§ / * so SO e-> .^OKAUFOfy ^ so >&AJiVlia lis: "^ttUONV- 1Z5 ELEMENTS OF THE LAW OF TORTS FOK THE USE OF STUDENTS BY MELVILLE M. BIGELOW, Ph.D. FIFTH EDITION BOSTON LITTLE, BROWN, AND COMPANY 1894 Entered according to Act of Congress, in the year 1878, by MELVILLE M. BIGELOW, In the 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. Copy nght, 1886, By Melville M. Bigelow. Copy light, 1891, By Melville M. Bigelow Copyright, 1894, By Melville M. Bigelow. T University Press : John Wilson and Son, Cambridge. PREFACE. THE object of this book is to help the student to a clear understanding of the legal concep- tion of a tort. Accordingly, after such explana- tion in the Introduction as seemed desirable, the student is taken directly to the torts themselves of the law. But the book is at the same time intended for a guide to the authorities, and should send the student to the law library, there to carry on his work. The student should make special study of the cases given in the text as examples, and go as much further into the Reports as possi- ble. So doing, he cannot fail of success, if he has not missed his calling. A word may be added in regard to the arrange- ment of the subject in this book. The old and common course has been to present the Law of Torts as consisting of a series of wrongs (1) to the person or body, (2) to property, (3) to reputation. But, not to mention the special difficulties which such an arrangement, carried out in detail, in- 755856 VI PREFACE. volves, the chief objection to it is that it emphasizes the object of the tort rather than the tort itself. The arrangement in this book emphasizes the tort, by presenting first and foremost its constituents or elements; to wit, (1) the breach of duty to refrain from fraud and malice, (2) the breach of certain ' absolute ' duties, (3) the breach of duty to refrain from negligence. Occasion is now taken, after the preparation of an edition of the book for the University of Cam- bridge, England, to revise the whole work upon the general lines of that edition ; a step which, after twelve years of but slight changes, had at last, in the growth of the subject, become very needful. Among other changes made, the Introduction and a chapter on Malicious Interference with Contract, adapted from the English edition, have been added. M. M. B. Boston, December, 1890. CONTENTS. PAGE Cases Cited X1U INTRODUCTION' ° PART I. BREACH OF DUTY TO REFRAIN FROM FRAUD OR MALICE. CHAPTER I. Deceit 17 § 1. Introductory 17 § 2. Of the Representation 18 § 3. Of Defendant's Knowledge of Falsity 33 § 4. Of Plaintiff's Ignorance of Falsity 37 § 5. Of the Intention that the Representation should be acted upon 45 § 6. Of Acting upon the Representation 47 § 7. Of Slander of Title and Trade-Marks 49 CHAPTER II. Malicious Prosecution . . . . o 54 § 1. Introductory 54 § 2. Of the Termination of the Prosecution .... 55 S 3. Of the Want of Probable Cause Gl Viii CONTENTS. PAGE § 4. Of Malice 09 § 5. Of Damage 71 § 6. Of Kindred Wrongs 72 CHAPTER III. Conspiracy 75 § 1. Introductory 75 § 2. Of Malice and the Combination 77 § 3. Of Damage 79 CHAPTER IV. Malicious Interference with Contract .... 80 § 1. Introductory 80 § 2. Of Malice 80 § 3. Of Damage 82 § 4. Of the Distinction between Contract and Property 83 CHAPTER V. Slander and Libel 84 § 1. Introductory 84 § 2. Of the Interpretation of Language 85 § 3. Of the Publication of Defamation and Special Damage 87 § 4. Of the Imputation of having Committed a Crime . 90 § 5. Of the Imputation of having a Contagious or In- fectious Disease of a Disgraceful Kind .... 92 § 6. Of an Imputation affecting the Plaintiff in his Office, Business, or Occupation 93 § 7. Of an Imputation tending to Disinherit the Plain- tiff 96 § 8. Of an Imputation conveyed by Writing, Printing, or Figure; that is, of Libel 96 § 9. Of the Truth of the Charge 98 § 10. Of Malice and Privileged Communications ... 99 C< »NTEXTS. IX PART II. BREACH OF ABSOLUTE DUTY. CHAPTER VI. PAGE Assault and Batteuy 121 § 1. Introductory 121 § 2. Of Assaults (without Contact) 121 § 3. Of Batteries 124 § 4. Of Justifiable Assault; Self-defence; ' Son Assault Demesne ' 129 § 5. Of Violence to or towards One's Servants . . . 132 CHAPTER VII. False Imprisonment 137 § 1. Introductory 137 § 2. Of the Nature of the Restraint 137 § 3. Of Arrests with Warrant 140 § 4. Of Arrests without Warrant 156 CHAPTER VIII. Enticement and Seduction 163 § 1. Introductory 163 § 2. Of Parent and Child 164 § 3. Of Guardian and Ward 170 § 4. Of Husband and Wife 171 CHAPTER IX. Trespasses upon Property 178 § 1. Introductory 178 § 2. Of Possession 178 § 3. Of What constitutes a Trespass to Property ... 191 CONTENTS. CHAPTER X. PAGE Conversion 203 § 1. Introductory 203 § 2. Of Possession 204 § 3. Of What constitutes Conversion 208 CHAPTER XI. Infringement of Patents, Trade-Marks, and Copy- rights 223 § 1. Introductory 223 § 2. Of Patents 223 §3. Of Trade-Marks 233 § 4. Of Copyrights 234 CHAPTER XII. Violation of Rights of Support 242 § 1. Introductory 242 § 2. Of Lateral Support 242 § 3. Of Subjacent Support 250 CHAPTER XIII. Violaton of Water Rights 253 § 1. Introductory 253 § 2. Of Usufruct and Reasonable Use of Streams . . 253 CHAPTER XIV. Nuisance 259 § 1. Introductory 259 § 2. Of What constitutes a Nuisance 260 CHAPTER XV. Damage by Animals 272 §1. Introductory 272 CONTENTS. xi PAGE § 2. Of Notice of Propensity to do Damage 272 § 3. Of Escape of Animals 275 CHAPTER XVI. Escape of Dangerous Things 277 § 1. Introductory 277 § 2. Of the Nature of the Protection Required . . . 277 PART III. BREACH OF DUTY TO REFRAIN FROM NEGLIGENCE. CHAPTER XVII. Negligence 285 § 1. Introductory 285 § 2. Of the Legal Conception of Negligence in General 286 § 3. Of Innkeeper and Guest 292 § 4. Of Bailor and Bailee 293 § 5. Of Professional Services 300 § 6. Of Telegraph Companies 305 § 7. Of the Liability of Agents, Servants, Trustees, and the Like 307 § 8. Of Public Bodies and Public Officers . . . . 311 § 9. Of the Use of Premises : Duty to Plaintiff . . 317 § 10. Of Master and Servant : Assuming the Risk . . 329 §11. Of Contributory Fault 339 § 12. Of Comparative Negligence 347 § 13. Of Intervening Forces 347 INDEX 3G1 CASES CITED. A. PAGE Abrahams v. Kidney . . . 167, 168 Abrath v. Northeastern Ry. Co 69, 71, 99 Absor v. French 197 Adams v. Lisber 62 Aerkfetz v. Humphreys . . . 291 Agnew v. Johnson 219 Albany Inst, for Savings v. Bur- dick 41, 42 Albert v. Strange ..... 235 Aldred v. Constable .... 210 Aid rich v. Wright 202 Alexander v. Southey . 221, 222 Allbut v. General Council of Medical Education . . . . Ill Allen v. Crofoot . . . 199, 200 v. Hart 29 v. Wright 162 Alton v. Midland Ry. 135, 350, 351 Ames t\ Union R. Co. . . . 351 Amick v. O'Hara 202 Amory v. Flyn 201 Anderson v. Hill 25 Andre v. Johnson 129 Andres v. Koppenheaver . . 90, 91 Andrews v. Marris 148 Angle v. Chicago Ry 81 Arkwrigbt v. Newbold . . 32. 34 Armistead v. Wilde .... 292 Annorj' v. Delamine .... 206 Armstrong v. Lancashire Ry. Co 353, 354 Arthur v. Gayle 219 Arundel 1 v. White 57 Ash iv Dawnay 198 Ashby r. White 315 Aston v Blagrave 95 Atkinson v. Matteson .... 144 PAGE Austin v. Dowling 152 v. Great Western Ry. Co. . 351 Ayer iv Bartlett . . "... 185 Ayre V. Craven 94, 95 B. Bacon v. Sheppard 190 v. Towne 59, 65 Badger v. Nichols 22 Baglehole v. Walters .... 44 Bailev v. Kalamazoo Pub. Co. . 117 v. Rome R. Co 329 v. Wright 194 Baird v. Williamson .... 279 Baker V. Baker 171 v. Bolton 136 v. Brown 256 Balston v. Bensted 258 Baltimore R. Co v. Baugh . . 332 Bamford v. Turnley . . 261, 262 Barbee v. Armstead .... 176 Barker v. Braham 154 Barnes r. AUen 174 v. McCrate 102 v. Ward 320 Baruett v. Guildford .... 189 Barnstable iv Thacher . • . 181 Barratt v. Price 143 Barrett v. Warren 221 Bartley v. Richtmyer .... 165 Barton v. Burton 219 Bassett v. Salisbury Manuf. Co. 258 Batchelor v. Fortescue . . . 318 Bate Refrigerator Co. iv Gillett 230 Bataorj v. Donovan .... 297 BattersoD v. Chicago Ry. Co. . 335 Baum >■■ Clause . . . . . 92. 99 Baxendale v. McMurray . . . 265 XIV CASES CITED PAGE Baxter v. Taylor 184 Baynes v. Brewster . . 161, 162 Beach v. Hancock 123 Beal o. Robeson 69 Beall o. South Devon Ry. Co. 295, 298, 313 Beattie v. Ebury 30 Beck v. Stitzel " 91 Beckwith v. Philby .... 159 Beedle v. Bennett 231 Bellamy v. Burch 95 Bellefontaine R. Co. v. Snyder . 355 Belo v. Wren 104 Benjamin v. Storr 268 Bennet v. Bullock 188 Bennett v. Bennett 171 v. Smith 172, 173 Berkshire Woollen Co. v. Proc- tor 292 Bermina, The . . . 353, 354, 356 Bernstein v. Bernstein . . . 177 BeseW v. Matthews ... 56, 57 Bibley v. Carter 245 Bicknell V. Dorion 55 Biddall v. Maitland .... 194 Bigaonette v. Paulet . 89, 171, 175 Billings v. Fairbank .... 112 v. Wing 90 Bird v. Holbrook . . 275, 318, 342 v. Jones 137, 139 Birdsey v. Butterfield .... 29 Bishop v. Small ...... 26 Bixby v. Brundige .... 72 Blackham v. Pugh 113 Blackmail v. Johnson . \ . . 34 Blake v. Barnard 122 v. Lanvon 351 Blanchard v. Beers . . 226,-227 Bliss v. Hall 262 Bloodworth v. Gray .... 93 Bloxam v. Hubbard .... 221 Blvth v. Birmingham Water- works Co 265 v. Topham 321 Bolch v. Smith 323 Bonomi v. Backhouse . . 242, 243 Booth v. Ratte 267 Bostick v- Rutherford ... 65 Boston Glass Manuf'y v. Binney 83 Bosworth v Swansea .... 343 PAGE Bovill v. Pimm 229 Bowditch v. Balchin .... 160 Bowen v. Hall .... 5, 80, 81 Bowker v. Delong 34 Boyd v. Cross 61, 69 Boyle v. Brandon 167 Boyson v. Thorn Bradbury v. Hotten Bradlaugh v. Newdegate Bradley v. Fisher . v. Fuller . . . Bradt v. Towsley . Brad}' v. Whitney . Bramwell r. Halcomb Brannock v. Bouldin Brass v. Maitland . Braveboy v. Cockfield Breese v. United States Tel. Co Gas Breiman v. Paasch . . . Brewer v. Boston Theatre Bridge v. Grand June. Ry Bridges v. Hawkesworth Brinsmead v. Harrison Bnggs v. Burton v. Taylor . . Bristol v. Wilsmore Broad v. Ham . . Broadbent v. Imperial v. Ramsbotham Brockway v. Crawford Bromley v. Coxwell v. Wallace . Brooker v Coffin Brooks v. Curtis Broughton v. Jackson Brown v. Carpente: v. Collins v. Eastern Ry. v. French v. Hanson . v. Hoburger v. Kendall . v. Lakeman v. Leach . . v McGregor v. Myers v. Nickerson v. Watrous . Browning v. Hanfo Co Co. . 81 . 236 . 74 . 316 48 . 88 . 217 236, 237 . 78 298, 349 . 72 305, 306 171 313 344 . . 208 . . 217 . . 57 295, 297 . . 29 54, 62, 65 Co. . 261 . . 257 . . 159 . . 217 172, 176 . . 90 . . 249 . . 61 . . 202 . . 264 . . 259 . . 312 . . 86 . . 201 127, 128 . . 59 . . 39 . . 353 . . 86 . . 91 . . 270 . . 316 CASES CITED. XV Brownlie v. Campbell . Bruit" v. Mali .... Brushabcr v. Stegemann Bryant v. American Tel. Buck t'. Aiken . . . Buckley v. Gro9S . . Bulmer v. Bulmer . . Burgess v. Seligman . Burke r. Broadway R. Co Burroughs r. Bayne Burrow Lithographic Sarony ..... Burrows v. March Gas Co Burt v. Place . . . Bushel v. Miller . . Busst v. Gibbons . . Butcher v. Butcher Butler v. Manchester Ry. Butterfield v. Forrester Byam v. Farr . . . Byne v. Moore . . . Bywater v. Richardson Bywell Castle, The Co, Co. C, 58, PAOE 18 19 138 :iiit; 186 182 135 28 355 221 234 352 63,65 209 62 181 194 344 229 59, 71 44 345 Caffrey v. Darby 311 Caird v. Sime 235 Calder v. Halke 150 Caledonian Ry. Co. v. Sprott 244, 252 Calkins r. Sumner 102 Callahan v. Bean .... 354 Calloway r. Bleaden .... 225 Camp D. Martin 94 Campbell c Spottiswoode 99, 116, 117 Cann v. Wilson . . . 327, 349 Capital Bank v. Hefty ... 85 Card v. Case 272 Cardival r. Smith ... 55, 58, 59 Carleton v. Franconia Iron Co. 325, 326, 328 Carpenter v. Hale . . 210, 213, 216 v. Tarrant 92 Carrr. Hood 116 Carratt P. Morley . . 149, 150, 152 Carslake v. Mapledoram ... 93 Carson v. Edgeworth ... 69, 70 Carstairs o. Taylor 280 Carter v. Baker 228 311 353 324, 325 . 310 . 245 . 311 Ry. PAGE Carter v. Kingman . . 205, 310 r. Towne 348 Case v. Broughton 34 v. I>e Goes .... 189. 190 v. Shepherd 179 Cashill v. Wright . . . 292, 293 Cass v. Boston & L. R. Co. 295, 296 Ca8trique v. Behrena .... 56 Caswell r. Worth :m Cavey v. Ledbitter 261 Cecil v. Spurgur 21 Central Ry. Co. v. Kisch 32, 33, 40 Chambers v. Caullield . . . 176 v. Donaldson 180 V. Robinson 70 Chambersburg Sav. Assoc. Ap- peal Chapman v. New Haven R. Co. v. Roth well .... Charitable Corp. v. Sutton Charless v. Rankin . . Charlton's Appeal . . . Charman v. Southeastern Co .321 Chase v. Silverstone .... 258 Chasemore v. Richards . 5, 258, 277 Chatfield v. Wilson .... 255 Chatham v. Moffatt .... 34 Chauntler v. Robinson . . . 248 Cheesman v. Exall 206 Chenowith v. Dickinson . . . 297 Chicago Fruit House Co. v. Busch 227 Chicago Ry. Co. v. Ross . 332, 333 Chicago & Q. R. Co. v. Van Patten 347 Childers v. Wooler 34 ( Ihrysler v. Canada; .... 25 Churchill o. Hulbert .... 194 v. Siggers 73 Cibber v. Sloper 176 Cinack v. Merchants' Woollen Co 331, 337, 344 Citizens' Bank v. First' Na- tional Bank 28 Clarlin v. Commonwealth Ins. Co 46 Claridge v. Tramways Co. . . 183 Clark v. Chambers . . 347,354 v. Cleveland 144 XVI CASES CITED. PAGE Clark v. Downing 125 v. Molyneux 114 v. Rideout 205 Clarke v. Dickson .... 41, 44 v. Midland Ry. Co. . . . 322 Clement v. Maddick .... 235 Clendon v. Dinneford . . 214, 215 Cleveland R. Co. v. Terry . . 353 Cliff v. Midland Ry. Co. . 322, 323 Clinton v. Myers 256 Closson v. Staples 55 Clothier v. Webster . . 314, 315 Clough v. Northwestern Ry. Co 210 Clowes v. Staffordshire Water- works Co 264 Cluff v. Mutual Ben. Life Ins. Co 130 Coaks v. Bos well 21 Codrington v. Lloyd .... 153 Coffin v. Coffin 104 Cogel v. Kniselev 21 Coggill v. Hartford R. Co. . . 212 Coggs v. Bernard 294 Cohen v. Frost 292 Cole v. Cassiday 34 v. Curtis 67, 68 v. Maundy 196 v. Stewart 184 V. Turner 125 Coleman v. New York & N, H. R. Co 353 Collen v. Wright . . .20, 35, 36 Collett v. Foster 153 Collins v. Denison 46 v. Evans 34 v. Jackson ..... 34 Coll is v. Selden .... 328, 350 Columbus Gas Co. v. Freeland 266 Commonwealth v. Blanding . . 104 v. Carey 160, 162 v. McLaughlin 160 v. Randall 129 v. Rourke 182 v. Tuck 59 Connolly v. Boston .... 343 Consolidated Co. v. Curtis . 209 Consolidated Coal Co. v. Haenni 330, 331, 332, 334, 335, 336 Cook v. Hartle 217 PAGE Coolidge v. Brigham .... 23 Cooper v. Booth 73 v. Greeley 97 8. Harding 152 v. Landon 20 v. Lovering 26 t\ McJunkin 129 v. Utterbach 67 v. Willomatt 214 v. Wooley 267 Coote v. Lighworth .... 140 Corbett v. Brown 33 Corby v. Hill 322 Corning v. Burden 224 Cornish v. Abington .... 46 v. Stubbs 195 Cotterell v. Jones 79 Coulter v. American Express Co 345 Coventry's Case 36 Coverdale v. Charlton . . . 185 Coward v. Baddeley . . 127, 128 Cowley v. Pulsifer . . . 106, 107 Cox v. Burbridge 273 v. Cook 344 Oagie v. Hadley 34 Craig v. Hasell 74 Crawshaw v. Thompson ... 52 Crepps v. Durden 156 Crone v. Angell 86 Crooker v. Bragg 254 Crown v.Orr. . . .329,331,334 Crump v. Lambert . . . 266, 267 Culbertson v. Cabeen .... 71 Cundy v. Lindsay 211 Curtis v. Ayrault 257 v. Mussey 117 Cutts v. Spring 180 D. Dabney v. Manning Dain v. Coning . . D'Almaine v. Boosey Dalton v. Angus Damon v. Moore Daniels v. Fielding Danville Turn. Co. v. ... 190 ... 219 ... 240 244, 246, 252 ... 167 ... 73 Stewart . 353 Darley Colliery Co. v. Mitchell . 242 CASES CITED. XVI i PAGE Dauenhauer t*. Devine . . . 249 Davey. r. Southwestern Ry. Co. 319, 345 David o. Park 40 Davidson v. Nichols .... 349 Daviea v. Jenkins 153 v. Mann . . . .341, 342, 344 Davis v. Carey 90 v. Getchell 256 r. Reeves 113 v. Russell 159 v. Shepstone 117 Davison v. Duncan .... 108 Dawkins v. Paulet 114 v. Rokeby 103 t\ Saxe-Weimar .... 103 Dawson v. Chamney .... 292 Dean v. Keate .... 289, 299 0. l'eel 1G4 De Crespigny v. Wellesley . . 115 De Forest tf.Jewett . . 335,336 De Freest v. Warner . . 332, 333 De Graffe v. New York Central R. Co 331 Delano v. Curtis 217 Delaware, Lackawanna, &c. Railroad Co. v. Converse . 291 Delegal v. Highley .... 62, 63 Denton v. Great Northern Rail- way Co 35 De Pauw Co. v. Stubblefield . 330 Derry v. Peek 34 Deshon r. Bigelow 212 Dewey v. Osborn 189 Dews v. Riley 148 Devo v. Van Valkenburgh . . 137, 145, 146, 153, 156 Dezell v. Odell 215 Dickinson v. Grand June. Canal Co 258 v. Worcester .... 264 Dietz v. Langfitt .... 69, 70 Dilling v. Murray 255 Dinks v. South Yorkshire Ry. Co 321 Dixon v. Bell 290 Dobell v. Stevens 27 Dodd v. Bolme .... 244, 245 Dodson v Meek 201 Dodwell D Burford .... 125 Doe v. Challis . . . v. Ilarluw . . . Donald V. Suckling Donaldson v. Haldane Donovan v. Donovan . v Laing Syndicate Dooling v. Budget Pub. Doorman v. Jenkins Dougherty v. Stepp Doupe v. Genin . . Dowlingv. Hennings Doyle v. Hort . . v Russell . . Doyley v. Roberts . Drew v. Comstock . Driggs r. Burton . Dublin & Wicklow Ry Slatterv .... Duff v. Budd . . . Dunham v. Powers . Dunlop v. Knapp . Dunn r. White . . Dunston v. Paterson Duval v. Davey Dyckman v. Valiente E. Co Co 319 PAOl 189 189 213 303 24 353 116 296, 31 ii 191 280 24!» 37 145 94 130 61, 69 59, v 323, 345 297 102, 103 315 34 141 87 219 Eager v. Grimwood . . 166 Eaglesfield v. Londonderry 30 Barnes v. Salem R. Co. . 321 Earle v. Ilolderness . . 217 Eaton v. Boston & L. R. Co. 352 Eckert v. Long Island R. Co 338 194 Electric Tel. Co. v. Brett . 228 Elizabeth v. Pavement Co. 22 8. 231 Elliot r. Fitchbnrg R. Co. 25 4, 255 326 Elliott v. Chicago Ry. Co. 291 Ellis r. American Tel. Co. 306 v Andrews . . . 26.27 v Loft us Iron Co 275 Elwood v. Western Union Tel. Co 306 Ely v. 1 Llile 221 Embrey v. Owen . . 253, 25 4. 255 Emerson v. Davies . . . 23 S, 238 XV111 CASES CITED. PAGE Emmons v. Pottle .... 9, 98 Eno v. Del Vecchio . 249 Esty r. Wilmot . . . 199 Evans v. Carrington 21 v. Edmonds . . . 34 v. Meriweather 256 v. Warton . . 1G6 Evansich v. G. Ry. Co . 355 Everett v. Henderson 137 152, 153 F. Fairmount Ry. Co. v. Stutler 135, 350 Faribault v. Sater 29 Farnsworth v. Garrard . . • 299 v. Storrs 106 Farrand v. Marshall .... 243 Farrant v. Barnes . . . 298, 349 v. Thompson . . . 184, 204 Farrar v. Beswick 219 Farwell v. Boston R. Co. . 332, 333 Feital v. Middlesex R. Co. . . 344 Fermentation Co. v. Maus . . 224 Ferren v. Old Colony R. Co. . 344 Fertich v. Michener ... 129 Fields v. Rouse 39 Filbert v. Hoff 186 Fink v. Des Moines Ice Co. . . 330 Fiquet r. Allison 219 Firbank v. Humphreys ... 36 First Baptist Church v. Utica R. Co 267 Fisher v. Bristow 56 v. Budlong 21 v. Prince 217 v. Thirkell 322 Fitzgerald V. Connecticut River PAGE Foster v. Charles 46 v. Essex Bank 296 v. Mackinnon 41 Fouldes v. Willoughby . 209, 219 Foulkes v. Metropolitan Ry. Co. 351 Fowler v. Hollins 210 Fox v. Mackreth 21 Franconia, The 135 Frazier »- Brown 258 Frearson v. Loe 231 Freeman v. Cooke ..... 46 v. Venner 47, 48 Freer v. Cameron 325 French v. Vining 36 Frenzel v. Miller 21 Freto v. Brown 169 Frierson v. Hewitt .... 