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 . . . .
<f,S
58
V. Hamilton . . .
• •
255
J.
Jackson v. Adams .
V. Armstrong .
V. Smithson
James v. Campbell
V. Hodsden . .
Jarmain i\ Hooper
Jarnei;an r. Fleming
Javnes v. Javnes .
114
09
300
155
61
181
143
117, 199
Jefferies v. Great Western Ry.
Co 234
Jeffrey v. Bigelow . . . . 35, OG
PAGE
Jcfts V. York 52, 04, 05
Jekyll V. Moore 131
.Fenings v. Florence .... 101
Jennings v. Paine 1.30
.Jcnoiire v. Delmege .... 142
Joannes v. Bennett . . 142, 143
Johansen v. Uavies .... 340
Johnson v. Brown i;jO
V. Chambers 94
r. King 83
r. Smith 52
V. Tompkins 107
V. Waliower 75
V. Weedman 244
V. West Chester Ry. Co. . 373
Johnson's Estate 339
Joliffe V. Baker 63
Jones I'. Andover 371
I'. Festiniog Ry. Co. . . 309
V. Pearce 259
V. Read 276
V. Williams 213
Jordan v. Alabama R. Co. . . 29
V. Pickett 61
Justice V. Wendell .... 249
K.
Kaare v. Troy Steel Co.
362, 363
Kain v. Old
. . 51
Kauffman v. Giesemer .
291
Keene v. Kimball . . .
202
Kelsev v. Murphy . .
77
Kendall v. Stone . .
80
Kennard v. Willmore . .
344
Kennedy v. INIcKav . .
35
Kevwacker v. Cleveland
R.
Co
303
Kiefer i'. Rogers . .
09
Kilgore v. Jordan . .
27
Kimball v. Harman .
107
King r. Fagle Mills
49
King r. Kline . . . .
229
Kintzing i\ McElrath
53
Kniglit V. Gibbs . .
141
V. Legh ....
. 211
V. (Juarles . . .
. .331
Kolm I'. .McNulta . .
36
3,364
XXIV
CASES CITED.
L.
PAGE
Lafayette R. Co. v. Huffman . 382
Laidlow v. Organ .... 53, 54
Lake v. King 133
Lamb v. Stone 77
Laniberton v. Dunham ... 63
Lambton v. Mellish .... 100
Lamm v. Port Deposit Assoc. . 63
Lamphier v. Phipos . . 329, 332
Lancashire Wagon Co. v. Fitz-
hugh 242
Lancester Co. Bank v. Smith . 324
Landon v. Emmons .... 234
Lane v. Boston & A. R. Co. 323, 324
Langridge v. Levy 378
Larey v. Taliafferro .... 52
Lattimore v. Simmons ... 45
Laughton v. Bishop of Sodor . 139
Laumer v. Francis 291
Law V. Grant 53
Lawrence v. Obee 220
Lea V. White 130
Leavitt v. Fletcher 68
Lee V. Jones 55
V. Pearce 35
V. Riley 303
Leland v. Tousey 207
Le Li^vre v. Gould ... 63, 355
Lemaitre v. Davis 274
Lempriere v. Lange .... 28
Leverick v. Meigs . . . 335, 336
Lewis V. Clement 135
V. Levy 135, 136
V, Jones 59
V. Terry 44
Leyman v. Latimer .... 120
Liford's Case . . . 217, 218, 219
Lineoski v. Susquehanna Coal
Co. ... , 361
Linington v. Strong .... 69
Lister v. Lane 350
V. Perryman . S2, 90, 97, 187
Little V. Hackett 381
Livingston v. McDonald . 285, 292
Lobdell V. Baker 54
Lockhart v. Lichtenthaler . . 381
London Banking Co. r. London
Bank 211
PAGE
Longmeid v. Holliday . . . 378
Loomis V. Terry. . . 302, 345, 370
Lord V. Dall 5
V. Price 232
Lord Advocate v. Blantyre . . 213
Losee v. Buchanan . . . 306, 310
Louisville Canal Co. v. Murphy 383
Lovejoy v. Murray .... 245
Lumby v. AUday 121
Lumley v. Gye . 108, 109, 111, 199
Lunn V. Shermer 53
Luther v. Wiunisiramet Co. . 285
Lynch v. Kniglit . . . 117, 199
V. Metropolitan Ry. Co. . 32
V. Murdin 383
V. Smith 383, 385
Lysneyt'. Selby 58
Lyttle V. Bird 68
M.
McAleer v. Horsey . .
McAroy v. Wright
McAvoy V, Medina
McClellan v. Scott . .
Mc(Jombie v. Davies .
McCormick v. Seymour
V. Talcott . . .
McDanield v. Baca
McDonald v. Mass. Hospital
V. Snelling ....
Macdougall v. Knight
McFadden v. Robinson .
Macfadzen v, Olivant . .
McGiloray v. West End St.
McGuire v. Grant . . .
Machin v. Geortner . .
Mackay v. Commercial Bank
McKinney v. Smith .
McLaughlin v. Cowley
McLeod V. Jones . .
McQueen v. Fulgham 116, 117, 118
Madras Rv. Co. v. Zemindar,
The . " 309
. 365, 366
. 52, 63, 65
. . 18, 80
. . 62, 70
%
58, 61
74
235
69
238
254
254
80
29
42
135
58
228
32
271
213
35
285
130
223
IMahoney v. Dore .
Mahurin v. Harding
Mnlaeliy v. .So]ier .
Mallory v. Leach
CASES CITED.
XXV
PAOE
Mangan v. Atterton .... 382
Mauiey v. Field 1U2
Mauuhig V. Wells 320
Man veil v. Thompson . . . 198
Marble r. Cliapiu 115
Marsh v. liilliiigs 80
V. Elsworth 130
Marshall's Case . . . . . 37!J
Marshall v. Cohen 308
V. Davis 249
V. York & Newcastle Ry.
Co 379
Marshalsea, The 177
Martin v. Jordan .... 58, 69
V. Payne 192
V. Riddle 291
V. Van Schaiek .... 33
Martindale v. Harris .... 70
Mason v. Hill 282
Mathews v. Hursell .... 211
Matthews v. Beach .... 13G
Matts V. Hawkins 277
Maund i'. Monmouthshire Canal
Co 28
Maxwell v. Palmerston . . . 230
May V. Biirdett 300
V. Western Union Tel. Co. 65,
334
Mayhew r. Forrester .... 337
V. Herrick 247
Mavnard v. Boston & M. R. Co. 349
Mead V. Bun G9
ISIedbury v. Watson .... 58
Mehrhoff v. Mehrhoff .... 199
Mellin v. White .... 80, 81
Mellish V. Matteux .... 73
Mellor V. Merchants' Manuf. Co. 366
V. Watkins 223
Membury v. Great Western Ry.
Co 313
Menvil'9 Case 218
Meiivale v. Carson . . 129, 144, 145
Merrifield i'. Worcester 284, 292,
293
Merritt v. Claghorn .... 320
V. Robinson 53
Mersey Docks v. Gibbs 29, 342, 343
Messer v. Smith 68
Metcalf V. Hess 320
PAGE
Metropolitan Bank v. Poo ley 84, 91
102
Meux V. Great Eastern Ry. Co. 378
Meyer v. Sehleichler .... 119
Mikado Case, The 262
Milan, The 381
Milhau V. Sharp 296
Millen v. Fawdry 224
Miller v. Foley 169
V. Hancock 349
V. Parish 119
V. Proctor .... 338, 340
Millington i;. Fox 79
Mills V. Armstrong .... 381
Milwaukee Ry. Co. v. Arms . 323
Miner v. Gilmour . . . 282, 284
Mitchell V. Crasweller ... 33
V. Jenkins 98
V. Rochester Ry. Co. . . 373
Mizner v. Kussell .... 54, 62
Mogul Steamship Co. v. Mc-
Gregor . . 12, 29, 104-108, 127
Mohney v. Cook 371
Moorcock, The 354
Moore v. Meagher 117
V. Mourgue 337
V. Robinson 211
V. AVestervelt 344
Morasse v. Brochu 121
Monhead v. Fades 58
Moreland v. Atchison .... 60
IMore}' V. Lockwood .... 255
Morgan v. Booth 130
V. Marquis 247
V. Ruvey 320
V. Skiddy 63, 66
V. Varick 218
Morison v. Salmon .... 79
Morley Machine Co. v. Lancas-
ter 254, 256
Morris v. Scott 100
Morrow r. Wheeler & W. M'f g
Co 84
Mortin v. Shoppee 152
Morton v. Gloster 372
Mott V. Dawson 145
Mowry v. Whitnej' .... 252
Munster v. Lamb . . 129, 130, 132
Murchie v. Black 272
XXVI
CASES CITED.
PAGE
Murgoo V. Cogswell .... 230
Murphy V. American Eubber
Co 3fi0
V. Deane . . . 367, 368, 374
Murray v. Currie 37
r.'Hall 215
Mvers V. Dodd 303
Nash V. Mosher 249
National Telephone Co. ?'. Baker 306
Nelson v. Liverpool Brewery
Co ".350
Nevill V. Fine Arts Ins. Co. . 12'J
Newcomb v. Boston Protective
Department . . 39, 368, 370, 371
New England Trust Co. v. Ea-
ton 340
Newmann v. Sylvester ... 65
New World, The .... 34, 323
New York R. Co. v. Schuyler . 78
New York & W. Tel. Co. v.
Drvburg 334
Nichols V. Marsland .... 307
Nicholson v. Coghill ... 92, 94
Nitroglycerine Case .... 155
Nixon V. Jenkins 248
Nolan V. Traber 115
Norcross v. Norcross .... 320
Norris v. Litchfield .... 370
Noi'tliampton's Case .... 143
Northeastern Ry. Co. v. Wanless 373
North Penn. R.' Co. v. Mahoney 383
Noyes v. Lovering 65
o.
Cakes v. Spaulding .... 300
Odiorne v. Winkley .... 254
O'Brien v. Barry .... 83, 86
O'Donoghue v. Hussej' . . . 139
O'JMale}' V. South Boston Gas-
light Co. . . 357, 302, 363, 365
O'Neal V. Chicago Ry. Co. . . 363
O'Reilly v. Morse . . 252, 254, 255
O'Uiley V. McCheeney ... 292
PAGE
Ogburn v. Connor 291
Olnistead v. Partridge ... 95
Olmsted v. Miller 117
Onslow V. Home 123
Oppenheim v. White Lion Hotel
Co 320, 321
Osborn v. Gillett 164
Osborne v. Lpndon Rj\ Co. . . 366
Osgood V. Lynn R. Co. . . . 293
Outcalt V. Burling 2;)3
Overend j;. Gibb . . . .340,341
Overton v. Freeman .... 37
Oviatt V. Sage 247
Owen V. Heuman 295
Paddock v. Strobridge
... 54
Page V. Parker . . .
. . 58,104
V. Robinson . .
... 212
V. State . . .
... 158
Palmer v. Concord . .
... 145
Pangburn v. Bull . .
... 97
Pantou V. Williams
. . 89, 97
Pappa V. Rose . . .
. . 344, 345
Parham v. Randolph .
... 69
Park r. Hammond .
... 337
Parker v. Farley . .
. 84, 87, 91
V. Ha worth . . .
... 258
r. Huntington .
... 104
... 249
Parton v. Prang . .
... 262
Partridge v. Gilbert .
... 277
V. Scott . . .
. . . 272
Pasley v. Freeman 50
, 59, 74, 75, 76
Pater v. Baker . . .
... 80
Patterson v. Kirkland
... 53
Pattison V. Jones .
140, 141, 142
Pavson V. Caswell .
... 86
Peake v. Oldham .
. ... 114
Peard v. Jones . .
... 122
Pearse v, Coker . .
... 217
Pease v. Chaytor .
... 178
Peek V. Gurnej' . .
53, 62, 77, 78
Penn v. Preston . .
. . . 213
Pennsylvania R. Co. v.
Van diver 33
Penruddock's Case
. . . 224, 225
People V. Hubbard
... 222
CASES CITED.
XXVll
People's Bank v. Bogart
Perceval v. Pliipps .
Percy v. Millaudon
Perhara v. Coney .
Perry v. Pliipps . .
Pej-ton V. Lcindon .
Phillips JJ. Hunifray
V. Naylor . .
Pliilp V. Squire . .
Pliilpott V. Kelley .
Pickard v. Sears
Pickering v. Dowson
Piper V. Manny . .
Pippet V. Hearn . .
Pitt V. Donovan
V. Petway . .
Pitts V. Wemple . .
Pittsburgh R. Co, v. Dev
V. Vining . .
Pixlov V. Clark . .
Place V. Minster
Plavford v. United
Tel. Co. ...
Polhill V. Walter .
Pollard r. Lyon . .
V. Photographic Co.
Polley V. Lenox Iron Works
Pool V. Lewis . .
Popplewell V. Pierce
Post V. Union Bank
Powell V. Evans
Powers V. New York R. Co.
11. Powers .
Pratt V. Gardiner .
Presby c. Parker .
Prescott V. 'Wright .
Proctor V. Webster .
Pursell V. Horn . .
Puterbaugh v. Reasor
Putnam v. Payne .
Pym V. Great Northern Ry. Co
Ki
PAGE
. 53
2G3, 2uy
. 341
. 244
. 231)
4G, 103
. 101
. 201
. 242
243, 244
. 73
. 320
. 100
. 81
247, 248
. 255
nney SfiO
382
310
107
gdoni
333, 334
75, 76
. 118
. 127
. 245
. 284
. 300
, 241
. 339
. 3G4
. 205
. 344
. 35
. 53
. 133
. 154
. 381
. 230
163
Q.
Quartz Hill Mining Co. v. Eyre 83,
99
R.
PAGE
Hadcliffe v. Brooklyn . . . 271
liadlcy V. London & Northwest-
ern Ry. Co 374
Ragan v. Toledo R. Co. . . . 363
Railroad Co. v. Houston . . . 319
Railway v. Shields 358
Ramsey v. Arrott 89
Randall v. Trimen .... 52, 65
Rapier i: London Tramways Co. 287,
294
Rap'^on V. Cubitt 37
Ratcliffe v. Evans . . .78, 81, 111
Ravenga v. Mackintosh ... 95
Rawstron v. Taylur .... 285
Raymond v. Andrews .... 207
Rayner v. Mitchell .... 33
Rea V. Tucker 204
Read v. Edwards 303
Reading's Case 214
Reading V. Royston .... 208
Reddaway v. Banliam .... 78
V. Bentham Hempspinning
Co 79, 261
Reddie v. Scoolt 198
Redgrave v. Hurd ... . 63, 69
Reese Mining Co. v. Smith . . 63
Hegina v. Ashwell 211
V. Clarke 197
V. Cotesworth 154
V. Duckworth 150
V. James 150
V. Saddler's Co 70
V. St. George 150
V. Veley 140
Rex V. Abingdon 132
V. Burdett 127
V. Creevey ....... 132
Reynell v. Sprye .... 61, 69
Revnokls r. Kennedj' . ... 93
Rhode V. Alley 55, 09
V. Annis 09
liice V. Albee 109
V. Coolidge 130
V. King Philip Mills . . 359
Rich V. Pierpont 332
Richards y. Jenkins . . .278,280
V. Rose 275
Richardson v. Sjivester ... 77
XXVIU
CASES CITED.
Richart v. Scott . .
Riley v. Home . .
Rist V. Faux . . ,
Ritche}' V. West
Roberts v. Conuellj'
V. Smith • .
V. Wyatt . .
Robinson v. Glass .
V. May . . .
Rockwell V. Proctor
Rogers v. Nowill .
V. Arnold . .
Rohan v. Sawia
Root V. King . .
Rose V. Miles . .
Ross V. Fedden . .
Rowbothani v. Wilson
Rowley v. Kice . .
Roworth V. Wilkes
Rush V. Cavenaugh
Russell V. Tillotson
Rutherford v. Williams
Rylands v. Fletcher 291,
S.
386
295
30G,
FAOE
272
325
194
333
197
358
234
70
138
320
79
234
, 187
145
, 297
308
270
226
265
122
372
76
308,
310
Co.
289,
V.
290,
281-i
Safford v. Grout
St. Helen's Smelting
Tipping . . .
Salem Rubber Co. v. Adams
Sampson v. Henry .
V. Hoddinott .
Sanborn v. Neilson
Sanke}- v. Alexander
Sans V. Joerris . .
Sargent v. . .
V. Gile . . .
Saunders v. Smith .
Savacool v. Houghton
Savage v. Walthew
Savil V. Roberts
Saw in v. Guild . .
Sayles v. Briggs
Schneider v. Heath
Schofield V. f^hicago. Milwau-
kee, cSc St. Taul Railroad . .
Schrieve v. Stokes
Schroyer v. Lj'nch
264,
98,
61
293
68
222
283
204
69
143
197
240
265
175
338
104
259
87
73
319
273
343
41
The
Schubert v. Clark .
Schunenian v. Palmer
SchuykiU V. Copley
Schwenk v. Naylor
Scott V. Ely . . .
V. Shepherd
V. Stanslield •
Scribner v. Beach .
Seaman v. Bigg . .
V, Netherclift .
Seaverw. Adams
Seelej' v. Brush . .
Seton V. Lafone . .
Severin v. Keppell .
Seward v. " Vera Cruz
Sharp V. Powell . .
Shaul V. Brown . .
Shaw V. Berry . .
Shay V. Thompson .
Sheckell v. Jackson
Sheehan v. Sturges
ShetfiU V. Van Deusen
Slielfer V. Gooding
Shelton V. Lake Shore Ry
Shergold v. HoUoway
Sherr3' v. Picken .
Shipley v. Fifty Associates
Shook V. Rankin . .
Shorland v. Govett
Sibley v. Aldrich . .
Simmons v. Lillystone
V. Mitchell . . .
Sims V. Eiland . . .
Sinclair v Eldred . .
Singer Machine Co. v.
Singleton v. Bolton
Six Carpenters' Case
227, 228
Slaughter v. Gerson .... 63
Sledge V. Scott 51, 63
Smith V. Ashley 126
V. Baker 314
V. Chadwick ... 55, 59, 76
V. Countryman 53
V. Higgins 138
V. Hughes 53
V. Konriik 307
V. Laud & House Corp. 2;J, 33,
56, 61, 69, 71, 72
Wi
PAGE
. 377
202, 203
. 70
. 69
. 170
376, 377
. 129
157-160
. 123
130, 140
. 199
. 283
52, 65
. 249
. 163
. 42
. 100
. 320
. 22
23, 137
. 157
. 115
. 129
222
. 174
. 249
306, 309
. 269
. 226
. 320
. 247
. 113
. 63
. 93
on 79
. . 79
222. 226.
Co
CASES CITED.
XXIX
PAGE
Smith V. London Docks Co. . 38, .'355
V. Midland Ky. Co. . . . 2'J5
V. O'Haia 285
V. Siionnan 45
V. Sniitli 119, 381
V. Southwestern Ry. Co. 42, 376
V. Stewart 120
V. Sydney 180
V. fett 217
V. Thackerah 273
V. Utley 33
Smith Manuf. Co. v. Sprague 259
Snow V. Allen 95
Solomon v. Vintners' Co. . . 275
Soniers r. Hicliards .... 58
Somner i\ Wilt .... 101, 238
South V. Denniston .... 197
Southcote V. Stanley .... 352
Southwest Improvement Co. v.
Andrew 358
Spangler v. Chapman .... 63
Sparhawk v. Union Ry. Co. . 295
Speed V. Holliugsworth ... 71
Spengler r. Davy 102
Springtield v. Harris .... 284
Standard Bank v. Stokes . . 276
Stanley v. Gaylord .... 249
V. MoGauran .... 69, 70
Stark V. Chitwood 80
Starr t;. Jackson 211
State V. Dixon 158
V. Taylor 15
Stebbins t'. Palmer . . . . 45, 46
Stedman i'. Smith 278
Steele v. Brannan 135
V. Southwick 125
Stephens v. Baird 243
V. Koonce 245
V. IMvers 152
V. Wilkins 174
Stevens v. Hartwell .... 143
V. Midland Ry. Co. . . . 98
V. Sampson 134
Stewart v. Cole .... 102, 238
V. Ripon 42
Stitzell V. Reynolds .... 114
Stockdale v. Hansard .... 132
Stockley v. Hornidge .... 106
Stone r. Stevens 100
PAOB
Storey v. Ashton 33
V. Wallace 130
Story V. Holcomb 208
Stovve V. Thomas . . . 208. 209
Strauss v. Francis 144
Strickland v. Parker .... 247
Stroebel v. Whitney .... 114
Strong V. Strong 70
Stroyan v. Knowles .... 273
Suggs i». Anderson . . . . 157
Sullivan v. Union Pacific R.
Co 164
Sutton V. Huffman 194
V. Johnstone 93
V. Wauwatosa . . . 371, 373
Swain v. Mizner 222
V. Stafford 90, 91
Sweeney v. Baker 145
Sweeny v. Old Colony R. Co. 346,
350-352, 373
Sweet V. Benning 264
V. Sweet 204
V. Cutts 12, 286
Swift V. Winterbotham ... 77
Sykes v. Sykes 79
Taft V. New York R. Co. . .
Talroadge v. Scudder ....
Tarlton v. Fisher . . . 173,
Tarver v. State
Taylor v. Manchester Ry. Co.
Tebbutt V. Bristol & E. Ry. Co.
Telephone Cases
Temjierton v. Russell 107, 109,
Terry v. Hutchinson ....
Terwilliger v. Wands 18, 116,
Tharsis Sulphur Co. v. Loftus
Thickstun v. Howard
Thomas v. Churton
V. Quarterniaine
I". Winchester .
Thompson v. Rose .
V. Shackell . .
Thorley r. Kerry .
Thorogood v. Bryan
44,
349
249
175
151
163,
378
356
252
110
193
117
344
320
131
.360
377
250
144
125
381
XXX
CASES CITED.
Thorogood v. Robinson
Thrussell v. Handj'side
Thurston v. flancock
Tickell V. Read . .
Tierney v. Frazier .
Tilghman v. Proctor
Tillett V. Ward . .
Timm v. Bear . .
Timothy v. Simpson
Todd v' Flight . .
Tolle V. Correth . .
Tompkins v. Halleck
Tootle V. Clifton .
Toy V. United States
Co
Trade Mark Cases .
Trudo V. Anderson .
True V. International Tel
Trusler r. Murray .
Tuberville v. Savage
Tuck V. Downing .
Tuff V. Warman
Tullidge V. Wade .
Tunstall v. Christian
Turner v. Ambler .
V. Harvey . .
V. Sullivan . .
Turpin v. Remy . .
Twaddle's Appeal .
Tyler v. Boston . .
FAOE
. . 247
. . 355
271, 272
. . 160
. . 177
, . 252
. . 304
. . 284
. . 189
. . 350
. . 284
. . 202
. . 291
Cartridge
357, 358
. . 262
Co
249
333
. 266
. 151
. G7
372, 374
. 228
272, 274
89, 97
53, 54
. 135
. 100
. 338
. 257
u.
Ullee, In re 197
Underbill ». Welton . . 114,118
Upton V. Tribiicock .... 59
Usill V. Hales 136
V.
Van Arm an v. Ay res .
Van Brunt v. Schenck
Vance v. Erie Ry. Co.
Vandenburgb ?;. Truax
Vanderbilt v. Mathis .
Van Epps v. Harrison
. . 109
. . 217
. 29, 33
. . 42
04, 97, 98
. . 58
PAGE
Van Wyck v. Aspinwall . . . 139
Vaugha'n v. Taff Vale Ry. Co. 308,
309
Venard v. Cross 299
Vernon v. Keys 68
Victorian Rys. Comm'rs v. Coul-
tas 19, 116, 373
Vincent v. Cornell 240
V. Stinehour . . , 155, 156
w.
Wait V. Richardson . . . .
Waite V. Northeastern Ry. Co.
216
382,
384
271
155
Wakefield v. Buccleuch . .
Wakeman v. Robinson . .
Walker v. British Guarantee
Assoc 338
V. Cronin . . 12, 108-111, 162
R
133
Walsham v. Stainton
Walter v. Sample .
V. Selfe . . .
Walton V. Potter
Ward c. Clark . .
Warner v. Miller .
Warren v. Boston .
V. Boston & M
Wason, Ex parte
V. Walter
Wa*erbury Brass Co
Watkin v'. Hall . .
Watson V. Gray
V. McCarthy .
Weaver v. Eureka Lali
V. Ward . .
Webb V. Beavan
V. Hill . .
Webber v. Closson
Weber v. Weber
Webster v. Bailey
V. Hudson River R.
Weedon v. Timbrell
Weld V. Oliver . .
Welfare v. London
Co
Won man v. Ash
Weunhak v. Morgan
&
... 106
... 06
... 294
... 254
... . 114
. 117, 109
... 19
. 116, 373
. . . 132
135, 137, 140
V. Miller 255
143
276
121
285
155
113, 118
. 03, 94
. 303
60
o
e Co
Co.
203,
B. Ry
381
201
247
352
115
115
CASES CITED.
