, and may well invoke protection of the law against one who will parade them before the public.^ § 10. Of Malice and Privileged Communications. To constitute slander or libel, it used to be said that malice was necessary ; but malice in this connection was, and still is sometimes, spoken of as of two kinds, malice in law and malice in fact, the first being presumptive, the second actual.*' The real truth, however, is that the plaintiff is entitled to recover upon proof of the publica- tion (with special damage if the case does not fall under one of the five heads) ; actual malice is not necessary to 1 Bauni V. Clause, 5 Hill, 199. See Rex v. Burdett, 4 B. & Aid. 314, 325. 2 Campbell v. Spottiswoode, 3 Be.st & S. 769. 3 Odgers, Slander, 302, .589. * Campbell v. Spottiswoode, supra. 5 Compare Pollard v. Photographic Co. 40 Ch. D. 345, 353, enjoin- ing display of photograph. 6 In regard to actual malice see Mogul Steamship Co. v. McGregor, 23 Q. B. Div. 598, 612 et seq. ; Abrath v. North Eastern Ry. Co. 11 App. Cms. 247, 251 ; ante p. 99. note; Holmes, Common Law, chap- ter 4. Malice in law is a pure fiction. 128 LAW OF TORTS. LPart I. make a case. If, still, it is thought important for any pur- pose to retain the old form of statement, it may be said that malice is presumed in all cases of legal slander or libel, but the effect of the presumption may be avoided by proof of privilege, and then the plaintiff can recover only upon proof of actual malice. The effect of the pre- sumption of the older cases may be thus stated : The publication of defamation is presumed to have been done of malice, and justifies a verdict for the person defamed, without further proof. P'or example : The defendant goes to the plaintiff's relatives and falsely charges him with theft. This is sufficient to justify a verdict for the plaintiff" ; he need not offer evidence to establish malice.^ If this were all, the result would be that, unless the defendant could prove the truth of the charge, he would be liable. But this would be to lay an embargo upon the freedom of speech hardly to be tolerated. There are cir- cumstances under which men must be permitted to speak without danger their convictions, however erroneous ; the law could not but permit it, and does permit it.^ In per- mitting, there is no denial of malice ; there is no malice, as has just been said, to deny. The plaintiff's case has merely been avoided by matter of justification ; the facts are admitted, but ground is shown why the plaintiff should not avail himself of them. There are, in a word, occasions in which certain per- 1 Hooper v. Truscott, 2 Bing. N. C. 457 ; s. c. 2 Scott, 672. '^ The doctrine of privileged communications is only a special exam- ple of a great law of piivilege pertaining to human affairs generally ; to wit, the right to inflict harm upon another in just so far as may reason- ably be deemed necessary for one's own protection, or for the protection of another, where that is proper. So far others ninst yield, or the vin- dication of rights in many cases would be an empty name ; but further no one is required to give way. Ante, pp. 20-23. Chap. V^ § 10.] SLANDER AND LIBEL. 129 sons ^ are excused for publishing what would otherwise be actionable defamation. The publication of the charge in such cases is said to be ' privileged ' ; the charge itself being termed a privileged communication. Privilegetl coinmmiicatious are of two kinds ; absolutely privileged and prima facie privileged communications. - A communication is absolutely privileged when the fact that it was published with actual, provable malice, that is, malice in fact, is immaterial, not affecting the excuse. In other words, a communication is absolutely privileged when evidence that it was published with actual malice is not admissible. A communication is prima facie privileged when evidence on the part of the plaintiff is admissible to show that the communication was published with actual malice.^ In the former case, the defence is a perfect one ; in the latter it is perfect, provided evidence of malice be not shown by the plaintiff. Apart from statute, absolute privilege is confined to the State, and that, too, to its three departments, legislative, executive, and judicial ; such privilege being justified only upon grounds of necessit}'. First, of statements made in judicial proceedings. Whatever is said orall}', or stated in writing, in the course of and duly relating to such proceed- ings by those concerned therein, is absolutely privileged. According to recent English authority, it matters not whether the language was material or relevant, or not ; it is deemed to be against public policy to permit any in- quiry in regard to that.* It is enough if it relates to the 1 Merivale v. Carson, 20 Q. B. Div. 279, 280; Case.s, 144, Lord Esher pointincr out that what all men may do is no privilege. 2 Hastings v. Lusk, 22 Wend. 410 ; Cases, 151; Shelfer v. Gooding, 2 Jnnes, 175. s Nevill ?'. Fine Arts Ins. Co., 1895, 2 Q. B. 156. 169, malice 'in the mind ' considered to be meant hy actual malice. Sed qn. * Munster v. Lamb, 11 Q. B. Div. 588 (counsel) ; Scott w. Stans- 9 130 LAW or TORTS. [Part L cause before the court. For example : Counsel for the defendant, in the course of arguing a criminal cause, makes base insinuations against the prosecutor in rela- tion to the evidence given, which insinuations would be actionable if not privileged. No action can be maintained for making them ; no inquiry into their bearing upon the case will be allowed.^ Again : A witness on the stand, after examination, volunteers a statement in vindication of himself, which contains a charge of crime against a stranger to the trial. This is not actionable.^ Formerly relevancy appears to have been regarded in England ; ^ and in this country it is generally laid down that the language used, in order to be absolutely privi- leged, must either have been legally relevant or must have been believed to be relevant. This has been laid down of the language of parties,* of counsel,^ of witnesses,^ of jury- men,'' and of pleadings.^ For example : The defendant, field, L. E.. 3 Ex. 220 (judge) ; Seaman v. Netherclift, 2 C. P. Div. 53 (witness) ; Henderson v. Broomhead, 4 H. & N. 569 (statements in pleadings). 1 Minister v. Lamb, 11 Q. B. Div. 588. 2 Seaman v. Netherclift, supra. 8 Hoar V. Wood, 3 Met. 193, 193 ; Hastings v. Lusk, 22 Wend. 410 ; Cases on Torts, 151, 156-159 ; Hodgson v. Scarlett, 1 B. & Aid. 232. * Hoar V. Wood, supra. 5 Hastings v. Lusk, supra ; Marsh v. Ellsworth, 50 N. Y. 309 ; Hoar V. Wood, supra ; McLaughlin v. Cowley, 127 Mass. 316, 319 ; Pice V. Coolidge, 121 Mass. 393 ; Jennings v. Paine, 4 Wis. 358 ; Morgan v. Booth, 13 Bush, 480. 6 White V. Carroll, 42 N. Y. 161 ; Barnes v. McCrate, 32 Maine, 442 ; Calkins v. Sumner, 13 Wis. 193 ; Lea v. White, 4 Sneed, 111 ; Storey v. Wallace, 60 111. 51 ; McLaughlin v. Cowley, supra ; Rice v. Coolidge, supra. ■^ Dunham v. Powers, 42 Vt. 1. " McLaughlin v. Cowley, supra ; Wyatt v. Buell, 47 Cnl. 624 ; Garr v. Selden, 4 Comst. 91 ; Johnson v. Brown, 13 W. Ya. 71. Chap. V. § 10.] SLANDER AND LIBEL. 131 in the argument of his own cause in court, falsely charges perjurj' upon the plaintiff, the charge not being relevant, or believed by the defendant to be relevant, to any question before the court. The defendant is liable.^ Again : The defendant, during the deliberations of a jury of which he is a member, held in the jury room, concerning their ver- dict in a suit brought by the present plaintiff, says he would not believe the plaintiff under oath, and accuses him of having obtained an insurance upon property by fraud and afterwards committing perjury in a suit for the insurance money. This is not legally relevant, but the defendant acts honestly believing it to be so and that he is discharg- ing his duty in the matter. The plaintiff cannot recover.^ The protection extends to the allegations contained in affidavits made in the course of a trial,^ even though the persons making them be not parties to the cause ; ^ and to statements of a coroner holding an inquest.^ In a word, it applies apparently to all statements made in the real discharge of duty at court. ^ The law upon this subject has been thus (in substance) generalized : No action either for slander or libel can be maintained against a judge, magistrate, or person sitting in a judicial capacity over any court, judicial, military,^ or naval, recognized by and constituted according to law ; nor against suitors, prosecutors, witnesses, counsel, or jurors, for anything said or done relative to the matter in hand, in the ordinary course of a judicial proceeding, in- 1 Hastings v. Lusk, 22 Wend. 410 ; Cases, 151. 2 Dunham v. Powers, 42 Vt. 1. * Garr v. Selden, 4 Comst. 91. * Henderson v. Broomliead, 4 H. & N. 569. 5 Thomas v. Churton, 2 Best & S. 475. 6 Goodenow v. Tappan, 1 Ohio, 60 ; Dunham v. Powers, supra. ^ Jekyll V. Moore, 2 Bos. & P. N. R. 341 ; Dawkins v. Rokeby, L. R. 8 Q. B. 255 ; s. c. 7 H. L. 744, 752 (witness) ; Dawkins v. Saxe- Weimar, 1 Q. B. D. 499. 132 LAW OF TORTS. [Part I. vestigation, or inquiry, civil or criminal, by or before any Buch tribunal, however false and malicious it may be.^ A like rule of law to that by which defamatory state- ments made in the course of judicial proceedings are privileged governs all statements and publications made in the course of the proceedings of the Legislature. ^ The occasion is deemed to afford an absolute justification for the use of language otherwise actionable, so long as it re- lates to the proceedings under consideration. No member of the Legislature is liable in a court of justice for any- thing said by him in the transaction of the business of the House to which he belongs, or in which he has duties to perform, however offensive the same may be to the feel- ings or injurious to the reputation of another.^ This privilege, however, is absolute only within the walls of the House, or of such other places as committees are authorized to occupy.^ It is not personal, but local. A member who publishes slander or libel generally, out- side of such locality, stands, it seems, on the same foot- ing with a private individual.^ For example : A member of Parliament prints and circulates generally a speech delivered by him in the House, containing defamatory language of the plaintiff. This is a breach of duty.^ 1 Starkie, Slander and Libel, 184 (4tli ed. by Folkard) ; Munster v. Lamb, 11 Q. B. Div. 588, and cases cited. 2 Odgers, Slander, 187. 3 See Ex parte Wason, L. R. 4 Q. B. 573 ; Commonwealth v. Bland- ing, 3 Pick. 304, 314; Coffin v. Coffin, 4 Mass. 1, a very important case ; Hastings v. Lusk, 22 Wend. 410, 417 ; s. c. L. C. Torts, 121, 124. * Coffin V. Donnelly, 6 Q. B. D. 307. See Belo v. Wren, 63 Texas, 686, irregular and irresponsible committee. ^ See however Coffin v. Coffin, supra, as to words not in the course of business. 6 Rex V. Abingdon, 1 Esp. 226 ; Rex v. Creevey, 1 Mnule & S. 273 ; Stockdale v. Hansard, 9 Ad. & E. 1. As to private circulation Chap. V. § 10.] SLANDER AND LIBEL. 133 The same protection is extended to persons presenting petitions to the Legislature, and with the same restriction. The printing and exhibiting a false and defamatory' peti- tion to a committee of the Legislature, and the delivery of copies thereof to each member of the committee, is justifiable, unless perhaps the petition is a mere sham, fraudulently put forth for the purpose of defaming an in- dividual. But a publication to any others than the mem- bers of the committee, or at any rate to others than members of the Legislature, removes the protection, and renders the author liable.^ Absolute privilege extends also, no doubt, to the acts and proceedings of the Executive Department, whether of the general government of the country or of the States.^ In other relations than those of the State, there is seldom any cause for absolute privilege; between man and man, outside of the affairs of the State, the occasion can create only a prima facie privilege. The defendant here shows privilege as before ; but now, it should be noticed, the plaintiff ma}' in turn show (actual) malice. This head embraces a great variety of cases ; only the most impor- tant of these will be presented, from which a general rule can be deduced. Proceedings before church organizations, societies, and clubs, for the discipline of their members, partake some- what of the nature of trials in the courts, and may there- fore be mentioned first. Though forming no part of the general administration of justice, such proceedings, when of speeches among constituents, see Wason v. Walter, L. R. 4 Q. B. 73, 95. ^ Lake v. King, 1 Saund. 131 b, where this is conceded ; Hare v. Miller, 3 Leon. 138, 163. See Proctor v. Webster, 16 Q. B. D. 112, as to comnninications to the Privy Council. 2 See Chatterton v. Secretary of State, 1895, 2 Q. B. 189. 134: LAW OF TORTS. [Part L not in conflict witli the law, are sanctioned by the Statft. Accordingly, language used in conducting them is privi- leged, prima facie, so far as it has pertinency to the mat- ter under consideration. For example : The defendant, while on trial before a church committee for alleged false- hood and dishonesty in business, says of the plaintiff, ' I discharged him for being dishonest, — for stealing. That is the cause of this trouble.' The defendant is not liable in the absence of evidence that he was actuated by express malice.^ The proceedings of the courts of justice should, with some necessary exceptions, be under the eyes of the pub- lic, so that judges may sufficiently feel their responsibility.^ But the whole public cannot attend the courts, and it is proper therefore that such of their proceedings as are open should be made known generally. It is accordingly laid down that the publication of proceedings had in open court, if sufficiently full to give a correct and just impres- sion of the proceedings, and if not attended with defama- tory comments, is prima facie privileged.^ If, however, the same should be so incomplete or so stated as to give a wrong impression, or, though full, if it is followed by comments containing defamatory matter, the privilege would fail, and the publisher, editor, and author would be liable for any defamation thereby spread. For exam- ple : The defendant prints a short summary of the facts of a certain case in which the plaintiff has acted as attor- ney. The account of the trial states that the then defend- ant's counsel was extremely severe and amusing at the 1 York V. Pease, 2 Gray, 282 ; Farnsworth v. Storrs, 5 Cush. 412. See Holt V. Parsons, 23 Texas, 9. Probably the language need not be legally relevant. 2 Cowley V. Pulsifer, 137 Mass. 392. 8 See Stevens v. Sampson, 5 Ex. Div. 53, as to reports furnished by one not connected with the newspaper. Chap. V. §10.] SLANDER AND LIBEL. 135 expense of the present plaintiff. It then sets out parts of the speech of the defendant's counsel which contain some severe rellections on the conduct of the plaintiff as attor- ney in that action. The defendant is liable.^ But it should be clearly understood that the publicatioa of an abridged report of a trial is privileged if it be fair and accurate in substance, so as to convey a just impression of what took place, and be free from objectionable com- ments ; 2 and so of the publication of proceedings in the Legislature.^ It is laid down, however, that this privilege does not extend to the publication of papers in a cause before any proceedings have been taken upon them, as in the case of papers filed and published in vacation.'* This would not be publishing a proceeding had in open court.* Reports from day to day, in the progress of a trial, may be published ; ^ and the report of a judgment alone, especially if sufficient to give a just idea of the case, may be published.'' The objection to defamatory comments applies equally well when they are put into the form of a heading to the report. For example : The defendant prints an account of a trial in which the plaintiff was involved, heading the same ' Shameful conduct of an attorney,' referring to the plaintiff. The publication is not privileged.^ 1 Flint V. Tike, 4 B. & C. 473. 2 Turner v. Sullivan, 6 Law T. N. s. 130 ; Wason v. Walter, L. R. 4 Q. B. 73, 87. 3 Wason V. Walter, supra. Contra of matters not fit for publica- tion. Steele v. Brannan, L. R. 7 C. P. 261. * Cowley V. Pulsifer, 137 Mass. 392. ^ Id. p. 394, Holmes, J. 6 Lewis V. Levy, El. B. & E. 537 ; Cowley v. Pulsifer, 137 Mass. 392, 395. 1 Macdougall v. Knight, 17 Q. B. Div. 636 ; 14 App. Cas. 194, 200. See this case again, 25 Q. B. Div. 1, denying the (lualification sug. gested in the House of Lords, 14 App. Cas. at pp. 200, 203. 8 Lewis V. Clement, 3 Barn. & Aid. 702. 136 LAW OF TORTS. [Part L The editor or writer may, however, use a heading prop- erly indicative of the nature of the trial, if it does not amount to comment. That is, the subject of the trial may be stated. For example : The defendant prints a report of a trial under the heading ' Wilful and corrupt perjury.' But this is only a statement of the charge made against the plaintiff at the trial. There is no breach of duty to the plaintiff.^ The privilege appears to extend in England to the pub- lication of ex parte judicial proceedings ; ^ it protects the publication alike of preliminary and final proceedings in open court ; and this though the tribunal declines to pro- ceed for want of jurisdiction.^ No privilege is conferred apart from statute upon the proprietors, editors, or publishers of the public prints for the publication of defamatory matter uttered in the course of public meetings though held under authority of law for public purposes. For example : The defendant prints an account of a public meeting of commissioners of a town, the body acting under powers granted by statute ; and the report is a fair and truthful statement of what occurred at the meeting. It, however, contains defamatory language uttered concerning the plaintiff at the meeting. The defendant is liable.* It does not, indeed, make a case of privilege that a defamatory statement relates to a matter of great interest to the public, even though the public should be at a point of unusual anxiety on the subject. For example : The defendant charges the plaintiff in a newspaper with treach- 1 Lewis V. Levy, El. B. & E. 537. 2 Usill V. Hales, 3 C. P. D. 319. Contra, Cincinnati Gazette Co, V. Timberlake, 10 Ohio St. 548 ; Mattliews v. Beach, 5 Sandf. 256. See Belo v. Wren, 63 Texas, 686. 2 Usill V. Hales, supra ; Lewis v. Levy, supra. * Davison v. Duncan. 7 EI. & B. 229. Chap. V. § 10.] SLANDER AND LIBEL.' 137 ery and bad faith in regard to money received by liim to obtain the niamnnission of a fugitive slave in wliom there was great interest in the community. The publication is not privileged.^ It is obviously to the advantage of the public that true accounts of the proceedings of the Legislature should be placed before the people. Upon this principle, therefore, the publication of such proceedings by any one is privi- leged, though they contain defamatory matter; though the privilege of non-official publication, as in the other cases mentioned, will not cover malicious publications. Without evidence of malice, however, the protection is complete. For example : The defendant publishes a true report of a debate in Parliament, upon a petition pre- sented by the plaintiff for the impeachment of a judge. Defamatory statements against the plaintiff are made in the course of the debate, and these are published with the report. The defendant is not liable in the absence of malice.^ Communications made to the proper ^public authorities, upon occasions of seeking redress for wrongs suffered or threatened, in which the public are concerned, or in which the party making or receiving the communication is alone concerned, are privileged, prima facie, if believed to be true by the party seeking redress, unless the form of the communication itself show malice. For example : The defendant honestly'' charges the plaintiff with being a thief, the charge being made before a constable acting as such, after the defendant had sent for him to take the 1 Sheckell v. Jackson, 10 Cnsh. 25; Cases, 178. 2 Wason V. Walter, L. R. 4 Q. R. 73. The protection in this case was extended also to comments made in an lionost and fair spirit. 8 Hebdit<:h v. Macllwaiue, 1894, 2 Q. B. 54, C. A. * ' Honestly ' and ' honest ' will now be used of belief that an impu tation is true. 138 LAW OF TORTS. [Part L plaintiff into custody. The defendant is not liable in the absence of evidence of actual malice.^ Upon the same principle, honest statements at public meetings, as by a taxpayer and voter at a tow^n meeting, held to consider an application from the tax assessors of the town for the use of money for a particular purpose, may be privileged so far as they bear upon the matter before the meeting, though they be defamatory. For example : The defendant, at a town meeting held on ap- plication of the tax assessors to consider the reimbursing the assessors for expenses incurred in defending a suit for acts done in their official capacity, honestly but falsely charges the assessors with perjury in the suit. Being a taxpayer and voter, he is not liable to any of the per- sons defamed, unless shown to have been actuated by malice.^ A similar protection is extended to persons acting under the management of bodies instituted by law, and having a special function of care over the interests of the public. While honestly acting within the limits of their function, they are prima facie exempt from liability for defamatory publications made. For example : The defendants, trus- tees of a College of Pharmacy, — an institution incorpo- rated for the purpose, among other things, of cultivating and improving pharmacy, and of making known the best methods of preparing medicines, with a view to the public welfare, — make a report to the proper officer concerning the importation of impure and adulterated drugs, falsely but honestly charging the plaintiff with having made such importations ; the report being made after investigation caused by complaints made to the defendants of the im- portation of such drugs. The defendants are not lia- 1 Robinson v. May, 2 Smith, 3. 2 Suiith V. Higgins, 16 Gray, 251. CuAP. V. § 10.] SLANDER AND LIBEL. 139 ble uuless they acted with express malice towards the plaintiff.^ The use of the public prints is sometimes justifiable to protect a person against the frauds or depredations of a private citizen ; and when this is the only effec- tual mode of protection, persons are prima facie pro- tected in adopting it even against innocent men. For example : The defendant, a baker, employing servants in delivering bread in various towns, inserts in a news- paper published in one of the towns a card, stating that the plaintiff ' having left my employ, and taken upon himself the privilege of coUectmg my bills, this is to give notice that he has nothing further to do with my business.' The communication is honest. It is privi- leged in the absence of evidence of actual malice.^ Statements made to the public in vindication of char- acter publicly attacked are privileged, prima facie, if they are honest, if made through proper channels.* For example : The defendant publishes a newspaper article containing reflections upon the plaintiff's charac- ter, in reply to an article by the plaintiff assailing the defendant's cliaracter. The defendant acts honestly, in defence of himself. The communication is prima facie privileged.^ Indeed, it may not affect the case that the names of other men are drawn into the controversy and tarnished. The party attacked may in reply falsely criminate others if the charges against them are honestly made, are not malicious, and are reasonably deemed necessary for self-vindication. And such reply may be made by the party's agent as well as by himself. For example : 1 Van Wyck v. Aspinwall, 17 N. Y. 190. See AUbut v. General Council of Medical Education, 23 Q. B. Div. 400. 2 Hatch V. Lane, 105 Mass. 394. 3 Laughton v. Bishop of Sodor, L. R. 4 P. C. 495. * O'Donoghue v. Hussey, Ir. R, 5 C. L. 124, Ex. Ch. 140 LAW OF TORTS. [Part I. The defendant, an attorney, writes and publishes a letter in vindication of the character of one of his clients, in reply to certain charges of conspiracy preferred and pub- lished against the latter. The defendant's letter contains defamatory charges against a third person, the plaintiff. The defendant is not liable if he made the charges in rea- sonable and honest vindication of his client's character, and without actual malice, using terms reasonably war- ranted under the circumstances in which he wrote. ^ Communications by a master, or late master, in re- gard to the character or conduct of his servant, made to a neighbor or other person who is apparently thinking of employing the servant, fall witliin this category of cases. '^ For example : The defendant, having discharged his servant the plaintiff for supposed misconduct, and hearing that»he was about to be engaged by a neighbor, writes a letter to his neighbor, informing him that he has discharged the plaiutitf for dishonesty, and that he cannot recommend him ; the charge of dishonesty being false, but believed by the defendant to be true. The defendant has a prima facie right to make the statement.* The same is true where there exists a very near re- lationship, or a pecuniary connection of confidence, be- tween the parties ; as in the case of a parent admonishing his daughter against the attentions of a particular person, who is falsely charged with the commission of a crime ; or of a partner advising his copartner to have no partnersliip dealing with another, on the false ground, e.g. that he is a thief. ^ See Regina v.Veley, 4 Fost. & F. 1117; Seaman v. Netherclift, 2C. P. Div. 53, ante, p. 130: Wason v. Walter, L. R. 4 Q. B. 73, ante, p. 137. These thiee cases taken properly together justify tlie example, the facts in which vary from Regina v. Veley, in making the imputation relate to a third person. 2 Billings V. Fairbauk.s, 139 Mass. 66 ; Pattison v. .Tones, 8 B. & C. 578. * Pattison v. Jones, supra. Chap. V. §10.] SLANDER AND LIBEL. 141 A confidential relation by pecuniaiy connection is, for the purposes of this protection, much wider than might be supposed from the case of partners last mentioned. A confidential relation, within the scope of the protection to voluntary communications, (probably) arises wherever a continuous or temporary trust is reposed in the skill or integrity of another, or the property or pecuniary in- terest, in whole or in part, or the bodily custody, of one person, is placed in charge of another.^ Besides the cases above stated, this definition will cover communica- tions made by an attorney to his client concerning third persons with whom the client is, or is about to be, en- gaged in business transactions ; ^ communications made to an auctioneer of property concerning the sale by per- sons interested in the property ; ^ communications of land- lords to their tenants imputing immoral conduct to some of the inmates of the premises ;■* and many other cases of a like nature. In most of the foregoing cases, it will be noticed, the communication was volunteered, and this of necessity ; if made at all, it must have been volunteered. That fact accordingly has no bearing upon the question of liability. Indeed, the most that can be said of the fact that a com- munication was volunteered, in a case of privilege, is that it may sometimes be taken, along with other facts, as evidence of malice.^ Alone, however, it would prob- ably have no significance. On the other hand, a communication is not necessarily privileged because of being made upon request, though very often it is privileged. If it should be unnecessarily 1 See 1 Bigelow, Fraud, 262. 2 See Davis v. Reeves, 5 Ir. C. L. 79. « Blackham v. Pugh, 2 C. B. 611. ♦ Knight V. Gibbs, 3 Nev. & M. 467. 6 See Pattison v. Jones, 8 B. & C, 578, 584, Bayley, J. 142 LAW OF TORTS. [Pakt L defamatory under the circumstances, tlie privilege would be lost. Such face would, indeed, show that the writer or speaker was actuated by malice, and would thus destroy the protection which may have been available to the party, and restore to the plaintiff his right of redress.^ Again, a communication made upon request is not pro- tected uuless the request come from a proper person, or at least from one whom the defendant has reason to sup- pose a proper person. If the defendant know, or have good reason to know, that the party making the inquiry has no interest in the matter in question other than that of curiosity, the defendant manifestly is not justified in making the communication. Even the near relatives of a person interested in the subject of the communication cannot by request afford protection to every one to pub- lish defamation of another. For example : The defend- ant, formerly but not at present pastor of a lady, writes a letter to the lady, on request of her parents, warning her against receiving attention from a certain person, the letter containing false and defamatory accusations against him. The communication is not privileged.^ By the general doctrine it devolves upon the defend- ant to show, not onl}' the existence (at the time or before) of the relation between the parties, but also that he acted in good faith, believing that his communication was true.^ And this statement applies throughout the ^ Fryer v. Kiunersley, 15 C. B. n. s. 422. 2 Joannes v. Bennett, 5 Alien, 169. Perhaps the communication would have been privileged had it come from the lady's present pastor ; and it clearly would have been protected had it been written on reipiest of the lady herself. 3 Pattison v. Jones, 8 B. & C. 578 ; Dawkins v. Paulet, L. R. 5 Q. B. 94, 102 ; Clark v. Molyneux, 3 Q. B. Div. 237 ; Odgers, Slander, 199. But see Jenoure v. Delmege, 1891, A. C. 73, Privy Council, which should rest, it seems, npon the special ground that it was the de- fendant's duty to report what he had heard, whether he believed it true or not. Chap. V. § 10.] SLANDER AND LIBEL. 143 law of prima facie privilege. Tt has alroad}' been ob- served that the defendant's belief in the truth of tlie charge is no defence in cases not of privileged commu- nications.^ An analysis of the foregoing cases will show that this doctrine of privilege rests, except in cases of self-vindica- tion, upon interest or duty suitably acted upon, and will justify the following general proposition : A communica- tion believed to be true, and made bona fide upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty to perform, is privileged, if made to a person having a corresponding interest or duty, although it contains defamatory matter, which, without such privilege, would be actionable.*^ It follows from this, that no privilege is afforded the mere repetition of defamation ; and this is true by the weight of authority, though the party repeating it give the name of the person from whom he received it. The repetition of the language is generally deemed actionable to the same extent, and doubtless with the same qualifica- tions, as is the original publication.^ For example : The defendant says to a third person concerning the plaintiff, ' You have heard of the rumor of his failure,' — merely repeating a current rumor that had come to his ears that the plaintiff had failed. The defendant is liable if there was no such relation between him and the party to whom he made the communication as would cause the latter to expect a communication on such matters.* 1 Ante, p. 127. 2 Harrison v. Bush, 5 El. & B. 344 ; Gassett v. Gilbert, 6 Gray, 94 ; Joannes v. Bennett, 5 Allen, 169. 8 De Crespigny v. Wclle.sley, 5 Bing. 392 ; s. c. L. C. Torts, 151 : Stevens v Hartwell, 11 Met. 542 ; Sans v. Joerris, 14 Wis. 663 ; In- man v. Foster, 8 Wend. 602. Contra, Haynes v. Leland, 29 Maine, 233. See also Jarnigan v. Fleming, 43 Miss. 710; Northampton s Case, 12 Coke. 134. * Watkin V. Hall, L. K. 3 Q. B. 396. 144 LAW OF TORTS. [Part I. § 11. Of Criticism. Criticism cannot be defamation, unless it strikes at per- sonal character. It is protected therefore, not because it is privileged, but because it is not defamation. ^ However severe it may be, however unjust in the opinion of men capable of judging, so long, in England at least, as the critic confines himself to what is there called ' fair criti- cism ' of another's works, the act cannot be treated as a breach of dut}'. But if the critic turn aside from the proper purpose of criticism, and hold up one's character to ridicule, he becomes liable. - The criticism of works of art, whether painting, sculp- ture, monument, or architecture, falls within the rule. For example : The defendant sa3's of a picture of the plaintiff, placed on exhibition, ' It is a mere daub.' The defendant, if fair in his criticism, ^ cannot be held liable to an action for defamation, however unjust the criticism. ■* The conduct too of public men amenable to the public only, and of candidates for public office, is a matter 1 Meiivale v. Carson, 20 Q. B. Div. 275 ; Campbell v. Spottiswood, 3 Best & S. 769, 780. This overrules Henwood v. Harrison, L. R. 7 C. P. 606, 626, where, as by some of our courts, criticism is treated as privileged. CriticisTn is privileged only in the improper sense tlmt the act in itself is lawful, not that it is made upon an occasion which protects it. Football is 'privileged ' in the same way. 2 Id. ; Carr v. Hood, 1 Campb. 355, note ; Strauss v. Francis, 4 Fost. & F. 939 and 1107. See s. c. L. R. 1 Q. B. 379. 8 See Merivale v. Carson, 20 Q. B. Div. 275, 280, 283, as to 'fair criticism.' In England, the question is directly put to the jury, whether the criticism is * fair ; ' which is stated to mean whether, in their opinion, the criticism goes beyond what any fair man, however prejudiced or strong his o])inion may be, might express. Merivale v. Carson, at p. 280. See also id. at p. 283. Cases, 144, 148, 149. * Thompson v. Shackell, Moody k M. 187. See Whistler v. Ruskin, London Times, Nov. 26, 27, 1878 (nn/itir criticism); Merivale v. Cnrson, supra; Gott v. Pulsifer, 122 Mass. 235. The receut case of Dooling V. Budget Pub. Co., 144 Mass. 258, turned upon a distinction between criticism of the plaintiff in his business of caterer and ' slander' of title. Chap. V. §11.] SLANDER AND LIBEL. 145 proper for public discussion. It may be made the subject of hostile criticism and animadversion, so long as the writer keeps within the bounds of an honest intention to discharge a duty to the public, and does not make the occasion a mere cover for promulgating false and defam- atory allegations. The question in such cases therefore is, whether the author of the statements complained of has transgressed the bounds within which comments upon the character or conduct of a public man should be con- fined ; — whether, instead of fair comment, the occasion was made an opportunity for gratifying personal vindic- tiveness and hostility,^ as by making false charges of dis- graceful acts.^ In a word, fair criticism or comment upon the real acts of a public man is one thing ; it is ' quite another to assert that he has been guilty of particular acts of misconduct.' ^ Criticism of public men should be lim- ited to matters touching their qualifications for the per- formance of the duties pertaining to the position which they hold or seek.^ If, however, an officer, or an office sought, be not sub- ject to direct control by the public, — if the same be sub- ordinate to the authority of some one having a power of removal over the incumbent, — then (probably) there ex- ists no right to animadvert upon the conduct of such 1 Campbell v. Spottiswoode, 3 Best & S. 769, 776; Merivale v. Carson, 20 Q. B. Div. 275, 283. 2 Davis V. Shepstone, 11 App. Cas. 187. 8 Id. at p. 190. * Our courts differ however, or appear to differ, as to how far criti- cism of public men may go. See on the one hand, Hamilton v. Eno, 81 N. Y. 116 ; Root v. King, 7 Cowen, 613 ; s. c. 4 Wend. 113 ; Sweeney V. Baker, 13 W. Va. 158 ; Curtis v. Mussey, 6 Gray, 261. On the other hand, see Palmer v. Concord, 48 N. H. 211 ; Mott v. Dawson, 46 Iowa, 533. See also Bailey v. Kalamazoo Pub. Co. 40 Mich. 251. But there would probably bo no dispute about the proposition of the text. 10 146 LAW OF TORTS. [Part I. subordinate officer or candidate through public channels. For in such a case the question appears to be one of capacity or of fitness for a particular position. Though engaged in business of the public, the officer is ' not a public man ' but a servant. The proper course to pursue in case of supposed incapacity or unfitness of the party for the position would be to state the case to the superior officer alone, and call upon him to act accordingly.^ It must be understood that the law of slander and libel applies only to defamation in pais ; that is, to defamatory charges not prosecuted in a court of justice. If the defamation consist of an accusation prosecuted in court, the accused must seek his redress by an action for a mali- cious prosecution, in regard to which the right to recover depends, as has been seen, upon quite different rules of law.^ 1 Comp. Odgers, 223, 224. 2 See chapter ii. PART 11. BREACH OF ABSOLUTE DUTY. CHAPTER VI. ASSAULT AND BATTERY. § 1. Lntuoddctokt. Statement of the duty. A owes to B the duty to forbear (1) to attempt with force to do hurt to his person, within reach ; or (2) to hit or touch him in anger, rudeness, or negligence, or in the commission of any unlawful act. There is so much in common in the law of the two wrongs of assault and battery, and the two are so often coincident, that the terms are frequently used without dis- crimination. ' Assault ' is constantly used in the books of cases of contact, making it include ' battery.' ^ But as- sault without contact is a wrong equally with battery ; and it will be convenient and advisable to consider the two subjects separately, however similar the law in regard to them. § 2. Of Assaults (without Contact). An assault (without contact) is an attempt, real or ap- parent, to do hurt to another's person, within reach. It is an attempt to do bodily harm, stopping short of actual execution.^ If the attempt be carried out by physical 1 See the proposed definition in the English draft Criminal Code of ]879; Pollock, Torts, 192, 2d ed. 2 Words are no assault ; but they may be a menace and so actipn- able, with proof of damage. L, C. Torts, 225-227. 150 LAW OF TORTS. [Part II. contact, the act becomes a battery ; but the act is equally unlawful and actionable when it stops with a mere attempt to inflict hurt. It is not alone a blow that, because of unpermitted contact with the person, is unlawful. The sensibility to danger may be intentionally shocked ; and feelings so afl!'ected are within the protection of the law quite as much as the feeling produced by blows. It is actionable for A to shake his fist in the face of B.^ In ordinary cases of assault, the question whether the defendant actually intended to do the bodily harm cannot, as the definition implies, enter into the case. If reason- able fear of present bodily harm has been caused by the threatening attitude, the effect of an assault has been produced ; and not even a disclaimer by the wrong-doer coincident with his act could, it seems, prevent liability. One may well complain of a man who points a pistol at one, though the man truly declare that he does not intend to shoot ; ^ for the ordinary effect of an assault, the in- tended putting one in fear, is produced.^ But it may appear in a particular case that an expressed purpose, or want of purpose, is a determining fact in solv- ing a doubt ; that is, it may be such a part of the act in question as to turn the scales in deciding whether an as- sault has been committed. A denial of present purpose 1 Bacon's Abr. 'Assault and Battery,' A. 2 See Reg. v. St. George, 9 Car. & P. 483, 493, Parke, B. ; Bacon's Abr. 'Assault and Battery,' A ; 1 Hawkins, P. C. 110 ; Pollock, Torts, 193, 2d ed., doubting Blake v. Barnard, 9 Car. & P. 626,628, and Reg. V. James, 1 C. & K. 530. Reg. v. St. George, ut supra, ' would almost certainly be followed at this day.' Pollock, Torts, 193, note, 2d ed. But see Regina v. Duckworth, 1892, 2 Q. B. 83. ^ It may not be necessary, however, to an assault that this effect should be produced. A person assaulted may be entirely fearless, feel- ing sure that the blow will not fall. Again, one may probably be assaulted in the dark without knowing it. But the putting in fear is the ordinary effect, and what might well put in fear is probably a test. Intent to Jiarm is unnecessary ; intent to put in fear is necessary. Chap. VI. § 2.] ASSAULT AND BATTERY. 151 to do barm, or any language indicating a want of such purpose, may serve, under the circumstances, to prevent the excitement of any reasonable fear of present bodily harm. If then it appear that the supposed wrong was committed in such a manner that the plaintiff must have known that no present violence was intended, the act is not an assault. F'or example : The defendant, on drill as a soldier, putting his hand upon his sword, says to the plaintiff, ' If it was not drill-time, I would not take such language from you.' This is not an assault, since the language used, under the circumstances, shows that there was no attempt, real or apparent, to do violence.^ If, however, the plaintiff have reason to believe, from the defendant's hostile attitude, that harm was intended, there is an assault, whether the defendant did or did not Intend harm. So at least it is held for the purpose of civil redress. For example : The defendant in an angry manner points an unloaded gun at the plaintiff, and snaps it, with the apparent purpose of shooting. The gun is known bj- the defendant to be unloaded ; but the plain- tiff does not know the fact, and has no reason to suppose that it is not loaded. The defendant is liable for an assault, though he could not have intended to shoot the plaintiff.^ The parties must generally have been within reach of each other, not necessarily within arm's reach, for an as- sault may be committed (as already appears) by means of a weapon or missile ; and in such a case it is only neces- sary that the plaintiff should have been within reach of the projectile.^ And even when the alleged assault is committed with the fist, it is not necessary that the plain- tiff should have been within arm's reach of the defendant, 1 See Tuherville v. Savage, 1 Mod. 3. 2 Beach v. Hancock, 27 N. H. 223. » Tarrer v. State, 43 Ala. 354 ; State v. Taylor, 20 Kans. 643. 152 LAW OF TORTS. [Part It provided the defendant was advancing to strike the plain- tiff, and was restrained by others from carrying out his purpose when almost within reach of the plaintiff. For example : The defendant advances toward the plaintiff in an angry manner, with clenched fist, saying that he will pull the plaintiff out of his chair, but is arrested by a per- son sitting next to the plaintiff between him and the defendant. The act is an assault, though the defendant was not near enough to strike the plaintiff.^ In like manner, if the defendant should cause the plain- tiff to flee in order to escape violence, he may be guilty of an assault, though he was at no time within reach of the plaintiff ; it is enough that flight or concealment becomes necessary to escape the threatened evil. For example: The defendant on horseback rides at a quick pace after the plaintiff, then walking along a foot-path. The plain- tiff runs away, and escapes into a garden ; at the gate of which the defendant stops on his horse, shaking his whip at the plaintiff, now beyond danger. This is an assault.'^ It will be observed, from the statement of the duty which governs this branch of the law, tliat a mere assault is a civil offence ; and hence the person assaulted has a right of action, though he may not have suffered any loss or detriment from the offence. In such a ease, however, unless the assault were outrageous, he could (probably) recover only nominal damages.^ § 3. Of Batteries. A battery consists in the unpermitted application of force by one man to the person of another. A battery, 1 Stephens v. Myers, 4 Car. & P. 349 ; s. c. L. C. Torts, 217. 2 Mortin v. Shoppee, 3 Car. & P. 373. * The damages recovered iu Ste2>hens v. Myers, supra, were one shilling. Chap. VI. § 3.] ASSAULT AND BATTERY. 153 therefore, is mainly distinguishable from an assault in the fact that physical contact is necessary to accomplish it. But, as the definitiou indicates, this contact need not be effected by a blow ; any forcible contact may be sufficient. For example : The defendant, an overseer of the poor, cuts off the hair of the plaintiff, an inmate in the poor- bouse, contrary to the plaintiff's will, and without author- ity of law. This is a battery, and the defendant is liable in damages.^ Again : The defendant, in passing through a crowded hall, pushes his way in a rude manner against the plaintiff. This is also a battery. - It is not necessary that the defendant should come in contact with the plaintiff's body. It is sufficient if the blow or touch come upon the plaintiff's clothing. For example : The defendant, in anger or rudeness, knocks off the plaintiff's hat. This is enough to constitute a battery.* Indeed, it is not necessary that the plaintiff's body or clothing be touched. To knock a thing out of the plain- tiff's hands, such as a staff or cane, would clearly be a battery ; and the same would be true of the striking a thing upon which he is resting for support, at least if this cause a fall or concussion to the plaintiff. For example : The defendant strikes or kicks a horse upon which the plaintiff is riding, or a horse hitched to a wagon in which the plaintiff is riding. This is a battery.'* Again : The defendant drives a vehicle against the plain- 1 Forde v. Skinner, 4 Car. & P. 239. 2 Cole V. Turner, 6 Mod. 149 ; s. c. L. C. Torts, 218. s Mr. Addison gives this as an example of a batter}', without citing authority ; but there can be no doubt of its correctness. Addison, Torts, 571 (4th ed.), * Clark V. Downing, 55 Vt. 259 ; Dodwell v. Burford, 1 Mod. 24. Probably it would not be necessary that the plaintiff should be thrown from the horse or thrown against anything. 154 LAW OF TORTS. [Part IL tiff's carriage, tlirowing tlie plaintiff from his seat. This also is a battery. ^ Again : The defendant runs against and overturns a chair in which the plaintiff is sitting. This too is a battery. ^ It appears from the foregoing examples that it is not necessary to constitute a battery that the touch or blow or other contact should come directly from the defend- ant's person. Indeed, a battery may be committed at any distance between the parties if only some violence be done to the plaintiff's person. The hitting one with a stone, or an arrow, or other missile, is no less a battery than the striking one with the fist. It is not necessary even that the object cast should do physical harm ; the battery consists in the unpermitted contact, not in the damage. For example : The defendant spits or throws water upon the plaintiff. This is a battery, though no harm be doue.^ In earlier times it appears to have been considered that a batterv might be committed merely b}- negligence. For example : The defendant, a soldier, handles his arms so carelessly in drilling as to hit the plaintiff with them. 1 Hopper V. Reeve, 7 Taunt. 698. '■^ Id. It was held immaterial in this case whether the chair or car- riage belonged to the plaintiff or not. 3 See Regina v. Cotesworth, 6 Mod. 172 ; Pursell v. Horn, 8 Ad. & E. 602. A word of explanation is necessary as to the latter case. The plaintiff had sued for a battery by throwing of water on him, and had failed to prove it, though he proved certain consequential injuries, and had a verdict for below forty shillings. The damages not reaching forty shilling.s, and a battery not having been proved, the plaintiff was not entitled (under the statute) to the costs given him. He now at- tempted to show that he had not sued for a battery at all, or, if he had, that a battery had been admitted by the defendant's plea ; which, if true, would save him his costs as given by the jury. But the court decided against him, and cut down the costs allowed ; thus holding that to throw water upon a person is a battery. Chap. VI. § 3.] ASSAULT AND BATTERY. 155 This is deemed a battery, thougli the act was not intended.^ The above-mentioned case of the running into the plaintilfs carriage miglit be another example.^ But tliere is reason to doubt whether cases short of actual or virtual intention would now be actionable without proof of damage. But a person may be guilty of a battery where his act is directly caused by another person, provided the defendant was at the time committing a crime or a trespass. P'or example : The defendant, when about to discharge a gun unlawfully at a third person, is jostled just as the gun is fired, and the direction of the shot is changed so as to cause the plaintiff to be hit. This is a battery.