71, 72 Fnsbie v. Fowler 91 Fritz v. Hobson 265 Frogley v. Lovelace .... 193 Fryer v. Kinnersley .... 114 Fuller v. Fenner 88 v. Wilson 27 Fulton v. Alexander .... 296 Paper Co. . . • Fitzjohn v. Mackinder Fleming v. Davis Fletcher v. Smith Flint v. Pike . . Foley v. Wyeth . Folsom v. Marsh Foot v. Card . . Forde v. Skinner Forster v. Forster Fortman v. Rottier 329, 331 G. Gabel v. Weisensel 71 Gaffney v. Brown 328 Gainsford v. Blachford . . 28 Galena R. Co. v. Yarwood . . 345 Gallwey v. Marshall ... 94, 95 Galvin v. Bacon 221 Gannon v. Hargadon . . 257, 264 Garr v. Selden .... 102, 103 Gassett v. Gilbert 115 Gentry v. Madden . . . 214, 215 George v. Johnson 44 338, v. Skivington . . . 349, 350 339 Gernsh v. New Market Manuf. 68 Co 255 256 Gibbons v. Alison 73 279 Giblin v. McMullen . . 295, 296 107 Gibson v. Erie Ry. Co. . 335, 336 243 Giles v. Walker 247 237 Gill v. Middleton 304 171 Oilman v. Hill 209 125 Gilmore v. Dnscoll . . 243, 244, 245, 167 246 55 Glassey v. Hestonville Ry. Co. . 357 CASES CITED. XIX PAGE Godefroy v. Dalton .... 303 Goffin v. Donnelly 104 Goldsmid v. Tunbridge . . . 264 Goodenow r. Tappan . . .94, 103 Goodwin i'. Cheveley .... 275 Goodyear o. Railroad .... 2-32 Gordon v. Harper 204 Gorham v. White . . . 229, 230 Gott v. Pulsifer 136 Gould v. Cayuga Bank ... 41 Graham v. Gantier ... 301, 303 v. Noble 65 v. Paet 180 Grainger v. Hill . . 73, 138, 199 Graves v. Dawson . . . . 57, 59 Gray v. Durland 108 v. James 227 r. Northeastern Ry. Co. . 319 v. Russell 239 Green v. F.lgie 154 v. Sperry 217 Greenland v. Chaplin .... 341 Gregg v. Wyman 344 Gregory v. Brunswick . . 77, 79 v. Hill 131 v. Piper 192 Griffin v. Chubb 70 Griffith v. Hanks 40 Griffiths v. Teetgen .... 164 Grigsbv v. Clear Lake Water Co. " 268 Grill i'. General Collier Co. . . 295 Grinnell v. Wells 165 Griswold v. Sedgwick . . . 142 Gulf Ry Co. v. levy .... 306 H. Haas v. Damon 216 Hadley v. Clinton Importing Co 21, 22 Hager v. Grossman Hale v. Philbrick . Haley v. Case . . Hall o. Corcoran v. Fearnley . . v. Hollander Halley v. Stanton . Halls v. Thompson . 38 31 344 344 127 165 92 23,38 Ry. Amorv 101 Co Hamilton r. Boston v. Eno . . . Hampton v. Brown Hankinson v. Bilby Hanson t\ Edgerly r. McCue . . Hardcastle v. South By. Co. . . . Hare v. Miller . Harris v. Brisco . v. Saunders v. Smith . . Harrison v. Bush r. Northeastern Hart v. Frame . v. Skinner . Harvard College v Harvey v. Epes . v. Watson . Hastings v. Lusk Hatch v. Lane . Hathaway v. Rice Hauck v. Tide Water Hawkins v. Hawkins Hawyer v. Hawyer Hay v. Cohoes Co. Hayden v. Manuf. Co Hayes v. Porter v. Waldron Haynes v. Leland . v. State . . . Hays v. Younglove Heaven v. Pender . Heckert's Appeal . Hedges v. Tagg Heermance v. Jones Hemphill's Estate . Henderson r. Broomhead Henley v. Lyme Regis Henwood v. Harrison Hewes ». l'arkman Hewlett v. Cruchley Hibbard ». Thompson Hickman r. Griffin Hflbery v. Hatton . Hill v. Bateman v. Taylor . . v . Yates . , . Hilliard e. Wilson . Hilton v. Granville PAOE . :; 1 1 . 117 183, 208 . 85 . 21 . 258 Yorkshire Co. 102 103, 321 105 74 210 183 115 . 318 301, 302- 217 310 216 175 104 111 129 259 41 87 282 335 314 256 115 130 72 327, 350 . 308 . 164 . 172 . 312 102, 103 314, 351 . 116 . 217 67 304 62 210 149 138 159 73 243 XX CASES CITED. PAGE Dibdin 295 218 102 191 176 167 159 27 190 34 Hinton v Hiort v. Bott . • Hoar v. Wood . • Hobson v. Todd Hodges v. Windham Hogan v. Cregan . Hogg o. Ward . . Holbrook v. Connor Holcomb v. Rawlyns Holdom r. Aver . Hole r. Barlow 261 Holland v. Anderson .... 40 Holier r. Mix . . • • 142,198 Hollins v. Fowler *>* Holly v. Boston Gas Co. . • • 354 Holmes v. Drew 322 v. Mather .... 127, 128 v. Northeastern Ry. Co. . 328 Holt v. Parsons l (lf! Hooper v. Lane 143 v. Reeve 12 (j v. Truscott 100 Hoosac Tunnel Co. v. O'Brien . Hopkins v. Crowe . v. Tanqueray . Houek v. Wachter 270 Houlden v. Smith 151 Houndsell v. Smyth .... 321 Houser v. Tally 292 Howland V. Day I 30 v. Vincent 320 Hubbard v. Lyman .... 206 Hughes v. Macfie 354 Hulett v. Swift 292 Humphries v. Brogden . 250, 251 Humphrys V. Stanfeild ... 96 Hunt, Appellant 310 Hunting V. Russell .... 181 Hurdmaii v. Northeastern Ry. Co. 263 Hartert v. Wemes 87 Hutcheson v. Peck . . 172, 173, 174 Hutchins v. Hutchins . . 13, 76, 79 Hvde v. Graham 103 PAGE 275, 318 194, 199 . . 332 20 Ilott v. Wilkes . • ■ Ilsley v. Nichols . . IndermauT v. Dames . • ■ Indianapolis R. Co v. Tyng Inman 0. Foster H 5 Insurance Co. v. Brame . . . 136 v. Tweed 348 Iolanthe Case, The .... 234 Ireson v. Pearman 302 Irwin v. Dearman 1'0 Isaack v. Clark 216 Israel v. Brooks 65 Ives v. Carter 26 v. Hamilton 227 155 19 v. Noble Hyman v. Nye 205 293 356 Ihl v. Fortv-second St. R. Co. Ilhck v. Fhnt R. Co. . . 329, 335 J. Jackson v. Adams 86 v. Allen 28 v. Armstrong 40 v. Smithson 272 James v. Campbell .... 127 v. Hodsden 31 Jarmain v. Hooper . • • • 153 Jarnigan v. Fleming .... 115 Jaynes v. Jaynes . • • . 89, 1 1 1 Jefferies v. Great Western Ry. Co Jeffery v. Bigelow ... 22, 36 Jefts v. York .... 20, 35, 36 Jekyll v. Moore .... Jendwine v. Slade .... Jenings v. Florence . . . Jennings v. Paine 1° 2 Jenoure v. Delmege .... 114 Joannes v. Bennett . . 114, 115 Johansen v. Davies .... 318 Johnson's Estate 3U Johnson v. Brown 102 v. King 55 v. Smith 20 v. Tompkins I' 39 v. Wallower 46 v. Weedman 216 v. West Chester Ry. Co. . 345 Joliffe v. Baker 34 Jones v. Andover v. Festiniog Ry. Co. v. Pearce . . • • 206 25 73 281 231 CASES CITED. XXl PAGE Jones v. Read 248 V. Williams 185 .Ionian, v. Pickett 31 Jorden v. Money 28 Justice v. \WnJell 221 K. Kane iv Troy Steel Co. . 334, Kain v. Old Kanft'man v. Giesemer Keene p. Kimball . . . Kelsey v. Murphy . . . Kendall o. Stone . . . Kennard v. Wilhnore . . Kerwhaeker v. Cleveland R. Kieter v. Rogers . . . Kimball v. Barman . . King- c. Eagle Mills . . v. Kline Kintzing v. McElrath Knight r. Gibbs . . . v. Legfi v. Quarles .... Kohn v. McXulta . . . 335, Kost v. Bender Co 335 19 263 234 48 50 316 276 40 79 17 201 21 113 183 303 336 29 L. Lafayette R. Co. v. Huffman . 354 Laidlaw v. Organ .... 21. 22 Lake v. King 105 Lamb v. Stone 48 Lamm v. Port Deposit Assoc . 34 Lamphier v. Phipos . . 301, 304 Lancashire Wagon Co- v. Fitz- hugh 214 Lancester Co. Bank v. Smith . 296 Land. in v. Emmons .... 206 Lane r. Boston & A. R. Co. Langdon v. Doud 28 Langridge v. Terry .... 350 Larey v. Taliafferro . . . 20 Laughton v. Bishop of Sodor . Ill Laumer v. Francis 263 Law v. Grant 21 Lawrence v. Obee 192 Lea v. White 102 PAGE Leather Cloth Co. v. American Leather Cloth Co 50 Leavitt v. Fletcher 39 Lee v. Jones 20, 24 >•■ Biley 275 LeJand v. Tousey 179 Le Lievre v. Gould . . . 34, 327 Lemaitre v. Davis 246 Leverick v. Meigs . . . 307, 308 Lewis v. Clement ..... 107 v. Jones 30 v. Levy 107, 108 Leyman v. Latimer .... 92 Lib. Ass 138 Liford's Case . . . 189, 190, 191 Lineoski v. Susquehanna Coal Co 333 Linington v. Strong .... 40 Lister v. Lane '.',±1 v. Perryman . 54,62,69,159 Little r. Hackett Livingston v. McDonald . 257, 264 Lobdell v. Baker 23 Lockhart r. Lichtenthaler . . 303 London Banking Co. v. Loudon Bank 183 Longmeid v. Holliday . . . 350 Loomis v. Terry . 274, 275, 317, 342 Lord i'. Price 2o4 Lord Advocate v. Blantyre . . 185 Losee v. Buchanan . . . 278, 282 Louisville Canal Co. v. Murphy 355 Lovejoy v. Murray .... 217 Lowther o. Radnor .... 150 Lumby v. Allday 93 Lninley v. Gye ... 5, 80, 81, 171 Lunn v. Shermer 21 Luther v. Winnesimmet . . . 257 Lynch r. Knight .... 89, 171 c. Nurdin 355 v. Smith .... 355, 357 Lysney v. Selby 27 Lytle v. Bird 39 M. McAleer r. Horsey McAroy v. Wright i' Medina . . 26, 31 . 4--, . 2d7 XXII CASES CITED. PAGE McClellan «. Scott 40 McCombie v. Davies .... 210 McCormick v. Seymour . . . 226 v. Talcott 226 McDaniel v. Baca 50 Macdougall v. Knight . . . 107 McFadden v. Robinson ... 26 Macfadzen v. Olivaut . . . 200 McGuire v. Grant 243 Machin v. Geortuer .... 185 McKinney v. Smith .... 257 McLaughlin v. Cowley . . . 102 McLeod v. Jones 195 McQueen v. Fulghum . 88, 89, 90 Madras Ry. Co. v. Zemindar, The 281 Mahony v. Dore . . . 337, 338 Mahurin v. Harding . . 20, 34, 36 Malachy v. Soper ... 13, 50, 51 Mallory v. Leach .... 33 r 41 Mangan v. Atterton .... 354 Manley v. Field 164 Manning v. Wells 292 Manvell v. Thomson .... 170 Marble v. Chapin 87 Marsh v. Billings 53 v. Ellsworth 102 Marshall's Case 351 Marshall v. Cohen .... 280 v. Davis 221 v. York & Newcastle Ry. Co. 351 Marshalsea, The 149 Martin v. Jordan .... 26, 40 v. Payne 164 v. Riddle 263 Martindale v. Harris .... 41 Mason v. Hill 254 Mathews v. Hursell .... 183 Matts v. Hawkins 249 Maxwell v. Palmerston . . . 202 May v. Burdett .... 272, 273 v. Western Union Tel. Co. 36, 306 Mayhew v. Forrester .... 309 v. Herrick 219 Maynard v Boston & M. R. Co. 321 Mead v. Bunn 40 Medbury v. Watson ... 26, 27 Mehrhoff v. Mehrhoff .... 171 Mellish v. Motteux .... 44 Mellor v. Merchants' Manuf. Co. 338 PAGE Mellor v. Watkins 195 Membury v. Great Western Ry. Co 285 Menvil's Case 190 Merivale v. Carson . 101, 116, 117 Mernfield v. Worcester 256, 264, 265 Merritt v. Claghorn .... 292 v. Robinson 21 Mersey Docks v. Gibbs . 314, 315 Messer v. Smith 39 Metcalf v. Hess 292 Metropolitan Bank v. Pooley 56, 63, 74 Mikado Case, The 234 Milan, The 353 Milhau v. Sharp 268 Millen v. Fawdry 196 Miller v. Foley 141 v. Hancock ...... 321 v. Parish 91 v. Proctor .... 310, 312 v. State 130 Millington v. Fox 52 Mills v. Armstrong .... 353 Milwaukee Ry. Co. v. Arms . 295 Miner v. Gilmour . . . 254, 256 Mitchell v. Jenkins .... 70 v. Rochester Ry. Co. . . 345 Mizner v. Kussell .... 23, 33 Mogul Steamship Co. v. Mc- Gregor . . 76, 77, 78, 79, 80, 99 Moorcock, The 326 Moore v. Meagher . . . . 12, 89 v. Mourgue 309 v. Robinson 183 v. Westervelt 316 Morehead v. Eades 26 Moreland v. Atchison .... 31 Morey v. Lockwod 227 Morgan v. Booth 102 v. Marquis 219 v. Ravey 292 v Skiddy 34, 37 v Varick 190 Morison v. Salmon .... 52 Morley Machine Co. v. Lancas- ter 226, 228 Morris v. Scott 72 Murtm v. Shoppee 124 Morton v. Gloster 344 CASES CITED. XXlll Mott v. Dawson . . Mo wry v. Whitney Minister V. Lamb . Mjirchie v. Black . Murgoo v. Cogswell Murphy !•. American Co v. Deane . . . Murray v. Hall . • Myer v. Schleichler Myers v. Dodd . . PAGE ... 117 . . . 221 101, 102, 104 ... 214 ... 202 Rubber . . . 332 339, 340, 346 ... 187 ... 91 ... 275 N. Nash v. Mosher 221 National Telephone Co. v. Baker 278 Nelson v. Liverpool Brewery Co 322 Newcomb v. Boston Protective Dept 340, 342, 343 New England Trust Co v. Eaton 312 Newman n v. Sylvester ... 36 Nov World, The 295 New York R. Co. V. Schuyler . 49 New York & W. Tel. Co. v. Dryburg 306 Nichols v. Marsland .... 279 Nicholson v. Coghill ... 64, GO Nitroglycerine Case .... 127 Nixon v. Jenkins 220 Nolan o. Traber 87 Norcross v. Norcross .... 292 Norris v. Litchfield .... 342 Northampton '9 Case .... 115 Northeastern Rv. Co. v. Wan- less ..... . 319, 345 North Penn. R. Co. v. Ma- honey 355 Noyes v. Lonng 36 O. Oakes v. Spaulding .... 272 Odiorne v. Winkley .... 226 O'Brien r. Barry .... 55, 58 O'Donogbuc r. Hussey . ■ . Ill O' Mi lev v. South Boston Gas- light Co. . . 329, 334, 335, 337 PAGE O'Neal v. Chicago Ry Co. . . O'Reilly v. Morse . . 224,226,227 O'Eiley v. McCheeney . . . 264 Ogburn v. Connor 263 Olmstead V. Partridge . . . . 67 Olmsted v. Miller 89 Onslow v. Home 95 Oppenheim v. White Lion Hotel Co 292, 293 Ormrod v. Huth 34 Osborn v. Gillett .... 136 Osborne v. London Ry. Co. . . 338 Osgood v. Lynn R. Co. . . . 265 Outcalt v. Durling 205 Overend v. Gibb . . . 312,313 Oviatttf. Sage 219 Owen v. Henman 267 Paddock v. Strobridge Page v. Parker . v. Robinson Palmer v. Concord Pangburn v. Bull Panton v. Williams Pappa v. Rose Parham v. Randolph Park v. Hammond Parker r. Farley v. Haworth . «. Huntington Parsons v. Webb Parton V. Prang . Partridge v. Gilbert v. Scott . . Pasley v. Freeman . 18, Pater v. Baker Patterson v. Kirkland Pattison v. Jones Payson 0. Caswell Peake v. Oldham Peard v. Jones . Pearse v. Coker . Pease v. Chaytor Pedrick v. Porter Peek ». Gurney . Penn V. Preston . Penruddock's Case . 23 26, 76 . 184 . 117 . 69 61,69 316, 317 . 40 . 309 56, 59, 63 230 76 221 234 249 244 45,46,47 50, 51 . 21 113, 114 . 58 . 86 . 94 . 189 . 150 . 28 21, 33. 48, 49 . 180 196, 197 27 112 XXII CASES CITED. PAGE McClellan r. Scott 40 McCombie v. Davies .... 210 McCormick v. Seymour . . . 226 v. Talcott 22G Me Daniel v. Baca 50 Macdougall v. Knight . . . 107 McFadden v. Robinson ... 20 Macfadzen v. Olivant ... 200 McGuire v. Grant 243 Mai hin v. Geortner .... 185 MeKinney v. Smith .... 257 McLaughlin v. Cowley . . . 102 McLeod v. Jones 195 McQueen v. Fulgham . 88, 89, 90 Madras Ry. Co. v. Zemindar, The 281 Mahony r. Dore . . . 337, 338 Mahurin v. Harding . . 20, 34, 36 Malachy v. Soper ... 13, 50, 51 Mallory v. Leach . . . . 33, 41 Mangan v. Atterton .... 354 Mauley v. Field Manning v. Wells . Manvell v. Thomson Marble v. Chapin . Marsh v. Billings . v. Ellsworth Marshall's Case Marshall v. Cohen v. Davis . . v. York & Newcastle Ry. Marshalsea, The . . Martin v. Jordan . . v. Payne . . . v. Riddle . . . Martindale v. Harris . Mason v. Hill . . . Mathews v. Hursell Matts v. Hawkins . . Maxwell v. Palmerston May v. Burdett . . . Co. 164 292 170 87 53 102 351 280 221 351 . 149 26, 40 . 164 . 263 . 41 . 254 . 183 . 249 . 202 272, 273 v. Western Union Tel. Co. Mayhew v. Forrester . . v. Herrick . . . - Maynard v Boston & M. R. Mead r. Bunn .... Medbury v. Watson . . Mehrhoff v. Mehrhoff . . Mellish v. Motteux . . Co. 36, 306 309 219 321 . 40 26, 27 . 171 . 44 Mellor v. Merchants' Manuf . Co. 338 PAGE Mellor v. Watkins 195 Membury v. Great Western Ry. Co 285 Menvil's Case 190 Merivale v. Carson . 101, 116, 117 Mernfield v. Worcester 256, 264, 265 Merritt v. Claghorn .... 292 v. Robinson 21 Mersey Docks v. Gibbs . 314, 315 Messer v. Smith 39 Metcalf v. Hess 292 Metropolitan Bank v. Pooley 56, 63, 74 Mikado Case, The 234 Milan, The 353 Milhau v. Sharp 268 Millen v. Fawdry 196 Miller i\ Foley 141 v. Hancock ...... 321 v. Parish 91 v. Proctor .... 310, 312 v. State 130 Millington v. Fox 52 Mills v. Armstrong .... 353 Milwaukee Ry. Co. v. Arms . 295 Miner v. Gilmour . . . 254, 256 Mitchell v. Jenkins .... 70 v Rochester Ry. Co. . . 345 Mizner v. Kussell .... 23, 33 Mogul Steamship Co. v. Mc- Gregor . . 76, 77, 78, 79, 80, 99 Moorcock, The 326 Moore v. Meagher .... 12, 89 v. Mourgue 309 v. Robinson 183 v. Westervelt 316 Morehead v. Eades 26 Moreland v. Atchison .... 31 Morey v. Lockwod 227 Morgan v. Booth 102 v, Marquis 219 v. Kavey 292 v Skiddy 34, 37 v Varick 190 Morison v. Salmon .... 52 Morley Machine Co. v. Lancas- ter 226, 228 Morris v. Scott 72 Mortin v. Shoppee 124 Morton v. Gloster 344 CASES CITED. XXlll Mott i'. Dawson . . Mowry r. Whitney Minister v. Lamb . Murchie o. Black • Murgoo v. Cogswell Murphy v. American Co v. Deane . . . Murray v. Hall ■ • Myer v. Schleichler Myers v. Dodd . . PAGE ... 117 . . . 224 101, 102,Hi4 . . . 244 . . . 202 Rubber . . . 332 339, 340, 846 ... 187 ... 91 ... 275 PAGE O'Neal 0. Chicago Ry. Co. . . 335 O'Ri illy ,-. Morse . . 224, 220, 227 N. Nash v. Mosher 221 National Telephone Co. o. Baker 278 Nelson v. Liverpool Brewery Co 322 Newcomb v. Boston Protective Dept 340, 342, 343 Now England Trust Co v. Eaton Newman n r Sylvester . New World, The . . . New York B. Co. v. Schuyle New York & W. Tel. Co Dryburg Nichols v- Maryland . • Nicholson r. Cogbill . . Nitroglycerine Case . . Nixon o. Jenkins . . . Nolan v. Traber .... Norcross v. Norcross . . Norns v. Litchfield . . Northampton's Case . . Northeastern Ry. Co. v. Wan- less ....... 319, 345 North Penn. R. Co. v. Ma- honey Noves v. Loring . . . 36 295 49 . 306 . 279 64, 66 . 127 . 220 . 87 . 292 . 342 . 115 355 36 O. Oakes v. Spaulding .... 272 Odiorne V. Winkley .... 226 O'Brien j\ Barry .... 55, 58 O'Donoghue o. Hussey ... Ill O'Milev v. South Boston Ca- ught Co. . . 329,334,335,337 ( ('Riley v. McCheeney ( >glmrn v. Connor . . . Ohnstead v. Partridge • . olmstc.l o. Miller . . . Onslow r. Home . . . Oppenheiin v. White Lion Hotel Co 29 Ormrod v. Huth . . . Osborn v. Gillett . . Osborne v. London Ry. Co. Osgood v. Lynn R. Co. . Outcalt v. Durling . . Overend v. Gibb . . . 312 Oviatt v. Sage .... Owen v. Henman . . . 264 26 67 89 95 293 •'14 136 338 265 205 , 313 219 267 P. Paddock v. Strobridge Page v. Parker . v. Robinson Palmer v. Concord Pangburn » Bull Panton v. Williams Pappa *'. Rose . Parham >'■ Randolph Park r. Hammond Parker r. Farley v. Haworth . v. Huntington Parsons r. Webb Barton p. Prang . Partridge v. Gilbert v. Scott . . Pasley v. Freeman . 18, Pater v. Baker Patterson v. Kirkland Pattison v. Jones Payson v. Caswell Peake v. Oldham Peard o. Jones . Pearse v. Coker . Pease v. Chaytor Pedriek v. l'orter Peek r. Gnrney , Penn o. Breston . Penruddock's Case . 23 26, 76 . 184 . 117 . 69 61, 69 316, 317 . 40 . 3 56, 59, 63 230 76 221 234 240 244 45, 46. 47 50, 51 . 21 113, 114 . 58 . 86 . 94 . 189 . 150 . 28 1. 33, 48, 49 . 196, 197 27. 112 XXIV CASES CITED. PAGE People v. Hubbard . . ■ 194 People's Bank v. Bogart • • • 21 Perceva] v. Phipps . . 235 ,241 Percy v. Millandon 313 216 202 247 Phillips v. Homfray . 135 Philp r Squire . . . . 173 214 Pickaid v. McCormick 29 v. Sears . . . 215 , 216 Pickering v. Dowson . . 44 99 Piper v, ^Manny . . , 292 Pip pet v. Hearn . 72 Pitt v. Donovan . . . 5 3, 51 f. Petway . . 219 220 227 Pittsburgh 1!. Co. v. Devil iney . 332, 333 354 79 Playford v. United Ku gdom Tel. Co 305 306 Polhill r. Walter . . . . 46, 47 Pollard v. Lvnn . . . , . 90 v. Photographic Co. . * 99 Pollev v. Lenox Iron Woi ks 217 Pool v. Lewis . . . . , 256 Popplewell v. Pierce . , . 272 311 Powers v. New York R .C 0. . 336 177 316 21 Prideaux v. Bunnett . . , . 25 Proctor v. Webster . . , , , 105 126 Puterbaugh r. Reasor . , , 353 202 Pym v. Great Northern R: '•Co. 135 Q. Quartz II ill Mining Co. v. Eyre 55, 71 PAGE R. Radcliff v. Brooklyn .... 243 Radley v. London & Northwest- ern Ry. Co 346 Ragon v. Toledo P.. Co. . . . 335 Railroad Co. v. Houston . . . 291 Railway v. Shields 330 Ramsey v. Arrott 61 Randell v. Trimen .... 20, 36 Rapier v. London Tramways Co. 259 266 Ravenga v. Mackintosh ... 67 Rawstron v. Taylor .... 257 Raymond v. Andrews .... 179 Rea v. Tucker 176 Read v. Edwards 275 Reading's Case 186 Reading v. Royston .... 180 Reddaway v. Bentham Hemp- spmning Co 52, 233 Reddie v. Scoolt 170 Redgrave v. Hurd .... 34, 40 Reese Mining Co- v. Smith . . 34 Regina v. Ashwell 183 ■v. Clarke 169 v. Cotesworth 126 v. Duckworth 122 v. James 122 v. Saddlers' Co 41 v. St. George 122 v. Veley 112 Rex v. Abingdon Iu4 v Burdett 99 v. Creevey 104 Reynell v. Sprye .... 31, 40 Reynolds v. Kennedy .... 65 Rhode v. Alley . . . . . 24, 40 v. Annis 40 Rice v. Coolidge 102 v. King I'll, lip Mills . . 331 Rich v. Pierpont 304 Richards v. Jenkins . . 