XXXI
PAGE
Wesson v. Washburn Iron Co. 2!tG,
297
West V. Nibbs 227
V. Wright 69
Western Bank v. Addie . 35, 66, 70
Western Union Tel. Co. v. Ca-
rew 333, 33-1
Westlake v. Westlake ... 199
West London Bank v. Ketson . 60
Weston V Arnold 276
Whallev V. Lancashire Ry. Co. 291
Wlieatlev v- Chrisman . 282, 292
Wheatly v. Harris 229
Wheaton v. Peters . , . 263, 264
Wheelden v. Lowell .... 222
Wheldon v. Chappel .... 372
Whistler v. Ruskin .... 144
White V. Brooks 247
V. Carroll 130
V. Deniary 250
V. Duggan 19
V. Garden 239
V. Madison .... 52, 64, 65
V. Sawyer 35
V. Witteman Lithographic
Co 363
Whitehead v. Greetham . . . 331
Whiting V. Hill 67
Whitman Mining Co. v. Tritle 249
Whitney v. Allaire .... 70
V. Boardman 73
V. Peckbam 91
Whittemore v. Cutter . . 258, 259
Wieland v. Kobick .... 27
Wiggins V. Hathaway . . . 343
Wilder V. De Cou . ' . . . . 49
Wilkins v. Aiken 265
V. Earle 320
Wilkinson v. Fairrie .... 356
V. Haygarth 215
V. Proud 278
Willans v. Taylor 94
Williams v. Chadbourne . . . 247
V. Esling 220
V. Hill 5, 117
V. Norwood 93
V. Smith 180, 181
FAOB
Williams v. Spurr 53
Wilniarth v. Burt 177
Wilson, Kx parte 118
V. Brett 323
V. Goit 18,116
v. New Bedford . . . 286, 310
I". Newberry 308
V. Read 247
Wilton V. Webster .... 203, 205
Winsmore v. Greenbank . . 201, 202
Winter v. Henn 195
Winterbottom v. Derbe • • . 298
V.Wright 878
Wolf V. Western Union Tel. Co. 334
Wolfe V. Door 343
Wood V. Clapp 332
V. Cooper 336
V. Loadbitter 221
V. Waud 283, 284
Woodman v. Hubbard . . . 372
Woodward v. Morrison . . . 257
Woolf V. Chalker .... 229, 346
Worcester v. Jlarchant . . . 197
Wright V. Court 171
V. Maiden R. Co. . . 382, 383
Wyattr. Buell 130
Wyndham v. Wycombe . . . 204
Y.
Yale V. Saunders 245
Yarmouth v. France .... 357
Yates V. Lansing . . » . . 344
York V. Pease 134
York & North Midland Ry. Co.
V. Hudson 341
Young v. Miller 119
V. Spencer 212
z.
Zeliff V. Jennings 119
Zinn V. Rice 102
ZcBbisch V. Tarbell .... 355
GENEKAL DOCTRmE.
GENERAL DOCTRINE.
§ 1. Of Right and Privilege: Domain of Tort.
The sphere of action of a citizen, in his relation to
the law, is found in his rights, privileges in the sense of
permissions, and duties. What a citizen may lawfully
do is determined by his legal rights and privileges;
what he must do is determined by his legal duties. But
these duties only correspond to the rights and privileges
of others; hence his own rights and privileges, limited
as they are by like rights and privileges in others, may
be taken virtually to express the extent of his sphere of
action as a citizen under law.
It is of first importance, then, to get a clear conception
of the meaning of right and privilege, as these terms are
employed in the foregoing paragraph. The general dis-
tinction is this: In rights lie one's positive powers,^ as
a possession in hand with which to set the law in motion
against one's neighbor upon occasion; in other words,
rights furnish the ground upon which one man may have
an action against another. Privilege may indeed include
right ; but it very often imports something short of posi-
tive powers. It is then purely negative in character,
not furnishing ground for suit. It still imports pro-
tection, but protection from an action by, not by way
^ The rights conferred upon corporations are indeed commonly
called powers. Rights often appear under the name of powers.
4 LAW OF TORTS.
of an action against, the party who has conferred it;
that is, it imports permission only. Such is the gen-
eral distinction; but the matter must be put more
specifically.
It should be observed at the outset that the term
'right' is occasionally used in law books (as well as in
popular speech) iu a broad and rather loose sense which
makes it include privilege. Thus, even iu the use of
legal language, a person will sometimes say that he had
a 'right' to be upon certain premises on a certain occa-
sion because he was allowed by the owner or by the law
to go there; the case not requiring, it may be, any exact
statement of the situation. The truth is, that the person
was there, not by right, not as having positive powers
under which he could sue the owner; he was there only
by permission,^ so that no suit could be brought against
him for being there. This use of the term 'right ' must
then be set aside as embraced under the term 'privilege,'
and the term 'right ' considered in its proper sense.
In its proper sense, as importing active powers, right,
apart perhaps from a class of cases to be spoken of later,
signifies the dominion or the authority of the will over
some object tangible or intangible. When an object is
not within the dominion or the authority of my will, then
(apart from the special cases) I have no right, in the
legal sense, to or over that object. I may have a right
in respect of it, as where I have a contract in virtue of
w^hich a house may sometime become mine, and for some
special purposes in equity I may be considered to have a
right over the house; but in the generally accepted and
proper sense of the word I have no legal right to or over
that. The house is not mine in whole or in part; my
* right ' is over the vendor only.
An object is within the dominion of my will, when I
1 Or ' license.'
GENERAL DOCTRINE. 6
have any control over it; it may or may not be in my
hands or within my reach; enough that there is nothing
to prevent my exercising control over it at will, so far
as any interference of others is concerned. An object is
within the authority, as distinguished from the dominion,
of my will when I am wrongfully deprived of my dominion
over it withont losing title to it, as, for example, when
my horse is stolen or otherwise wrongfully taken from
my control.
In certain cases the judges have fonnd it desirable to
extend the meaning of the term 'right' beyond its more
obvious and unstudied sense as above given; they have
declared the existence of a small class of rights over
objects not perhaps fully within the dominion or the
authority of one's will. Of this class are rights to the
enjoyment of a gratuity, such as the benefit of a life
insurance policy kept up on one's own life for one's
sister, at the sole expense of the insured,^ or the benefit
of another's gratuitous hospitality.'^ Of the same class
are rights to carry on to completion negotiations in trade
or commerce, or out of trade or commerce, as the right
to carry out unhindered negotiations for the sale of one's
laud,^ and the right to enter freely into contracts with
whomsoever one will.* And of the same class are rights
to carry out a lawful purpose, already set on foot, which
in the ordinary course of things would plainly lead to
some benefit or advantage, such as the right to complete
the steps, already begun according to law, for the attach-
ment of property. There may be other instances of legal
rights of like or other special nature, but the foregoing
are the ones of most importance.
These special cases are explainable as resting upon
1 Lord V. Dall, 12 Mass. 115.
2 Williams v. Hill, 19 Wend. 305.
8 Post, chapter iv, * Id.
6 LAW OF TORTS.
sufficient grounds, even if they are not to be deemed as
relating to objects virtually within the authority of the
will. Of the first of them, indeed, it is fair to say that
towards one interfering, without just cause or excuse,
in the enjoyment of a bounty by another, the bounty,
as it is being received, is within the dominion of the
will of the person receiving it, and towards the same
person the continuance of the bounty, so far as it is
likely to continue if unhindered, is within the authority
of his will. And in regard to the second and third of
the cases it is plain that the State could not endure, or
at any rate could not work out its mission fully of
affording equal rights to all citizens, if negotiations for
barter or if the desire to enter into contracts could not
be carried out unhindered by conduct for which there is
no just cause or excuse. Plainly there would be no
equality of rights except on the footing of the law as
the judges have found it. On the whole it appears rea-
sonable to say, of the whole of this special class of
cases, that the wrong consists in unjustifiable interfer-
ence with the natural and proper exercise of the will;
that is, that such exercise of the will, within limits as
" yet not well defined, falls within the technical designa-
tion of legal right.
An intangible object may be within the dominion or
the authority of the will quite as well as a tangible ob-
ject. It is in no mere conventional or popular sense of
the word that one is said to have a 'right,' for example,
to a good name; my reputation is as much within the
control of my wnll as is my house; I may maintain it to
the last; I may barter it if I wnll. Nothing is more
familiar to men of business than the sale of one's good-
will; he who takes away my reputation without just
cause or excuse invades the domain of my will.
GENERAL DOCTRINE.
What rights are within the domain of the law of torts?
Rights are either of substantive or of procedural law.
With procedural rights we are not concerned; this book
treats only of substantive law, not of the machinery by
which the law is enforced. Rights of substantive law
(and indeed of procedural law, but not on the same
lines), in accordance with a division and nomenclature
adopted from the Roman law, are in rem or in personam.
Rights in rem avail against all the world; rights in
personam, only against certain defined or ascertainable
persons. The typical example of a right in rem is a
right of property; propriore vigore, that maybe enforced
against any one and every one whenever occasion arises.
The typical example of a right in personam is a right
of contract ; that right — the contract right — can be
enforced only between the parties to it and their succes-
sors. But just as one has the right to enter into con-
tracts freely, so after a contract has been made each of
the parties has a corresponding right that others shall
not hinder the performance of it without just cause or
excuse. It results that a right in personam tnay gen-
erate a (quasi?) right in rem. But the product, it should
be noticed, is a very different thing from that which
produces it.
The law of torts relates both to rights in rem and
to rights in personam, though most torts are breaches
of rights availing against all the world, that is, are
breaches of rights in rem.
Another way of putting the Roman division of rights
will be found helpful, as serving to explain the origin
as well as the nature of rights; and that is by saying
that rights are paramount or consensual; the first kind
designating those which exist independently of the will
8 LAW OF TORTS.
of individuals ; the second, those which come into exist-
ence by consent actual or presumptive.
Both classes alike, whichever way designated, create
law, in the ver}' proper sense of that which binds (lex,
legare) men together ; for law consists merel}' in those
relations between citizens which are deemed necessary
or helpful to bind citizens together into the organism
called the State, and to find those relations is to find
the law. Hence both kinds of right are paramount in a
sense ; but the one kind exists originally and of its own
eflScac}' and is universal, while the other is brought into
existence, typicall}', b}' the agreement of two or more
persona, and, generalh' speaking, governs them alone.
Still, even with regard to the latter kind of rights, the
judges have found it desirable to hold that the relations
of the parties to the thing agreed upon are not in all re-
spects consensual, in the sense that there can be no right
or duty paramount to the will of the parties in the sub-
ject of agreement, a matter to which further attention
will be called later on. The law of torts deals with both
classes of rights ; with the first class generally, with the
second so far as the rights are treated as paramount to
the will of the parties. In a word, the domain of the
law of torts, so far as rights are concerned, lies in rights
paramount, and hence tort, as a ground of action, con-
sists in the breach of a right paramount.
All this is putting the matter in the light of positive
jurisprudence, that is, as bearing upon a system of law
fully developed and established ; but though true to the
state of the law as it is, it does not represent the process
by which the result has been reached. As a matter of
fact the law of torts, as the word 'tort' itself^ implies,
1 Latin, torquere, tortum ; to twist, a thing twisted, distorted, hence
a wrong, — through Anglo-French ; at first a colorless word.
GENERAL DOCTRINE. 9
has not been worked out directly on the side of rights,
and not, in terms, even on the side of the violation of
rights, but on the side of duties, the counterpart or cor-
relativv^ of rights; that is, the law of torts has been
worked out in terms of breach of duty. It comes to
the same thing indeed; A's rights furnish the measure
of B's duties, and breach of dutj', as actionable tort,
consists in violation of right paramount. But the law
should be set forth and its terms defined as the law has
been worked out. How then should the term 'tort ' be
defined as a growth and product of the English law?
§ 2. Definition of Tort: Analysis of Definition.
The definition now sought for is something more con-
crete than anything yet stated; it must stand to what
has gone before as species to genus, for a crime as well
as a tort consists in the violation of a right paramount,
and though it is easy to say that a crime leads to punish-
ment, while a tort leads to damages, still it will be nec-
essary, if possible, to frame a definition of tort in full,
and with reference to the actual course of the law.
It must not be supposed that a definition of the kind
can be framed which of itself will be sufficient to explain
the term 'tort' fully to one first approaching the subject.
Indeed, no definition, helped out even by labored expla-
nation, can convey a full conception of the meaning of
such an expression as 'the law of torts;' nothing short
of careful study of the specific torts of the law will suf-
fice. The difficulty grows out of the fact that there is
no such thing as a typical example, an actual tort, that
is to say, which contains all the elements entering into
every other. One is as perfect as another; and each of
the torts of the law differs, not merely in point of fact
from the rest, but in its legal constituents as well. For-
10 LAW OF TORTS.
tunately, however, we have seen that all torts contain a
common element; and that must of course furnish the
basis of a definition. That element is breach of duty
paramount, in other words breach of duty fixed by muni-
cipal law. Accordingly a tort may be said to be a
breach of duty fixed by viunicijjal law for which a suit
for damages can be Tnaiiitained.^
Each of the parts of the definition, however, needs
explanation; to which end an analysis of the definition
will be helpful.
Consider then in the first place the phrase ' breach of
duty.' What does that mean? The general answer
plainly is, it means the invasion of a legal right, with-
out just cause or excuse; there can be no tort where, for
that which was done or omitted, there was just cause or
excuse. But A does not learn what his duty to B is by
being told that he must not invade B's rights, though he
understand the meaning of rights; he has still to learn
in what A's rights, as matter of fact, consist. What
then is meant by duty? Something surely which one can
perform ; it must therefore spring from observable facts,
suggesting danger, and harm as probable or in natural
course. If danger is not observable in this sense, by a
man of fair intelligence, or, as he is often called in the
law books, by the average man, he is under no duty in
the case; if it is so observable, a duty ordinarily arises.
When A is situated towards B so as to be able to see
that harm is likely to come upon B by conduct of him-
self (A) for which there is no just cause or excuse,'^ A
understands B's rights in the concrete case, with one
exception, and he must govern himself accordingly.
^ A crime may correspondingly be defined to be a breach of duty
fixed by municipal law for which the offender may be punished by
imprisonment, fine, or forfeiture.
2 Infra, p. 12, note 2.
GENERAL DOCTRINE. 11
Duty is here generalized in its broadest terms, for all
kinds of tort except malicious prosecution.^ To attempt
specific statement, by undertaking to say what kind of
conduct one should observe, or refrain from, would be
vain. Duty in the law of torts is of varying kinds, and
there is no specifiic factor common to these various
phases, whether motive, intention, or manifestation;
what would constitute specific duty in one case would
not constitute it in another. Still the various kinds of
duty involved in the different torts are capable of being
grouped into some three classes, upon an instructive
basis. It will be convenient to state these in terms of
'breach of duty,' as in the definition.
In one of these classes the breach of duty is stated in
terms apparently significant of an actively guilty state of
mind. This phase of the breach of duty may be mani-
fested in either of two forms; in one, the breach consists
in the doing an act fraudulently, in the other, in doing
it maliciously. And without the facts upon which the
conception of fraud or malice is predicated, there is no
redress in damages; that is, there is no tort.
It should be said, however, and the fact should be
well observed, that the legal way of stating a conclusion
from facts is here and elsewhere often stronger than the
facts in themselves would seem to justify. The law
looks much to manifestations, and then, it may be,
declares that they show fraud, or malice, or negligence,
and will hear no denial while the particular facts stand.
In other words, the law often makes use of terms in a
technical sense, that is, in a sense more or less different
from that in which they are used in ordinary speech.
The law has a dictionary of its own.
Subject to this observation, fraud or malice must then
be said to be an element of the right of action in the
1 This tort reguires want of cause and malice. Chapter ii.
12 LAW OF TORTS.
first class of cases. But it may be observed that, while
the law of torts presents a clear conception of fraud, it
has not determined, with precision, what constitutes
malice.-' As yet it is only feeling its way, but in the
direction of treating certain violations of right, — of
which interference with contract furnishes an example, —
for which there is no just cause or excuse, as malicious.^
The word 'malice' therefore is becoming a highly techni-
cal term. But it would not be right to suppose that add-
ing malice to every case of damage would create a right
of action;^ all that can be said, perhaps, is this, that
in cases in which conduct would be wrongful but for
some paramount privilege, proof of malice will over-
turn the privilege and give a right of action. Even
this, put as a general principle of tort, and not as a
special doctrine of defamation, must be taken as a cau-
tious and tentative statement. In this view malice will
overturn privilege, but not right.^
Fraud as a necessary element of liability in actions
1 See chapter ii. § 4. This, however, may be said, that malico
may be found either in the wrongful motive, or, in many cases, in
a wrongful act whatever the motive. Possibly it may have different
meanings in different connections, as it has in the criminal law.
2 See e. g. "Walker v. Cronin, 107 Mass. 555; Cases, 102; Mogul
Steamship Co. v. McGregor, 1892, A. C. 25; 23 Q. B. D. 612-61.5,
Bowen, L. J. ; Cases, 80, and note, 99. But there will be difficulty still
in determining what constitutes just cause or excuse. In the case of
propertij the general tendency of legal theory is towards considering
that one's right of user should not be fettered by requiring that it
should not be exercised maliciously. Frazier v. Brown, 12 Ohio St.
294; Cases, 360; Bradford v. Pickles, 1895, A. C. 587, affirming, 1895,
1 Ch. 145. That is, the right of user would ' excu.se ' a malicious use
of property. But see Swett v. Cutts, 50 N. H. 439 ; Cases, 376.
" See preceding note, as to property.
* See an article by Mr. Justice Holmes on Privilege, Malice, and
Intent, in Harvard Law Review, April, 1894. Using one's land is not
privilege, but right ; hence malice, under the proposition of the text, will
not make tlie user wrongful. As to privilege paramount, see § 3, post.
GENERAL DOCTRINE. 13
for tort is confined almost entirely to cases of misrepre-
sentation; malice is a necessary element in actions for
malicious prosecution, slander of title so-called/ and for
interfering with contract;^ it is also inseparable from
unlawful conspiracies. Malice, further, may become a
turning-point in actions for defamation, upon a defence
that the occasion of the publication made it presump-
tively lawful ; but its presence or absence is immaterial
to the right of action itself.^
Another step will bring the student to a class of cases
in which, though there is often a manifest intention on
the part of the defendant to do the very thing for which
he has been sued, the law ordinarily takes no account of
his motive or state of mind, supposed or actual, so far
as the right of action is concerned. The plaintiff's right
of redress no longer depends upon his showing, in any
way, that the defendant did the act in question from
wrongful motives, or, generally speaking, even inten-
tionally; and hence the want of such motives, or of
intention, is no defence. Nor indeed is negligence, or
the want of negligence, any necessary part of the case.
Here, then, is a class of cases in which the tort con-
sists in the breach of what may be called an absolute
duty; the act itself (in some cases it must have caused
damage) is unlawful and redressible as a tort. The
cases in which this is true are, speaking generally, cases
of violence apparently about to be committed,* or actu-
ally committed, upon one's person, ^ restraint of liberty,^
interferins; with the relation of master and servant with
1 This subject, however, belongs on the whole to fraud, as will be
seen in chapter i.
2 See chapter iv.
3 Actions for defamation (slander or libel) may thus be treated as
marking a transition from the first to the second phase of tort.
* Assault. ^ Battery,
s False imprisonment.
14 LAW OF TORTS.
notice thereof,^ interfering in one way or another with
the possession,^ ownership,' or enjoyment* of property,
and failing to keep safely dangerous animals and danger-
ous things ; and perhaps other cases.
One other phase of the breach of duty remains. From
regarding, first, a positive mental attitude of the defend-
ant, nominally at least; and secondly, disregarding the
existence or non-existence of such an attitude, the law,
thirdly, passes over to cases in which it regards, as au
essential fact, what at first looks like a negative mental
attitude. In the class of cases now reached, the law
takes account of the fact that the defendant has not
directed proper attention to danger attending some act
or omission of his, or, if he has, that he has not con-
ducted himself as he ought to have done in the situation.
He has failed, e. g., to exercise due care; and the fail-
ure, assuming damage to have followed, constitutes a
tort. This phase of the breach of duty is the domain of
negligence.^
The meaning of the first part of the definition is now,
it may be hoped, somewhat cleared up. The result may
1 E. g., enticing away or seducing a servant.
2 Trespass to lands or goods.
8 Conversion, ' trover ' in the old law, a wrong relating to goods.
* E. g., nuisance.
5 The law does not, in point of fact, stop to consider the actual state
of mind of the defendant as a ground of liability in actions for negli-
gence; the text only says that negligence 'at first looks like a nega-
tive mental attitude.' It is believed, however, and it will probably be
helpful to notice, that there is always in fact, to some extent, a nega-
tive or passive state of mind in cases of negligence ; the mind has not
been duly aroused to the danger, or if the defendant is sensible of the
situation, he has not duly exerted liis will to avoid harm. The very
etymology of 'negligence' is instructive, as far as it goes. 'Negle
gere ' = ' neclegere ; ' not to choose, not to exercise the particular men-
tal faculties. But the actual standard of tlie law is external. See
p. 315.
GENERAL DOCTRINE. 15
be shortly put thus: Looking to one class of cases, a
tort is (so far) a breach of duty committed by fraud or by
malice. Looking to a second class, a tort is a breach of
duty absolute, regardless of fraud, malice, intention, or
negligence. Looking to a third class, a tort is a breach
of duty committed by negligence. These divisions of
the breach of duty will be found to cover all cases of
tort in the law as it now exists.^
Further, it must be observed that, whatever the duty, it
must be a duty to the person complaining of the breach
of it. A may have been guilty of conduct which is a
breach of his duty to B, but not of his duty to C, how-
ever much C may have suffered by reason of it. Or it
may be a case in which A might have owed a duty to
C but for the fact that C has relieved him of it. And it
is permissible for one man to exempt another from his
duty to him in a particular case when the act or the
omission is not a violation of the criminal law, as in
the case of parties agreeing to fight, or when the party
exempting is not actually or virtually in the power of
the party to be exempted, as in the case of shipper and
carrier. 2 But that is privilege; of which later.
Consider in the next place that the duty in question
is 'fixed by municipal law.' This will serve to distin-
guish tort from contract; for in contract the duty is
commonly fixed by the parties, in the terms of the agree-
ment. But that is not always the case; it happens not
infrequently that the parties to a contract leave terms
1 It should be observed, however, that the forej^oing shows only the
general nature of duties paramount. For any special or modified
aspects the student must await tlie examination to be made of the
specific torts of the law. It could not be sliown here without going
over ground to be examined, necessarily, later.
2 Whether a common carrier can by contract exempt himself from
liability for negligence is not agreed, but in this country the weight of
authority is against any such power. Infra, pp. 21, 22, note. j
16 LAW OF TORTS.
to be supplied by the evidence of custom or by the law
itself. In such cases a violation of the term so to be
supplied might make a case of tort or of breach of con-
tract, at the election of the injured party; the duty being
fixed by law, or, what would come to much the same
thing, by custom, the duty would be paramount, and
hence the breach could be treated as a tort. Thus, if a
common carrier at Chicago were to contract with A to
deliver at New York wheat put into the carrier's hands,
and fail to do so, he would be presum.ptively liable to A,
as for a tort, or for breach of contract, at A's election.
Breach of an implied term of a contract may then, it
seems, be treated as constituting a tort whenever the
term is supplied by law or by custom; but that is not a
matter of much importance in ordinary cases; the ques-
tion is only one of the preferable remedy. Still, it is to
be remembered that in theory the law of torts overlaps
that of contract at the place indicated.
It is not to be inferred that, there cannot be a tort in
respect of the breach of a contract the terms of which
are all fully expressed. If the contract contain a false
warranty, it is broken in the breach of the warranty;
and breach of an affirmative warranty,^ fraudulently
made, may be treated as a tort. So too, what is of
much importance, a contract founded upon a false and
fraudulent representation, though not amounting to a
warranty, may be repudiated, and an action for tort
maintained; or the contract may be treated by the
injured party as binding, and an action for tort brought
to recover damages for the loss caused by getting him
into the contract. The explanation is, that the breach
of duty sued upon is not in reality a term, express or
implied, of the contract; the duty violated is fixed by
1 A warranty affirming a fact, as distinguished from one promising
something.
GENERAL DOCTRINE. 17
law, — a duty not to defraud. In this view, then, the
law of tort still further overlaps that of contract.^
Consider, now, the phrase in the definition 'a. suit for
damages.' Does this imply that the plaintiff must have
sustained some loss or detriment? Not necessarily.
Like 'fraud,' 'damage' is a technical term. There are
many cases in which the defendant would not be allowed
to show that the plaintiff had not suffered a pennyworth.
On the other hand, there are many cases in which the
plaintiff cannot recover judgment without proving that
the act or the omission of the defendant caused a loss to
him.
In regard to this, the law has laid down only positive
and possibly arbitrary rules; and that being the case,
about all that could be said towards making clear the
conception of tort in this particular would be to state
the cases in which loss must, and those in which it need
not, be proved. But at this stage of the subject it would
be a questionable service to enumerate the torts which
fall upon the one and the other side of the line of loss.
The student can, however, satisfy himself, if he will, by
referring to the ' Statement of duty ' at the head of the
several chapters of the text; where the presence or
absence of the word ' damage ' will give the desired
information. There the word is used in its ordinary
sense, 'loss,' or, as the law often expresses it, 'special
damage.'
It should be remembered that no damage, however
^ In regard to the case of warrantj-, if wliat is said supra is not
nnderstood, it sliould he observed tlmt warranty in itself, where it
consists in the affirmation of a fact, is a contract only in a peculiar
sense ; and in general it is only false warranties of that affirmative
kind that are treated as torts. As a statement of fact, a warranty is
naturally a representation: but the law turns it artificially into a
contract.
3
18 LAW OF TORTS.
great, can create a cause of action unless a legal right,
as already explained, has been infringed. That the act
in question was grossly immoral as well as harmful will
not be enough.^ Still it must not be forgotten that legal
right includes cases in which the right is in process of
formation at the time of the infraction, and cases in
which a person is at the time receiving a gratuit}'.*
Examples of the statement last made should be given
here and now, or its meaning may not be seen. The
following will, it is hoped, serve the purpose: A and B
are negotiating for the sale by the former to the latter
of a horse. By false and fraudulent representations
concerning the animal, C induces B to break off the
negotiations. A has, it seems, sustained damage, and
can maintain an action against C.^
If, however, the case is such that the plaintiff had
only a hope or an expectation of obtaining something of
value from another, in regard to which no contract had
been made, no negotiations entered into, and no enjoy-
ment begun, he will not be deemed to have suffered dam-
age by the defendant's causing his hope or expectation
to be frustrated. This too may need the aid of an
example: A makes his will in favor of B; and C by
false and fraudulent representations induces A to revoke
the same. B has sustained no damage, and cannot
maintain an action against C*
Further, to constitute damage it appears to be neces-
sary that something more than mental distress, or ner-
vous shock, alone or even followed by sickness, should
have been caused, to make a case of damage,^ except
where the wrong was an assault. A workman on a
1 See Hutchins v. Hutcliins, 7 Hill, 104 ; Cases, 76.
2 Ante, p. 5.
8 Comp. Malachy v. Soper, 3 Bing. N. C. 371 ; Cases, 40.
4 ITutcliins V. Hutchins, 7 Hill, 104 ; Cases, 76.
s Terwilliger v. Wands, 17 N. Y. 54, 63; Wilson v. Goit, id. 442.