^ Indeed, in former times every blow which resulted from an intended act, seems to have been looked upon as a battery. The modern authorities strongly tend to a dif- ferent view. There is no battery, according to the modern view, unless the blow itself was intentional, or unless the defendant was otherwise trespassing at the time.^ No man when doing that which is lawful should be held liable for consequences which he could not prevent b}^ prudence or care, though another suffer bodily injury thereby. For example : The defendant's horse, upon which the defend- ant is lawfully riding in the highway, takes a sudden fright, runs away with his rider, and against all the 1 Weaver v. Ward, Hob. 134. See Holmes v. Mather, L. R. 10 Ex. 261. '^ St-e also Hall v. Fearnley, 3 Q. B. 919. 3 See James v. Campbell, 5 Car. & P. 372, where the defendant, in fighting with another, hit the plaintiff with his fist. * Coward v. Baddcley, 4 H. & N. 478, Martin, B. infra ; Holmes v. Mather, L. R. 10 P^x. 261 ; Wakeman v. Robinson, 1 Bing. 213 ; Hall V. Fearnley, 3 Q. B. 919 ; Brown v. Kendall, 6 Gush. 292; Cases, 191; Vincent v. Stinehour, 7 Vt. 62; Nitroglycerine Case, 15 Wall. 524 ; See also Pollock, Torts, 122 et seq., 2d ed. The old cases have fairly ceased to be law, both in England and in America, 156 LAW OF TORTS. [Part IL efforts of the defendant to restrain him, runs against and hurts the plaintiff. This is not a battery or other breach of duty.^ Again : The defendant, walking near the plaintiff, suddenly turns round, and in so doing hits the plaintiff with his elbow. This is not a battery.^ Nor is there necessarily a right of action though (not merely the general action of the defendant, as in the last example, but) the specific act of contact be intentional, for it may have been done in sport ; though sport could doubtless be carried to such an extreme as to create lia- bility. It is not even a decisive test, always, to inquire whether the act was done against the plaintiff's will. The plaintiff may be engaged in criminal conduct at the time ; or he may be lying, unconsciously, in an exposed condi- tion ; or with the best of intentions he may be doing that which the defendant rightly thinks dangerous to life or property. In the first of these cases, an arrest of the plaintiff by laying on of hands will be justifiable ; in the second case, an arousing or removing of him will be proper; and, in the third, the laying on of hands to attract his attention is lawful.* In none of these cases is there liability, though the contact be against the will of the plaintiff.* If, however, the act were clone in a liostiJe manner, the case would be different.^ A battery may be committed in an endeavor to take one's own property from the wrongful possession of another. If the party in possession should refuse to 1 See Vincent v. Stinehour, 7 Vt. 62, and example cited b}^ Wil- liams, C. J. ; and see Holmes v. Mather, supra, a still stronger case. 2 A case put by Martin, B. on the argument in Coward v. Baddeley, 4 H. & N. 478. See Brown v. Kendall, 6 Gush. 292 ; Cases, 191 ; Holmes v. Mather, supra; Holmes, Common Law, 105, 106. 2 As to the last case, see Coward v. Baddeley, supra. * These, however, are properly cases of justification ; the justifica- tion accompanies what otherwise would be actionable. '' Coward v. Baddeley, supra. Chap. VI. § 4.] ASSAULT AND BATTERY. 157 surrender the property, the owner should resort to the courts to obtain it, or await an opportunity to get posses- sion of it in a peaceful manner. He has no right to take it out of the hands of the possessor by force. For exam- ple : The defendant, finding the plaintiff in wrongful pos- session of the former's horse, beats the plaintiff, after a demand and refusal to give up the animal, and wrests the horse from the plaintiff's possession. This is a battery.^ § 4. Of Justifiable Assault : Self-defence : ' Son Assault Demesne.' There are a few cases in which a man is entitled to take the law into his own hands and inflict corporal in- jury upon another. Among these are to be noticed the right of a parent to give moderate correction to his minor child ; the (probable) right of a guardian to do the like to a minor ward placed in his family ; the right of a school- master (when not prohibited by law or school ordinance) to do the like to his scholars ; ^ the (possible) right of a master to do the like to young servants ; and the right of officers of reform, discipline, or correction, to do the like towards the refractory who have been committed to their charge. Aside from these and similar cases, the right to do that which would otherwise amount to an assault or a battery is confined to two or three cases, all of which are justified on grounds either of self-defence or on the ground that the plaintiff really caused the act of which he complains. In the language of the old law the 1 Andre v. Johnson, 6 Blackf. 375. See Siigg.s v. Anderson, 12 Ga. 461. But tlie defendant could keep his horse. Scribner v. Beach, 4 Denio, 448, 451. "^ See Sheehan v. Sturges, 53 Conn. 481 ; Hathaway v. Rice, 19 Vt. 102 ; Commonwealth v. Randall, 4 Gray, 36 ; Cooper v. McJunkin, 4 Ind. 290 ; Fertich v. Michener, 111 lud. 472. 158 LAW OF TORTS. [Part IL wrong complained of by the plaintiff was ' son assault demesne.' A person cannot be liable for an act which he himself has not committed or caused, either personally or by another authorized to act for him. Hence if the plaintiff himself caused the act complained of, the de- fendant cannot be liable to him for it. The chief case to be noticed in which the justification of son assault demesne is allowed, is self-defence. Wher- ever it has become apparently necessary to the defendant's protection to repel force by force, he may do so.^ The right of self-defence is sanctioned as well by the muni- cipal law as by force of nature. And the right extends to the use of physical force in the protection of property as well as of the person of the defendant, provided the property be at the time in the defendant's possession. No one has a right, except under authority of law, to seize upon the property of which the owner is in posses- sion ; to do so is to take the risk of bodily violence. For example : The plaintiff, a creditor of the defendant, seizes the defendant's horses (which the latter is using) for the purpose of obtaining satisfaction of his debt. The de- fendant resists and strikes the plaintiff. He is not liable if he did not exceed the bounds of defence. ^ If the owner or person entitled to possession was out of possession at the time of committing the alleged assault or battery, he will not be permitted to say, by way of 1 Drew V. Comstock, 57 Mich. 176 ; Miller t). State, 74 Ind. 1. The difficulty is in determining when it is apparently necessary to do the thing complained of, and when one may strike or shoot without first ' retreating to the wall.' See Rowland v. Day, 56 Vt. 318 ; Haynes v. State, 17 Ga. 465 ; State v. Dixon, 75 N. Car. 275 ; Cooley, Torts, 190, 2d ed. Retreat cannot he required where action upon the instant ap- pears to be necessary for self-protection. See Beard v. United States, S. C. U. S. 1895 ; Page v. State, 40 N. E. Rep. 745 (Ind.) 2 SeeCluff i;. Mutual Ben. Life Ins. Co., 13 Allen, 308 ; s. c. 99 Mass. 317 ; Scribner v. Beach, 4 Denio, 448. Chap. VI. § 4 ] ASSAULT AND BATTERY. I59 defence, that the phiintiff caused the assault by having previously taken wrongful possession, or by having wrongfully detained the defendant's property. Such is not a case of son assault demesne, as the example already given of the horse taken from the plaintiff's possession by violence shows. ^ And though a trespasser should make an assault upon the owner of property, and seek to take it out of the owner's possession, the owner is allowed to use no greater force in resisting the unlawful act than may be necessary for the defence of his possession. ^ If he should reply to the trespasser's attempt with a force out of pro- portion to the provocation, the act will then be his own battery, and not the plaintiff's ; or again, in the technical language of the old pleading, the plaintiff can then reply to the defendant's plea of son assault demesne, that the tort was ' de injuria sua propria,' — the defendant's own wrong. For example : The defendant, owner of a rake which is in his own hands, knocks the plaintiff down with his fist, upon the plaintiff's taking hold of the rake to get possession of it. The defendant is liable.^ Again : The defendant strikes the plaintiff repeated blows, knock- ing her down several times, upon her refusal to quit the defendant's house. The plaintiff is entitled to re- cover.* Nor is it lawful for the owner of property, in defence of his possession, to make an attack upon the trespasser Avithout first calling upon him to desist from his unlawful purpose, unless the trespasser is at the time exercising 1 Ante, p. 1.57. 2 The allowable force in such a case is expressed by the words of the old pleading ' molliter manus imposuit', — the defendant gently laid his hands upon the plaintiff. 3 Scribner v. Beach, 4 Denio, 448. 4 Gregory v. Hill, 8 T. R. 299. 160 LAW OF TORTS. ITart II. violence. In the example last given, the defendant would have been liable for a mere hostile touch had he not first requested the plaintiff to leave his premises ; unless she had entered his premises with force. ^ In the next place, it is to be observed that a person may not only make reasonable defence of his own person, and of the possession of his own property ; he may do the same towards the members of his own family when at- tacked, '-^ and perhaps also towards the inmates of a house in which he is then receiving hospitality. Cei'tain it is, that a servant may justify a battery as committed in de- fence of his master ; ^ that is, he may do anytliing in his master's defence which his master himself might do. And, on the other hand, notwithstanding some doubts in the books, a master may justify a battery as committed in defence of his servant. For example : The plaintiff attacks the defendant's servant, whereupon the defendant assists his servant to the extent of repelling the attack, and no further. The defendant is not liable.* A person may also justify the use of a proper amount of physical force as rendered in quelling a riot or an affray at the instance of a constable or other officer of the peace,* or perhaps of his own motion, when no officer is present. § 5. Of Violence to or towards one's Servants. It will have been observed that a double breach of duty may be committed by the same assault or battery ; one to the person to whom the violence is done, and, where such person is a servant or a child of the plaintiff, another ^ See Scribner v. Beach, 4 Denio, 448. a 1 Black. Cora. 429. » Reeve, Domestic Eel. 538 (3rd ed.). « Tickell V. Read, Lofft, 215. 6 Year-Book, 19 Hen. 6, pp. 43, 56 ; L. C. Torts, 270. Chap. VI. § 5.] ASSAULT AND BATTERY. IGI breach to the person whom he or she was serving or as- sisting. It follows that each has a right of action against the wrongdoer in respect of the breach of his own indi- vidual right ; the servant or child for the violence (that is, for the assault or battery), and its proper conse- quences, and the master or parent for the loss of service or assistance.^ There will be this difference, however, between the rights of action of the master and the servant (using these terms generically), that the latter will be entitled to recover judgment for the mere assault and battery, though no damage were actually inflicted ; while the former will be entitled to judgment only in case he can prove either (1) that the violence committed was such as to disable the person who sustained it from rendering the amount of aid which he or she was able to render before the act com- plained of ; or (2) that such person was, by reason of the violence, caused to depart from or abandon the service or abode of the plaintiff'.'-^ That is, the master must have sustained an actual damage ; ^ but, if he has thus been in- jured, he is entitled to recover therefor, even though the defendant's act consisted only in violent demonstrations. For example : The defendants, by menaces and angry demonstrations against the plaintiff's servants, cause them to leave and abandon the plaintiff's service. The defend- 1 The relation of parent and child is for such purpose the relation of master and servant. That is not true of the relation of husband and wife ; but whether the husband could recover alone for a battery com- mitted upon his wife without proving special damage, quaere ? 2 The authorities upon this subject are mostly ancient, but they are still law. See L. C. Torts, 226, 227. 3 In the case of an assault or battery upon one's wife, the husband at common law joined in the action ; but the real right of action lay in the wife. And, in times of servitude, the master could perhaps sue for an assault or battery committed upon his villein, even though the former sustained no damage. L. C. Torts, 227. 11 162 LAW OF TORTS. [Part II. ants are liable ; though no bodily violence was committed upon the servants.-^ The plaintiff must, however, either have been entitled to require the services of the party assaulted or beaten, or he must have been in the actual enjoyment of them, if the}- were gratuitous. A pa?*e«^ cannot maintain an ac- tion for an assault or a battery* committed upon his child after the child's majority, unless he or she was then actually in the parent's service ; nor could the parent maintain an action for such an injury committed upon his child during the child's minorit}', if the parent had in any way divested himself of the right to require his child's services.^ It is laid down that, apart from malicious interference, only the parties to a contract (and their successors in right) can maintain an action for a breach thereof; and hence if, in the course of performing a contract between the defend- ant and the plaintiii's servant, the defendant commit a battery upon the servant, which battery works a breach of the terms of the contract, the plaintiff has no right of action for the loss of service following. For example : The defendants, common carriers of passengers, are paid b}' the plaintiff's servant for safe passage from A to B. On the wa}', the servant is assaulted, bruised, and injured by servants acting for the defendants, the defendants thus failing to cany the servant safely according to their agree- ment ; wherebj* the plaintiff loses the injured person's ser- vice for a period of nineteen weeks. The plaintiff is held 1 Year-book, 20 Hen. 7, p. 5 ; L. C. Torts, 226 ; aud compare Walker v. Cronin, 107 Mass. 555 ; Cases, 102. 2 Questions of this sort have generally arisen in actions for seduc- tion ; and, since the subject must be elsewhere fully examined, it need not be further pursued at present. See chapter ill. Chap.VI. §5.J ASSAULT AND BATTERY. 1G3 not entitled to recover ; the injiuy being deemed to be due to breach of duty to the servant alone. ^ This doctrine rests upon the ground tliat the defendant, having contracted with the servant only, owes no duty to the master in the particular case ; the injur}' not having been caused with intent to deprive the master of the benefit of the servant's service. If there were such in- tention, it is clear that the master could recover for the loss sustained ; for if the master can recover against one who bv threats drives awa}' his servants,^ he should be entitled to recover if his servants are assaulted with in- tent to injure him. By the common law, rights of civil action for injuries done to the person (and indeed all rights of action ex delicto, excepting for the wrongful taking or detention of property and like acts),^ cease with the death of the party injured or of the wrongdoer. ' Actio personalis moritur cum persona.' And this rule, though not without strong doubts, has been held to apply to actions by masters for 1 Compare Alton v. Midland Ry. 19 C. B. n. s. 213 ; s. c. 15 Jur. N. s. 672 ; Fainiiount Ry. Co. v. Stutler, 54 Penn. St. 375. See Tay- lor V. Manchester Ry. Co., 1895, 1 Q. B. 134, 140 ; Id. 944 ; Harvard Law Rev., Nov. 1895, p. 215; post, p. 378. 2 Ante, p. 133; L. C. Torts, 226. 8 Ante, pp. 44-46. See Phillips v. Homfray, 24 Ch. Div. 439 ; also the early statutes, 4 Edw. IIL c. 7, 25 Edw. IIL st. 5, c. 5, and the modern one, 3 & 4 Wm. IV. c. 42 ; Pollock, Torts, .^^9, 2d ed. And Lord Campbell's Act, 9 & 10 Vict. c. 93, copied very widely in this country, with slight changes, gives a right of action to the per- sonal representative 'for the benefit of the wife, husband, parent and child of the person ' killed. See Sevcard v. The Vera Cruz, 10 App. Cas. 59 ^overruling The Franconia, 2 P. D. 163) ; Pym v. Great Northern Ry. Co., 4 Best & S. 396, E.x. Ch. ; Buhner (.-. Bulmer, 25 Ch. D. 409. 164 LAW OF TORTS. [Pabt II. the killing of their servants.^ The rule that the action dies with the death of either party permits, however, an action by the master for damages between the time of the injury of the servant and his death, where death was not immediate.^ 1 Osborn v. Gillett, L. R. 8 Ex. 88, Bramwell, B. dissenting strongly. See also Pollock, Torts, 57, 58, 2d ed. 2 Baker i'. Bolton, 1 Camp. 493 ; Osborn v. Gillett, L. R. 8 Ex. 88, 90, 98 ; Sullivan i'. Union Pacific R. Co., 1 Cent. L. J. 595. See also Insurance Co. v. Brame, 95 U. S. 754 ; 2 Southern Law Rev. n. s. 186. CHAPTER VII. FALSE IMPRISONMENT. § 1, Introductory. Statement of the duty. A owes to B the duty to for- bear to impose a total restraint upon B's freedom of locomotion. 1. Tlie terms 'writ,' ' warrant,' 'precept,' and 'pro- cess,' are, in this chapter, used as equivalents, wherever it is not necessary to distinguish them. 2. The term ' irregular,' as applied to a writ, refers to some improper practice on the part of the person who obtains the writ, as distinguished from ' error,' in de- cision.^ A writ is sometimes absolutely void for irregu- larity, ^ and sometimes only voidable. 3. B}' comparatively recent statutes, arrest in civil suits has been prohibited, except in a few special cases, ^ so that the particular facts of man}' of the older authorities no longer appear ; but the principles upon which they rested have not been changed. 'o^ § 2. Of the Nature of the Restraint. A false imprisonment consists in the total, or substan- tially total, restraint of a man's freedom of locomotion, without authorit}- of law, and against his will. ^ Such an 1 See Everett W.Henderson, 146 Mass, 89; Cases, 232. '^ As a writ in execution of a judgment which has been discharged to the knowledge of the person suing out the same. Dcyo v. Van Valken- burgh, 5 Hill, 242. 8 See e. g, Mass. Pub. Stats, c. 162, §§ 1—3, * Bird V. Jones, 7 Q. B, 742, 752, 166 LAW OF TORTS. [Paet II. act maj' be committed not only by placing a man within prison walls, but also by restraint imposed upon him in his own house or room, or in the highwa}', or even in an open field.^ Any general restraint is sufficient to constitute an im- prisonment ; and though this be effected without actual contact of the person, it will be actionable if unlawful. Any demonstration of physical power which, to all ap- pearance, can be avoided only by submission, operates as effectually to constitute an imprisonment, if submitted to, as if any amount of force had been exercised. For exam- ple : The defendant, an officer, says to the plaintiff, ' I want you to go along with me,' with a show of authority, or of determination to compel the plaintiff to go. This is an imprisonment, though the defendant do not touch the plaintiff.^ A person may also be imprisoned, though he had not the full power of locomotion before the restraint was im- posed. It appears to be sufficient if his will has been so overcome that he would not attempt to escape the restraint if he had the physical abilit}' of locomotion. For example : The defendant, a creditor of the plaintiff, goes with an officer to the plaintiff's house, in order to compel him to give security for or make payment of his debt, which is not due. The plaintiff is found sick in bed ; whereupon the officer tells him that they have not come to take him, but to get a certain article of property belonging to the plaintiff, though, if he will not deliver that or give security, they must take him or leave some one in charge of him. The plaintiff, much alarmed, gives up the article. This is an imprisonment.^ 1 Lib. Ass. (22 YAw. III.), p. 104, pi. 85. 2 Brnshaher v. Stegemaiin, 22 Mich. 266, 268. See Hill v. Taylor, 50 Mich. 549. 8 Grainger v. Hill, 4 Bing. N. C. 212; Cases, 67. Chap. VII. § 2.] FALSE IMPRISONMENT. 167 The submission, therefore, to the threatened and rea- sonably apprehended use of force is not to be considered as a consent to the restraint, within a maxim wliich has frequent application in the law of torts, ' volenti non fit injuria.' And the imprisonment continues until the party is allowed to depart, and is involuntary until all general restraint ceases, and the means of effecting it are removed.^ It is not enough that restraint is imposed upon one's freedom of proceeding in a particular desired direction. The detention must be such as to cause escape in any direction to amount to a breach of the restraint ; the restraint should be circumscribmg, except, perhaps, where the only place of escape is an almost impass- able one. For example : The defendant, an officer, stationed at a particular point to prevent persons from passing in a certain direction, restrains the plaintiff from passing that way, but leaves another way open to him, of which, however, he does not wish to avail himself ; and, thus detained, the plaintiff stands there for some time. This is not an imprisonment.^ It follows from the last proposition, and from what had been stated before, that a person detained within walls is none the less imprisoned by reason of the fact that he may make an escape through an unfastened win- dow or door ; since such an act would be a breach of the restraint. If it would not be, there is no imprisou- 1 Johnson v. Tompkiuf?, BalJvv. 571, 602. 2 Bird V. Jones. 7 Q. B. 742. 'A prison may have its honndary large or narrow, invisible or tangible, actual or real, or indeed in con- ception only ; It may in itself be movable or fixed ; but a boundary it must have, and from that boundary the party imprisoned must be pre- vented from escaping ; he must be prevented from leaving that place within the limit of which the party imprisoned could be confined.' Id. Coleridge, J, Cases, 207, 208. 168 LAW OF TORTS. [Part IL ment ; supposing that the unfastened door or window affords a ready means of escape. § 3. Of Arrests with Warrant. Supposing the restraint imposed to amount to an im- prisonment, it is to be noticed that the imprisonment must be a false one, that is, it must be an illegal re- straint of freedom, in order to constitute it a breach of duty. Under what circumstances, then, is an imprison- ment illegal? It would be impracticable to answer this in the way of any general rule, and quite as much so in this place to set down all the cases of the books. The most common and important case of justification, render- ing lawful, that is to say, what otherwise would be unlawful, is where an officer has made an arrest under a lawful warrant of a court of justice.-^ This case will be taken for special consideration. It is to be observed at the outset that the officer, in executing his process, must arrest the person named in it. If he do not, though the arrest of the wrong person was made through mere mistake, it may be a case of false imprisonment. And this appears to be true, though the party arrested bear the same name as the party against whom the writ is directed. P'or example : The defendant, a constable, asks the plaintiff if his name is J. D., to which the plaintiff replies in the affirmative; whereupon the defendant takes the plaintiff into custody, the plaintiff not being the person intended by the writ. This is a case of false imprisonment." If, however, the plaintiff, though not the person in- 1 Soe observation 3, p. 137, of arrests in civil suits. 2 Coote V. Lighworth, F. Moore, 4.'J7. It is to be noticed that the plaintiff in this case did nothing to induce the officer to arrest him as the person intended. Chap. VII. § 3.] FALSE IMPRISONMENT. 1G9 tended by the process, should do anything to mislead the officer, and cause the latter to believe that the former was the person meant by the precept, the officer com- mits no breach of duty in making the arrest. The plaintiffs action is a consent, and something more. For example : The defendant, a sheriff, arrests the plaintiff under process of court, upon a representation made by her that she was E. M. D., and the person against whom the writ had issued ; with the intention of procuring the defendant to arrest her under his writ. The defendant, believing the representation to be true, makes the arrest. This is not a breach of duty.^ The officer's process, however, should so describe the person to be arrested that he may know whom to arrest ; or, rather, that a person whom he proposes to arrest may know whether to resist or submit. If the warrant be de- fective in this particular, the officer acts at his peril in serving it ; and he will be liable to any one whom he may arrest under it. For example : The defendant, a consta- ble, arrests the plaintiff under a warrant reciting the com- mission of a felony by John R. M., and then commanding the officer to arrest the said William M. The defendant is liable for false imprisonment, though the plaintiff is the person intended.^ It follows that the officer may be liable if there be a misnomer in the warrant of the person intended, though the person actually meant was arrested, and that, too, (in other respects) on legal grounds. For example : The de- fendants cause the plaintiff, whose name is Eveline, to be arrested under the name of Emeline in the warrant. This is a breach of duty, though the plaintiff, in her proper 1 Dunston v. Paterson, 2 C. B. N. s. 495. The sheriff, however, had detained the plaintiff improperly after discovering his mistake, and for this he was held liable. 2 Miller v. Foley, 28 Barb. 630, 170 LAW OF TORTS. [Part IL name, was legally liable to such an arrest.-' But the case ■would have been different had the plaintiff been known alike by either name.^ The officer also loses the protection of his warrant if he fail to act in accordance with the duty enjoined by it. He must follow the tenor of his process, and not surpass his authority. For example : The defendant arrests the plaintiff beyond the precincts named in the warrant. This is a false imprisonment.^ It is further to be noticed that, though the process and arrest be valid, the protection of the officer may be lost by oppressive or cruel conduct. For example : The de- fendant, charged with a warrant simply to take the body of the plaintiff, unites with the person at whose instance the arrest is made in illegally extorting money from the plaintiff by working upon his fears. The defendant is liable for a false imprisonment.* The officer's protection will not extend to any detention after the warrant has expired. The warrant, however valid at first, will not justify such an act. If the officer has reason for holding the prisoner after the expiration of the warrant, he must procure new process. He can hold the prisoner only for a reasonable time before his examination ; after that time, the warrant loses its vitality. For example : The defendant arrests the plain- tiff, and takes him before a magistrate on a charge of larceny, detaining him for a period of three days, in order that the party whose goods had been stolen might 1 Scott V. Ely, i Wend. 555. 2 Griswold v. Sedgwick, 1 Wend. 126. 8 Tlii.s is too fundamental to have been much agitated in the courts. No authority is needed for the example. * Holley V. Mix, 3 Wend. 350. In such a case the process appears to be used as a mere subterfuge to cover an unlawful purpose and act. Hence it is that not merely the subsecjueut act but the arrest itself is unlawful. See post, pp. 226-228. Chap. VII. § 3.] FALSE IMPRISONMENT. 171 have an opportunity to collect his witnesses and prove the crime. Tliis is a false imprisonmeut, the detention being unreasonable.^ When an arrest has been made upon a valid warrant, the officer may detain the prisoner on any number of other valid warrants which he has at the time, or which may afterwards, during the detention, reach him. But if the officer make the arrest on void process, or in an otheri wise illegal manner, he has no right to detain the party on any valid process which may be in his hands ; for the officer, upon a principle elsewhere stated, cannot avail himself of a custody effected liy illegal means to execute valid process.^ The prisoner should first be per- mitted to go at large, and then arrested under the valid warrant. For example : The defendant improperly arrests the plaintiff without a warrant, and while holding him in custody delivers him to an officer. The defendant after- wards receives a valid warrant for the plaintiff's arrest from an officer who held it at the time of the arrest. The plaintiff has a right of action for a false imprison- ment.^ The principle to be derived from the cases (to restate this important doctrine in the language of the courts)* is, then, that where the officer legally arrests the party in one action, the arrest operates virtually as an arrest in all the actions in which the officer holds valid writs against him at the time ; for it would be an idle ceremony to arrest the party in the other cases. And this detainer will hold good, though the court may, upon collateral 1 "Wright V. Court, 4 B. & C. 596. The prisoner should have been taken before a magistrate at once. ^ Hooper v. Lane, 6 H. L. Cas. 443; 8 Barratt v. Price, 9 Bing. 566. * Tindal, C. J. in Barratt v. Price, and Williams, J. in Hooper v. Lane, supra. 172 LAW OF TORTS. [Part II. grounds, unconnected with the act of the oflBcer, order the party to be discharged from the first arrest. But where the officer has illegally arrested the party, he is not in custody under the first warrant, but is suffering a false imprisonment ; and such false imprisonment, being no arrest in the original action, cannot operate as an arrest under the other warrants in the officer's hands. It is important, in the next place, to inquire into the right of an officer to retake a prisoner under the original warrant, after an escape. It is clear that if the escape was made without the consent of the officer, while the writ was still in force, the prisoner may be retaken on the old warrant, without rendering the officer liable to an action for false imprisonment. In case of an escape per- mitted by the officer, his right of retaking on the old writ will depend on the nature of the case. When, in civil cases, an arrest is proper, an officer who has arrested a man may, it seems, retake him before the return of the jDrocess, though he voluntarily permitted him to escape immediately after the arrest. So at all events it was held under the old law. For example : The defendant arrests the plaintiff in civil process, and on the following day releases him upon the latter's request. Two days after- wards, the defendant rearrests the plaintiff on the old process and commits him to jail, where he remains until he gives bail ; the old process not being yet returnable (that is, being still in force). This is not a breach of duty on the part of the officer.^ In regard to criminal cases, there has been some con- flict of authority concerning the right to take the prisoner without new process. It has sometimes been decided that the prisoner may be so retaken.^ In later decisions, this 1 Atkinson v. Matteson, 2 T. R. 172. 2 Clark V. Cleveland, 6 Hill, 344. In this case, the prisoner had Chap. VII. § 3.] FALSE IMPRISONMENT. 173 doctrine has been denied to be law, except in so far as it may apply to the case of a prisoner who, after escape, has returned and given himself into custody of the oflicer ; in that case the prisoner can be detained under the old warrant.^ And this appears to be the true rule and dis- tinction. For example : The defendant, an officer of the peace, clothed with a warrant to arrest the plaintiff upon a charge of larceny, executes the same upon her, and takes her before a justice of the peace, who receives her recognizance to appear for trial at another court upon a certain day. She is then discharged from arrest. No court is held at the place and time stated. Afterwards the defendant rearrests her upon the old warrant, and takes her before another magistrate. This is a false imprisonment.^ An arrest made under a void writ will generally render the officer, as has already been stated, liable to an action for false imprisonment. But in order to subject him to such liability, the writ must have been actually void ; that is, of no more validity than waste paper. If it be voidable merely, or if, though void, the fact does not appear on the face of the process, especially if the officer does not know that the process is void, it will afford a protection to the person who serves it.* Now a writ will be void (1) if it be materially defective in language ; an example of which may be seen in the been let to bail in the wrong county, and then released from custody ; and, in an action by him for malicious prosecution, it was held that the plaintifi' was still liable to arrest under the orij,'inal warrant, and that, therefore, the proceedings not being terminated, the action could not be maintained. 1 Doyle V. Russell, 30 Barb. 300. ' Id. 3 Tarlton v. Fisher, 2 Doug. 671 ; Deyo v. Van Valkenburgh, 5 Hill, 242. 174 LAW OF TORTS. [Tart II. case above stated, where the writ failed to show who was intended. A writ will be void (2) if the whole proceeding in which it was issued was beyond the jurisdiction of the court granting it. For example : The defendant executes a warrant against the plaintiff for the collection of road taxes ; the warrant being issued by a justice of the peace who has no authority over such taxes. The writ is void, and the defendant is liable for false imprisonment.^ A writ will be void (3) where the court, though having jurisdiction over the subject-matter of a proceeding, has no authority to institute it by a warrant. For example : The defendant, an officer, executes a warrant for the ar- rest of the plaintiff in a complaint for the non-payment of wages. The court issuing the writ has jurisdiction over such cases, but has no power to issue a warrant ; a sum- mons being the only process allowed. The writ is void, and the defendant is liable.^ In all of these cases, the writ is said to show its inva- lidity upon its face, and when this is the case the officer is not bound to serve it. The effect of the second and third of these rules is to require the officer to know the general extent of the jurisdiction of the court which he is serving. Further than this the law does not go ; and in other cases the officer will be protected, though his writ were voida- ble and liable to be set aside for error, or even though it were actually void.^ Cases of this kind are always within the limits of the court's general jurisdiction ; and the offi- cer is not liable, since, though bound to know the extent of the court's jurisdiction, he is not presumed to know the nature and propriety of all the proceedings in a cause. If his writ do not indicate its invalidity on its face, the officer 1 Stephens v. Wilkins, 6 Ban-, 260. 2 Sherf^old v. Holloway, 2 Strange, 1002. 8 See Deyo v. Van Valkenburgh, 5 Hill, 242. Chap. VII. § 3.] FALSE IMPRISONMENT. 175 is ordinarily safe, though the writ ought not to have issued. To put the case in the form of a more general proposi- tion, as laid down upon great consideration, a ministerial officer is protected in the execution of process, wliether the same issue from a court of limited or of general juris- diction, though such court have not in fact authority in the particular instance, provided that on the face of the process it appears that the court has jurisdiction of the subject-matter, and nothing appears therein to apprise the officer that the court has not authority to order the arrest of the party named in the process. For example : The defendant, a constable, arrests the plaintiff under a warrant from a justice of the peace issued upon a judg- ment against the plaintiff in an action within the jurisdic- tion of the court. The court has authority in such cases to issue a warrant, but in this particular instance the suit has not been instituted by the issuance of the necessary process for the appearance of the then defendant, now plaintiff. The defendant has violated no duty to the plaintiff, and is not liable, though the court had no au- thority to issue the warrant under such circumstances, the process not indicating the fact.^ Again : The defendant, an officer, arrests the plaintiff, a member of the Legisla- ture, privileged at the time from arrest, the writ not indi- cating the fact. This is not a false imprisonment.^ The clerk of the court (probably) will also, like the officer who serves the precept, be liable in case he made out the writ in a defective form. He has done that which he has no right to do, and is therefore forbidden to do ; and he must accordingly stand upon the same footing with the officer. 1 Savacool v. Bonghton, 5 Wend. 170 ; Cases, 216. 2 Tarlton v. Fisher, 2 Doug. 671. 176 LAW OF TORTS. [Part IL The clerk may also be liable when the ofEcer who serves the writ is not liable. And this will be the case when- ever the writ, though regular on its face (and hence a justification to the officer) , was issued without orders of the court, under circumstances in which such issuance is not by law allowed. For example : The defendant, clerk of an inferior court, issues a writ of capias on which the plaintiff is arrested, without the presence or intervention of the court, upon a default of the plaintiff, as to the granting of which the law requires that the judge should exercise certain judicial functions. The defendant is guilty of a breach of duty, and is liable to the plaintiff ; and this too though he only conformed to the usual prac- tice of the court in such cases, since a court cannot dele- gate its judicial functions.^ The clerk will also (probably) be liable, like both the officer and the judge, when the writ, issued by order of the court, shows upon its face that the whole cause was without the jurisdiction of the judge. It will be differ- ent, however, if, while the proceeding was within the jurisdiction of the court, the particular act merely, com- manded by the court, was in excess of its jurisdiction, without the clerk's knowledge. The clerk is a merely ministerial officer, like the sheriff or constable, and is no more bound than such officer to know of the legality of orders of the court within its jurisdiction. For example : The defendant, clerk of a county court, by order of the judge signs and seals a warrant for the arrest and impris- onment of the plaintiff for a period of thirty days, after a certain date, upon failure to conform to an order of court ; when the order of commitment should have required an earlier arrest. The defendant is not liable, though the judge (as will be seen) would be.* 1 Andrews v. Marris, 1 Q. B. 3. 2 Dews V. Riley, 11 C. B. 434. CuAP. VII. §3] FALSE IMPRISONMENT. 177 The judge of an inferior court, if he authorizes the ar- rest, is lialjle whenever the officer, acting in strict accord- ance with his precept, is liable ; provided the precept be not void for defective language. As the judge does not make out the writ, he cannot be liable for such defect ; and the clerk is not his agent or servant.^ In other cases, that is, when the court has not jurisdiction of the cause, the proceeding is coram uon judice : the court loses its judicial function, and the judge becomes a mere private citizen.^ But more than this, the judge may be liable when the officer is not. This will be true whenever the judge has plainly exceeded his jurisdiction, though in a matter not affecting the officer. For example : The defendant, a justice of the peace, fines the plaintiff under the game laws, as he may do, and then sends him to jail without any attempt to levy the penalty upon his goods, which he has no right to do. He is liable for false imprisonment ; though the officer who executes the writ is not.^ When the question of the court's jurisdiction turns on matter of fact, it is laid down as well settled that a judge of a court of record with limited jurisdiction, or a justice of the peace acting judicially, with special and limited au- 1 Carratt v. Morley, 1 Q. B. 18. 2 The Marshiilsea, 10 Coke, 68 b ; s. c. L. C. Torts, 278, note. ^ Hill V. Bateman, 2 Strange, 710. The arrest was justifiable, so far as the sheriff was concerned, because, though in the particular instance unauthorized, it was still within the power of the justice to grant such a writ in a proper case ; that is, after an ineffectual attempt to levy the penalty upon the party's goods. The officer was not bound to know whether such an attempt had been made. Possibly he might be thought liable had he known that no such attempt had been made ; and this knowledge might jierhaps have been easily proved. The cases U]ion this point are conflicting. See Tierney v. Frazier, 57 Texas, 437, 440, 441. It is there justly considered to be the better view that the officer's knowledge cannot be taken against him. Wilmarth v. Burt, 7 Met. 257, 2G0, 261, Shaw, C. J. : Cases, 227. 12 178 LAW OF TORTS. [Faet II thority, is not liable to an action of trespass (of which the action for false imprisonment is an example) for acting without jurisdiction, unless he had the knowledge, or means of knowledge of which he ought to have availed himself, of that which constitutes the defect of jurisdic- tion.^ And it lies upon the plaintiff in every case to prove the fact.^ For example : The defendant, a justice of the peace, having jurisdiction to grant a capias in cer- tain classes of civil offences, committed within his dis- trict, orders the arrest of the plaintiff, on suit brouglit against him by a third person, for an offence committed without his district. The defendant, however, has no knowledge that the act was committed beyond his district, nor is he put upon notice of the fact by anything arising before the arrest. He is not liable for a false imprison- ment,^ unless he acted maliciously and without probable cause.* When, however, the question of jurisdiction does not depend upon the proof of certain facts, but upon a ques- tion of plain law, the judge acts at his peril ; and then if he order the arrest of an individual when he has no juris- diction, not determinable on facts, he will be liable for false imprisonment. For example : The defendant, judge 1 Calder v. Halket, 3 Moore, P. C. 28, Parke, B. ; Pease v. Chaytor, 32 L. J. Mag. Cas. 121, Blackburn, J. ^ Calder v. Halket and Pease v. Chaytor, supra, in which Carratt v. Morley, 1 Q. B. 18, apparently contra, is doubted. ^ See Pease v. Chaytor, supra, opinion of Blackburn, J. at pp. 125, 126, from which this example is framed. Another example may be seen in Lowther v. Kadnor, 8 East, 113, 119. A distinction must, however, be noticed (which was pointed out in Pease v. Chaytor) be- tween a proceeding to prevent the enfoicement of a judgmcmt in such a case — fJiat would be proper — and an action against the judge of the court, as in the example. * Id. In such a case, the suit would properly be an action fo? malicious prosecution. CuAP. VII. § 3.] FALSE IMrillSONMENT. 179 of a court of record of limited jurisdiction, directs the arrest of tlie plaiutiff for couteuipt of the process of the court, and connnits him to jail. The commitment is uu- autliorized, and is made under a mistake of plain law about the powers of tlie defendant, and not under mis- take as to the facts ; the statute requiring that the process (under the circumstances) should have been issued by the court of another county. The defendant is liable.-^ From the statement of the foregoing principles and ex.. amples, it will be seen (1) that the officer alone may be liable for false imprisonment ; as where he executes his writ upon the wrong person, without the latter's fault : (2) that the clerk alone may be liable ; as where, without direction from the judge, he issues a precept regular in form, and within the jurisdiction of the court, but which he had no right at all to issue : (3) that the judge alone may be liable ; as where, having jurisdiction over the cause, he orders the issuance of the warrant under cir- cumstances in which the act was improper : (4) tliat the officer and the clerk may alone be liable ; as where the writ contains substantially defective language : (o) that all three may be liable ; as wliere the whole cause, in the course of which the writ is issued (at the command of the judge), is without the jurisdiction of the court. This is not all. Tlie liability for a false imprisonment may extend to the attorney at whose instance the proceed- ing was begun, and, further still, to his client who author- ized him to begin it. Indeed, this will always be the case wherever it can be properly said tliat the wrongful im- prisonment was ordered or participated in by the client. When the judge assumes the power of ordering the warrant, upon a statement of the grounds, the act (with the exception to be stated presently) is his own, and not 1 Houlden v. Smith, 14 Q. B. 841. 180 LAW OF TORTS. [Part IL the attornej^'s or his client's ; ^ and this, too, in America, though the writ were asked for on false representations ; ^ the attorney or client has not set a ministerial but a judi- cial officer in motion.^ If this be the extent of the connec- tion of the attorney and client with the arrest, neither can be liable, whether the writ was granted upon a mistaken view of the case b}' the judge in regard to his jurisdiction (in which case he might be liable), or was issued in a materiall}' defective form (in which case the clerk and the officer would be liable) ; the act is that of another. Illustrations may be seen in the examples above given. Hence the attorney and client may not be liable, though the process was void on its face.* It is laid down in England, contrary to recent American authorit}', that when the warrant was issued under false representations, or even through mistake of counsel or client, the act is not the act of the judge, unless he had no jurisdiction to grant the process, but of the attornej-, 1 Cooper V. Hanling, 7 Q. B. 928; Williams v. Smith, 14 C. B. N, s. 596 ; Smith v. Sydney, L. R. 5 Q. B. 203. 2 Everett v. Henderson, 14fi Mass. 89 ; Cases, 232, ' In this appears a clear distinction between an action for false imjirisonment and one for malicious prosecution. ' The party making the charge [before a magistrate] is not liable to an action for false im- prisonment, because he does not set a ministerial officer in motion, but a judicial officer. The opinion and the judgment of a judicial officer are interposed between the charge and the imprisonment.' Austin v. Cowling, L. R. 5 C. P. 534, 540, Willes, J. * Carratt r. Morley, 1 Q. B. 18. The author withdraws his criti- cism on this case, made in his Leading Cases on Torts, p. 280. The client had done nothing but to ask for a writ ; and the court, acting judicially, granted it. The act was, therefore, the act of the judge, and not of the party. The latter, to be liable, must either have directed the execution of the writ after its issuance, or hive obtained it from the court in an irregular manner, or have participated in the execution of it. Chap. VII. § .3.] FALSE IMPRISONMENT. 181 and of his client whom he represents.^ The consequence is, that both are there Uable for false imprisonment ui)oii the execution of the warrant, even though they take no further steps in the matter than those involved in obtain- ing the same.2 For example : The defendants, attorney and client in a former suit against the present plaintiff, obtain a warrant therein for the latter's arrest upon ma- terial misrepresentations made in an affidavit upon which the warrant is awarded, on account of which misrepre- sentations the warrant is, after the plaintiff's arrest, set aside. They are both liable.^ Again : The defendant, by his attorney, in a former suit against the now plaintiff, pro- cures the arrest therein of the last named under a writ issued by mistake against a person not bearing the name of the present plaintiff. This is a false imprisonment, and the defendant is liable, although the person intended was arrested.* Again : The defendants, attorney and client in a former civil action against the now plaintiff, in which they obtained judgment against him, obtain a warrant for the arrest of the plaintiff by virtue of the judgment, after a discharge therefrom of the plaintiff by proceed- ings in insolvency, of which the defendants had notice. They are liable for false imprisonment ; unless it can be shown that the discharge was obtained by fraud.