251, 252 v. Rose 247 Richardson v. Silvester ... 48 Richart v. Scott 244 Riley?;. Home -" , 7 Rist v. Faux 166 Ritchey v. West i CASES CITED. XXV PAGE Roberts v. Connelly . . . . L69 . . . 206 ... 41 v. May ■ • . . . . 110 Rockwell o. Proctor . . . . 292 ... 52 . . . Rohan o. Sawin . . . 158, 159 ... 117 Rose r. Miles . . . 267, 269 . . • 280 Rosworth r Wilkes ... 237 R<>wbotham v. Wilson ... 242 . . . 198 Rush o. < lavenaugh . . . 94 Russell v. Tillotson ... 344 Rutherford o William 3 . . . 47 Rylands v. Fletcher 26 3, 278, 280, 282 129, 130 Safford v. Grout 31 St. Helen's Smelting Co v. Tip- ping 261, 262, 265 Salem Rubber Co v. Adams . 39 Sampson v. Henry 194 r. Il.iddiuott . . 253, 254, 255 Sanborn i'. Neilson .... 176 Sankey v. Alexander . Sans v. Joerris . . . Sargent v. ■ . . v. Gile .... Saunders v. Smith . . SavacQol ». Boughton Savage v. Walthew Savil v. Roberts . . . Sawin V. Guild . . Sayi jgs Schneider v. Heath ield ■ i hicago, Milwau- kee, & St. Paul Railroad . 291 Schrieve v. Stokes 245 Scbroyer v, Lynch 315 Schubert v. Clark 349 Schuneman v. Palmer. . 174, 175 Schuylkill v. Copley . . . .41 Schwenk r. Xaylor .... 40 Scott v. Ely . ' 141 . 40 . 115 . 169 . 212 236, 237 . 147 . 310 70. 76 . 231 . 59 44 PACE 348, 349 101 Co Scott v- Shepherd i- Stansfield Scnbner v. Beach Seaman v. Bigg v. Netherclift Seaver v. Adams Seelev v. Brush • : v. Lafone . Severm u Keppell Seward v. Vera Crux, The Shaul '•. Brown . . Shaw v. Berry . . , Sheckell v. Jackson Sheehan v. Sturges Sheflill v. Van Deusen Shelter v. Gooding Shelton v. Lake Shore Ry Shergold v Holloway Sherry v l'icken Shipley v. Fifty Associates Shook v Rankin Shorlaud v Govett Sibley o. Aldrich . , Simmons v. Lillystone o. Mitchell Sims v. Eiland . . , Sinclair v Eldred . . Singer Machine Co v Wilson Singleton v. Bolton . . . Six Carpenters' Case 194, 198, 199, 200 Slaughter v. Gerson , . . . 39 Sledge v. Scott 19, 34 Smith v. Ashley 98 v. Baker 286 v. Chadwick ... 24, 27, 47 v. Countryman .... 21 v Higgins 110 v. Hughes 21 v. Cay 32 v. Kennck 279 i- Land Corporation 28, 32, 40, 42, 43 . 327 . 267 . 257 91, 353 . 348 . 92 . 152 131, 132 . 95 102, 112 171 255 2o, 36 221 135 72 292 109 129 87 101 194 146 221 278, 281 241 198 292 219 85 34 65 52 62 v. London Docks Co. v. Midland Ry. Co. . v. O'Hara .... v. Smith .... v. Southwestern Ry. Co v. Stewart .... v. Sydney .... XXVI CASES CITED. Co Co Co. Smith o. Tett . . o. Thackerah. Smith Manuf. Co. v Sprague Snow v. Allen . . Solomon » Vintners Somers v Richards Somner v. Wilt . . South v Denniston Southcote v. Stanley . Southwest Improvement Andrew . , Spangler v. Chapman ; irhawk v Union Ry gler v. Davy . Springfield v. Harris . Standard Bank v Stokes Stanley v Gaylord v McGauran . . Stark v Chitwood Starr v Jackson State v. Dixon . v. Taylor Stedman v. Smith Steele v. B rami an v. Southwick Stephens v. Baird v. Koonce . v. Myers V. Wilkins . Stevens v. Hart well v. Midland Ry v. Sampson Stewart v. Cole . Stitzell v- Reynolds Stockdale v Hansard Stockley v. Hornridge Stone v Stevens Storey v. Wallace Story v. Holcombe Stowe v. Thomas . Strauss v- Francis - Strickland 8. Parker Stroebel v. Whitney Strong ». Strong Stroyan v. Knowles Suggs v. Anderson Sullivan v. Union Pacific Co Sutton v. Huffman t\ Johnstone Co. 40, PAGE 189 245 23 1 67 247 26 73, 210 . 169 . 324 330 34 267 74 256 248 221 , 41 . ' 50 . 183 . 130 . 123 . 250 . 107 . 97 . 215 . 217 . 124 . 146 . 115 . 70 . 106 74, 210 . 86 . 104 . 78 . 72 . 102 . 240 240, 241 . 116 219 80 41 245 129 R. 136 166 65 PAGE Sutton u Wauwatosa .... 343 Swain v Mizner 194 V. Stafford 62, 03 Sweeney v. Baker 167 Sweeny v. Old Colonv R Co . 318, 322, 323, 324, 345 Sweet v Benning 236 v. Sweet 236 Swett o Cutts .... 258, 264 Swift v. Wmterbotham ... 48 Sykes v. Sykes 52 Taft v. New York R. Co. . . 321 Talmadge v. Scudder .... 221 Tarlton v. Fisher 145 Tarver v. State 123 Tebbutt v. Bristol and E. Ry. Co 328 Telephone Cases ..... 224 Temperton v Russell . . 79, 81, 82 Terrv v Hutchinson . . . 165 Terwilhger ». Wands . . 88, 89 Tharsis Sulphur Co. v. Loftus . 316 Thickstun v. Howard ... 292 Thomas v. Churton .... 103 v. Quatermaine .... 332 v. Winchester .... 349 Thompson v. Rose 222 v. Shackell 116 Thorley v. Kerry 97 Thorogood v. Bryan .... 353 v. Robinson 219 Thrussell V- Handyside . . . 327 Thurston v. Hancock . . 243, 244 Tickell v. Read 132 Tierney v. Frazier 149 Tilghman v. Proctor .... 224 Tillett v. Ward 275 Timm v. Bear 256 Timothy v. Simpson .... 161 Todd r." Flight 322 Tolle v. Correth . . ■ 256 Tompkins v. Halleck .... 234 Tootle v. Clifton 263 Toy v. United States Cartridge Co 329, 330 Trade Mark Cases 234 CASES CITED. XXVI 1 PAGE Trudo v. Anderson .... 221 True t\ International Tel. Co. 305 Trusler t'. Murray 238 Tuberville v. Savage . ... 123 Tuck v. Downing 38 I'u If p. Warman . . 344, 340 Tullidge P. Wade 200 Tunstall v. Christian . . 244. 246 Turner ». Ambler .... 61,69 v. Harvey 21. 22 v. Sullivan 107 Turpin v. Kemy 72 Twaddle's Appeal 310 Tyler v. Boston 229 U. Ullee, In re 169 Underhill p. Welton ... 86, 90 Upton P. Trilulcock .... 30 Usill o. Hales 108 V Van Arnam v. Ayres . Van Brunt v. Schenck Vanderbilt p. Mathia . Van Epps r. Harrison Van Wyck v. Aspinwall Vaughan p. Tall' Vale Ry Venard p. Cross . . Vernon p. Keys . . . Victorian l!ys. Coram Coultas . . . . Vincent p. < '« >rnell . . v. Stmehour . . ra Co. . 171 . 189 69, 70 . 26 . Ill 280 . 270 25,39 v. 88, 345 . 212 127, 128 w. Wait v. Richardson .... 188 Waite's Case 356 Waite p. Northeastern Rv. Co. 354, 356 Wakefield v. Buccleuch . . . 243 Wakeman v. Robinson . . . 127 Walker v. British Guarantee Assoc 310 v. Cronin . . 80, 82, 83, 134 Walsbam v. Stainton .... 78 PAGE Walter v. Sample .... 68 r. Selfe 200 Walton o. Potter 220 Ward r Clark 80 v. Hobbs 22 Warner v. Miller . . . . 89,171 Wason, Ex parte .... 104 p. Walter . 105, 107, 109, 112 Waterburv Brass Co. v. Miller 227 Watkin v. Hall .... Watson v. Gray . . . v. McCarthy . . . Weaver v. Eureka Lake Co v. Ward Webb v. Beavan . . . p. Hill Webber » Closson . . Weber p. Weber . . . Webster v Bailey . . v. Ilud-on Biver R. Co. 115 . 248 . 93 . 257 . 127 85, 90 65, 66 . 275 . 40 . 43 . 353 Weedon p. Timbrell . . 175. 176 Weld v. (diver 219 Welfare o. London & B. Rv. Co. 324 Wells Com'rs 204 Weninan v Ash .... Wennhak v. Morgan . . . Wesson v. Washburn Iron Co. 87 87 208, 269 West r. Nibba 199 o Wright 40 Western Bank p. Addie . . 37, 41 Western Union Tel. Co. v. 30 5, 300 Westlake p. Westlake , 171 West London Bank v. Kitson 31 Weston v. Arnold •248 Whallev r. Lancashire Rv. Co. 263 Wheatley v. Chrisman . 254, 204 Wheatly V. Harris . 201 Wheaton r. Peters . 23 5, 236 Wheeldon P. Lowell 194 Wheldon v. Chappel 344 Whistler )'. Buskin 110 White r. Brooks 219 v. Carroll . . 102 v. Demary . 222 v. Garden . . 211 c. Madison . . . . 20, 35,36 v. Witteman Litl ognfphic Co . 335 XXV111 CASES CITED. PAGE Whitehead r. Greetham ... 303 Whiting v. Hill • . ... 38 Whitman Mining Co. V. Tritle 221 Whitney r. Allaire .... 41 r. Boardman 44 v. Peck ham 63 Whittemore v. Cutter . 230. 231 Wiggins v. Hathaway . . • 315 Wilder v. De Cou 17 Wilkins v. Aiken . . . . 237 v. Earle 292 Wilkinson v. Fairne .... 328 v. Hagarth 187 r. Proud 250 Willans v. Taylor 66 Williams v- Chadbourne . . 219 v. Esling 192 v. Great Western Ry Co. . 319 v. Hill 89 v. Norwood 65 v. Smith .... 152, 153 v. Spurr 21 Wilmarth v. Burt 149 Wilson, Ex parte 90 v. Brett 295 v. Goit 88 v. New Bedford . . 258, 282 v. Newberry 280 v. Read 219 Wilton v. Webster . , 175, 177 Winsmore v. Greenbank . 173, 174 Winter v. Henn 167 Winterbottom v. Derby . . . 270 v. Wright 350 Wolf v. Western Union Tel. Co. 306 Wolfe v. Door . . Wood v. Clapp . . v. Cooper . . v. Leadbitter . v Waud . . Woodman v Hubbard Woodward v. Morrison Woolf V. Chalker . . Wooton v. Dawkins Worcester v. Marchant Wren e Weild . . . Wright v. Court . . v Maiden R. Co. . Wyatt v. Buell • • Wyndham v. Wycombe PAGE . 315 . 304 . 308 . . 193 255, 256 . . 344 229 201, 318 . . 275 . . 169 . . 51 . . 143 354, 355 . . 102 . . 176 Y. Yale v. Saunders 217 Yarmouth v. France .... 329 Yates v. Lansing 316 Yeates v. Prior 25 York v. Pease 106 York & North Midland By. Co. v. Hudson 313 Young v. Miller 91 v. Spencer 184 Z. Zeliff v. Jennings . Zinn v. Rice . . . Zoebisch v. Tarbell 91 74 327 INTRODUCTION. INTRODUCTION. For the purposes of one first approaching the subject, the term ' tort ' cannot be defined in language not itself needing definition. Indeed, no definition, helped out even by explanation, can convey a full conception of the meaning of such an expression as ' the law of torts ; ' nothing short of careful study of the specific torts of the law will suffice. The diffi- culty grows out of the fact that there is no such thing as a typical example, an actual tort, that is to say, which contains all the elements entering into every other. One is as perfect as another; and each of the torts of the law differs, not merely in point of fact from the rest, but in its legal constituents as well. Still, it is important to get some helpful conception, if possible, of the meaning of the term before entering upon the study of the particular torts. And fortunately there are some things in common to all ; things which, if not at first sufficiently intelligible, may be explained in a way to make the matter instructive to the begin- ner, and prepare him the better for the more special study of the subject to follow. Putting, then, common features together in the way of definition, a tort may be said to be a breach of duty 4 INTRODUCTION. fixed by municipal law for which a suit for damages can be maintained. 1 Each of the parts of the defini- tion, however, will need explanation. Consider in the first place the phrase ' breach of duty.' What does that mean ? The answer cannot be given directly and shortly. There is no constant factor in the ' duty ' ; what would constitute a breach of duty in the case of one tort would not constitute it in the case of another. Still, the various duties involved in the different torts are capable of being grouped into some three or four classes, upon a basis not wanting in instructiveness. In one of these classes the breach of duty is stated in terms apparently significant of an actively guilty state of mind. This phase of the breach of duty may be manifested in either of two forms ; in one, the breach consists in the doing an act fraudulently ; in the other, in doing it maliciously. And without the facts upon which the conception of fraud or malice is predicated, there is no redress in damages ; that is, there is no tort. It should be said, however, and the fact should be well observed, that the legal way of stating a conclu- sion 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 particu- 1 The adjective ' tortious' is sometimes used for convenience of cases in which there could he no action for damages ; as e g. to express wrongful conduct. But the common acceptation of the term ' tort,' especially in the expression ' law of torts,' is that of a wrong for which a suit for damages can he maintained. INTRODUCTION. 5 lar facts stand. Tn other words, the law often makes use of terms in a technical sense, that is, in a sense different from that in which they are used in ordinary speech, and accordingly has a dictionary of its own. Subject to this observation, fraud or malice must then be said to be an clement of the right of action in the first class of cases. But it may be observed that, while the law of torts presents a very clear conception of fraud and its consequences, it has not determined, with much precision, what constitutes malice ; 1 indeed the law still hardly knows how to deal even with admitted malice in respect of civil liability, outside of a few cases. As yet it is only feeling its way, and that in no perfectly assured direction. 2 Fraud as a necessary element of liability in actions for tort is confined almost entirely to cases of misrep- resentation ; malice is a necessary element in actions for malicious prosecution, slander of title, so-called, 3 and for interfering with contracts ; 4 it is also insepar- able from unlawful conspiracies. Malice, further, may become a turning-point in actions for defa- mation, upon a defence that the occasion of the publication made it presumptively lawful ; but its • 1 See chapter ii. § 4. This, however, may he said, that malice may be found either in the wrongful motive, or, in many cases, in a wrongful act whatever the motive. Possibly it may have different :ings in different connections, as it has in the criminal law. 2 Comp. Bowen v. Hall, 6 Q. B. Div. 333, with Chasemore v. Rich- ards, 7 H. L. Cas. 349, 388 ; I,. C. Torts, 525. 3 This subject, however, belongs on the whole to fraud, as will be seen in chapter i. 4 The last-named wrong refers to cases like Bowen v. Hall, »3 Q. B. Div. 333, following and explaining Lumley v. Gye, 2 El. & B. 216, and L. C Torts, 306. See chapter iv. 6 INTRODUCTION. presence or absence is immaterial to the right of action itself. 1 Another step will bring the student to a class of cases in which, though there is often a manifest inten- tion on the part of the defendant to do the very thing for which he has been sued, the law 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 gener- ally speaking, even intentionally ; and hence the want of such motives, or of intention, is no defence. Nor. indeed is negligence, or the want of negligence, any necessary part of the case. Here, then, is a class of cases in which the tort con- sists in the breach of what may be called an absolute duty ; the act itself (in some cases it must have caused damage) is unlawful and redressible as a tort. The cases in which this is true are, speaking generally, cases of violence apparently about to be committed, 2 or actually committed, upon one's person, 3 restraint of liberty, 4 interfering with the relation of master and servant with notice thereof, 5 interfering in one way or another with the possession, 6 ownership, 7 or enjoy- ment 8 of property, and failing to keep safely danger- ous things. 1 Actions for defamation (slander or libel) ma}' thus be treated as marking a transition from the first to the second phase of tort. 2 Assault. 3 Battery. * False imprisonment. 5 E. g. enticing away or seducing a servant. 6 Trespass to lands or goods. 7 Conversion, ' trover ' in the old law, a wrong relating to goods. 8 E. g. nuisance. INTRODUCTION. 7 One other phase of the breach of duty remains. From regarding, first, a positive mental attitude of the defendant, nominally at least; and secondly, disre- garding the existence or non-existence of such an attitude : the law, thirdly, passes over to cases in which it regards, as an essential fact, what may be considered as a negative mental attitude. In the class .of cases now reached, the law 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 conducted himself as he ought to have done in the situation. He has failed, e. g. to exercise due care ; and the failure, assuming damage to have followed, constitutes a tort. This phase of the breach of duty is the domain of negligence. 1 The meaning of the first part of the definition is now, it is hoped, somewhat cleared up. The result may be shortly put thus : Looking to one class of cases, a tort is (so far) a breach of duty effected by fraud or by malice. Looking to a second class, a tort is a breach of duty absolute, regardless of fraud, mal- ice, intention, or negligence. Looking to a third class, a tort is a breach of duty effected by negli- 1 The law ilocs 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- gi nee ; and the text, it will lie seen, only says that negligence 'may be considered as a negative mental attitude.' It is believed, however, that there is always in fact, to some extent, a negative or passive state of mind in cases of negligence ; the mind has not been duly amused to the danger, or if the defendant is sensible of the situation, he has nut duly exerted his will to avoid harm. And it is believed that it is ful and instructive to call attention to this. The very etymol of 'negligence ' is instructive, as far as it goes. ' Neglegere' 'nee- legere ;' not to choose, not to exercise the proper mental faculties. But the actual standard of the law is external. See pp. 286, 287. 8 INTRODUCTION. gence. 1 These divisions of the breach of duty will be found to cover all cases of tort in the law as it now exists. Further, it may be remarked that the breach of duty, in whatever form, 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 contract and to the criminal law. Liability in con- tract depends, indeed, upon capacity to contract ; but want of such capacity may be either natural or arti- ficial. One must be of sound mind and at least twenty-one years of age to bind oneself by contract. 2 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 difficulty sometimes in applying the rule of natural capacity ; but the difficulty can hardly arise except in cases requiring proof of fraud, malice, or negligence, and then as a rule only in suits against infants. Where the doing of the act creates of itself liability, that is, where there is a breach of the absolute duty, a defence of incapacity would be contrary to the fact, and could not, it seems, be allowed. The fact that the defendant was a person of unsound mind, 3 or 1 It should be observed, however, that the result shows only the outward aspect of the breach of duty. For the deeper meaning, the student must await the examination to be made of the specific torts of the law. It could not be shown here without making this Introduction prolix, and going over ground to be examined, necessarily, later. 2 Infants' contracts for necessaries are an exception. 8 Qiuere, in regard to civil liability for an act committed by a mad- man in a frenzy, though the act was intended ? In some cases neces- INTRODUCTION. 9 a child of tender years, would not be material. It would be enough that the act done was of the will. Cases requiring proof of fraud, malice, or negligence would perhaps create no difficulty where the defend- ant was a person so unsound of mind as not to be accountable 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 prosecution. 1 And clearly a madman can- not exercise diligence. A person sane enough to be accountable to the criminal law would probably be liable for any kind of tort. Infancy is more likely to give occasion for serious difficulty. An infant of sound mind, twenty years of age, or much less, is liable for any tort for which an adult might be sued; an infant of five years could seldom be liable in 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 called upon to act, must act according to the best light they may have in each particular case ; the question of capacity being probably a question of fact. 2 sity would excuse a tort by any one, as where a person is chased apon another's laud by a savage beast. But suppose A threatens to kill B unless B will trespass upon C'a land, and B does the act ; will it affect the case that B is an infant, insane, or idiotic ? 