GENERAL DOCTRINE. 19
house might neglisjently let a stick fall at my feet, as I
was passing along the street, which startled but did not
hit me, and there would probably be no liability for the
act;^ but if he threw the stick at me, with the same
result, he would be liable, for an intended wrong is more
likely to do harm than one not intended.^ But, rather
inconsistently, mental distress may be considered as an
element in damages in any case where a right of action
is shown regardless of such distress.'
Finally, the fact that a tort is redressible in damages
serves to distinguish the offence from a crime; which is
redressed by prosecution on behalf of the public for the
purpose of punishing the accused, by imprisonment,
fine, or forfeiture. But most crimes attended with loss
may also be treated as torts. Homicide is an exception,
apart from cases falling within statute. It will be seen,
then, that the law of torts, which we have found over-
lapping the law of contracts on one side, overlaps on the
other the criminal law. But the greater part by far of
the domain of tort lies between the two extremes.
In explanation of the examples given throughout the
general text following, it is to be observed that when
a particular act or omission under consideration is
said to be a 'breach of duty,' or of 'legal duty,'
or of the 'duty under consideration,' it is assumed that
other elements of liabilit}' if there be such are present.
Further, ' breach of duty ' or the like implies a right of
action in damages. And the term 'damage,' standing
alone, is generally used in the text, as well as in the
1 Compare Victorian Rys. Comm'rs ??. Coultas, 13 App. Cas. 222,
fright upon danger of collision with a railway train.
- Compare White v. Duggan, 140 Mass. 18, 20.
3 See Warren v. Boston & M. R. 163 Mass. 484, 487; Harvard Law
Review, January, 1894, p. 304.
20 LAW OF TORTS.
'Statement of duty,' in the sense of 'special damage,*
actual loss. The ' Statement of duty ' it may be added,
is intended to suggest to the student a prima facie case.
§ 3. Of Privilege.
It remains to set forth specifically the meaning of
'privilege.' The term, as it will here be used, im-
ports a defence from liability to an action. It is to be
taken in a broad sense, broader than that in which it is
commonly used. It is used as a convenient designation
of all that class of defences whereby one has immunity
or exemption from liability for conduct which but for
the immunity would be tortious. In the broad sense
privilege may be said to be a limited permission to
inflict (otherwise wrongful) harm upon another, and will
therefore include permission to do things not in point of
fact harmful, such as violating a bare legal right.
As we have already stated, privilege may be of a nature
to include right. A fireman has permission by law to
enter premises for the purpose of putting out a fire.^ So
far the case is deemed to be one of privilege merely.^
But the fireman may be ' invited,' or he may be com-
manded by positive law, to enter; in either case he
would not merely be exempt from liability for the neces-
sary consequences of his entry, he would have actual
rights against the occupant; he must have safe entry
and exit, except as the fire itself makes entry and exit
unsafe. The occupant will now owe to the fireman the
duty to have the premises (except as just stated) in fit
condition to enable the fireman to perform his duty; and
if the fireman suffer harm by the occupant's breach of
such duty, he has an action.
1 Gibson a. Leonard, 32 N. E. Rep. 182 (111.); Beehler u. Daniels,
27 L. R. A. 512 (R. I.). 2 Cases just cited.
GENERAL DOCTRINE. 21
The conception of privilege embraces permission of
two kinds: first, permission ' by the party,' that is, by
some person granting it; and, secondly, permission 'by
the law,' or permission paramount, since it is indepen-
dent of the will of the person against whom it is granted.
In the law books privilege in both senses is found
under various designations. In the law of defamation
it is called ' privileged communication ; ' in the law of
assault and battery it is called 'self-defence,' for one
thing; in the law of trespass to property it is called
'license;' and so on. Often the word 'justification,'
taken from the language of pleading, is used as a gen-
eral, synonymous designation of the idea. In sub-
stance, however, it will always be found to come to
the case of that sphere of activity in which one is per-
mitted under reasonable limits to inflict harm upon
another.
In regard to the ground upon which privilege rests,
nothing more than the general ground itself can be stated
here; upon what particular ground it rests in special
cases, or in special classes of torts, can only be shown
when the special subject arises in the ' Specific Torts '
following this general part. The first class of cases of
privilege, 'by the party,' calls for little comment here.
The ground of exemption is consent, which is often
expressed by a maxim adopted from the Roman law,
'volenti non fit injuria' — the man who consents to a
wrong ('injuria ') is barred of an action for it.^ Privi-
lege 'by the law,' or privilege paramount, finds its origin
either in duty or in interest, and its limits in what is
reasonably deemed necessary for the purpose to be
accomplished by it.
^ There is some limit to the validity of consent itself, but no very
satisfactory ground has as yet been reached. Most authorities hold
22 LAAV OF TORTS.
Duty as a ground of privilege ma}' be official or quasi-
official, or only moral, that is, of imperfect obligation.
It requires no explanation to show that one must be pro-
tected from the necessary consequences, however harm-
ful, of discharging a duty which one is expected to per-
form. A policeman making report to his superior, au
officer serving process, a fireman endeavoring to put out
a conflagration, must be exempt from liability for every-
thing done in the discharge of his duty. The law could
not be administered upon any other footing in the first
and second of these cases ; and in the third it would be
difficult to find firemen to protect our homes if the law
were otherwise than it is.
That privilege may also arise from moral duty is not
so obvious; still the fact rests in principle as well as
upon authority. The case springs in essence from au
instinctive desire for the preservation of the race, a
desire akin to that of self-preservation and equally well-
founded. It is not directly necessary to put the case
that agreements between shipper and common carrier to exempt the
carrier from liability for the negligence of its servants are invalid, ou
the ground that the shipper is virtually in the power of the carrier ;
which is reasonable doctrine. But it is also held by most authorities
that A's consent to B's committing a crime against him will not bar
an action by A against B for damages sustained thereby. Thus either
party to a fight may sue the other for assault and battery, notwith-
standing consent. Shay v. Thompson, 59 Wis. 540; Adams v. Wag-
goner, 33 Ind. 531 ; Bell v. Hansley, 3 Jones, 131 ; Commonwealth v.
Collberg, 119 Mass. 350. But see Golduamer v. O'Brien, 33 S. W.
Kep. 831 (Ky.), refusing a civil action for damages from attempted
abortion, on the ground of assent. Violation of the criminal law is
deemed so unlawful that consent to A'iolate it is unlawful. Of course
consent of the parties could not bar a prosecution by the State ; but that
is another thing. Suppose the State itself had consented to the crime?
Consent or want of consent has notliing to do with the case when
the act or omission was lawful ; and consent obtained by fraud is
no consent in law. Daiu v. Wycoff, 7 N. Y. 191, 194, as to the last
statement.
GENERAL DOCTRINE. 23
upon the ground of political prudence, which sees in it
the welfare of the State, tliough that plainly is a conse-
quence of the first ground, and is the final test of duty.
I may well enter my neighbor's premises to rescue his
beast from the mire; much more may I enter to save
human life; to hold me responsible for harm done in
the reasonable discharge of such a duty would be to find
the existence of a relation between my neighbor and me
which would tend to anything but to bind us together
into the organism which we call the State. Where
moral (or otHcial) duty shades into pure voluntarism,
becoming impertinence, may often be a difficult question;
but such considerations cannot avail against the exist-
ence of the immunity.
When it is said that privilege may grow out of inter-
est, the word ' interest ' must be taken in the sense, it
seems, of legal right, or something in the nature of legal
right. I may have a duty towards my neighbor as my
neighbor, from an instinct of humanity; but I have no
interest in him simply as my neighbor, except perhaps
the shadowy interest in his welfare as one of the multi-
tude of men composing the State, and so sharing with me
its burdens. The interest required must at all events
rise higher than desire or even anxiety for another's
general welfare.^
§ 4. Of Persons: Persons in Executive, Legislative,
OR Judicial Position; Persons under Disability;
Corporations; Master and Servant; Principal
AND Agent; Independent Contractors.
All that has gone before relates to the law of torts in
what may be called its primary manifestation, — in other
words, between citizen and citizen as such. But that does
1 See Sheckell v. Jackson, 10 Cusli. 25; Cases, 178.
24 LAW OF TORTS.
not exhaust the subject; it remains to consider the sub-
ject as affected by the fact of a person's standing in some
special relation to his fellows, or of being subject to some
incapacity before the law, or of occupying some special
relation to one who is the immediate wrono;doer. Thus
a person sought to be held liable for a tort may at the
time of the wrong alleged have been holding some post
of state, such as a judicial position, or he may have
been under some disqualification or incapacity, putting
him below the level of a full citizen, as where he was
insane or under age, or he may have been an employer
of the person immediately guilty. Nothing yet set forth
shows what the standing of such persons would be in au
action against them for tort. How does the particular
situation of a citizen affect the question of his liability?
In regai'd to persons holding under the State, execu-
tive, legislative, or judicial position, the answer is a,
simple one; the case is one ordinarily of absolute privi-
lege, and might have been considered under the head of
privilege except that it was thought best to confine the
subject there to primary relations, or citizen and citizen,
in accordance with the treatment of right. No action
for damages can be maintained against a person for
anything said or done, for example, in the discharge of
judicial duty, except it be an action for false imprison-
ment; no action for fraud, for malice, for trespass
(except imprisonment), for conversion, for negligence,
or for anything else in consequence of judicial action;
and so of action by the executive or of a member of the
legislature.
Because, apparently, of the tender regard which the
courts have always felt constrained to show towards
liberty, actions in certain cases are maintainable against
magistrates who have caused the imprisonment of men
GENERAL DOCTRINE. 25
without just process. This is not the place to consider
what is necessary to make a case against a judge on
such grounds; to point out the liability is all that is now
called for. The subject will be considered in its proper
place.^
The ground of the immunity of the executive, of
legislators, and of judges is plain. The places occupied
by such persons are the great departments of the State,
and the State could not carry on its functions if those
set over its departments could be haled before the courts
at the suit of every person aggrieved by their action.
In regard to competency or capacity, it is to be
observed that the breach of duty may be committed by
any one having natural capacity.^ The law of torts
affords a strong contrast in this particular both to the
law of contracts and to the criminal law. Liabilit}^ in
contract depends, it is true, upon capacity to contract;
but want of such capacity may be either natural or
artificial (legal). One must be of sound mind and at
least twenty-one j^ears of age to bind oneself by con-
tract.^ Liability under the criminal law depends also
upon the existence of capacity to commit crime; but
want of this too may be natural or artificial. A person
must be of sound mind and at least seven years of age
to be subject to punishment under the criminal law.
There may be difllculty sometimes in applying the rule
of natural capacity, but the difficulty can seldom arise
except in cases requiring proof of fraud, malice, or
negligence, and then, generally speaking, only in suits
J Chapter vil.
~ The law in regard to married women has been so mucli and so
variously changed by statute in the different States that no attempt
will be made to consider it.
8 Contracts for necessaries make an exception.
26 LAW OF TORTS.
against infants. Where the doing of the act creates, of
itself, liability, — that is, where there is a breach of the
absolute duty, — a defence of incapacity would be mani-
festly contrary to the fact, and could not, it seems, be
allowed. The fact that the person was of unsound mind
or a child of tender years would not be material. It
would be enough that the act was done of the will,
uncompelled.'^
Cases requiring proof of fraud, malice, or negligence
"would perhaps create no difficulty where the defendant
was a person so unsound of mind as not to be account-
able to the criminal law; an action of tort could hardly
be maintained. A madman may, indeed, be guilty of
fraud or malice in some sense (cunning, it is well
known, is a common trait of the insane), but not in the
sense in which it would be necessary to create liability,
as e. g. in an action for deceit or for malicious prosecu-
tion.-^ And clearly a madman cannot exercise diligence.^
A person sane enough to be accountable to the criminal
law would probably be liable for any kind of tort.
Infanc}' is more likely to give occasion for serious dif-
ficulty. An infant of sound mind twenty years of age,
or much less, is liable for any tort for which an adult
1 Is a madman, or rather is a madman's estate, liahle in damages
for the consequences of an act otherwise wrongful which was done,
though intentionally, in an uncon troll ahle frenzy ? Or suppose that A
tlireatens to kill B unless B will trespass upon C's land, and B does
the act ; will it affect the case that B is an infant, insane, or idiotic ?
The first of tliese questions, or an approach to it, is thus raised and
answered in the Roman law : Et ideo qua;rimus, si furiosus damnum
dederit, an legis Aquili;\! actio sit ? Et Pegasus negavit ; quiu cnim
in eo culpa sit cum su£e mentis non sit ? Et hoc est verissimum.
Dig. 9, 2, 5, § 2.
2 Comp. Emmens v. Pottle, 16 Q. B. Div. 354, 356, Lord Esher.
8 Whoever is incapable of diligentia cannot be charged with uegli-
gentia. Wharton, Negligence, § 87, ou the Roman Law. See Harvard
Law Review, JNIay, 1890, p. 65.
GENERAL DOCTRINE. 27
might be sued; an iufant of five years could seldom be
liable iu damages for negligence, and of course would
never be sued for torts requiring proof of fraud or
malice. But within these extremes, there is a region of
uncertainty, in which the courts, if culled upon to act,
must act according to the best light they may have in
each particular case; the question of capacity being a
question of fact.^
There is a difficulty of another kind touching the
liability of infants and of persons of unsound mind,
namely, where what would be a tort in other cases, as for
example a fraudulent representation, is the inducement
to a contract. But the rule in regard to such cases is
that there can be no liability iu tort if to enforce an
action of the kind would virtually fix upon the incompe-
tent party liability for breach of contract.^ The case is
or may be quite different where the tort follows, but is
not caused by the contract; to enforce an action for tort
in such a case would not be to enforce a contract, as for
example to compel an infant to make good the loss of a
horse which he has borrowed and then directly abused
and killed.^
It should not be supposed to follow that persons under
disability can, in virtue of their disability, retain what-
ever they may have become possessed of by wrongful
1 Of the liability of infants for injuria (tort) generally the Roman
jurist Labeo said, ' teneri et Aquilia eum,' to which is added, ' et hoc
puto verum, si sit jam injuriffi capax.' Dig. 9, 2, 5, § 2. The contention
sometimes maintained that infants are liable only for absolute torts
like trespass or conversion, and not for torts like deceit, has not found
much favor. See Pollock, Torts, .53, 2d ed.
2 Baker v. Stone, 136 Mass. 405 ; Alvey v. Reed, 1 7 N. E. 265 (Ind.) ;
Wieland v. Kobick, 110 111. 16; Conrad v. Lane, 26 Minn. 389 ; Fair-
hurst V. Liverpool Loan Assoc, 9 Ex. 422. But see Kilgore v. Jordan,
17 Tex. 341. These are cases of infancy.
8 Burnard v. Haggis, 14 C. B. n. s. 45.
28 LAW OF TORTS.
conduct. The meaning of the law is only that no lia-
bility actually or virtually by way of contract can be
created against such persons. Infants have been com-
pelled to surrender premises obtained under lease by
them, through fraudulent representations that they were
of full age, upon the ground that an infant shall not take
advantage of his own fraud to keep his ill-gotten booty.
He must restore what he has obtained by fraud, if he
has it, and will not carry out his bargain.^ But cases
of this kind, not being actions for damages, do not fall
within the scope of this book.
Allied to the class of cases of persons under disa-
bility, so far as right is concerned, are corporations.
These are fictitious persons, and when created by statute
have no powers or rights but those conferred by the
statute; and since statutes seldom if ever confer upon
corporations all the powers or rights of citizens, it fol-
lows that corporations are more or less under disability.
And formerly the fact that a corporation was a fictitious
person was looked upon as a serious obstacle to holding
such a body liable (except in the case of a corporation
sole) for torts in which mental attitude has or seems to
have place in a cause of action, and in very early times
for torts of any kind;" which of course disregarded the
fact that those composing the corporation were human
beings, for they were not the corporation.
But this technical piece of rationalizing has given
way, and it is now probably general doctrine that the
1 Lempriere i'. Lange, L. R. 12 Ch. 675.
2 'The difficulty felt in earlier times was one,' it is said, 'piarely of
process; not that a corporation was metaphysically incapable of doing
wrong, but that it was not physically amenable to capias or exigent.
22 Ass. 100, pi. 67, and other authorities.' Pollock, Torts, 5."?, 2d ed.,
citing Sergeant INIanning's note to Maund v. Monmouthshire Canal
Co., 4 Man. & G. 452.
GENERAL DOCTRINE. 29
fact that what would be a tort in the case of an indi-
vidual was done or omitted by a corporation, makes no
difference. That is, though not having all the rights of
individuals, corporations must still respect the rights of
individuals, — their duties are measured by the rights
of those with whom they come into contact. Thus a cor-
poration committing torts by fraud or malice^ is liable
for the same as clearly as for torts committed by negli-
gence; a corporation is liable also for assault,'- false
imprisonment, and probably for all kinds of torts. An
exception has been made by some courts in favor of
charitable corporations, on the ground that where funds
have been given to a body incorporated for such public
purpose they should not be diverted to pay for damages
for the torts of its agents or servants, where due care
has been taken in selecting its men.^
1 See e. g. Smith v. Land & House Corp., 28 Ch. Div. 7 ; Cases, 26
(deceit); Vance v. Erie Ry. Co., 32 N. J. 334 (malicious prosecution);
Jordan v. Alabama R. Co., 74 Ala. 85 (the same) ; Mogul Steamship
Co. r. INIcGregor, 1892, A. C. 25 ; Cases, 80 (conspiracy) ; Fogg v. Bos-
ton & L. R. Co., 148 Mass. 513 (libel). In Comerford v. West End Ry.
Co., 164 Mass. 13, doubt is raised whether a corporation is liable for
slander or libel by its servants or agents in the course of their em-
ployment, uule.<s the act was authorized or adopted by the corporation.
But it may be doubted whether this distinction is well taken. Cases
denying any action for malicious prosecution have been overruled in
this country by Jordan v. Alabama R. Co., supra, Boogher v. Life
Association, 75 Mo. 319, and by other cases. But see the remarks of
Lord Bramwell in Abrath v. Northeastern Ry. Co., 1 1 App. Cas. 247,
250.
" Post, p. 32.
3 Hearns v. Waterbury Hospital, 33 Atl. Rep. 595 (Conn.) ; Downs
V. Harper Hospital, 101 Mich. 555; Heriot's Hospital >•. 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<L Rnym. 038.
3 Clothier v. Webster, 12 C. B. N. s. 790 ; Mersey Docks v. Gibbs,
L. R. 1 H. L. 93.
* Story, Bailment, § 463 ; Schroyer v. Lynch, 8 Watts, 453 ; Wig-
gins !,'. Hathaway. 6 Barb. 632.
* See AViggin.'; v. Hathaway, .supra.
« Wolfe V. Door, 24 Maine, 104 ; Duulopv. Knapp, 14 Ohio St. 64;
344 LAW OF TORTS.
[Part III
ant levies upon a quantity of coal on board a vessel. The
coal is left on the vessel, with the master's consent, in
charge of a keeper of the defendant, and while so held the
vessel is sunk during a gale, with the coal on board, to
the damage of the plaintiff, for whom the levy is made.
The defendant is liable if he has failed to take such steps
for the safety of the coal as a careful, prudent man, well
acquainted with the condition of the vessel and its loca-
tion with regard to exposure to storms, might reasonably
be expected to take if the coal belonged to himself.^
A judge, however, while acting in a judicial capacity,
within his jurisdiction, is not liable for negligence ; ^ and
the same is true even of a person acting in a situation
which makes him no more than a private arbitrator.^
Having submitted a dispute to the decision of an arbitra-
tor, neither party can require him to exercise the skill or
care of an expert, unless he has held himself out to pos-
sess it, or has agreed to exercise it. For example : The de-
fendant, as broker, makes a contract for the plaintiff, as
follows : ' Sold by order and for account of P, to my prin-
cipal S, to arrive, 500 tons Black Smyrna raisins — 1869
growth — fair average quality in opinion of selling broker,
to be delivered here in London — at 22s. per cwt.,' &c.
This contract makes the defendant virtually an arbitrator,
to determine between the parties any difference arising be-
tween them as to the quality of the raisins tendered in ful-
filment of the contract, not stipulating for care or skill on
the part of the defendant ; and he is not liable for failing
Kennard v. Willmore, 2 Heisk. 619 ; Browniug v. Hanford, 5 Hill,
538 ; Moore v. Westervelt, 27 N. Y. 234.
1 Aloore v. Westervelt, 27 N. Y. 234.
2 See Bradley v. Fisher, 13 Wall. 335, 350 ; Yates v. Lansing, 5
Tolms. 282 ; Pratt v. Gardiner, 2 Cush. 63.
8 Pappa V. Rose, L. K. 7 C. P. 32, 525 ; Tharsis Siilpliur Co. v.
Loftus, L. R. 8 C. P. 1. See Hoosac Tunnel Co. v. O'Brien, 137 Mass.
424.
Chap. XVII. § 9.J NEGLIGENCE. 345
to exercise reasonable care and skill in coming to a deci-
sion, if he act in good faith, to the best of his judgment.^
§ 9. Of the Use of Premises : Duty to Plaintiff.
In this section, the duty of the owner or occupant of
premises to the j9/(:«';*i?jf, for damages sustained thereon,
by reason of the condition of the premises, is to be stated.
The question of the existence and nature of the duty turns
upon the consideration of the occasion which brought tlie
injured person there ; that is, whether the plaintiff was a
trespasser, a bare licensee, an Invited or a legal licensee,
or a customer.^ The question must, therefore, be con-
sidered with reference to each of these situations.
The owner or occupant of premises owes no dut}' to
keep his premises in repair for the purposes of trespassers.
In other words, it is no breach of duty to a trespasser that
a man's premises were in a dangerous state of disorder,
whatever the consequences to the former. But this rule of
law must not be understood as declaring that the occupant
or owner owes no duty to trespassers with regard to tlie
management of his premises. He has no right even to-
wards such persons to maim them, as by savage beasts or
hidden guns. For example : The defendant has a savage
dog on his premises, which he carelessly allovrs in tlie da}--
time to run at large unmuzzled, having notice that the dog
is savage. The plaintiff, having strayed upon the premises
without permission, while hunting, is attacked and bitten
by the dog. The defendant is deemed liaUe.^ Again :
The defendant sets a spring-gun in his grounds to ' catch'
persons entering thereon without permission, and fails to
give notice of the particular danger. The plaintiff while
^ Pappa V. Piose, supra.
2 For the case of servants, see § 10.
8 Loomis V. Terry, 17 Wend. 496.
346 LAW OF TORTS. [Part IIL
trespassing on the premises is injured by the gun, having
no notice of danger. The defendant is liable.^
A bare licensee, as the term is here used, is one who
enters another's premises, or is upon some particular part of
the same,"^ without request or inducement of the occupant,
but still under circumstances from which he has come to
suppose a permission ; as in the case of persons accus-
tomed, without interference, to cross a portion of the line
of a railway in no definite track, ^ or possibly of persons
crossing an open field on a foot-path, commonly used by
the neighbors, but without any right of way. A person
so doing, though not in a position to require the owner or
occupant of the land to exercise care in regard to the
management or the state of the premises,* occupies (prob-
ably) a more favorable position than a trespasser. He
can, of course, insist that the occupant shall let loose no
savage beast upon him, and set no traps in his way, with-
out giving hhn fair notice.* But, further, it should seem
that, if it were usual for people to pass over the occu})ant's
premises in the night-time, he could require the occupant
1 Bird V. Holbrook, 4 Bing. 628. As to notice now, see 24 and 25
Vict. c. 100, § ;J1. It', in the absence of statute, tlie trespasser had
knowledge of the danger, or if a man entered in the night-tirne with a
felonious intent, he (probably) ' assumed the risk ' (see § 10) and could
not recover ; though even in such cases the owner of the premises
would not be justified in purposely inflicting greater harm than would
be necessary for the protection of his property and the expulsion of the
intruder. See the two cases just cited ; also Ilott v. Wilks, 3 B. &
Aid. 308 ; Woolf j;. Chalker, 31 Conn. 121 ; ante, p. 229.
^ See Batchelor v. Fortescue, 11 Q. B. D. 474.
8 Harrison v. Northeastern Ry. Co., 29 L. T. N. s. 844.
* Batchelor w. Fortescue, 11 Q. B. D. 474 ; Harrison v. Northeast-
ern Ry. Co., 29 L. T. N. s. 844 ; Johansen i-. Davies, 57 L. J. Q. B. 392 ;
Sweeny v. Old Colony R. Co., 10 Allen, 368 ; Cases, 467.
6 See Hart v. Cole, 156 Mass. 475, 477.
Chap. XVII. § 9.] NEGLIGENCE. 347
to exercise reasonable care with regard to the keeping of
vicious animals, of whose propensity to do harm the occu-
pant has notice.
And it may be that some special duty has been assumed
by the occupant, or has been imposed by law upon him,
as in the case of a railway company to sound a whistle at
certain places, or to keep gates shut while trains are pass-
ing ; this, too, would modify the question of liability.' For
example : The defendant, a railway company, has a rule
that a whistle shall be sounded by express trains at a cer-
tain point where, with the acquiescence of the compan}^,
persons are accustomed to cross its track. The plaintiff's
intestate attempts to cross at the point in the night, while
a train is standing still in such a position, according to
some of the evidence, as to prevent anyone from seeing
an approaching express train, and is run over and killed.