^ 1 \Yilliams r. Sniitli, 14 C. B. N. s. 596 ; Codriiigton v. Lloyd, 8 Ad. & E. 449 ; Collett v. Foster, 2 Hurl. & N. 35t3. See Davies v. Jenkins, 11 M. & W. 745. 2 This, in Engknid, appears to be considered as irregularity, which is the act of the party and not of the court. In Massachusetts, issu- ing the writ on false representations would be error, which is the act of the court. Everett v. Henderson, 146 Mass. 89 ; Cases, 232. 8 Williams v. Smith, 14 C. B. n. s. 596. The action was not sustnined in this second suit, because the misrepresentations were not material. * See Jarmain v. Hooper, 6 Man. & G. 827. 6 Deyo V. Van Valkenburgh, 5 Hill, 242. This is the exception 182 "LAW OF TORTS. [Part II The attorney, and his client with him, may, in other cases also, become liable where the arrest lias been ordered bv the judge. Such a result will come about whenever the attorney participates in any manner in effecting the arrest after the issuance of the improper warrant. For example : The defendants, attorney and client in a former litigation against the present plaintiff, having obtained an erroneous warrant against the latter from the judge, the attorney personally puts the precept into the officer's hands, and directs him to serve it. The defendants are both liable ; the attorney because of his personal interference, the client because bound by the act of his attorney in the ordinary course of the litigation.^ Again : The defend- ant, an attorney, indorses with his name and residence an invalid warrant, issued against the plaintiff. This makes him a participant in the false imprisonment which follows ; ^ and his client also. It will thus be seen that there may be cases in which all the parties named will be jointly liable, client, attor- ney, officer, clerk, and judge. Such will be the result where the attorney personally directs the officer to serve a writ upon the plaintiff, issued by the judge's order, in a civil cause, wholly beyond the jurisdiction of his court. There is a structural distinction between civil and crim- inal cases ; the parties are different. A civil suit is a litigation between individuals ; a criminal suit is a litiga- tion between the public and an individual. The prose- alluded to above, by which the attorney and client are liable, though the judge has been merely asked to grant the warrant. But it was misconduct to ask for the warrant wlien it was known that the judg- ment had been discharged, unless proof could be binught that the dis- charge was fraudulent. The judge, having no jurisdiction to grant the warrant in such a case, would also be liable, it seems. 1 Barker v. Braliam, 2 W. Black. 866 ; s. c. L. C. Torts, 235. 8 Green v. Elgie, 5 Q. B. 99. Chap. VII. § 3] FALSE IMPRISONMENT. 183 cutor in a criminal action does not represent the plaintiff in a civil suit. A civil proceeding is instituted in the interest and for the benefit of the plaintiff, and is under his control tlirougliout ; the plaintiff is ' dominus litis.' False steps and niiscouduct on his behalf in the course of the litigation will therefore bind him, as has already been seen. The prosecutor of crime, however, is not a party to the litigation instituted by him. Tlie proceed- ing is not carried on primarily in his interest ; and he has no control over its course. The consequence is, he can- not be bound by the action of the attorney-general or other prosecuting officer. He may, however, bind him- self, and become liable for a false imprisonment by acts of his own, or of counsel whom he may employ to assist the attorney-general. If the prosecutor or his attorney should personally direct the service of invalid process, whether void or only voidable, he would be liable to the party arrested.^ Before an action for false imprisonment under process of court can be maintained, it is necessary that the pro- cess should be set aside, unless it appear to be absolutely void. For if the process be merely voidable, it is valid until quashed ; and hence the arrest must, till then, be legal. If, however, the process be absolutely void, and the action be brought against the proper party or parties, it is not necessary (probably), either in cases of civil or of criminal arrest, to have it set aside before suing for false imprisonment. For example : The defendant pro- cures the arrest of the plaintiff on a warrant issued upon a judgment which the former knows to have been dis- charged; and the plaintiff sues for false imprisonment without first having the process set aside. The action is i Hopkins V. Crowe, 4 Ad. & E. 774. 184 LAW OF TORTS. [Part IL maintainable ; the process being absolutely void.^ Again : The defendant, a justice of the peace, procures the arrest of the plaintiff upon four convictions before him of bakino- bread on one and the same Sunday ; the law permitting but one conviction in such a case. The defendant is lia- ble for false imprisonment, though the wrongful convic- tions be not first quashed.^ In both civil and criminal cases, however, the action is to be distinguished from a suit for malicious prosecution. The process under which an imprisonment was made may have been, as regards the party or parties sued for the tort, either void or voidable ; ^ and, in such a case, the action is maintainable without proof of malice, or of want of probable cause, or of the termination of the prosecution. In an action for malicious prosecution, however, it matters not whether the writ was void, void- able or valid ; the suit is for an unlawful prosecution, and to make such a case the plaintiff must prove the set of facts just stated. § 4. Of Arrests without "Warrant. It is not necessary, however, in all cases, that an arrest for an infraction of the law should be made under authority and by command of a warrant. There are occa- sions on which the utmost promptness of action is required for the attainment of the ends of justice in the appreheu- 1 Deyo V. Van Valkeuburgli, 5 Hill, 242. 2 Crepps V. Burden, 2 Cowp. 640. In this case there M'as no arrest, but merely a levy on the plaintitt's goods for the amount of the penalty ; but the principle wonld be the same. 8 It will be noticed that to sustain an action against the officer who served the writ, or against the clerk, the writ must have been void on its face ; while it is enough in this respect, to sustain an action against the judge or attorney and client, that the writ was only voidable. Chap. VH. § 4.] FALSE IMPRISONMENT. 185 siou of law-breakers ; and the necessities of society have in such cases furnished a justification for the arrest of offenders without a formal warrant of a court of justice. But tlie law does not encourage the making of arrests in this manner ; on the contrary, in the interest of liberty, it prefers a slower and more deliberate proceeding by war- rant, issued upon solemn oath concernmg the facts, in all cases in which the administration of justice can thus be efficiently carried out. The occasions on which arrests without a warrant are considered justifiable upon the above-stated ground are well defined. In the first place, it must be well under- stood that the right to make such arrests is confined alto- gether to infractions of the criminal law. In no case can an officer make an arrest in a civil cause without the protection of a warrant. It may be true, as has already been stated, that, in cases of the release of a prisoner arrested on process in a civil action, the officer may re- take the party without obtaining a special warrant for this particular purpose ; but that is because he has already a warrant, which is still in force. Hence, the officer does make the arrest under a writ ; and he must justify his act under that writ. The first case to be mentioned in which an arrest can be made without a warrant, is when the arrest is made upon tlie spot, at the time of the breach of the peace. Such a case comes directly within the reason above men- tioned, namely, the necessities of society ; nor could there be any use of requiring an affidavit and warrant in such a case, even if the delay might not be fatal. The right thus to arrest on the spot applies equally to all breaches of the peace, whether the act be a crime or a misdemeanor. An arrest without warrant may also be made by an offi- cer of the law, qualified for the making of arrests, upon ' suspicion of felony,' to use a common expression of the 2 85 LAW OF TORTS. IPart IL books. The meaning of this is, that if in an action for false imprisonment, without warrant (that is, because without warrant), the officer can show that, though no felony was in fact committed, he had probable cause to suppose that the prisoner had committed such a crime, he has violated no duty to the plaintiff in thus making the arrest. For example : The defendant, a constable, having probable cause to believe that the plaintiff is guilty of the felony of receiving or aiding in the concealment of stolen goods, arrests him without a warrant, and conveys him to jail, where he detains the prisoner until he can make applica- tion to a magistrate for a warrant against him as a re- ceiver of stolen goods. The warrant is refused, and the prisoner at once discharged. The defendant is not liable.^ The officer's suspicion must, however, as above inti- mated, be a reasonable ground to suppose the prisoner guilty of a felony ; that is, it must be such a strong sus- picion as would justify a man of caution in entertaining a belief of the party's guilt. If the circumstances do not warrant such a belief, even though in fact a felony has been committed, the officer violates his duty to the plain- tiff by arresting him without process of court. ^ For exam- ple : The defendant, a constable, arrests and imprisons the plaintiff, without process, under the following circum- stances : The cart of the plaintiff, a butcher, is passing along the highway, when a person, in the habit of attend- ing fairs, stops the cart and says to the officer (defendant), * These are my traces, which were stolen at the peace- 1 Eohan v. Sawin, 5 Gush. 281. 2 The process would justify the officer in such a case, since the gi-anting of it would be a declaration of the judge that there exists probable cause to believe the party guilty. The term ' probable cause ' here, as in the chapter on Malicious Prosecution, is used for ' reason- able and jirobablc cause.' Chap. VII. § 4.] FALSE IMPRISONMENT. 187 rejoicing last year.' Tlie defcnflant asks the plaintiff how he came by the traces. The plaintiff re])lies that he saw a stranger pick them up in the road, and bought tliem of him for a shilling ; whereupon he is taken into custody, and, on examination before a magistrate, discharged. This does not show probable cause for the arrest, and the defendant is liable.^ In the authority from which this example is taken, the whole case was given to the judges, with power to act as a jury so far as might be necessary for the decision of the question before them. It therefore does not appear from the decision, whether the question of probable cause is to be considered as a question for the judge or for the jury ; and the point was expressly left undecided by the judges. The question has, indeed, been one of some difficulty. In some of the cases it has been tacitly assumed that the jury must determine whether the officer had probable cause for taking the plaintiff into custody ; ^ in others, that it is for the court to say whether the facts proved show proper cause. ^ The point has, however, been decided in Eng- land in accordance with this latter view, tliough not with- out expressions of regret ; ^ making tlie rule to conform to that of actions for malicious prosecution. If the analogy furnished by the law of actions for ma- licious prosecution is to be fully carried out, and it appears reasonable that it should be, it will also be necessary for the officer to show that this reasonable ground for making the arrest consisted of facts within his own possession at the time of the arrest, and that he cannot justify on facts 1 Hogg V. Ward, 3 H. & N 417 ; Cases, 244. 2 Beckwith v. Philby, 6 B. & C. 635 ; Rohan v. Sawin, 5 Cush. 281 ; Rrockway v. Crawford, 3 Jones, 433. 3 Hill V. Yates, 8 Taunt. 182 ; Davis v. Russell, 5 Bing. 354. 4 Lister v. Perrynian, L. R. 4 H. L. 521, 531, 538, 539. 188 LAW OF TORTS. [Part IL which afterwards came to his notice. Nor, ou the other hand, if his justification lie in the facts before him at the time of talving the party into custody, will his defence be overturned by evidence of facts indicating innocence, that came to his notice after the imprisonment,^ At common law, no valid arrest without a warrant can be made for a misdemeanor, except ou the spot.'^ To ar- rest a man, without process, on suspicion that he has committed a misdemeanor, although upon probable cause for his arrest, is a breach of duty. For example : The defendant, a constable, arrests the plaintiff without a writ on the statement of J. M., that the plaintiff has committed the offence of perjury, by wilfully aud corruptly making a false affidavit in a judicial proceediug before the Honor- able W. W., judge of a court, aud he takes the plaintiff into custody upon this charge, at the direction of J. M. He is liable to the plaintiff for a false imprisonment ; ' though he would not have been, had the offence charged been a felony. And the an-est must not only have been made upon the spot ; it must also have been made, in the case of au ac- tual breach of the peace, before the breach has entirely ceased. For example : The defendant, a constable, takes the plaintiff into custod}^ without a warrant under the fol- lowing circumstances : The plaintiff had been making a disturbance about certain premises in the night-time, and had refused, on request of the defendant, to desist. Per- ceiving that the defendant intends to arrest him, the plam- tiff flees and is pursued, overtaken, and arrested ; the ^ See ante, pp. 90, et seq. 2 Whether and how far this may have been changed in regard to the duties of policemen in large cities cannot here he considered. 3 Bowditcli V. Ralehin, 5 Ex. 378. See Coinnionwoalth i'- Carey, 12 Cush. 246, 252 ; Commonwealth v. McLaughlin, Id. GIT), 618. Chap. VII. § 4.] FALSE IMPPJSOXMENT. 189 disturbance haviug previously ceased. The defendant is liable.^ In the case of affrays, however, an arrest may be made without a warrant not only during the actual breach of the peace, but so long as the offender's conduct shows that the public peace is likely to be endangered by his acts. Indeed, while those are assembled together who have been committing acts of violence, and the danger of re- newal continues, the affray may be said to continue ; and during the affray, thus understood, the officer may arrest the offender not only on his own view, but even on the in- formation or complaint of another. This is true even of an arrest by a private citizen.^ For example : The de- fendant arrests the plaintiff without process under the following circumstances : The plaintiff had entered the defendant's shop to make a purchase, when a dispute arose between the plaintiff and a servant of the defendant resulting in an affray between them. The defendant, coming into the shop during the affray, orders the plaintiff to leave, which he refuses to do ; the violence having then ceased, though there is still danger of a renewal of the affray. The defendant now gives the plaintiff into the custody of an officer. This is no breach of duty to the plaintiff.^ The example given leads to the consideration of the na- ture of the right of a private citizen to arrest offenders without process of court ; for it is (probably) lawful for 1 Compare Baynes v. Brewster, 2 Q. B. 375, where tlie defendant, on such facts, was a private citizen ; but the rule would have been the same had he been an officer, as the language of Mr. Justice Williams in that case shows. 2 Timothy v. Simpson, 1 Cromp. M. & R. 757 ; s. c. L. C. Torts, 257 ; Baynes v. Brewster, 2 Q. B. 375, 3S6. * Timothy v. Simpson, supra. 190 ^AW OF TORTS. [Part H such a person to make an arrest upon a warrant under the same cu'cumstances in which an oHicer could do so. The rule of law in regard to arrests for misdemeanors by private citizens is the same as prevails concerning offi- cers ; they are entitled to make the arrest without process while the breach of the peace is going on, or (in accord- ance with the explanation given) still continues. And a private citizen has no right to make an arrest, without process, for a misdemeanor after its termination, though the breach of peace was committed about his own premises.^ In regard to felonies, the rights of officers and private citizens are different. While an officer can arrest without a warrant upon probable cause, though no felony has been committed, a private citizen can safely make an arrest without a warrant only when ( 1 ) the felony charged has actually been committed, and (2) there was probable cause for supposing the party arrested to be guilty.'-' 1 Baynes v. Brewster, 2 Q. B. 375, 386. 2 Allen V. Wright, 8 Car. & P. 522 ; s. c. L. C. Torts, 265. In Commonwealth v. Carey, 12 Cush. 246, 251, Chief Justice Shaw, in a dictum, states tiie rule thus : ' A private citizen, who arrests another on a charge of felony, does it at the peril of being able to prove a felony actually committed by the person arrested.' But that appears to be a mistake. CHAPTER YIIL ENTICEMENT AND SEDUCTION. § 1. Introductory. Statement of the duty. A owes to B the duty to forbear to entice away, harbor, or seduce B's child and servant capable of service, or B's ward towards whom B stands in loco parentis, or B's wife. Interruption of the relation of master and servant in the ordinary sense has been considered in chapter iv. There the wrong turns upon malice. In the present chapter we have, inter alia, the relation of master and servant in a special sense, namely between parent and child. Here the wrong does not turn upon malice ; the duty is ' absolute.' Whether there is any legal difference between the wrongs of enticing away, harboring, and seduction in regard to a parent's right of action where his child was under age at the time has not been determined. The ' statement of the duty ' assumes that there is none. If the child was of age, no action for harboring or (prob- ably) for enticing away, alone, could be maintained, unless there was an actual contract for service, because no right would be infringed. Seduction would make a different case, because of the disgrace ; there would be breach of a right in such a case, the right to an un- tarnished name. 192 LAW OF TORTS. [Part II. § 2. Of Parent and Child. A parent's right of action against one who has seduced' or enticed away his child is the right of action of a mas- ter ; that is, it turns upon the existence of the relation of master and servant, not upon parental authority or kin- ship. The right of action accordingly lasts as long as that relation lasts ; it does not terminate necessarily when the child becomes of age.^ In England the parent's right of action terminates when- ever the child leaves the parent's house with intention not to return.- That rule does not obtain in this country. The father's right of action here does not depend upon the will of the child ; notwithstanding the child's absence from her father's house at the time of the seduction, though she intends not to return, the father's right of action is not affected. This is true though she was at the time in the service of another with her father's consent. For example: The defendant seduces the plaintiff's daughter under the following circumstances : The daugh- ter, at the age of nineteen, goes, with the consent of her father the plaintiff, to live with a relative, for whom she works when slie pleases, receiving pay for her labor. Wliile there, and still under age, she is seduced and got with child by the defendant, and returns to her father and is cared for. She had no intention, but for the se- duction, to return. The defendant is liable.^ That, however, is the extent of the American rule. If the power of the parent over the child was gone at the time of the seduction, whether by his own act or by act of ' Infra, p. 194, 2 Dean v. Peel, 5 East, 45. See Griffiths v. Teetgen, 15 C. B. 344; Manley v. Field, 7 C. B. n. s. 96 ; Hedges v. Tagg, L. R. 7 Ex. 283. 8 Martin v. Payne, 9 Johns. 387 ; s. c. L. C. Torts, 286. Chap. VIII. § 2.] ENTICEMENT AND SEDUCTION. 193 the law, the seducer has violated no legal duty to him ; though there has been some coutlictof authority in regard to the application of this doctrine to the case of a return of the daughter after the seduction, a point to be referred to later. It is considered, however, that, if the parent's control over his child was divested by fraud, he may treat it, on discovering the fraud, as never having been abandoned, and maintain an action against the seducer. P"'or exam- ple : The defendant hires the plaintiff's daughter from his service with intent to seduce her, and by this means ob- tains possession of her person, and seduces her. The plaintiff is entitled to recover as if the daughter had been seduced while in his own service. There must have been ability to render service at the time of the seduction ; ^ though whether actual services were being rendered or not, or what the extent or value of the services, has nothing to do with the right of action,^ and in many cases may have little if anything to do with the amount recoverable. Loss of service is indeed of the gist of the action ; but when ability to perform service has been shown, damages may be given not merely for the actual loss of service but also for the disgrace inflicted upon the plaintiff and his family,*' the amount which may be given varying more or less with the station in life of the parties and being mainly within the judgment of the The father's right of action continues, as has already been intimated, after the daughter has come of age, if the 1 Hall V. Hollniidpr, 4 B. & C. 660. 2 See Grinnell v. Well.s, 7 JIan. & G. 1044, note to the case. 8 Terry v. Hutcbiiison, b. E. 3 Q. B. ^)Q9 ; Bartley v. Riclitmyer, 4 Comst. 38 ; L. C. Tort.s, 294. * The only limit upon their action as to the amount, as in many other cases, is that it must not be excessive, under all the facts of the case taken togetlier. 1.3 19-4: LAW OF TORTS. [Paut II. relation of master aud servant is still in operation between them. If the parent continue to exercise authority over the daughter after her majority, and she continue to sub- mit, she is still his servant, though not under an actual engagement to serve him ; and seduction under such cir- cumstances is a breach of legal duty to the parent. For example : The defendant seduces the plaintiff's daughter, aged twenty-two years. Prior to and at the time of the seduction, the daughter has been living part of the time with her brother, who resides about a mile from her father's house, and part of the time with her father. She has not received wages from her brother, and when at home has worked for her mother, the plaintiff buying her clothing. The daughter is the plaintiff's servant, and the defendant is liable.^ It has been held in England tliat the seduction should be followed by pregnancy or disease to entitle the plaintiff to recover." The American rule is, that where the proper effect of the connection is an incapacity to labor, by rea- son of which the plaintiff loses the services of his daughter and servant, the loss of such services entitles the plaintiff to recover against the seducer. The same principle which gives a master an action where the connection causes pregnancy applies to the case of sexual disease, and, in- deed, to all cases where the proper consequence of the act of the defendant is a loss of health resulting in an inca- pacity for such service as could have been rendered before. For exo.mple : The defendant seduces the plaintiff's minor daughter, by reason of which, without becoming pregnant (or being affected with sexual disease) , she suffers gen- 1 Sutton V. Huffman, 3 Vroom, 58 ; Rist v. Faux, 4 Best & S. 409; Ex. Ch. 2 Eagpr V. Orimwood, 1 Ex. 61. But see Evans v. Walton, L. R. 2 C. P. 615, 617. Ctiap. VIII. § 2.] ENTICEMENT AND SEDUCTION. 105 eral injury in health, so that it becomes necessary for the plaintiff to send her away for her recovery ; whereby he incurs expense and loses his daughter's services. The defendant is liable.^ If, however, the loss of health be caused by mental suffering not the necessary effect of the seduction, es- pecially if produced by subsequent causes, the loss of service is not the effect, in contemplation of law, of the defendant's act ; and hence the action cannot be main- tained. For example : The defendant seduces the plain- tiff's minor daughter, and subsequently abandons her, in consequence of which she suffers such distress of mind as to bring illness upon her, and incapacitate her for per- forming services for the plaintiff ; no pregnancy or dis- ease resulting by direct consequence of the seduction. The defendant is not liable to the plaintiff.^ If a loss of service follow as the proper effect of the defendant's act, it is held to be immaterial that he accom- plished his purpose without resorting to seductive arts. The willingness of the daughter cannot affect the parent's right of action ; '^ tliough the ready consent of the j'oung woman might be ground for mitigation of damages,* es- pecially if she was notoriously a loose character. What has been said in the preceding paragraphs con- cerning the parent's right of action for loss of service must be understood of the father's claim to damages. 1 Abrahams v. Kidney, 104 Mass. 222 ; Boyle v. Brandon, 13 M. & W. 738. 2 Boyle V. Brandon, supra ; Abrahams v. Kidney, supra. See ante, p. 88. ^ Damon v. Moore, 5 Lans. 454. * Hogan V. Cregan, 6 Rob. 138 (N. Y.), criticised in Damon v. Moore, supra. Compare Winter v. Henn, 4 Car. & P. 494, and Foister V. Forster, 33 L. J. Prob. & JI. 150 n., as to criminal couveisatioii. 196 LAW OF TORTS. [Part II. During his guardianship of the daughter, the right of ac- tion belongs to him alone. Should he be removed by the law from his natural position of authority, or should he die during the child's minority, the question arises of the mother's right of action against the seducer. It is clear if the guardianship of the child has been given to her, she has a right of action for the loss of service ; though it may be doubted if at the present time the mere relation of guardian, apart from that of parent, would, in all cases, afford a right of action for the child's seduction, a point to be further adverted to in the next section. A difficulty arises where the mother, upon the death of the father, or his removal from the guardianship, simply continues to exercise authority over her daughter, and to receive her (voluntary) obedience, without having re- ceived an appointment as guardian. The mother's right of action has sometimes been supposed to turn upon the question of her right to require the child's support in such a case, — a doubtful point of law. It is now well settled in America, however, that so long as the daughter contin- ues to give obedience and service to her mother, the latter has a right of action for a wrongful interruption of the daughter's position of servant. For example : The de- fendant seduces the minor daughter of the plaintiff, a widow. The daughter, having previously been in the ser- vice of the defendant, and then in the service of D, returns from the latter person to her mother to aid her during sickness in the family. While thus with her mother for a day or two, she is got with child by the de- fendant. The defendant has violated a legal duty to the plaintiff, and is liable in damages.^ The authority from which this example has been given went one step further, and decided that the mother's right 1 Gray v. Durlaiul, 51 N. Y. 424. In Abrahams v. Kidney, 104 Mass. 222, the mother sued and recovered. Chap. VIII. § 2.] ENTICEMENT AND SEDUCTION. 197 of action was not affected by the fact that the daughter, when seduced, was actually in the service of another, so long as she indicated a willingness to consider her mother as still entitled to her assistance. There is also conflict of American authority concerning the mother's right of action in such cases where the daughter, seduced while out at service, returns to her mother, and is supported and cared for during her sick- ness. The doubt is in regard to the mother's relation to her daughter apart from any interference of the law in giving custody to her. Unless the mother is considered to have the legal right to require her daughter's service, it is difficult to see how she could be entitled to sue for the seduction in a case of that kind.^ The child is not entitled, apart from statute, to sue for her own seduction, since she has consented to the act ; though if the seduction was effected under a promise of marriage, which is afterwards broken, she may recover damages for the seduction. But the action is then for the breach of promise of marriage, and not for the seduction. For like reason the parent is barred if he consented or virtually consented to the act. For example : The de- 1 The mother's right of action in such cases is denied in South v. Denniston, 2 Watts, 474 ; Roberts v. Connelly, 14 Ala. 235. To the same general effect, Freto v. Brown, 4 IMass. 675 ; "Worcester v. Mar- chant, 14 rick. 510. It is supported in Sargent v. , 5 Cowen, 106. It is obvious that the rules of law as to cases like those stated must remain in uncertainty and conflict until the nature of the mother's autliority is definitely settled. It is still more doubtful whether the mother of a daughter not horn in lawful wedlock could maintain an action in a case like tliat of tlie text. The mother would not be eveu guardian for nurture in such a case. See Regina v. Clarke, 7 El. & B. 186; In re Ullee, 53 L. T. N. s. 711, affirmed 54 L. T. N. s. 286, Cli. Div. But statutes concerning the mother's rights are coming into existence in various States. 198 LAW OF TORTS. [Part IL fendant is permitted by tlie plaintiff to visit bis daughter as a suitor, after notice that he is a married man and a libertine ; the defendant, on inquiry by the plaintiff as to this matter, representing that his wife is an abandoned character, and that he will soon obtain a divorce from her, and then marry the plaintiff's daughter. The de- fendant afterwards, while continuing his visits at the plaintiff's house, seduces the young woman. The plain- tiff is deemed not entitled to recover for the seduction.-' § 3. Of Guardian and Ward. Not only the parent, but any one standing in loco par- entis, and receiving, to his own benefit, the services of a child, is entitled to maintain an action for loss of services against any one who wrongfully interrupts the rendering of them, or makes the full rendering of them impossible. For example : The defendant seduces the plaintiff's niece, the parents of the young woman being dead, and the plaintiff standing towards her in loco pai'entis. The de- fendant is liable, though the young woman has property left her by her parents, and performs but slight services.^ The right of action in all such cases, and in cases strictly of guardian and ward, depends (probably) upon the fact that the guardian or person standing in loco parentis is receiving the services (however slight) to his own benefit. If the guardian has merely the supervision of the ward and her income, while she lives elsewhere, or performs service for herself, the guardian simply receiving 1 Reddie v. Scoolt, Peake, 240. Comp. cases of cvimiual conversa- tion, p. 203. 2 Manvell v. Thomson, 2 Car. & P. 303. And, as in the case of an action by the fatlier, damages may be given beyond the value of the services. Irwiu v. Dearman, 11 East, 23. Chap. VIII. § 4.] ENTICEMENT AND SEDUCTION. 199 her wages and acting as her trustee, it is improbable that he cau sue for her seduction.^ On the whole, the chief difference between the ordinary case of master and servant on the one hand, and that of parent and child and guardian and ward on the other, appears to be that in the former case the services must be substantial, and the damages would (probably) be coulined to actual loss suffered ; whilst in the other two cases the services may be nominal, such as might be pre- sumed where persons so related live together.^ § 4. Of Husband and Wife. To entice away one's wife is a civil wrong for which the offender is liable to the injured husband.^ The gist of the action, however, is not, it seems, the loss of assistance, but the loss of the consortium of the wife,^ which term implies an exclusive right, against an invader, to her affection, companionship, and aid.^ It is, indeed, held to be unnecessary that there should be any separation or 1 In early times the ward was the guardian's chattel. Lumley v. Gye, 2 El. & B. 216, 250, 257. 2 For this paragraph the author is indebted to his learned friend, Mr. R. T. Wright, of the University of Cambridge, England. The dif- ference in regard to malice shouhl not be overlooked. See ante, p. 191. 8 Under changes paitly silent, and partly effected by recent stat- utes, the wife, in the converse case, now has a corresponding right of action. Westlake v. Westlake, 34 Ohio St. 621 ; Bennett v. Bennett, 116 N. Y. 5S4 ; Jaynes v. Jaynes, 39 Hun, 40 ; Warner v. Miller, 17 Abb. X. C. 221 ; Breiman v. Paasch, 17 Abb. N. C. 249; Baker v. Baker, 16 Abb. N. C. 293 ; Melirhoff v. Mehrhoff, 26 Fed. Eep. 13 ; Foot V. Card, 57 Conn. 247 ; Seaver v. Adams, 19 Atl. Rep. 776. See, however. Lynch v. Knight, 9 H. L. Cas. 577 ; Van Arnam v. Ayres, 67 Barb. 544. Further, see Cooley, Torts, 267, 2d ed. * The old form of allegation in a case of master and servant was, ' per quod servitium amisit ' ; in a case of husband and wife, ' per quod consortiutn amisit.' 6 See 3 Black. Com. 139, 140 ; Bigaouette v. Paulet, 134 Mass. 19'' 200 LAW OF TOETS. [Part IL pecuniary injury ; in which respect the action resembles that of a parent for the seduction of his daughter. For example : The defendant, by false insinuations against the plaintifif, and other insidious wiles, so prejudices and poisons the mind of the plaintiff's wife against him, and so alienates her affections from him, as to induce her to desire and seek to obtain, without just cause, a divorce ; and by his false insinuations and wiles succeeds in per- suading the wife to refuse to recognize the plaintiff as her husband. The defendant is liable ; though no actual absence of the wife is caused.-^ This example, it will be observed, does not go to the extent of declaring a person liable for enticing away or corrupting the affections of the wife by reason of charges against the husband which are true; but there can be little doubt that such an act would be a breach of duty to tlie husband. "-^ The constancy and affection of a wife are all the more valuable to him if his conduct is bad, since they may save him from ruin. A difference is deemed to exist, however, between the act of a parent and that of other persons with regard to persuading a wife to leave her husband. In the case of one not a parent, it is not necessary that bad motives should have inspired the act.^ Such a person has no right to entice or persuade a wife to leave her husband. It does not follow, however, that mere advice to a married woman by a stranger to leave her husband, upon repre- sentations by the wife, would be unlawful ; advice in such a case is one thing, enticement is another. In regard to a parent, however, it is considered that it 1 Heermance v. James, 47 Barb. 120. 2 See Bromley v. Wallace, 4 Esp. 237. The conduct of the husband could be shown only in mitigation of damages. Id. ^ See Hutcheson v. Peck, 5 Johns. 196 ; Bennett v. Smith, 21 Barb. 439. Chap. VIII § 4 ] ENTICEMENT AND SEDUCTION. 201 is no breach of duty to the husband for such a person, upon iuformatiou that his daughter is treated with cruelty by her husbaud or is subjected to other gross indignities such as would justify a separation, to go so far as to per- suade her to depart from her husband ; though it subse- quently appear that the parent's persuasion was based on wrong information.^ It is held that bad motives must have actuated the parent in order to make him liable.^ This seems to mean that the parent must either have enticed his daughter to leave or to stay away out of ill- will towards her husband, and not by reason of any good ground for their separation ; or that he must have some end to gain of personal benefit to himself. In the absence of facts of this character, the parent is deemed not liable for persuadiug his daughter to absent herself from her husband on information justifying (if true) a divorce or even a departure of her own motion ; though a stranger in blood would be liable. Any person who receives a married woman into his Louse, or suffers her to stay there, after receiving notice from the husband not to harbor her, is deemed, presump- tively, to violate a duty which he owes to the husband.* But any one may, notwithstanding such notice, shelter the wife out of humanity, on her representations of cruel treatment by her husband. For example : The defendant receives the plahitiff's wife into his house, upon represen- tations of ill-treatment by her husband ; and he continues to permit her to remain there after notice from the plain- tiff not to do so. The defendant is not guilty of a breach of duty to the plaintiff.* 1 Bennett v. Smith, 21 Barb. 439, 443. 2 Hutcheson v. Peck, supra. 3 Winsmore v. Greenbank, Willes, 577 ; s. c. L. C. Torts, 328. See Addison, Torts, 905, 4th ed. * Philp V. Squire, Peake, 82. 202 LAW OF TORTS. [Part U. Liability for harboring must (probably) be limited to cases in which the defendant has clear notice that the wife's act in coming to him, or in stajing with him, is intended as a separation by her from her husband, and a repudiation of his claims as such. A man cannot at the present day be liable in damages for allowing a married woman to remain in his house a few days after notice not to do so, if she deny that she has abandoned her husband and claim that she is merely visiting, or that she is away from home for some other temporary and reasonable purpose. The defendant's liability, when it exists, rests upon the ground that he is a party to the unlawful pur- pose of depriving the plaintiff of the benefit of some advantage embraced under the designation of the con- sortium of his wife.-^ If the wife were disposed to stay an unreasonable length of time after notice from the hus- band, that fact would perhaps be sufficient to cause him to suspect her true purpose, and to render him liable in case he continued to permit her to remain. It is settled law that the mere fact of receiving: another's wife is not unlawful, even though no ex- planation whatever be offered.'^ There must be an enticing or harboring with reference to a wrongful separation. It is not enough even that the defendant take the plaintiff's wife to the defendant's house, upon request by her, unless he has notice that she is aban- doning her husband ; though he has been required by the plaintiff not to harbor her. For example : The defendant and the plaintiff are farmers and neighbors, residing about two miles apart. Their wives are relatives, and the plaintiff's wife often visits the defendant's ; the de- ^ AVinsmore v. Greenbank, Willes, 577 ; Hutcheson v. Peck, 5 Johns. 196 : Schuneman v. Palmer, 4 Barb. 225. 2 Barnes v. Allen, 1 Keyes, 390 ; Schuneman v. Palmer, supra. See also Wiiismore v. Greenbank. supra. CiiAP. VIII. § 4.] ENTICEMENT ANT) SEDUCTION. 203 fendant taking her to his house iu his wagon. The i^lain- titT's wife on one occasion being so at the defendant's house, the plaintiff gives the defendant written notice not to harbor her, but to return her to his residence from which he (the defendant) has taken her. The de- fendant having stopped with the wife near her husband's house, she goes to enter it, but finds the door locked, and returns to the defendant, requesting him to take her to his house. The defendant shows her the notice, and advises her not to go, but she makes Ught of the matter, and is taken to the defendant's house. The next day the defendant carries her home ; and the plaintiff brings suit for the harboring. The action is not maintainable ; the defendant not having attempted to iniluence the wife to leave her husband.^ So much for enticing away a man's wife. The common law gives a right of action also for ' criminal conversa- tion ' with one's wife ; ^ and upon the same ground as that for enticing the wife away from her husband, to wit, the loss of consortium. 3 It arises accordingly without regard to the infliction of pecuniary damage.* It follows that upon separation, by articles of agree- ment, the husband, having voluntarily parted with his wife's consortium, cannot maintain an action for criminal conversation with his wife.^ But if the separation was without any relinquishment by the husband of his right to the society of his wife, the action is maintainable. For example : The defendant, having entered mto a contract * Schuneman v. Palmer, 4 Barb. 225. 2 Weedon v. Timbrell, 5 T. R. 3.57 ; Harvey v. Watson, 7 Man. & G. 644 ; Bigaouette v. Paulet, 134 Mass. 123. 8 Weedon v. Timbrell, 5 T. R. 357. * Wilton V. AVel)ster, 7 Car. & P. 198. 6 Harve}' v. Watson, 7 Man. & G. 644. 204 LAW OF TORTS. [Vxm IT. for the support of the plaintiff's wife at his (the rlefend- ant's) house, the wife goes there under the agreement, and the defendant seduces her. The act is a breach of duty to the plaintiff, for which the defendant is liable.^ The mere fact of the husband's infidelity to his wife does not change the nature of the defendant's act in seducing and debauching her ; though it may possibly, in contemplation of law, affect its enormity. For example : The defendant seduces and has criminal intercourse with the plaintiff's wife. Proof is offered by the defendant that the plaintiff had shown the greatest indifference and want of affection towards his wife ; that while she lay dangerously ill at Y, the plaintiff (a surgeon in the navy), though his vessel was at Y, and he landed almost daily, was often at the door of the house where his wife lay sick, without visiting her, or showing any anxiety or concern for her ; and at the same time that he had been guilty of adultery and had contracted a venereal disease^ This is no defence to the action ; ^ though it might be considered in mitigation of damages.^ If, however, the taisband was accessory to his own dis- honor, the case is different ; he could not complain of an injury to which he had consented.* For example : The plaintiff allows his wife to live as a prostitute, and the defendant then has intercourse with her. This is no breach of duty to the plaintitf.^ 1 See Chambers v. Caulfield, 6 East, 244. Weedon v. Tirabrell lias been limited to this extent. See further Barbae v. Armstead, 10 Ired. 530. ^ Bromley v. Wallace, 4 Esp. 237, overruling Wyndham v. Wy- combe, Id. 16. a Id. ; Rea v. Tucker, 51 111. 110. * ' Volenti nou fit injuria.' * See Cibber v. Sloper, cited 4 T. R. 655 ; Hodges v. Windham, Peake, 39 ; Sanborn v. Neilson, 4 N. H. 501. Chap VIII. § 4.] ENTICEMENT AND SEDUCTION. 205 Mere negligence as to the wife's behavior, inattention, or dulness of apprehension, or even permission of inde- cent familiarity in the husband's presence, are, however, deemed insufficient to bar a recovery for criminal conver- sation with the wife ; though such facts might be proved in reduction of damages. Unless the conduct of the hus- band amount to consent to the defendant's act of inter- course, the defendant is liable.^ It follows from what has been said that condonation of the wife's offence does not excuse the man who debauched her ; the sole consequence of the condonation is to pre- clude the husband from obtaining a divorce. For exam- ple : The defendant has criminal intercourse with the plaintiff's wife, and, when fatally sick, she discloses the fact to her husband. The plaintiff continues to care for her kindly until her death. The defendant is liable.^ 1 2 Greenleaf, Evidence, §§ .51, 56 ; L. C. Torts, 338. 2 Wiltuii V. Webster, 7 Cm: & P. 198 : Bernstein v. Bernstein, 1892, 2 Q. B. 375 ; Powers v. Power.-,, 10 P. D. 174. CHAPTER IX. TRESPASSES UPON PROPERTY. § 1. Introductory. Statement of the duty. A owes to B the duty (1) to forbear to enter B's close without permission ; (2) to for- bear to take or interfere with possession of B's chattels, without permission ; unless, in either case, A has a better right than B to the possession of the property. 1. The term ' close ' signifies a tract of land, whether physically enclosed or not. 2. ' Breaking and entering the close ' is an ancient term of the law, now nearly gone out of use, indicating an un- lawful entry upon land. The term ' entry ' or ' unlawful entry ' will be used in the present chapter as synonymous with ' breaking and entering.' 3. A trespass to land is an unlawful entry upon land ; a trespass to goods is an unlawful taking or interfering with the possession of goods. All other wrongful acts connected with the trespass are aggravation of the trespass. § 2. Of Possession. In order to maintain an action solely for damages for a trespass to land, and not merely for the recovery of the land, it is necessary, apart from statute, for the plaintiff to Chap. IX. § 2.] TRESPASSES UPON PPvOPERTY. 207 have had possession of the premises entered at the time of the entry. A person who enters the land of another without the latter's permission, the latter having before been unlawfully deprived of possession or the land having never been in his possession, 7?ia//, indeed, violate a duty to the person entitled to the possession ; but the common law requires the latter to get possession of the land before giving him damages for tlie wrong committed- By statute, the owner may sue for possession and dama^ ages in one action.^ If, however, the party had possession at the time of the entry, and the trespasser ejected him, it would not be ne- cessary for him to recover possession before he could sue for damages for the wrongful entry and expulsion ; he had possession at the time of the trespass and disseisin, and that is sufBcient for the purposes of such an action.^ He could not, however, recover damages for the loss sus- tained by reason of the disseisor's occupancy, until after a re-entry,^ or suit for recovery of possession, — a point to be further considered hereafter. On the other hand, possession at the time of the entry, if held under a claim of right, is prima facie sufficient in all cases to enable a person to maintain an action for an entry upon the laud without his permission ; and posses- sion alone is not only prima facie but absolutely sufficient against all persons who have not a better right than the possessor.* It follows that one who is in possession of land under a claim of title, though without right, may re- ^ In some States, if the owner sue for possession, he must claim his damages in the same action, or he will be barred of tlie right to recover them. Eaymond v. Andrews, 6 Cash. 265. See Leland v. Tousey, 6 Hill, 32S. If possession, however, is obtained without suit, an actiou for damages is maintainable. Leland v. Tousey, supra. 2 Case V. Shepherd, 2 Johns. Cas. 27. » Id. * Cotenancy makes an exception. See post, p. 214. 208 LAW OF TORTS. [Part IL cover for an entry by a wrongdoer ; that is, by one who enters without a right to do so. For example : The de- fendant enters without permission upon land in the pos- session of the plaintiff, whose possession is under a void lease. The defendant is liable.-^ But as above implied, the defendant is not necessarily guilty of breach of duty to such a possessor by reason of the fact that he (defendant) does not own the land. He may still have a legal or an equitable interest in the prem- ises ; he may be a lessee of the land, or he may be a trustee of the same or the latter's cestui que trust. In any of these cases, he would be entitled to enter upon the premises, if he could do so without breaking the peace. Indeed a licensee may make a peaceable entry against a wrongdoer, though a licensee has no interest whatever in the soil, and could have no entry against a person entitled to the possession. For example : The defendant enters, without permission of the plaintiff, premises of which the plaintiff is wrongfully in possession ; the act being done by direction of the owner of the land, who is entitled to possession. The defendant violates no duty to the plain- tiff ; ^ though the case would have been different had he entered without authority of the owner. ^ If there be two persons in a close, each asserting that the premises are his, and each doing some act in the as- sertion of the right of possession, he who has the better title or right is considered as being in possession ; and the other is a trespasser.