1 Corap. Emmens v. Pottle, 16 Q. B. Div. 354, 356, Lord Esher. 2 There is a difficulty of another kind touching the liability of infants, and that is where what would be a tort in other cases, e. g. a 10 INTRODUCTION. 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 agreement. But this is not always the case ; it hap- pens not infrequently that the parties to a contract leave terms to be supplied by the evidence of custom or by the law itself. In such cases a violation of the term so to be supplied might make a case of tort or of breach of contract, at the election of the injured party ; the duty being fixed by law, or, what would come to much the same thing, by custom, the breach could be treated as a tort. Thus, if a common car- rier 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 presumptively liable to A, as for a tort, or for breach of contract, at A's election. A breach of an implied term of a contract may then, it seems, be treated as constituting a tort when- ever the term is supplied by law or by custom ; but this is not now a matter of as much importance as it once was l in regard to the subject under considera- tion. Nor, indeed, was it of first importance formerly, for the injured party had a clear right of action for breach of contract, at all events ; and the question was only one of the preferable remedy. Still, it is fraudulent representation, is the inducement to a contract. But the rule in regard to such cases is, that there can be no liability in tort if to enforce the action would virtually fix upon the infant liability for breach of contract. The case is or may be quite different where the tort follows the contract; there to enforce an action for the tort would not be to enforce the contract. 1 When the forms of action were rigidly maintained. INTRODUCTION. 11 to be remembered that theoretically the law of torts overlaps that of contract at the place indicated. It is not to be inferred that there cannot be a tort in respect of the breach of a contract the terms of which arc all fully expressed. If the contract con- tain a false warranty, it is broken in the breach of the warranty ; and breach of an affirmative warranty, 1 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 con- tract ; the duty violated is fixed by law, — a duty not to defraud. In this view, then, the law of tort still further overlaps that of contract. 2 Consider, finally, 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 1 A warranty affirming a fact, as distinguished from one promising something. 2 In regard to the case of warranty, if what is said supra is not understood, it should be observed that warranty in itself, where it consists in the affirmation of a fact, is a contract only 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. 12 INTRODUCTION. term. There nre 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 arc many cases in which the plaintiff cannot recover judgment without proving" that the act or the omis- sion of the defendant caused a loss to him. In regard to this, the law has laid down only ar- bitrary rules ; and that being the case, about all that could be said towards making clear the concep- tion of tort in this particular would be to state the cases in which loss must, and those in which it need not, be proved. But at this stage of the student's work it 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.' To constitute damage within the meaning of such a phrase as ' suit for damages,' whether loss is neces- sary or not, there must have been an infraction of some legal as distinguished from a moral right, and from that sort of right which is only lawful power, such as the right to make a gift. But ' legal ' right includes cases in which the right is in process of for- mation at the time of the infraction, and cases in which a person is at the time receiving, actually or potentially, a gratuity. 1 1 Post, chap. iv. § 3 ; Moore v. Meagher, 1 Taunt. 39, 44, Ex. Oh. INTRODUCTION. 13 Examples of the statement just made should be given here and now, or its meaning may not be seen. The following will, it is hoped, serve the purpose: A and J] arc negotiating fur the sale by the former to the latter of a horse. By false and fraudulent represen- tations concerning the animal, C induces B to break off the negotiations. A has, it seems, sustained dam- age, and can maintain an action against C. 1 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 enjoyment begun, he will not be deemed to have suf- fered damage by the defendant's causing his hope or expectation to be frustrated. This too may need the aid of an example : A makes his will in 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. 2 A word more. The fact that a tort is redressible in damages serves to distinguish the offence from a crime ; which is redressed by prosecution on behalf of the public for the purpose of punishing the ac- cused, 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 overlapping the law of con- tracts on one side, overlaps on the other the criminal 1 Comp. Malachy v. Soper, 3 Bing. N. C. 371 ; S. c. L. C. Torts, 54, 59. 2 Hutchina v. Hutehins, 7 Hill, 104; s. c. L. C. Torts, 207. 14 INTRODUCTION. law. But the greater part by far of the domain of tort lies between the two extremes. In explanation of the examples given throughout the following pages, it is to be observed, that when, a particular act or omission under consideration is said to be a ' breach of duty,' or of ' legal duty,' or of the ' duty under consideration,' it is assumed that other elements of liability, if there be such, are present. Further, ' breach of duty ' or the like implies a right of action in damages. And the term ' damage,' standing alone, is used in the text, as well as in the ' Statement of duty,' in the sense of ' special damage,' actual loss. The ' Statement of duty ' is in- tended to suggest to the student a prima facie case. SPECIFIC TORTS. 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. Deceil 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 Avrongdoer's knowledge of the actual state of things, are necessary for establishing the deceit as are necessary to an action of or for deceit. 1 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 for 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, IS Minn. 470. 18 LAW OF TORTS [Part I. was made with intent that it should be acted upon; (5) that it was acted upon by B to his damage. 1 But each of these general elements of the right of redress must be separately examined and explained, and auy 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 of the term ' representation,' and the nature of a representation, and thus to ascertain what is the foundation of the action under consideration. A representation then, in contem- plation of law, may be defined, for the present purpose, to be auy clear impression of fact, created upon the mind of the plaintiff by act of the defendant sufficient to govern the conduct of a man of ordinary intelligence, — when that act falls short of a warranty. The difference in aspect (and that is all that calls for remark here) between a representation and a warranty may be put as follows : While the latter as well as the former may be a statement of fact, it is always annexed to some contract and is part of that contract ; the war- ranty is indeed a contract itself, 2 though a subsidiary one, dependent upon the main agreement. A representation, however, is in no case more than inducement to a con- tract ; it is never part of one. To carry it into a contract would be to make it a warranty. And again, there may be a representation, such as the law will take cognizance of, though no contract was made or attempted between 1 Pasley v. Freeman, 3 T. R. 51 ; s. c. L. C. Torts, 1. 2 Brovvnlie v. Campbell, 5 App. Cas. 925, 953, Lord Blackburn. An affirmative warranty is ordinarily an artificial contract of the law. Ante, p. 11, note. Ciiai». I. § 2.] DECEIT. 19 the one who made the representation and the one to whom it was made. This would be sufficient to distinguish the two terms, if it were necessary to a warranty that it should be expressly annexed to the contract-in-chief ; but that is nol 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 one or other), for the warranty must be part of the writing, since a warranty musl be part of the contract-in-chief, 1 and it will either be directly incor- porated into the general writing' or be so connected with it by apt language 3 that there can be no doubt of the intention of the parties. The difficulty is with oral contracts, and then for the greater part only in regard to sales of personalty. Whether the statement in question is a representation or a warranty is, however, a question of intention ; and an intention to create a warranty is 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 ; 8 provided nothing at variance with the inference of intentiou is shown. 4 If the state- i Kain v. Old, 2 B. & C. 627. 2 A warranty may indeed be implied, i. e. arise without language, but such cases arc aside from the present purpose. The difficulty under consideration concerns the effect of language used. 8 See Hopkins v. 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 ho believed them to be true. See Sledge v. Scott, 56 Ala. 202 ; post, p. 35. In such cases there is in reality a warranty, and hence the vendor's knowledge is immaterial, though the case is not always put on the ground of warranty. 4 Such appears to be the effect of the cases. See Benjamin, Sales, § 613. 20 LAW OF TORTS. [Part l. ment, was not so made, it is a representation if it is any- thing. What difficulty remains is in the application of the rale ; 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 liability in a proper case of misrepresentation are pres- ent , l 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. 2 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 warrant} 7 . 3 That would be a variance ; the action should be on the warranty as such. The representation requires, as the definition indicates, an act. There are, it is true, cases in which legal conse- quences may attend absolute silence ; but there are prob- ably no cases of the common law in which an action for damages on account of silence alone can be maintained. There must be some additional element to make silence actionable. 4 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 Cush. 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. 36. 3 Mahurin v. Harding, 28 N. H. 128 ; Cooper v. Landon, 102 Mass. 58 ; Larey v. TaliafFerro, 57 Ga. 443. 4 The question of the effect of silence is perhaps more frequently seen in defences than as a ground of action. For a case of defence see Lee v. Jones, 17 C. B. N. s. 482 ; s. c. 14 C. B. N. s. 386. Chap. I. § 2.] DECEIT. 21 seen later; but in such a ease silence is, properly speak- ing, only part of the representation. The silence amounts to saying that -what has been stated is all. There is a duty to speak in such a case, and it is only when there is such a duty that silence has any legal significance. Indeed, even passive concealment, that is, intentional withholding of information, when no.t attended with any active conduct tending to mislead, is insufficient, accord- ing to the general current of common-law authority, to create a cause of action. For example : The defendant, knowing of the existence of facts tending to enhance the price 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 duty to the plaintiff. 1 Again : The defendant buys of the plaintiff land in which there is a mine, the defendant knowing the fact, and knowing that the plaintiff is ignorant of it. The defend- ant does not disclose the fact in the negotiations for the purchase. This is no breach of duty. 2 1 Laidlaw v. Organ, 2 Wheat. 178. See Prescott v. Wright, 4 Gray, 461, 464 ; Kintzing v. McElrath, 5 Ban - , 467 ; Smith v. Countryman, 30 N. Y. 655, 670, 671; People's Rank v. Bogart, 81 X. Y. 101 ; Hanson v. Edgerly, 29 N. H. 343 ; Fisher v. Budlong, 10 R. I. 525, 527 ; Hadley v. Clinton Importing Co., 13 Ohio St. 502 ; Williams v. Spnrr, 24 Mich. 335 ; Law v. Grant, 37 Wis. 548 ; Cogel v. Kniseley, 89 111. 598; Frenzel v. Miller, 37 Ind. 1 ; Smith v. Hughes, I,. R. 6 Q. B. 597 ; Evans v. Carrington, 2 De G. F. & J. 4S1 ; Peek v. Gur- ney, L. R. 6 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 obligation on the vendor to inform the purchaser that he is under a mistake, not induced by the act of the vendor.' Black- burn, 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 i'. Shermer, 93 N. Car. 164 ; Merritt v. Robinson, 35 Ark. 483. 2 Fox v. Mackreth, 2 Bio. C. C. 400, 420, a leading case in equity. See Turner v. Harvey, Jacob, 169, 178, Lord Eldon. 22 LAW OF TORTS. [Part I. An act, however, attending what would otherwise be a case of perfect silence, in regard to the fact in question, may have the effect to create a representation, and lay the foundation, so far, for an action ; 1 but the act mijst be sig- nificant and misleading. 2 For that purpose, however, it may be slight ; 3 a nod of the head may no doubt be enough, so may a withdrawing of attention from some point to which it is being or about to be directed. But as has just been said, the act attending the silence must be significant and misleading ; if not, it will count for nothing. For example : The plaintiff sues the de- fendant for damages caused by the sale to him by the defendant of animals having a contagious disease. Stat- ute prohibits the sending of such animals to market, and imposes a penalty for violating the prohibition. The ani- mals in question have, however, been inspected by the public officer, and passed, before the sale. The seller has made a written statement that the animals must be taken ' with all faults,' and that no warranty is made and no compensation for defects will be given. These facts do not show any representation by the defendant that the animals are not affected with disease, or create any right to damages in favor of the plaintiff ; 4 though it is pos- sible tb'\t the case might have been different had there been no such statement by the seller as that mentioned. 5 In a word, then, the supposed representation must be clear and certain ; the plaintiff does not make out the alleged breach of duty if his evidence show only a state- 1 Laidlaw v. Organ, supra ; Hadley v. Clinton Importing Co., supra. 2 Id. 8 Turner v. Harvey, Jacob, at p. 178. * Ward v. Hobbs, 4 App. Cas. 13, affirming 3 Q. B. Div. 150. Comp. Jeffery v. Bigelow, 13 Wend. 518. 6 See Badger v. Nichols, 28 L. T. N. s. 441, Blackburn, J. referred to by Lord Cairns in Ward v. Hobbs. but apparently with doubt. Chap. I. § 2.] DECEIT. 23 ment or act of vague or indefinite import. This r< upon the ground that the 'average man,' that is, a man of average intelligence, — by whose supposed conduct the law judges, — would not rely and act upon statements of an indefinite nature. Tlie fact that they arc of such a nature would put such a man upon inquiry before acting, if acting were seriously contemplated ; and thru if he should act, he would have acted upon the information so obtained and not upon the indefinite statements. Hence, whether he acted or did not act, the author of those state- ments would not be liable. For example: The defend- ant, a vendor of land, points to a certain tree as the jyrobable boundary <>!' his premises, and the plaintiff buys relying upon that statement as a statement of the actual boundary. The defendant is not liable in damages for the loss sustained by the plaintiff. 1 The representation need not, however, be created by language ; there is no distinction between an impression created by words and one created by other acts. 2 If the impression is capable of being stated as an existing or past fact, and is such as might govern the conduct of an average man in regard to some change of position in con- templation, it is enough. In a word, the representation may be entirely implied. Indeed, it appears to be unne- cessary that such a representation should be adverted to or conscious!}' present to the mind at the time of the change of position ; a fact to be brought out later. It follows that, to constitute a false representation, it is not necessary that statements made should be made in terms expressly affirming the existence of some fact. If the alleged misrepresentation be made by the defendant 1 See Halls v. Thompson, 1 Swedes & M. 443. - Lobdeli v. Baker, 1 Met. 103; Coolidge v. Brigham, id. 547, 551 ; Mizner v. Kussell, 29 Mich. 229 ; Paddock v. Strobridge, 29 Vt. 470. These are cases of implied warranties, but the principle is the same. 24 LAW OF TORTS. [Part L in terms, or by conduct, 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. 2 It should be noticed that there is a difference in fact between vagueness and ambiguity. Vagueness, as we have seen, is fatal to the idea of a legal representation ; but ambiguity in an impression may only mean that more than one fact has been impressed upon the mind, not that none at all has been left there. In such a case as this the only question that can arise in reason or in law is whether, assuming the facts 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 company, in process of formation to take over certain iron works, which prospectus contains the following statement : ' The present value of the turnover or output of the en- tire works is a million pounds sterling per annum.' This statement might mean either that the works had actually turned out more than a million's worth at present prices within a year or yearly, or only that the works were capa- ble of turning 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. 