There is evidence, but it is contradicted, that a whistle was
duly sounded, and there is evidence that the train carried
lights. A jury may find the defendant guilty of breach ol
duty to the deceased.^
A bare licensee can insist upon the occupant's keeping
his premises in a safe condition in another particular. A
man has no right to render the highway dangerous or less
useful to the public than it ordinarily is ; if he should do
so, he is liable as for a nuisance to anyone who has suf-
fered damage thereby.^ And a bare licensee on the wrong-
doer's premises will be entitled to recover for any damage
sustained thereby. For example : The defendant digs a
1 Dublin & Wicklow Ey. Co. v. Slatter)', 3 App. Gas. 1155 ; North-
eastern Ry. Co. V. Wanless, L. R. 7 H. L. 12, as to open gates ; "Wil-
hams V. Great Western Ry. Co., L. R. 9 Ex. 157, open gates.
2 Dublin & Wicklow Ry. Co. v. Slattery, supra. See also Davey v.
Southwestern Ry. Co., 12 Q. B. Div. 70, affirming 11 Q. B. D. 213;
Gray v. Northeastern Ry. Cj., 48 L. T. N. s. 904.
8 Ante, p. 287.
348 LAW OF TORTS. [Part III.
pit adjoiuing the highway, and fails to fence it off from
the street. The phiintift', while walking along the street,
in the dark, accidentally steps a little aside in front of the
pit, and falls into it, thereby sustaining bodily injury.
The defendant's act in leaving the place unguarded makes
it a public nuisance, and he is liable for the injury received
by the plaintiff.^
If, however, the pit, though near, were not substantially
adjoining the highway, so that the plaintiff must have
been a trespasser before reaching it, he could not treat the
omission of the defendant to fence as a breach of duty.
For example : The defendants, being possessed of land
near to an ancient common and public footway, construct
a reservoir for receiving the back-wash of water at the
lock of a canal owned by them. The plaintiff's intestate
sets out by night along this footpath for Sheffield. The
path runs alongside the canal for about three hundred
yards to a point at which it is bounded on one side by a
lock, and on the other by the reservou*. At this point,
the pathway turns to the right over a bridge, crossing the
by-wash. A person continumg straight on in the direc-
tion of the pathway, and not turning to the right to go over
the bridge, would find himself (if not prevented by the arm
of a lock) upon a grassy plat about five yards long by
seven broad, between the lock and the by- wash, level
with, but somewhat distant from, the footpath ; the plat
being unfenced, and having a fall of about three yards to
the water. On the morning following the setting out of
the deceased, he is found drowned at this point. The
defendants are not guilty of a breach of duty in not fen-
cing the place, since it is not substantially adjoining the
1 Barnes v. Ward, 9 C. B. 392. But see contra, Howland v. Vin-
cent, 10 Met. 371, in which, however, the point appears to have beeu
overlooked that the defendant's act amounted to a pubUc nuisance.
Chap. XVII. § 9.] NEGLIGENCE. 349
highway, and the deceased must have become a trespasser
before reaching the reservoir.-^
Tlie same will be true of injury sustained by straying
cattle or horses. ^ For example : The defendant digs a pit
in his waste land within thirty-six feet of the highway, and
the plaintiff's horse escapes into the waste and falls into
the pit and is killed. The defendant has violated no duty
to the plaintiff.^ Again : The plaintiff's liorse strays upon
the defendant's railway track and is killed by negligence
(short of wantonness) of the defendant's servants. The
defendant is not liable.*
If the licensee entered or acted either by direct invita-
tion of the occupant, or by command of law,'"^ the situa-
tion becomes changed. In such cases, the occupant owes a
duty to the licensee, not merely to restrain his ferocious
animals, and to prevent injury from dangerous concealed
engines, and to guard against nuisances adjoining the
highway, but also to keep his premises in reasonable re-
pair, and to refrain from negligence generally ; otherwise,
he will be liable for any injury sustained by the licensee,
not caused by the latter's own act. In other words, the
owner or occupant® is bound to exercise reasonable care
1 Hardcastle v. South Yorkshire Ky. Co., 4 H. & N. 67. See Dinlcs
V. South Yorkshire Ry. Co., 3 Best & S. 244 ; Houndsell v. Smyth, 7
C. B. N. s. 731 ; Piggott, Torts, 236.
2 Blyth V. Topham, Croke Jac. 158 ; Maynard v. Boston & M. R.
Co., 115 Mass. 458.
3 Blyth V. Topham, supra.
* Maynard v. Boston & JI. R. Co., supra. See Taft v. New York
R. Co., 157 JIass. 297. See, however, Charman v. Southeastern By.
Co., 21 Q. B. Div. 524, under Statute. "Wanton injury in such cases
would create liability. Ma^Tiard v. Boston & M. R. Co., supra ; Eames
I'. Salem R. Co., 98 Mass. 560. 5 See ante, p. 20.
6 A lessor of premises is liable for their condition if their unsafe con-
dition was due to his negligence (see Miller v. Hancock, 1893, 2 Q. B.
350 I^AW OF TORTS. [Part III
to prevent damage from unusual danger, of which he has,
or ought to have, knowledge. For example : The de-
fendants, a railroad corporation, have a private crossing
on their land over their railroad, at grade, in a city, which
crossing they have constructed for the accommodation of
the public ; and they keep a flagman stationed there to
prevent persons from crossing when there is danger. The
plaintiff coming down the way to the crossing with horse
and wagon is signalled by the flagman to cross, and on
proceeding, according to the signal, to cross the track, is
run against by one of the defendants' engines ; the flagman
having been guilty of carelessness in giving the signal.
This is a breach of duty, and the defendants are liable for
the damage sustained.^ Again : The defendant, owner of
land, having a private road for the use of persons coming
to his house, gives permission to a builder engaged in
erecting a house on the land, to place materials on the
road. The plaintiff, having occasion to use the road in
the night, for the purpose of going to the defendant's
residence, runs against the materials and sustains dam-
age, without fault of his own. The defendant is liable ;
having held out an inducement to the plaintiff.^
The gist of the liability in such cases consists in the
fact that the person injured did not act merely' for his own
convenience and pleasure, and from motives to which no
act or sign of the owner or occupant contributed, but that
177, C. A.) ; if due to the negligence of the tenant, the latter is liable,
unless the lessor has expressly assumed the duty to keep in repair, or
unless he is in possession witli his tenant. See Nelson v. Liverpool
Brewery Co., 2 C. P. D. 311 ; Todd v. Flight, 9 C. B. N. s. 377 ; Fisher
V. Thirkell, 21 Mich. 1 ; s, c. L. C. Torts, 627 ; Lister v. Lane, 1893,
2 Q. B. 212, C. A.
1 Sweeny v. Old Colony R. Co., 10 Allen, 368 ; Cases, 467. See
Gordon v. Cunnnings, 152 Mass. 513 (letter-carrier 'invited') ; Holmes
V. Drew, 151 Mass. 578 ; Clarke v. Midland Ry. Co., 43 L. T. n. s.
381. As to the discontinuance of a gate-keeper see Cliff v. Midland
Ry. Co., L. R. 5 Q. B. 258.
2 Corby V. Hill, 4 C. B. N. s. 556.
Chap. XVII. § 9.] NEGLIGENCE. 351
lie entered the premises because he was led to believe that
they were iuteuded to be used by visitors or passengers,
aud that such use was not only acquiesced iu by the owner
or person in possession and control of the premises, but
that it was iu accordance with the intention aud design
with which the way or place was adapted and prepared or
allowed to be so used.^ The real distinction, therefore, is
this : A mere passive acquiescence by an owner or occu-
pier in a certain use of his laud by others, involves no
liability for negligence ; but, if he, directly or by implica-
tion, induce persons to enter upon his premises, he there-
by assumes an obligation to keep them in a safe condition,
suitable for such use, and for a breach of this obligation
he is liable in damages to a person injured thereby.^
It was urged in the authority in which this doctrine was
laid down (a point worthy of notice here) that, if the de-
fendants were liable in such a case, they would be made
to suffer by reason of the fact that they had taken precau-
tions to guard against accident at a place which they were
not bound to keep open for use at all, and that the case
would thus present the singular aspect of a party liable for
neglect in the performance of a dut}' voluntarily assumed,
aud not imposed by law. The answer was, that this was
no anomal}'. If a person, it was observed, undertake to
do an act, or to discharge a dut}'-, by which the conduct of
others may properly be regulated, he is bound to perform
it in such a manner that those who are rightfully led to a
course of conduct or action on the faith that the act or
duty will be properly performed shall not suffer loss or
injury by reason of his negligence.^ The liability in such
cases does not depend upon the motives or considerations
^ Sweeny v. Old Colony E. Co., snpra, Bigelow, C. J.
^ Id. See also Bolch v. Smith, 7 H. & N. 736, 741.
3 See Dublin & Wieklow Ry. Co. v. Slattery, 3 App. Cas. 1155,
supra ; Cliff v. Midland Ry. Co., L. R. 5 Q. B. 258.
352 LAW OF TORTS. [Part IIL
which induced a party to take on himself a particular
duty, hut on the question whether the legal rights of
others have been violated by the mode in which the charge
assumed has been performed.^
In case the injury arise by reason of a defective condi-
tion of the occupant's premises, it is necessary to the
liability of the party to a licensee that he had notice of the
defect before the damage was sustained.^ For example i
The defendant is proprietor of a hotel, containing in one
of the passage-ways a glass door, the glass in which has
gradually become loosened and insecure ; but the defend-
ant is not aware of the fact, nor is he in fault for not
knowing it. The glass falls out as the plaintiff opens the
door, and the plaintiff, a visitor merely, is injured. The
defendant is not liable.^
The case of a person entering upon the premises of
another as a customer, on purposes of business, is (prob-
ably) still stronger against the occupants It should seem
that a greater degree of care ought to be taken to protect
such a person than one to whom a mere tacit inducement
was held out to enter, since it may be the duty of the cus-
tomer to enter, and not merely his convenience. A master
may require his servant to go to a neighboring shop for
provisions ; and an officer may be required to enter upon
premises to make a levy. And the right to protection
covers both entering and leaving the premises.*
It is clear that customers stand upon a more favorable
plane than bare licensees, and that the owner or occupant
^ Sweeny v. Old Colony R. Co., Bigelow, C. J.
2 Welfare v. London & B. Ry. Co., L. R. 4 Q. B. 693 ; Southcote v.
Stanley, 1 H. & N. 247.
8 Sonthcote v. Stanley, supra. Had the plaintiff been a guest, the
defendant would (probably) have been liable.
* Chapman v. Kothwell, El. B. & E. 168, infra.
Chap. XVII. § 9.J NEGLIGENCE. 353
of the premises owes a dut}'^ to them to keep the premises
in such repair or couditiou as to enable them to go tliereou
for the transaction of their business in the usual manner
of customers ; and that, if injury happen by reason of the
improper state of the premises, of which fact the occupant
has notice, he will be liable. Or, as the rule has been
stated from the bench, the owner or occupant of premises
is liable in damages to those who come to it, using due
care, at his invitation or inducement, express or implied,
on any business to be transacted with or permitted by him,
for an injury occasioned by the unsafe condition of the
premises or of the access thereto, which is known by him
and not by them, and which he has negligently suffered to
exist, and has given them no notice of.-^ For example :
The defendant, proprietor of a brewery, leaves a trap-
door in a passage-way within his premises, leading to his
office, open and unguarded by night, and the plaintiff's
wife, in going through the passage-way by night for pur-
poses of business with the proprietor, falls, without fault
of her own, down the hole and is killed. The defendant
is liable.^
In accordance with the principle stated, the proprietors of
a wharf, established for the use of the public, are liable for
injury sustained by a vessel by reason of the dangerous con-
dition of the place of landing, known to the proprietors of
the wharf and carelessly allowed to remain, and not known
to the plaintiff. For example : The defendants, owners of
a wharf at tide-water, procure the plaintiff to bring his
vessel to it to be there discharged of its cargo, and suffer
the vessel to be placed there, at high tide, over a rock
sunk and concealed in the adjoining dock. The defend-
ants are aware of the position of the rock and of its dan-
1 Carleton v. Franconi.a Iron Co., 99 Mass. 216, Gray, J.
2 Chapman v. Rothwell, El. B. & E. 168 ; Freer v. Cameron, i
Kich. 228.
23
354 LAW OF TORTS. [Part IIL
ger to vessels ; but no notice of its existence is given,
and the plaintiff is ignorant of the fact. With the ebb of
the tide, the vessel settles down upon the rock and sus-
tains injury. The defendants are guilty of a breach of
duty, and are liable for the damage.^
The question of the occupant's liability in cases like
this, will be affected by the consideration whether the
injured party was fairly authorized under the circum-
stances to go upon the particular part of the premises at
which the accident happened. If the place was one which
customers usually frequent without objection, it will be
assumed that the party is authorized to go there. For
example : The defendant, owner of a shop, situated upon
a public street, let the upper stories thereof to another ;
and an entrance to the shop directly in front of the stairs
which lead above is so constructed and kept constantly
open that it is used for passage for persons going upstairs.
There is a trap-door between the entrance and the stairs ;
and the plaintiff entering the place on business with the
defendant, and in the exercise of due care, falls through
the trap, the same being open, and. is injured. The de-
fendant is guilt}' of a breach of duty in leaving the trap-
door open, and is liable to the plaintiff.^
If, however, a customer is injured by reason of the bad
condition of a portion of the premises not open to the pub-
lic, and no invitation or inducement has been held out to
him by the owner or occupant to go there, he cannot re-
cover for injury sustained tliere, though the place be fre-
quented by the servants of the occupant. For example :
The defendants are owners of a foundry, on the front door
of the outer part of which is placed the sign ' No admit-
tance.' The plaintiff enters the outer building to inquire
1 Carleton v. Franconia Iron Co., supra ; The Moorcock, 13 P. D.
157; affirmed 14 P. Div. 64.
2 Elliot V. Pray, 10 Allen, 378.
Chap. XVII. § 9.] NEGLIGENCE. 355
after certain castings of his, and the defendant tells him
that they are nearly ready, and sends a workman into the
foundry part of the building to see about them. The
plaintiff follows the workman, though not invited, and
though none but persons employed there go into the
foundry, falls into a scuttle, and is injured. The defend-
ant is not liable.^
This duty to customers, however, requires the occupant
to use due care over all parts of his premises and then-
appurtenances to which the customer has need of access in
the performance of the business. For example : The de-
fendants, owners of a dock, provide a gangway for passage
from the plaintiff's vessel ; the gangway being in an inse-
cure position, to the knowledge of the defendants, but not
to the knowledge of the plaintiff. The plaintiff is injured
while properly passing over the same. The defendants
are liable.^
Workmen too on ships in dock, though not the servants
of the dockowner, are deemed to be invited by him to use
the dock and all appliances provided by him as incident
to the use of the dock.^ Indeed, the owner of premises
may be liable, though the business was not transacted by
1 Zoebisch v. Tarbell, 10 Allen, 385.
2 Smith V. London Docks Co., L. R. 3 C. P. 326.
3 Heaven v. Pender, 11 Q. B. Div. 503, 515. A broad rule of lia-
bility in negligence cases was laid down at p. 509 by Lord Esher,
broader than the other judges were willing to accept. But it was con-
sidered correct in Thrussell v. Handyside, 20 Q. B. D. 359, 363. The
rule of Lord Esher was thus stated : ' Whenever one person is by cir-
cumstances placed in such a position \vith regard to another that every-
one of ordinary sense who did think would at once recognize that if he
did not use ordinary care and skill in liis own conduct with regard to
those circumstances he would cause danger of injury to the person or
property of the other, a duty arises to use ordinary care and skill to
avoid such danger.' See Pollock, Torts, 354, note, 418, note. For what
Heaven v. Pender decides, see Cann v. Wilson, 39 Ch. D. 39, 42. But
Cann v. Wilson is overruled by Le Lievre v. Gould, 1893, 1 Q. B. 491.
356 LAW or TORTS. [Fart III
the plaintiff in the usual way or place, provided he could
not so do it conveniently, and was not prohibited from
doing it as he did ; the defendant or his servant seeing him
at the time. The plaintiff is not deemed a bare licensee
in such a case.^
Where the injury has been sustained, not by reason of
any improper condition of the defendant's premises, but by
a fall down an ordinary stairway, or the like, the defend-
ant is not guilty of negligence in leaving a door open or
in faiUng to give notice of the place where danger lies.^
In regard to this class of cases, it is to be observed
that, if there be no actual invitation to the injured person
to go upon the premises in question, in order to recover
damages for injur}' sustained he must have gone upon the
premises for business with the occupier.^ But this is not
enough. A man has no right to intrude himself upon an-
other, even for purposes of business. The business which
will justify an entr}' upon the premises, and entitle the
party to damages for injuries sustained, must, in the ab-
sence of an express invitation, or an engagement for ser-
vices, be the business of the occiipanl^ or business which
he is bound to attend to.* The ground of liability is that
an invitation is implied ; and an invitation can be implied
onh" when the entry is made in connection with business
of the occupant. A retail dealer is bound to use due dili-
gence to keep his premises in fit condition for persons who
go to him to buy, but not (probably) for peddlers who go
to sell f unless indeed they are persons with whom he is
^ Holmes v. Northeastern Ry. Co., L. R. 4 Ex. 254 ; s. c. L. R.
6 Ex. 12.3, Exch. Ch.
2 Wilkinson v. Fairrie, 1 H. & C. 633 ; Gaffney v. Brown, 150 Mass.
479.
3 Collis V. Selden, L. R. 3 C. P. 495 ; Hart v. Cole, 156 Mass. 475,
477 ; Tobhntt v. Bristol & E. Ry. Co., L. R. 6 Q. B. 73, 75.
* Hart V. Cole, ut supra. ^ Id.
Chap. XVII. § 10.] NEGLIGENCE. 357
accustomed to deal and whom he expects to come into his
shop. So likewise, under the same circumstances, he
would (probably) be liable for injury to a creditor, or his
servant, who went into his shop to demand payment of a
debt due, but not to a beggar.
§ 10. Master and Servant: ' Assuming the Risk.'
As a servant, when upon his master's premises, is there
by express invitation of the master, the master should and
does owe a duty to him to exercise reasonable care, skill,
and dihgence in regard to the condition of the place, except
in so far as the ser^'ant may have exempted his master
from that duty. The exception is now the subject for
consideration, and may be thus stated : The servant ex-
empts his master from the duty in question ^ when he ' as-
sumes the risk,' as the phrase is ; which means, that,
when the servant takes the risk freely and willingly, — as
a willing man, ' volens,' — he cannot maintain an action
against his master for what happens from the exposure.
It is a case of consent ; volenti non fit injuria.
The duty of the master towards his servant ma}' now be
more fully stated thus : Except in so far as the servant has
assumed the risk, the master must exercise reasonable care,
skill, and diligence, in the following things, — to have and
keep his premises in safe condition for the servant, and, ac-
cording to the employment, to provide and keep constantly
for him safe ways, works, machiner}-, tackle, appliances, and
the like, and competent men, and none but competent, to
carry on the service with him.- And this duty cannot be
1 A moral duty on the part of the master may no doubt remain, but
it is of imperfect obligation. Fitzgerald v. Connecticut River Paper
Co., 155 Mass. 155, 158, 159 ; O'Maley v. South Boston Gaslight Co.,
158 Mass. 135, 136; Yarmouth v. France, 19 Q. B. D. 647, 657-
2 See Crown u. Orr, 140 N. Y. 450 ; Bailey v. Rome R. Co., 139
N. Y. 302 ; Toy v. United States Cartridge Co., 159 Mass. 313 : lUick
358 LAW OF TORTS. [Part IIL
delegated, so as to exempt the master; it is personal.^
Accordingly, if the servant suffer damage by reason of
failure in any of these things, the master will be liable.
For example : The defendants employ the plaintiff to lay
bricks for them, which must be carried up over a scaffold
erected for the purpose by the defendants. The materials
supporting the scaffold are in unfit condition, to the knowl-
edge of both parties. The defendants personall}-, or b}'
servants in charge, direct the plaintiff to go upon the
scaffold, and the plaintiff does so, but not volens ; the
supports give wa}', and the plaintiff is thrown down and
seriously hurt. The defendants are liable.^ Again : The
defendant, a maker of cartridges, sets the plaintiff, one of
his servants, to work at a machine so constructed as to
call for frequent replacing of one of its constituent parts ;
defect in such part being a defect in the machine. The
defendant fails to have the part replaced on a particular
occasion, when by reasonable care in nispection he might
have known that it was needed, and might have made it ;
and the plaintiff, exercising due care, sustains injury by
the failure. The defendant is guilt}' of breach of duty to
the plaintiff.^ Again : The defendants are proprietors of
a cotton mill, in which the plaintiff is employed by them.
Part of one of the machines ni the carding-room consists
-o
V. Flint R. Co., 67 Mich. 632 ; Fink v. Des Moines Ice Co., 84 Iowa, 321;
De Pauw Co. v. Stubblefiekl, 132 Ind. 182, Consolidated Coal Co. v.
Haenni, 146 111. 614 ; Southwest Improvement Co. v. Andrew, 86 Va.
270. See Cases, 495, 479, 500, 536.
1 Railway v. Shields, 47 Ohio St. 387 ; Toy v. United States Car-
tridge Co., supra ; Fink v. Des Moines Ice Co., supra.
2 Roberts v. Smith, 2 H. & N. 213 ; s. c L. C. Torts, 684, Exch. Ch.
8 See Toy v. United States Cartridge Co., 159 Mass. 313, 315, Ian-
guage, in effect, of Morton, J. ' The duty of seeing that such parts are
not defective is one incumbent on the master. It is not a matter of
ordinary repair from day to day, which may be intrusted to a servant,'
— that is, so as to exempt the master. Id. Cases, 479.
CiiAi' XVII. § 10.) NEGLIGENCE. 859
of a grooved puUe}', over whicb a chain passes. To one
end of the chain a weiglit is hung. An extra weiglit is
hung by a raw-hide lacing to a hook fastened in the same
chain. This latter weight did not come with the machine,
and is not specially intended as a weight. It has been in
use in aid of the machine, however, for two years, though
not continualh', and the machine works successfully, thougli
not so well, without it. By reason of want of reasonable
care on the part of the defendants, the lacing breaks, and
the extra w^eight falls upon and injures the plaintiff while
properly working at the machine. The defendants are
guilty of breach of duty to the plaintiff.^
AVhen does the servant assume the risk, so as to exempt
the master from the duty in question? The answer must
be distributed under two heads ; first, in regard to risks
assumed in the contract of service ; second, in regard to
risks otherwise assumed.
In virtue of the contract of service the servant presump-
tively assumes the ordinary risks of the service ; by which
is meant the risks incident to the business, or, in other
words, the risks without which it would be impracticable
to carry on the business ; ^ presumptively^ for it is possible
that a servant might stipulate that he should not take cer-
tain of these risks. The risks which are incident to the
business will cover the ordinary condition of the premises,
while the work is going on, and being brought to a close, or
being put in oi'der. It is obvious that during such time
the premises, especially those within which extensive
industries are carried on, must be more or less in disorder ;
pieces of machiner}-, tools, tackle, and other things used
in the business must be ' out of place ' much of the time :
elevators, shoots, and trap doors will, sometimes, in the
1 Eice V. King Philip Mills, 144 Mass. 229.
2 Crown V. Orr, 140 N. Y. 450 ; Cases, 495; De Graffe v. New York
Central R. Co., 76 N. Y. 125 ; Consolidated Coal Co. v. Haeuni, 146
111. 614 ; Cases, 500.
360 LAW OF TORTS. [Part III.
pressure of business, be left open and unguarded ; these
and other exposures of a dangerous character, according
to the business, must, speaking of servants, be allowed.^
The greater part of such a state of tlungs might not be neg-
ligence at all ; some of it, such as the leaving open and
unguarded, elevators, shoots, and trap doors, might be a
breach of dut}- towards a customer,^ while towards a ser-
vant it would not. The servant assumes the risk.^
It is plain inference that the risk thus assumed is the
risk of negligence on the part of a fellow-servant, so far as
that risk is ' ordinary ' ; for ' assuming the rislc ' does not
mean assuming the risk of the master's negligence, except
in cases to be mentioned, and the servant cannot complain
if lie has suffered by reason of his own negligence. But
in point of law the servant is deemed to have assumed the
extraordinary* as well as the ordinary risks of negligence
on the part of his fellow-servants ; no distinction litre is
drawn between the two kinds of risk. Indeed, at common
law, all risks of negligence b}' a fellow-servant, not due to
the master, are treated as 'ordinaiy.' It has accordingly
been laid down as a broad doctrine, at common law, that
a servant cannot complain against his master of damage
sustained bv the negligence of a fellow-servant, where the
master himself was not at fault.^ For exami)le : A
switch-tender of the defendants, a railroad company, who
1 See Murphy v. American Rubber Co., 159 Mass. 266, slippery floor.
2 Indermaur v. Dames, L. R. 1 C. P. 274 ; s. c. L. E. 2 C. P. 318,
Exch. Ch. ; Cases, 482, a very important authority.
3 Id. at pp. 679, 680, of L. C. Torts. See also Thomas v. Quarter-
maine, 18 Q. B. Div. 685.
* See L. C. Torts, 679, Willes, J.
8 De Freest v. Warner, 98 N. Y. 211 ; Consolidated Coal Co. v.
Haenni, 146 111. 614; Farwell v. Boston R. Co. 4 Met. 49; Cases,
508; Pittsburgh R. Co. v. Devinney, 17 Ohio St. 197 ; Baltimore R.
Co. V. Baugh, 149 U. S. 368 ; Chicago Ry. Co. v. Ross, 112 U. S.
377 ; Cases, 518 ; Thomas v. Quartermaine, 18 Q. B. Div. 685, 692.
This last case has been somewhat discredited in the point actually
deciiled by it, but its general language is not disputed.