* The former is therefore in a posi- 1 Graham v. Peat, 1 East, 244. * Any possession is a legal posses- sion against a wrongdoer.' Lord Kenyon. See Cutts v. Spring, 15 Mass. 135 ; s. c. L. C. Torts, 341. ''' Chambers v. Donaldson, 11 East, 65. 8 The subject of rights of entry in general will be considered here- after, § 3. It is introduced here merely to show the consequences of possession. * See Reading v. Royston, 2 Sulk. 423. CiiAP. IX. § 2.] TRESPASSES UPON PROPERTY, £09 tion to demand damages of the latter for his wrongful entry. For example : The defendant is in possession of land without right, and so continues after the plaintiff, who is the owner, enters to take possession, ploughing the land. The defendant is guilty of trespass to the plaintiff.^ Again : The defendant is in occupancy of land jointly with the plaintiff, claiming to be a tenant in common of the premises with the plaintiff. Ilis claim, however, is unfounded, and the plaintiff is owner of the close. The defendant may be treated by the plaintiff as a trespasser.^ If neither of the parties in occupancy has a right to the close, the question whether either of them has violated a duty to the other, supposing each to claim possession, will turn upon the ' exclusive priority of possession.' The one who first entered, if he took exclusive possession, will be entitled to damages against the other ; if he did not so take, neither can recover against the other. For exam- ple : The defendants claim a right to take cranberries in an unoccupied field under a license from one H. The plaintiff's have previously entered into possession of the land, and forbidden all persons by public notice to take cranberries therefrom, except on certain conditions with which the defendants do not comply. H, under whom the defendants claim, had entered before the entry of the plaintiffs ; but neither H, nor the defendants, nor the plaintiffs have any right to the soil or the berries ; and neither ever had exclusive possession. The defendants have violated no duty to the plaintiffs ; ® and so in the converse case.^ There is this important distinction between the law re- lating to possession of real property and that relating to 1 Butcher v. Butcher, 7 B. & C. 399. 2 Hunting v. Russell, 2 Cush. 145. 8 Barnstable v. Tliacher, 3 Met. 239. « Id. U 210 LAW or TORTS. [Part H. possession of personalty ; to enable a plaintiff to recover for trespass to realty, he must have had a real possession ; while a plaintiff may recover for trespass to personalty if he had a right to take possession. To assimilate the two cases, it is often said that the right to take possession of personalty draws possession in law. Whoever then has a right to the possession of a chattel, whether it be towards all the world or only towards the defendant, is in a posi- tion to sue for an interruption of his enjoyment thereof. For example : The defendant, without permission, takes goods out of the possession of A, after A has sold them to the plaintiff, but before they have been delivered to him. This is a breach of duty to the plaintiff.^ What constitutes real possession, however, as distin- guished from a right to take possession, is one of the diffi- cult questions of the law, especially when it comes to the application of definition to particular cases. Contact cer- tainly is not necessary ; it is enough, so far as that is concerned, that no one is opposing possession and that the power to take the property into hand exists. That conception of the term which on the whole most nearly harmonizes with the authorities on specific situations ap- pears to be this : ( 1 ) a power of control over property, and (2) a purpose to exercise the same for the benefit, at the time, of the holder, or facts from which such a pur- 1 Bacon's Abr. Trespass C. 2 ; L. C. Torts, 370. Quaere whether possession of personalty in itself will support an action, as e.g. the possession of a thief who is dispossessed by another thief? It is urged tliat mere possession is enough. Pollock & Wright, Possession, 91, 93, 147, 148. It may on the other hand be urged that only that sort of possession which is capable of ripening into a title should be protected, as e.g. the possession of a finder. In the Roman law a thief could not have the 'actio furti'. Dig. 47, 2, 11 ; Id. 47, 2, 12, 1 ; Inst. 4, 1, 13. See also Buckley v. Gross, 3 Best & S. 566, 573, Crompton, J. As to the criminal law of such cases see Commonwealth v. Rourke, 10 Gush. 397, 399 ; Pollock & Wright, Possession, 118 et seq. Chap IX. § 2.] TKESPASSES UPON PROPERTY. 211 pose could be assumed if the mind were directed to the object of possession.^ It is clear that without these two facts there is no true possession in the eye of the law ; but to say that there is possession in all cases with them would be to say that the authorities are in harmony. A mere servant may have ' detention ' or custody, but, as servant, can have no possession, according to current views, because a servant does not hold in his own right ; ^ but what of an agent, ^ or a bailee for hire, or a tenant at will?* The authorities are not agreed. It is said that none of them has possession. Thus, some say of tenants at will, that both tenant and landlord cannot be in posses- sion at the same time, and the landlord certainly is pos- sessed in contemplation of law. Others treat both as having the rights of possessors ; and this appears to be the legal vievv.^ Indeed, a reversioner or remainder-man after an estate for years can maintain an action for injuries done to his interest, notwithstanding the fact that the land is in the possession of the termer. Injuries done to such interests are not, however, in strictness of common-law ideas, tres- passes. The trespass consists in the wrongful entry upon the land, and this is a tort to the tenant, and not to the landlord or remainder-man ; since it is an interference 1 Comp. London Banking Co. v. London Bank, 21 Q. B. Div. 535, 542 ; and see Regina v. Ashwell, 16 Q. B. D. 190. 2 Year Book, 13 Edw. IV 9, 10, pL 5 ; 21 Hen. VIL 14, pL 21 ; Harris v. Smith, 3 Serg. & E. 20 ; Hampton v. Brown, 13 Ired. 18. These are all common-law authorities ; but the point is not free from doubt. See Holmes, Common Law, 226-228 ; Moore v. Robinson, 2 B. & Ad. 817 ; Mathews v. Hursell, 1 E. D. Smith, 393 ; Regina v. Ash- well, 16 Q. B. D. 190. 3 See Knight v. Legh, 4 Bing. 589, Best, 0. J. holding that an agent might bring trover, as having possession. * See Claridge v. Tramways Co., 1892, 1 Q. B. 422. 6 See Starr f. Jackson, 11 Mass. 519, where the cases are reviewed ; and see Mark by, Elements of Law, § ."588, 3d ed. Tenant at mil clearly holds for himself while he wills to hold. 212 LAW OF TORTS [pAnr II. with the possession, which belongs to the tenant. For example : The defendant enters upon the plaintiff's land, let for years, in the assertion of a right of way, driving thereon his horses and cart, and continuing so to do after notice from the plaintiff to quit. The defendant has violated no duty to the plaintiff.^ Damage done to the inheritance in the case of leasehold or mortgaged land is waste if committed by the tenant or mortgagor, and a tort which may be deemed to be in the nature of (but not strictly as) a trespass, if committed by a stranger. But whatever term may be applied to the act, it is a breach of duty to the landlord or mortgagee, for which he is entitled to recover damages. For example : The defendant, a tenant, or a mortgagor, or a licensee, or a stranger, cuts down trees on land owned by the plain- tiff, or of which he is mortgagee or remainder-man, with- out the plaintiff's consent. This is a breach of duty to the plaintiff, and the defendant is liable to him in dama- ges ; though the plaintiff is not in possession. ^ A similar rule of law prevails in regard to injuries done to personal property held on lease or on pledge, or by a mortgagor in possession. For an injury done to the pos- sessor's interest merely, that is, for a simple unlawful taking of the goods, the remedy belongs to the possessor alone ; but for an injury done to the reversion, or to the mortgagee if the goods be mortgaged, the landlord or the mortgagee is entitled to treat the act as a breach of duty to him and call for redress.^ For example : The defendant 1 Baxter v. Taylor, 4 B. & Ad. 72. The action was ' case '. 2 See Young v. Spencer, 10 15. & 0. 145 ; Page v. Robinson, 10 Cush. 99 ; Cole v. Stewart, Id. 181. None of these are cases of actions by remainder-men, but they cover such cases in principle. The form of action at common law is 'case' and not trespass. 8 In ' case ', or trover, at common law. See Farrant v. Thompson, 5 B. & Aid. 826, where trover was brought. Chap. IX. § 2.] TRESPASSES UPON PROPERTY. 213 levies on and sells goods in the possession of S, whose right to the possession rests upon an agreement by the plaintiff to convey the same to him upon the payment of notes given therefor. The defendant has not been led by the plaintiff to suppose that the goods belong to S ; on the contrary, the defendant has notice at the time of the levy of the plaintiff's title. The defendant's act in disposing of the goods is a breach of duty to the plaintiff, and he is liable in damages ; though tlie right of possession is in S.^ A man's close includes not only his actually enclosed land, but also all adjoining unenclosed lands held by him ; aud, if he is in possession of any part of his premises, he is in possession of the whole, unless other parts are occu- pied by tenants for term of years or by persons who claim adversely to him. The owner has the ' power of control' aud the ' purpose to exercise the same ' for himself ; he is therefore in a proper position to recover damages for trespasses committed in any part of his premises, the unenclosed as well as the enclosed.^ For example : The defendant, without permission, enters and cuts timber in an open woodland of the plaintiff, adjoining a farm upon which the plaintiff resides. The plaintiff is in possession of the woodland, and is entitled to recover.' 1 Ayer v. Bartlett, 9 Pick. 156. ^ Such possession is often called 'constructive*, but that term, like the term ' symbolical ' possession, is apt to darken counsel. Possession is surely real when one's control can be extended over the property at any time. See Markby, Elements of Law, §§ 353, 359, 360, 3rd ed. 8 Machin c. Geortner, 14 Wend 239 ; Penn v. Preston, 2 Rawle, 14; Jones V. Williams, 2 JM. & W 326, 331 , Lord Advocate v. Blantyre, 4 App. Cas. 770, 791 ; Coverdale v. Charlton, 4 Q. B. Div. 104, 118. ' 1 hold that there is no usage of the country, nor rule of the common law. nor any reason re([uiring a man to enclose his timber land, and that for any possible purpose that can be named the woods belonging to a farm are as well protected by the law without a fence as with on«t ' Tod, J. in Penn i'. Preston, supra. 214 LAW OF TORTS. [Paki U The foregoing proposition in regard to possession of adjoining unenclosed land supposes that the party injured has a right to the possession of the enclosed premises actually occupied by him. One, however, who is in pos- session of land without title or right can have no such extended possession ; the rights of a bare possessor are limited by the bounds of his immediate occupation and control. For example : The defendant, haviug wrongful possession of the south end of a lot, cuts timber upon the north end thereof, lying without the limits of his actual occupation ; which timber has been purchased and duly marked by the plaintiff. The land on which the timber stood is not in the possession of the defendant, and the plaintiff is entitled to damages for the violation of his right of property ; though he has no right to the land.^ Again : The defendant, without right or authority, enters npon an open woodland adjoining enclosed land in the wrongful possession of the plaiutitf. The act is no breach of duty to the plaintiff.'^ One of several cotenants, w^hether of real or of personal property, cannot maintain an action for acts relating to the common property, not amounting to an ouster ; be- cause all the cotenants have equal rights of possession and property. For exami)le : The defendant, cotenant of land with the plaintiff, cuts and carries away therefrom timber, at the same time denying to the plaintiff any right in the premises, but not withholding possession from him. The defendant has violated no duty to the plaintiff.^ If, in the case of real estate, the act of the defendant, ^ Buck V, Aiken, 1 Wend. 460. The plaintiff became possessed of the trees as soon as they were cut down by the defendant. 2 It is difficult to find judicial authority for this example, because, perhaps, of its simplicity. Its correctness is clear. » Filbert V. Holi", 42 Penn. St. 97 ; Reading's Case, 1 Salk. 392. Chap IX § 2] TRESPASSES UPON PROPERTY. 215 however, amount to an ouster of the plaintiff from the possession of the common [)roperty, the act is a trespass, and the defendant is liable ; provided, at least, an action of ejectment would at common law be raaintaniable. For example : The defendant, being cotenant with the plaintiff of a certain room in a coffee-house, expels therefrom the plaintiff's servant, in derogation of the plaintiff's right of occupation. The defendant is liable to the plaintiff in damages ; since an action of ejectment for restoration to possession would lie.^ Whatever amounts to, or if persisted in might amount to, an effectual privation of the associate tenant of parti- cipation in the possession of the common property amounts to an ouster, even though there be no actual expulsion or withholding of possession from him. For example : The defendant, cotenant with the plaintiff of a certain close, digs up the turf and carries it away, without the plaintiff's consent. This is an ouster, for which the defendant is liable to the plaintiff in damages ; since, if the cotenant were permitted to take the turf, he would be entitled to dig away the soil below the turf, and might thus effectually deprive his fellow of his right to the possession.'' If the criterion of this remedy between cotenants for an ouster be the question whether an ejectment would be maintainable, it follows that an action for trespass in respect of goods held in common cannot be maintained by one cotenant against another ; for an action of ejectment 1 Murray v. Hall, 7 C. B. 441 ; Cases on Torts, 282. Ejei'tment was originally an action of trespass, and was always deemed to include trespass. Hence, if that form of remedy may be used, trespass lies. '^ Wilkinson v. Haygarth, 12 Q. B. 837. The defendant would iwt have been liable to an action for trespass for taking and carrying away the growing grass or crops. Id. Accounting between cotenants was provided for by 4 Anne, c. 16, § 27, where one cotenant has taken more than his share of the profits. That statute has been re-enacted in effecl in this country. 216 LAW OF TORTS. [Part IL lies for the recovery of land only. Nor, indeed, is there any authority in opposition to this deduction ; the ques- tion of the right of action having, so far as the reported authorities go, always arisen in regard to common rights in realty.^ Some decisions in this country have denied the remedy even when resorted to in cases of real property. ^ In respect of personal property, however, it will be seen in the next chapter that an action for the conversion of the common chattel can be maintained in certain cases. The difficulty thus relates more to the foi-m of action than to the substance of things. It may therefore be laid down, that for one tenant in common of personal property to withhold possession of the chattel from his associate, or to expel him from participation in the possession, or to ap- propriate to himself more than his share of the profits arising from the property, is a breach of legal duty to the latter, for which the law gives redress.^ It has been observed that, in order to maintain an ac- tion at common law for trespass to land, possession of the land at the time of the wrongful entry is necessary. But the common law does not allow a person who has wrong- fully entered, to take and enjoy the profits of the land, or to commit depredations uj^on the premises during his occupancy, without a reckoning. If the owner or person entitled to the possession subsequently obtain possession of the land, the law treats him, by the fiction of relation, 1 See the cases cited in L. C. Torts, pp. 358-360. 2 Wait V. Richardson, 33 Vt. 190. See also Bennet v. Bullock, 35 Penn. St. 364, 367. 3 The difficulty in the way of an action for trespass is that the de- fendant, tenant in common, had a riglit of possession, and that is in- consistent with that action. But in an action for the conversion of a chattel, it matters not that the defendant had a right of possession. The gist of such an action is not (as it is in trespass) the wrongful taking possession, but the conversion of the plaintilf 's right. Chap IX §2.| TRESPASSES UPON PROPERTY. 217 as having been in possession during all the time tluit has elapsed since he was ejected from the premises. The consequence is, that upon his re-eutry he becomes entitled to sue for the damage which he has sustained at the hands of the party who has usurped the possession. The remedy thus allowed is called an action for mesne prolits ; that is, for the value of the premises during the period in which the plaintiff has been kept out of posses- sion by the defendant. The plaintiff is also entitled to recover for all wrongful entries upon and damages done to his property in the mean time.^ For example : The de- fendant enters upon premises of the plaintiff, of which the plaintiff has been disseised, and removes buildings there- from. The plaintiff' subsequently re-enters, and then brings suit for damages done to his property. He is en- titled to recover.^ There is conilict of authority in regard to the existence in the disseisee of a right of action for mesne profits against one who, before the plaintiff's entry, had suc- ceeded the disseisor by descent or purchase ; that is, in the language of the law, against a stranger. On the one hand, it is said that to take a supposed title from another cannot be a trespass, and therefore mesne profits arising during the latter's occupation cannot be recovered of him.^ On the other hand, the apparent injustice of this 1 Liford's Case, 11 Coke, 46, 51. As to cases between landlord and tenant see (under statute) Smith v. Tett, 9 Ex. 307 ; Doe v. Harlow, 12 Ad. & E. 40 ; Doe v. Challis, 17 Q. B. 166 ; Pearse v. Coker, L. R. 4 Ex. 92. Mesne profits may now be had in a suit to recover the land. See ante, p. 179. 2 Dewey v. Osborn, 4 Cowen, 329. This case shows also that the party on re-entry is in a position to sue for eveiy entry upon his lands made without authority. 8 Liford's Case, 11 Coke, 46, 51 ; Barnett v. Ouildford, 11 Ex. 19, 30 ; Case v. De Goes, 3 Caincs, 261, 263 ; Van Brunt v. Scheiick, 10 Johns. 377, 385 ; Dewey v. Osborn, 4 Cowen, 829, 338. 218 LAW OF TORTS [Part II. doctrine towards the owner has been urged, and the con- trary conclusion reached.^ Between the extremes of these rulings, however, there is an nnportant class of cases in this country, in regard to which there is little conflict. These are cases in which the defendant claims under one who has been let into possession under legal process. In cases of this kind, it has been held that the defendant is not liable for mesne profits ; and it seems just, as well as conformable to the doctrine of trespass upon lands, that one who has obtained possession under the disseisor by process of law should be presumed to be rightfully possessed while the process (and the possession by virtue of it) continues in force. For example : The defendant , enters and occupies land of the plaintiff under a writ of possession, executed against one who had wrongfully disseised the plaintiff. The writ is afterwards set aside, and the plaintiff resumes possession. The defendant is not liable for the profits consumed during his occupancy.^ Again : The defendant enters and takes possession of the plaintiff's land under a license from one who has been put into possession against a wrongdoer under a writ of restitution, which writ is afterwards quashed. The de- fendant is not liable for the mesne profits.^ It would seem also that purchasers, third persons, under judicial sales, should stand in a like situation ; for, though they do not acquire title from parties let into possession under legal process, they take through the sheriff, who may reasonably be presumed to have author- ity to sell. And there is judicial authority for this view.* 1 Holcomb V. Rawlyns, 2 Cio. Eliz. 540 (decided before Liford's Case) ; s. c. L. C. Torts, 363 ; Morgan v. Varick, 8 Wend. 587. 2 Bacon v. Sheppard, 6 Halst. 197, following Meuvil's Case, 13 Coke, 19, 21. * Case V. De Goes, 3 Cainfs, 261 , following Menvil's Case, supra. * Dahney v. Manning, 3 Ohio, 321. Chap. IX. §3.] TRESPASSES UPON PROPERTY. 219 It would (probably) be otherwise if the purchaser should be the person- who had iustituted the invalid proceedings under which he was let into possession.^ The non-liability of the purchaser or heir extends, how- ever, only to profits consumed by him. If such person sow the land, or cut down trees, or grass, or crops, and sever and carry them away, or sell them to another, the disseisee, after regress, may take the things severed ■wherever he can find them, or, if he cannot find them, recover their value of the person lately in possession. The regress of the disseisee has relation to the begin- ning of the last occupation, and the title to the things severed is therefore in him, which title the carrying away and disposing of cannot divest.''^ § 3. Of what constitutes a Trespass to Property. The gist of an action for trespass to land consists in the w'l'ongful entry upon it, and so in interfering with the owner's (or tenant's) right of entire possession. Any entry upon land in the rightful possession of another, without license or permission, is a breach of duty to the possessor ; and this too though the land be unenclosed. It follows that an action is maintainable for such an entry, though it be attended with no damage to the pos- sessor. For example : The defendant without permission enters upon unenclosed laud in the lawful possession of the plaintiff, with a surveyor and chain-carriers, and actually surveys part of it, but without doing any damage. The act is a breach of duty to the plaintiff, and the defendant is liable at least to nominal damages." » See further L. C. Torts, 362-366. 2 See LiforJ s Case, supra. But of course if the owner take away the things severed, the defendant can recoup their value in trespass for the mesne profits. Id. » Dougherty i;. Stepp, 1 Dev. & B. 371 ; Hobson i;. Todd, 4 T. R. 220 ^^^ ^^ TORTS. [Part II. The act is a breach of duty (though not in strict technical sense a trespass) even if the close entered be a private way, if only the plaintiff has a right of pas- sage along or across it ; it matters not that the plaintiff has no right to the soil^ For example : The defendant deposits articles at various times in a passage-way to the use of which he has no right, and the plaintiff has a right, though the ownership of the soil is in another. The defendant is liable ; though he removes the articles in every instance before the plaintiff desires to pass out, and never in fact hinders the plaintiff in entering or in going out of the passage.'^ A close is deemed to have been broken and entered even though the act was not in fact committed within it, but only against its bounds. To bring anything against such bounds without permission is a trespass. For example : The defendant, without permission, drives nails into the outer wall of the plaintiff's building, which stands upon the line of the plaintiff's premises. This is a breach of dut}', for which the defendant is liable in damages.^ Again : The defendant heaps up dirt close to the plaintiff's boundary wall, and the dirt, of itself, falls against the wall. This is a trespass.* An entry upon land, or a taking of goods, is justifi- able when effected either (1) by license or consent of the party, or (2) by license of the law; a license being a mere permission to do what otherwise would be unlaw- 71, 74. Buller, J. : ' The riglit has been injured.' Should the defend- ant repeat the offence, he mny be made to smart lor it in damages. Williams v. Eshng, 4 Barr, 486. 1 Tlie action under the old system was ' case,' not trespass. See p. 228 (3). 2 Williams v. Esling, 4 Barr, 486 ; Cases, 277. 2 La wren ce v. Obee, 1 Stark. 22. * Gregory v. Piper, 9 B. & C. 591. Chap, IX. § 3.] TRESPASSES UPON PROPEKTY. 221 ful, and not a property right. The term ' license or consent of the party,' as liere used, has reference to cases in which there is nothing beyond an express con- sent, either in answer to a request for permission, or by specific or general invitation by the possessor ; as e. g. in the case of a shopkeeper. Cases of this kind sufRcientl}' explain themselves, and need not be dwelt upon. The term ' license of the law ' has reference to cases in which a permission is given regardless of the will of the owner or occupant, and includes all other cases in which the entry or taking possession was lawful. It includes, there- fore, certain cases in which, in point of fact, there may at the same time be a license of the party ; as e. g. in the case of an innkeeper, who both invites, and, generally speaking, must receive guests. In cases of the first kind the Hcense is revocable in re- spect of future acts, though it be made b}' contract, unless it is ' coupled with an interest ; ' the licensor may be liable for breach of contract, and ^et revoke the license, so as to take away the licensee's permission.^ A license is 'coupled with an interest' when it comprises or is con- nected with a grant.^ The second kind needs some special explanation. The law licenses an entr}'^ upon the land of another, or the taking possession of another's goods, in man}' cases ; and in these the license cannot be revoked b}- the party affected. The first in importance of these cases is where the law has commanded the entry or the taking posses- sion ; the entr}' and levy of a sheriff by virtue of a valid precept being the cliief example. In such cases reason- able force may be used to effect an entrance ; though an 1 Wood V. Leadbitter, 13 M. & W. 838; Hyde v. Graham, 1 H. & C. 593. But the licensee may sometimes be entitled to an injunction against the revocation. Frogley v. Lovelace, Johns. 333. 2 Wood V. Leadbitter, supra, at p. 844. 222 I^AW OF TORTS. [Part II. entrance to an occupied dwelling-house cannot be forced, except for tiie purpose of serving criminal process.^ In cases in which the license of the law is only implied, forci- ble entry can seldom be made, except in the case of an owner of land entitled to take actual possession.^ That is to say, apart from the exceptional cases, the license appears to be conditional ; the entr}' may be made, pro- vided that it can be made without breach of the peace.* The following are cases of the kind : — One case is where an entry is made into an inn,* or perhaps into the coach of a common carrier of passen- gers. Such an entry is lawful if the party is in a fit con- dition to be received, paying in advance, and in the case of a passenger, showing a ticket,^ when required. A second case is where the party in possession of land has bound himself by debt to another, without any stipu- 1 Swain v. Mizner, 8 Gray, 182 ; Ilsley v. Nichols, 12 Pick. 270 ; Bailey v. Wright, 39 Mich. 96 ; People v. Hubbartl, 24 Wend. 369. Great exigency affecting the public, such as an extensive conflagration, would probably make another exception. 2 Sampson v. Henry, 19 Pick. 36 ; Churchill v. Hulbert, 110 Mass. 42. 8 Churchill v. Hulbert, supra. There are statutes everywhere im- posing penalties for forcible entry upon premises. But the question is, whether a person, having a license to enter, is liable not only for the penalties but also as a trespasser. It appears to be clear that if the person entering is owner of the land, and entitled to take possession, he is liable only to the penalties of the statute. Sampson v. Henry, supra ; Biddall v. Maitland, 17 Ch. D. 174 ; Edwick v. Hawkes, 18 Ch. D. 199. If however he should commit an assault upon the occupant, that, not being necessary to his entry, would make him liable for that act. Sampson v. Henry, supra. To enter forcibly in most other cases would be a trespass because it would be in violation of the condition annexed by law to the license. See Churchill v. Hulbert, supra ; Wheelden v. Lowell, 50 Maine, 499. * Six Carpenters' Case, 8 Coke, 146. 5 See Butler v. Manchester By. Co., 21 Q. B, Div. 207 ; Shelton v. Lake Shore Ry. Co. 29 Ohio St. 214. :;hap. IX. § 3.] TRESPASSES UPON PROPERTY. 223 lation in regard to the place of payment. In such a case, the creditor is allowed by law to enter his debtor's prem- ises for the purpose of demanding payment.^ A third of these cases is where the party in possession holds, as tenant, a piece of real property of another. In such a case, the law allows the latter to make an entry upon the land for tlie purpose of ascertaining whether his interests are properly regarded by tlie possessor. For example : The defendant leases land to the plaintiff, and subsequently enters to see if the latter has committed waste. This is no breach of duty to the plaintiff.'^ A fourth case is where goods have been placed upon a man's land under a tenancy at will, or where goods have been sold which lie upon the premises of the vendor. Iji the absence of any special agreement or general custom concerning the delivery of the goods, the owner may go upon the premises and take them.^ For example : The plaintiff lets premises to the defendant at will, on the terms that the defendant shall have reasonable time to remove his goods, after notice to quit. The defendant enters accordingly after termination of the lease, to get his goods, against tlie plaintiff's refusal to allow him. This is no breach of duty.^ A fifth case is where the owner of land has wrong- fully burdened another with the possession of his (the former's) goods. In such a case, the goods may be taken and put upon the owner's premises ; and neither the taking of the goods nor the entry upon the owner's premises is unlawful. For example : The defendant takes an iron bar and sledge belonging to the plaintiff, and puts 1 3 Black. Com. 212. 2 i^^. 8 Cornish v. Stubbs, L. R. 5 C. P. 334 ; Mellor v. Watkins, L. E. 9 Q. B. 400 ; McLeod v. Jones, 105 Mass. 403 (sale of goods on vendor's land). * Cornish v. Stubbs, supra. 224 LAW OF TORTS FPart II them upon the plaintiff's land ; the plaintiff having first brought them upon the defendant's premises, and then, without permission, having left them there. The entry is lawful.^ A sixth case is where a man's goods, without his act, have got upon the land of another. In such a case, the owner of the goods may enter and take them. For ex- ample : The defendant enters upon the plaintiff's land to get apples, which, by the action of the wind, have been blown over the line, from the defendant's trees into the plaintiff's close. The defendant is not liable.^ Again : The defendant enters upon the plaintiff's land to get his own goods which the plaintiff has wrongfully taken and put there. This is lawful ; ^ though it would have been otherwise had the plaintiff come properly into possession of the goods. ^ A seventh case is where a person enters the premises of another to save life or to succor a beast in danger. Such an act is not a trespass ; but it is said that the case would be different if the entry was made to prevent a person from stealing the owner's beast, or to prevent cattle from consuming his corn.^ The distinction made between the cases is that in the former case the loss of the animal would be irremediable, that is, that particular animal (which might be very valuable) could not be replaced ; 1 Cole V. Maundy, Viner's Abr. Trespass, 516. See other cases there referred to. 2 Millen v. Fawdry, Latch, 119, 120. It would be otherwise if the defendant should shake the trees. Bacon's Abr. Trespass, F. The ac- tion of the wind would, it seems, be immaterial if the branches ovcr- himg the plaintiffs land ; for that would itself be a nuisance. Comp. Penruddock's Case, 5 Coke, 100 b. The defendant should be allowed to enter only when he is entirely in the right, as where the apples are blown over the fence into the ijlaintiffs grounds. 8 Viner's Abr. Trespass, 1 (A) ; L. C. Torts, 382. ^ L. C. Torts, 381. ^ Bacon, ut supra. Chap. IX § 3.| TRESPASSES UrON PROPERTY. 225 while in the hitter case, the animal might be recovered from the thief, or tlie corn replaced by purchase or by a new crop : all corn being substantially alike. The dis- tinction, however, sounds mediaeval. An eighth case is where a man creates, or after notice continues, a nuisance upon his premises, to the peculiar injury of liis neighbor. In such cases the latter may enter and abate the nuisance. For example : The defend- ant enters upon the plaintiff's premises, and removes the eaves of a shed, which overhang the defendant's land and in rain}' weather drip upon his premises. This is no breach of duty to the plaintiff.^ A ninth case is where an entry has been made upon land of another by reason of necessity, without the fault of the person entering. Such an entry is justifiable. For example : The defendant runs into the plaintiff's premises to escape a savage animal, or the assault of a man in pursuit of him. The defendant is not liable.^ Again : The defendant enters upon the plaintiff's premises to pass by a portion of the highway which at this point is wholly flooded, but without the act of the defendant. The entry is justifiable.^ It has already been seen that a trespass to property consists in an unlawful entry of land or taking of goods,^ and a trespass by imprisonment in an unlawful arrest. There is one case, however, in which, by reason of sub- 1 Penruddock's Case, 5 Coke, 100 lb ; L. C. Torts, 383, where vari- ous distinctions cas to siicli cases are mentioned. 2 Year Book, 37 Hen. VI. p. 37, pi. 26. " Absor V. French, 2 Show. 28. * Where A's goods are unlawfully sold and delivered by B, must the former make demand for them before he can sue for the trespass ? The question is not so important now as formerly, for suit is more gen- erally brought in such cases for conversion. See post, p. 249. 15 226 LAW OF TORTS. [Part II. sequent acts, a person may be treated as a trespasser notwithstanding the lawfulness of the entry or taking possession, or of the arrest ; the result thus being to de- prive the party of tlie justification of the lawfulness of the original act, and, by a fiction of law, to make him a trespasser ab initio. According to this fiction, one who has taken possession of goods, or entered upon land, by virtue of a license of the law, becomes a trespasser ab initio (notwithstanding the lawfulness of the levy or en- try), where afterwards, while acting under the license, he commits an act which in itself amounts to a trespass.^ For example : The defendant, a sheriff, remains an un- reasonable length of time in the plaintiff's house in pos- session of goods taken ])y him in execution. He is a trespasser ab initio. " But, in order to become a trespasser ab initio, the sub- sequent act must, it has been held, be a technical tres- pass, or at least show a purpose to make use of the license as a mere cover for a wrongful act. If this is not the case, — if the entry was in good faith, and the subse- quent act was not a trespass, — the party is not to be treated as a trespasser from the beginning, though the act committed be wrongful and subject him to liability. For example : The defendant, an officer, enters upon the plaintiff's premises by virtue of a lawful writ, to make a levy for debt. While there, in the course of his business as an officer, he wrongfully extorts money from the plain- tiff. He is not a trespasser from the beginning of his entry, though the extortion was a breach of duty for which he would be liable in damages ; extortion not being a trespass.^ Again (an English example) : The defendant 1 Six Carpenters' Case, 8 Coke, ] 46 ; L. C. Torts, 386. 2 Ash V. Dawiiay, 8 Ex. 237 ; Rowley v. Eice, 11 Met. 337. 3 Shorland v. Oovett, 5 B. & C. 485. See Six Carpenters' Case, supra. But compare HoUey v. Mix, 3 "Wend. 350. If the entry under Chap. IX §3] TRESPASSES UPON PROPERTY. 227 refuses to drop a distress on the plaintiff's goods, upon due tender by the pUiiutiff of the rent due. Tlie de- fendant is not a trespasser.^ These examples, on consideration, will show the impor- tance of the doctrine of trespass ab initio. If the per- son's conduct make him obnoxious to this doctrine, it follows (probably) that all acts done, such as, in the case of an officer, levies made, intermediate the entry and the trespass, are void ; since, his entry being a trespass, he could not, according to general principles of law, there- after do an act against the will of the occupant which would be legal.^ Besides, he would be liable for the entry as well as the after acts. The doctrine does not, there- fore, concern the form of remedy alone. This doctrine of trespass ab initio applies, however, only against persons who have entered or taken goods by license of law. A person cannot treat as a trespasser from the beginning one to whom he has himself given permission to enter or take his goods, whatever be the nature of his subsequent acts.^ For example : The de- fendant, by permission of the plaintiff's wife, enters the plaintiff's house in his absence, and while there wrong- the writ was merely to cover the purpose to extort, there would proba- Ll}' he a trespass ab initio. Comp. Grainger v. Hill, 4 Bing. N. C. 212, ante, pp. 101, 166. That, it seems, suggests the true distinction. Six Carpenters' Case, supra. See also ante, p. 170, note 4. 1 West?;. Nibbs, 4 C. B. 172. 2 Compare Ilsley v. Nichols, 12 Pick. 270, denying certain dicta of the books. Ilsley v. Nichols decides that a levy made by breaking open the outer dnor of an occupied dwelling-house (a house is a man's castle) is invalid, and the officer is liable for the value of the goods taken as well as for the unlawful entry. The same result should in principle follow if, by an act subsequent to the entry, he become a trespasser from the beginning. » Six Carpenters' Case, supra ; Esty v. Wilmot, 15 Gray, 168 j Allen V. Crofoot, 5 Weud. 506. 228 LAW OF TORTS. [Paut IL fully gets possession of papers, and carries them away. This does not make him a trespasser ab initio.^ As where the entry was made in good faith the subsequent act must amount to a trespass, it becomes necessary to ascertain somewhat precisely the technical signification of the term. It is difficult to define a tres- pass, but the following will serve to indicate the proper meaning of the term : (1) Any wrongful intended contact with the person is a trespass. (2) An}' wrongful entry upon the plaintiff's land or interference with the plaintiff's possession of personalty is a trespass. (3) Any wrong- ful act committed directly with force is a trespass, thougii no physical contact with the person of the plaintiff or with his property be produced ; as in the case of an imprison- ment without contact, or the firing a gun under the plain- tiff's window, to alarm the inmates of his house. In cases like these, force is said to be implied. Upon the same ground, the seduction of the plaintiff's wife, daugh- ter, or servant might perhaps be considered as a tres- pass, and the act was formerly so treated b}- the coui-ts ; * the consent given was not the plaintiff's consent. But the present view is different.' On the other hand, (1) a mere non-feasance (that is, a pure omission) cannot be a trespass ; * (2) nor can there be a trespass where the matter affected was not tangible, and hence could not be immediately injured by force, as in the case of an injury to reputation or health ; (3) nor can there be a proper trespass where the right affected is incorporeal, as a right of common or way ; (4) nor where the interest injured exists in reversion or re- 1 Allen V. Crofoot, 5 Wend. 506. 2 Tulhtlge V. Wade, 3 Wils. 18 ; 1 Chitty, Pleading, 126, 133. 3 Mncfadzen v. Olivant, 6 East, 387 Chitty, however, prefers the old doctrine. 1 Pleading, 133. * Six Carpenters' Case, 8 Coke, 146. Chap. IX. §3.] TRESPASSES UPON PROPERTY. 229 mainder ; (5) nor where there is no right of action imme- diate upon the act in question.^ Lastl}-, to constitute a trespass to proport}', the thing affected must be capable of ownership as property- ; other- wise no legal right can be infringed. Wild animals, un- tamed, are deemed property only while in the actual or constructive possession of the keeper ; upon effectual and final escape, they cease to be propert}-, and may be killed, or taken and retained by any one, at least if he is not aware of the prior ownership. And a wild, savage ani- mal straying at large may be killed, though the owner be known to be in pursuit.^ A man may have property in a dog even though the animal may not have any certain pecuniary value.* The same is probably true of rare animals kept for study, for exhibition, for breeding, or even as pets.* No one there- fore has a right to take these from the owner, or to keep them from him when taken up as strays,'^ or needlessly to kill them.® But there are circumstances when the law justifies the killing of another's animals ; a man may not only protect himself or another from the attack of a beast, he may kill an animal, in some cases, which is doing mis- chief, as a dog which is biting or worrying his sheep or other valuable animals or fowls.'' Indeed, a savage dog, 1 See 1 Chitty, Pleading, 166. But qusere whether the effect of the rule of trespass ah initio might not be had in some of these cases, as in the third and fourth ? 2 2 Kent, Com. 348, 349. 8 Dodsou V. Meek, 4 Dev. & B. 146 ; Wheatly v. Harris, 4 Sneed, 468. * See Amory v. Flyn, 10 'Johns. 102, as to wild animals tamed. 6 Id. •5 Dodson V. Meek and Wheatly v. Harris, supra. ' King V. Kline, 6 Barr, 318 ; Woolf v. Chalker, 31 Conn. 121; Brown v. Hoburger, 52 Barb. 15, 230 LAW OF TORTS. [Part IL suffered to run at large without a muzzle, and disposed to attack or snap at people, may be treated as a nuisance and killed b}' any one ; and that, too, whether at the time the dog was doing harm or not.-^ A man may, however, keep a ferocious dog as a watch over his premises, if properly secured ; while the dog is in such a situation, no one may lawfully kill it, unless in- deed it is then making an attack upon man or beast. ^ It would doubtless be lawful to kill the dog to save the life of even a burglar. A word may be added in regard to trespassing animals. The law is very plain and natural ; trespassing will sel- dom justify killing or maiming,^ or even detaining upon a claim for anything more than reimbursement of necessary expenses and payment of damage done. And if detained, the animals must be taken care of and properly treated.'' On the other hand, if driven away, that must be done without unnecessary violence ; such violence would be a trespass. For example : The defendant, finding the plain- tiff's horse straying upon his premises, sets a savage dog upon it, and the horse is seriously hurt. The defendant is liable in damages.^ 1 Putnam v Pa^'ne, 13 Johns. 312 ; Maxwell v. Palmerston, 21 Wend. 407 ; Brown v. Cai'penter, 26 Vt. 638. 2 See Perry v. Phipps, 10 Ired. 259. ^ See Aldrich v. Wright, 53 N. H. 398, an important case, in which a killing was held proper. ■* Murgoo V. Cogswell, 1 E. D. Smith, 359. £> Amiek v. O'Hara, 6 Blackf. 258. CHAPTER X. CONVERSION. § 1. Introuuctort. Statement oftJie duty. A owes to B the duty to forbear to exercise domiuiou (1) over B's general property in personal chattels ; (2) over B's special property in the like things. 1. By ' general property ' is commonly meant the own- ership of property, subject, it may be, to a special i)rop- erty for a time in anotlier. 2. By ' special property ' is meant a right of possession coupled with possession ; the right being general, as in the case of a lien creditor, or limited, as in the case of a finder. 3. By ' bare possession' merely is commonly meant a mere custody (' detention ') or a possession unlawfully obtained. 4. The action for converting goods to one's own use has always been called ' trover,' a term meaning ' to find,' which was used in the old precedents of declara- tion ; the plaintiff, by a fiction, alleging tliat he had lost and the defendant had found and converted to his own use the chattel in question.^ 5. The action of 'trover' is an action to recover (not specific articles, but) damages for the conversion of cliat- tels personal, to the value of the interest converted. 1 The allegation was at first probahh' real, arising perhaps from the connnou action for strays. See L. C. Torts, 422. 232 LAW OF TORTS. [Part U. 6. By an ' act of dominion ' is meant an act of, or tantamount to, ownersliip. 7. The action of detinue is not much used in modern times. Its object is to recover chattels in specie, or dam- ages for their non-return if they cannot be had, and dam- ages for the wrongful detention. It has been superseded largely by the statutory action of replevin and by trover. The principles set forth in this chapter apply, generally spealiiug, to all three of these actions. 8. As in trespass, so in trover, detinue, and replevin, the thing alleged to have been converted must be capable of ownership as property,^ § 2. Of Possession. The possession of a chattel personal, that is, of a mov- able article, or a right to take possession thereof, is neces- sary to support an action for conversion, just as it is to support an action for trespass. The plaintiff fails in trover if it appear that he has never acquired a right of possession, or if he has, that he has parted with it, and has not before suit become reinvested with the same. For example : The plaintiff is the purchaser of goods, which, however, remain in the seller's possession subject to a lien for the purchase price. The defendant, without authority, removes the goods from the seller's possession, doing no permanent injury to them. This is no breach of duty to the plaintiff."^ Again : The defendant, a sheriff, wrongfully levies upon goods of the plaintiff in the hands of a lessee of the property, and carries the goods away. The plaintiff cannot treat the act as a conversion ^though the tenant could), since the plaintiff was not entitled to the possession of the property.^ 1 See ante, p. 229. 2 j^ord v. Price, L. "R. 9 Ex. 54. 8 Oordon v. Har])i'r, 7 T. R. 9. See Farraiit v. Thompson, 5 B. & Aid. 826 ; ante, p. 212. Chap. X. § 2.] CONVERSION. 233 On the other hand, the right to the possession of the chattels is sullicieut to enable the general owner to sue for a conversion thereof, though he may not have the actual possession at the time of the wrongful act ; because, as was stated in the preceding chapter, the right to take pos- session of goods draws the possession in contemplation of law. For example : The defendant buys and takes away a chattel belonging to the plaintiff from A, who had no right to sell it. The plaintiff, being the owner, is deemed to have been in possession of the chattel at the time of the conversion by the defendant.^ A person having the special property in goods, with general right of possession, can maintain an action for conversion against all persons who may wrongfully exer- cise dominion over them, though the act be done by command of the owner of the goods. For example : The defendant takes a horse out of the possession of the plain- tiff', the plaintiff having a lien npou the animal. The de- fendant acts by direction of the owner, but without other authority. He is liable for conversion of the horse. '^ It follows that a person having a special property in goods, together with general right of possession of them, may maintain an action against the owner himself for any unpermitted disturl)auce or refusal of his possession ; since, if the owner cannot give an authority to another to take the goods, he cannot take them himself. For example : The defendant, owner of a title-deed, in the possession of the plaintiff under a temporary right to hold it, takes it by permission of tlie plaintiff for a particular purpose, and then, during the continuance of the plaintiff's right to hold 1 Hyde v. Noble, 13 N. H. 494 ; Clark v. Eideout, 39 N. H. 238 ; Carter v. Kingman, 103 Mass. 517 2 See Outcalt v. Durling, 1 Dutch. 443. The form of action in this case was trespass, hut it might as well liave been trover. The injured party could sue in either form in such cases. 234 LAW OF TORTS. [Pakt IL it, refuses to redeliver it. The defendant has violated Ms duty to the plaintiff, and is liable for conversion.