2 Where a term of art, having a technical and a popular meaning, has been used, the case may be affected bj- pre- sumption. If the parties were engaged in the same voca- tion, the presumption (probably) would be, that the rep- resentation was to be taken in the technical sense ; if they 1 Donovan v. Donovan, 9 Allen, 140 ; Rhode v. Alley, 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, 9 App. Cas. 187 ; s. c. 20 Ch. Div. 27. Chap. I. § 2. J DECEIT. S) were not, there would perhaps be no presumption either way. In either case it would be necessary, judging from the decision in the case just stated, for the plaintiff to show that he had acted upon the representation in the sense in which it was false; and even then there could not be a cause of action if the defendant made the state- ment with reasonable ground to suppose that it would be acted upon in the sense in which it was true. And in that, presumption might help him. The presumption, however, in any case, would only be prima facie, and hence conclusive only in the absence of evidence opposed to it. Another case may be mentioned. A statement of fact may have one meaning in one place and another in another ; in such a case it would seem that the statement should be understood as intended in the sense in which it is commonly used where it was made, 1 unless, indeed, it was made there by one residing where it is used in a different sense. In this latter case the courts would (prob- ably) consider the party bound only by that meaning which he would have reason to suppose was conveyed. Upon the principle that there can be no breach of the legal duty in question unless the supposed representation be definite enough to justify the average man in relying upon it, there must be something more, especially for a warranty, than the expression of a mere opinion. It would not be enough to constitute a warranty, for a vendor to say that a certain valve would consume smoke and save fuel, 2 or that certain pictures were the works of old masters, 8 much less that his property was worth a certain sum. 4 Whatever weight such statements might have, and 1 See Yeates v. Prior, 6 Eng. ( Ark. ) 58. 2 Prideaux v. Bunnett, 1 C. B. N. s. 613. 8 Jendwine v. Slade, 2 Esp. 572. 1 Vernon v. Keys, 12 East. 632 ; s. c. 4 Taunt. 4SS, Ex. Ch. ; Anderson v. Hill, 12 Smedes & M. 679; Chrysler v. Canaday, 90 26 LAW OF TORTS. [Part I. in point of fact they might come with much weight in particular cases, they would not stand upon the footiug of statements of fact. A simple statement of fact may con- stitute a warranty ; while statements of opinion are often below the grade of representations. Statements made in regard to the value of property about to be sold are apt to give rise, however, to difficult questions. The general rule, as already indicated, is plain enough ; ' 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, particular rules can seldom be framed to reach them, and general rules have only a remote bearing upon them. One or two rules, however, of a limited nature, have been laid down touching the subject. It has been laid down by able courts, 1 and denied by others, 2 that a ven- dor'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 representations of fact. Some courts, indeed, have gone much further than denying this propo- N. Y. 272 ; Ellis v. Andrews, 56 N. Y. 83 ; Medbury v. Watson, 6 Met. 246; Cooper v. Lovering, 106 Mass. 79 ; Martin v. Jordan, 60 Maine, 531 ; Bishop v. Small, 63 Maine, 12. 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 ; McFadden v. Robinson, 35 Ind. 24 ; Morehead v. Eades, 3 Bush, 121. The rale 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. Chap. I. § 2.] DECEIT. 27 sition. 1 But it is generally agreed that such statements when made, not by the vendor, hut by a stranger, may constitute actionable misrepresentations. For example : The defendant, not being the seller of the property, falsely states that a tannery has on a previous sale brought a certain price. This is a misrepresentation capable of sustaining an action under the law. 2 Again, it is settled law that statements of the income of property, or of the rental receipts of a leasehold estate to be sold would constitute representations of fact. For example : The defendant, seller of a public-house, falsely tells the buyer, the plaintiff, that the receipts of the house have been £160 per month, and that the tap is let for £82 per annum, and two rooms for £27 per annum. This is a false representation, and not a mere statement of value. 3 And this possibly might be true if the state- ment were that the present 'value' of the property is a certain sum per year ; for that might mean its annual return. 4 Statements concerning the pecuniary condition of an individual are not necessarily statements of opinion, and when distinctly and specifically made may be breaches of the duty under consideration. For example : The de- fendant says to the plaintiff, ' F is pecuniarily responsi- ble. You can safely trust him for goods to the amount of 815,000.' This is a representation of fact. 5 1 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. 2 Medbury v. Watson, 6 Met. 246. 8 Dobell 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. Eaym. 1118, leading case. 4 See Smith v. Chadwick, 9 App. Cas. 187, ante, p. 24. But see Ellis r. Andrews, ut supra. 6 Pasley v. Freeman, 3 T. R. 51 ; s. c. L. C. Torts, 1. Such rep- 28 LAW OF TORTS. [Part L Slight expressions, however, are sufficient to put state- ments of this character on the footing of statements of opinion. For example : The defendant, in answer to in- quiries as to the circumstances and credit of a third per- son, says to the plaintiff, ' I should be willing to give him credit for anything he wanted.' This statement can- not safely be acted upon by the plaintiff. The mere fact that the defendant may be willing to give him credit does not necessarily justify the plaintiff in doing so. 1 The rule of certainty further requires that the repre- sentation should relate to present or past facts ; if it re- late to matters in the future, it cannot justify a prudent man in acting upon it, unless it comes to a contract, and then it will not be a legal representation. 2 In most cases of uncertain statements, consisting of opinion or prediction as distinguished from the uncertainty of vagueness, there will be implied a plain representation of fact, to wit, that the party knows of nothing making his expressed statement false. And there is strong reason to believe that the courts would take cognizance, not in- deed of the opinion or prediction, but of this implied though none the less real representation, if it should be false. This observation is founded upon the language from the bench in a recent case. 3 It was there said in sub- stance that if facts were not equally known to both par- resentations must now in many states be proved by writing signed by tbe party to be charged. 1 Gainsford v. Blachford, 7 Price, 544. 2 See Pedrick v. Porter, 5 Allen, 324 ; Langdon v. Doud, 10 Allen, 433 ; Jackson v. Allen, 120 Mass. 64, 79 ; Burgess v. Seligman, 107 U. S. 20, 32 ; Jorden v. Money, 5 H. L. Cas. 185 ; Citizens' Bank v. First National Bank, L. R. 6 H. L. 352, 360. 3 Smith v. Land Corporation, 28 Ch. Div. 7, Bowen, L. J. The statement in question was that a certain person was a ' most desirable tenant,' and the court took cognizance of it. Chap. I §2.] DECEIT. 29 Lies, a statement of opinion by the one who knew the truth very often involves a statement of fact, ' for he im- pliedly states that he knows facts which justify his opin- ion.' For example : The defendant, a cattle dealer, desiring to sell cattle to the plaintiff, makes a statement in the form of opinion that the cattle will weigh 900 ll>s. and upwards per head. He has already weighed them, and knows that theii average weight is considerably below 900 pounds. This is a breach of duty. 1 A similar observation to that just made should be made in regard to representations looking to the future, whether in the way ol prediction or of promise. As pre- diction, the case would fall without the notice of the law ; and so it would as promise, unless the promise came to a contract. But either as prediction or as promise there would ordinarily be an implied representation that the party making it knew of nothing which made his state- ment a sham. Thus, if a person were to say that a cer- tain vessel would arrive on the morrow, that would amount to a representation that he knew nothing to the contrary ; if he knew that she was at the bottom of the sea, there would, or there might be, a case for the courts. Again, if a person were to promise to pay for goods bought by him on credit, intending at the same time not to pay for them, there would be a case for the courts on the footing of misrepresentation ; - for the party's promise is a plain representation of present intention to fulfil his undertak- ing. Such cases are, however, more commonly treated as cases for rescission of the contract. 1 Birdsey v. Butterfield, 34 Wis 52. See Allen v. Hart, 72 111. 104; Faribault i>. Sater, 13 Minn. 223 And further see Pike v. Fay, 101 Mass. 134 , Pickard v. McCormick, 11 Mich. 68; K<>st v. Bender, 25 Mich. 515. These rases show that positive statements of value by experts, in matters requiring expert knowledge, may stand on the foot- ing of ordinary statements of fact. 2 Bristol v. Wilsmore. 1 B. & C. 514. 30 LAW OF TORTS. [Part I. It is evident that the party wronged may not in any of these cases of implied representation have adverted to the representation behind the actual language ; indeed, it would seldom happen that he had adverted to the fact. But that would not affect the case ; the implied statement has, or may have, influenced the party's conduct, notwith- standing the fact that he may have been unconscious of the precise nature of the influence. Had attention been directed to the matter, he would certainly have said that the language implied the representation behind it, to wit, that nothing was known to the defendant falsifying his expressed opinion, prediction, or promise. Again, to come within the notice of the law, the repre- sentation, if not made by a lawyer to a layman, or by a man professing familiarity with the law to one not familiar with it, must, it seems, be more than a mere 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 ; l ignorantia legis neminem excusat.' But it may be doubted whether that is the true ground of the rule ; if it were, misrepresentation of the law by one's legal counsel could hardly be made the foundation of any lia- bility. A better reason appears to be that the law is understood by all men to be a special branch of learning ; and hence what one layman may say to another will 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 1 Upton v. Tribilcock, 91 U. S. 45. See Lewis v. Jones, 4 B. k C. 506 ; Beattie v. Ebury, L. R. 7 Ch. 777, 804 ; Eaglesfield v. London- derry, 4 Ch. Div. 693, Jessel, M. R., explaining the nature of a repre- Chap. I. § 2.J DECEIT. 31 As the language above used, however, plainly implies, it is not broadly true that u misrepresentation of the law may 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 he. should knowingly give falsi' information of it in order in influence the conduct of one ignorant of the same, there would (so far) he an actionable misrepresentation. For example: An immigrant, lately arrived from abroad. meets an old citizen, who professes familiarity with the land titles of the country, and proposes to sell land to him, to which he falsely assures the immigrant Hie title is good. This is a misrepresentation capable of sustaining an action. 1 When, further, it is said that the representation must . be of a character to affect the conduct of a prudent man, i. e. when it is said that the representation must, in the language of the books, be material, it is not to be implied that the law will not take notice of the case if influences from other sources may have operated upon the plaintiff. The only question upon this point is whether the repre- sentation made by the defendant was adequate to influ- ence, and did influence, the plaintiff, not whether it was the sole inducement to the action taken : if it was suffi- cient to influence him, and did influence him to some real extent, that is enough. The courts will not be astute to find that one of several inducements present was not ade- quate to the damage. 2 Indeed, if the defendant has accomplished his purpose by his misrepresentation, he sentation of law. And see West London Bank v. Kitson, 13 Q. B. Div. 360, 363, Bowen, L. J. 1 Moreland v. Atchison, 19 Texas, 303. 2 James v. Hodsden, 47 V t. 127 ; Safford r. Grout, 120 Mass. 20 ; Jordan v. Pickett, 78 Ala. 331 ; Hale v. Pliilbrick, 47 Iowa, 217 ; Mc- Aleer v. Horsey, 35 Md. 439 ; Reynell v. Sprye, 1 De G. M. & G. 660. 32 LAW OF TORTS. [Part I. will not, it seems, be permitted to say' that the act was immaterial. 1 Finally, it is for the plaintiff 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 work as entered into at ; a price considered within the available capital of the company.' The fact is, that there is a merely nominal capital of £500,000, and from this the sum of £50,000 is to be deducted for the purchase of the concession for making the railway, and the contract price for making it is £420,000. The representation is false ; the term ' available capital ' not being a true description of capital to be raised by borrowing. 2 An example iu contrast with the foregoing may be stated. A prospectus of a company formed for buying a certaiu business declares that the price of purchase is a stated sum, and that no ' promotion money' is to be paid to the directors of the company for making the purchase. In fact, the sum paid for the business is somewhat less than the sum stated in the prospectus, and shares of the stock representing the difference are now transferred, 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. 3 1 Smith v. Kay, 7 H. L. Cas. 750. * Centra] Ry. Co. v. Kisch, L. It. 2 H. L. 99. Another good ex- ample may be found in Smith v. Land Corporation, 28 Ch. Div. 7. 8 Arkwright v. Newbold, 17 Cli. Div. 301. 'Nobody was ever lucky enough to sell a property without having some considerable deduction made out of the gross price, there being such persons as auctioneers and solicitors to be paid.' James, L. J. Chap. 1. § 2.] DECEIT. D'-i The defendant cannot, then, escape liability by showing that the representation was, if literally taken, true, or true if taken in some forced or unnatural sense. 1 So too the defendant cannot rely upon the truth of the actual lan- guage used, when that is hut 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. 2 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 duty to the plain- tiff. 3 Again : The plaintiff, being about to supply the defendant's son with goods on credit, asks the defendant if the son has property of the value of £300, as the son has asserted. The defendant answers in the affirmative, stating that he has advanced the sum to his son, but 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. 4 § 3. Of Defendant's Knowledge of Falsity. In order to entitle a plaintiff to recover damages for misrepresentation, it is necessary, by the current of author- ity, for him to prove that the defendant made the false representation fraudulently. A contract may, indeed, in 1 Mizner v. Kussell, 29 Mich. 229. 2 Peek v. Gurney, L. R. 6 H. L. 377, 403, Lord Cairns ; Central Ry. Co. v. Kisch, L. R. 2 H. L. 99, 113. 8 Mallory v. Leach, 35 Vt. 156. * Corbett v. Brown, 8 Bing. 33. 3 34 LAW OF TORTS. [Part I. many cases be rescinded or its enforcement successfully resisted, for an innocent misrepresentation, that is to sa}' for a false representation believed to be true at the outset by the party who made it ; x but if damages are sought, fraud must be proved, whether at law or in equity. 2 Fraud, within the meaning of this rule, may be proved 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 falsity, or (2) that he made it recklessly, without knowing whether it was true or false, 3 or (3) that he made it positively as, or apparently as, of his own knowledge, when he only be- lieced it to 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. 4 1 Arkwright v. Newbold, 17 Ch. Div. 301 ; Redgrave v. Hurd, 20 Ch. Div. 1 ; Blackmail 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 ; Cole v. Cassiday, 138 Mass. 437 ; Bowkerw. Delong, 141 Mass. 315 ; Mahurin v. Harding, 28 N. H. 128 : Holdom v. Ayer, 110 111. 448 ; Lamm v. Port Deposit Assoc. 42 Mel. 233 ; Dunn v. White, 63 Mo. 181 ; Collins v. Jackson, 54 Mich. 186; Spangler v. Chapman, 62 Iowa, 144 ; Sims v. Eiland, 57 Miss. 83 and 607 ; Deny v. Peek, 14 App. Cas. 337, reversing 37 Ch. Div. 541 ; Joliffe v. Baker, 11 Q. B. D. 255 ; Arkwright v. Newbold, 17 Ch. Div. 301, 320 ; Redgrave v. Hnrd, 20 Ch. Div. 1 ; Reese Mining Co. v. Smith, L. R. 4 H. L. 64 ; Collins v. Evans, 5 Q. B. 820, Ex. Ch. ; Ormrod v. Huth, 14 M. & W. 650, Ex. Ch. ; Childers v. Wooler, 2 El. & E. 287 ; Evans v. Edmonds, 13 C. B. 777, 786. Proving the defendant's knowledge of the falsity of his representa- tion is often called proving the ' scienter.' 3 Negligence is not enough. Le Lievre v. Gould, 1893, 1 Q. B. 491. 4 As to knowledge of falsity, that will be sufficient, as far as it goes, for any representation falling within the notice of the law. As to the second and third aspects of the case, see Chatham v. Moffatt, 147 Mass. Chap. I. §3.] DECEIT. 35 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 may, even by 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, aud 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 party with whom he has dealt to prove that he knew it to be false when he made it. 1 This phase of fraud may accordingly be treated as a case either of warranty or of deceit. 2 It is believed that cases of implied as well as of express warranty are capa- ble of being treated as falling under the head of deceit as - 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 ordinarily 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. 1 See White v. Madison, 26 N. Y. 117, 124; Jefts v. York, 10 Cash. 392, 395, Shaw, C. J. ; Collen v. Wright, 8 El. & B. 647, Ex. Ch. See Denton v. Great Northern Railway Co. 5 El. & B. 860, in re- gard to representations by railway time tables. Whether the text would apply generally to representations made by any with whom the plaintiff was not dealing, quaere. (In such cases •warranty' would be a term of convenience merely). Compare the distinction taken in Einstein v. Marshall, 58 Ala. 153 ; but that may not have been intended to apply to cases like that of the text. 2 In Jefts v. York, supra, Chief Justice Shaw says of implied repre- sentations of agency that the action should be in tort. 36 LAW OF TORTS. [Part L thus explained. 1 A typical illustration will serve to make the application of these remarks clear : If a person as- sume 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 may thus have misled, though he may have honestly believed that he had the authority assumed. 