Chap. XVII. § 10.] NEGLIGENCE. 3G1
is deemed a fellow-servant of the plaintiff, negligently
leaves open one of his switches, by reason of which au
engine of the defendants runs o<I the track and injures the
plaintitf, the evidence showing that the defendants them-
selves are not guilty of negligence in any wa}'. The
defendants are not liable.^
While, however, the master is (at common law) exempted
from liabihty in such cases, — on the ground that, because
the servant has assumed the risk, the master is so far
relieved of duty, — the courts hiive not agreed in the defi-
nition of the term ' fellow-servant.' By some of our
courts, and by those of England, the term is declared to
include all persons who serve the same master, work under
the same control, derive authority and compensation from
the same source, and are engaged in the same general
business, even though in different grades or departments of
it.^ Others of our courts exclude the last clause (concern-
ing different grades or departments of the work) fi'om the
definition ; the plaintiff" being held entitled to recover if
the injury was caused by a servant working in a higher
grade or in a different department of the service.*
This subject, however, is now very generally regulated
by statute (Employers' Liability Acts), the general effect of
wdiich, speaking freely, is to overturn the rule that by the
contract of service the servant presumptively assumes the
risk of negligence on the part of his fellow-servants ;
though the rule still obtains that if the servant, in point of
fact, voluntarily assumes a risk he exempts the master so
far from his duty, and hence from liability for the conse-
quences of the exposure. The maxim volenti non fit
1 Farwell v. Boston R. Co., supra, leading case in this country.
2 Farwell v. Boston R. Co., supra ; Do Freest v. Warner, supra ;
Lineoski i'. Susquehanna Coal Co., 157 Penn. St. 153.
3 Pittsburgh R. Co. v. Devinney, 17 Ohio St. 197, 210; Cliicago
Ry. Co. V. Pioss, 112 U. S. 377. The doctrine of fellow-servants
3G2 LAW OF TORTS. [Part IIL
injuria still applies.^ These statutes vary more or less in
details, and cannot be considered further here.
Thus far of the risks which the servant is presumed to
have assumed. The presumption against him arises be-
cause the risks are ordinary and incident to the business.
Extraordinary risks stand upon a different footing ; no
presumption arises from entering the service that the ser-
vant undertook these. ^ Still he ma}' have done so. He
may, in point of fact, have assumed the risk of a certain
unfit condition of the premises, or of the works or appli-
ances, — that is, of tlie master's negligence, or, even under
the Employers' Liability Acts, of the negligence of a fellow-
servant. It is accofdingl}' laid down in effect that if the
servant, at the time of making the contract, knew ^ of the
existence of a particular extraordinar\' danger, and fulh' ap-
preciated* the same, his entering into the contract amounts
to assuming the risk. That is, just as, by entering the ser-
vice, the servant assumes the orduiar^' risks, and exempts his
master so far from dut}', so now, by entering the service
knowing and appreciating the nature of an extraordinary
risk, he assumes that risk, £fnd exempts his master from dut}-
in regard to it.® For example : The defendants are a gas-
liglit company, having a quantity of coal to be wheeled
(exempting the master) does not apply to cases in which the master
has uoiiinutted to a servant any of those duties before-mentioned which
rest upon the master personally.
1 O'Maley v. South Boston Gaslight Co., 158 Mass. 135, 136;
Cases, 536.
2 Consolidated Coal Co. v. Haenni, 146 111. 614 ; Cases 500.
8 Some dicta put it thus : If the servant knew, or had the means of
knowledge, &c. Crowu v. Orr, 140 N. Y. 450; Cases, 495. But the
latter clause should be omitted ; it is inconsistent with requiring full
appreciation of the danger.
* If for any reason he did not fully appreciate the danger, as for
instance from mental deficiency or from inexperience, he has not con-
sented. Ciriack v. Merchants' Woollen Co., 151 Mass. 152.
6 Crowu V. Orr, 140 N. Y. 450 ; Kaure v. Troy Steel Co., 139 N. Y.
CiiAP. XVII. § 10.] NEGLIGENCE. 363
under sheds to a certain place, over high, narrow 'runs,*
not provided with guards on the sides. The plaintiff
enters into the defendants' service, to wheel coal over the
runs, knowing that they are not provided with guards, and
fully appreciating the danger, and in carefully wheeling
over the same falls off the side, and is injured. The plain-
tiff assumed the risk, and cannot recover even under the
Employers' Liability Act (in regard to defective w^ays,
works, or machiner}-).^ Again: The defendants are a
railroad company, having in their employ lately the [)lain-
titfs intestate. The deceased was killed b}' being thrown
from a hand-car, which he and other servants of the
defendants were propelling on the defendants' road. One
handle of the walking-beam of the car was broken several
weeks before, but the defendants' servants continue to
use the car, using the handle of a pick or a crowbar In
place of the broken part. A crowbar is being used on the
day of the accident, when a train coming up behind on the
same track, the servants, including the deceased, try to
run the car to a distant switch, instead of removing it to
another track. The men work the machinery with great
force ; five being engaged, two more than usual. This
wrenches and breaks the lever or beam, and the plaintiff's
intestate is thrown under the car and killed. The de-
ceased had full knowledge and appreciation of the defect,
and voluntarily continued in the service, without making
369 ; White v. Witteman Lithographic Co., 131 N. Y. 631; De Forest v.
Jewett, 88 N. Y. 264 ; Gibsou v. Erie Ry. Co., 63 N. Y. 449 ; Ragon v.
Toledo R. Co., 97 Mich. 265 ; s. c. 91 Mich. 379; Illick v. Flint R. Co.,
67 Mich. 632 ; Batterson v. Chicago Ry. Co., 53 Mich. 125; O'Neal v.
Chicago Ry. Co., 132 Ind. 110 ; Hayden v. Manuf. Co., 29 Conn. 548 ;
Consolidated Coal Co. v. Haeuni, 146 111. 614 ; Kohn v. McNulta,
147 U. S. 238.
1 O'Maley v. South Boston Gaslight Co., 158 Mass. 135 j Kaare v,
Troy Steel Co., 139 N. Y. 369.
864 LAW OF TORTS. [Part III.
objection. The defendants owed no diit}' in the matter
to the plaintiff's intestate ; he assumed the risk.i Again :
The defendant is receiver of a raih'oad compan}-, in which
the plaintiff's intestate had been employed as switchman
and car-coupler for nearly two years in the company's
freight-yard. This yaixl is drained by many small open
ditches, running across the tracks between the ties, all of
which are in plain sight, were well known to the deceased,
and existed when he entered the service. While coupling
cars in the yard, the deceased steps into one of the ditches,
falls, and is killed by the cars. The deceased assumed
the risk.^
Further, the servant may have assumed the risk of extra-
ordinary dangers arising after the contract was made, and
not embraced in the contract of service at all ; it is a ques-
tion of fact whether he did. And the question, as in all
other cases of extraordinary dangers, is whether he ex-
posed himself freely, knowing and fully appreciating the
danger. If he did, he cannot recover against his master.
For example : The defendants, proprietors of a woollen
mill, send the plaintiff to a dimlv-lighted part of a room
therein, between running gear of the machinery so placed
that it might easily catch the plaintiff's clothing and pull
him into the wheels. The machinery in that part of the
room is in plain sight. The plaintiff has not, however,,
been employed in that part of the room ; he is not warned
of the danger, though warning might have been given ;
but he goes to the place freely, his clothing is caught in
the machinery, and he is hurt. The plaintiff, if he knew
1 Powers V. New York R. Co., 98 N. Y. 274. The servant should
know the danger as well as the defects before he can be said to have
assumed extraordinary risks. Consolidated Coal Co. v. Haenni, 146
111. 614 ; Cases, 500.
2 De Forest v. Jewett, 88 N. Y. 264. See Gibson v. Erie Ry. Co.,
63 N. Y. 449; Kohn v. McNulta, 147 U. S. 2.38.
Chap. XVII. § 10.] NEGLIGENCE. 365
and fully appreciated the danger, as.sumcd the risk, and
the defendants are not lial)le.^
Where the extraordinar}- danger was contemporaneous
with the contract of service, the plaintiff consents to the
risk, as we have seen, if he then knew and fully appre-
ciated the danger ; his consent to the risk follows from his
entering the service with knowledge and appreciation of
the danger.^ It is not, however, the servant's knowledge
and appreciation of the danger that make his consent ; it
is entering the service with such knowledge and appre-
ciation. But where the extraordinarv danger arises after-
wards, the servant's knowledge and appreciation of it, and
then entering the danger, do not necessarily constitute con-
sent, even though he did not protest, object, or complain.
For example : The defendant, a boarding-house keeper,
employs the plaintiff, in June, as a domestic servant. A
flight of stairs leads from the kitchen of the defendant's
house, on the outside of the same, to the back 3'ard, down
which the plaintiff has to go in the course of her service.
The stairs are open and uncovered on the side towards
the back yard, but covered overhead, except that a skj'-
light there had, before the plaintiff's service began, lost
several panes of glass. It is now March, and rain, snow,
and sleet have come in and fallen upon the stairs. The
steps in consequence are ic}'. The weather is cold, and it
is snowing. It is evening ; the stairway is not lighted,
though the plaintiff has been over it during the day, and
knows its condition and full}' appreciates the danger. She
attempts to go down, in the discharge of her duties as
servant, taking hold of the railing, trying to go safely,
and exercising due care, but slips, falls, and is hurt. It
1 Ciriack v. Merchants' Woollen Co., 151 Mass. \h2.
2 Fitzgerald v. Connecticut River Paper Co., 155 Mass. 155; Ma-
honey V. Dora, id. 513 ; O'Maley v. South Boston Gaslight Co., 153
Mass. 135; Cases, 536.
366 LAW OF TORTS. [Part III.
cannot be held as matter of law that the plaintiff assumed
the risk ; whether she did assume it or not is a question of
fact, and it may be found that she did not go freely, in
which case the defendant owes a duty to the plaintiff
which has been broken.-^
It can hardly have escaped notice that the expression
' assuming the risk ' is used in the law in a technical and
hence special sense. In popular speech it is common to
sa}' that one has ' taken the risk,' or ' run the risk,' when
the meaning merely is that one has incurred a great
danger, as where one rushes before an ai:)proaching rail-
way train to save a child on the track.^ It is not ordinarily-
meant in such cases that the person exposing himself to
danger has assumed the risk in the sense of exempting the
one in control from the dut}' of care, as we have seen is
the meaning of the expression in the law.*
A final and important remark should be made. The
doctrine under consideration is not a doctrine of contribu-
tory negligence. The servant, or indeed one not a servant,
ma}- assume the risk so as to bar an}- right of action b}- him,
though he was not in the least negligent at the time.* Con-
tributory negligence, which in fact often exists in these
cases, makes an additional and distinct defence. The
1 Mahoney v. Dore, 155 Mass. 513. See also the similar cases of
Fitzgerald v. Connecticut River Paper Co., id. 155, and Osborne v.
London Ry. Co., 21 Q. B. D. 220.
2 See Eckert v. Long Island R. Co., 43 N. Y. 502. The rescue of
a child in this case was treated on the footing of a question of negli-
gence in the plaintiffs intestate, killed in the act, not as a question
of assuming the risk. A mnjoritj' of the court held that under the
circumstance, the deceased had not been guilty of negligence ; the
distinction being taken between attempts to save life and attempts to
save property.
8 The rule as to trespassers and bare licensees may, it seems, be put
upon the ground of assuming the risk.
* Mellor V. Merchants' Manuf. Co., 150 Mass. 362, 363.
Chap. XVII. § 11.] NEGLIGENCE. 367
language of the authorities, however, sometimes fails to
observe the distinction.^
§ 11. Of Contributory Fault.
Generally speaking, it is a defence to an action of tort
that negligence or other wrongdoing on the part of the
plaintiff ' contributed ' to produce the damage of which he
complains.^ The reason of this lies in the consideration
that a man is not liable for damage which he has not
caused ; ^ or, conversel}', the law holds men liable for
those wrongs alone which the}' have caused. If the de-
fendant did not, either personally, or by another under
his express or implied authority, cause the damage, he is
not liable ; and it is part of the plaintiff's case to show
that the defendant wholly caused the damage of which he
complains.* Now, if there intervened between the act or
omission of the defendant and the damage sustained an
independent act or perhaps omission, whether negligence
or other wrongdoing, which, in the sense of a cause, con-
tributed to effect the damage, it follows that the misfor-
tune might not have happened but for that act or omission ;
and hence the plaintiff cannot prove that the defendant
wholly caused the harm.
But an act or an omission may be said to 'contribute '
1 Observe a want of clearness in this particular in Fitzgerald v.
Connecticut River Paper Co., 155 Mass. 155, 158, 159.
It may be added that the principles relating to the subject of as-
suming the risk, as set forth above, are now recognized by most if not
all of our courts, though in the application of them more or less conflict-
ing dicta may be found, and some conflicting conclusions. The cases
are innumerable.
2 ]\Iurphy V. Dcane, 101 Mass. 455.
8 The word ' cause ' when here used alone = ' proximate cause.'
4 Murphy v. Deane, supra. The liability of a master for the (in
fact) unauthorized torts of his servant, or of a princiiial for the like
torts of his agent, stands on special grounds.
368 LAW OF TORTS. [Part III.
to a result as well when it does not stand in the relation
of a cause to that result as when it does ; and the term
' contribute ' or ' contributory ' is in fact sometimes used
of situations in which there is no connection of cause and
effect recognized by law, that is, in cases in which the
contributory act or omission is not ' causa proxima ' as it
must be to have any legal consequences, but is only
' causa remota.' ' Causa proxima, non remota, spectatur.'
When the term in question is used in this broader sense,
it will then be necessary to understand that only such
contributory act or omission as may be considered a
proximate cause ^ of the misfortune complained of can
bar the action. But the stricter use of the term as causa
proxima is the more common and better use. In some
cases, the situation may be such that the plaintiff cannot
recover even when the defendant's fault was adequate to
produce the injury without the plaintiff's negligence, as
in certain cases of collision where the fault on each side
is contemporaneous.^ But in no case can the plaintiff
recover where the evidence falls short of showing that
the defendant's act or omission proximately caused the
injury.
On the other hand, conditions (remote causes) must not
be confounded with proximate causes.^ The mere fact that
a person or his property is in an improper position, when,
if he had not been there, no damage would have been done
to him, does not preclude him from recovering.* Such
circumstance is only a condition to the happening of the
damage, not a cause of it.^ The misfortune may have been
a very unnatural and extraordinary result of the situation,
not to be foreseen in the light of ordinary events ; and,
1 Not necessarily as the only one.
2 Muqihy v. Deane, 101 Muss. 455, 464, 465 ; Brember v. Jones,
1894, N. H.
8 Newcomb v. Boston Protective Dept. 146 Mass. 596; Cases, 557.
* Id. * Id.
CiiAP. XVII. § 11.] NEGLIGENCE. 3(39
whea that is the case, the fact that the person or property
was in the particular situation is not in contemplation of
law a cause of the damage. A man may in the day-time
fall asleep in the country highway, or leave his goods
there, and recover for injury by another's driving care-
lessly over him or them ; since, though the position occu-
pied is a condition to the damage, the damage is not the
natural result of the act.-^
The law therefore considers whether the conduct of the
plaintiff had a natural tendency, such as exists between
cause and effect, to place the party or his property in the
direct way of the danger which resulted in the disaster.
If it had not, it did not, in the sense of a cause, contrib-
ute to the injury. For example : The defendant sails a
vessel in such a careless manner as to cause a collision
with another vessel on which the plaintiff is a passenger ;
the plaintiff at the time standing in an improper place for
passengers, to wit, near the anchor, which is struck by the
defendant's boat and caused to fall upon the plaintiff's leg,
breaking it. The defendant is liable ; the plaintiff's stand-
ing in the improper position not contributing, in the
stricter sense, to the injury, since it would not be the
natural and probable result that one standing there would
be hurt by a collision.^ Again : The defendant driving
carelessly along the highway runs against and injures the
plaintiff's donkey, straying improperly therein, and fet-
tered in his forefeet so as not to be able to move with
freedom. This is a breach of duty to the plaintiff; the
latter's act not contributing, in the same sense, to the
1 See the remarks of Parke, B. in Davies v. Mann, 10 M. & W. 546,
549.
2 Greenland v. Chaplin, 5 Ex. 243. Or, as Pollock, C. B. sug-
gested, the plaintiff could not have foreseen the consequences of stand-
ing where he did ; that i.s, such consequences were unusual, not the
common effect of such an act.
24
370 LAW OF TORTS. [Pakt III-
damage.^ Again : The plaintiff's vehicle, improperly
placed in the highway, is run into negligently by the
defendant's team. The plaintiff is not disentitled to
recover because of the position of his vehicle.^
In accordance with the same principle, a traveller may
be riding a horse or in a carriage which he had no right to
take or use, or on a turnpike without payment of toll, or
with a speed foi'bidden by law, or upon the wrong side of
the road •,* or his horses may be standing in the street of a
town, without his attending by them and keeping them
imder his command as the law requires ; in none of these
cases is his right of action for any injury he may sustain
by the negligent conduct of another affected by these cir-
cumstances. He is none the less entitled to recover, un-
less it appear that his own neghgence or other wrongdoing
contributed as a proximate cause to the damage. *
This is equall3' true tliough the plaintiff is a positive
trespasser, as the examples elsewhere given of parties in-
jured by savage dogs or spring-guns while trespassing b}-
day upon the defendant's premises clearly show ; ^ for it
is not the natural or usual effect of trespassing in the da}'-
time (not feloniously) that the part}' should be bitten by a
savage dog not known of before the entr}', or maimed
b}' the discharge of a hidden gun. "Wrongful acts or
omissions cannot he set off against each other, so as to
make the one excuse the other, unless they stand respec-
tively in the situation of true causes to the damage.
In this connection attention may be called to certain
cases of injury sustained on Sunday through the defend-
ant's neghgence bj' a plaintiff engaged in acts neither of
1 Davies v. Mann, 10 M. & W. 546.
2 Newcomb v. Boston Protective Dept., 146 Mass. 596.
8 IJrember v. Jones, 1894, N. H.
* Norris v. Litchfield, 35 N. H. 271, Bell, J.
5 Bill! V. Holbrook, 4 Bing. 628 ; Loomis v. Terry, 17 Wend. 496 ;
ante, p. 346, note.
CiiAP. XVII. § 11.] NEGLIGENCE. 371
necessity nor of charity ; in other words, in acts rendered
uuhxwful by statute. By many of the courts it is held
that the phiiutiff is not thereby precluded from recovering
for damage sustained, in the absence of explicit language
to that effect in the statute ; and this on the ground that
the mere doing of the illegal act is not, or may not be,
contributory in the proper sense to the damage sustained.^
For example : The defendant, a town, bound to keep a
certain bridge in repair, negligently allows it to get out of
good order ; and the plaintiff, without notice of the con-
dition of the bridge, in attempting to drive cattle over it
to market on Sunday breaks through the bridge, several
of his cattle being killed and others hurt thereby. The
defendant is guilty of a breach of duty to the plaintiff,
and liable to him for the damage sustained ; the violation
of the Sunday law not properly contributing to the result,
since it is not the natural or usual result of travelling
on Sunday that damage should foUow.-
This is clearly correct in principle, in the absence of
language of the statute plainly intended to prohibit all
actions for damage snstained on Sunday, except such
as is caused without any violation of law by the injnred
party ; but the contrary rule pi-evails, or has prevailed,
in some of the States.^ This contrary rule, however, is
considerably narrowed by the courts which adhere to it.
It is considered not to apply to cases in which the defend-
1 Sutton V. Wauwatosa, 29 Wis. 21 ; Cases, 546; Jlohney v. Cook,
26 Penn. St. 342; Core}' v. Bath, 35 N. H. 530; Carrol v. Staten Is-
land R. Co., 58 N. Y. 126.
* Sutton V. Wauwatosa, supra.
* Bosworth V. Swansea, 10 Met. 363 ; Jones v. Andover, 10 Allen,
18; Connolly v. Boston, 117 Mass. 64. See however Newcomb y. Bos-
ton Protective Dept., 146 Mass. 596, which in principle is opposed to
these cases. The law of the State has been changed by statute
recently.
372 LAW OF TORTS [Part IIL
ant has misused property of the plaintiff hired on Sunday.*
So too it is held that one who is walking on the highway
on Sunday, simply for exercise and fresh air, may recover
against a town for negligence whereby he has sustained
damage.^
It is laid down in certain cases that, if the plaintiff
could have avoided the disaster by the exercise of ' due
care,' he is not entitled to complain of the negligence of
the defendant.^ This is not intended, however, to sug-
gest a general test of liability. In the case of the fettered
donkey above stated, the plaintiff might have avoided the
effect of the defendant's negligence by keeping his animal
at home, but he was still held entitled to recover. The
meaning of the rule in question is that in the moment of
actual peril the plaintiff' must not be guilty of failing to
exercise such reasonable care under the circumstances as
he can, to protect himself against damage. Being at
hand at the moment, the plaintiff' might be able to prevent
harm, and must govern himself accordingly.
One who, however, in a sudden emergency loses one's
presence of mind through the misconduct of the defendant,
and while in such loss, and owing to it, falls into danger
and is hurt, is not thereby guilty of want of due care or of
^ Hall V. Corcoran, 107 Mass. 251, overruling Gregg i\ Wyman, 4
Cush. 322, on authority of which Wlieldon v. Chappel, 8 R. I. 230,
was decided. See also Woodman v. Hubbard, 25 N. H. 67 ; Morton
V. Gloster, 46 Maine, 520.
2 Hamilton v. Boston, 14 Allen, 475. See further Cox v. Cook, id.
165 ; Feital v. Middlesex R. Co., 109 Mass. 398.
3 Haley v. Case, 142 Mass. 316, 321 ; Ferren v. Old Colony R. Co.,
143 Mas^ 197 ; Ciriack v. Merchants' Woolen Co., 151 Mass. 152; s. 0.
146 Mass. 182; Rus.sell v. Tillotson, 140 Mass. 201 ; Butterfield ».
Forrester, 11 East, 60 ; Bridge v. Grand June. Ry. Co., 3 M. & W". 244 ;
Davies v. Mann, 10 M. & W. 546 ; Tuff v. Warnian, 5 C. B. N. s. 573,
Exch. Ch. ; Caswell v. Worth, 5 El. & B. 849.
CiiAP. X^^II. § 11.] NEGLIGENCE. 373
contributory negligence.^ The defendant's unlawful act
has caused the loss of presence of mind, and what hapi)ens
afterwards is but the natural effect of the act. For exam-
ple : The defendant is carelessly driving an express wagon
along the sidewalk of the street of a city, at a rapid
rate, which suddenly conies up behind the plaintiff, when
she instinctively springs aside to escape danger, and in so
doing strikes her head against the wall of a building, and
is hui-t. The defendant is liable. ^ Again : The defend-
ant, a railway company, negligently leaves the gates of a
level-crossing open, and the plaintiff is thereby misled into
crossing, supposing it to be safe to cross, but not using
his faculties as well as he might have done under other
circumstances ; and he is hurt by a passing train. The
defendant is liable.^
On the other hand, it is laid down in certain cases that
the plaintiff" ma}' be entitled to recover, if the defendant
might, b}'^ the exercise of ' due care ' on his part, have
avoided the consequences of the negligence of the plain-
1 Comp. The Bywell Castle, 4 P. Div. 219 ; Sweeny v. Old Colony
R. Co., 10 Allen, 368 ; Cases on Torts, 467. For a shock to the ner-
vous system and consequent illness from fright caused by the defend-
ant's negligence, where there is no impact, it is held that there is no
liability. The damage is deemed 'remote.' That is, the supposed
cause was not a legal cause, since its ojieration would depend upon in-
diviclual susceptibilities, and would not be uniform. Victorian Ej'.
Comm'rs v. Cuultas, 13 App. Cas. 222, fright by narrow escape from
collision. See Warren v. Boston & M. R., 163 Mass. 484, 487. But
see Mitchell v. Rochester Ry. Co., 30 Abb. N. C. 362 ; Harv. Law
Rev. Jan. 1894, p. 304. Such a case, however, should not be con-
founded with an assault ; there the putting in fear is intentional.
2 Coulter V. American Expi-ess Co., 56 N. Y. 585. See also Johnson
V. "West Chester Ey. Co., 70 Penn. St. 357 ; Galena R. Co. v. Yarwood,
17 111. 509.
8 Northeastern Ry. Co. v. Wanless, L. R. 7 H. L. 12 ; Sweeny v.
Old Colony R. Co., supra. See Davey v. Southwestern Ry. Co., 12 Q. B.
Div. 70 ; Dublin & Wicklow Ey. Co. v. Slattery, 3 Api). Cas. 1155.
374 LAW OF TORTS. [Part IIL
tiff.^ This too caunot be intended to suggest a general
test of liability. In the case of one who in the want of
due care has fallen through a trap-door left open by the
defendant negligently, the defendant clearly might have
avoided the consequence of the plaintiff's negligence by
having closed the door ; and yet he is not liable. The
meaning of the rule is that vphere the plaintiff was not at
hand, so as to prevent the damage, the defendant will be
liable if by due care he might have prevented the harm
and did not exercise it. The question would be proper
in a case like that of the fettered donkey."^ Again : The
defendant is pilot of a steamer on the Thames, which runs
down tlie plaintiff's barge. There is no look-out on the
barge, but there is evidence that the steamer might easily
have cleared her. It is proper to leave it to the jury to
say whether the want of a look-out is negligence in the
plaintiff, and if so, whether it directly contributed to the
damage done ; the negligence of the plaintiff', if found,
not barring his action if the defendant might have avoided
the consequences of it by the exercise of due care.^ If
the rule referred to were applied to cases of simultaneous
negligence, at the moment of disaster either part}' to a
collision caused by their joint carelessness might be enti-
tled to recover against the other ; while, in truth, neither
can recover.*
1 Tuff V. Warman, 5 C. B. n. s. 573, Exch. Ch. leading case.
2 See also Radley v. London & Northwestern Rj'. Co., 1 Aj^p. Cas.
754, reversing L. R. 10 Ex. 100, and restoring L. R. 9 Ex. 71, a very
instructive case. See especially p. 760, Lord Penzance, quoted in Pol-
lock, Torts, p. 378. It is there stated that if the defendant ' might at
this stage of the matter [the actual emergency] by ordinary care have
avoided all accident, any previous negligence of the plaintiffs would not
preclude them from recovering.'