^ One who has a possession of chattels, though without a right to hold them against the owner, is also protected against all persons having neither a right of property nor of possession. The mere fact that the possessor of goods has no right to hold them against persons having a general or higher special property in the goods, gives no privilege to a stranger to interfere with the party's possession. So to interfere would be a breach of duty to the possessor which would render the person interfering liable for the value of the goods. For example : The defendant, a stranger, refuses to return to the plaintiff a jewel, which the latter has found and shown to the defend- ant. The defendant's act is a breach of duty to the plain- tiff, and he is liable for the value of the jewel. ^ It would be different, however, if the defendant acted under express authority of the owner, or of one entitled to the possession of the property. But it is laid down that the defendant could not set up the rights of a third per- son (called the 'jus tertii') without authority from the latter.^ That is, the defendant can deny the plaintiff's right only by showing a better right in himself.* The finding of a chattel does not, however, in all cases give a right to hold the article against all persons having no right of property in it ; though the finding and taking 1 Roberts v. Wyatt, 2 Taunt. 268. 2 Armory v. Delaniirie, 1 Strange, 505 ; Cases, 288. ^ Rogers v. Arnold, 12 Wend. 30 (suit to recover the cliattels spe- cifically) ; Jefferies v. Great Western Ry. Co. 5 El. & B. 802 ; Chees- man v. E.xall, 6 Ex. 341 ; L. C. Torts, 426. Does this mean that possession in itself, however obtained, will be protected, — that it can- not be shown e.g. that the plaiutitf stole the property ? See ante, p. 182, note. * Hubbard v. Lyman, 8 Allen, 520 ; Landon v. Emmons, 97 Mass. 37. Chap. X. § 2.] CONVERSION. 235 possession were not unlawful as against the loser. The chattel may be found upon the premises of another, in such a situation as to indicate that it was voluntarily put in possession of the owner of the premises. AVhen this is the ease, the possession of the article is deemed to be in the occupant of the premises, and not in the finder. The former can therefore maintain an action for conversion against the latter, sliould he refuse to surrender to him the chattel. For example : The defendant, a barber, re- ceives from the plaintiff, a customer in his shop, a pocket- book containing money, which the plaintiff has discovered lying upon a table in the defendant's shop. The plaintiff", in handing the pocket-book to the defendant, tells him to keep it until he can discover the owner, and then return it to the loser. No one having called for the article, the plaintiff claims it, and the defendant refuses to give it to him. This is not a breach of duty to the plaintiff, since the fact that the pocket-book was left upon the defend- ant's table indicates that the owner put it there by in- tention, and so put it into the defendant's keeping or possession.^ If, however, the chattel be found in a position which indicates that it could not have been purposely put there, but must have been unintentionally parted with, and so truly lost the moment it escaped the owner, it does not fall into the keeping or possession of the occupant of the premises unless he (or his servant) first discover it there. If another first find it, the possession, as between himself and the occupant, is in him, the finder. For example : The defendant, a shop-keeper, receives from the plaintiff a parcel, containing bank-notes, which the latter has picked up from the floor of the defendant's shop ; the plaintiff, on handing the parcel to the defendant, telling him to keep 1 McAvoy V. Medina, 11 Allen, 548. 236 LAW OF TORTS. [Part II. the same till the owner claims it. The defeudant adver- tises the parcel, but no one claims it, and three years having elapsed, the plaintiff requests the defendant to return to him the bills, at the same time tendering the cost of advertising, and even offering an indemnity. The de- fendant refuses. This is a breach of duty to the plaintiff, and the defendant is liable to him for conversion of the parcel.^ The term ' possession ' has the same meaning here, and indeed everywhere in the law of torts, that it has in cases of trespass.^ Thus, a servant can, it seems, only hold ; the possession is the master's. For example : The de- fendant takes goods out of the hands of the plaintiff, a sheriff's deputy, without authority. The act is deemed not a breach of duty to the plaintiff, since he is but a servant, and so holds not in Ms own right ; ^ though it would be otherwise in regard to the sheriff. § 3. Of What constitutes Conversion. It has been seen that conversion consists in the exercise of an act of dominion over the movables of another ; that is, it is a usurpation of ownership. And it matters not whether this was done with or without knowledge of the true state of the title, as will be seen ; every man acts at his peril in exercising acts of dominion over property.* The distinction between trespass and conversion consists in this, that trespass is an unlawful taking, as for the 1 Bridges v. Hawkcsworth, 21 L. J. Q. B. 75. 2 Ante, p. 210. The meaning there ascribed to the term is intended to be of the widest application, where the possession is real. 3 Hampton v. Brown, 13 Ired. 18; ante, p. 211. * See a qualification stated in Hollins v. Fowler, L. R. 7 H. L. 757, 768, Lord Blackburn, in regard to dealing with goods at the request of a person having actual custodj' of them, in tlw. bona fide belief that such person is owner, or has the owner's authoritj'. CuAi'. X. § 3.] CONVERSION. 237 mere sake of removing the property, while conversion is an unlawful taking or keeping in the exercise, legally con- sidered, of llie right of ownership.^ Acts of dominiou a[)[)ear in two forms ; first, where the wrongdoer appropriates to himself the goods of an- other ; secondly, where, witliout appropriating them to himself, he deprives the owner, or person having the superior right, of their use, by an act of ownership. The most common illustration of an act of dominion in the first form is the case of a sale and delivery of goods, made without autliority of the owner. Every sale without restriction by a person having no right to sell is a con- version, if followed by delivery,^ and renders the vendor liable in an action of trover.* For example : The defend- ant, an officer, levies upon goods as the property of a third person, some of which belong to the plaintitf, takes them away, after being informed of the plaintiff's claim, and sells the whole. This is a conversion of the plaintiff's goods ; thougli it would have been otherwise had the goods been mixed by the plaintiff with those of the third person,* and a separation not offered by the plaintiff.^ The same consequence follows where, having authority to make a sale, the party selling transgresses his right ; since to do so is to assert that he may sell according to his own will, and that is to exclude the rights of all others. For example : The defendant, an officer, makes, unneces- sarily, an excessive levy upon the plaintiff's goods, under a valid writ, and sells them. This is a conversion, since 1 See Bushel v. Miller, 1 Strange, 129 ; Fouldes v. Willoughby, 8 M. & W. 540, 551, Kolfe, B. 2 See Consolidated Co. v. Curtis, 1892, 1 Q. B. 495, 498. 5 Qusere, whether a demand would be necessary ? See post, p. 249. * Gilmau v. Hill, 36 N. H. 311. 6 See 2 Kent, Com. 3C5. 238 LAW OF TORTS. [Part II. it is done in disregard of tlie defendant's authority, and according to the party's own will.^ This principle that the sale of property with delivery is an act of dominion so as to render the seller liable for conversion if he had no right to sell as he did, applies equally whether the vendor knew or did not know the true state of the title, or the actual limit of his authority. Liability for converting the goods of another to one's own use does not depend upon the intent of the party exercis- ing the act of dominion. For example : The defendant sells and delivers a horse of the plaintiff to a third person, the defendant having bought the animal from one who had no title to it, though the defendant supposed the con- trary, and supposed himself to be owner of the horse at the time of the sale in question. The defendant is liable for conversion.^ Where the purchaser's vendor had acquired his supposed title from the plaintiff by means of a sale effected by false, or even by fraudulent, representations, the case would be different. Fraud of this character renders the sale voida- ble merely, and not void ; the consequence of which is, that the defrauded party has a right to rescind the sale only so long as the property remains in the hands of the buyer from himself, or of an}- one claiming under him who is not a purchaser for value without notice.^ Inasmuch as the bu3-er, notwithstanding his fraud, acquired the title to the goods, he can convey that title; and more, he can 1 Alrlred v. Constable, 6 Q. B. 370, 381. See Somner r. Wilt, 4 Serg. & K 19 ; Stewart v. Cole, 46 Ala. 646. So to pledge the goods of another without authority. Carpenter v. Hale, 8 Grjiy, \r>7. 2 Harris y. Saunders, 2 Strohh. Eq. 370, note; Carter?'. Kingman, 103 Mass. 517. See McComhie v. Davies, 6 East, .538; Hilbery v. Hatton, 33 L. J. Ex. 190; Fowler v. Rollins, L. R. 7 Q. B. 616; s. c. 7 H. L. 757. 8 Clough V. North-western Ry. Co. L. R. 7 Ex. 26. Chap X § 3.] CONVERSION. 239 convey a better right thau he had himself, provided he sell to a purchaser for value without notice. Hence, not only would such purchaser be free from lia- bility in refusing to return the goods to the defrauded party, but should that party obtain possession of them and refuse to deliver them to the i)urchaser from the in- termediate seller, he (the defrauded party) would himself be liable in trover. For example : The defendants, hav- ing previously been owners of a quantity of iron, sell the same to P, who gives them a fraudulent draft (supposed by the defendants to be good) for the amount due for the property. P then sells the iron to the plaintiff, who buys for value, and without notice of the fraud. Subsequently, the defendants discover the fraud, and send their servant to take away the iron, now lying in port in a lighter alongside the plaintiff's wharf. The servant takes away the lighter and brings the iron therein to the defendants. The plaintiff has acquired a good title to the iron, and the defendants are guilty of a conversion.-^ There are other cases in which a person may by pur- chase for value and without notice acquire a better title than his vendor had. A purchaser of goods from one who has by the terms of sale reserved the right to buy back the property within a certain time, acquires (or may by such a transaction acquire) the title to the property, and, having a good title, he may convey the same to one who purchases for value and without notice, so as to cut off the original owner's right to repurchase. The conse- quence is, that the last purchaser is not guilty of a con- version by refusing to let the original owner have the goods upon a tender by him of the amount he was to pay for them, though made within the time agreed upon be- ^ White V. Garden, IOC. B. 919. See for the converse case, Cundy V. Lindsay, 3 App. Cas. 459. 240 LAW OF TORTS. [Part II. tween him and bis buyer. The case would be different, however, ia regard to the buyer from the original owner. His act in making the sale would, indeed, be lawful against the seller, if the seller should never offer to re- purchase ; but if the seller should offer to repurchase, and tender the price, his purchaser would be bound to return to him the goods, and, in case of failure, would be liable according to the terms of the contract. If, however, the sale were upon condition that the title should not pass until the performance of some condition, the party, not having acquired the title, could not convey it ; and an attempt to do so by a sale and delivery would, by the better rule, subject the buyer to liability for con- version. For example : The defendants purchase furni- ture from W, who had taken possession of the same upon an agreement that he should keep it six months, and if within that time he should pay a certain sum for it, it should be his ; otherwise, he was to pay twenty-five per cent of the price for the use. The sale to the defendants is made shortly after W takes possession of the furniture and before payment for it. A refusal by the defendants to restore the property to the plaintiff is a breach of duty to him, and makes them liable for the value of the furniture.^ According to recent authorities, the holder of a pledge or pawn has such an interest in the chattel that he can dispose of the same by sale or repledge without subject- ing the purchaser or repledgee to trover^ and without subjecting himself thereto, except in either case ujx)!! a failure to produce the pledge or pawn upon tender of the debt to secure which the chattel was given. For exam- 1 Sargont v. Gile, 8 N. H. 325, denying Vincent v. Cornell, 13 Pick. 294. According to the latter case, the conditional buyer would, by the sale, transfer his own right, such as it was. See Coggill v, Hartford R. Co. 3 Grav, 545 ; Deshon v. Bigelow, 8 Gray, 159. Chap. X. § 3.] CONVERSION. 241 pie : The defendant has taken in pledge from S certain bonds, whicli the plaintiff had pledged to S for the secu- rity of a debt smaller than the amount of the debt of S to the defendant ; the repledge being made before the ma- turity of tlie original debt,^ and before payment or tender thereof. The refusal of the defendant to return the bonds to the plaintiff except on tender to the defendant of tlie amount due to S is not a co7iversion by the defendixnt ; nor would the act of S amount to a conversion, unless upon tender of the debt due to him he should fail to return the bonds. ^ One who has a special property in goods may or may not be able to dispose of his interest therein, according to the nature of Ills interest. Not every special property is alienable. In many cases of bailment, the special objects to be effected forbid that the bailee should have an assign- able interest. Such is the case (1) where the bailment is made upon a trust in the personal skill, knowledge, or efficiency of the bailee. Sucli is the case (2) where the bailee has a mere lien upon the goods entrusted to him. And such is the case (3) where the bailment is at the bailor's will. In any of these cases, any attempt by the bailee to assign his interest in the property, followed by de- livery of possession, puts an end at once to the bailment. The consequence is, that the assignee acquires no title or right, and becomes liable on refusing to surrender the goods to the owner, even if not by merely taking them. There is, however, a large class of bailments where the trust is accompanied with other incidents than those per- 1 That is, while the bonds were still subject to redemption by the plaintiff. 2 Donald v. Suckling, L. R. 1 Q. B. 585 ; Cases, 294, To pledge, without authority, another's property held in simple bailment would be a very different thing. Carpenter v. Hale, 8 Gray, 158, infra p. 244. Note also the distinction in Post v. Union Bank, 42 N. E. Rep. 976 (111.); Carpenter v. Dresser, 72 Maine, 377, in case, , 16 242 LAW OF TORTS. [rARX II. taining to a simple bailment, and where there is no ele- ment of personal trust, and none of the characteristics of an estate at will ; and in this class it is clear that tlie bailee has an assignable interest. There can be no con- version, therefore, in the act of transferring such an in- terest merely, provided the assignee claims onl}'^ the rights of the assignor ; because the latter, having exercised no act of dominion over the property', but having dealt sim- ply with his own interest, did not reinvest the owner with a right of possession. An attempt by the bailee to dis- pose of the goods absolutel}", hovrever, would be different, if followed by a delivery of them. For though a bailee could not, without fault on the part of the owner (by holding him out as having a right to sell absolutely), dis- pose of anything beyond his own interest, the attempt to do so, followed by the overt act, would be to exercise dominion over the goods. ^ It is not always necessary that there should be an ap- propriation of the entire property held in order to effect a conversion of the whole. If the part appropriated be necessary to the use of the rest in the purpose to which the whole was to be put, as b}' rendering an intended sale impracticable except at a sacrifice, the pait appropriation, if wrongful, may, it seems, be a conversion of the whole. For example : The defendant, a bailee by tlie plaintiff of wine in casks for sale by the cask, consumes part of the wine in one cask. This may (probabl}') be treated as a conversion of all the wine in that cask.^ Again : The de- fendant finds a raft of timber belonging to the plaintiff lodged on a sandbar in a stream, takes possession of it, 1 See. ante, p. 237 ; Lancashire Wagon Co. v. Fitzhugh, 6 H. & N. 502 ; Cooper v. Willomatt, 1 C. B. 672. 2 Philpott V. Kelley, 3 Ad. & E. 106, senible. The case was not so strong as the facts put in the example. See Clendon v. Dinncfonl, 6 Car. & P. 13 ; Gentry v. iladdcn, 3 Pike, 127. Chap. X. §3.] CONVERSION. 243 hires a man to assist him in removing part of it, and sells the rest to him, reserving the part removed. This may be treated as a conversion of tlie whole raft.^ It appears to be immaterial to tlie plaintiff's right of re- covery for the whole, that what remains is still in itself as good as if there had been no severance ; the plaintiff has the rioht to the benefit to be obtained from it in its en- tirety, where that is a special benefit. This principle would apply to cases where separate articles are delivered under oue entire contract of bailment or lease, even though the articles be separately enumerated and valued. The bailment or lease is still indivisible in contemplation of law, and conversion of part may be conversion of the whole. ^ If, however, separate articles be severally bailed or leased, by distinct contracts, though all be delivered and bargained for at the same time, the rule of law is (prob- ably) different ; a conversion of one of the articles or parts would not in such a case operate as a conversion of the whole. If the owner of goods stand by and permit them, with- out objection, to be sold as the property of another, the purchaser acquires a good title, and is not liable to the owner for a refusal to deliver them to liim.^ For example : The defendant purchases machiner}^ of M, the legal title to which at the time of the sale is in the plaintiffs. The machinery is sold under a levy of execution against M, and the plaintiffs, though having notice of the levy, and having repeatedly conversed about it, before the sale, with the attorney of the party who made the levy, never laid any claim to the property until after the sale. The 1 Gentry v. Madden, 3 Pike, 127. 2 See Clendon v. Dinneford, 5 Car. & P. 13; Gentry r. Mudden, supra. 8 Pickard v. Sears, 6 Ad. & E. 469 ; Stephens v. Baird, 9 Coweu. 274 ; DezcU V. Odell, 3 Hill, 215. 244 LAW OF TORTS. [Part II. defendant's refusal to surrender the machinery to the plaintiff is not a breach of duty.^ Appropriating an article held in bailment to a use not contemplated at the time of the contract of bailment r.nd not authorized by law, may also constitute conversion. For example : The defendant hires of the plaintiff a horse to ride to York, and rides it beyond York to Carlisle. This is a conversion of the animal, entitling the plaintiff, on return of the property, at least to nominal damages, and to actual damages if any loss be in fact sustained by reason of the act.'^ Again : The defendant lends money to E, taking from him by way of security a quantity of leather, which had been placed in E's hands by the plain- tiff to be made up into boots, on hire. The defendant refuses to surrender the leather to the plaintiff. He is guilty of conversion.^ Again : The defendant receives from the plaintiff shares of stock to be sold on commis- sion. Instead of selling, the defendant exchanges the stock for other property. This is a conversion.^ It has sometimes been supposed that there can be no right of action for conversion in such cases, unless the chattel was injured in the misappropriation.^ But there is ground for doubting the correctness of this doctrine. The foundation of the action is the usurpation of the 1 Pickard v. Sears, 2 Ad. & E. 469. 2 Isaack v. Clark, 2 Bulst. 306 ; Perham v. Coney, 117 Mass. 102. 3 Carpenter v. Hale, 8 Gray, 157. * Haas V. Damon, 9 Iowa, 589. The buyer would not be liable if the act was within the general scope of the agent's authority, and with- out notice of the breach of duty. ^ Johnson v. "Wcedman, 4 Seam. 495 ; Harvey v. Epes, 12 Gratt. 153. In the first of these cases a horse which the defendant had con- verted died on his hands, directly after but not in consequence of the conveision. It was held that the owner had no cause of action. The plaintiff was not entitled to recover the value of the horse, but he had a cause of action, it should seem. Chap. X. §3] COXVERSION. 245 owner's right of property. It Is true, the pkiiutiff in trover seeks to recover the vahie of the thing converted, but if he has received it back, or possibly if it has been tendered back in proper condition,^ he will be allowed to recover no more (beyond nominal damages) than the amount of his loss.^ But conversion itself is a cause of action ; it is not necessary to prove special damage. In all the foregoing cases, it will be observed that there is something more than an assertion, by word of mouth, of dominion over the chattel. An assertion alone, not followed by any act in pursuance of it, such as a re- fusal to surrender the chattel to the person entitled to possession, would not amount to a conversion. There must be some unauthorized interference with the plaintiff's right of possession. Even an attempted exercise of do- minion, without right, appears to be insufficient to con- stitute a conversion, if the owner's right was not in fact interrupted. For example : The defendant, by an officer, makes a declaration of attachment of goods which he knows is already duly levied upon by the plaintiff, has a keeper appointed and then suffers the owner of the attached property to take it away and sell it, and re- ceives part of the avails. This is deemed not a con- version.^ 1 There is some doubt of the right to tender back the converted chattel, though it has not been injured, especial!}^ if the conversion was 'wilful.' See Hart v. Skinner, 16 Vt. 138 ; Oreen v. Sperry, id. 390. But see Delano v. Curtis, 7 Allen, 470, 475. Further see Yale v. Saunders, 16 Vt. 243 ; Stephens v. Koonce, 103 N. Car. 266. 2 Fisher v. Prince, 3 Burr. 1363 ; Farle v. Holderness, 4 Bing. 462 ; Cook V. Hartle, 8 Car. & P. 568 ; Hewes v. Parkman, 20 Pick. 90, 95. Judgment for the plaintiff in trover does not vest the property in the defendant. Lovejoy v. Murray, 3 Wall. 1 ; Brady v. Whitney, 24 Mich. 154 ; Brinsmead v. Harrison, L. Pi. 6 C. P. 584. ^ Policy V. Lenox Iron Works, 2 Allen, 182, adopting the language of Heath, J. in Bromley v. Coxwcll, 2 B. & P. 438, that 'to support an 246 LAW OF TORTS. [Pabt II. Thus far of cases in which the defendant has appro- priated the goods in question to his own use. But, as has been btated, a wrongful act of dominion may be committed without so appropriating the goods. It is enough that tlie defendant has wrongfully deprived the plaintiff of the possession of his goods or usurped his rights over them, though for the benefit of a third person. In cases of this kind it was formerly supposed that an intention to deprive the plaintiff of his goods was neces- sary ; but this has been decided to be incorrect. The question still is whether there has been a wrongful exer- cise of dominion by the defendant ; if there has been an unauthorized act which deprived tlie plaintiff" of his property permanently or for an indefinite time, there has been a conversion.^ If not, the contrary is true. For example : The defendant, manager of a ferry, receives on board his boat the plaintiff, with two horses. Before starting, the plaintiff is reported to the defendant as be- having improperly, and though he has paid his fare for transportation, and the defendant tells him that he will not carry the horses, and that they must be taken ashore, the plaintiff refuses to take them off the boat, where- upon the defendant puts them ashore, and has them taken to a livery for keeping. The plaintiff goes with the boat, and the next day sends to the livery stable for his horses. In reply, the plaintiff is told that he can have his horses by coming and paying the charges for keeping, otherwise they would be sold to pay expenses. They are sold accordingly, and damages as for a conversion are sought of the defendant. The action is not maintainable, since there is nothing to show that the defendant wrong- action of trover there must be a positive tortious act.' Here the de« fenilant was merely 'suffered ' to take and sell the property. 1 Hiort V. Bott, L. R. 9 Ex. 86, 89, Bramwell, B. CnAi>. X. § .3] CONVERSION. 247 fully deprived the plaintiff, even for a moment, of bis property.^ Any asportation of a chattel, however, for the use of a third person amounts to a conversion, for the i-easou that the act is inconsistent with the right of dominion which the owner (or person entitled to possession) has in it.'-' And the same is true of an intentional, or possibly negli- gent, destruction of the chattel.*^ In the case of acts of co-owners (cotenants) it is held by many authorities that nothing short of a substantial destruction of the common property by the wrongful act of one of them can make him liable to the other or others for conversion.* This is on the ground that each of the common owners has a right to the entire possession and use of the property. A sale and delivery, though abso- lute, would not be enough ; for the purchaser would only become a co-owner with the others.^ By many other authorities it is held that a sale and delivery of the prop- erty, absolutely, would suffice.® Some authorities even treat the mere withholding of the chattel by a cotenant from his fellow, or the misuse of it, or the refusal to sever and terminate the cotenancy, as a conversion.'' But it ^ Fouldes V. Willougbby, 8 M. & W. .540. For other examples, see Simmons v. Lillj'stone, 8 Ex. 431 ; Thorogood v. Robinson, 6 Q. B. 769. 2 Fouldes V. Willougbby, supra. ^ Id. * Farrar v. P.eswiek, 1 M. & W. 682, 688, Parke, B. : Morgan v. Marquis, 9 Ex. 14.^) ; Maybew v. Herrick, 7 C. B. 229 ; Oviatt v. Sage, 7 Conn, 9.5 ; Barton v. Burton, 27 Vt. 93 : Pitt v. Petway, 12 Ired. 69. Corap. the case of trespass, ante, pp. 214-216. ^ Morgan v. Maniuis, supra, Parke, B. 6 Weld V. Oliver, 21 Pick. 559; Wilson v. Eead, 3 Johns. 175; Dyckman v. Valiente, 42 N. Y. 549 ; White v. Brooks, 43 N. H. 402 ; Dain v. Coning, 22 Maine, 347 ; Arthur v. Gayle, 38 Ala. 559 ; Wil- liams V. Chadbourne, 6 Cal. 559. ^ Agnew V. .Johnson, 17 Penn. St. 373 ; Fiquet v. Allison, 12 Mich. 328. See Strickland v. Parker, 54 Maine. 263. 248 LAW OF TORTS. [Part IL is not necessary by any of the authorities that there should be a physical destruction of the property, as by breaking it in pieces ; it is enough that the common in- terest, or rather the plaintiff's interest, is practically destroyed, as by a sale by the cotenant and the buyer's taking the property into another State, there to be kept.-^ If an act, in and of itself being a conversion, has been committed, the injured party is entitled to bring suit without first demanding his property. In other cases, a demand and wrongful refusal will be necessarj-, since without them there has been no wrongful exercise of dominion. 2 For example : The defendant collusivcly purchases goods from a trader on the eve of the trader's bankruptcy, and takes the property into his own posses- sion. The assignee of the trader brings trover without a demand. The action is not maintainable, since the defendant had been guilty of no conversion ; the trader being competent to contract, though his contract of sale was liable to impeachment.® Of the last example, it should be observed that (in ac cordance with a principle alread}' stated) the fraud of the trader and the defendant did not make the sale void ; its only effect was to render it voidable. The contract was therefore binding until disaffirmed; and a disaffirmance could be made only by a demand of the goods, or by some act tantamount thereto. And the demand and re- fusal, that is, the conversion, must be apart from the bringing of suit, when such acts are necessar}^ ; for the cause of action must have arisen befoi'e suit was begun. In the example given, if the defendant had sold the goods, 1 Pitt V. Petway, 12 Ired. 69. 2 Cliitty, Pleading, 157 ; Nixon v. Jenkins, 2 H. Black. 135. ^ Nixon V. Jenkins, supra. CiiAP. X. § 3.] CONVERSION. 249 or ill] properly detained them after a disaffirmauce of the sale, the action woukl have been maintainable.^ Whether a demand is necessary where property has been sold and delivered by one having no authority to sell, has been a point of conflict of authority. The better view, however, is that the unauthorized sale and delivery are sufficient to constitute a conversion, and hence that de- mand before suit is not necessary,- It is conceded that if the buyer has talcen the goods away, there is a conversion.^ A very common instance of the necessity of demand and refusal is where goods have been i)ut into the hands of another for a special purpose, upon agreement to return them when the purpose is accomplished ; in regard to which the i-ul'e is, that a breach of the contract by the mere failure so to return the goods does not amount to a conversion. Before the bailee can be liable in trover in such a case, supposing there had been no misappropria- tion or other act of dominion, there must be a demand for the goods and a refusal to restore them.* An unquali- fied refusal will itself, in almost all cases, constitute a conversion.^ A qualified refusal to deliver goods on lawful demand may, however, be only prima facie evidence of a conver- sion.^ The defendant may have found the goods, and 1 Bloxam v. Hubbard, 5 East, 407. 2 Galvin v. Bacon, 2 Fairf. 28 ; Parsons v. Webb, 8 Greenl. 38 ; Stanley v. Gaylord, 1 Cush. 536 ; Trudo v. Anderson, 10 Micb. 357 ; AVhitnian Alining Co. v. Tritle, 4 Nev. 404. Contra, ^larsball v. Davis, 1 Wend. 109 ; Barrett v. Warren, 3 Hill, 348 ; Nash v. Mosher, 19 Wend. 431 ; Talmadge v. Scudder, 38 Penn. St. 517 ; Sherry v. Pick- en, 10 Ind. 375; Justice v. Wendell, 14 B. Mon. 12. 3 Ely V. Ehle, 3 Comst. 506 ; Nash v. Mosher, supra ; Marshall v. Davis, supra. * Severin v. Keppell, 4 Esp. 156. 5 Alexander v. Southey, 5 B. & Aid. 247, 250. 6 Burrougbes v. Baj-ne, 5 H. & N. 296 ; Alexander v. Southey, supra. 250 LAW OF TORTS. [Pabt IL refused to surrender them to the plaintiff until he shall have proved his rigiit to them. It follows from what has already been said that such a refusal is justifiable, since, if the plaintiff is not entitled to the goods by right, the defendant as finder has the better claim ; and he cannot or may not know that the plaintiff may not be a pretender until he has furnished evidence that he is not. And other cases of the kind might be stated ; ^ the only ques- tion, where the refusal to return is qualified, is whether it IS reasonable.* If the demand be not made upon the defendant himself, but merely left at his house in his absence, it seems that a reasonable time and opportunity to restore the goods should be suffered to elapse before the defendant's non- compliance with the demand can be treated as a refusal amounting to a conversion. Non-compliance with the demand after a reasonable opportunity has been afforded to obey it is, however, clearly tantamount to a refusal, and is presumptive evidence of a conversion, thus requir- ing the defendant to explain that the omission to deliver the goods was justifiable.^ 1 See Pollock, Torts, 306, 307, 2(i ed. 2 Alexander v. Southey, 5 B. & Aid. at p. 250. 8 1 Chitty, Pleading, 160 ; Thompson v. Rose, 16 Conn. 71 ; White V. Deraaiy, 2 N. H. 546. CHAPTER XI. INFRINGEMENT OF PATENTS, TRADE MARKS, AND COPYRIGHTS. § 1. Introductory. Statement of the duty. A owes to B the duty (1) to forbear to make, use, or vend, without B's license, a thing patented by B ; (2) to forbear, without B's license, to print, publish, or import any copyrighted boolv of which B owns the copyright, or knowing the same to be so printed, published, or miported, to sell or expose for sale any copy of such book ; and to forbear to violate the riglits of B in respect of any other copyrighted matter of which B owns the copyright.^ § 2. Of Patents. The Revised Statutes of the United States grant to patentees, their heirs and assigns, for the term of seven- teen j^ears, the exclusive right to make, use, and vend the patented article throughout the United States and the territories thereof ; '^ and for an infringement they allow (besides bills in equity for equitable pi-otection) an action on the case in the name of the party interested, cither as patentee, assignee, or grantee.^ That for which the laws give patents is ' invention,' something, that is to say, which is created by original thought, not something which is discovered except in the ' It would make the statement of this duty far too prolix to spe- cify all of the rights and duties arising under this last clause. 2 U. S. Rev. Sts. § 4884 a lb. § 4919. 252 LAW OF TORTS. [Part II. narrower sense of discovery. When therefore the word ' discovery ' is used of something patented, it must be un- derstood in the sense of ' invention.' The laws of nature may be discovered by man, but they cannot be invented by him ; hence discovery of them cannot be patented.'^ ' Principle ' or ' scientific principle ' is often used in this sense of a law of nature, and in that sense falls without the patent laws. Invention may cover processes, however, in which any of the laws of nature are called into use ; but it is the process (or ' principle ' or ' discovery ' in that sense) that is patentable, not the law of nature, though that law may never have been known before. And then with regard to processes, it is not processes generally that may be pa- tented. A merely mechanical process, or rather the effect produced by such a process, cannot be patented ; or as the law has been laid down from the bench, ' a man can- not have a patent for the function of a machine,' ^ for that would be to prevent the use of better machines for per- forming the same function or attaining the same result.^ The processes necessary for maiviug the machine may be patented, not the effect or result to be produced (except with reference to patents for designs). In a word, those processes are patentable which look to results which are to be produced otherwise than by any particular machine or by means not purely mechanical.^ Anything to be the subject of a valid patent must, besides being the subject of invention, be new and useful.^ 1 Telephone Cases, 126 U, S. 531 ; O'Reilly v. Morse, 15 How. 112 ; Walker, Patents, § 2, 2d ed. ^ Corning i'. Burden, 15 How. 252, 268. ^ Id. 4 Walker, § 6 ; Mo wry v. Whitney, 14 Wall. 620 ; Tilghman v. Proctor, 102 U. S. 707 ; Telephone Cases, 126 U. S. 531. 6 Fermentation Co. v. Maus, 122 U. S. 413, 427 ; Telephone Cases, 126 U. S. 533. Chap. XT. § 2.] INFRINGEMENT OF PATENTS, ETC. 253 Having the foregoing considerations in mind, the spe- cilic subjects of patent, by the laws of tlie United States, are the following ; arts, machines, manufactures, compo- sitions of matter, and designs.^ These terms are not in- tended to be used with perfect exactness, and yet withni certain limits they are intended to be in a general way exclusive of each other ; a patent would, however, be good, generally speaking, if it fell under any one of the subjects named, tliough it might have been improperly assigned in the letters-patent to a particular subject. But notwithstanding their inexactness, the terms have legal limits, and things which do not fall within the legal mean- ing of any of them cannot be covered by patents. Thus the word ' manufacture ' has in the American law of pat- ents a narrow and technical meaning ; it appears to be limited to such things as are made by the hand of man, not embraced within the legal meaning of arts, machines, compositions of matter, or designs.^ Attention will now be turned to infringement. This must consist in the wrongful making, using, or vending the patented thmg. But the statutes leave it to the courts to determine what constitutes a making, using, or vending. Generally speaking, an infringement in the making takes place whenever another avails himself of the sub- ject of the invention of the patentee, without such varia- tion as will constitute a new discovery ; or an infringement is a copy made after and agreeing with the principle laid down in the specification of the patent.^ When a person has obtained a patent for a n"ew invention or a discovery made by his own ingenuity, it is not in the power of any one else, by simply varying in form or in immaterial pai'- 1 Walker, §§ 2, 20. 2 jj, § 17. 8 Curtis, Patents, § 289 ; Calloway v. Bleaden, Webs. Pat. Cas. 523. 254 LAW OF TORTS. [Pakt IL ticulars the nature or subject-matter of such invention or discovery, either to obtain a patent for it himself, or to use it without the leave of the patentee. The question then is, in actions for damages for infringements of this nature, not merely whether, in form or condition such as might be more or less immaterial, that w^hich has been done varies from the specification, but whether in reality, in substance, and in effect, the party has availed himself of the patentee's invention, in order to make the thing in question.^ It matters not therefore that the person complained of has succeeded in obtaining a patent for his supposed in- vention or discovery ; if it be in substance and effect a copy of the plaintiff's specification and patent, he will be guilty of a breach of duty to the latter by the making, using, or vending of the subject of it, assuming of course that the plaintiff's patent is valid. With regard to machines, it is often a point of difficulty to decide whether a patent is infringed, since the same elements and the same powers must be employed in all machines. The criterion of liability is, however, easily stated ; it is whether the machine complained of operates upon the same ' principle ' with the one patented. The material question must therefore be, not whether the same elements of motion or the same component parts are used, liut whether the given effect is produced substantially by the same mode of operation, and the same combination of powers in both machines. Mere colorable differences or slight improvements cannot affect the right of the original inventor.^ 1 Walton V. Potter, Webs. Pat. Cas. 585, Tindal, C. .J. ; O'Reilly v. Morse, 15 How. 62, 123 ; McCormick v. Talcott, 20 How. 402, 405 ; Morley Machine Co. v. Lancaster, 12!) IT. S. 263, 273. 2 Odiorne v. Winkley, 2 Gal. 51 ; McCormick i*. Seymour, 2 Blatchf. 240 ; Blanchard v. Beers, Id. 418, Chap. XL § 2.1 INFRINGEMENT OF PATENTS, ETC 255 It follows that the question of infringement in such cases does not necessarily depend upon the consideration whether the mechanical structure of the machines is alike. ^ Whatever be the mechanical structure, the question is, whether the later machine contains the means or combi- nation found in the previous one ; in a word, whether the new idea is embodied in the machine complained of. If the plaintiff's combination be found substantially incor- porated into the defendant's machine, then the latter's mechanical construction, whatever it may be, is in law but an equivalent for the mechanical construction of the plaintiff's machine. No man is allowed to appropriate the benefit of the new ideas which another has originated and put to use, because he may have been enabled, l)y su- perior mechanical skill, to embody them in a different form. In appropriating the idea, he may have appro- priated all that is valuable in the new machine.^ The mere fact that the machine alleged to be an in- fringement does its work better, or turns out more work in the same time, than the patented article, does not show that there is no infringement. This superiority miglit be clue merely to superior construction UY>on the same princi- ple with that of the patented machine. On the other hand the fact that the defendant's machine is inferior to that of the plaintiff does not show that it is not an infringe- ment.^ Either result is only to be considered in its bear- ing upon the question whether the principle of the machine complained of is actually and substantially different from that of the plaintiff.* Of course, if the greater or lesser 1 O'Reilly v. Morse, 15 How. 62, 123 ; Morey v. Lockwood, 8 Wall. 230 ; Ives v. Hamilton, 92 U. S. 426, 431. 2 Blanchard v. Beers, supra. 8 Waterbury Brass Co. v. Miller, 9 Blatchf. 77 ; Chicago Fruit House Co. V. Busch, 2 Biss. 472. * Id. ; Gray v. Janaes, Peters, C. C. 394 ; Pitts v. Wemple, 1 Biss. 236 LAW OF TORTS. [Part II. efficiency be produced by reason of the use of means which are different in substance from those employed in the patented machine, and are not theii* mechanical equiva- lent, there is no infringement.^ An infringement is also committed, though, besides be- ing equivalent to the thing patented, the later machine accomplishes some other advantage beyond that effected by the patent machine. The new machine is still an in- fringement, so far as it covers the object of the patent. For example : The defendant, for the purpose of giving signals by telegraph, uses the earth for effecting a retm'n cii'cuit ; the plaintiffs having a patent for giving signals by means of electric currents transmitted through metallic currents. The machinery, aside from the return circuit, used by the defendant is the same as that covered by the plaintiff's patent, and is used without license. The de- fendant is liable, though the use of the earth for effect- ing a return circuit is an improvement in the art of telegraphing.^ Where, however, the means employed in the later ma- chine are different, not merely in form, but in substance, and consist in combinations differing in substance, there is no infringement, though the object be to produce the same result. For example : The defendant constructs a ma- chine for obtaining a current of air between the grinding surfaces of mill-stones, by means of a rotating vane, for effecting which the plaintiff also has a machine, protected by patent. The plan of the defendant is to remove from the centre of both stones a large circular portion, and in this space, opposite the opening between the two stones, to place a fan, by the rapid rotation of which a centrifu- 87 : Carter v. Baker, 1 Sawy. 512 ; Elizalieth v. Pavement Co. 97 U. S. ]26, 137 ; Morley Machine Co. v. Lancaster, 129 U. S. 263. 1 Cases just cited. « Electric Tel. Co. v. Brett, 10 C. B. 838. Chap. XL § 2.] INFRIXGEMENT OF PATENTS, ETC. 257 gal motion is given to the air, driving it between the stones. The plan of the plaintiff consists of a portable ventilating machine, blowing by a screw vane, which causes a current of air parallel to the axis of the vane, being attached externally to the eye of the upper mill- stone ; and the screw vane being thus set in rapid motion, the air is forced through the eye into the centre of the stones, and so finds its way out again.' The defendant's machine is not an infringement upon the plaintiff's.-^ To substitute in place of some one element in a compo- sition of patented matter a mere known equivalent is an infringement, because, though the patentee may not have expressly mentioned such equivalent in his claim, he is understood to liave included it, and in contemplation of law he has included it. However, if he should confine himself to the specific equivalents mentioned in his claim for the patent, b}- excluding all others, the case would be different, aud there would be no infringement in the use of anj' of such other equivalents.^ With regard to patents for designs, the patent acts are intended to give encouragement to the decorative arts. They contemplate not so much practical utility as appear- ance. It is the appearance itself which makes the article salable, and the mode in which these appearances are produced has little, if anything, to do with giving in- creased salableness to the article. The appearance, then, furnishes the test of identity of design.^ Mere difference of lines in the drawing or sketch, a greater or less num- ber of lines, or slight variances in configuration, if insuffi- cient to change the effect upon the eye of the ordinary 1 Bovill V. Pimm, 11 Ex. 718. 2 Byara v. Fair, 1 Curtis, C. C. 260 ; "Woodward v. Morrison, Holmes, 124, 131 ; Tyler v. Boston, 7 Wall. 327. 8 Gorham v. White, 14 Wall. 511, 528. 17 258 LAW OF TORTS. [Part II. observer, will not destroy the substantial identity. An engraving which lias many lines may present to the ordi- nary eye the same picture, and to the mind the same idea, as another with fewer lines. If, then, there be identity of design (not to an expert, but) to the ordinary observer, there is an infringement upon the patented design. For example : The defendant vends a carpet containing fig- ures of flowers arranged in wreaths different in fact, upon close observation, from the plaintiff's patented de- sign for wreaths of flowers upon carpets ; the flowers on the defendant's carpet being fewer in number than those on the plaintiff's, and the wreaths being placed at some- what wider distances. But this difference would not be detected except upon a close comparison. The defendant is liable to the plaintiff in damages.^ Under the statute, the mere making, except for experi- ment, without the sale or use of the articles or object patented, is an infringement of the rights of the patentee ; and it follows that such an act may be treated as a ground of liability, though no damage be sustained by the pat- entee. He will be entitled to recover nominal damages at least ; '^ and perhaps substantial damages should the act be repeated.^ It is equally a ground of liability to use an article which is an infringement of a patent, though the party using it did not make it ; and the same is true of the sale of such an article. Each of these acts is an invasion of the patentee's right, and the party doing the act is lia- ble, however innocent of any intention to injure the true patentee, or even of knowledge of the existence of the patent.* 1 Gorhara Co. v. White, 14 Wall. 511. 2 Whittemore v. Cutter, 1 Gal. 429. 8 Compare the rule in trespass to land, ante, p. 220, note. * Parker i». Hawnrth, 4 McLean, 370, 373; Bate Refrigerator Co. V. Gillett, 31 Fed. Rep. 809, 815. Chap, XI, § 2.] INFRINGEMEXT OF PATENTS, ETC. 259 Any one may, without license, make a patented article for mere experiment, or for the purpose of ascertain- ing the sufilciency of the thing to produce the effects claimed for it, or perhaps when it is made for mere amusement, or as a model. ^ But it must not be exposed for sale, nor must it have been made for the purpose of pecuniary profit, tliough experiment was also part of the purpose.^ The unauthorized sale of a patented machine, to consti- tute an infringement, must be a sale, not of the materials of a machine, either separate or combined, but of a com- plete machine, with the right, expressed or implied, of using the same in the manner secured by the patent. It must be a tortious sale, it has been said, not for the pur- pose merely of depriving the owner of the materials, but of the use and benefit of his patent, — a point, however, of some doubt, as has already been observed The sale of the materials merely, cannot, it is clear, amount to an infringement. For example : The defendant, a deputy sherilT, having an execution against the plaintiffs, levies upon and sells tlie materials of three patented machines, of which the plaintiffs are owners, the materials being at the time complete and fit for operation as machines. The purchaser has not put any of the machines into opera- tion : nor is the sale made with intent that he should do so. This is not a breach of duty to the plaintiffs. '^ The sale or use of the product of a patented machine is no violation of the exclusive right to use, construct, or sell the machine itself ; and the patent for a discovery of 1 Beedle v. Bennett, 122 U. S. 71, 77 ; Elizabeth v. Pavement Co. 97 U. S. 126, 134 ; Frearson v. Loe, 9 Ch. T>. 48. See Wliittemore v. Cutter, 1 Gal. 429 ; Sawin v. Guild, id. 485 ; Jones v. Pearce, Webs, Pat. Cas. 12.5. 2 Smith Manuf. Co. v. Sprague, 123 U. S 249, 256. 8 Sawin v. Guild, 1 Gal. 485. 260 LAW OF TORTS. [Part IL a new and improved process, by which any product or manufacture before known in commei'ce may be made in a better and cheaper manner, grants nothing but the exclu- sive right to use the process. Where a known manufac- ture or product is in the market, purchasers are not bound to inquke whether it was made on a patented macliine or by a patented process.