2 The matter of his authority was a fact peculiarly within his own means of knowledge, and it was therefore his duty to acquaint himself with the situation. And this matter of representations of author- ity has sometimes received a pretty wide interpretation. 3 Cases falling under this phase of the subject appear, however, apart from questions of authority or agency, and other cases of warranty, 4 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 con- 1 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 be distinguished from an action for damages. That, at all events, is the more general rule. For the rule in Alabama see Einstein v. Mar- shall, 58 Ala. 153. 2 Jefts v. York, ut supra ; White v. Madison, ut supra ; Mahurin v. Harding, 28 N. H. 1 28 ; Noyes v. Loring, 55 Maine, 408 ; Collen v. Wright, 8 El. & B. 647, 658 ; Coventry's Case, 1891, 1 Ch. 202, 211. The term ' warranty ' here is conventional. See also Kandell 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. 3 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. 4 See e. g. French v. Vining, 102 Mass. 132, sale of food for cattle ; Jeffery v. Bigelow, 13 Wend. 518. Chap. I. § 3] DECEIT. 37 taining false representations, does not impose upon him in law the duty to know the truth of the statements and so subject him to liability. To prove such fact is not to prove fraud. 1 What creates the duty to know the facts, in other cases than ordinary warranty, is a difficult question to answer ; perhaps it is incapable of being answered in the way of any very perspicuous proposition. The following rule, laid down by an Irish judge, wanting somewhat indeed in definiteness, is all, perhaps, 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 every 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. 2 § 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 have been deceived by the defendant. If the plaintiff had knowledge of the facts in question, or if without having knowledge thereof he acted upon independent 1 Morgan t\ Skiddy, 62 N. Y. 319 ; "Western Bank v. Addi<>, L. R. 1 H. L. Sc. 145. 2 Doyle v. Hort, 4 L. R. Ir. 661, 670, Palles, C. B. 38 LAW OF TORTS. [Part I. information, and not upon a belief of the truth of the defendant's representation, he is in the one case not deceived at all, 1 and in the other is not deceived by the person of whom he complains. Should a purchaser of property 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. 2 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 general duty of diligence, rather than a duty, like that in the pre- ceding section, towards the opposite party. The imputa- tion 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. It has sometimes been laid down that if the means of knowledge be equally open to both parties, the plaintiff, 1 Hager v. Grossman, 31 Ind. 223 : Tuck v. Downing, 76 111. 71 ; Whiting v. Hill, 23 Mich. 399. 2 Halls v. Thompson, 1 Smedes & M. 443. Chap. I. § 4.] DECEIT. 39 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. 1 There is, indeed, no liabil- ity 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 specilic 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 warranty, 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. 2 Even this doctrine can hardly be .considered as accept- able generally, in the light of most of the recent author- ities 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 there is in principle, and by authority, only a probability 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 ; Lytic v. Bird, 3 Jones, 222 ; Fields v. Rouse, lb. 72. 2 Salem Rubber Co. v. Adams. 23 Pick. 256. Followed in Brown v. Leach, 107 Mass. 364. See 1 Bigelow, Fraud, 529. 40 LAW OF TORTS. [Part I of fact to be overcome even in such a case. There is, by the better rule, uo 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 by the defendant's representation. 1 For example: A prospectus of a company in process of formation falsely states that the capital stock is a certain sum, and the plaintiff is induced by this statement to subscribe for shares of stock in the company. The plaintiff might have learned the true state of things by examining the records of the company, which were open to his inspection, but does not make the examination. He is not barred of redress. 2 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. 3 1 Mead v. Bunn, 32 N. Y. 275, 280 ; Schwenk v. Naylor, 102 N. Y. 6S3 ; Linington v. Strong, 107 111. 295 ; Weber v. Weber, 47 Mich. 569 ; West v. Wright, 98 Ind. 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 Corporation, 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 Central Ry. v. Kisch, supra. 3 Parham v. Randolph, 4 How. (Miss.) 435 ; Kiefer v. Rogers, 19 Minn. 32 ; Holland v. Anderson, 38 Mo. 55. See Rhode V. Alley, 27 Texas, 443. Perhaps, however, hecause 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 Massa- 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 v. 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 Chap. I § 4.] DECEIT. 41 The subject may be further illustrated by a quite differ- ent sort of case. Every man is presumed to know the contents of a written contract signed by him; but no presumption of knowledge will stand in the way of a charge of misrepresentation or other fraud in regard to the contents of the writing. 1 No doubt it would be im- prudent not to read or to require the reading of an instru- ment before signing or accepting it ; indeed, the courts would turn a deaf ear to a mau 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. 2 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. 8 And whether it be possible or not, it is a well-estab- lished rule of law that one who has been induced by 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. 4 Hence in the case of a 1 Albany Inst, for Savings v. Burdick, 87 X. Y. 40 ; RoMnson v. Glass, 94 Intl. 211 ; Hawkins v. Hawkins, 50 Cal. 556 ; Schuylkill v. Copley, 67 Penn. St. 386; Martindale v. Harris, 26 Ohio St. 379; Poster v. Mackinnon, L. R. 4 C. P. 704; Stanley v. McGauran, 11 L. R. Ir. 314. 2 Albany Inst, for Savings v. Burdick, supra ; Stanleys. McGauran, supra. 8 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 ; Mullorv v. Leach, 35 Vt. 158 ; Clarke v. Dickson, supra ; Regina v. Saddlers' Co., 10 H. L. Cas. 404, 421 ; Western Bank v. Addie, L. R. 1 H. L. Sc, 167. 42 LAW OF TORTS. [Part L 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.' 2 For 1 Albany Inst, for Savings v. Buvdick, 87 N. Y. 40 ; Smith v. Land Corporation, snpra. 2 Smith v. Land Corporation, 28 Ch. Div. 7 ; Albany Inst, for Sav- ings v. Burdick, supra. Chap. I. § 4.] DECEIT. 43 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 matle. The buyer may show that he was induced by the representations of the seller to buy. 1 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- pense's, 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. '-' 1 Smith v. Land Corporation, supra. 2 Webster v. Bailey, 31 Mich. 36. 44 LAW OF TOliTS. [Part I. 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. 1 But the case would be different if the seller, though aware of the defects, do nothing to conceal them.' 2 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, that the party to whom they were made was negligent in not making 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 redress, 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. 3 For example : 1 Schneider v. Heath, 3 Campb. 506. See Whitney v. Boardman, 118 Mass. 242, 247 ; George v. Johnson, 6 Humph. 36. 2 Baglehole v. Walters, 3 Campb. 154 (overruling Hellish v. Mot- teux, Peake, 156) ; Pickering v. Dowson, 4 Taunt. 779 ; Bywater *>• Richardson, 1 Ad. & E. 508. 3 See Clarke v. Dickson, El. B. & E. 148. Chap. I. § 5] DECEIT. 45 The defendant, a manufacturer and vendor of tobacco, knowingly uses damaged tobacco in the manufacture, and intentionally vises boxes of green lumber; and while the tobacco is being made up he exhibits to the plaintiff from time to time, in order to mislead him, specimens of tobacco as of the kind he (the defendant) is supplying the plaintiff, when in fact the defendant is supplying him with a different and inferior kind. Notwithstanding accept- ance of the goods and payment for them, the plaintiff is entitled to damages against the defendant. 1 § 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 inflexi- 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, an instance of which is found in false repre- sentations to the plaintiff of the solvency of a third per- son, 2 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 third person, that the defendant, though he knew the falsity of his representation, did not know, and had no reason to 1 Mc Aroy v. Wright, 25 Ind. 22. An act does not amount to the waiver of a wrong unless it be done with knowledge of the wrong. 2 Pasley v. Freeman, 3 T. E. 51, ante, p. 27. 46 LAW OF TORTS. [Part L suppose, that the plaintiff -would act upon it. The repre- sentation might, for all this, have been a mere idle false- hood, such as would not justify any one in acting upon it. It follows that where 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. 2 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. 3 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. 4 1 See Freeman v. Cooke, 2 Ex. 654 ; Cornish v. Abington, 4 H. & N. 549. 2 See Pasley v. Freeman, 3 T. R. 51 ; 8. c. L. C. Torts, 1. 3 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. 4 Collins v. Denison, supra- Chap. I. §6.] DECEIT. 47 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. 1 In such cases it is obvious that the representation may have been made for the benefit of the plaintiff. 2 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 desired and expected that the plaintiff would derive a benefit from the transaction. § 6. Of Acting upon the Representation. It is fundamental that the defendant's representation 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. 8 Indeed, fraudulent con- duct or dishonesty of purpose, however explicit, will not afford a cause of action unless shown to be the very ground upon which the plaintiff acted to his damage. 4 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 sufficient 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 Aute, p. 36. 2 See Polhill v. Walter, 3 B. & Ad. 114. 8 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. 48 LAW OF TORTS. [Part L reservations. An action therefor cannot be maintained before the plaintiff h:is been compelled to pay the note. 1 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 suffered 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. 2 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 ; 3 and it could not be certainly known that that intention would have been carried out. 4 If the attachment had been already levied and was then lost through the deceit, the rule would of course be different. 5 It must appear, moreover, that the plaintiff 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 his damage, will be entitled to redress for any damage sus- tained by acting upon the representation. 6 For example : 1 Freeman v. Venner, 120 Mass. 424. 2 Bradley v. Fuller, 118 Mass. 239. But see Kelsey v. Murphy, 26 Penn. St. 78. 3 Id. ; Lamb v. Stone, 11 Pick. 527. 4 Bradley v. Fuller, supra. 6 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. Chap. 1. § 7.] DECEIT. 49 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 of the company, recover damages for the loss sustained thereby. 1 § 7. Of Slander of Title and Trademarks. The foregoing presentation of the law supposes that the representation was made to or for the plaintiff. But there is another class of cases, with several branches, in which the situation is different. A representation may be made of a man or of his property to his injury, as well as to him ; still this class of cases (probably) stands upon the same footing as the cases which have been under consideration. 2 False representations of a person may consist, either (1) in disparaging his credit, or the title to his property, or his property itself, or (2) infringements of his trademark or sign or badge of business. The subject of misrepre- sentations made to the plaintiff of the credit of a third person has been considered ; 8 and (in principle) there is no difference between such a case and that of misrepre- sentations to a third person of the plaintiff's pecuniary standing. The representation having been acted upon to the plaintiff's damage by the person to whom the de- fendant made it, the latter is liable for the former's loss. If the representation relate to the plaintiff's title to prop- erty or to the quality of the property itself, the wrong 1 Id. Contra, if the shares are bought on the market. Peek v. Gur- iicv, supra. Camp, however New York R. Co. v Schuyler, 34 N. Y. 30 ; Bruff v. Mali, 36 N. Y. 200, 205. 2 See L. C. Torts, 54-59, 69-72. 3 Ante, pp. 27, 28. 4 60 LAW OF TORTS. IPart I. done is termed slander of title ; if it be an attempt to palm off the defendant's goods in trade as the goods of the plaintiff, it will commonly be the case of an infringe- ment of his trademark. 1 In the action for slander of title, it devolves upon the plaintiff to prove that the statement of the defendant was false, was made with actual malice, 2 and that it has been followed by damage. 3 The interpretation put upon the elements of the action bv the authorities shows that they are substantially equiv- alent to the corresponding elements of the ordinary action of deceit. 4 The false representation (which clearly must have been material, and otherwise of the nature of the representation above considered) must, perhaps, have been made with knowledge of its falsity and with actual or apparent intent to deceive ; this, too, would show the 1 An infringement of a patent, it should be observed, is not so much an attempt to obtain the benefit of another's reputation in business as to make and vend the very same article, to do which an exclusive right has been given to another. There is no necessary attempt to deceive any one in the infringement of a patent ; and the same is measurably true of infringement of copyrights. These subjects, therefore, do not belong to the law of deceit. An invasion of a patent or a copyright is simply an invasion of a right of property, like a trespass upon real estate. Indeed the same is now become, to some extent, true of trade- marks. Leather Cloth Co. v. American Leather Cloth Co., 4 De G. J. & S. 137 ; post, p. 233. 2 Pater v. Baker, 3 C. B. 831, 868 ; Pitt v. Donovan, 1 Maule & S. 639 ; Kendall v. Stone, 2 Sandf. 269 (reversed on another point, 5 N. Y. 14) ; McDaniel v. Baca, 2 Cal. 868 ; Stark v. Chitwood, 5 Kans. 141. 8 Malachy v. Soper, 3 Bing. N. C. 371. See L. C. Torts, 54-59. 4 The form of declaring has been on the model of the action for slander or libel. See 1 Bigelow, Fraud, 557, 558. But the significant fact is that the plaintiff must prove the falsity of the statement, actual malice, and damage. Such facts are no necessary part of the plaintiff's case in an action for defamation, as will be seen. ^iiap. I. § 7.] DECEIT. 51 'actual malice ' above mentioned. 1 Innocent misrepre- sentation would not create liability. For example : The defendant states to a third person with whom the plaintiff has made a contract for the sale of certain lands, that the plaintiff's ' title to those estates will hereafter sooner or later be contested. At the time they were sold by Mr. Y [the plaintiffs vendor], he was not in a state of sound- ness and competency to do so.' The defendant makes this statement as trustee of the particular lands, in good faith, believing it to be true. This is no breach of duty to the plaintiff. 1 The same case would afford an exam- ple of the necessity of proof of actual damage by sup- posing that the plaintiff had not been negotiating for the sale of the lands at the time of the statement. 2 And the question of the defendant's liability must turn, further, upon the evidence whether the third person, to whom the defendant made the false statement, was deceived by and acted upon that particular statement. If such person knew the truth of the matter, or acted upon other information regardless of the defendant's statement, the latter could not be deemed in any proper sense to have caused the damage of which the plaintiff complains. 8 With regard to the law of trademarks (using this as a generic term to cover all kinds of signs and badges of business), similar observations are to be made. In order to sustain an action of deceit for a breach of duty by the defendant to the plaintiff in the use of a trade- mark, it must appear (1) that the defendant knew of the existence of the plaintiff's mark when he committed the alleged wrong, (2) that he intended to palm off the goods 1 Pitt v. Donovan, supra. 2 Malachy v. Soper, supra. 8 See Pitt v. Donovan, 1 Maule & S. 639 ; Pater v. B;iker, 3 C. B. 831, 868 ; Wren v. "Weild, L. R. 4 Q. B. 730 ; L. C. Torts, ut supra. 52 LAW OF TORTS. [Part L as the goods of the plaintiff, or to represent that the busi- ness which he was carrying on was the plaintiff's business, or business of which the plaintiff had a special patron- age, and (3) that the public were deceived thereby. 1 For example : The defendant sells a medicine labelled ' Dr Johnson's ointment ; ' the label being one which the plain- tiff 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 by the plaintiff. 2 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. The defendant, whose name is also Sykes, makes similar goods, and puts upon them the same words, with a stamp closely resembling that of the plaintiff, so as to sell the goods ' as and for ' the plaintiff's goods. This is a breach of duty. 3 Again : The defendant has the words ' Revere House ' painted upon coaches which he uses to carry passengers from the railroad station to a 1 Sykes v. Sykes, 3 B. & 0. 541 ; s. c. L. C. Torts, 66 ; Rodgers v. Nowill, 5 C. B. 109 ; Morison v. Salmon, 2 Man. & G. 385 ; Craw- shay v. Thompson, 4 Man. & G. 357, 379, 383. See 1 Bigelow, Fraud, 560, 565. In a proceeding for injunction it is not necessary, in ordinary cases, to prove the defendant's knowledge or intent to deceive. Simple priority of use of the mark is enough. See Millington v. Fox, 3 Mylne & C. 338 ; Singer Machine Co. v. Wilson, 3 App. Cas. 376 ; Reddaway 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 becoming infrequent under the influence of a better right. 2 Singleton v. Bolton, 3 Doug. 293. This supposes, of course, that the medicine was not patented. 8 Sykes v. Sykes, supra. Chap. I § 7.J DECEIT. 