3 Tuff V. Warman, 5 C. B. N. s. 573.
4 Murphy v. Deane, 101 Mass. 455, 464, 465. Certain of the lan-
guage in Tuff V. Warman, supra, is here criticised, but not so as to
affect the example of the text.
Chap. XVII. § 1.3.] NEGLIGENCE. 375
§ 12. Of Comparative Negligence.
In some States a doctrine of 'comparative negligence'
takes the place of the doctrine of contributory negligence.
It has been stated from the bench as follows : Where there
has been negligence in both plaintiff and defendant, still
the plaintiff may recover if his negligence was slight, and
that of the defendant gross in comparison. And this rnle
has been extended to cases in which the negligence of the
plaintiff has contributed, in some degree, to the injury
complained of.^ The defendant's negligence, however,
must stand as a cause towards the injury."^ Accordingly
it was laid down, of death caused at a railroad crossing,
that if the deceased was guilty of negligence in not ob-
serving the precautions which an ordinarily prudent man
would observe before attempting to cross the track, then
the real question was, whether his negligence in that re-
spect was slight in comparison with that of the defendants,
if they were guilty of negligence at all.^
§ 13. Of Intervening Forces.
Thus far of the contributor}' acts or omissions of the
plaintiff. But it may be that between the wrongful act of
the defendant and the damage sustained by the plaintiff
there intervened an act or agency of a third person, in no
way probable and not in fact anticipated,^ which directl}'
produced the damage. If this be the case, and the mis-
fortune would not have followed without it, the defendant,
1 Chicago & Q. R. Co. v. Van Patten, 64 111. .510, 517, Scott, J.
2 H. at p. 514. 3 Id. p. 517.
4 See Clark v. Chambers, 3 Q. B. D. 327, as to damage resulting
from removal by a third person of obstructions unlawfully put in the
highway by the defendant, he being held liable.
376 LAW OF TORTS. [rARX III.
similarly it seems, will not be liable. For example : The
defendant wrongfully sells gunpowder to the plaintiff, a
boy eight years old, who takes it home and puts it into a
cupboard, where it lies for more than a week, with the
knowledge of the child's parents. The boy's mother now
gives some of the powder to him, which he fires off with
lier knowledge. This is done a second time, when the
child is injured by the explosion. The defendant is not
liable.^
Indeed, the defendant can never be liable when any-
thing out of the natural and usual course of events un-
expectedly arises and operates in such a way as to make
the defendant's negligence, otherwise harmless, productive
of injury. A whirlwind does not usually arise on a quiet
day, and hence, though a person should build a small fire
in a country road, contrary to law, on a mild day, he
would not (probably) be liable for the consequences of a
whirlwind suddenly springing up and scattering the fire,
to the damage of another.^
The case will be different if the party acted with a real
or a presumable knowledge of the intervening act, agency,
or force of nature. In this case he will be liable. For
example : The defendant shoots a pistol against a pol-
ished surface in a thoroughfare, at such an angle as to
render it likely that the ball will glance and hit some one.
It does glance and hits the plaintiff. The defendant has
caused the injury and is liable.^ Again : The defendant
1 Carter v. Towne, 103 Mass. 507.
2 Comp. Insurance Co. v. Tweed, 7 "Wall. 44. For all that happens
in the regular course of things, under the conditions as they exist at the
time of the act or omission in question, the defendant will be liable,
though the particular harm resulting may have been altogether im-
probable. See the important case of Smith v. Southwestern Ry. Co.,
L. K. 5 C. P. 98, and 6 C. P. 14, Exch. Ch.; ante, pp. 41, 42.
3 This exam])le is fairly borne out by Scott v. Shepherd, 3 Wils.
403.
Chap. XVII. § 13.] NEGLIGENCE. 377
throws a lighted squib into a market-house on a fair-day,
which strikes the booth of A, who iustinetively throws it
out, when it strikes the booth of B. The latter casts it out
in the same manner, and it now strilces the plaintiff in the
face, injuring him. The defendant is liable.-' Again:
The defendant wrongfully sells a mischievous hair-wash to
the plaintiff's husband, knov.-iug that it is intended for the
plaintiff's use, and the plaintiff is injured in using it. The
defendant is liable.^ Again : The defendant, a manufac-
turer of drugs, negligently labels a jar of belladonna,
put up by him, as dandelion, the former a poisonous, the
latter a harmless, drug. The jar passes from the defend-
ant to a wholesale dealer, then to a retail dealer, and a
portion of it then to the plaintiff, who buys and takes it
as dandelion. The defendant is liable ; the intermediate
parties have only carried out, in the sale, the intention of
the defendant.'
In cases, however, where the alleged breach of duty is
directly involved in a breach of contract, the courts quali-
fiedly deny the liability of the defendant to any one ex-
cept to the party with whom he made the contract, — a
point elsewhere noticed.* The authorities are not alto-
gether consistent, but there appears to be an agreement in
regard to cases of intended harm ; and the general result
may be stated to be, that if the defendant intended or
if he can fairly be assumed to have intended the acts
1 Scott V. Shepherd, 3 "Wils. 403.
2 George v. Skivington, L. R. 5 Ex. 1. See Cann v. "Willson, 39 Ch.
D. 39, 43.
8 Thomas v. Winchester, 6 N. Y. 397 ; Cases on Torts, 567. The
reason given by the court, however, was that the defendant, being en-
gaged in a very dangerous business, acted at his o\\ii peril. Comp.
Farrant v. Barnes, 11 C. B. N. s. 553, and Brass v. Maitland, 6 El. &B.
470. See also Schubert v. Clark, 5 N. W. Kep. 1103; DavidKon d.
Nichols, 11 Allen, 514. The subject is well discussed in 2 Law Quar-
terly Review, 6.3-65: Pollock, Torts, 439 et scq., 2d ed.
* Ante, pp. 134, 135. See L. C. Torts, 617-619.
378 LAW OF TORTS. [Part IIL
of the intermediate agency, lie will be liable, thougb his
act was a breach of contract with another.^ The fact of
the existence of a duty to the person with whom he con-
tracted is not inconsistent with the existence of another
duty respecting the same thing. The duty to forbear to
do intentionally a thing obviousl}' harmful preceded the
formation of the contract ; and it is difficult to see how
that duty, owed to all persons, could, b}' a contract made
with one or several, be abrogated as regards others.'^
The difficulty is with cases short of intention, that is,
with cases of negligence only. It has been supposed that
if, by the negligence of A, a contract is broken between B
and C, the injured party cannot maintain any action
against A ; it being declared that no duty is infringed or
exists except that created by the contract. For example :
The defendant, a railway company, contracts with the
plaintiif's servant to carry him safely to a certain place,
but negligentl}' injures him on the way. This is no breach
of duly to the plaintiff.^
There is grave doubt, however, both in principle and
upon authority, whether, apart from particular cases like
the one just referred to, the rule itself upon which the
decision is founded can be supported.* A railroad com-
1 See Langridge v. Levy, 2 Mees. & W. 519: s, c. 4 Mees. k. AV.
338; alsoCollis v. Selden, infra, and George v. Skivington, above cited,
further see Heaven v. Pender, 11 Q. B. Div. 503, 514.
2 See Meux v. Great Eastern Ry. Co., 1895, 2 Q. B. 387, 390.
8 Fairmount Ry. Co. ■;;. Stutler, 54 Penn. St. 375 ; Alton v. Mid-
land Ry. Co., 19 C. B, N. s. 213. But see 1 Wms. Saund. 474 ; Pol-
lock, Torts, 474, 2d ed. It has been pointed out that in Winterbottom
V. Wright, 10 M. & W. 109, and Longmeid v. Holliday, 6 Ex. 7G1,
generally relied upon for the rule under consideration, there was no neg-
ligence on the part of the defendant ; in the one case knowledge of the
defect not being alleged, in the other not being proved. Pollock,
Torts, 477, 2d ed. See also Collis v. Selden. L. R. 3 C. P. 495.
* See Taylor v. Manchester Ry. Co., 1895, 1 Q. B. 134, 140; Id.
944; Meux v. Great Eastern Ry. Co., 1895, 2 Q. B. 387.
CiiAP. XVII. § 13.\ KEGLIGENCE. ' 379
pany or other person would not (probably) be liable to a
master for an injury wrongfully done to a servant, with-
out notice of the relation of master and servant.^ But if
there is a duty to refrain from intentional wrong, it is not;
easy to see why there cannot be a duty to refrain froi^
negligence, where that is attended with notice of the con-
tract, that is, of the rights of the plaintitT.
As a question of authority, there are cases of negligence
entitled to great weight which are quite inconsistent with
the view that the contract creates the only duty that exists
in such situations. For example : The defendant, a rail-
way company, contracts with the plaintiff's master, with
whom the plaintiff is to travel in the defendant's coaches,
to carry the plaintiff's luggage to a certain place, which the
defendant, through negligence, fails to do. This is a
breach of duty to the plaintiff.^ Again : The defendant,
a railway company, receives the plaintiff into one of its
coaches, on a ticket bought from another railway com-
pany, with which the defendant shares the profits of
tratHc. The steps of the defendant's coaches are too high
for persons to alight easily at the station, which is owned
by the other company ; and in alighting with due care the
plaintiff is hurt. The defendant is liable, without regard
to the question whether the plaintiff had contracted with
the other company.'
If the duty resting upon the defendant be that of
common carrier of passengers, or of goods, the carrier or
^ Comp. such cases as Blake v. Lanyon, 6 T. R. 221.
2 Marshall v. York & Newcastle Ry. Co., 11 C. B. 655 ; Austin v.
Great Western Ry. Co. L. R. 2 Q. B. 442. The first of these cases
T\-as hefore Alton v. Midland Ry. Co., supra, but the second was after-
wards, and in it Marshall's Case was cited with approval hy Black-
burn, J. See also Foulkes v. Metropolitan R}'. Co., 5 C. P. Div. l.")? ;
Ames V. Union R. Co., 117 Mass. 541 ; and cases like Heuleyu. Lyme
Regis. 5 Bing. 91, and 1 Bing. N. C. 222, ante, p. 342.
^ Foulkes V. Metropolitan Ry. Co., supra.
380 LAW OF TORTS. [Part III.
bailee will be liable for the damage produced by a breach
of his contract, due to his own negligence, even though the
negligence of a third person should contribute to the dam-
age sustained ; for the party was bound to exercise due
care, and has not done so.^ For example : The defend-
ants, a railroad company, contract to carry the plaintiff to
W, but on the way the train carrying the plaintiff is
brought into collision with the train of another railroad
company, at a crossing, through the negligence of the
managers of both roads, and the plaintiff suffers injury
thereby. The defendants have violated their duty to the
plaintiff, and are liable for the damage sustained by
hiui.^
The same doctrine would, indeed, apply to cases aris-
ing under any ordinary absolute contract for the perform-
ance of a specific duty. For example : The defendants
contract to supply the plaintiffs with proper gas pipe.
Gas escapes in a certain room from a defect in the pipe
provided, a third person negligently enters the room with
a lighted candle, and an explosion takes place. The de-
fendants are liable for the loss thereby caused. ^
The rule formerly prevailed in England that a passenger
in a stage or railway coach, or other vehicle, became by
the act of obtaining passage ' identified ' in law with the
driver or manager of the vehicle. The effect of this doc-
trine was, that in an action by the passenger against a
third person for negligence, whereby the former suffered
damage in the course of the ride or journey, negligence on
the part of the driver or manager of the vehicle in which
the plaintiff has taken passage, contributing to the mis-
fortune, was the negligence of the plaintiff. The plaintiff,
1 Comp. Burrows v. March Gas Co., T.. U. 7 Ex. 96, Exch. Ch.
2 Eaton V. Boston & L. R. Co., 11 Allen, 500.
8 Burrows v. March Gas Co., L. R. 7 Ex. 96, Exch. Ch.
CuAP. XVII. § 13.] NEGLIGENCE. 381
therefore, was not entitled to recover, though he might
himself have been free from fault. -^ This doctrine ob-
tains in some of our courts.'^ For example : The defend-
ant, owner of a stage-coach, by her driver's negligence
runs over and kills the plaintiff's intestate, while he is
alighting from another stage-coach ; which latter coach,
by the negligence of the driver, has stopped at an im-
proper place for alighting. The latter's negligence is
properly contributory, but the deceased was not person-
ally at fault. The defendant is deemed not liable.^
The doctrine was much criticised and often denied by
other courts ; * and in the form above presented it was re-
cently overruled in England.^ It was hard to understand
how the plaintiff could be considered identified with the
driver of the carriage when the driver was wholly under
the control of another. The driver could not be the pas-
senger's servant in any accurate sense in such a case ;
since the essential feature of the relation of master and
servant is wanting, to wit, authority over the supposed
servant.^ And, for the same reason, the driver could not
be considered as the passenger's agent. The passenger
could not contract directly with the driver in the first in-
stance, or require him to go or to stay ; nor could he
1 Thorogood v. Bryan, 8 C. B. 115 ; Armstrong u. Lancashire Ry.
Co., L. R. 10 Ex. 47 ; Cleveland R. Co. v. Terry, 8 Ohio St. 570 ;
Puterbangh v. Reasor, 9 Ohio St. 484 ; Lockhart v. Lichtenthaler, 46
Penn. St. 151 ; Smith v. Smith, 2 Pick. 621.
■■' See cases in note 1, supra. 3 Thorogood v. Bryan, supra.
* The Milan, Lush. 388; Brown v. McGregor, Hay (Seotl.), 10;
Little V. Hackelt, 116 U. S. 366 ; Chapman v. New Haven R. Co., 19
N. Y. 341 ; Coleman v. New York & N. H. R. Co., 20 N. Y. 492 ;
Webster v. Hudson River R. Co., 38 N. Y. 260 ; Danville Turnp. Co.
V. Stewart, 2 Met. (Ky.) 119.
5 The Bernina, 12 P. Div. 58, affirmed, nom. Mills y. Armstrong, 13
App. Cas. 1 ; Cases, 575.
« Donovan v. Laing Syndicate, 1893, 1 Q. B. 629, 634.
382 LAW OF TORTS. [Part III.
compel him to stop by the way, or direct him to take a
particular road, or how to drive, or how to pass a coach
or au obstruction.^ Instead of an identification between
passenger and driver, the driver himself would be liable,
with the other wrong-doer, to the passenger.^
If, however, the passenger were himself in fault, as by
participating in the negligent conduct of the driver, or by
du'ecting it in advance, it is clear that he could not
recover ; supposing the negligence to have contributed
to the misfortune. In such a case as this, he makes the
driver, pro hac vice, his servant, and may therefore be
said to be ' identified' with him.
Upon views not unlike those in regard to the supposed
' identification ' of passenger and carrier, the negligence of
the parent or guardian or other person in charge of a young
child, in allowing the child to fall into danger, has some-
times been deemed ' imputable ' to the child, so as to
affect the child with contributory negligence in all cases in
which the parent or guardian would in the same situation
be barred of a right of action.^ For example : The de-
fendants, a railroad company, by the negligence of their
servants in the course of their employment and the con-
1 Identification, in any such sense as making the driver or manager
of the vehicle the servant or agent of the passenger, had been ah-eady
repudiated by Pollock, B., in Armstrong v. Lancashire R. Co., L. R.
10 Ex. 47, 52.
2 See The Bernina, supra.
8 See Mangan v. Atterton, L. R. 1 Ex. 239 ; Clark v. Chambers, 3
Q. B. D. 327 ; Waite v. Northeastern Ey. Co., El. B. & E. 719 ; Hughes
V. Macfie, 2 H. & C. 744 ; Wright v. JIalden R. Co., 4 Allen, 283 ;
Holly V. Bo.ston Gas Co., 8 Gray, 123; Callahan v. Bean, 9 Allen,
401 ; Pittsburgh R. Co. v. Vining, 27 Ind. 513 ; Lafayette R. Co. v.
Huffman, 28 Ind. 287. The doctrine would, so far as it may be sound,
be equally ajiplicable of course to the case of any helpless or imbecile
person.
Chap. XVII. § 13.] NEGLIGENCE. 383
tribntory negligence of a person in charge of the plaintiff,
a child too young to take care of himself, injure the plain-
tiff. They are deemed not liable for the misfortune.^
This doctrine, however, is not accepted by all the
American courts, and has often been met with the same
answer that has been given to the doctrine of imputing to
passengers the negligence of their carriers. The negli-
gence of a parent or custodian of a child, it is well said,
cannot properly be imputed to the child ; and, supposing
the child incapable of negligence, the conclusion is reached
that he can recover for injuries sustained by the negli-
gence of another, though the negligence of the child's
parent or guardian contributed to the misfortune.^
It is clear that if the child himself be guilty of contribu-
tory negligence (supposing him capable of negligence),
apart from the negligence of his parent or guardian, there
can be no recovery ; and whether the child be capable of
personal negligence is a question of fact, depending upon
his age and ability to take proper care of himself.^ It has
sometimes been said that the same discretion is necessary
in a child that is required of an adult.* This, however,
could only be true, it should seem, in those cases in which
the child is sufficiently mature to be able to take good care
of himself. In other cases, the better rule is that, so far
as the question of the cMlcVs negligence is concerned, it
is only necessary that he should exercise such care as
he reasonably can, or as children of the same capacity
generally exercise.^
1 Wrif^ht V. Maiden Ey. Co., 4 Allen, 283.
2 Bellefontaine R. Co. v. Snyder, 18 Ohio St. 399 ; North Penn. R.
Co. V. Mahoney, 57 Penn. St. 187 ; Cases, 586 ; Louisville Canal Co. v.
Murphy, 9 Bush, 522 (Ky.).
8 Lynch v. Nurdin, 1 Q. B. 29 ; Lynch v. Smith, 104 Mass. 52 ;
ETansich v. G. Ry. Co., 57 Texas, 126.
4 Burke v. Broadway R. Co., 49 Barb. 529.
5 Lynch v. Smith, supra.
384 I>AW OF TORTS. [Part III.
. In the case of a child too young to take care of him-
self, it is held that, if the negligence of the parent or
person in charge is the sole proximate cause of the mis-
fortune, the defendant cannot be liable. For example :
The defendant, a railway company, is negligent in
moving a train along one of its tracks. The plaintiff's
grandmother, who has bought of the defendant a ticket
of passage for herself and the plaintiff, a child, negli-
gently attempts to cross the track in charge of the child,
and the child is injured by train. The defendant is
deemed not liable ; the defendant having the right to
expect that the lady would take due care of herself and
of the plaintiff.^
It is, however, clear that if the fault of the person in
charge of the child was not a proximate cause of the mis-
fortune, the defendant, being negligent, will be liable.^
The parent or other person in charge could recover for
an injury done to himself by the defendant's negligence ;
and a fortiori should a young child, incapable of negli-
gence, be entitled to recover in such a case. And the
same would be true of negligence on the part of the child
(supposing him capable of negligence) when such fault
did not contribute as a proximate cause to the injury.
For example : The defendant, a hackman, carelessly runs
over a child five years of age, in a city, while the child is
crossing a street alone, on his way home from school
The child is not guilty of any negligence further than may
1 "Waite V. Northeastern Ry. Co., El. B. & E. 719, approved in the
Bemina, supra, by Lord Esher, 12 P. Div. at pp. 71-75. See 13 App.
Cas. 10, 16, 19. This assumes that the defendant's negligence was not
also a proximate cause of the injury, as it might be, as where the per-
son in charge of the child, and the defendant, were driving negligently
and came into collision. But there is ground for doubt still in regard
to Waite's Case.
3 Ihl V. Forty-second St. R. Co., 47 N. Y. 317, 323.
C]iAj>. XVIL § 13.] NEGLIGENCE. 335
be implied from his going alone ; in regard to tbis tbs
child's parent may be negligent. The defendant is liable ;
the negligence of the child, if there was any iu his going
alone, and of the parent, if found to exist, not contribut-
ing in the stricter sense to the misfortune, since it is not
the natural and usual effect of a child's crossing the street
that he should be run over.^
Indeed, it is not clear that the rule should not be that
a child of tender years, that is to say, incapable of negli-
gence, should be able to maintain an action for the injury
he has sustained in cases of this kind, though the person
in charge was guilty of contributory negligence. It
might be considered enough that the defendant's act or
omission was (though not the sole) a proximate cause of
the damage. And the principle of the recent decisions
above referred to in regard to passenger and carrier
appears to sustain the view that if the negligence of each
of the persons concerned is, as it might well be, a proxi-
mate cause of the injury to the plaintiff, both of them are
liable.
If the parent sue for himself, upon the relation of mas-
ter and servant, for loss of service, the question is some-
what different. If the child be incapable of negligence,
the question will be whether the parent's negligence con-
tributed iu the stricter sense to the misfortune ; but
if the child were capable of negligence, and were in
fact negligent, it would still be doubtful in principle
whether any negligence of his could bar an action
gainst another by the parent, as a master, for loss of
service caused, though in part only, by the defendant's
negligence.^
The result is, that whatever particular phase a case may
1 Lynch v. Smith, 104 Mass. 52.
2 Compare the action for soilnction, ante, pp. 164 et seq. See also
Glassey v. Hestonville Ry. Co., 57 Peiin. St. 172.
25
386 LAW OF TORTS. [Part UL
present, be it coutrtbutory negligence or an intervening
agency, the question upon which the defendant's liability
turns must be whether his conduct was the (or was a)
proximate cause of the damage, or only a condition
thereto.
INDEX.
INDEX.
[The italic lines indicate the titles to sections.]
A.
ABRIDGMENTS,
■wlien infringement of copyright, 2G7.
ABUSE OF PROCESS,
effect of, 100, 101.
ACCIDENT,
as an excuse of a battery, 155.
(See Negligence )
ACQUITTAL,
in suits for malicious prosecution, 85-87.
ACTIO PERSONALIS MORITUR CUM PERSONA,
applies to death of either party, 45, 46.
death of servant, 163, 164.
ACTOR,
hissing an actor off the stage, 107.
ADMINISTRATORS AND EXECUTORS,
liability for negligence, 339.
AFFRAYS,
arrests in cases of, 189.
AGENT,
distinguished from servant, 33, 34.
function of, 34.
general liability of principal for torts of, 34.
liability of innocent principal for torts of, 34, 35.
misrepresentation of authority, 65.
liability to principals for negligence, 335-337.
insurance agent's duties, 336, 337.
390 INDEX.
AMBIGUITY,
distinguished from vagueness, 55.
ANIMALS,
property in, 229, 230.
injuring, 230, 304.
Nolice of Propensity to do Damage, 300-303.
wild animals, 301.
domestic animals, 301.
negligence of owner, 301, 302.
damage by animals on owner's premises, 302.
negligence iu such case, 302.
injured party having notice, 302.
Escape of Animals, 302-304.
duty to provide fences, 302, 303.
escape from highway, 303, 304.
strays from common, 303, note.
ARBITRATORS,
not liable for negligence, 344.
ARREST.
{See False Imprisonment.)
ASSAULT AND BATTERY,
Assault, 149-152.
what constitutes, 149, 150.
intention, 150.
putting in fear, 150, 151.
distance of parties from each other, 151.
damage, 152.
Battery, 152-157.
what constitutes, 152, 153.
contact, 153.
intention, 154, 155.
negligence, 154, 155.
accident, 155.
acts done in sport, 156.
hostile acts, 15G.
taking property, 156, 157.
Son Assault Demesne, 157-161,
what amounts to, 1.57, 158.
acts of parents and schoolmasters, 157.
self-defence, 158.
INDEX. 391
ASSAULT AND BATTERY — coH/muerf.
protection of jjroperty, 158, 159.
amount of force which may be used, 159.
'molliter m;inus iinposuit,' 159, note.
defence of family, KiU.
defence of master, 160.
defence of servant, 160.
quelling a riot, 160.
Violence to Auolhei-'s Servants, 160-164.
double right of action, 160, 161.
servant's right, 161.
master's right, 161.
parent's right, 162.
breaches of contract, 162, 163.
death of servant or wrong-doer, 163, 164.
ASSIGNEES,
liability for negligence, 339.
ASSUMING THE RISK,
meaning of expression, 357-367.
party must be ' volens ' to risk, 357-367.
ATTORNEY,
liability of, for false imprisonment, 179-182.
for negligence, 329-331.
B.
BAILOR AND BAILEE,
duties of bailee, 321-328.
(See Negligence.)
BASTARDY,
charge of, 124.
BATTERY.
(-See Assault and Battery.)
BLASTING,
damage from, 310.
BUSINESS SIGNS,
fraud as to, 78-80.
392 INDEX.
CARRIER,
exemption of, for negligence, 15, note, 21, 22, note,
general duties of common carrier, 321.
identification of passenger with, 380-382.
CAUSE,
legal theory of, 38-44, 367-374.
continuance of liability through a chain, 40-44.
CERTAINTY,
required in representations, 54, 55.
CHARITABLE CORPORATIOXS,
liability of, for tort, 29.
CHILDREN,
negligence of, 382-384.
CLERK OF COURT,
improper writ issued by, 175, 176.
CLOSE,
meaning of, 206.
COMMON CARRIER,
general duties of, 321.
COMPARATIVE NEGLIGENCE,
meaning of, 375.
CONCEALMENT.
(See Deceit.)
CONFIDENTIAL RELATIONS,
dealings between parties to, 73.
in actions for defamation, 140, 141.
CONSENT,
maxim volenti non fit injuria, 21, 22, note.
of servant, in assuming risks, 357-367.
servant must be ' volens ' to risk, 357-367.