^ But, if the patentee be the inventor or discoverer of a new manufacture or composition of mat- ter not known or used by otliers before his discovery or invention, his franchise or right to use and vend to others to be used is the new composition or substance itself. The product and the process, in such a case, constitute one discovery, the exclusive riglit to make, use, or vend which is secured to the patentee. For example : The de- fendants, a railroad company, use, without license of the plaintiff, a certain article called vulcanized India-rubber in their car-springs, for the manufacture of which sub- stance the plaintiff has a valid patent ; his specification, though describing primarily a process, still showing that the purpose and merit of the process were the production of a valuable fabric. The plaintiff has a patent in the article itself, and the act of the defendants is a breach of duty to him.^ Finally, the Eevised Statutes of the United States pro- vide that every person who, in any manner, marks upon any thing made, used, or sold by him for which he has not obtained a patent, the name or any imitation of the name of any person who has obtained a patent therefor, with- out the consent of such patentee, or his assigns or legal representatives ; or who, in any manner, marks upon or affixes to any such patented article the word ' patent ' or * patentee,' or the words ' letters-patent,' or any word of 1 See ante, p. 252. 2 Goodyear v. Eailroad, 2 Wall. C. C. 356. Chap. XI. § 3] INFRINGEMENT OF PATENTS, ETC. 261 like import, with intent to imitate or counterfeit the mark or device of the patentee, witliout having the license or consent of sucli patentee or his assigns or legal repre- sentatives ; or who, in any manner, marks upon or affixes to any unpatented article the word ' patent,' or any word importing that the same is patented, for the purpose of deceiving the public, shall be liable for every such offence, to a penalty of not less than one hundi'ed dollars, with costs ; one-half of said penalty to the person who shall sue for the same, and the other to the use of the United States, to be recovered by suit in any district court of the United States within whose jurisdiction such offence may have been committed.^ § 3. Of Trade Marks. The law relating to trade marks has been changing its point of view, if not its grounds, in recent times, and be- coming, as has been observed in another place, '-^ assimi- lated to the law of property. The old mode of suing for deceit is falling into disuse as a remedy for infringing a trade mark, in the light of the better remedy afiforded by equitable proceedings. But it is not yet clear that the law has advanced or will advance to the point, of assimi- lating the law of trade marks so far with the law of property (as e.g. the law of patents) as to make it safe to say that, for the purpose of recovering damages, the old authorities, which make the action virtually an action for deceit, are no longer law.^ Tlie subject, with tliis suggestion, must then be dropped in this connection ; for while an ample remedy is provided upon the footing of a property right in the trade mark where damages are not souglit, it is to be borne in mind that this book is a treatise relating to actions for dam- 1 Rev. Sts. § 4901. 2 ^uXe, p. 79, note. 8 See Reddaway v. Bentham Hempspinniiig Co., 1892, 2 Q. B. 639, 644, 646. 262 LAW OF TORTS. [Part II ages.^ In a word, an injunction, or nominal damages, may be had in respect of the infringement of a trade mark right, without further requirement ; but it is not clear whether substantial damages can be obtained with- out proof of fraud as interpreted by the courts in the law of deceit. § 4. Of Copyrights. The Revised Statutes of the United States grant to any citizen of tlie United States or resident tlaerein, who shall be the author, inventor, designer, or proprietor of any book, map, chart, dramatic or musical composition, engraving, cut, print, or photograph,- or negative thereof, or of a painting,^ drawing, chromo, statue, statuary, and of models or designs intended to be perfected as works of the fine arts, and the executors, administrators, or assigns of any such person, who complies with certain preliminary requirements, the sole liberty of printing, reprinting, pub- lishing, completing, copying, executiug, finishing, and vending the same ; and, in the case of a dramatic com- position, of publicly performing or representing it,* or causing it to be performed or represented by others ; and to authors the privilege of reserving the right to drama- tize or to translate their own works. ^ 1 See Cooley, Torts, 423-430, 2cl ed. The authority of Congress over trade marks is limited. Trade Mark Cases, 100 U. S. 82. Not so of the State lefjislatiires. ^ See Burrow Lithographic Co. v. Sarony, 111 U. S. 53, showing that the photograph should represent an original conception. 3 Parton v. Prang, 3 Cliff. 537. 4 See The lolanthe Case, 15 Fed. Rep. 439 ; The Mikado Case, 25 Fed. Rep. 183 ; Tompkins v. Halleck, 133 Mass. 32 (on hearing and committing to memory a play, then writing it out and presenting it ; this was held an infringement, overruling Keene v. Kimball, 16 Gray, 545). * Rev. Sts. § 4952. Chap. XI § 4-1 INFRINGEMENT OF PATENTS, ETC. 263 The copyright is to be good for twenty-eight years, with the right of renewal for fourteen years more.^ And any person who, without consent of the owner of the copyright, obtained in writing signed by two or more wit- nesses, shall print, publish, or import an}' book, or know- ing tlie same to be so printed, published, or imported, shall sell or expose to sale any copy of such book, shall forfeit every copy thereof, and be liable in damages for the act.^ To the author of copyrighted matter thus belongs the exclusive right to take all the profits of publication wliich the sale of the copyrighted matter may produce. And the author's exclusive right extends to the Avhole cop}', and, in a sense, to every part of it. It follows that an infringement of a man's copyright may be committed (1) by reprinting the whole copy, verbatim ; (2) by reprint- ing, verbatim, a part of it ; (3) by imitating the whole or a part, or by reproducing the whole or a part with color- able alterations or disguises, intended to give to it the character of a new work ; (4) by reproducing the whole or a part under a colorable abridgment, not fairly con- stituting a new work. With regard to each of these forms of infringement, it is to be observed that the question of intention does not enter into the determination of the question of piracy.^ The question is one of property, analogous to cases of trespass or conversion ; the exclusive privilege which the law secures to authors may be equally violated whether 1 Id. §§ 4953, 4954. 2 U. S. lU'v. Sts. § 4964. The author has proporty at common law in his manuscript. Wheaton ?•. Peters, 8 Peters, 591, 657. (As to let- ters, see Perceval v. Phijips, 2 Ves. & B. 19.) But copyright is a mutter of statute purel}'. Id. ; Albert v. Strange, 1 Maon. & G. 25. The author of class-room lectures will be protected at common law against unauthorized publication. Caird v. Sime, 12 App. Cus. 326. 8 Clement v. ]\laddick, 1 Giff. 98. 264 LAW OF TORTS. [Pakt II. the work complained of has been published with or with- out the animus furandi. The fact that a party has hon- estly mistaken the extent of his right to avail himself of the works of others will not excuse him from liability.^ Piracies of the nature of those mentioned under the first head are seldom committed, and they may be dismissed with the observation that it matters not how much origi- nal and valuable matter may be incorporated with the reprint of the copyrighted matter. The act is still an in- fringement, though the public might derive great benefit from the superior value of the work. Piracies of the second class are more difficult to deal with. The quantity of matter cannot be a true criterion of the commission of an infringement,- since only a small portion of a work may be pirated, and this the most important part of the work, or a very important part of it. For example : The defendant makes use, in a pub- lished volume of judicial decisions, of the head-notes, or marginal notes, of the plaintiff in a series of volumes of reports, of which the plaintiff owns the copyright. This is an infringement of the plaintiff's rights, for which the defendant is liable ; though such notes constitute but a small part of the plaintiff's work.^ It may be doubtful if any part of the work of another may be taken animo furandi.* How much may be hon- estly taken, that is, taken without any purpose of sup- planting the copyright work, is the difficult question. It is clear that, if so much be taken as to diminish sensibly 1 Emerson v. Diivies, 3 Stoiy, 768. 2 Biauiwell v. Halconib, 3 Mylne & C. 737 ; Bradbury v. Hotten, L. R. 8 Ex. 1. 3 See Wheaton v. Peters, 8 Peters, 591 ; Saunders v. Smith, 3 Myhie & G. 711 ; Sweet v. Sweet, 1 Jur. 212 ; Sweet v. Benning, 16 C. B. 459. * Mr. Godson tlunks it cannot. Patents and Copyrights, 216. Mr. Curtis, contra. Copyrights, 251, note. Chap. XI. § 4.] INFRINGEMENT OF PATENTS, ETC. 2G5 the value of the original, an iufriugemeiit has beeu com- mitted.^ It is not only quantity, but value also, that must be taken into the consideration.^ In deciding questions of this sort, it has been observed that the nature and objects of the selections made must be taken into account, the quantity and value of the ma- terials used, and tlie extent to which the use may preju- dice the sale or diminish the profits, or supersede the objects of the original work.^ Many mixed ingredients enter into the discussion of such questions. In some cases, a con- siderable portion of the materials of the original work may be fused into another work, so as to be distinguishable in the mass of the latter ; but yet the latter, having a distinct purpose from the copyrighted book, may not be an infringement. In other cases the same materials may be used as a distinct feature of excellence, and constitute the chief value of the new work, and then the latter will be an infringement.^ Be the quantity, then, large or small, if the part extracted furnish a substitute for the work from which it is taken, so as to work an appreciable injury, there is an actionable violation of copyright.^ A person is entitled to make a reasonable amount of quotation from a copyrighted production by way of re- view or criticism ; but, under the pretence of review, no one has the right to publish a material part of the author's work ; '^ that is, such a part as might have a sensible effect in superseding the original,^ — not perhaps as a whole, but quoad hoc.^ 1 Bramwell v. Halcomb, 3 Mylne & C. 737 ; Saunders v. Smith, Id. 711. 2 i,i. 3 Folsom V. Marsh, 2 Story, 100. * Id. 100. 6 Curtis, Copyright, 245; Folsom v. Marsh, 2 Story, 100. 8 See AVilkins v. Aiken, 17 Ves. 422, 424. ' Koworth V. Wilkes, 1 Campb. 94. ^ Curtis, 246. note. 266 LAW OF TORTS. [Part IL In regard to imitations of the whole or part of a copy- righted work, the difficulty of determiuiug the question of piracy is scarcely less. There may be likeness without copying ; and, though the copyrighted work may have suggested the new one, the imitation may not be close enough to amount to infringement. The question, however, is, whether the variation be substantial or merely colorable.-^ For example : The defendant is al- leged to have infringed the plaintiff's copyright in an Arithmetic by imitating its plan and contents. The test of the defendant's liability is whether he has in fact used the plan, arrangements, and illustrations of the plaintiff as the model of his own work, with colorable alterations and variations, only to disguise the use there- of, or whether the defendant's work is the result of his own labor, skill, and use of common materials and com- mon sources of knowledge, open to all men, the resem- blances being accidental, or arising from the nature of the work ; — whether, in short, the defendant's work be quoad hoc a servile or evasive imitation of the plaintiff's work, or a bona fide original composition from other common or original sources.'^ In cases of this kind, it is not enough to establish a vio- lation of duty that some parts or pages of the later work bear resemblances in methods, details, and illustrations to the copyrighted work. It must further appear that the resemblances in those parts or pages are so close, so full, so uniform, and so striking, as fairly to lead to the con- clusion that the one is a substantial copy of the other, or is mainly borrowed from it.^ It is to be observed, therefore, that it does not follow that because the same sources of information are open to 1 Tnisler v. Murray, 1 East, 363, note ; Emerson v. Davies, 3 Story, 768, 793. 2 Emerson v. Davies, supra. * Id. Chap. XI. § 4.] INFRINGEMENT OF PATENTS, ETC. 2G7 all persons, and by the exercise of their own skill, talent, or industry they could, from all of these sources, have produced a similar work, one party may, at second hand, without any exercise of skill, talent, or industry, borrow from another aU the materials which have been accumu' lated and combined by him. For example : The defend- ant copies a map of a town from the plaintiff's copyrighted map, the latter being made by actual sm'veys of the re- gion. This is an infringement of the plaintiff's copj-right, though the means used by the plaintiff" for making his map ■were open to all persons alike. ^ The next case is that of abridgments ; the rule of law in England as to which is said to be, that a fail- abridgment, when the miderstanding is employed in retrenching unne- cessary cu'cumstauces, is not a piracy of the original work. 8uch an abridgment is allowable as constituting a new ■work.- It is not clear what the American law upon this point is. It is certain, however, that to justify an abridgment of a copyrighted work, the case must be one of a bona fide character, and not a mere evasive reproduction of the original, by the omission of some unimportant parts. It is also a matter for consideration Avhether the new work will prejudice or supersede the old, whether it will be adapted to the same class of readers, and often other things of the same sort must be weighed. In many cases, the question may turn upon a consideration not so much of the quantity used as of the value of the selected materials,^ as has been observed in another connection. The true question in cases of this kind, indeed, appears to be whether there has been a legitimate use of the copy- 1 See Gray v. Russell, 1 Story, 11, 18. 2 Copinger, Copyrights, 101. 3 Gray v. Eussell, 1 Story, 19. 268 LAW OF TORTS. [Part IL right publication, in the fair exercise of a mental opera- tion, deserving the name of a new work. If there has been, though it may be prejudicial to the original author, it is not deemed to be an invasion of his rights. If there has not been, then it is treated as a mere colorable cur- tailment of the original work, and an evasion of the copyright.-^ Dio;ests of larger works fall under the liead of abridg- ments. Such publications are in their nature original. The compiler intends to make a new use of them not in- tended by the original author. But such works must be real digests, and not mere colorable reproductions of the original, in whole or in an essential part. The work be- stowed upon a digest must be something more than the labor of the pen and the arrangement of extracts ; it must be mental labor, designed to produce a new work, the object of which must clearly appear to be consistent with the rights of the author of the original work."^ It is not an infringement of a copyright, by the Ameri- can law, to translate, without license of the aiuthor, a copyrighted work into a foreign language ; ^ unless the author has reserved the right of translation. And this is true in America, though the author has himself procured and copyrighted a translation of his work into the same language with the translation complained of. For exam- ple : The defendant translates into German a book enti- tled ' Uncle Tom's Cabin,' and publishes his translation here ; the plaintiff, the author, having previously procured her work to be translated into that language, and having 1 2 Story, Equity, § 939. See also Story v. Holcombe, 4 McLean, 306. 2 See the remarks of Lord Lyndliurst in D'Almaine y. Boosey, 1 Younge & C. 288, a case of infringement of a copyrighted musical composition. 8 Stowe V. Thomas, 2 Wall. C. C, 547. CuAP. XI. § 4] INFRINGEMENT OF PATENTS, ETC. 2G9 procured a copyright upon her translation. The defend- ant has violated no duty to the plaintiff.^ Finally, the Revised Statutes of the United States pro- vide that every person who shall print or publish any manuscript whatever, without the consent of the author or proprietor first obtained, if such author or proprietor is a citizen of the United States, or resident therein, shall be liable to the author or proprietor for all damages occa- sioned by such injury." * Stowe V. Thomas, supra. See Shook ?\ Rnnkin, 6 Riss. 477. 2 U. S. Rev. Sts. § 4967. See Perceval v. Pliipps, 2 Ves. & B. 19 ; s. c. 13 Rev. R. 1, and Pref. to last-named ; injunction to restrain pub- lication of letters. CHAPTER XII. VIOLATION OF RIGHTS OF SUPPORT. § 1. Introductory. Statement of the duty. A owes to B the duty (1) to for- bear to remove, to B's damage, the lateral support of B's land, while it lies in its natural condition, or while, under title by grant or prescription, it lies in an artificial condi- tion ; (2) to forbear to remove negligently, to B's damage, the lateral support of B's land with the superincumbent weight of buildings or materials thereon, adjacent to the boundary ; (3) to forbear to withdraw, to B's damage, the subjacent support of his premises. § 2. Of Lateral Support. The owner of land has a right, against his neighbor, to what is termed the lateral support of the land. This right of lateral support is a right of support of the land in its natural condition, or, in case of grant or prescription, in an artificial condition ; and this right of support of land in its natural condition is, prima facie, a right analogous to the right to make use of a running stream or of the air. It is not in the nature of an easement, and does not de- pend upon prescription or grant. ^ But of course a right to remove the support may be acquired by grant, ^ though 1 Bonomi v. Backhouse, El., B. & E. 622, 646 ; s. c. 9 H. L. Cas, 503. S.>(' Darley Colliery Co. v. Mitchell, 11 App. Cas. 127. 2 Rowbotham v. Wilson, 8 II. L. Cas. 348. Chap. XII. § 2] VIOLATING RIGHTS OF SUPrORT. 271 not by custom or prescription, because that, it is said, would be oppressive and unreasonable.^ This right of support of the land surrounding a man's premises, unlike rights of property in general, is not in- fringed, for the purposes of a suit for tort, unless remov- ing the soil cause damage ; '^ but damage being caused by the removal of support, a right of action arises. P^or ex- ample : The defendant, owner of premises adjoining the premises of the plaintiff, which are located upon the side of a declivity, excavates the earth of his land so closely to the boundary between his own and the plaintiff's prop- erty as to cause the soil of the plaintiff's premises, of its own natural weight, to slide away mto the pit. This is a breach of duty to the plaintiff, for which the defendant is liable in damages.^ The doctrine, however, goes no further than to sustain a right of action for the sinking of land in its natural con- dition. The action cannot be maintained if the sinking be due to a superincumbent weight placed upon the plaintiff's premises, unless indeed some distinct right has been ac- quired against the adjoining occupant. For example : The defendant digs a gravel pit in his premises close to the line between his own and the plaintiff's land. Within two feet of the line, on the plaintiff's land, stands a brick house, erected ten years before, and occupied by the plaintiff. By reason of the defendant's excavation, the 1 Hilton V. Granville, 5 Q. B. 701 ; Wakefield v. Buccleuch, L. R. 4 Eq. 613. 2 Bonomi v. Backhouse, supra. » Tluirston v. Haiieock, 12 Mass. 220 ; Cases on Torts, 325. See Gilmore v. Driscoll, 122 Mass. 199. Some doubt was cast upon tliis doctrine in a dictum in Radcliff v. Brooklyn, 4 Comst. 19.5, 203, on the ground that it might interfere in cities with the use of propert}'. But this dictum has been disregarded. Farrand v. Marshall, 21 Barb. 409, 414 ; McGuire v. Grant, 1 Dutch. 356, 367. See Foley v. Wyeth, 2 Allen, 131. 272 LAW OF TORTS. [Part II. premises being located on the side of a hill, it becomes necessary for tlie plaintiff to vacate his house, and to take it down, to prevent it from sliding into the defendant's pit. The defendant is not liable, since the plaintiff had acquired no legal right to the support of his house.^ A right to lateral support of buildings is in the nature of a right of easement, and in England can be acquired either by grant or by prescription. ^ In this country the right cannot, it seems, be acquired by prescription.^ But even in England, though a building may have stood upon the plaintiff's premises for the period of prescription, if its walls were improperly constructed, so as for this cause to give way, and not by reason of the excavation alone, the plaintiff cannot recover.* And the same would be true, if, within the period of prescription, a new story were added to the house, whereby the pressure was so increased as to cause the sinking.^ On the other hand, it is to be observed that the mere fact that there were buildings, recently erected, standing upon the border of the owner's land when it sank, will not prevent his recovering damages. If the soil sank, not on account of the additional weight, but on account of the operations in the adjoining close (though they were care- fully conducted), and would have sunk had there been no buildings upon it, it is held in England that the person sustaining the damage is entitled to redress to the extent ^ Thurston v. Hancock, supra ; Caledonian Ey. Co. v. Sprott, 2 Macq. 449 ; Partridge v. Scott, 3 M. & W. 220. '■^ Dalton V. Angus, 6 App. Cas. 740 ; infra, p. £74. 3 Gilmore v. Driscoll, 122 Mass. 199, 207 ; Tunstall v. Christian, 80 Va. 1. Yet it has been common in this country to speak of the right as arising from grant or prescription. See Gilmore v, Driscoll, supra, and cases there cited. * Richart v. Scott, 7 Watts, 460 ; Dodd v. Holme, 1 Ad. & E. 493. 6 See Murchie v. Black, 34 L. J. C. P. 337. Chap. XII. § 2.] VIOLATING RIGHTS OF SUPPORT. 273 of his loss.^ Clearly if the operation in the adjoining land were conducted with a negligent disregard to the rights of the plaintiff, and the effect of such negligence were the fall of the plaintiff's building, the adjoining occupant is liable therefor.'^ But in the absence of negligence in the defendant, if the damage to the plaintiff's premises would have been slight and inappreciable had there been no superincumbent weight, l>e will not be entitled to recover. For example : The defendant digs a well near the plaintiff's land, which causes the same to sink, and a building erected there within twenty years falls. If the building had not been on the plaintiff's land, the land would still have sunk, but the damage to the plaintiff would have been inappreciable. This is no breach of duty.^ The result therefore is, (1) that the defendant is liable for the damages suffered by his neighbor from the with- drawal of the lateral support when that act, of itself, and without the fault of the neighbor, was the cause of the damage, including in England, but not in this country, damage done to sound buildings built twent}^ years or more before ; though the excavation was carefully made. (2) He is liable for all the damage suffered by withdraw- ing the support when he was guilty of negligence, includ- ing in the damages injuries to soundly built buildings however recently erected. (3) He is not liable, in the 1 Stroyan v. Knowles, 6 H. & N. 454, But some courts hold that the value of the buildings could not be recovered, unless there was negligence ; assuming that no right had been acquired by grant (or by prescription, if a right can so be acquired). Gilmore v. Driscoll, 122 Mass. 199, 206, 207. 2 See Gilmore v. Driscoll, supra ; Charless v. Rankin, 22 ]\Io. 566, 574 ; Schrieve v. Stokes, 8 B. IMon. 453, 459 ; Dodd v. Holme, 1 Ad. & E. 493 ; Bibley v. Carter, 4 H. & N. 153. 8 Smith V. Thackerah, L. R. 1 C. P. 564. 18 274 LAW OF TORTS [Part It absence of grant or prescription, if the subsidence was caused by the weight of buildings, or by the defective condition of the same. The right of lateral support to contiguous buildings may be acquired by grant or reservation, or in England, but not in this country, by prescription.^ Where build- ings have been erected in contiguity by the same owner, and therefore require mutual support, there is, either by a presumed grant or by a presumed reservation, a right to such mutual support in favor of the original owner on a sale by him of any of the buildings. As against himself, on the other hand, there is a presumed grant of the right of support in favor of the purchaser, which right takes effect at once. And the reservation in the original owner, after one sale, of the right of support for the adjoining building, will enable a second purchaser, on buying this adjoining house, to claim against his neighbor the same right of support ; since by the purcliase he acquires all of his vendor's rights. It follows also that the same mutual dependency continues after subsequent alienations by the purchasers from the original owner, and this regardless of the question of time. For example : The defendant con- structs a drain under his house to connect with a public sewer, and thereby weakens the support of the wall sepa- rating the defendant's house from the plaintiff's, to the injury of the latter's house. The two houses originally belonged to the same person, who had demised them both for ninety-nine years to W. The latter mortgages both to B, who assigns the mortgage to H, and H conveys (un- der a power) one of the houses to the plaintiff in July, and the other to the defendant in September following. The 1 Dalton V. Angus, supra ; Lemaitrn v. Davis, 19 Ch. D. 281. Not by prescription, Tunstall v. Cliristiau, 80 Va. 1. See also Gilniore v, Driscoll, 122 Mass. 199, 207. Chap. XII. § 2.] VIOLATING RIGHTS OF SUPPORT 275 defendant's act in weakening tlie support of the plaiutilT's house is a breach of duty, and the defendant is liable.^ But the right to such support of buildings is not a natu- ral right ; and where the adjoining buildings were erected by different owners the right of support can be acquired in favor of either of the original owners (and their suc- cessors in estate) only by grant of the other or reserva- tion, or in England by prescription. For example : The defendants pull down a house adjoining the plaintiff's, without shoring up the latter, and thereby cause damage to the plaintiff's property. The houses were built about the same time, but by different owners of the soil ; and there is no title to support either by grant or by prescrip- tion, nor has the pulling down been negligently done. The defendants are not liable ; at least if the plaintiff has suf- ficient notice of the purpose of the defendants to enable him to take the proper precautions against the damage.^ If there be an intervening house or store in the block, between the premises of the plaintiff and those of the de- fendant, the pulling down of the latter's building cannot be a breach of duty to the former in the absence of some special engagement between the parties, especially if the plaintiff's building was already in an unsafe condition.^ There appears to be no obligation resting upon the owner of a house towards his neighbor in the adjoining tenement to keep his house in repair (further than to pre- vent the same from becoming a nuisance) ^ in a lasting and substantial manner. The only duty is deemed to be to keep it in such a state that his neighbor may not be in- jured by its fall. The house may, therefore, be in a ruiu- 1 Richards v. Rose, 9 Ex. 218. 2 Peyton V. London, 9 B. & C. 725. 3 Solomon v. Vintners' Co., 4 H. & N. 585. * Comp. Giles v. Walker, 24 Q. B. D. 656, as to care of premises on which thistles grow. 276 LAW OF TORTS. [Part II ous condition, provided it be shored up sufficiently, or the house may be demolished altogether, if this can be done without injury to the adjoining house. -^ If either of the cotenants of a party-wall '^ should wish to improve his premises before the wall has become ruin- ous, or incapable of further answering the purposes for which it was built, he may underpin the foundation, sink it deeper, and increase, within the limits of his own laud, the thickness, length, or height of the wall, if he can do so without injury to the building upon the adjoining close. And to avoid such injury, he may shore up and support the original wall for a reasonable time, in order to exca- vate and place a new underpinning beneath it ; or he may pull the wall down for the purpose of building a new one.^ To pull the wall down without intending to replace it would be evidence of an ouster, for which an action could be maintained.^ It is held that one of the cotenants cannot, without con- sent of the other, interfere with the wall unless he can do so without injury to the adjoining building. No degree of care or diligence in the performance of the work will relieve him from liability, if injury be done to the adjoin- ing building by making the improvements. For example : The defendant, co-owner with the plaintiff of a party- wall between their premises, digs down his cellar about eighteen inches, underpinning the party-wall, and lowers the floor of his first story the same distance. In conse- quence of these operations, the division wall settles sev- eral inches, carrying down the plaintiff's floors, and crack- ing the front and rear walls of his (the plaintiff's) building. 1 Chauntler v. Robinson, 4 Ex. 163, 170. '^ For the different kinds of part}'- walls, see "Watson v. Gray, 14 Ch. D. 192 ; Weston v. Arnold, L. R. 8 Ch. 1084. 3 Standard Bank v. Stokes, 9 Ch. D. 68. 4 Jones V. Read, 10 Ir. R. C. L. 315, Ex. Ch. Chap. XII. § 2.] VIOLATING RIGHTS OF SUPPORT. 277 The defendant is liable to the plaintiff for the damage thus caused, though the said operation were carried on pru- dently and carefully.^ It follows that, if a party-wall rest upon an arch, the legs of which stand within the land of the respective owners, neither can remove one of the legs to the detri- ment of his neighbor, without his consent.' On the other hand, either may run up the wall to any height, provided no damage be thereby done to the other. ^ The existence of a right to fix a beam or timber into the wall of a neighbor's house depends upon the situation of the wall. If it stand wholly upon the laud of the owner, it is clear that no such right can exist except by grant or possibly by prescription. Any attempt b}' the adjoining owner to fix a timber in the wall, without con- sent given, would be a trespass, for which an action would lie ; or (probabl}?) it could be treated as a nuisance and abated accordingly. And a wall thus situated (the adjoin- ing owner having acquired no right to the enjoyment of it) may be altered or removed at pleasure, provided no damage be thereby done to the adjoining premises. If, however, the wall be a party-wall owned in severalty to the centre thereof, or in common, by the adjoining owners, the case will of course be different ; and each will be entitled to fix timbers into it, in a prudent manner, doing no damage to the wall or prejudice to the other owner.'' Where the wall is owned in severalty to the centre, it is clear that neither owner could extend his timbers beyond 1 Eno V. Del Vecchio, 6 Duer, 17, 27 ; s. c. 4 Duer, 58. 2 Partridge v. Gilbert, 15 N. Y. 601 ; Dowling v. Hennings, 20 Md. 179. 3 Matts V. Hawkins, 5 Taunt. 20 ; Brooks v. Curtis, 50 N. Y. 639, 64-1. See Dauenhauer v. Devine, 51 Texas, 480. * See L. C. Torts, 555. 278 LAW OF TORTS. [Part IL the centre of the wall. To pass the line of division -with- out permission would be as much a trespass as to make an entry upon the soil without permission. On the other hand, the ease would clearly be different if the wall were owned in common by the adjoining proprie- tors, since, as has elsewhere been observed,^ each of the tenants in common is seised of the whole common prop- erty. And it follows that such a wall may also be taken down by either owner, for the purpose of rebuilding, if necessary.^ § 3. Of Subjacent Support. TThile ordinarily a man's title to land includes the un- derlying soil to an indefinite extent towards the centre of the earth, it is settled law that there may be two freeholds in the same body of earth measured superficially and per- pendicularly down towards the earth's centre ; to wit, a freehold in the surface soil and enough lying beneath it to support it, and a freehold in underlying strata, with a right of access to the same, to work therein and remove the contents.^ This right to the subjacent strata, however, as is above intimated, is not unqualified ; on the contrary, it must be exercised, as in removing lateral support, in such a way as not to damage the owner of the surface freehold. If that freehold, in its natural condition, be deprived of its necessary support by underground excavation, and dam- age thereby ensue, the party committing the act is liable, however carefully he may have conducted the work in his own freehold. For example : The defendants, a coal mining company, lessees of a third person of coal mines 1 Ante, p. 214. « Stodman v. Smith, 8 El. & B. 1. ' Humphrios v. Rrogden, 12 Q. B. 739; Cases, 335; Wilkinsou w. Proud, 11 M. & W. 33. Chap. XII. § 3.] VIOLATING EIGHTS OF SUrPORT. 279 underlying the plaintiff's close, upon which there are no buildings, in the careful and usual manner of working the mine so weaken the subjacent support to the plaintiff's close, without his consent, as to cause the same to sink and suffer injury. The defendants are liable for the damage sustained.^ It is laid down that there is a difference between rights of support against a subjacent owner of land and an ad- jacent owner in regard to buildings upon the dominant tenement. The right to the support of buildings, as has already been observed, depends upon grant, resei'vation, or (in England) prescription. But, as against an under- lying freehold, the owner of the surface freehold is enti- tled, without grant or reservation, to the support of all buildings erected, however recently, before the title of the lower owner began and possession was taken. For exam- ple : The defendants are lessees and workers of a mine under the plaintiff's freehold. The plaintiff, at various times before the defendants began their works, and within twenty years thereof, erects buildings above the mines on ground honeycombed by the workings of another com- pany some years before. The workings by the defend- ants increase the defective nature of the ground, and a subsidence of the surface follows ; and from this cause and the fact that the plaintiff's buildings were not con- structed with surtieient solidity, considering the state of the ground, damage ensues to the plaintiff's buildings. The defendants have violated their duty to the plaintiff" by not shoring up and supporting the overlying tenement.'^ The support required, in the absence of grant or pre- scription, appears, however, to be merely a reasonable 1 Humphries v. Brogden, Bupra. 2 Richards v. Jenkins, 18 Law T. N. s. 437. Of course, if thebuihl- ings would have fallen without the act of the defendants, they would not be liable for the damage to thera. 280 LAW OF TORTS. [Part H. support. Whether the owner of the upper tenement could require the owner or occupant of the lower to sup- port structures of extraordinary weight, is doubtful. The true view seems to be that when the owner of the whole property severs it by a conveyance either of the surface, reserving the mines, or of the mines, reserving the sur- face, he intends, unless the contrary be made to appear by plain words, that the land shall be supported, not merely in its original condition, but in a condition suit- able to any of the ordinary uses necessary or incidental to its reasonable enjoyment.^ There is an analogous right of support in respect to the upper stories of houses divided into horizontal tene- ments. It is laid down that if a building is divided into floors or ' flats,' separately owned, the owner of each upper floor or ' flat ' is entitled to vertical support from the lower part of the building, and to the benefit of such lateral support as may be of right enjoyed by the building itself. 2 The same would (probably) be true if the stories of the building were leased to different persons. 1 Richards v. Jenkins, supra. In this case, however, Mr. Baron Channel inclined to think that, if the buildings were erected after the defendants took possession, the period of prescription should elapse be- fore a right to their support could be acquired. 2 Dalton V. Angus, 6 App. Gas. 740, 793 , Caledonian Ry. Co. v. Sprot, 2 Macq. 449. CHAPTER XIII. VIOLATION OF WATER RIGHTS. § 1. Introductory. Statement of the duty. A, a riparian proprietor or mill owner, owes to B, a riparian proprietor below, on the same stream, the duty to forbear taking, except for do- mestic pm'poses, or for the needs of a mill suited to the size of the stream, anything more than a usufruct of the water thereof. § 2. Of Usufruct and Reasonable Use of Streams. Riparian proprietors have rights in the water of the streams flowing by or through their lands, which may be thus stated : P2ach proprietor is entitled to the enjoyment of the water ex jure naturae, as a natural incident to the ownership of the land.^ And the right is like ordinary property rights in this, that an action may be maintained for an infraction though no actual damage has been sus- tained.^ Examples from the authorities just cited will presently appear. There have been some expressions by the courts, and one or two decisions, to the effect that the right to the use of a running stream is absolute, like the right to the en- joyment of land ; so that any diminution of the water by an upper proprietor is deemed actionable if he has not a 1 Emhrey v. Owen, 6 Ex. 353, 369, Parke, B. ^ Id. ; Sampson v. Hoddinott, 1 C. B. N. s. 590. 282 LAW OF TORTS. [Part IL right by grant, or by prescription, just as an entry upon land without license is actionable.-^ And this view has been urged in England.^ The true principle, however, is that each riparian owner has at least a right of usufruct (' usus-fructus ') in the stream, subject to the rights, whatever they may be, of the riparian owners higher up, but that no one can have an absolute right, for any and every purpose, to the whole volume of water. That is, there can be no infraction of the right by any abstraction of water which does not sensibly aft'ect its volume. Without such an act, the usufruct is not interfered with, and the right of other proprietors, has not been infringed.^ It is only for an unreasonable use that an action will lie.* What amounts to an unreasonable use of a stream will vary according to the circumstances of the case. To take a quantity of water from a large stream for agriculture or for manufacturing purposes might cause no sensible dim- inution of the volume ; while taking the same quantity from a small brook passing through many farms would be of great and manifest injury to those below who need it for domestic or other use. This would be an unreason- able use of the water, and an action would lie therefor.^ The same would be true if a mode of enjoyment quite different from the ordinary one should be adopted, sen- sibly diminishing the volume of water for any consider- 1 Wlieatley v. Chrisman, 24 Penn. St. 298. See Crooker v. Bragg, 10 Wend. 260. 2 See the arguments in Embrey v. Owen, 6 Ex. 353. 3 Embrey v. Owen, supra ; Mason v. Hill, 2 Nev. & M. 747 ; s. c. 5 B. & Ad. 1 ; Miner v. Gilmour, 12 Moore, P. C. 131 ; Sampson v. Hoddinott, 1 C. B. N. s. 590. * Embrey v. Owen, supra, 6 Elliot V. Fitchburg K. Co., 10 Gush. 191; Cases, 352; Miner v. Gilmour, 12 Moore, P. C. 131. Chap. XIII. § 2.] VIOLATION OF WATER RIGHTS. 283 able tirae.^ For example : The defendant, an npper riparian owner, diverts niucli water from the stream into a reservoir, and delays it there to supi)ly a factory ; this being an extraordinary use of the stream. The act is a breach of duty to the plaintiff, a lower owner.^ Again : The defendant owns a great tract of porous land adjacent to a stream, the water of which he diverts by canals, in order to irrigate his land, sensibly diminishing the stream. This is a breach of duty to the plaintiff, an owner lower down.^ These examples illustrate the rule that the action does not require proof of special damage. A stream may be much reduced in size without causing any actual loss to lower proprietors ; but the right being to a full volume of water, the diminution of the stream in any sensible, material degree by the upper proprietor is an infraction of that right, and accordingly creates liability. If, on the other hand, there is no infraction of the right, there is no liability whatever the use. For example : The de- fendants erect a dam across a stream and take a consider- able part of the water ; but the amount so taken is made good by other water which the defendants let into the stream, and the plaintiff in fact sustains no damage. There is no infraction of the plaintiff's right, and no cause of action.* Again, every riparian proprietor may use the water of the stream for his natural domestic purposes, including the needs of his animals, and this without regard to the 1 Sampson v. Hoddinott, 1 C. B. n. s. 590. 2 Wood V. Wand, 3 Ex. 748, 781. 8 Embrey v. Owen. 6 Ex. 353, 372. 4 Elliot V. Fitchburg R. Co. 10 Cush. 191 ; L. C. Torts, 509. See also Seeley v. Brnsh, 35 Conn. 419 ; Chatfield v. Wilson, 31 Vt. 358 ; Gerrish v. New Market Manuf. Co. 30 N. H. 478, 483 ; Billing v. Murray, 6 Ind. 324. 284 LAW OF TORTS. [Fart U. effect it raay have, in ease of deficiency, upon those lower dowuJ That is, the right is not limited to the usufruct ; the whole may be taken if needed. And this leads to the remark that one criterion of lia- bility for abstracting water from streams, used for milling purposes, (probably) is whether, considering all the cir- cumstances, the size of the stream and that of the mill- works, there has been a greater use of the stream, in abstracting or detaining the water, than is reasonably necessary and usual in similar establishments for carrying on the mill. A mill-owner is not liable for obstructing and using the water for his mill, if it appear that his dam is of such magnitude only as is adapted to the size and capacity of the stream, and to tlie quantity of water usually flowing therein, and that his mode of using the water is not unusual or unreasonable, according to the general custom of the country in cases of dams upon similar streams ; and this, whatever may be the effect upon the owners of land below. ^ The water of a stream running wholl}^ within a man's land may be diverted, if it be returned to its natural chan- nel before reaching the lower proprietor ; ^ and this could perliaps be done where the water runs between the lands of riparian occupants, so far as the rights of parties lower down are concerned. The only person entitled to com- plain of such an act would be the opposite proprietor. 1 ]Miiur V. Gilmour, 12 Moore, P. C. 131 ; Wood v. Waud, supra ; Evans v. Merri weather, 3 Scam. 492, 495 ; Flemings. Davis, 37 Texas, 173, 198 ; Baker v. Brown, 55 Texas, 377. 2 Springfield v. Harris, 4 Allen, 494 ; s. c. L. C. Torts, 506. See Pavis V. Getchell, 50 Maine, 602; Merrifield v. Worcester, 110 Mass. 216 ; Hayes v. Waldron, 44 N. H. 580 ; Pool v. Lewis, 41 Ga. 162 ; Timni v. Bear, 29 Wis. 254 ; Clinton v. Myers, 46 N. Y. 511. The statutes with regard to mill-streams should, however, be noticed. ' Miner v. Gilmour, supra ; Tolle v. Correth, 31 Texas, 362. CuAP. XIII. § 2.] VIOLATION OF WATER RIGHTS. 285 It is to be observed, however, that the foregouig sup- poses that there exists no right by prescription or grant to the use of the stream by either the upper or lower pro- prietor. The rights and burdens of the parties may be greatly varied by grant or by prescription. "With regard to surface water running in no defined channel, the rule of law is that every occupant of land has the right to appropriate such water, though the result is to prevent the flow of the same into a neighboring stream, or upon the land of an adjoining occupant.^ Nor can there be any prescriptive right to such water. For example : The defendant, for agricultural and other use- ful purposes, digs a drain in his land, the effect of which is to prevent the ordinary rainfall, and the waters of a spring arising upon his land, and flowing in no defined channel, from reaching a brook, upon which the plaintiff has for fifty years had a mill. The defendant is not lia- ble for the diversion, however serious the inconvenience to the plaintiff.'^ In the Pacific States the law is peculiar. There he who first duly appropriates all the waters of a stream run- ning in the public lands becomes entitled to the same to the exclusion of all others.^ But if only part is appro- priated, another may appropriate the rest ; or if all is appropriated only on certain days, others may appro- priate on other days.* 1 Broadbent v. Eamsbotham, 11 Ex. 602 ; Luther v. "Winnisimmet Co. 9 Cush. 171; Gannon v. Hargadon, 10 Allen, 106; Curtis v. Ayrault, 47 N. Y. 73, 78 ; Livingston v. McDonald, 21 Iowa, 160, 166. 2 Broadbent v. Ramsbothani, snpra ; Eawstron i\ Taylor, 11 Ex. 369. 8 Smith V. O'Hara, 43 Cal. 371. * Id. As to what is a due appropriation, see Weaver v. Eureka Lake Co. 15 Cal. 271 ; McKinney v. Smith, 21 Cal. 374. 286 LAW OF TORTS. [Part IL § 3. Of Sub-surface Water. In regard to underground streams, if their course is defined and known, as is the case with streams which sink under ground, pursue for a short distance a subterraneous course, and then emerge again, the owner of the land lower down has the same rights as he would have if the stream flowed entirely aI)ove ground.^ But, if the under- ground water be merely percolation, there can be no breach of duty in cutting it off from a lower or adjoining land-owner. And there can be no prescriptive right to the water. For example : The defendant, a land-owner adjoining the plaintiff, digs on his own ground an extensive well for the purpose of supplying water to the inhabitants of a district, many of whom have no title as laud-owners to the use of the water. The plaintiff has previously for more than sixty years enjoyed the use of a stream (for milling purposes) which was chiefly supplied by perco- lating underground water, produced by rainfall; which water now, after the digging of the well, is cut off and fails to reach the stream. The defendant's act is no breach of duty to the plaintiff.^ 1 Dickinson v. Grand June. Canal Co. 7 Ex. 282. 2 Chasemore v. Richanls, 7 H. L. Cas. 349, overruling Balston v. Bensted, 1 Camp. 463. No right to such percolating water can arise by grant or by prescription apart from the riglit to the land itself. Id. Further see Chase v. Silverstone, 62 Maine, 17 :> ; Wilson v. New Bed- ford, 108 Mass. 261 ; Frazier u. Brown, 12 Ohio St. 294; Cases, 360; Hanson v. McCue, 42 Cal. 303. In New Hampshire the right to cut off percolating water depends upon the reasonable use of the soil. Bassett v. Salisbury Manuf. Co., 43 N. H. 569; Swett v. Cutts, 50 N. H. 439; Cases, 376. As to polluting streams, see post, pp. 292, 293. CHAPTER XIY. NUISANCE. § 1. Introductory. Statement of the duty. A owes to B the duty (1) to for- bear to obstruct or impair the use of the public ways or waters in such a manner as to cause damage to B ; (2) to forbear, except in tlie ordinary, natural use of his own, to flood the laud of B with water collected upon his own land, or by changing the course of currents ; ^ (3) to for- bear to cause or suffer the existence upon his own premises of anything not naturally there which while there causes damage to B ; (4) to forbear so to use his own premises as lo endanger the life or impair the health of B, or to disturb his physical comfort in a material de- gree in the use of his (A"s) premises. L Public nuisances are indictable nuisances, being committed (1) in the public ways or waters, or (2) on private premises to the prejudice of the general public.^ 2. Private nuisances are non-indictable nuisances, being committed on private premises to the prejudice of one person, or but a few persons, of the neighborhood. 3. A public nuisance may be also a private nuisance. 