53 hotel of the name. By contract with the proprietor of the hotel, the plaintiff has the exclusive right to repre- sent that he has the patronage of the hotel. The defend- ant commits 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. 1 i Marsh v. Billings, 7 Cash. 322 ; s. c. L. C. Torts, 59. CHAPTER II. MALICIOUS PROSECUTION. § 1. Introductory. Statement of the duty. A owes to B the duty to forbear to institute against him a prosecution, with malice and without reasonable and probable cause, for an offence falsely charged to have been committed by B. 1. When a termination of prosecution is referred to without further explanation, such a termination is meant as will, in 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.' 1 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 have been instituted without probable cause ; (3) it must have been instituted maliciously ; (4) actual damage must be proved in cases in which the charge in itself would not be actionable, assuming that an action 1 There may be some slight difference in meaning in special cases, between ' reasonable ' and ' probable ' cause. See the language of Tin- dal, C. J. in Broad v. Ham, 5 Bing. N. C. 722, 725, quoted in Lister v. Perryman, L. R. 4 H. L. 521, 530, 540. Ordinarily, however, the words are synonymous. Chap. II. § 2.] MALICIOUS PROSECUTION. 55 foi malicious prosecution is maintainable in such a case. And it devolves upon the plaintiff to prove all these facts. Actions for malicious prosecution are brought, for the greater part, only for wrongful criminal prosecutions. For a civil suit instituted of malice and without probable cause there is no redress, 1 it seems, except in a few cases ; 2 aud these appear, in the main, to be cases of actions invol- ving charges of ' scandal to reputation or the possible loss of liberty,' 3 such as ' proceedings in bankruptcy against a trader, or the analogous process of a petition to wind up a company,' 4 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. 5 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. 6 § 2. Of tiie Termination of the Prosecution. The action for a malicious prosecution is given for the preferring in court of a false 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, 690, 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. 6 Fortman v. Pottier, 8 Ohio St. 548. See O'Brien v. Barry, 106 Mass. 300 ; Johnson v. King, 64 Texas, 226. 6 Chapter vii. 56 LAW OF TORTS. [Part I. by satisfactory evidence whether the charge is true or false before the verdict and judgment of the court trying the cause, it is deemed necessary for the defendant to await the termination of the proceeding before instituting an action for malicious prosecution. Or, as the reason has more 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 ; 1 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. 2 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 defendant 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 ; 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. 57 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. 1 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. 2 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 entirely 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 withdrawn.' This is a suffi- cient termination of the cause for the purposes of the now plaintiff. 8 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, p. 59. 8 Arundell v. White, 14 East, 216. 58 LAW OF TORTS. [Paet I. sufficiently for the purposes of au 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 proceeding. 1 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 ; 2 it could not, therefore, be treated as a false prosecution 3 though it might have been attended with malice, — unless, indeed, it was concocted in fraud. 4 In a criminal trial the situation is, indeed, different. Such a proceeding is instituted by the public, and, when by indictment, is under the control of the attorney- general, or other prosecuting officer ; it is never under the control of the prosecutor. He has no authority over it ; and, this being the case, he canuot, in principle, be bound by the action of the prosecutiug 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 Canlival v. Smith, 109 Mass. 158. 2 O'Briens Barry, 106 Mass. 300, 304. 3 Id. Or, as the case is sometimes put, judgment for the plaintiff would show that he had probable cause for 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. 59 the plaintiff to be indicted for arson. The prosecuting officer, failing to obtain evidence, enters a ' nolle prosequi ' before the jury is sworn. The prosecution is not termi- nated in favor of the prisoner. 1 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 him (other ele- ments present) to bring the action under consideration. 2 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 plaintiff be discharged. An action for malicious prosecution is now proper. 3 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. Farley, 10 Cush. 279 ; Brown v. Lakeman, 12 Cush. 482 ; Cardival v. Smith, 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. 3f>6, 365. 2 See Byne v. Moore, 5 Taunt. 187 ; s. C. L. C. Torts, 181. 8 Sayles v. Briggs, 4 Met. 421. 60 LAW OF TORTS. [Part I accused must have been put hi jeopardy ; but a state of jeopardy is not reached until the swearing of the petit jury. Hence if acquittal were necessary, an action for malicious prosecution could not be instituted upon the failure of the grand jury to find an indictment, or upon the discharge of a magistrate who has no power to con- vict. In neither case has the prisoner been iu jeopardy. The fact appears to be that, notwithstanding the language of some of the judges, a termination of the proceedings with an acquittal, actual or virtual, is necessary only in case of an indictment or information against the prisoner. In other cases, it is only necessary that the prosecution should be dismissed. 1 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 English statute entitled ' Malicious Appeals.' Westm. 2, c. 12 (13 Edw. 1). By this statute it was ordained that when any person maliciously 'appealed [that is, accused and prosecuted] of felony surmised upon him, doth acquit himself in the King's Court in due manner,' &c, the appellor shall be imprisoned and be liable in damages to the injured party. A few years later statutes were passed against conspiracies to indict persons maliciously. L. C Torts, 190. Between these statutes and the statute first mentioned, and taking its shape from them, the action for malicious prosecution 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 ; and in such cases only, it seems, is an acquittal 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 complaint. L. C. Torts, 192). Chap II. §3.] MALICIOUS PROSECUTION. 01 defendant. A criminal suit is terminated (1) when the prosecution, if brought before a magistrate, has been dis- missed, or (2) when, if preferred before the grand jury, that body has found no indictment; or (3) when, an in- dictment having been found, and the prisoner having been put in jeopardy, a verdict acquitting the prisoner has been rendered. Perhaps the prisoner should also have been discharged ; but he is entitled to a discharge in all these cases. § 3. Of the "Want of Probable Cause. Supposing the plaintiff to have begun his action after the termination of the prosecution, it then devolves upon him further to establish the defendant's breach of duty by showing that he instituted the prosecution without proba- ble cause. 1 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. 2 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.' 8 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. 252. 2 Driggs v. Burton, 44 Vt. 124 ; Boyd v. Cross, 35 Md. 194. 8 Broughton v. Jackson, 18 Q. B. 378 ; Panton v. Williams, 2Q. B. 169, Ex. Ch. ; Boyd v. Cross, supra ; Ramsey v. Arrott, 64 Texas, 320. 02 LAW OF TORTS. [Part L workman with the criminal, has been heard to say that he (the plaintiff) 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. 1 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. 2 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 ; 3 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. Perryman, L. R. 4 H. L. 521, as to hearsay. 2 Broad v. Ham, 5 Ring. 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, 3 Blackf. 241 ; Hickman v. Griffin, 6 Mo. 37. See L. C. Torts, 198-200. Chap. II. §.T] MALICIOUS PROSECUTION. 63 duty to the plaintiff in procuring his arrest, though sncii 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. 1 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, circumstances sufficient to have justified an arrest by any one cognizant of them. He has violated his duty in pro- curing the arrest. For example : The defendant to an action for malicious prosecution 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. 2 It has, however, been declared that conviction is con- clusive evidence of the existence of probable cause ; 8 and this though the verdict is afterward set aside and, upon a new trial, an acquittal follows. 4 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. * Delegal v. Highley, 3 Bing. N. C. 950. 3 Whitney v. Peckham, 15 Mass. 243 (by a trial magistrate) ; Par- ker v. Farley, 10 Cush. 279, 282. See ante, p. 56. Contra, Burt v. Place, 4 Wend. 591 ; Metropolitan Bank v. Pooley, 10 App. Cas. 210, ante, p. 56, note. * Whitney v. Peckham, supra. See also Parker v. Farley, supra. 64 LAW OF TORTS. IPart I. 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. 1 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. For 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. 2 Again : A magistrate binds over a person ac- 1 Ante, p. 60, 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- toppel, 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. 66, note), is, not whether there was probable cause for the arrest, within the knowledge of the prosecutor, but whether the prisoner is guilty. However, the language of 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. 2 See Nicholson v. Coghill, 6 Dowl. & R. 12, 14, Holroyd, J. ; Chap. II. §3.] MALICIOUS PROSECUTION. 65 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. 1 Other courts have taken a different 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? 2 To this reasoning it might be added that the grand jury or the magistrate does not consider what pronfpted the prosecutor, but whether there is now sufficient evidence to justify holding the accused further for trial. But the contrary doctrine, after all, is only a doubtful application of the rule of the relevancy of a later fact to prove an earlier, and hence does not really conflict with the true meaning of probable cause. Further, it has been seen 8 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, 4 it is deemed that a voluntary discontinuance, being a positive act, 5 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. Rutherford, 4 Hawks, 83; Williams v. Norwood, 2 Yerg. 329. 1 Bacon v. Towne, 4 Cusli. 217 ; Graham v. Noble, 13 Serg. & R. 270 ; Burt v. Place, 4 Wend. 591. See Reynolds v. Kennedy, 1 Wils. 232; Sutton v. Johnstone, 1 T. R. 493, 505, 506. - Israel v. Brooks, 23 111. 575. 3 Ante, p. 55. * Sinclair v. Eldred, 4 Taunt. 9 ; Webb v. Hill, 3 Car. & P. 485. 5 Sed qu. of the relevancy of such fact. 5 66 LAW OF TORTS. [Part I. 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. 1 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. 2 Such facts in themselves show nothing except that the prosecution has failed. It may still have been undertaken upon reasona- ble grounds of suspicion. 3 But it is held that the circum- stances of the abandonment may be such as to indicate prima facie a want of probable cause. For example : The defendant presents two bills for perjury against the plaintiff, but does not himself appear before the grand jury, 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 sus- pended for three years, when the plaintiff, taking down the record for trial, is acquitted ; the defendant declin- ing to appear as a witness, though in court at the time and called upon to testify. These facts indicate the absence" of probable cause. 4 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 i Nicholson v. Coghill, 6 Dowl. & E, 12 ; Webb v. Hill, 3 Car. & P. 485. 2 Willans v. Taylor, 6 Ring. 183 ; Vanderbilt V. Matins, 5 Duer, 304 ; s. c. L. C. Torts, 178 ; Johnson v. Chambers, 10 Ired. 287. 3 The magistrate or grand jury decides whether there is reasonable ground for putting the prisoner upon trial ; the petit jury decides whether the prisoner is guilty 4 Willans v. Taylor, 6 Bing. 183. Chap. II. §.1.1 MALICIOUS PROSECUTION. 07 though tli3 counsel gave erroneous advice. 1 Thai is, he 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. 2 The prosecutor must, however, as the proposition itself states, act bona fide upon the advice given, if he rest his defence upon such a ground alone. For 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 motive of compelling the plaintiff to sanction the issuance of certain illegal bonds. The defendant is liable. 3 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 prosecutor cannot safely proceed to procure an arrest except upon new advice ; unless indeed the entire chain of facts in his possession shall satisfy the court that there existed 1 Cooper v. Utterbach, 37 Md. 2S2 ; Olmstead v. Partridge, 16 Gray, 381 ; Cole v. Curtis, 16 Minn. 1S2 ; Ravenga v. Mackintosh, 2 B. & C. 693 ; Snow v. Allen, 1 Stark. 502. 2 Snow v. Allen, supra. 8 Ravenga v. Mackintosh, 2 B. & C. 693. See Hewlett v. Crachley, 5 Taunt. 277, 2S3. 68 LAW OF TORTS. [Part I a reasonable ground for his action. To make use of tbe advice given, when tbe new facts indicate that tbe accused is not guilty, would not be to act upon tbe advice in good faith. 1 Again, if tbe 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 tbe 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 tbe defence of advice of legal coun- sel, to establish probable cause, must not be resorted to as a mere cover for tbe prosecution, but must be the result of an honest and fair purpose ; and the statement made at tbe time by the prosecutor to his counsel must be full and true, and consistent with that purpose. 2 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 i See Fitzjohn v. Maekinder, 9 C. B. n. s. 505, 531, Ex. Ch. Cock- burn, C. J. ; Cole v. Curtis, 16 Minn. 182. 2 Walter v. Sample, 25 Penn. St. 275. Chap. II. § 4.] MALICIOUS PROSECUTION. 69 a lawyer. For example: The defendant procures the arrest of the plaintiff upon advice of a justice of the peace, with whom he has been in the habit of advising on legal mutters ; but the justice is not a lawyer. This is not evidence of probable cause. 1 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. 2 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. 8 § 4. Of Malice. To make out a breach of duty by the defendant, the plaintiff must also produce evidence such as will indicate that the prosecution was instituted with malice towards the accused. 4 Malice is not to be inferred because of 1 Beal v. Robeson, 8 Ired. 276. 2 Turner ». Ambler, 10 Q. B. 252, 257 ; Boyd v. Cross, 35 Md. 194. 8 Panton v. Williams, 2 Q. B. 169, Ex. Ch. ; Lister v. Penyrnan, 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. 4 Vanderbilt v. Mathis, 5 Duer, 304 ; s. c. L. C. Torts, 178 ; Pang- burn v. Bull, 1 Wend. 345 ; Carson v. Edgeworth, 43 Mich. 241 ; Dietz v. Langfitt, 63 Penn. St. 234. 70 LAW OF TORTS. [Part I. mere proof of a want of probable cause, 1 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. 2 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. 3 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. 4 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. This is errone- ous ; the existence of malice is a question for the jury. 5 It is not necessary, however, notwithstanding the lan- oruage of some of the old decisions, 6 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. 7 i Vanderbilt v. Matins, 5 Duer, 304 ; L. C. Torts, 178 ; Griffin v. Chubb, 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. 616. 4 Mitchell v. Jenkins, 5 B. & Ad. 588 ; Carson v. Edgeworth, supra*. 5 Mitchell v. Jenkins, supra. 6 Savil v. Roberts, 1 Salk. 13. 7 Chambers v. Robinson, 2 Strange, 691. See Stevens v. Midland < n.u>. II. § :>.] .MALICIOUS PROSECUTION. 71 § 5. Of Damage. If the charge upon which the prosecution was instituted was such as ( being untrue) would have constituted action- able slander had 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 lnm 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, aud of malice. The plaintiff is entitled to re- cover without producing evidence that he has sustained any actual damage. 1 But it has been decided that it is only for the prosecu- tion of a charge the mere verbal imputation of which would constitute actionable slander that the institution of the prosecution can be actionable without damage. 2 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 l.y. Co. 11 Q. B. Diw 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, 20 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, 2] Q. B. Div. 674, 692. Byne v. Moore, supra. 72 LAW OF TORTS. [Part I, It follows that this action for a malicious prosecution caunot be maintained without proof of damage when the prosecutor has procured the indictment of the plaintiff for the commission of that which is not a criminal offence. For example : The defendant procures the plaintiff to be indicted for the killing of the former's cattle. The plaintiff must prove special damage ; the offence, though charged as a crime, being only a trespass. 1 § 6. Of Kindred Wrongs. If the prosecution fail by 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. 2 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 i 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 McMull. 270 ; Turpin v. Remy, 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 an action for false imprisonment would be proper. Chap. II. § G.J MALICIOUS PROSECUTION. 73 of probable cause for instituting that proceeding. For example : The defendant under process of the court in an action for a debt not due, procures the plaintiff through duress to deliver valuable property (a ship's register) to him. The defendant is liable in damages, without evi- dence of the termination of the suit or of the want of probable cause. 1 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 ; 2 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. 8 Other instances may be found in actions for malicious issuance of a warrant, 4 the levying of an execution for far more than is due, 5 the malicious 1 Grainger v. Hill, 4 Bing. N. C. 212 ; s. c. L. ('. Torts, 184. 