CONSPIRACY,
distinguished from malicious prosecution, 103.
Malice, 105-107.
what amounts to conspiracy, 105-106.
participation in, 106.
overt acts, 106.
no benefit derived, 106.
INDEX. 393
CONSPIRACY — conlinued.
silent observation of, 106.
intention to malie profit, 106.
combination essential to liability in certain cases, 106, 107-
hissing actor olf the stage, 107.
Dainage, 107.
(See Malicious Interference with Contract.)
CONTRACT,
malicious interference with, 108-111.
Distinction between Contract and Properti/, 111.
torts growing out of breaches of, 162, 163, 377, 378.
(See Deceit.)
CONTRIBUTORY FAULT,
what constitutes, 367-374.
(See Negligence.)
CONVERSION,
trover, detinue, and replevin explained, 231, 232.
Possession, 232-236.
right of possession, 233.
special property, 233.
jus tertii, 234.
finding, 234, 235.
possession of servant, 236.
What constitutes Conversion, 236-250.
sale without authority, 237.
JK-nowledge of title, 238.
liability of purchaser, 239.
effect of fraud in sale, 239.
sale with right of repurchase, 239, 240.
conditional sale, 240.
sale of pledge, 240, 241.
sale of qualified interest, 241.
sale of part, 242, 243.
permitting another to sell one's goods, 243.
appropriating article to use not intended, 244.
injury of chattel, 244, 245.
mere assertion of dominion, 245.
intention to convert, 246, 247.
converting to use of third person, 247.
demand and refusal, 248.
refusal only prima facie conversion, 249, 250.
taking of goods by purchaser from vendor having no right;
to sell, 249.
394 INDEX.
COPYRIGHTS,
infringements of, 262-2G9.
{See Patents and Copyrights.)
CORPORATIONS,
liability for tort in general, 28-30.
for particular torts, 29.
in cases of charities, 29.
torts of directors, 66, MO, 341.
CRIME,
defined, 10, note,
distinguished from tort, 19.
imputation of, 118-120.
CRIMINAL CONVERSATION,
action for, 203-205.
CRITICISM,
not defamation, 144.
fair criticism, 144.
of works of art, 144.
of conduct of public men, 144-146.
CUSTOMERS,
injuries to, by condition of premises, 352-357.
D.
DAMAGE
term explained, 17-19.
in deceit, 75-81.
in malicious prosecution, 99, 100.
in conspiracy, 107.
in malicious interference with contracts, 110, 111.
in slander, 115-118.
in assault and battery, 152, 161.
in false imprisonment, 165.
in enticement and seduction. 191, 193, 199.
in trespass, 219.
in conversion, 244, 245.
in infringements of patents and copyrights, 251, 262, 263,
269.
in violation of rights of support, 270.
in violation of water rights, 281.
in nuisance, 287.
INDEX. 395
DAMAGE — continued.
in escape of animals, 303.
in escape of dangerous elements or substances, 305.
in negligence, 314.
dangp:uous things, escape of,
protection against, 305-310.
DEATH,
actio personalis moritur cum persona, 44-46.
of either party terminates liability, 45.
except in what cases, 45, 40.
DECEIT,
elements of action for, 49, 50.
The Representation, 50-62.
definition of 'representation,' 50.
how representation differs from warranty, 50, 51.
warranty treated as representation, 52.
representation requires an act, 52.
silence, 52-54.
concealment, 53.
representation should create a clear impression, 54.
language not necessary, 54.
difference between vagueness and ambiguity, 55.
impression of fact required, 56.
opinion involves fact, 56, 57.
false opinion may be actionable, 56, 57.
prediction, 57.
misleading contrast between fact and opinion, 57.
statements of opinion, 50-58.
statements must be sufficient to influence conduct, 57-61.
statements of value, 57, 58.
statements of income, 58.
statements concerning a man's pecuniary condition, 59.
representation of law, 59, 60.
taking advantage of ignorance of law, 60.
materiality, 60, 61.
falsity, 61, 02.
literal sense of words, 62.
Defendant's Knowledge of Fahitii, 63-66.
honest statement of fact generally not actionable, 63.
exceptions as to matters within the party's peculiar means
i of knowledge, 64, 65.
representations by agents concerning their authority, 65, 66.
396 INDEX.
DECEIT —continued.
representations by directors of corporations, 66.
Ignoi'ance of the Plaintiff, 66-74.
knowledge of facts by plaintiff fatal to action, 66.
belief in defendant's statements, 66, 67.
making investigation, 67.
when plaintiff bound to know the facts, 67.
means of knowledge, 68.
means of knowledge at hand, 6S, 69.
necessity of reading contract, 70.
fraudulent misreading, 70.
damages recoverable without rescission, 70, 71.
prudence disarmed by misrepresentation, 71.
negligence of party deceived, 71.
partial examination of facts by him, 71, 72.
concealment from him, 72.
sale with faults, 73.
parties not on equal footing, 73.
acceptance of property, 73, 74.
Intention that Representation should he acted on, 74-76
explanation of this expression, 74.
reasonable inference of such intention, 75.
intent to injure, 76.
Acting on Representation, 76-78.
damage, 76.
preventing one from attaching property, 77.
when plaintiff entitled to act on representation, 77, 78.
Quasi Deceit, 78-81.
trademarks and quasi-trademarks, 78-80.
infringement of same and elements of action for, 78, 79.
slander of title and elements of action for, 80, 81.
malice in such case, 80, 81.
DEFAMATION.
(See Slander and Libel.)
DEMAND AND REFUSAL,
when necessary to constitute conversion, 249, 250.
DESIGNS,
infringements of patents for, 257, 258.
DETENTION,
of prisoner by officer, 170, 171.
DIGESTS,
whon infringements of copyright, 268.
INDEX. 397
DIRECTORS OF CORPORATION,
misrepresentations by, 60.
liability of, for negligence, 340, 341.
DISEASE,
imputation of having disgraceful, 120, 121.
DISxMISSAL OF SUIT,
in actions for malicious prosecution, 85-89.
DOCK-OWNERS,
duty of, 355, 356.
DOMESTIC SERVANTS,
distinction as to, 36.
DRUNKENNESS,
imputation of, against a woman, 119, note.
DURESS,
effect of, 101.
DUTIES.
the correlation of riglits, 3-9.
as basis of law of torts, 9.
E.
EFFIGY,
defamation by, 127.
ENTICEMENT AND SEDUCTION,
elements of action, 191.
Parent and Child, 192-198.
ground of parent's rights of action, 192.
animus revertendi, 192.
child of age, 193, 194.
pregnancy or disease resulting, 194, 195.
mental suffering, 195.
services, 195.
willingness of daughter, 195.
mother's right of action, 195, 190.
seduction by daughter away from home, 197.
action by daughter, 197.
consent or misconduct of parent, 197, 198.
Guardlnn and Ward, 198, 199.
suit by guardian, 198.
difference between guardian and master, 199.
398 INDEX.
ENTICEMENT AND SEDUCTIO'S — continued.
Husband and Wife, 199-205.
gist of action by husband or wife, 199, 200.
wife's right of action for alienation, 199, note.
liability of parent for enticing daughter from husband, 200,
201.
harboring wife, 201-203.
seduction after wife's separation, 203, 204.
infidelity of husband, 20i.
consent or misconduct of husband, 204.
negligence or inattention of husband, 205.
condonation, 205.
ENTRY,
by fireman, 20.
doctrine of relation of entry, 216, 217.
rights of entry, 208, 220-225.
forcible, 222, note.
by letter-carrier, 350, note.
ESCAPE OF ANliMALS.
{See Animals.)
ESCAPE OF DANGEROUS THINGS,
Nature of Protection required, 305-310.
reservoirs, 306.
effect of gravitation, 307.
extraordinary efforts, 307.
vis major and act of God, 307, 308.
legislative authority, 308, 309.
fall of snow or ice, 309, 310.
damage from blasting, 310.
explosion of boiler. 310.
EXECUTORS AND ADMINISTRATORS,
liability for negligence, 339.
EXPLOSION,
damage from, 310.
F.
FALSE IMPRISONMENT,
Nature of Restraint, 16-5-168.
submission to restraint, 166, 168.
prison-walls not necessary, 167, 168.
INDEX. 399
FALSE IMPRISONMENT — co«/muec/.
partial restraint, 1G8.
Arrest with Warrant, 168-174.
officer's justification, 1G8.
arrest of wrong person, 168.
misleading officer, 1G9.
description in writ of person intended, 169.
misnomer, 169.
acts in excess of authority, 170.
oppressive conduct, 170.
detention after writ has expired, 170.
detention on other writs, 171.
retaking escaped prisoner, 172.
in civil cases, 172.
in criminal cases, 172, 173.
invalidity of writ, and effect on officer, 173.
■writ void or not, when, 173, 174.
officer's liability restated, 174.
liability of clerk, 175, 176.
liability of judge, 177-179.
summary, 179.
liability of plaintiff and his attorney, 179-183.
irregularity and error, 181, note.
distinction between civil and criminal cases, 182, 183.
setting aside the writ, 183, 184.
distinguished from malicious prosecution, 184.
Arrests without Warrant, 181-190.
when proper, 185
arrest on the spot, 185.
on suspicion of felony by officer, 185, 186.
reasonable cause, 18G, 187.
misdemeanor, 188.
arrest after termination of breach of peace, 188, 189.
affrays, 189.
right of private citizen to arrest, 189, 190.
FELLOW-SERVANTS,
torts in general by, 35, 36.
injury by negligence of, 360-364.
who are, 361.
FINDING,
gives right of possession against wrong-doer, 234, 235.
FIREMAN,
entering premises, 20.
400 INDEX.
FORCIBLE ENTRY,
by license, 222, note.
FOX'S ACT,
practice under, 113, note.
FRAUD,
a technical term, 11.
as an element of liability, 11-13.
how proved, 93, 64.
makes sale voidable, 239.
{See Deceit.)
FRUIT,
falling upon another's land, 224.
G.
GRATUITY,
interfering with enjoyment of, 5, 6.
GUARDIAN AND WARD,
seduction of ward, 198, 199.
H.
HARBORING,
of servant, 191.
of wife, 201-203.
HIGHWAYS,
obstructing, 297, 298.
HOUSES,
fall of, 271-278.
HUSBAND AND WIFE,
defamation of either, 115, note.
harboring wife, 201-203.
seduction or enticement of wife, 199-206.
infidelity of husband, 201.
negligence of husband, 205.
condonation or offence, 205.
I.
IDENTIFICATION,
of passenger with carrier, 380-382.
IMPRISONMENT.
(See False Imprisokmext.)
INDEX. 401
IMPUTABTLITY,
of negligence of parent or guardian to child, 382-386.
INFAMOUS PUNISHMENTS,
what are, 118, note.
INFANTS,
liability for tort, 25-27.
INNKEEPERS,
general duties of, 320, 321.
INSANE PERSONS,
liability for tort, 26.
INSURANCE AGENTS,
duties of, 336, 337.
INTENT,
in deceit, 74-76.
in assault and battery, 150, 154, 155.
in conversion of goods, 246.
INTERPRETATION OF LANGUAGE,
in cases of slander, 113-115.
J.
JEOPARDY,
in suits for malicious prosecution, 86-89.
JUDGE,
liability of, for false imprisonment, 177-179.
not liable for negligence, 344, 345.
K.
KNOWLEDGE OF FALSITY,
in suits for deceit, 63-66.
L.
LANDLORD AND TENANT,
landlord's right of action for injury to reversion, 212.
LANGUAGE,
interpretation of, 113-115.
26
402 INDEX.
LATERAL SUPPORT.
{See Supports.)
LAWYERS,
advice of, iu arrests, 94-97.
liability for false iiiiprisoument, 179-183.
for uegligeuce, 829-00 1.
LECTURES,
unauthorized publication of, 263, note.
LEGAL ADVICE,
acting on, in making arrest, 94-96.
LETTER-CARRIER,
invited to enter, 350, note.
LIREL.
(See Slander and Libel.)
LICENSE,
nature of, 4, 20, 220, 221.
revocation of, 221.
duty to licensee in regard to condition of premises, 348-354.
(^See Trespass.)
LITERARY CRITICISM,
when libellous, 144.
M.
MACHIXES,
infringement of patents, 254-257.
MAINTENANCE,
actions for, 102.
MALICE,
a technical term, 11.
in use of property, 12, note.
in what it consists, 11-13. 80, 81, 98, 99, note, 108-110.
(See Conspiracy; Malicious Prosecution; Slander and
Libel.)
MALICIOUS APPEALS,
statute of, SB, note.
MALICIOUS INTERFERENCE WITH CONTRACT,
Malice. 108-110.
preventing contract, 109.
DmtKtiip, 110, 111.
specific damage need not be shown, 110.
INDEX. 403
MALICIOUS PROSECUTION,
elements of the action, 82.
criminal and civil prosecutions, 83.
Teriniualion of the Prosecution, 83-89.
acquittal of party prosecuted, 87.
civil suit terminated, how, 87.
dismissal of action, 87, 88.
discontinuance, 88.
• criminal suit terminated, how, 88.
dismissal by prosecuting officer, 88.
return of ' not found,' 89.
prosecution before magistrate, 89.
dismissal of, 89.
jeopardy of prisoner, 90.
Statute of Malicious Appeals, 90, note.
summary, 90, 91.
Want ofProhahle Cause, 89-97.
meaninc: of term, 89.
slight circumstances of suspicion, 89, 90.
how probable cause to be determined, 90.
judgment of conviction, 91.
belief in guilt of accused, 91.
dischai-ge by magistrate, 92, 93.
abandonment of prosecution, 94.
advice of lawyer, 94-97.
evidence of malice not proof of want of probable cause, 97.
a question of law, 97.
Malice, 97, 98.
evidence of, necessary, 97, 98.
namarje, 99, 100.
when to be proved, 99.
Kinrlred Wrongi<, 100-102.
action for slander, 100.
abuse of process, 100, 101.
duress, 101.
MAXUSCRIPT,
copyright in, 263, note.
MARPvIAGE,
breach of promise of moritur cum persona, 45, note.
MASTER AXD SERVANT,
nature of the relation, 30.
when servant not liable for his acts, 30, 31.
404 INDEX.
MASTER AND SERY A'^T — continued.
ground of master's liability, 31, 32.
meaning of scope of employment, 32.
wilful torts of servant, 32.
ceasing to act for master, 33.
charges by master affecting servant's character, 123, 140.
defence of master, 160.
defence of servant, IGO.
servant's right of action for battery, 161.
master's right of action for battery of servant, 161.
death of servant, 163, 164.
servant has no possession, 236.
servant's liability to master, 337, 338.
injuries to servants by condition of master's premises or
machinery, 357-367.
Assuming the Eisk, 357-367.
negligence of fellow-servant, 360-362.
(See Enticement and Seduction.)
MAXIMS,
volenti non fit injuria, 21, 22, note, 357-367.
actio personalis moritur cum persona, 44-46, 163-164.
MEANS OF KNOWLEDGE,
in actions for deceit, 68-70.
MEDICAL MEN,
duties of, 331, 332.
MENACES,
actionable if followed by special damage, 149, note.
MENTAL DISTRESS,
as special damage, 17, 19, 116, 195.
MILLS.
(See Watercourses.)
MISDEMEANOR,
false charge of committing, 119.
arrests for, 188.
MORAL TURPITUDE,
offences involving, 119.
INDEX. 405
N.
NECESSITY,
entry from, 225.
NEGLIGENCE,
an objective conception, 14, 315.
etymology of word, 14, note.
elements of liability, 813.
Legal Conception of, 314-320.
acts or omisaious may constitute, 315, 316.
standard of the piuJent man, 316, 317.
undertaking acts, 317.
question usually put to the jury, 318.
province of court and jury, 318, 319.
Innkeeper and Guest, 320, 321.
innkeeper and insurer, 320.
negligence of guest, 321.
Bailor and Bailee, 321-328.
common carrieis, 321.
degrees of negligence, 321-323.
Roman law misunderstood, 322, 323, note.
the true criterion, 323, 321.
'gross negligence,' 'ordinary care,' ' negligence,' 323-326.
bailment for services, 326-328.
exercise of skill, 327, 328.
inherent defect in goods to be wrought upon, 328.
Professional Services, 328-332.
extraordinary skill not required, 329.
duties of attorneys, 329-331.
duties of medical men. 331, 332.
gratuitous services of. 332.
Telegraph Companies, 333, 334.
care in transmitting messages, 333.
conditions limiting liability, 333, 334.
liability to him to whom the message is sent, 334.
Liahil'dy of Agents, Serra)its, Trustees, and the Like, 335-341
agent's liability to principal, 335-337.
extraordinary emergencies, 338.
agents for insurance, 338, .S39.
servant's liability to master, 337, 338.
ratification, 338.
406 INDEX.
NEGLIGENCE — continued.
liability of trustee, 338-341.
executors, administrators, and assignees, 339.
obtaiuiiig legal advice, 339, 340.
directors of corporations, 340, 341.
Public Bodies and Public Officers, 342-345.
otRcers of goverumeut, 342.
officers of tlie courts, 343-345.
judges and arbitrators, 344.
Use of Premises, 345-357.
duty of occupant to trespassers, 345.
to bare licensees, 348-351.
wanton injury to such licensees, 349, note.
liability of lessors, 349, 350, note.
invited licensees, 349-352.
customers, 352-357.
place where injury happened, 354, 355.
duty of dock owners, 3o5, 356.
business of the occupant, 356, 357.
Master and Servant: Assuming the Risk, 357-367.
exemption of master, 357-367.
master's duty, 357-361.
negligence of fellow-servant, 360-361.
who are fellow-servants, 361.
ordinary risks, 360-362.
extraordinary risks, 362-366.
Contributorj/ Faidt, 367-374.
meaning of ' contributory,' 367-370.
ground of doctrine, 367-368.
mere conditions, 368. 369.
unlawful acts not per se contributory, 370-372.
violations of Sunday law, 370-372.
' due care,' 372-374.
Comparative Negligence, 375.
Intervening Forces, 375-386.
cases growing out of contract, 375-380.
identification of passenger with carrier, 380-384.
imputability of parent's negligence to child, 382-386.
negligence of child, 383-386.
NOLLE PROSEQUI,
in suits for malicious prosecution, 87.
NOTICE,
by registration, 69.
INDEX.
407
NOTICE— continued.
of vicious propensity of animals, 300-302.
of danger, 34(3, note.
sucli as spring guns, 346, note.
NUISANCE,
overhanging trees, 224, note.
What constitutes, 26ti-29U.
locality, 287.
' convenient ' place, 283, 289.
slight detriment to property, 289, 200.
notice of nuisance, 290.
flooding a neighbor's land, 291, 292.
surface-water, '292.
water of drains and ditches, 292.
pollution of streams, 292, 293.
milling operations, 293.
smells and gases, 293, 294.
disturbance of peace of mind, 295.
public nuisances, 295-299.
special damage, 296, 297.
removing obstructions, 297.
circuitous routes made necessary by obstruction, 298, 299.
0.
OFFICERS,
(See Assault and Battery; Directors of Corporations;
False Imprisonment; Public Officers.)
P.
PARENT AND CHILD,
protection of child from battery, 161.
seduction of child, 192-198. (See Enticement and Se-
duction.)
injury of child by parent's negligence, 382, 383.
PARTY WALLS,
removing support of, 276-278.
PASSENGER,
identification of, with carrier, 380-382.
408 INDEX.
PATENTS AND COPYRIGHTS,
Infringement of Patent, 251-2G1.
statutory provisions, 251, 252.
making, using, or vending, 253.
machines, 254-257.
mechanical equivalents, 255-257.
better execution, 255-256.
difference in substance, 256.
designs, 257, 258.
mere making, 258.
unauthorized sale, 259.
product of patented machine, 259, 260.
Infringement of Copyright, 262-269.
statutory provisions, 262, 263.
what belongs to authors, 263.
head-notes of law reports, 26-i.
animus furandi, 264, 265.
quantity of matter taken, 265.
quotation for criticism, 265.
imitations of copyrighted matter, 266.
common sources of information, 266.
abridgments, 267.
digests, 268.
translations, 268.
damages, 269.
PERJURY,
false charges of, 114.
PHYSICIANS AND SURGEONS,
duties of, 831, 332.
PLEDGE,
sale of, 240.
POLLUTION OF STREAM,
(See Watercourses.)
POSSESSION,
constructive, 213, note.
symbolical, 213, note.
{See Conversion ; Trespass.)
PREMISES,
use and condition of, 345-357.
{See Nkgligence.)
PRINCIPAL AND AGENT.
{See Agent.)
INDEX. 409
PRIVILEGE,
defined and explained, 3, 4, 20-23.
broad use of term, as justification, 20.
may include riglit, 20.
privilege of firemen, 20.
by the party, 21.
by the law, 21.
ground of, rests in interest or duty, 20-23.
PRIVILEGED COMMUNICATIONS,
in slander and libel, 127-143.
(See Slandek and Libel.)
PROBABLE CAUSE,
want of, 89-97.
PROFESSIONAL SERVICES,
duties by persons rendering, 328-332.
(See Negligence.)
PROSECUTION,
termination of, 83-89.
PUBLICATION,
of slander or libel, 115-118.
PUBLIC MEN,
criticism of, 144, 145.
PUBLIC OFFICERS,
liability for negligence, 342-345.
PUBLISHERS OF BOOKS AND PAPERS,
liable for defamation, 125, 126.
PUNISHMENT, ,
when infamous, 118, note.
RAILWAY TIME-TABLES,
representations by, 64, note.
REASONABLE CAUSE,
want of, 89-97.
RECAPTION,
in civil cases, 172.
in criminal cases, 172, 173.
REGISTRY,
notice by, 69.
41 C INDEX.
RELATION,
doctrine of entry by, 216, 217.
REPETITIOX,
of defamation, 143.
REPORTS,
of tiials, when privileged, 134, 135.
copyrights of, 2G-4.
REPRESENTATION.
(See Dpxeit.)
RESCISSION OF CONTRACTS,
for misrepresentation or other wrong, 70, 71.
RESERVOIRS,
breaking of, 306.
RESPONDEAT SUPERIOR,
meaning of, 30, 31.
REVERSION,
injuries to, 211, 212.
RIGHT,
and privilege considered, 3, 4.
rights defined and explained, 3-6.
gratuities as rights, 5, 6.
intangible objects of right, 6.
substantive rights in rem and in personam, 7.
rights paramount and consensual, 7, S.
RISK.
assuming, 357-367.
ordinary, 360-362.
extraordinary, 362-366.
RIOT,
acts done in quelling, 160.
arrest for affray, 189.
SALES,
'with all faults,' 73.
(See Conversion ; Deceit.)
SCIENTER,
proof of, in deceit, 63.
SEDLX'TION.
(See Ektice.mext and Seduction.)
INDEX. 411
SELF-DEFENCE,
in protection of person, 15S.
protection of property, 158.
protection of family, 160.
SERVANT,
distinguished from agent, 33, 39.
(.Ste Mastek and Servant; Negligence.)
SIMPLEX COMMENDATJO,
meaning of, 57.
SLANDER AND LIBEL,
kinds of actionable defamation, 112.
Inierprelation of Language, 113-115.
Fox's act, 113, note.
doctrine of mitiori sensu, 11-1.
perjury, 114.
natural meaning, Hi.
Puhlication and Special Damage, 115-118.
what constitutes publication, 115.
sickness and distress of mind, 115, 116.
loss of marriage, 116.
loss of consortium, 116.
defamation actionable per se, 117, 118.
Indictable Offence charged, 118-120.
infamy of, 118.
misdemeanor, 119.
degradation, the criterion, 119, 120.
Contagious and disgraceful Disease charged, 120, 121.
charge of having had same, 120, 121.
Charge affecting Plaintiff in his Occupation, 121-123.
natural tendency of charge, 121, 122.
charges affecting servants, 123.
positions of mere honor, 123.
party not in exercise of his occupation, 123.
Charge tending to Disherison, 124.
bastardy, 124.
Libel, 124-126.
of wider extent than slander, 124, 125.
publishers, editors, and booksellers, 125, 126.
Truth of Charge, 126, 127.
a good defence, 126.
belief in truth, 127.
effigy, picture, or sign, 127.
412 INDEX.
SLANDER AND LIBEL— continued.
Malice and Privileged Communications, 127-143.
malice in law, 127.
malice in fact, 127.
occasion of publication, 128, 129.
absolute privilege, 129.
arguments of counsel, 129, 130.
allegations in pleadings, 130.
relevancy, 130.
affidavits, 131.
statements of witnesses, jurors, and judges, 131, 132.
proceedings in Legislature, 132, 133.
prima facie privilege, 133-143.
proceedings before church organizations, 133, 134.
reports of trials, 134, 135.
comments in headings to, 135.
ex parte proceedings, 136.
matters of public interest, 136, 137.
publication of legislative proceedings, 137.
communications to public authorities, 137, 138.
use of public prints, 139.
vindicating character, 139.
communications by master concerning his servant, 140.
near relationship, 110.
confidential relations, 141.
voluntary communications, 141, 142.
statements on inquiry, 141, 142.
sunnnary of doctrine of privileged communications, 143.
repeating defamation, 143.
Criticism, 144-147.
not defamation, 144.
' fair criticism,' 144.
on works of art, 144.
on public men, 144-146.
defamatory accusation prosecuted, 146.
SLANDER OF TITLE,
nature of wrong, 80, 81.
extension of remedy for, 80.
malice, 80, 81.
SMELLS, DISAGREEABLE,
when nuisance, 293, 294.
INDEX. 413
SNOW AND ICE,
land covered with snow, 69, note,
injury by fall of from building, 309, 310.
SON ASSAULT DP:MESNE,
what amounts to, 157, 158.
SPECIAL DAMAGE.
(See Damage.)
SPECIAL PROPEIITY,
meaning of, '2'>1.
{See Conversion; Trespass.)
SPORT,
acts done in, 157.