1 But see infra, p. 292. 2 ' If a ])erson erects on his own land anything whatever calcuh\ted to interfere with the convenient use of the road, he commits a nuisance.' Stephen, J. in Brown v. Eastern Ry. Co., 23 Q. B. Div. 391, 392, case of a heap of dirt by the roadside. Negligence is not necessary. Haurk V. Tide Water Co., 153 Penn. St. 366; Cases, 385; Rapiei' v. London Tramways Co., 1893, 2 Ch. 588, 600. 288 LAW OF TORTS. [Part IL § 2. Of what constitutes a Nuisance. It appears to be of the essence of a nuisance that there should be some duration of mischief ; a wrong producing damage instantaneously, as in the case of an explosion,^ could hardly be a nuisance. And then further to deter- mine what constitutes a nuisance, so as to render the author of it liable to a neighbor in damages, a variety of other considerations must often be taken into account ; especially where the act in question has been committed in a populous neighborhood, in the prosecution of a man- ufacturing business. And, even if the business itself be unlawful, it does not follow that a private individual can call for redress by way of a civil action for damages. Whether he can do so or not will depend upon the ques- tion whether he has sustained special damage, by reason of the thing alleged to be a nuisance. Even supposing the nuisance not to be a public one, that is, not to affect seriously the rights of the public in general, much difficulty arises in determining when the business carried on upon neighboring premises, either in itself or in the manner of conducting it, is so detrimental as to subject the proprietor or manager to liability in damages. And this difficulty was until recently increased by certain inexact terms used in the old authorities. It was said that if a business was carried on in a ' reason- able manner,' an action for damages could not be maintained, though annoyance resulted ; and the term ' reasonable manner ' was explained as meaning that the business was to be carried on merely in a convenient place. That is, a trade was not to be treated as a nuisance if carried on in the ordinary manner in a convenient locality. The result was to bestow upon a manufacturer the right * An explosion might be a consequence of a nuisance, however. Chap. XIV. § 2.] NUISANCE. 289 to ruin his neighbor's property, provided only his business was carefully conducted in a locality convenient for its management.^ Recent authorities have, however, changed all this, by declaring that, when no prescriptive right is proved, the true meaning of the term ' convenient,' used by the older authorities, lies in the consideration whether the plaintiff has suffered a visible detriment in his property by reason of the management or nature of the defendant's business ; if he has, the defendant is liable. Convenience is a ques- tion for the neighbor and not for the manufacturer ; and visible damage to the neighbor's property shows that the business is carried on at an inconvenient place. '^ For ex- ample : The defendants are proprietors of copper-smelting works in the plaintiff's neighborhood, where many other manufacturing works are carried on. The vapors from the defendant's works, when in operation, are visibly injurious to the trees on the plaintiff's estate ; the de- fendants having no prescriptive right to carry on their business as and where they do. The defendants are guilty of a breach of duty to the plaintiff, for which they are liable in damages ; though, for the purposes of manu- facturing, the business is carried on at a convenient place. ^ However, a person living in a populous neighborhood must suffer some annoyance ; that is part of the price he pays for the privileges which he may enjoy there. He cannot bring an action for every slight detriment to 1 Comyns's Digest, Action upon the Case for a Nuisance, C ; Hole V. Barlow, 4 C. B. n. s. 334. 2 Bamford v. Tuniley, 3 Best & S. 62, 66 ; Cavey v. Ledbitter, 13 C. B. N. s. 470 ; St. Helen's Smelting Co. v. Tipping, 11 H. L. Cas. 642; Cases, 388. ^ St. Helen's Smelting Co. v. Tipping, supra. See also Broadbent V. Imperial Gas Co., 7 De G. M. & G. 436; s. c. 7 H. L. Cas. 600. 19 290 LAW or TORTS. [Part IL liis property which a business in the vicinity may pro- duce. Or, to state the case in the language of judicial authority, if a man live in a town, it is necessary that he should subject himself to the consequences of those operations of trade which may be carried on in liis imme- diate locality, which are actually necessary for trade and commerce, and also for the enjoyment of property, and for the benefit of the inhabitants of the town and of the public at large. If a man live in a street where there are numerous shops, and a shop be opened next door to him, which is carried on in a fair and reasonable way, he has no ground of complaint because to himself individually there may arise much discomfort from the trade carried on in that shop. But when an occupation is carried on by one person in the neighborhood of anotlier, and the result of that occupation is a visible injury to property, the case is different. -^ It should be observed in this connection that the plain- tiff is not precluded from recovering by reason of the fact that he had notice of the existence of the nuisance when he located himself near it. If the thing complained of be unlawful — if there be no prescriptive right to do it — the doer cannot set up notice to escape liability.- For exam- ple : The defendant is a tallow-chandler, carrying on his business in a certain messuage, in such a manner as to convey and diffuse noxious vapors and smells over prem- ises adjoining, which the plaintiff takes possession of while the defendant is carrying on his business. The defendant is liable.^ Subject to any annoyance which may result from the right which every landowner has to the ordinary and 1 Lord "Westbury in St. Helen's Smelting Co. v. Tipping. '■J Bliss V. Hall, 4 Ring. N. ('. 183 ; Bamford v. TurnU-y, 3 Best & S. 62, 70, 73 ; L. C. Torts, 467. 8 Bliss V. Hall, supra. Chap. XIV. § 2.] NUISANCE. 291 natural use of his premises, it is held by liigh autliorities that no one may turn water from his oavu laud back ujjon that of his neighbor witliout having acquired a riglit so to do by statute or by grant or prescripticwi ; ^ and this though the water thrown back comes of natural rainfall.'^ Such an act might by these authorities be treated as a trespass, and therefore should be redressible thougb no damage had been sustained ; for otherwise a right to send the water there might eventually be acquired by prescrip- tion, to the substantial confiscation of the particular piece of land. For example : The defendant erects an embank- ment upon his land, whereby the surface-water accumu- lating upon the plaintiff's land is prevented from flowing off in its natural courses, and caused to flow in a different direction over his land. This is a breach of duty for which the defendant is liable to the plaintiff, though the latter suffer no damage thereby.^ More clearly then will the flooding of a neighbor's land create liability when damage is caused ; indeed, liability is held to be created not only where the water is thrown back by means of a dam, but also where a stream or a ditch is caused to overflow by turning into it water not naturally or entirely tributary to it. For example : The defendant, in the course of reclaiming and improving his land, collects the surface water of his premises into a 1 Hurdman v. Northeastern Ry. Co. 3 C. P. Div. 168 ; Whalley v. Lancashire Ry. Co. 13 Q. B. Div. 131 ; Tootle v. Clifton, 22 Ohio St. 247. See also Martin v. Riddle, 26 Penn. St. 415 ; Kauffman v. Giese- mer, Id. 407 ; Ogbuni v. Connor, 46 Cal. 346 ; Launier v. Francis, 23 Mo. 181. Contra, hy other authorities. See infra. 2 Hurdman v. Northeastern Piy. Co. supra. 8 Tootle V. Clifton, 22 Ohio St. 247. This, it sliould be observed, is not the case of bringing v^rater, as by means of a reservoir, upon one's hind (Pylands v. Fletcher, L. R. 3 H. L. Cas. 330 ; post, chapter xii.) ; for there the purpose is not to throw the water back but to hold it Escape in such a case might not be a trespass. 292 LAW OF TORTS. [Part II. ditch, and thereby greatl}' increases the quantity, or changes the manner, of the flow upon the lower lands of the plaintiff, to his damage. The defendant is liable.^ So far as the doctrine of the two preceding paragraphs applies to surface water, or water flowing through drains or ditches, and not in natural streams, it is rejected by some authorities. By these it is held that a coterminous proprietor may change the surface of his laud by rais- ing or filling it to a higher grade, by the construction of dykes or other improvements, though the effect be to bring an accumulation of water on adjacent land, and to prevent it from passing off. The right to the free use of one's land above, upon, or beneath the surface cannot, it is deemed, be prevented by considerations of damage to others caused in that way, so long as the operations are carried on properly for the end in view.^ If the water of a stream be polluted, or otherwise ren- dered useless, or perhaps materially less useful than it was before, whether it be surface or sub-surface water, and damage ensue to another riparian owner, he can maintain an action therefor, unless a right to do tlae thing has been acquired by statute or by grant or prescription.^ In the case of statutory authority to pollute the waters of a stream, however, this doctrine is to be taken with quali- fication. It has been laid down in regard to such cases that a city is not liable for polluting by sewage the water of a stream which it has a right to use for that purpose, 1 Livingston i\ McDonald, 21 Iowa, 160. A purchaser would be liable for continuing the nuisance, at least after notice. 2 Gannon v. Hargadon, 10 Allen, 106 ; Dickinson v. Worcester, 7 Allen, 19 ; Brown v. Collins, 5-3 N. H. 443. 8 Wheatley v. Chrisman, 24 Penn. St. 298 ; O'Riley v. McCheeney, 3 Lans. 278 ; Merrifield v. Worcester, 110 Mass. 216. See Clowes v. Staffordshire Waterworks Co., L. R. 8 Ch. 125 ; Goldsmid v. Tunbridge Wells Com'rs, L. R. 1 Eq. 161, affirmed, L. R. 1 Ch. 349. Chap. XIV. § 2.] NUISANCE. 293 SO far as the effect is the necessary result of the system of drainage adopted by the city ; but it is otherwise if the polhitiou is attributable to the negligence of the city either in managing the system or in the construction of sewers,^ or if the right is exceeded. The right, whether statutory or otherwise, must be exercised in a reasonable and proper way.^ For milling and other purposes, for which some large or special use of the water of a stream is required, statu- tory riglits are often granted, under various restrictions, to flood the lands lying along the mill-streams, or to foul the water ; for the nature of which rights reference should be made to the statutes and the judicial interpretations of them. With regard to actions for nuisances to personal enjoy- ment, it appears to be quite clear that for such smells or vapors proceeding from a neighbor's premises as are merely disagreeable, at least such smells or vapors as are the necessary effect of a business properly conducted there, no action is maintainable.^ The noxious gases must produce some important sensible effect upon physi- cal comfort. A person is, indeed, sometimes said to be entitled to an unpolluted and untainted stream of air for the necessar}^ supi)ly and reasonable use of himself and family ; but by the terms ' untainted ' and ' unpolluted ' are meant, not necessarily air as fresh, free, and pure as existed before the business in question was begun, but air 1 Merrifield v. Worcester, supra. See Blytli v, Birmingliain Water- works Co. 11 Ex. 781, to the same effect in regard to the escape of water. 2 Bnxendale v. McMurray, L. R. 2 Ch. 790. The fact that certain works, improperly done, in the public highway are satisfactory to the municipal authorities will not prevent them from being a nuisance, Osgood V Lynn R. Co. 130 Mass. 492. 8 See St. Helens Smelting Co. v. Tipping, 11 H. L. Gas. 642. 294 LAW OF TORTS. [Part IL not rendered to an important degree less compatible, or certainly not incompatible, with the physical comfort of human existence.-^ The criterion, therefore, of liability for a supposed (private ^) nuisance, affecting the bodily comfort of the plaintiff, is whether the inconvenience should be consid- ered as more than fanciful, — more than one to mere delicacy or fastidiousness, — as an inconvenience materi- ally interfering with the ordinary physical comfort of human existence, not merely according to elegant ov dainty modes and habits of living, but according to plain and simple modes of life.^ On the other hand, it is not necessary that health should be impaired. For example ; The defendant erects upon his premises, adjoining tlie premises of the plaintiff, a kiln for the manufacture of bricks, and in the process of the manufacture the smoke and vapors and floating substances from the kiln are constantly directed to and within the plaintiff's house, so as to affect materially the comfort of himself and family as persons of ordinary habits of life. This is a breach of duty to the plaintiff, though it appear that the health of his family has actually been better since the erection of the kiln than before.^ It matters not what it is that produces the discomfort : smoke alone may be sufficient ; and the same is true of noxious vapor alone, or of offensive smells alone. What- ever produces a material discomfort to human life in the 1 Walter v. Selfe, 4 De. G. & S. 315. 2 It is doubtful if the right of action for injury by a public nuisance would stand on different ground ; but the court in Walter v. Selfo is careful to say that a private nuisance is there spoken of. ' Walter v. Selfe, supra. See also Rapier v. London Tramways Co., 1893, 2 Ch. 5S8, 600 ; Crump v. Lambert, L. R. 3 Eq. 409; affirmed, 17 L. T. N. s. 133 ; Columbus Gas Co. v. Freeluud, 12 Ohio St. 392. * Walter v. Selfe, supra. Chap. XIV. § 2.] NUISANCE. 295 neighborhood is a nuisance, for which damages are re- coverable.^ But the provisions of statute in regard to such annoyances, arising from the carrying on of a law- ful business, should always be examined.'^ Liability for disturbing one's peace of mind appears to be more restricted, and to be confined to acts which would produce a like effect upon all persons, such as acts of iudeceucy. If the disturbance, while affecting the plaintiff's mind disagreeably and seriouslj', would not so affect the mind of others generally, there is no ground of action. This is deemed to be the case of mere noise on Sunday or during religious worship. For example : The defendant disturbs the plaintiff during divine service in church, by making loud noises in sing- ing, reading, and talking. This is no breach of duty to the plaintiff.^ Thus far of private nuisances. In regard to public nuisances, it is to be observed that such become private nuisances as well, by inflicting upon a particular indi- vidual any special or particular damage. For example : The defendant, without authority, moors a barge across a public navigaljle stream, and harmfully obstructs the navigation thereof to the plaintiff, who at the time is floating a barge down the stream. This is a breach of duty to the plaintiff, for which the defendant is liable in damages.^ ^ Crump V. Lambert, supra. 2 In regard to smoke, under statutory provisions, see Cooper v. Woolley, L. R. 2 Ex. 88 ; Smith r. IMidUuul Ry. Co. 37 L. T. N. s. 224. 8 Owen V. Henman, 1 Watts & S. 548. See also First Baptist Church V. Utica R. Co. 5 Barb. 79 ; Sparhawk v. Union Ry. Co. 54 Penn. St. 401, eases of public nuisance. * Rose V. Miles, 4 Maule & S. 101 ; s. c. L. C. Torts, 460. See also Booth V. Ratte, 15 App. Cas. 188. 296 LAW OF TORTS. [Part H If, however, the obstruction or invasion of the right be one of like effect upon all persons, producing no particular, actual damage to any individual, no in- dividual can maintain an action for damages by reason of it. In other words, it is necessary to the main- tenance of an action for damages for a public nui- sance (and the same is true of a private nuisance) that the plaintiff should have suffered actual, specific damage thereby.^ It matters not that the special damage sustained by the plaintiff is common to a large number of individuals, or to the whole neighborhood ; enough if there is actual damage to his property, or injury to his health, or to his physical comfort (as explained in considering private nuisances). The injury inflicted upon private interests is not merged in the wrong done to the general public. For example : The defendants carry on a large business as auctioneers near a coftee-house kept by the plaintiff in a narrow street in Loudon. From the rear of the defendant's building, which there adjoins the plaintiff's house, the defendants are constantly loading and unloading goods into and from vans, and stalling their horses. This intercepts the light of the coffee-house so as to require the plaintiff to burn gas most of the day-time, obstructs the entrance to the door, and renders the plaintiff's premises uncomfort- able from stench. The nuisance is a public one, but the plaintiff suffers a special and particular damage from it for which the defendant is liable to him.^ Again : The defendants carry on a manufacturing business in such a way as to make themselves liable for causing a public nuisance. The plaintiff's premises are filled with smoke, 1 Wesson v. Washburn Iron Co. 13 Allen, 95 ; Milhan v. Sharp, 27 N. Y. 612 ; Grigshy v. Clear Lake Water Co. 40 Cal. 396 ; Benjamin V. Storr, L. R. 9 C. P. 400 ; Fritz v. Hobson, 14 Ch. D. 542. ^ Benjamin v. Storr, supra. Chap. XIV. § 2.1 NUISANCE. 297 and his house shaken so as to be uncomfortable for occu- pation. This is a breach of duty to the phiintiff, for which he is entitled to damages, though every one else in the vicinity suffers in the same manner.^ It is, however, a difficult matter to state what sort of detriment will amount to special damage within the law of public nuisances. It appears to be necessary in the case of ol)structions of public ways or waters that a particular user had been begun by the plaintiff, and that such user was interrupted by the wrongful act of the defendant.^ Before the complaining party has entered upon the actual enjoyment of the public easement, the wrongful act does not directly affect him, or at least does not affect him in a manner to enable a court to measure the loss inflicted upon him. If he desire to make use of the easement, he can complain to the prosecuting officer, and require him to enter public proceedings against the offender ; or (so it seems), he may proceed to make his particular use of the easement, and if the obstruction be not removed before he reaches it, or in time for him to have the full enjoy- ment of passage, he may bring an action for the damage which he has sustained in the particular case by reason of the obstruction. This latter proposition follows from the rule of law already noticed, that the plaintiff is not barred of a recovery in damages by reason of having notice of the existence of the nuisance when he put himself in the way of suffering damage from it.® Such a ease does not come within the principle that a consenting party cannot re- cover for damage sustained by reason of an act the con- sequences of which he has invited,* since he has not i 1 Wesson v. Washburn Iron Co. 13 Allen, 95. 2 See Rose v. Miles, 4 Maule & S. 101 ; s. c. L. C. Torts, 460. 8 Ante, p. 290. * 'Volenti uon fit injuria.' 298 LAW OF TORTS. [Part IL cousented to the act complained of, or invited its consequences. He may liave reason to suppose tliat ttie obstruction will be removed before he reaches it ; or, if not, he may well say that it is wrongful, and must be removed before he reaches it, on pain of dam- ages for any loss which he may sustain by reason of its continuance. If the obstruction of itself be insufficient to cause any actual damage, it is considered that no right of action can be derived by incurring expense in remov- ing it. For example : The defendant obstructs a pub- lic footway, and the plaintiff, on coming to the obstruction, in passing along the way, causes the ob- struction to be removed ; and this is repeated several times. No other damage is proved. The defendant is not liable.^ It follows that the mere fact that the plaintiff has been turned aside by reason of the obstruction and caused to proceed, if at all, by a different route from that intended by him, is not special damage ; he must have suffered some specific loss by reason of being thus defeated in his purpose. And this would be true also of obstructions to the public wagon roads. For exam- ple : The defendant obstructs a public highway leading directly to the plaintiff's farm, and the plaintiff is thereby compelled to go to his land, if at all, with his team, by a longer and very circuitous road ; but no specific loss is proved. The defendant is deemed not liable to the plaintiff.^ The case has been considered to be different if the way were of peculiar use to the plaintiff, as by being his only means of reaching his land with teams. For 1 Winterbottom v. Derhy, L. R. 2 Ex. 316. 2 Houck V. Wachter, 34 Md. 265. Contra, Brown v. Watrous, 47 Maine, 161. Chap. XIV. § 2.] NUISANCE. 299 example : The defendant, by raising the water of his dam, tloods a highway and renders it impassaljle ; this highway furnishing the only means of reaching part in use of the plaintiff's farm. The defendant is deemed to be liable.^ * Venard v. Cross, 8 Kans, 248. CHAPTER XV. DAMAGE BY ANIMALS. § 1. Inteoductory. Statement of the duty. A owes to B the duty to pre- vent Ms animals (1) from doing damage to B, if A has notice of their propensity to do damage, and (2) to pre- vent them from straying from his own upon B's premises. § 2. Of Notice of Propensitt to do Damage. Whoever keeps an animal with notice that it has a pro- pensity to do damage is liable to any person who, without fault of his own legally contributing ^ to the injury, suffers an injury from such animal ; and this, though the keeper be not guilty of negligence in regard to keeping it prop- erly or securely. The gist of liability for the damage is the keeping of the animal after notice of the evil pro- pensity. For example : The defendant has a monkey, which he knows has a propensity to bite people. The plaintiff, without fault of her own, is bitten by the animal. The defendant is liable, however careful he may have been in keeping the monkey.^ 1 As to this term, see post, pp. 367 et seq. 2 May V. Biirdett, 9 Q. B. 101 ; Cases, 396. See Jackson v. Smith- son, 15 M. & W. 563 ; Card v. Case, 5 C. B. 622; Popplewell v. Pierce, 10 Cush. 509 ; Oakes v. Spaulding, 40 Vt. U7. Chap. XV. §2.] DAMAGE BY ANIMALS. 301 If the animal be ferae naturae, it will (probabl}') be pre- sumed that the defendant had notice of any vicious pro- pensity whereby the plaintiff has suffered injury, since it is according to the nature of such an animal to do damage.' And even if the animal be domestic, the owner will be pre- sumed to have notice of any propensity which is according to the nature of the animal. For example : The defend- ant's cattle stray into the plaintiff's garden, and beat and tear down the growing vegetables. The defendant is lia- ble, though not guilty of negligence ; since it is of the nature of straying cattle to do such damage.^ In the case of injuries committed by domestic animals not according to the nature of such animals, it is clear that the owner is not liable if he had no notice that the par- ticular animal had any evil propensity.^ For example : The defendant's horse kicks the plaintiff, neither the plain- tiff nor the defendant being at fault, and the defendant having no notice of a propensity of the horse to kick. The defendant is not liable ; since it is not of the nature of horses to kick people, when not provoked to the act.^ Statutes have been passed, declaring it unnecessary in an action against the owner of a dog to prove notice of a propensity of the animal to injure sheep or cattle. In the absence of statute, however, the rule requiring notice of the vicious propensity prevails in regard to dogs as well as with regard to other domestic animals.^ While, however, negligence in the owner of the animal ^ If a wild animal has been tamed and domesticated, the case may be different. See arguments in May v. Burdett, supra. 2 See Cox v. Burbridge, 13 C. B. n. s. 430, 438, Williams, J. 2 L. C. Torts, 490. * Cox ^. Burbridge, supra. The plaintiff was a boy playing in the highway at the time of the injury, but there was no evidence that he had done anything to irritate the horse. 6 See L. C. Torts, 490. 302 LAW OF TORTS. [Part II. is not necessaiy to constitute a breach of duty when the ' scienter ' can be proved, negligence in tlie care of the animal will render the owner liable, though he did not know of the propensity. When damage is done by animals upon the owner's premises^ a different question, or set of questions, may arise. The case will ordinarily turn upon negligence, and negligence of a special kind, to wit, with reference to the occupancy of premises. The place where the damage was done maj' enter into the case ; a bull may well be left at large in the owner's field, while a savage dog should not be.^ And then the character in which the person hurt en- tered the premises will have to be considered in determining the question of duty. Such person ma}- have been ' invited' to enter ; he ma}' have been a trespasser ; he maj' have been a bare licensee. The owner of premises obviously owes a duty to persons whom he induces to come there, to wit, that they may do so safely so far as his own conduct is concerned ; while towards others his duty may be very different. And in all these cases there may be a question of the effect of notice bj- the occupant, or knowledge by the person injured, of the state of things. For the prin- ciples touching such cases the student must look to that part of the chapter on Negligence, relating to the Use of Premises.^ § 3. Of Escape op Animals. B}' the common law of England and of most of our States the owner of land is bound to keep it fenced ; and 1 Loomis V. Terry, 17 "Wend. 496. 2 Cliapter xvii., § 9. Section 10, on assuming the risk, should also be noticed. Chap. XV. §3] DAMAGE BY ANIMALS. 303 if his animals escape and get into his neighbor's prem- ises, he is liable for the very act as for trespass/ vviiether the escape was owing to his negligence or not.^ The same is true indeed though the defendant's animals may not have escaped from his enclosure ; if still an animal commit damage, b}' putting part of its body over, through, or beyond the boundary line, the defendant will be liable regardless of negligence. For example : The defendant's horse bites and kicks the plaintiff's horse through the partition fence between the plaintiff's and defendant's premises. The defendant is liable, though not guilty of negligence.' The common-law rule, however, has been variouslj^ modified by statute in this countr}' ; and in some of the Western States it is held inapplicable to the condition of things.* The escape of animals from the highway along which they are being driven or led is a different thing. This latter is not a trespass, that is, a breach of absolute duty ; liability on the contrary turns upon negligence on the part 1 Ellis V. Loftus Iron Co. L. R. 10 C, P. 10, 13 ; Lee v. Riley, 18 C. B. N. s. 722. As to dogs see Read v. Edwards, 17 C. B, n. s. 245. Further, see Pollock, Torts, 432, 433, 2d ed. 2 Myers v. Dodd, 9 Ind. 290 ; Webber v. Closson, 35 Maine, 26. How strong the common law upon this subject is, is shown by cases applying the rule unhesitatingly to strays from open commons. See Year Book, 20 Edw. IV. 11, pi. 10, where to an action of trespass with cattle the defendant pleaded that his land adjoined a place where he had common, and that his cattle strayed from the common, and that he drove them back as soon as he could. The plea was held bad, the court saying that if the land in which the defendant had common was not inclosed, he must still keep his beasts there and out of the land of others. 3 Ellis V. Loftus Iron Co. supra. * 3 Kent, 438, note 1, 13th ed. ; Kerwhacker v. Cleveland R. Co., 3 Ohio St. 172. 304 LAW OF TORTS. [Part III. of the owner or his servants.^ Trespassing or straying animals, it ma^' be added, should not be injured unneces- sarily in driving them away.^ 1 Goodwin v. Cheveley, 4 H. & N. 631; Tillett v. Ward, 10 Q. B. D. 17, where an ox strayed into a shop. a Ante, p. 230. CHAPTER XVI. ESCAPE OF DANGEROUS THINGS. § 1. Introductory. Statement of the duty. A owes to B the duty to pre- vent the escape of any dangerous thing, to the damage of B, brought or made upon the premises of A ; the escape being due to defects within the control, though it may be not within the knowledge, of A. § 2. Of the Nature of the Protection required. The duty considered in the preceding chapter of re- straining animals from doing damage has been treated in England as furnishing ground for an analogous duty with reference to inanimate things of a peculiarly dangerous character, which the occupant of premises has brought or made thereon, — the duty, to wit, so to keep such things that they shall not do mischief to the occupant's neigh- bor ; within limitations now to be stated. In the language, substantially, of judicial authority, where the owner of land, without wilful wrong or negli- gence, uses his land in the ordinary manner, he will not be liable in damages, though mischief should thereby be occa- sioned to his neighbor.^ But a 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 1 Chasemore v. Eichards, 7 H. L. Cas. 349. 20 306 LAW OF TORTS. [Part II. there at his peril ; and if he does not, he will be answer- able, prima facie, for all the damage which is the natural consequence of its escape ; and this however careful he may have been, and whatever precautions he may have taken to prevent the damage.^ For example : The defend- ants construct a reservoir on land separated from the plaintiff's colliery by intervening land. Mines under the site of the reservoir, and under part of the intervening land, have been formerly worked ; and the plaintiff has, by workings lawfully made in his own colliery and in the intervening land, opened an underground communication between his own colliery and the old workings under the reservoir. It has not been known to the defendants, or to any person employed by them in the construction of the reservoir, that such communication exists, or that there have been any old workings under the site of the reser- voir ; and the defendants have not been personall}' guilty of any negligence. The reservoir is in fact, but without the defendants' knowledge, constructed over five old shafts, filled with rubbish and other loose material, and leading down to the workings ; and the reservoir having been filled with water, the water bursts down these shafts and flows by the underground channel into the plaintiff's mines, producing damage. The defendants are Hable.^ 1 Rylands v. Fletcher, L. R. 1 Ex. 265, Ex. Ch. ; L. R. 3 H. L. 330 ; Cases, 405. The decision of the Court of Exchequer (3 H. & C. 774) was reversed. See National Telephone Co. v. Baker, 1893, 2 Oh. 186. 2 Rylands v. Fletcher, supra. The general rule above stated has been the subject of great discussion on both sides of the Atlantic, since Rylands v. Fletcher was decided. It has been denied by some of the American courts, and adopted or favored by others. It is denied e.g by Losee v. Buchanan, 51 N. Y. 476 ; it is favored e. g. by Shi])ley v. Fifty Associates, 106 Mass. 194. See further L. C. Torts, 497-500. And some tendency to modify it has been shown in England, but that is as much as can be said. In substance the rule stands. See Pollock, Torts, 424--428, 2d ed. ' The authority of Rylands v. Fletcher is un* Chap. XVT. § 2.] ESCAPE OF DANGEROUS THINGS. 307 The owners of the upper tenement have, however, as has ah-eady been intimated, in such cases, a right to work their premises in the ordinary, reasonable, and proper manner, and are not liable for the effects of water which flows down into the lower tenement by mere force of gravitation. But '^^here some unusual and extraordinary effort is put forth for effecting the occupant's purpose, the owner is liable for the injurious results which follow.^ For example : The defendant, owner of a coal-mine above the plaintiff's mine, works out the whole of his coal, leav- ing no barrier between his mine and the plaintiff's, the con- sequence of which is, that the water percolating through the upper mine flows into the lower one, and obstructs the plaintiff in getting out his coal. This is no breach of duty by the defendant ; the water having flowed down in its natural course, and the defendant being entitled to re- move all of his coal.^ Again : The defendant, under the like circumstances,, does not merely suft'er the water to flow through his mine in its natural way, but, in order to work his mine beneficially, pumps up quantities of water which pass into the pla\Dtift''s mine, in addition to that which would naturally have reached it, whereby the plain- tiff suffers damage. This is a breach of dut}' to the plain- tiff, though it is done without negligence and in the due working of the defendant's mine.^ If the damage be produced by vis major or by the act of God,* or otherwise, without the intervention of acts questioned, but Nichols v. Marsland [L. R. 10 Ex. 255, 2 Ex. Div. IJ, has practical!)' empowered juries to mitigate the rule, whenever its operation seems too harsh.' Id. p. 428, 2d ed. 1 Id. ; Fletcher v. Smith, 2 App. Gas. 781 ; Baird v. Williamson, 15 C. B. N. s. 376. 2 Smith V. Kenrick, 7 C. B. 515, 564. 8 Baird v. Williiimson, supra. * Nichols V. Marsland, L. R. 10 Ex. 255 ; s. c. 2 Ex. Div. 1, show- 308 LAW OF TORTS. [Part U. or omission of duty by the occupant or those for wliom he is responsible, tlie case will be different. In the example given, if the damage had been caused by lightning burst- ing the reservoir,^ and not by reason of the existence of the openings into the lower mines, the defendants would not have been liable. Again : The defendant's tenants, the plaintiffs, occupy the lower story of a warehouse, of which the defendant occupies the upper. A hole has been gnawed by rats through a box into which water from the gutters of the building is collected, to be thence discharged by a pipe into the drains. The water, now pouring through the hole, runs down and wets the plaintiff's goods. The defendant is not liable.^ Again : The defendant owns premises on which stand yew-trees, which to his knowl- edge are poisonous. A third person clips some of the branches, which fall upon the plaintiff's land, and poison the latter's horses. The defendant is not liable.* If, too, the bringing the dangerous thing upon the occupant's land, and all the works connected therewith, be effected under sanction of legislative authority, the fact that they result in damage to the party's neighbor by purely natural escape or by authorized channels, and not by reason of negligence attributable to the occupant, will not render the occupant liable.* It is also certain, a for- tiori, in such a case, that, if the escape be caused by the act of God, no liability follows. For example : The de- fendant is charged by law with the duty of maintaining ing that this term includes events which human foresight could not reasonably anticipate. This case in both stages is very instructive. 1 Rylands v. Fletcher, L. R. 3 H. L. 330 ; Cases, 405. 2 Carstairs v. Taylor, L. R. 6 Ex. 217 ; Ross v. Fedden, L. R. 7 Q. B. 661. See Doupe v. Genin, 45 N. Y. 119. But see Marshall v. Cohen, 44 Ga. 489. 8 Wilson V. Newberry, L R. 7 Q. B. 81. 4 See Vaughan v. Talf Vale Ry. Co., 5 H, & N. 679. Chap. XVI. § 2.] ESCAPE OF DANGEROUS THINGS. 309 water tanks in bis district for purposes of irrigation, as part of a national system of irrigation, for tlie welfare of the people. By reason of an extraordinary Hood, and not by reason of the bad condition of the works, one of these tanks gives way, causing damage to the plaintiffs. The plaintiffs cannot recover therefor.-' On the other hand, if the works be of a nature to require legislative sanction, the proprietor or manager, w^hen not having it, will be liable for damage produced by any escape or breaking thereof, however occurring. For example : The defendants make use of locomotive engines, without having obtained the necessary authority of law, and the plaintiff suffers damage by reason of fire proceeding from the same. The defendants are liable, though not guilty of any negligence in the management of the engines, and though they would not have been liable had they had the proper authority.^ The foregoing is the law of England. The American law can hardl}' be said as 3'et to have become settled in regard to this subject ; the authorities are conflicting. The chapter will be concluded with a statement of some of the special doctrines laid down b}' our courts. It has been decided that the occupant of premises may be liable for damage caused by the fall of ice or snow from the roof of his building when the roof is so con- structed as to make it substantially certain that, if the snow be not removed, accidents from snow-slides will occur ; although the roof be constructed in the usual manner of the time.^ And with regard to water collected in reservoirs, it is held that the embankments must be so 1 Madras Ry. Co. v. The Zemindar, L. R. 1 Ind. App. 364. ■-5 Jones V. Festiniog Ry. Co., L. R. 3 Q. B. 733 ; Vaughan v. Tafl Vale Ry. Co., supra, 8 Shipley v. Fifty Associates, 106 Mass. 194. 310 LAW OF TORTS. [Pakt IL thoroughly constructed that the water cannot percolate through them.^ The doctrine has also been laid down that where the alleged rights of adjoining land-owners conflict, it is better that one of them should yield to the other and forego a particular use of his land, rather than by insisting upon that use, deprive the other altogether of the use of his property ; which might often be the consequence of carry- ing on the operation. This would, of course, be an obvi- ous principle if stated with regard to a nuisance ; but it is treated as applicable to other wrongs as well. For exam- ple : The defendants, in the course of digging a canal through theii- land, for which purpose they are clothed with legislative authority,^ find it necessary to blast rocks by the use of gunpowder. The result of the blasting is to throw fragments of rock against the plaintiff's house, whereby the plaintiff suffers damage. The defendants are deemed liable, though not guilty of negligence.^ A distinction has, however, been observed to exist be- tween an injury sustained in that way, and one sustained by the explosion of a boiler on the defendant's premises. For damage sustained in the latter way, it is deemed that no right of action arises unless the explosion was due to negligence of the manager.* The use of a boiler is not necessarily dangerous.^ 1 Wilson V. New Bedford, 108 Mass. 261 ; Pixley v. Clark, 35 N. Y. 520. 2 The work could not therefore be a nuisance when carefully conducted. 3 Hay V. Cohoes Co., 2 N. Y. 159. ^ Losee v. Buchanan, 51 N. Y. 476. In this case the rule in Ry lands V. Fletcher, supra, is denied. 5 Further, see Cooley, Torts, 677, 680, 2d ed. ; L. C. Torts, 496 et seci. PART III. BREACH OF DUTY TO REFRAIN FROM NEGLIGENCE. CHAPTER XVII. NEGLIGENCE. § 1. Introductory. Statement of the duty, if any. A, by negligence having caused damage to B, witliout B's fault, ^ is liable therefor, provided that A owed to B the duty to exercise reasonable care, skill, or diligence, or all these, according to the situation. The foregoing statement imports that a man ma}' sus- tain damage by reason of the negligence of another, and yet have no right of action for the same. Another element is necessar}' to the action ; namel}', that the de- fendant owed a duty to the plaintiff not to be negligent.^ Negligence, breach of duty to the plaintiff, and damage, are, then, the essential elements of the right of action. In many cases the duty will be obvious on the general facts, and hence will not call for special consideration ; in other cases it will not be obvious that there was a duty, or what the nature of the duty was. Such cases will call for examination of the question. The result is, that it will be necessary to consider, first, the meaning of ' negligence,' as applicable to all cases in ^ 111 some States the plaintiff must show that he was not in con- tributory fault, in order to recover. 2 Meinbuiy v. Great Western By. Co., 14 App. Cas. 179, 190. But the rule is general, not couliued to negligence. Ante, p. 15. 314 LAW OF TORTS. [Part IH. general, and, secondl}', assuming negligence, whether the negligence (and damage) amounted to a breach of duty to the plaintiff. Damage, as a question of law, will be con- sidered in the closing sections of the chapter. § 2. Of the Legal Conception op Negligence in General. Negligence in the law is a technical term, and a complex conception. Conduct is considered negligent in law which might not be considered negligent in the popular accepta- tion of the term. Indeed the popular understanding is too apt to make its wa}', in unguarded or mistaken lan- guage, into the law books, — some special phase of the subject in its technical sense being spoken of perhaps as something other than negligence. The significance of this will be seen when it is said that negligence, in the eye of the law, embraces not merely want of care, its more familiar form, and thoughtlessness, but rashness, and even other kinds of wilfulness.^ And well enough ; for what is rashness, mentally considered, but the failure — neglect — of the will, in the presence of danger, to respond to conscience, or whatever function it be which prompts to restraint of the impulse of over- confidence?^ But rashness stands upon a special footing in certain cases, sometimes creating liabilit}^, as will later appear, when negligence in the popular sense would not.* That fact, no doubt, has caused judges and writers on law now and then to consider rashness as not negligence at all.* Recklessness and wantonness, however, in the sense 1 See Claridge v. So. Staffordshire Tramway Co., 1892, 1 Q. B. 422, fast driving. 2 If the function itself is so dulled as not to speak, it is a case of mental derangement, more or less, and may not be negligence. 8 Compare jiost, p. 349, and note as to wanton injury. 4 See e. g. Smith v. Baker, 1891, A. C. 325, 347, Lord BraraweU. Chap. XVII. § 2.] NEGLIGENCE. 315 of entire disregard of the riglits of others,* lie outside the domain of negligence, it seems ; they are cases, legally speaking, of virtual intention to do harm, and though negligence may be manifested by intended acts or in- tended omissions, intended or virtually intended harm is another thing altogether.'^ In its broad legal sense, negligence, then, as a tort, appears to include all misconduct short of intended or virtually intended harm, in which the will has failed to respond to the warning of that function of the mind, commonly conscience, which should govern. Still, it should be distinctly observed, that the law acts, or refuses to act, in accordance with the manifestation of conduct ; in no case does it inquire into the defendant's attitude of mind to determine whether he was guilty of negligence. Outwardly, that is, in manifestation of con- duct, negligence ma}' consist in acts as well as in omis- sions. The mental side of the ease explains this.^ Further, negligence may relate either to things seen or known, or to things unseen or unknown ; a man may fail in dut}' by ignorance as well as by knowledge. Negligence in its t3'pical or common form as a tort ma}' now be defined thus: It consists in failure to con- form to the conduct of a careful, skilful, or diligent man (or careful, skilful, and diligent man) in the particular situation ; and if that failure is a breach of dut}' to one who sustains damage thereby, that person has a right of action. Liability ex delicto for the consequences of negligence as regarded by the law, arises, however, by reason only of ^ Both of these terms may perhaps be used in a milder sense, as the equivalent of rashness, and so brought within the legal conceptiou of negligence. See post, p. 349. ' Ante, pp. 122-128. » Ante, p. 7, note. 316 LAW OF TORTS. [Part III. acts, *or omissions after the doing of acts. In respect of omissions not preceded at any time by overt acts, eitlier by tlie defendant or by liis predecessors in interest, in connection with that which occasions the damage, there may Indeed be liability ex contractu (the omission being a breach of contract) ; there can be no liabilit}' in tort as for negligence. An innkeeper may be liable for refusing to receive a man as guest into his inn ; but the liability incurred cannot properly be treated as growing out of negligence. Refusal to do a duty is one thing ; negligence is another. There can arise indeed no civil liability for the negli- gent omission to do a thing required by law, though commanded by the Legislature, unless that neglect be con- nected with the existence of something already done. A town may be required to build a bridge across a stream, but no one can maintain an action for damages against the town for neglect, however inexcusable, to build the bridge ; though an action might be maintained for damage caused b}' the breaking of a bridge through failure to repair it, if the town was bound to keep it in proper condition. In the latter case, there is an omission preceded (at some time) b}' an overt act ; to wit, the building of the bridge. When it is said that no action ex delicto can be maintained for a pure non-feasance, consisting in neglect of dut}', the for- mer case is to be understood as intended. It is declared by all the authorities that the standard by which to determine whether a person has been guilty of negligence is the conduct of the prudent, careful, diligent, or skilful man in the particular situation. But, if not properl}' understood, this standard may itself be mislead- ing. A blacksmith finds a watch bv the roadside, and on opening it and seeing that it is full of dirt, attempts to clean it, when a watchmaker is near ; but in doing so. Chap. XVII. § 2.J NEGLIGENCE. 317 though exercising, it may be, the greatest care, he in- jures it by reason of his lack of skill. Now in attempting to put the watch in order, and thus perhaps preventing its ruin, he has done nothing that a prudent man might not have done ; and, taking the criterion in its broadest sense, the blacksmith could not be liable to the owner of the watch for the damage which he did to it ; while the law would probably be just the contrary.^ A prudent blacksmith^ however, would not have under- taken to put the watch in order ; he would have taken it to the watchmaker. The prudent man, ordinaril}', with regard to undertaking an act, is the man who has acquired the skill to do the act which he undertakes ; a man who has not acquired that special skill is imi)rudent in under- taking to do the act, however careful he may be, and however great his skill in other things.^ The criterion then of the conduct of the prudent or care- ful or diligent man in the undertaking of an act is to be understood with the limits suggested. The question to be raised with regard to a man's conduct brought in ques- tion in such a case is, whether a prudent or careful or diligent man of his calling or business or skill would have undertaken to do the thing in question ; supposing the party to have exercised due care in executing the work undertaken. When an act has been undertaken by a person whose business or profession covers the doing of acts of the kind in question, the question to be decided is, whether that skill or care or diligence has been exercised which a pru- dent man of the same business would have exercised in the same situation. In regard to omissions (after overt acts) to perform acts 1 It is to be noticed that as a watchmaker is near, the act could not be considered one of necessity. 2 See Dean v, Keate, 3 Campb. 4. 318 LAW OF TORTS. [Part III. not distinctly and certainly required by law, the question of the dutj' to perform them is to be decided by the gen- eral practice of prudent or careful or diligent men of the same occupation, when such a practice exists. When no such practice exists, the question is decided upon the rea- sonably supposable conduct of the prudent man acting under the circumstances.^ In the more common cases, such as actions for damage to property or for bodily injuries caused by collisions, the falling of timbers or other materials, or of buildings, unguarded excavations or openings, obstructions in the highwa}', blasting, explosions, fires, and run-aways, and endless other ' accidents ' so-called, — in common cases such as these the question actually put to the juiy or to the judge for decision is whether the defendant was in the exercise of due or reasonable care at the time of the mis- fortune. Other questions may be involved ; but the question of the defendant's negligence is alwa3's fundamental, and usuall}' takes the form stated. A remark should be made upon the question whether the conclusion or inference to be drawn from the facts in the case of an action for negligence is a matter of law or of fact. The authorities do not give any categorical answer to the question, but this appears to be the effect of them: Where the facts are found, and it is manifest, be3'ond ground for question, that a prudent man would or would not act or omit to act as the defendant has done, the conclusion or inference ma}' be considered as matter of law. This is true whether the question be one of negligence in the defendant or contributory negligence, 1 See Dixon v. Bell, 5 Maule & S. 198 ; s. c. L. C. Torts, 568 ; Piggott, Torts, 220, where the authorities are well stated. Chap. XVII. § 2.] NEGLIGENCE. 319 negligence in the plaintiff.'^ Tlie same is also true where the law has prescribed, as in some cases it has, the nature of the dut}', and also where there exists a well-known practice in the communit}', of a proper character. In other and more numerous cases, it is a matter of fact.^ It should further be stated that a ver}' large part of the litigation pertaining to suits for negligence turns upon the question whether the facts submitted to the court make a case which maj- be submitted to the jury, in jur^- trials, as furnishing evidence upon which negligence ma}' properl}' be found. To consider such questions would require a detailed examination of the authorities beyond the purpose of this book. Thus far of what may be called the general doctrine of negligence, where the relation of the defendant to the plaintiff is merel}' that of man to man, no contract be- tween the parties existing to modify the general doctrine, or to direct it into any particular channel, and no special situation or office affecting it in law. Several classes of cases will now be considered in which the relation of the parties is more or less affected b}' contract or by law, the general standard of liability being more or less affected according!}', or supei'seded altogether ; these to be fol- 1 ' We are of opinion,' said Mr. Justice Brewer, in Elliott v. Chicago K\'. Co., 150 U. S. 245, 246, 'that the deceased was guilty of con- tributory negligence, svich as to bar any recovery. It is true that questions of negligence and contributory negligence are, ordinarily, questions of fact to be passed upon by a jury ; yet when the undisputed evidence is so conclusive that the court wouhl be compelled to set aside a verdict returned in opposition to it, it may withdraw the case from the consideration of the jury, and direct a verdict. Railroad Co. V. Houston, 95 U. S. 697 ; Schofield v. Chicago, Milwaukee, & St. Paul Railroad, 114 U. S. 615 ; Delaware, Lackawanna &c. Railroad Co. V. Converse, 139 U. S. 469 ; Aerkfetz v. Humphreys, 145 U. S. 418.' 2 See L. C. Torts, 589-596. 320 LAW OF TOKTS. [Part III. lowed by eases in which the question is whether the de- fendant owed any duty to the plaintiff. § 3. Op Innkeeper and Guest. With regard to the duties of innkeepers, it will be al- most sufHcient in the present connection to say that, though it has sometimes been considered that for loss or damage to the goods of guests liability depends upon the question of negligence in the host, or in his servants act- ing for him/ it is now more generally considered that an innkeeper's liability for the failure to keep the goods of his guest safely, when once delivered into the former's custody, arises independently of the question of negli- gence. The host is now held liable for damage to or loss of the goods put in his custody, though he exercise the greatest diligence in the care of them, unless the loss^ occur by the guest's negligence, or by vis major, inevit- able accident, or the act of God.^ It follows, a fortiori, that the innkeeper is liable in case of loss sustained by reason of his own negligence, or that of his servants ; but, inasmuch as the question of his lia- bility does not turn upon the proof of negligence in the ordinary sense, the subject need not be here pursued. 1 Dawson v. Chamney, 5 Q. B. 164 ; Meiritt v. Claghorn, 23 Vt. 177 ; Metcalf v. Hess, 14 111. 129. 2 Armistead v. Wilde, 17 Q. B. 261 ; Cashill v. Wright, 6 El. & B. 891 ; Morgan v. Ravey, 6 H. & N. 265 ; Oppenheim v. White Lion Hotel Co., L. R. 6 C. P. 515 ; Shaw v. Berry, 31 ]\Iaine, 478 ; Norcross V. Norcross, 53 Maine, 163 ; Sibley v. Aldrich, 33 N. H. 553 ; Manning V. Wells, 9 Humph. 746 ; Thickstun v. Howard, 8 Blackf. 535 ; Berk- shire Woollen Co. v. Proctor, 7 Cush. 417 ; Cohen v. Frost, 2 Duer, 341 ; Piper v. Manny, 21 Wend. 282 ; Hulett y Swift, 33 N. Y. 571 ; Wilkins V. Earle, 44 N. Y. 172 ; Houser v. Tully, 62 Penn. St. 92 ; Eockwell V. Proctor, 39 Ga. 105. But this subject is much regulated by statute. ciiAi- XVII. §4.] NliGLIGENCE. 321 It is proper, however, to mark the fact in this connec- tion that a question of contributory negligence ^ may arise in considering cases of innkeeper and guest, as well as in other cases. If the negligence of the guest occasion the loss in such a way that it would not have happened if the guest had exercised the usual care that a prudent man might reasonably be expected to have taken under tlis circumstances, the innkeeper is not liable."^ § 4. Of Bailor and Bailee. So much of the subject of bailment as relates to breaches of duty by common carriers may be dismissed with a brief word. The liability of a common carrier is similar to that of an innkeeper, and does not turn upon the question of negligence, the subject of the present chapter. And there are other cases in which the bailor of an article for special use, as a ' job-master ' of carriages, while not for all purposes an insurer, is still liable, at least in England, for loss happening without negligence in the ordinary sense.* These too fall without the present subject. It was long considered a settled doctrine of the English law that the duty of bailees was to be distributed under three heads, having reference respectively to the nature of the bailment; to wit, (1) the duty to observe very great care, (2) the duty to observe ordinary care, and (3) the duty to observe slight care only. Conversely, therefore, 1 Post, § 11. 2 Casliill V. Wright, 6 El. & B. 891 ; Oppenheim v. "White Lion Hotel Co., L. I!. 6C. P. 515. 3 See e. g. Hyman v. Nye, 6 Q. B. D. 685. The liability of one whose business is to let carriages is here put upon the footing of coach proprietors and railway companies. ' He is an insurer against all de- fects which care and skill can guard against.' Id. Liudley, J. He is not an insurer against all defepts absolutely. Id. 21 322 LAW OF TORTS. [Part IIL the bailee was deemed to be liable for loss sustained by the bailor, under the first head, if the bailee were guilty o^' slight negligence ; under the second head, if he were guilty of ' ordinary negligence,' or rather of negligence of an intermediate grade ; and, under the third head, if he were guilty of gross negligence.^ The application of these three degrees of negligence was thus explained : If the bailment were gratuitous, by the bailor, that is, for the sole benefit of the bailee, the bailee was deemed to be liable for loss or damage to the subject of the bailment occasioned even by slight negli- gence on his pai't. If the bailment were for hire, that is, for the mutual benefit of the bailor and the bailee, he was deemed to be liable for the consequences of negligence of an intermediate grade only. If tlie bailment were with- out benefit to the bailee, that is, if the bailor had requested the bailee to take care of his, the former's, goods without reward, the bailee was deemed to be liable for the result of gross negligence only.^ This doctrine arose from a misconception apparently of the Roman law, tlie doctrines of which were resorted to in order to assist in the solution of a question which arose in England in the eighteenth century.^ But it remained in the English law unchallenged for so long a time that it has not been readily aliandoned, and it may be still con- sidered as retaining some faint vitality in England and in various parts of the United States. The tendency of authority for a considerable time has been to break away from this division of negligence, and to accept substantially what seems to have been the true 1 Coggs V. Bernard, 2 LJ. Raym. 909 ; 1 Sniitli's L. C. 188, 7th ed. 2 Id. ^ Coggs V. Bernard, supra. Lord Holt took his Roman law mainly from tlio mediiT'val jurists, or glossarists. Wharton, Negligence, § 57 et sc(i. ; Smith, Negligence, 11 et seq. , 2d ed. Chap. XVH. § 4.] NEGLIGENCE. 323 doctrine of the Roman law in regard to bailments, as well as in relation to other subjects covered by the title Negli- gence. The effect is to make the criterion of liability to depend upon the consideration already adverted to, whether the party complained of conducted himself in the particular situation as a man of prudence or carefulness or skill, of tlie same business, would have conducted him- self, or as prudent or careful or skilful men, of the same business, generally do conduct themselves in the like situation.^ This criterion, indeed, will often if not generally be found to be the real test applied in those cases in which the old terms are used. For example : The defendant, a bailee of money to keep without reward, gives the follow- ing account of himself : He was a coffee-house keeper, and had placed the money in question in his cash-box in the tap-room, which had a bar in it, and was open on Sunda}^ ; and on a Sunday the cash-box was stolen. The defend- ant's liability turns upon the question whether he has taken such care of the plaintiff's money as a reasonable man would ordinarily take of his own ; if not, he is deemed to 1 As indicating the tendency to discard the old theory of the three degrees of negligence, see Wilson v. Brett, 11 M. &W. 113 ; Hiuton i'. Dibdin, 2 Q. B. 646 ; Grill v. General Collier Co., L. R. 1 C. P. 600; Beall V. South Devon Ey. Co., 3 H. & C. 337 ; Giblin y. McMnllen, L. R. 2 P. C. 317, 328 ; The New World, 16 How. 469 ; Milwaukee Ry. Co. V. Arms, 91 U. S. 489, 494 ; Cass v. Boston & L. R. Co., 14 Allen, 448 ; Lane v. Boston & A. R. Co., 112 Mass. 455 ; P.riggs v. Taylor, 28 Vt. 180. In the Roman law there were two branches (rather than degrees) of negligence, expressed respectivel}' by the terms ' culpa levis ' and 'culpa lata.' The former was the absence of the diligence of a good man of affiiirs ('diligentia boni patri.sfamilias') ; the latter the failure to exercise those mental faculties which all men habitually exercise (•'non intellegere quod omnes intellegunt '). The two ideas together answer pretty nearly to oxir prudent, careful, diligent, or skilful man ^11 the particular situation. 624 LAW OF TORTS [Part III be guilty of ' gross negligence ' and liable for the loss.' Again : The defendants receive a deposit of bonds from a stranger, S, to be kept without reward. Subsequently another stranger calls for and gets the bonds, represent- ing himself to be S, the depositor. The judge instructs the jury that, if the defendants are guilty of want of ' ordiuary care ' under all the circumstances, they are lia- ble, otherwise not. The instruction is correct, being equivalent to a ruling that the defendants are liable for gross negligence only.^ Again : The defendants receive a deposit of debentures to be kept without reward, and the cashier of the bank fraudulently abstracts the same and makes away with them. The defendants are liable if they have failed to exercise ' ordinary care,' which means a failure to exercise that ordinary diligence which a reason- ably prudent man takes of his own property of the like description.^ The foregoing are examples of liability in cases of bail- ment without reward ; but the same principles govern bailments for hire. For example : The defendants, ware- housemen for hire, lose by theft the plaintiff's property, while the same is in their keeping. They have exercised the care usually exercised in the vicinity by other like warehousemen. They are not liable, having exercised ' ordinary care.' * Again : The defendants, warehouse- men in a large city, receive from the plaintiffs for reward a large quantity of salt in barrels, which they store in a 1 Doorman v. Jenkins, 2 Ad. & E. 256. The question, it will be seen, was not whether the defendant had taken the same care of the money that he took of his own. 2 Lancester Co. Bank v. Smith, 62 Penn. St. 47. See also Foster r. Essex Bank, 17 Mass. 479, 486. 8 Giblin v. MeMullen, L. R. 2 P. C. 317 ; Fulton v. Alexander, 21 Texas, 148. * Cass V. Boston & L. R. Co., 14 Allen, 448. See Lane v. Boston & A. R. Co., 112 Mass. 455. CiiAP. XVII. § 4.] NEGLIGENCE. 325 loose frame warehouse, situated in an alley, back of their busuiess house. Of the wliole aniouut about two hundred and forty barrels are stolen ; and it is afterwards discov- ered that the theft was going on at intervals for a month. It was effected by entering through an opening in the side of the building, a plank there being off, and then opening the alley door and rolling out the barrels. Drays were thus loaded early in the morning, sometimes before sun- rise, sometimes a little after ; the defendants having no watchman there. The defendants are liable, because they failed to exercise ' ordinary care or diligence ; ' though it appears to be usual in the particular city to pile such bar- rels in open sheds, or on vacant lots, or on the sidewalk, or occasionally in warehouses such as the one in question, — some supervision or examination of the premises being reasonably required in the course of a month.-' The result, therefore, is, that the terms ' gross negli- gence,' and ' negligence,' are, with regard to goods bailed, now used to prescribe liability where the defendant or his servants have not taken the same care of the property in- trusted to them as a prudent man would have taken of his own in the same situation.^ Or as it has recently been laid down by judicial authority : For all practical purposes the rule may be stated to be, that the failure to exercise reasonable care, skill, and diligence, is ' gross negligence.' What is reasonable, varies in case of a gratuitous bailee and that of a bailee for hire. Fi-om the former are rea- sonably expected such care and diligence as persons ordinarily use (that is, careful persons) in their own affairs, and such skill as the bailee has. From the latter are reasonably expected such care and diligence as are 1 Chenowith v. Dickinson, 8 B. Mon. 156. 2 Brip.^s V. Taylor, 28 Vt. 180. See also Duff w. Budd, 3 Brod. & B. 177 ; Rile}' v. Home, 5 Bing. 217 ; Batson u. Donovan, 4 B. & Aid. 21. 326 LAW OF TORTS. L^art III exercised in the ordinary and proper course of similar business, and sucli slvill as the bailee ought to have ; namely, the skill usual and requisite in the business for which he receives payment.^ On the other hand (to leave the side of the bailee's duty), there may be a case of negligence on the part of the bailor, resulting in harm to the bailee or to others. This may happen in many ways, as in the careless hand- ling of the goods by the bailor ; it may also ha^Dpen by reason of the failure of the bailor to give notice of the nature of the articles delivered. It is a general principle that wherever a person employs another to carry an arti- cle which from its dangerous nature requires more than ordinary care, he must give reasonable notice to him of the nature of the article ; otherwise he will be liable for the natural consequences of the neglect.^ For example : The defendant delivers a carboy of nitric acid to the plain- tiff, servant of a Croydon carrier, to be taken to Croydon, without notifying him of the nature of the article ; and there is nothing in its appearance to indicate its nature. While he is carrying it, the carboy bursts from some unexplained cause, and the plaintitf is injured. The defendant is liable.^ Thus far of a bailment for custody (locatio custodite), or for hire (locatio rei), or the like. The bailment may re- quire the performance of services upon chattels (locatio operis) ; but the rule with regard to diligence is still the same. The bailee is bound to exercise ordinary care ; to wit, the care of a prudent man of the same occupation, and under the same circumstances. He is also bound to 1 Beal V. South Devon Ey. Co., 3 H. & C. 337, Exch. Cli., Cromp- ton, J. speaking for the court. 2 Willes, J. in Farrant v. Barnes, 11 C B. N. s. 553, 564. ' Farrant v. Barnes, suj^ra. See Brass v. Maitland, 6 El. & B. 470. CiiAi. XVII. §4.] NKGLIGKNCE. 827 exercise a fair average degree of skill in relation to the business which he undertakes ; to do his work in a workman- like manner ; and to be possessed of sufficient skill to exe- cute it. He will therefore be liable, prima facie, if he should either make an engagement without sufficient skill to execute it, or if, possessing the adequate skill, he should not exercise it. For example : The defendant hires a horse of the plaintiff which becomes slightly sick. The defendant, not being a farrier, thereupon prescribes improperly for the horse, and the medicine kills it. This is a breach of duty to the plaintiff, a farrier being near at hand at the time.^ Again : The defendant, a builder of houses, undertakes for the plaintiff to rebuild a good and substantial front to his house, but he builds the same so out of perpendicular that it must be taken down. The defendant is liable in an action for negligence.^ The degree of skill and care required rises in proportion to the value, the delicacy, and the difficulty of the opera- tion. A workman employed to repair the works of a very delicate instrument would be expected to exert more care and skill than would be required about an ordinary under- taking.^ The criterion of liability, however, still remains the same ; if all things are done by the workman which a careful and skilful workman in the same situation and business would do, he will be exonerated from liability though he brake the instrument.^ It should be observed, however, with regard to cases requiring the exercise of skill, that a bailee is not to be required to possess extraordinary skill, such as is possessed by but few persons only in the particular business, but only a fair average, or ordinary, degree of skill ; unless, indeed, he engage to possess extraordinary ability. In m 1 Dean v. Keate, 3 Campb. 4. 2 Farnsworth v. Garrartl, 1 Caiapb. 33. 8 Story, Bailments, § 432. < Id. 328 LAW OF TORTS. [Part IIL the absence of agreement or false representation, reason- able skill constitutes the measure of the engagement of the workman in regard to the thing undertaken.^ On the other hand, a bailee employed to do work un- familiar to him is not liable, it seems, for failing to pos- sess the requisite skill for the work, if he has not held himself out as possessing such skill. It is the bailor's fault if he intrust a work requiring the exercise of skill to one whom he knows to be without it. For example : The defendant, a matter, is employed by the plaintiff, with notice, to embroider a fine carpet, and the defendant, from want of skill, spoils the materials put into his hands by the plaintiff for the puipose. This is no breach of duty, the defendant not having represented himself competent for such work.^ It is further to be observed that if the loss or ill execu- tion be not properly attributable to the fault or unskilful- ness of the workman, or of his servants, but arise from an inherent defect in the thing upon which the work is done, the bailor, having furnished the materials, cannot treat the bailee as guilty of negligence.^ But if the materials were furnished by the bailee, and the result were a failure to perform the contract altogether, or a failure to perform it within the time agreed upon, the bailee would be liable ; unless perhaps the materials required by the bailor were such as he (the bailee) was not familiar with, and he had exercised such skill as he possessed in the management of them, the risk being taken by the bailor.* § 5. Of Professional Services. The only difference between the case presented in the present section and that in the last half of the preceding is 1 Story, Bailments, § 433. 2 jj. § 435^ s ](j. § 428 a. * In the latter case, the bailor might himself be liable to the bailee, as in case of injury from dangerous materials ordered by the bailor. Chap. XVII. § 5.] NEGLIGENCE. 829 that there is now no buihneut of goods to be wrought upon. The rules of hiw with regard to tlie duty of the persou em- ployed are not materially different from those above pre- sented. To render a professional man liable for negli- gence, it is not enough that there has been a less degree of skill than some other professional men might have shown. Extraordinary skill is not required unless pro- fessed or contracted for ; a fair average degree of skill is all that can be insisted on. Or, as it has been laid down, a person who enters a learned profession undertakes to bring to the exercise of his business simply a reasonable degree of skill and care. lie does not undertake, if an attorney, that he will gain a cause at all events, or, if a physician, that he will effect a cure.* For special illustration of the application of this doc- trine, the nature of the liability of lawyers and of doctors of medicine for negligence may be taken. Every client has a right to expect the exercise, on the part of his attorney,^ of care and diligence in the perform- ance of the business intrusted to him, and of a fair aver- age degree of professional skill and knowledge ; and if an attorne}- have not as much of these qualities as he ought to possess, or if, having tliem, he neglect to use them, the law makes him liable, prima facie, for any loss which may have been sustained thereby by his client.^ Hence an attorney possessed of a reasonable amount of information and skill, according to the duties which he undertakes to perform, and exercising what he possesses with reasonable care and diligence in the affairs of his client, is not liable for errors in judgment, whether in 1 Lamphier r. Phipos, 8 Car. & P. 475, Tindal, C. J. ; Hart v. Frame, 6 Clark & F. 193, 210 ; Graham v. Gautier, 21 Texas, 111. 2 ' Attorney ' here = lawyer of any grade or name. ' Saunders, Negligence, 155. 330 LAW OF TORTS. JPaht III. matters of law or of discretion, unless he profess to liave a high order of skill. It is clear, however, that, when an injury has been sus- tained which could not have happened except from want of reasonable skill and diligence on the part of the attor- ney, the law will hold him liable. To take proceedings upon a wrong statute, where there is no question of doubt- ful construction involved, would be evidence of negligence under this rule. For example : The defendant, an attor- ney, is employed to take statutory proceedings on behalf of the plaintiffs against their apprentices for misconduct. The defendant proceeds upon a section of the statute re- lating to servants and not to apprentices. This is deemed such a want of skill or diligence as to render the attorney liable to repay to the plaintiffs the damages and costs in- curred by his mistake.^ If au attorney has doubt in regard to the legal effect of an instrument in which his client is concerned, and sub- mits the question to counsel for advice on which to act, he must state the facts correctly and with fulness. If, in- stead of laying the case and facts fully before the counsel, he attempts to state inferences from the facts, he acts at his peril. The counsel should be permitted to draw his own inferences. For example : The defendant, a lawyer employed by the plaintiff, seeking counsel of another law- yer, misstates the legal eft'ect of certain deeds not accom- panying the case, whereby he (the defendant) receives and acts upon incorrect advice, to the damage of the plain- tiff. Tills is evidence of negligence.^ In the like exercise of due care and skill, an attorney employed to investigate the title to an estate, or to seek out a good investment and obtain security for money 1 Hart V. Frame, 6 Clark & F. ]f»3. - Ireson v. Pearman, 3 B. & C. 71*9. Chap. XVII. § 5.] NEGLIGENCE. 331 advanced, must examine the title to and extent of the security offered ; and even tlien, if the title prove obvi- ously defective, or the security prove evidently bad or in- Butlicient, he will be liable.^ The authorities, finally, appear to establish the rule that an attorney is liable for the consequences of ignorance or non-observance of the rules of practice of court, for the want of care in the preparation of a cause for trial, or of attendance thereon with his witnesses, and for the mis- management of so much of the conduct of the cause as is usually allotted to his department of the profession. On the other hand, he is not answerable for error in judg- ment upon points of new occurrence, or of nice or doubt- ful construction, or of such as are usually submitted to one in the highest walks of the legal profession.^ To render a doctor of medicine liable for negligence, there must likewise appear to have been a failure to exer- cise such diligence or skill as a prudent practitioner of fair ability would have exercised under the same circum- stances. The degree of diligence required will be propor- tionate to the nature of the case ; and, in some cases, nothing short of the highest degree of diligence can be excusable. As regards the sl-ill to be exercised, however, nothing more than a reasonable degree can be insisted upon ; the law does not require the exercise of the highest medical ability,^ unless the party has held himself out as possessed of or has contracted for it. For example : The defend- ant, a physician, is retained as accoucheur to attend the plaintiff's wife, and the plaintiff alleges that he failed to 1 Knight V. Quarles, 4 Moore, 532 ; Whitehead v. Greethaiu, 10 Moore, 183 ; Donaldson v. Haldane, 7 Clark & F. 762. 2 Godefroy v. Dalton, 6 Bing. 460. 3 Graham v. Gautier, 21 Texas, 111. 332 LAW OF TORTS. [Part III. use clue and proper care and skill in the treatment of the lady, whereby she was injured. The judge instructs the jury that it is not enough to make the defendant liable that some medical men, of far greater experience or abil- ity, might have used a greater degree of skill, nor that even he might possibly have used some greater degree of care. The question to be decided is, whether there has been a want of competent care and skill to such an extent as to lead to the bad result.^ Again : The defendant, a surgeon, is employed by the plaintiff to treat an injury to his hand and wrist ; and the plaintiff alleges that he conducted himself in the business in such a careless, neg- ligent, and unskilful manner, that the plaintiff's hand be- came withered, and was likely to become useless. The judge instructs the jury that the question for them to decide is, whether they are satisfied that the injury sus- tained is attributable to the want of a reasonable and proper degree of care and skill in the defendant's treat- ment. The defendant's business did not require him to undertake to perform a cui'e, nor to use the highest possi- ble degree of skill. '^ If the patient, by refusing to adopt the remedies of the ph3'sician, frustrate the latter's endeavors, or if he aggra- vate the case by his own misconduct, he, of course, cannot hold the ph^'sician liable for the consequences attributable to such action. Still if, after such misconduct, the phy- sician continue to treat the patient, he will be liable for any injury sustained by reason of his own negligence in such subsequent treatment.' Want of consideration is by the better rule no defence.* 1 Rich V. Pierjiont, 3 Fost. & F. 35. 2 Lamphier v. Phipos, 8 Car. & P. 475. These two cases, though at nisi prius, are often referred to as authority. Like the second is Wood V. Clapp, 4 Sneed, 65. 8 Hibhard v. Thompson, 109 Mass. 286 ; Wharton, Negligence, § 737. 4 Gill V. Middleton, 105 Mass. 479. But see Ritchey v. West, Chap. X^^I. § G.] NEGLIGENCE. 333 § G. Of Telegraph Companies. Telegi'aph companies are bound to exercise reasonable diligence and care in the transmission of messages, and are liable to the senders for any failure to conform to the requirements of this duty. They are not insurers of the correct transmission of despatches.'^ They are, however, bound to deliver the precise mes- sage given them for transmission (when it is legibly written), and for a failure to do so they are liable, in the absence, at least, of a rule requiring the message to be repeated by the receiver, and this, too, even in the face of a notice to the contrary ; unless the error was caused by the condition of the atmosphere, or by some other obstacle, without fault on the part of the telegraph com- pany. For example : The defendants receive a message from the plaintiffs for transmission at night, ordering a cargo of corn at a price named by the owner. The mes- sage is written upon a blank of the defendants, at the top of which is a declaration that the defendants are not to be liable for mistakes, or delays, or non-delivery bej'ond the sum paid for the message. The message is sent ; but, by reason of negligence, it is not correctly delivered, and the plaintiffs fail to obtain the corn at the price named, the grain having directly advanced in price. The defend- ants are liable, the notice being unreasonable.^ A condition that the telegraph company shall not be liable to the sender of a despatch for a mistake in it, un- 23 111. 385, proceeding upon the old notion of bailment without reward. 1 Western Union Tel. Co. v. Carew, 15 Mich. .')25, 533 ; Breese v. United States Tel. Co., 48 N. Y. 132 ; Playford v. United Kingdom Tel. Co., L. R. 4 Q. B. 706, 710. 2 See Trae v. International Tel. Co., 60 Maine, 9. The message was not delivered at all in this case. 334 LAW OF TORTS. [Part III less the message shall be repeated by the receiver, is, how- ever, reasonable and valid, though referred to as among the conditions on the back of the blank used by the sender, and though it be not read.^ And the same is true of a condition that the telegraph company shall not be liable for mistakes occurring on other lines, in the course of transmitting a message, though the first company receive pay for the entire transmission. '•^ But it is held that a condition that the company shall not be liable for mistakes or delays in transmitting despatches applies merely to the transmission, and not to delays in delivering them.' It is proper, in this connection, to observe that, by the American law, the telegraph company is also liable to the person to whom the message is transmitted, upon delivery thereof, in case of an error in transmission attributable to the fault of the company, when the error is attended with damage to the person receiving it.^ The rule is other- wise in England.^ But the telegraph company is (prob- ably) uuder no liability to the person to whom a message is addressed for a failure, however negligent, to deliver, unless the sender was his agent. 1 Breese v. United States Tel. Co., 48 N. Y. 132 ; Wolf v. Western Union Tel. Co., 62 Penn. St. 83 ; Ellis v. American Tel. Co., 13 Allen, 226 ; Western Union Tel. Co. v. Carew, 15 Mich. 525. 2 Western Union Tel. Co. v. Carew, supra. 3 Bryant v. American Tel. Co., 1 Daly, 575. * New York & W. Tel. Co. v. Dryburg, 35 Penn. St. 298 ; Cases, 450 ; Elwood v. Western Union Tel. Co., 45 N. Y. 549 ; Ellis v. American Tel. Co., 13 Allen, 226 ; Gulf Piy. Co. v. Levy, 59 Texas, 563. The ground of liability is variously stated. See L. C. Torts, 621 et seq. One ground taken is that the defendants are to be treated as having made to the plaintiff a false representation of their authority from the sender to deliver the message. May v. Western Union Tel. Co., 112 Mas.s. 90. 5 Play ford v. United Kingdom Tel. Co., L. R. 4 Q. B. 706. The English courts hold that the only duty owed by the telegraph company is to the sender of the message. Chap, XVII. § 7.] NEGLIGENCE. 835 § 7. Of the Liability of Agents, Servants, Trustees, AND THE Like. The test of the liability of an agent to his principal for damage done by reason of alleged negligence is, speaking generally, the conduct of a diligent or careful or skilful agent in the like situation. If the agent's action confoi-m to this standard, he will be exempt from liability ; other- wise not. But it is important to look into this rule somewhat. In accordance with the general rule, it is held not neces- sary, in order to fix the liability of a factor to his princi- pal for damage, to prove that the factor has been guilty of fraud or of such gross negligence as might carry with it a presumption of fraud. The factor is required to act with reasonable care and prudence in his employment, exercising his judgment after proper inquiry and precau- tions.^ If the exercise of ordinary diligence on his part would have prevented the loss, he will be liable ; otherwise not. For example : The defendants, factors, are directed by the plaintiff, their principal, to remit in bills the amotnit of funds in their hands. They do so in the bills of persons who at the time are in good credit in the place in which the factors reside, though not in the place of residence of the plaintiff. If tliey have not notice of the latter fact, the defendants are not liable ; due diligence not requiring them to make inquiry of the credit of the parties to the bills at the place of residence of the principal, when they are of good credit at the place of residence of the factors.^ Again : The defendants, factors, are requested to remit to the plaintiff, their principal, in bills ' on some good house in New York,' the plaintiff's place of residence. They 1 Story, Af?eiicy, § 186. 2 Leverick v. Lleigs, 1 Cowen, 645. 336 LAW OF TORTS. [Past III. remit in the hills of II and B, partners, drawn upon and accepted hy B, the former residing at the place of resi- dence of the defendants, the latter at the place of resi- dence of the plaintiff, to the defendant's knowledge. R and B have houses of business at both places. R (the resident party) is in good credit at the defendant's place of residence, but B (the New Yoi'k party) is not. The defendants are liable whether they knew B's standing or not ; being Ijound to make inquiry in regard to him.^ Extraordinary emergencies may arise in which an agent may, on grounds of necessity, be justified in assuming ex- traordinary powers ; and his acts fairly done under such circumstances will be deemed lawful.^ On the other hand, it seems clear that the presence of such emergencies may not only justify, but, in the light of prudence, even de- mand the resort to extraordinary measures. Ordinarily, it is proper and (probably) necessary for an agent to deposit the funds of his principal in bank ; ^ but if a hos- tile army were approaching the place at the time, to the knowledge of the agent, prudence would require him to make some other and unusual disposition of the funds.* The duty of an agent employed to procure insurance is to take care that the policy is executed so as to cover the contemplated risk ; and to this end he is, of course, bound to possess and use reasonable skill. The agent is also to take care that the underwriters are in good credit ; though it is enough that they are at the time in good repute.* "What is the proper exercise of due diligence and skill in such cases is sometimes a matter of great nicety. On the one hand, an agent who acts bona fide in effecting insur- 1 Leverick v. Meigs, 1 Cowen, 645. * Story, Agency, § 141 ; Bailments, § 83. 8 Heckert's Appeal, 69 Pcnn. St. 264. * See Wood v. Cooper, 2 Heisk. 441. » Story, Agency, § 187. Chap. XVII. § 7.] NEGLIGENCE. 337 ance for Ins principal, using reasonable skill and diligence, is not liable to be called to account, though the insurance might possibly have been procured from otiier underwriters on better terms, or so as to include additional risks, by which the principal might, in the event of loss by those risks, have been indemnified.^ On the other hand, an agent in the like case is bound to have inserted in the policy all the ordinary risks commonly covered ; and if he omit to have them inserted when a reasonable attention to his business and the objects of the insurance would have induced other agents, of reasonable skill and diligence, to have them inserted, he will be liable for negligence in case of loss.^ And the same will be true if he negli- gently or wilfully conceal a material fact or make a material misrepresentation whereby the policy is after- wards avoided.^ In any case, if it should appear that, even if the duty expected had been performed with proper care, the princi- pal could have derived no benefit therefrom, either because the result w^ould have been contrary to express law or to public policy or to good morals, the negligence of the agent or other party acting in the matter is not a breach of duty.* Servants also are bound to take due care of their mas- ter's interests, so far as intrusted to them. If a servant be guilty of a failure to exercise such care or skill or pru- dence as a diligent servant would exercise under the cir- cumstances, and the master suffer damage thereby, the servant will be liable for a breach of duty. On the other hand, the servant is not bound to prevent loss to his raas- 1 Story, Agency, § 191 ; Moore v. Mourgiio, Cowp. 479. 2 Id. § 191 ; Park r. Hammond, 6 Taunt. 495. 8 ]\Iayhew v Forrester, 5 Taunt. 615. * Story, Agency, § 238. 22 338 LAW OF TORTS. [Part III. ter at all hazards ; he is only required to use the care or skill of a diligent servant. For example : The defendant, a servant, loses by theft of another the goods of the plain- tiff, his master and a carrier ; but there Is no proof of negligence on the part of the defendant. The plaintiff must bear the loss.-^ Again : The defendant, treasurer of the plamtiffs, is charged with a failure to pay over to the plaintiffs specific money in his possession. He pleads that after receiving the money, and before the time when he ought to have paid it or could have paid it to the plain- tiffs, he was robbed by violence of the whole amount without any default or want of due care on his part. The plea shows that the defendant has not violated his duty to the plaintiffs.'^ If too it should appear that the principal or master, upon a full knowledge of the circumstances, has deliber- ately ratified the acts or omissions complained of, he will then be compelled to overlook the breach of duty, and cannot recall his condonation of the offence.^ A trustee is not liable at common law for a loss which has occurred through him, if he exercised ordinary skill, prudence, and caution.^ In considering whether a trus- tee has made himself liable for a loss, such as one arising by reason of a failure to collect and convert into money the trust assets, regard must be had to the nature of the trust. A guardian is not in ordiuar}^ cases held to such prompt action in enforcing the collection of securities as 1 Savage v. "Waltliew, 11 Mod. 135, coram Lord Holt. " Walker v. British Gnarnntee Assoc, 18 Q. B. 277. See Doorman V. Jenkins, 2 Ad. k E. 2.'56, ante, pp. 323, 324. » Story, Agency, § 239. 4 Twaddle's Appeal, 5 Bnrr, 1.5 ; Miller v. Proctor, 20 Ohio St. 442 ; Harvard Col 1 ego y. Amory, Pick. 446, 461 : Hnnt, Appellant, 141 Muss. 515 ; Charitable Corp. v. Sutton, 2 Atk. 400, Lord Hardwicke. Chap. XVII. § 7.] NEGLIGENCE. 339 an executor, administrator, or assignee acting for the benefit of creditors. Tlie duty of a guardian is to liold and retain ; of an executor, to collect and prepai'e for distribution.^ But it is the duty of a trustee to be active in reducing to liis possession any debt forming part of the trust fund ; for the consequences of neglect he would be liable.^ An administrator or executor, or an assignee of an insol- vent, should within a reasonable time make proper efforts to convert all the assets and securities of the estate into money for distribution ; failing to make such effort, the party is liable for any loss to the estate thereby sustained. For example : The defendant, an executor, fails for sev- eral years after the death of the testator to call in part of the personal estate left out on personal security by the testator himself. The debtor becomes bankrupt, but down to that time pays his interest regularly. Eight months afterwards, the plaintiffs, cestuis que trust, request the defendant to call in the money, but nothing can be found. The defendant is liable.^ If the business of the trustee be such as to involve questions of law, or such as to suggest the aid of legal counsel, due care and diligence will (probably) require him to obtain legal advice. But having done so, and having no reason to suppose that the advice given is in- competent, the trustee will be exonerated in acting there- on. For example : The defendants, executors of an estate, under directions to invest the moneys of the estate on loan well secured, apply to a lawyer of good standing in another town concerning the security of a mill in that 1 Chambersburg Sav. Assoc. Appeal, 76 Penn. St. 203 ; Charlton's Appeal, 34 Penn. St. 473. 2 CaflFrey v. Darby, 6 Ves. 488. 3 Powell V. Evans, 5 Ves. 839 ; Johnson's Estate, 9 "Watts &S. 107; Chambersburg Sav. Assoc. Appeal, supra. 340 LAW OF TORTS. [Part III. place, offered by a person desiring to borrow money of the defendants, and are told that the security is good ; and a mortgage of the borrower's interest therein is accordingly taken. The mill, however, is owned by the borrower and another in partnership, and is liable for the firm debts. The owners become insolvent, and the note of a third person, well secured, is offered the defendants on condition of a release of the mortgage. By advice of the same lawj^er, the offer is declined, and the mill secur- ity is lost. The defendants are not liable, having acted with the prudence of men of ordinary diligence, care, and prudence in the matter.^ Directors of corporations are bound to exercise all the ordinary diligence of persons in the same situation ; ^ and that may vary according to the nature of the business.^ In speculative ventures, so understood by all parties con- cerned, a less rigid rule of prudence would be applied than in transactions not speculative ; and it is laid down that in cases of the first kind ' crassa negligentia ' must be shown, if the directors acted within their powers, in order to im- pose liability upon them.* Directors are not in ordinary cases expected to devote then* whole time and attention to the corporation over whose interests they have charge, and are not guilty of negligence in failing to give constant superintendence to the business. Other officers, to whom compensation is paid for their whole time in the affairs of the corporation, have the immediate management. But the duties may be such as to require all the time of the } Miller v. Proctor, 20 Ohio St. 442 ; Cases, 455. In England and in some of our States a trustee investing trust funds must invest in real estate or in government securities. Hemphill's Estate, 18 Penn. St. 303. Not so in o.ther States. New England Trust Co. v. Eaton, 140 Mass. 532, 535 ; Brown v. French, 125 Mass. 410. 2 Overend v. Gibb, L. R. 5 H. L. 480, 494, Lord Hatherley. 8 14. * Id. Chap. XVU. § T.J NEGLIGENCE. 341 directors ; and whatever the office, if they undertake it they must perform it fully and entirely.^ In relation to those othcers, the duties of directors are those of control ; and the neglect which would render them liable for not exercising that control properly must depend upon circumstances. They are simply to exercise common diligence over such officers. If nothing, in the exercise of such diligence, has come to their knowledge to awaken suspicion concerning the conduct of the managing officers, the directors are not guilty of negligence, and hence are not liable for losses sustained by reason of the misconduct of such officers.^ Those officers are the agents or servants of the corporation, not of the directors. If, however, the directors become acquainted with any fact concerning the officers of the body, calculated to put prudent men on their guard, a degree of care commensur- ate with the evil to be avoided is, it seems, required ; and a failure to exercise such care, resulting in damage to the corporation or to its customers, will render the directors personally liable.^ And the same rule (probably) applies to all trustees or general officers having the oversight of subordinate officers. But generally speaking the liability of the directors or trustees in such cases is to the corpo- ration itself and not to the individual members.* 1 York & North Midland Ry. Co. v. Hudson, 16 Beav. 485, 491, Romilly, M. R. 2 Percy v. Millaudon, 20 Mart. 68. 3 Brewer v. Boston Theatre, 104 Mass. 378. Quaere if 'crassa neg- ligentia ' would be necessary to create liability in such a case ? But after all 'crassa negligentia ' is only negligence in the particular situa- tion ; it is 'crassa' only as compared with what might be negligence in a different situation. See Beal v. South Devon Ky. Co., 3 H. & C. 337, ante, p. 296. The want of that prudence which in the same circum- stances a prudent man would exercise in his own behalf is ' crassa neg- ligentia'. Lord Hatherley in Overendv. Gibb, L. R. 5 H. L. 480, 494. * Brewer v. Boston Theatre, supra. It is only from necessity, and 342 LAW OF TORTS. [Part III. § 8. Of Public Bodies and Public Officers. The fact that public bodies or public officers may have contracted with or assumed some duty to the State or to a municipal government to perform a duty faithfully does not imply that they may not also owe special duties to individuals in the performance of their business.^ Their duties in this respect are like those of private individuals transacting similar business ; and whether they receive emoluments or not is immaterial.'^ Such officers are bound to exercise the diligence which the nature of their position reasonably demands ; and for a failure, resulting in special damage to any individual, they are liable to him.^ For example : The defendant, a municipal corporation, accepts a grant from the English Crown conveying a borough, by which it is directed to keep in repau* certain sea walls. The corporation fails in this duty, and the plaintiff, a pri- vate citizen, is injured thereby. This is a breach of duty to the plaintiff.* Again : The defendant, a public in- spector of meat, undertakes, in accordance with his official duty, to cut, weigh, pack, salt, and cooper, for export, a quantity of beef belonging to the plaintiff, and does the same so negligently that the meat becomes spoiled and worthless. This is a breach of duty to the plaintiff, and the defendant is liable to him in damages.^ An individual cannot, however, for his own benefit, in to prevent a failure of justice, that individual members of the corpora- tion can proceed against the directors or trustees. Id. 1 Henley v. Lyme Regis, 5 Bing. 91 ; s. c. 1 Bing. N. C. 222. See Clothier v. Wehster, 12 C. B. n. s. 790 ; Mersey Docks v. Gibbs, L. R. 1 H. L. 93. 2 Mersey Docks w. Gibbs, supra. 8 See Story, Agency, §§ 320, 321 ; Hayes v. Porter, 22 Maine, 371 * Henley v. Lyme Regis, supra. 6 Hayes v. Porter, supra. OiiAP. XVII. § 8.] NEGLIGENCE. 343 his own name, maintain a suit against another for negli- gence in the discharge of a public duty where tiie damage is solely to the public.-' The reason sometimes given for this is, that great inconvenience would follow if a person violating a trust of this kind could be sued by each person in the community.'^ A better reason, possibly, is, that as the right infringed belongs to the sovereign, as represent- ing the public at large, so the correlative duty is one for the breach of which the sovereign alone can sue. Officers and agents of the general government, such as postmasters and managers of public works, are not liable for the negligence or other misconduct of their subordi- nates, unless the latter are the servants of the former and accountable to them alone. Government officers are, how- ever, liable for the consequences of their own negligence ; ^ and this covers cases of negligence with respect to the conduct of such of their subordinates as are under their supervision and guidance.^ For example : The defendant, a postmaster, appoints with notice an incompetent person as a clerk to the government in his post-offlce ; and, by reason of the negligence or incompetence of such person, a letter containing Si 00 belonging to the plaintiff is lost. The defendant is liable.^ Officers of the courts are liable for the injurious conpe- quences of such official acts of their own or of their ser- vants as are attributable to want of the care of prudent men in the same situation.^ For example : The defend- 1 1 Black. Com. 220. 2 Wharton, Negligence, § 286 ; Ashby v. White, L