STOCKS,
punishment by, 118, note.
SUCCOR OF BEAST,
entry for purpose of, 224.
SUNDAY LAW,
injury while in violation of, 370, 371.
SUPPORTS,
Lateral Support, 270-278.
natural condition of soil, 270.
superincumbent weight, 271, 272.
lateral support of buildings, 272.
depends on grant or description, 272.
subsidence not caused by weight of buildings, 272, 273.
lateral support of contiguous buildings, 274, 275.
depends on grant, reservation, or prescription, 275.
keeping house in repair, 275, 276.
party-walls, 276-278.
Subjacent Support, 278-280.
freehold beneath surface, 278.
nature of right of support, 278, 279.
buildings, 279.
support of upper tenements, 280.
SURFACE WATER.
(See Watercourses.)
SURGEONS,
duties of, 331, 332.
414 INDEX.
T.
TELEGRAPH COMPANIES,
care in tiansinitting messages, 333.
conditions limiting liability, 333, 334.
liability to him to whom the message is sent, 334.
TENANTS,
in common, 214.
(See Landlord and Tenant.)
TERMINATION OF LIABILITY,
how far liability extends in a chain of things, 40-44.
TERMINATION OF PROSECUTION.
(See Malicious Prosecution.)
THIEF,
possession by, 210, note.
TORTS,
domain of, 7-9.
defined and analysed, 9-20.
TRADE MARKS,
infringements of, 78-80, 261, 262.
injunction, 79, note.
TRANSLATION,
infringement of copyright by, 268.
TREES,
fruit of, falling upon another's land, 224.
TRESPASS,
general meaning of, 206, 228.
Possessio7i, 206-219.
necessity of, 206, 207.
advantage of, 207, 208.
entry under license, 208.
several in possession adversely to each other, 208, 209.
possession of personalty, 210.
possession of thief, 210, note.
injury to reversion, 211, 212.
waste, 212.
personalty in hands of a bailee or lessee, 212, 213.
constructive possession, 213, 214.
possession of cotenants, 214.
ouster, 215.
withholding possession from cotenant, 215, 216.
INDEX. 415
TRESPASS — continued.
doctrine of relation of entry, 216, 217.
consequence of re-entry, 217.
mesne profits, 217, 218.
successor by descent or purchase to disseisor, 217-219.
What constitutes Trespass^ 219-221.
trespass to land, 219.
entry justifiable when, 220-225.
trespass ab initio, 226-228.
property in animals, 229.
right to kill another's animals, 229, 230.
duty towards, 2;jO.
TRESPASS AB INITIO,
meaning of, 226, 228.
TRESPASSERS,
duties of occupants of premises towards, 315, 346.
TRUSTEES,
liability of, for negligence, 338, 339.
TRUTH,
as a defence in suits for defamation, 126, 127.
U.
USUFRUCT.,
(See Watercourses.)
V.
VALUE,
misrepresentations of, 57, 58.
VIS MAJOR,
breaking of reservoirs by, 307, 308.
VOLENTI NON FIT INJURIA.
{See CONSENT.)
w.
WANT OF PROBABLE CAUSE.
{See Malicious Prosecution.)
WARRANT.
(See False Imprisonment.)
416 INDEX.
WARRANTY,
distinguished from representation, 50, 51.
implied 51, note, 52.
wastp:,
duty to refrain from, 212.
WATERCOURSES,
Usufruct and Reasonable Use, 281-285.
water in defined channels, 281, 282.
what amount>< to unreasonable use, 282-284.
water taken for mills, 281.
diverting stream within one's land, 284.
grant or prescription of, 284.
riparian rights in the Pacific States, 284.
surface water running in no defined channel, 284.
Sub-surface Water, 286.
percolating water, 286.
underground stream, 286.
flooding lands, 291.
water in drains and ditches, 291, 292.
pollution of stream, 292, 293.
legislative authority, 292.
milling operations, 293.
WRIT,
(See False Imprisonment.)
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Elements of the Law of Torts for the Use of Students. By Melville
M. BiGELOw, Ph.D., author of " A Treatise ou the Law of Estop-
pel," "A Treatise on the Law of Fraud," and editor of "Leadiug
Cases in the Law of Torts," etc. Sixth edition, revised and en-
larged. 12mo. Cloth, $2.50 ne< ; law sheep, S3.00 nef.
In the sixth edition of this well-known text-book the author has devoted
much time and care to the development of the general doctrine of " Torts "
as an introduction to the study of " Specific Torts." This work, done with
his usual thoroughness and clearness, does away with the one criticism made
on the work, that it plunged the student into the study of specific torts
without instructing him in the general law of the subject. The whole book
has been carefully revised, and many passages rewritten. The book is now
theoretically and practicallj' complete and logical.
It seems to me admirably adapted to the purpose for which it is written. Mr.
Bigelow is very happy in liis statement of legal principles, and nowhere so much so,
I think, as in this book. — Hon. Thomas M. Cooley.
Mr. Bigelow, in his clear and succinct statement of the duties of individuals
toward each other as members of society, has made a valuable contribution to your
Law Students' Series. — Hon. Moeeison R. Waite, late Chief Justice of the United
States.
It is the product of real thought and diligent labor ; and the thought and labor
have been too skilfully applied not to result in a substantial addition to legal litera-
ture. — Boston Daily Advertiser.
I have examined Bigelow on Torts, and find it to be an excellent text-book for
students. The author is plainly a master of his subject, and not merely a good
compiler. . . . The work is, in my judgment, a model "Institute." — R. McP.
Smith, Vanderbilt Unicersity.
A clear and compact treatise, well fitted to be a manual of a student of law. —
Hon. John Bascom, University of Wisconsin.
To accompany " Bigelow' s Elements of the Law of Torts" : —
Cases on the Law of Torts. Edited by Melville M. Bigelow.
Crown 8vo. Cloth, $3.00 net.
BRYANT'S CODE PLEADING.
The Principles of Code Pleading for the Use of Students. By Edwin
E. Bkyant, Dean of the Law Department of the State University
of Wisconsin, and late Assistant Attorney-General of the United
States. 12mo. Cloth, $2.50 «e<; law sheep, $3.00 ne^
The science of code pleading being a development of the last fifty yeais,
and getting its shape and form gradually from the decisions of the courts as
well as from the enactments of the law-making bodies, has only within a (eyf
years been treated in any satisfactorj- way by text writers.
Many instructors feel, however, that too much time is needed for the
student to get the elementary principles from the larger books ; and ' The
4
THE STUDENTS' SERIES.
Principles of Code Pleading" is written to bring witliin easy reach, in
condensed and clear form, the true elements of the subject ; to give the
student sufficient knowledge of the old common law pleading for a founda-
tion for the less formal, but not necessarily less exact, pleading under the
code, and to put in orderly array the principles of this branch of the law,
which have too frequently been conssidered, by students, at least, as of little
importance; to cite and indicate for more careful and particular reading
those cases deciding the important points, and give a comparative table of
the different State codes on the more important subjects.
As the author has elected to stand or fall with Stephen's method of treating
pleadiiiR at coiunion law, he must face the criticism to which the work of that
distinguished writer is believed to be open. . . . This is, perhaps, the only adverse
criticism of the book that can with fairness be made. All else is unqualified praise,
both as to arrangement, analysis, and exposition. — G. W. Pepper in '■^American
Law Register and Review."
The principles are presented in a clear, satisfactory manner, and the Code
References are a valuable addition. In short, it exactly supplies a want as a
text-book for students, whether in offices or law schools, wherever the reformed
procedure prevails or is largest. — Chaeles M. Campbell, Law Department,
Colorado State University.
This is an excellent book. It gives in a very concise and convenient form all
the general principles of pleading. Mr. Bryant shows all through his book tliat lie
has the subject in his grasp ; and he so presents it that the reader can hardly
fail to take it within his grasp. — American Law Review.
COOLEY ON CONSTITUTIONAL LAW.
The General Principles of Constitutional Law in the United States
of America. By Thomas M. Cooley, author of "A Treatise on
Coustitutional Limitations." Second edition, by Alexis C. Angell,
of the Detroit Bar. 12mo. Cloth, $2.50 net; law sheep, $3.00 nef.
The design has been to present succinctly the general principles of con-
stitutional law, whether they pertain to the federal system, or to the State
system, or to both. Formerly, the structure of the federal constitutional
government was so distinct from that of the States that each might usefully
be examined and discussed apart from the other; but the points of contact
and dependence have been so l.argelj' increased by the recent amendments to
the federal constitution that a different course is now deemed advisable.
The new edition contains large additions. In its preparation, the
editor, while aiming to keep the book a manual, and not to make it a digest,
has treated briefly all important points covered b}' the ca?os decided up to
a very recent date. He made such changes in the text and notes as had
been required by the many important decisions upon constitutional law
rendered in the last ten years.
No lawyer can afford to be without it, and every voter ought to have it. —
From Hon. J. H. Carpenter, Law Department, Universitij of Wisconsin.
This book of moderate dimensions should be placed in every student's hands. —
Hon. P. Bliss, late Dean of Laic Department, State Universitij of Missonri.
It is worthy of the repiitation of the distinguished author. It is tlie best book
on the subject to be placed in the hands of a student, and is a convenient book of
reference for any one. — Prof. Manning F. Force, LL.D., Cincinnati Law School.
5
THE STUDENTS' SERIES.
It ought unquestionably to be made the basis of a course of Instruction in all
our higher schools and colleges. — Hon. John F. Dillon, Professor of Columbia
Law School, New York.
It is a work of great value, not only for students in institutions of learning,
but as well for the lawyer, to whom it supplies at once a treatise and a digest of
constitutional law. — Henry Hitchcock, late Dean of St. Louis Laic School.
Clearly and compactly written, and the general arrangement weU adapted for
students' use. — Hon. Simeon E. Baldwin, Law Department of Yale College.
1 have examined it with great care, comparing it carefully with the old edition,
and testing it in various points. As a result, it gives me pleasure to state that we
shall use the book both in the courses in constitutional history and law in the col-
legiate department, and in one of the classes in the law school. The work of the
editor of the new edition, Mr. Angell, has been done with the exactness and care
which an intimate acquaintance with him as a classmate at the University of Michi-
gan led me to expect in whatever he undertook. Judge Cooley is fortunate m hav-
ing so excellent an editor for the revision. — Letter from George W. Knioht,
Professor of Liternational and Constitutional Law, Ohio State University.
Your name alone as its author is a sufficient guarantee of its high character
and general usefulness, not only for the use of the students of law schools and other
institutions of learning, for which it was originally prepared, but also for members
of the bar. The matters discussed are stated so concisely and clearly as to be of
great benefit for ready reference. The edition sent me seems to have all the late
cases cited and referred to ; and Mr. Angell seems to have been very careful and
successful in making the changes from the first edition and adding additional
notes. — Hon. Albert H. Hoeton, Chief Justice of the Supreme Court of Kansas,
to Judge Cooley.
CURTIS ON UNITED STATES COURTS.
Jurisdiction, Practice, and Peculiar Jurisprudence of the Courts of the
United States. By Benjamin R. Curtis, LL.D., late Associate
Justice of the Supretae Court of the United States. Edited by
George Ticknor Cdrtis and Benjamin R. Curtis. Second
edition, by H. C. Merwin, Law Department of Boston University.
12mo. Cloth, $2.50 net; law sheep, $3.00 net.
These lectures were delivered by the late Judge Curtis to a class of stu-
dents in the Harvard Law School, in the academic year 1872-73, and were
edited and prepared for the press by his son and brother, both lawj'ers
of prominence. Mr. Merwin has devoted much time to the consideration of
the recent changes and developments in the practice of the Federal Courts;
and his additions, in the second edition, are thought by those who have
examined them to deserve the words of commendation bestowed upon
Judge Curtis's original text.
A work of the highest standard on the subject treated. — Boston Post.
Cannot fail to be of great service to the student in the prosecution of his
legal studies. — Chicago Legal News.
It is by far the best epitome of that extensive subject ; and the clearness of the
style and orderly arrangement of the learned author will especially recommend
it to students. — Hon. EoMnND H. Bennett, Dean of School of Law, Boston
University.
There is not to-day in existence so admirable a treatise on United Statas courta
and their jurisdiction as this little book. — Milwaukee Republican.
6
THE STUDENTS' SERIES.
EWELL'S MEDICAL JURISPRUDENCE.
A Manual of Medical Jurisprudence for the Use of Students at Law
and of Medicine. By Marshall 1). Ewell, M ])., LL.I)., of the
Union College of Law, Chicago. 12mo. Cloth, $2.50 net; law
sheep, $3.00 net.
Mr. Ewell has endeavored to produce a work which, within a moderate
compass, states all the leading facts and principles of the science concisely
and yet clearly. In it will be found the substance of all the principles stated
in the more voluminous and expensive woi-ks.
It is excellently done. I wish it might be read by every student of law as well
as by every student of medicine. — Prof. Henby Wade Rooebs, when at University
of Michigan.
I can safely say that for use as a text-book, either in a medical college or law
school, it is preferable to any book of my acquaintance. In his chapter on Mal-
practice, Professor Ewell has succeeded, within the compass of eighteen pages, in
setting forth the general doctrine of the law so comprehensively as to make it
highly useful for the practitioner as weU as the student. — Henby H. Inoebsoll,
Dean Law Department, University of Tennessee.
HARRIMAN ON CONTRACTS.
Elements of the Law of Contracts. By Edward Avert Harriman,
Professor of Law in the Northwestern University Law SchooL
12mo. Cloth, $2.50 net ; law sheep, $.3.00 net.
The justification of this book is . . . that it is an attempt to explain
the rules of positive contract law in accordance with the actual historical
development of those rules, and to classify and arrange those rules as far as
possible in a scientific manner. ... As regards legal theory, the most dis
tinctive features of this book may be briefly stated : —
FiissT. The recognition of the fact that contractual obligation maybe
due to the act of one party or of two.
Second. The careful separation of the facts which are essential to the
formation of contracts from those which merely affect the validity of con-
tracts when formed.
Thikd. Voidable contracts are treated under the one head of
" Rescission."
Fourth. Rules of offer and acceptance have been reduced to rules of
consideration as far as possible.
Fifth. Under the head of "Construction of Contracts" certain sub-
jects like Impossibility have been treated, which are usually considered
under other heads.
Si.xTH. The difficult subject of Conditions has been especially carefully
considered.
Seventh. An account of the nature and results of the judicial legisla-
tion by which, in many States, a stranger to a contract is permitted to sue
upon it.
The cases cited and referred to have been selected with the greatest care,
as best illustrating and explaining the rules and doctrines of the law of con-
tracts. Keferences are made to the official Reports; aud where the cases
7
THE STUDENTS' SERIES.
have been reprinted in the collections of cases on contracts, those volumes
are indicated.
A most admirable summary of the subject. — B. J. Ramaoe, Dean Law Depart-
vient, University of the South.
A superior and original work. — William Trickett, Dea7i Dickinson School
of Law.
It is certainly a departure from the usual metliod of deaUng with the subject,
and I am iucliued to think a departure in the direction of a clearer and better
understanding of the law. — C. P. Norton, Buffalo Law School.
Such examination as I have been able to make of the book leads me to think that
It is a logical and accurate statement of the leading principles of the subject, such
as a law student might profitably use. — Emlin McClain, Chancellor Law Depart-
ment, State University of Iowa.
HEARD ON CIVIL PLEADING.
The Principles of Pleading in Civil Actions. By Franklin Fiske
Heard. 12mo. Cloth, .?2. 50 ?ie<; law sheep, $3.00 nef.
Under whatever system of statutory procedure a law student may design to
practise, he will find it equally necessary to become familiar with the principles of
common law pleading. Mr. Heard's work is a plain and clear guide to these. —
Hon. SnflEON E. Baldwin, Law Department of Yale College.
HEARD ON CRIMINAL PLEADING.
The Principles of Criminal Pleading. By Franklin Fiske Heard.
12mo. Cloth, .$2.50 net; law sheep, $3.00 net.
It deserves an important position among the text-books in every law school in
the country. — William C. Robinson, Dea7i Law Department, Catholic University
of America.
HUFFCTJT ON AGENCY.
Elements of the Law of Agency as relating to Contract. By Ernest
W. Hdffcut, Profe,s.sor of Law in Cornell University School of
Law. 12mo. Cloth, $2.50 iiet; law sheep, $3.00 net.
Law schools and law offices obtain in this book what has long been
needed, — a book on Agency written clearly and concisely by a man
whose own experience with his classes has taught him what were the funda-
mental principles of the law, and how best to arrange and present those
principles.
The citation of authorities for the purpose of illustrating the rules of la-»^
is very full and from varied sources. It is not intended as a special digest
of the subject, but all the points of law are amply supported by the best
authorities.
We commend the book to the careful consideration of our law teachers, and
advise its use by all students. — Green Bag.
I am particularly impressed by the clear and scientific arrangement. — Geoboe
K. Beers, Law Department, Yale University.
Perhaps the most striking characteristic of the book is the painstaking and accu-
jcate analysis which the subject has received. ... It is logical in its arrangement,
8
THE STUDENTS' SERIES.
accurate in its statement of the law, and diserimiuating in its citations of authori-
ties. — American Law Register and Review.
The work is a very good one indeed. — Chablbs M. Slack, Dean Heatings Col-
lege of Law.
I have examined with some care Professor Huffcut's treatise on Agency, and
am much pleased with it as a text-book for the use of students. — Prof. R. S. Gould,
Law Department, University of Texas.
To accompany " Iluffcut on Agency" : —
Cases on the Law of Agency. By Ernest W. Hcffcct. Crown 8vo.
Cloth, JS.OOnei.
MAY ON CRIMINAL LAW.
The Law of Crimes. By J. Wilder Mat, Chief Justice of the Muni-
cipal Court of the City of Boston. Second edition, edited by Joseph
Henry Beale, Jr., Assistant Professor of Law in Harvard Univer-
sity. 12mo. Cloth, $2.50 ne<; law sheep, $3.00 >ic<.
This new edition of Judge May's deservedly popular work contains large
additions. The editor states in the preface that the original plan included
no discussion of the subjects of Criminal Pleading and Practice : but it was
found that it would be better adapted to the use of students if these subjects
were briefly considered, and this has accordingly been done. Much has also
been added to the first chapter, which contains the general principles under-
lying the criminal law.
It is to be especially commended for its clear and concise definitions, as also for
its citations of leading cases directly upon the matter under discussion. — From,
J. H. Carpentee, Law Faculty, University of Wisconsin.
It is not a mere synopsis, but au interesting discussion, quite full enough to give
the student a true view of the subject, and minute enough to be a useful handbook
to the practitioner. — New York Law Journal.
To accompany "May's Criminal Imw" : —
Cases on Criminal Law. By H. W. Chaplin. New edition, enlarged.
Crown 8vo. Cloth, $3.00 net.
ROBINSON'S ELEMENTARY LAW.
Elementary Law. By William C. Robinson, LL.D., Professor of
Elementary Law in Yale College. 12nio. Cloth, S2.50 net; law
sheep, $3.00 net.
Contains a statement of the principles, rules, and definitions of American
Common Law, both civil and criminal, arranged in logical order, with refer-
ences to treatises in which such definitions, rules, and principles are more
extensively discussed.
This work is intended to serve three purposes: First, to form a text-book
for the use of students in law schools, and of others who are under com-
petent instruction; second, to guide private students in their investigation
9
THE STUDENTS' SERIES.
Df the rules and definitions of law; third, to render students familiar with
some of the leading treatises upon the principal topics of the law.
The book is convenient to the instructor who will use it as a text to be amplified
in his lectures, and valuable to the student who will consult the references. — Prof.
M. F. Force, LL.D., Cincinnati Law School.
ROBINSON'S FORENSIC ORATORY.
Forensic Oratory : A Manual for Advocates. By William C.
Robinson, LL.D., author of "The Law of Patents for Useful
Inventions," "Elementary Law," etc. 12mo. Cloth, $2.50 7iet;
law sheep, $3.00 7iet.
A new and suggestive work on the duties and functions of the advocate.
The chapters on the Presentation of Ideas bv the Production of Evidence in
Court, the Qualification and Training of Witnesses, and on Direct, Cross,
and Re-Direct Examination, commend the book especially to the bar as well
as to students.
The trained lawj'er as well as the student will find much that is helpful
and suggestive in the pages of this volume, especially on the subject of
cross examination. It is the result of a long experience and a constant
study of the trial of causes.
This is a book which no student of law can afford to pass by without a thorough
study of it. It is also a work which no practising lawyer who undertakes the trial
of causes, and is not already an acknowledged leader in the courts, can afford not
to read and read again. — American Law Review.
It touches upon vital points, just such as students of oratory, especially those
who are entering upon the practice of law, need to have urged upon them in this
forcible way. — Thomas C. Tkueblood, Professor of Elocution and Oratory, Depart-
ment of Law, Michigan University.
SEDGWICK'S ELEMENTS OF DAMAGES.
Elements of Damages : A Handbook for the Use of Students and
Practitioners. By Arthur G. Sedgwick. 12mo. Cloth, $2.50
net; law sheep, $3.00 net.
This book is not an abridgment of the work embodied by the author in
his edition of the well-known three-volume treatise on the Measure of Dam-
ages, by Theodore Sedgwick. The entire feld has been re-examined, and
the whole laio of Damages reviewed. Its principles are stated in the form
of rules or propositions of law such as a court might lay doion to a jury,
and these propositions are illustrated by the cases from which they have
been drawn. Wherever local variations from these rules exist, such local
diilerences are stated, and their causes, so far as possible, explained.
As a students' book it is very admirable. Probably no one but the author can
see how it could be made better than it is. —American Law Review.
I can cheerfully recommend the book as an excellent presentation of the
elements of the subject. — Emlin McClain, Chancellor Law Department, State
University of Iowa.
10
THE STUDENTS' SERIES.
Througliout the volume the references to, as well aa the iilustrations of, uiider-
/ying principles are judicious. It is decidedly a meritorious work. — Prof. CHAULBa
M. Campbkul, Law Department, University of Colorado.
To accompany the foregoing work : —
Cases on the Law of Damages. By Joseph H. Beale, Jr., of the
Harvard Law School. Crown 8vo. Cloth, $3.00 net.
STEPHEN'S DIGEST OF EVIDENCE.
A Digest of the Law of Evidence. By Sir James Fitz-Jamks
Stephen. From the fourth Enj^lish edition. With Notes and
Additional Illustrations to the present time, chiefly from American
Cases, including those of John Wilder May, late Chief Justice
of the Municipal Court of the City of Boston, author of " The Law
of Insurance," etc. 12mo. Cloth, $2.50 net ; law sheep, $3 00 net.
A full reprint of the fourth English edition, revised by the author, with
references to American cases.
Short as it is, we believe it will be found to contain practically the whole
law of the subject.
STiMSON's Law glossary.
Glossary of Technical Terms, Phrases, and Maxims of the Common
Law. By Frederick Jesup Stimson. 12mo. Cloth, 82.50 nef ;
law sheep, $3.00 net.
This book is a concise Law Dictionary, giving in common English an
explanation of the words and phrases, English as well as Saxon, Latin, or
French, which are of common technical use in the law. The popular and
usual acceptation of each phrase is given in much the same general shape as
it stands in the mind of the trained lawyer.
A very convenient little work, especially useful to students of the law
— Chicago Legal News.
WAMBAUGH'S STUDY OF CASES.
The Study of Cases : A Course of Instruction in Reading and Stating
Reported Cases, Composing Head-Notes and Briefs, Criticising and
Comparing Authorities, and Compiling Digests. By Eigexe
Wambaugh, I'rofessor in the Law Department of Harvard Univer-
sity. Second edition. 12mo. Cloth, §2.50 net ; law sheep, S3.00 «e<.
The purpose of the work as expressed by its author is "to teach the
methods by which lawyers detect dicta, tind determine the weight of reported
cases." The full discussion of this introduces many important and interest-
mg topics, such as the following: How to write a Head-Note, How to criti-
cise Cases, Combining and Preparing Cases, The Growth of Legal Doctrine,
U
THE STUDENTS' SERIES.
The Importance of the Unwritten Law, The Respect for Authority, The
freparation of Briefs, How to compose a Digest, etc.
A subject of the greatest importance to legal practitioners, and one which,
strange to say, has never before engaged the attention of any of our legal writers.
We know of no work of greater importance to the student. It should be adopted
as a text-book by every law school in the country. — The Green Bag.
We commend this book, not merely to students of the law, but to practising
lawyers, and even to judges on the bench. It incidentally teaches how to write a
decision, as well as how to find out the doctrine of a decision after it is written. —
The American Law Eeview.
Will be found to be of great value to the student or young lawyer when studjang
by himself, and if carefully studied, cannot fail to give him ideas which he could
get elsewhere only by long experience, and from hints found scattered through
many volumes. — Prof. O. W. Aldkich, of the Ohio State University.
Altogether unique in the way of legal literature. There are very many lawyers
old ua the practice who will regret that they were not afforded in their student
days such discipline as is suggested by this book ; and there is no lawyer who
cannot read with profit its first eight chapters. — The Chicago Law Journal.
Among the most valuable publications for the use of students which have
appeared in recent years. The work abounds in fertile suggestions. — The Ameri-
can Law Register and Review.
It is a valuable addition to the Law Students' Series. — E. H. Bennett, Dean
School of Law, Boston University.
By the same author, to accompany " The Study of Cases " : —
Cases for Analysis. By Eugene Wambacgh, Professor in the Law-
Department of Harvard University. Crown 8vo. Cloth, $3.00 net
HOWE ON THE CIVIL LAW.
studies in the Civil Law and its Relations to the Law of England
and America. By William Wirt Howe, late Justice of the Su-
preme Court of Louisiana. 12mo. Cloth, $2.50 net; law sheep,
$3.00 net.
LITTLE, BROWN, AND COMPANY,
PUBLISHERS,
254 Washington Street,
BOSTON.
la
LAW LIBRARY
UNIVERSITY OF CALIFORNIA
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