2 .Tarings 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. 4 Cooper v. Booth, 3 Esp. 135 : Phillips v. Naylor, 4 H. & N. 505- * Churchill v. Siggers, 3 El. & B. 938 ; Jenings v. Florence, supra; Somner v. Wilt, 4 Serg. & R. 19 ; Hilliard v. Wilson, Go Texas, 286. 74 LAW OF TORTS. [Part I. or otherwise wrongful levy of an attachment, 1 and the malicious causing an execution to issue against one on behalf of the public. 2 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. 8 This is a tort founded upon early statutes making maintenance a criminal offence ; 4 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 ; Stewarts. Cole, 46 Ala. 646; Spengler v. Davy, 15 Gratt. 381. 2 Craig v. Hasell, 4 Q. B. 481. 8 Bradlaugh v. Newdegate, 11 Q. B. D. 1 ; Harris v. Brisco, 17 Q. B. Div. 504 ; Metropolitan Bank v. Pooley, 10 App. Cas. 210. 4 It is doubtful if a corporation can be liable for the offence. 10 App. Cas. at p. 218, Lord Selbome. 6 Harris v. Brisco, supra- CHAPTER III. CONSPIRACY. § 1. Introductory. Statement of the duty. A owes to B the duty to forbear to carry out, wholly or partly, against him, to his damage, any unlawful conspiracy entered into with C. The law of conspiracy, iu 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 dose 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 by proof of an actual combination to indict the plaintiff of felony, with the other elements of an action for malicious prosecution. Failure to prove the combination was fatal, even though enough were proved to establish a right of action for a simple false prosecution. The action for the latter of- fence was a distinct proceeding. In later times the writ 76 LAW OF TORTS. [Part I. of conspiracy was employed for the redress of prosecu- tions below the grade of felony ; 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 bat one person. 1 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. 2 The result is, that conspiracy as a ground of civil liability has nearly disappeared from the law, 3 leaving little else than a phase of agency. 4 The existence, then, of an ac- tual conspiracy being unnecessary to the plaintiff's action, nothing remains, if he prove against but one person, except that which would be the ground of action against that person had he been alone sued. The case would then be nothing more than an action for deceit, malicious prosecution, false imprisonment, or other like tort, 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 the author's Leading Cases on Torts, pp. 190- 196, 210-214. 2 Savill v. Roberts, 1 Lord Rnym. 374, 379 ; 1 Saund. 230, note ; Parker v. Huntington, 2 Gray, 124 ; Hutchins v. Hutchins, 7 Hill, 104 ; s. c. L. C. Torts, 207. See Mogul Steamship Co. v. McGregor, 21 Q. B. D. 544 ; s. c. 23 Q. B. Div. 598. 3 The case is different with criminal liability ; that remains a great branch of the law. * See e. g. Pago v. Parker, 43 N. H. 363. Chap. III. § 2.] CONSPIRACY. 77 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 the existence of a conspiracy and his participation therein. It may become important then to know whether iu 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 iu 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 ; x 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. 2 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. 3 To make a party liable with others for a conspiracy re- 1 See Gregory v. Brunswick, 6 Man. & G. 953, 959. 2 Id. ; Mogul Steamship Co. v. McGregor, 1892, A. C. 25, 60. 8 Id. 205, 953. 78 LAW OF TORTS. [Part I. suiting in damage, he must either have originally colluded 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 daughter. This is not sufficient to establish a conspiracy and breach of duty ; the defendant not having thereby become a party to the plot. 1 Nor is it material, where the object of the unlawful combination is plunder and gain to the conspirators, that some of them derive no benefit from the execution of the scheme. They are equally liable, though the overt acts were 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. 2 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. 3 Again, as has already been suggested, there may be cases in which the wrong could not be done without an unlawful combination ; 4 in such a case proof of conspiracy 1 Brannoek v. Bouldin, 4 lied. 61. 2 Walsham v. Stainton, 1 De G. J. & S. 678. « Stockley v. Hornidge, 8 Car. & P. 11. * Mogul Steamship Co. v. McGregor, 1892, A. C. 25, 60. Chap. III. § .3.] CONSPIRACY. 7!' must, it seems, be made. Tims, one man alone could hardly succeed in hissing an actor off the stage ; and though others might join him, there would probably be no redress, however unjust the act. But preconcert would make a different case. For example : The defendant and others conspire to prevent the plaintiff, an actor, from performing at a theatre, and, in pursuance of the con- spiracy, employ others to go to the theatre and interrupt the plaintiff in his part, and the plan is carried out, to tin damage of the plaintiff. The defendant is liable. 1 § 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. 2 For example : The defendants are alleged to have conspired together, maliciously and without probable cause, to institute, and then 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 caunot recover. 3 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. 4 1 Gregory v. Brunswick, 6 Man. & G. 205, 953. See also Mogul Steamship Co. v. McGregor, 1892, A. C. 25, 45 ; Temperton v. Rus- sell, 1893, 1 Q. 13. 715, 729. 2 Cotterell v. Jones, 11 C. B. 713 ; Hutchins v. Hutchins, 7 Hill, 104 ; s. c. L. C. Torts, 207 ; Place v. Minster, 65 N. Y. S9 ; Kimball v. Harman, 34 Md. 407. 3 Cotterell v. Jones, supra. 4 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 forbear to induce, maliciously, C to break a contract between B and C to B's damage. § 2o 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 ; 1 but that, in England, is a statutory doctrine, 2 pe- culiar, probably, to the case of servants who labor with their hands. 3 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. The distinction does not obtain in this country ; 4 the case of master and servant not being considered peculiar. i See Lumley v. Gye, 2 El. & B. 216 ; s. c. L. C. Torts, 306. This case is an epitome of the history of the whole subject. See especially the dissenting opinion of Mr. Justice Coleridge. 2 Statute of Laborers, 23 Edw. 3. 8 Wightman, J. in Lumley 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. But see Walker v. Cronin, 107 Mass. 555, 567. 4 Walker v. Cronin, supra, journeymen shoemakers. Chap. IV. §2.] INTERFERING WITH CONTRACT. 81 Since the year 1853 it has been held in England that for a third person maliciously to induce a party to any kind of contract to break his undertaking 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, ' maliciously 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 plaintiffs damage. This is a breach of duty. 1 In such cases, and also, by our law, in cases of servants who work with their hands, malice is necessaiy 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; 2 but that would be to put a dangerous check upon common and generally deemed lawful acts of competition, and something more than this has accordingly been thought necessary. 8 In a late reconsideration of the subject in a similar case of contract for exclusive services, not man- ual, the English Court of Appeal treated malice as a necessaiy part of the plaintiffs case, and considered the term as meaning that the defendant must have sought to induce the party to break his contract ' for the indirect purpose of injuring the plaintiff, or of benefiting the defendant at the expense of the plaintiff.' 4 A malicious 1 Lumley r>. Gye, 2 El. & B. 216 ; s. c. L. C. Torts, 306 ; Temper- ton v. Russell, 1893, 1 Q. B. 715, C. A. ; Angle v. Chicago Ry., 151 U. S. 1, 13, 14. But see Boyson v. Thorn, 33 Pac. Rep. 492, California. 2 ' It must now be considered clear law that a person who wrong- fully and maliciously, or, which is the same thing, with notice, inter- rupts the relations subsisting between master and servant,' etc. 8 See Pollock, Torts, 480, 2d ed. 4 Bowen v. Hall, 6 Q. B. Div. 333, 338, Lord Esher. The 6 82 • LAW OF TORTS. [Part I. act of that kind was held to be a wrongful act. 1 This appears to mean that the act is shown to be wrongful if the plaintiff shows that it was done without any just motive, or without the existence of any right. 2 § 3. Of Damage. It is not enough that there litis been a breach of the contract ; for the purpose of an action for the wrongful interference, actual damage must be proved. 3 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 day. For example : The defendant maliciously Induces workmen, working b}* the piece, to leave the plaintiff's employment. This is a breach of* duty, for the plaintiff was entitled to the fruits and advantages to arise from a continuance of the employment. 4 Indeed, there may not have been so much as a breach of contract, for the workmen may have been emploj*ed argument that the damage was caused, not by the defendant, but by the party who broke his contract, was answered by Lord Esher's saying that the result was both intended and brought about by the defendant. 1 Id. Comp. what is said, ante, p. 71, note. The rule has recently been extended to the case of maliciously inducing a person not to enter into contract with the plaintiff. Temperton v. Russell, 1893, 1 Q. B. 715, C. A. See Walker v. Cronin, 107 Mass. 555. 2 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. 3 Temperton v. Russell, 1893, 1 Q. B. 715, C. A. 4 Walker v. Cronin, 107 Mass. 555. Chap. IV. § 4.] INTERFERING WITH CONTRACT. 83 from day to day, and so may have had a right to leave at the end of any day. But even in that case, there was legal damage because the plaintiff had a right to receive their services, without malicious interference by others, so long as they were disposed to give them ; he would have a right against others to the enjoyment of their services even as a gratuity. 1 Still, it is not unlawful to induce workmen to enter another's service upon the expiration of their present engagement, though they had had no inten- tion of quitting.' 2 § 4. Of the Distinction between Contract and Property. What has been said in exposition of the statement of the duty in question will show, when read in contrast with cases of wrongs to property in the ordinary 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 propert}- and rights of con- tract is not impugned. The former are absolute, and breach of them is a breach therefore of an absolute dut}' ; that is to say, it is not necessary to consider the motive with which an interference with a right of property takes place. Nor indeed is special damage necessary, in such a case, to constitute the tort. 1 See post, chapter viii. § 3 ; ante, p. 12, in Introduction. 2 Boston Glass Manuf'y v. Binney, 4 Pick. 425 ; Walker v. Cronin, 107 Mass. 555, 568. CHAPTER V. SLANDER AND LIBEL. § 1. Introductory. 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. 85 character concerning B, in either of the following wavs : (1) where A imputes to B the commission of a criminal offence punishable by imprisonment, or other corporal penalty, in the first instance, 1 clearly if the offence is in- dictable and involves moral turpitude, or is punishable by an infamous punishment; (2) where 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. 2 It is not to be con- 1 Pollock, Torts, 219, 2d ed. It is not enough that the offence is 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 t>. 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 not 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 tins 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. 86 LAW OF 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 the imputation was slanderous or libellous (according to its nature) within the meaning of some one of the above stated five classes. If this be not the case, it will not be deemed a breach of the duty ; and this too 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 ; 2 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. Oldham, 1 Cowp. 275 ; 8. c. L. C. Torts, 73. 2 Ward v. Clark, 2 Johns. 10; s. c. L. 0. Torts, 81. See Crone v. Angell, 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. Reynolds, 67 Penn. St. 54 ; Brown v. Myers, 40 Ohio St. 99 ; Underhill v. Welton, 32 Vt. 40. But see Stroebel v. Whitney, 31 Minn. 384. Chap. V. § 3.] SLANDER AND LIBEL. 87 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 1 who could understand the language. 2 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 emplo} T ment 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 Sheffill v. Van Deusen, 13 Gray, 304. See Marble v. Cbapin, 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 Ins 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 Ohio St. 604. See Wenman v. Ash, 13 C. B. 836, which suggests a doubt in regard to accusations of the wife made to the hu* band. 2 See Hurtert v. Weines, 27 Iowa, 134. 88 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. 1 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. 2 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. 3 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. 2 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 Barb. 333. But see McQueen v. Fulgham, 27 Texas, 463. 3 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 quite consistent ; mental distress being treated as ground for damages if a right of action is otherwise shown. See Harvard Law Review, Jan. 1894, p. 304. Chap. V. § 3.] SLANDER AND LIBEL. 89 The damage complained of must then in all cases, whether general or special, have been sustained through the action of a third person. Special damage 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 consecpience of the charge, terminates the engagement. The defendant is liable to the plaintiff. 1 The same would be true of the loss of the consortium of wife '-' and perhaps of husband. 3 The same would also be true of the refusal to the plaintiff of civil entertainment at a public house. 4 80 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 ; 6 and so in general of the loss by the plaintiff even of gratuitous hospitable entertainment. 6 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. Taulet, 134 Mass. 123. 8 See Lynch t;. Knight, 9 H. L. Cas. 577 ; Jaynes v. Jayncs, 39 Hun, 40 ; Warners. Miller, 17 Abb. N. C. 221 ; Breiman v. Paasch, 7 Abb. N. C. 249. See post, chapter viii. § 4. 4 Olmsted v. Miller, 1 Wend. 506. See Moore v. Meagher, 1 Taunt. 39. 6 Williams v. Hill, 19 Wend. 305. 6 Id. ; Moore r. Meagher, 1 Taunt. 39. 90 LAW OF TORTS. [Part L recover, by simply proving publication. 1 In cases of defamatory publications not falling under the following heads, the plaintiff must also prove damage ; that is the only difference between the two classes of cases. § 4. Op the Imputation of having Committed a Crime. Different rules have obtained in different states con- cerning 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 infa- mous when, for instance, it is named in the same category with the punishment of trivial offences, such as vagrancy,' begging, and fortune telling, and a charge of such an offence would not be actionable per se. For example : The 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. 2 i Webb v. Beavan, 11 Q. B. D. 609. 2 Brooker v. Coffin, 5 Johns. 188 ; s. c. L. C. Torts, 77 ; Davis v. Carey, 141 Penn. St. 314 ; McQueen v. Fulgham, 27 Texas, 463 ; Un- derbill v. Welton, 32 Vt. 40 ; Pollard v. Lyon, 91 U. S. 225. See also as to disgracefulness, Andres v. Koppenheaver, 3 Serg. & R. 255. Per- haps charges of crime punishable by imprisonment in a state prison would cover this class of cases. Common-law punishments of the 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. Koppenheaver, supra ; Billings v. Wing, 7 Vt. 439. Cuap. V. § 4.] SLANDER AND LIBEL. 91 In other States probably, as in England, it would be enough that the crime was punishable in the first instance by imprisonment. 1 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. 2 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. 3 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. 4 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. 85, 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. Sehleichler, 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. k R. 255. 4 Young v. Miller, supra. But the meaning of 'moral turpitudo' is not fixed. 92 LAW OF TORTS. [Part I. 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 Cai-penter [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. 1 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. 2 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. 3 § 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 1 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. 8 Smith v. Stewart, 5 Barr, 372. It would be otherwise if the words were true. Baum v. Clause, 5 Hill, 199. A person is no longer a felon after suffering the punishment of felony ; so that the fact that he was once a felon would not sustain a plea of the truth of a charge ot felony. Leyman v. Latimer, 3 Ex. Div. 352. Chap. V. § 6.] SLANDER AND LIBEL. 93 charges the plaintiff with having the gonorrhoea. This is actionable per se. 1 This doctrine of law proceeds upon the ground that charges of such a kind tend to exclude a person from so- ciety ; 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 though the charge be false, unless the plaintiff prove special damage. 2 § 6. Of an Imputation affecting the Plaintiff in his Office, Business, on Occupation. In order that defamation arising under this head alone should be actionable per se, it should have a natural ten- dency to injure the party complaining, in his occupation. It is not enough that it may possibly so injure him. If it has not a natural tendency to injure him in this respect, that is, if it would not be the usual effect of the charge to injure the plaintiff in his occupation, as by causing 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 your conduct with harlots. You are a disgrace to the situation you hold.' The plaintiff cannot recover without proof of actual damage, the language not having a natu- ral tendency to cause the plaintiff's discharge from his employment. 8 1 Watson v. McCarthy, 2 Kelly, 57. See Bloodworth v. Gray, 7 Man. & G. 334. 2 See Carslake v. Mapledoram, 2 T. R. 473 ; s. c. L. C. Torts, 84. * Lumby v. Allday, 1 Tyrwh. 217 ; s. c. L. C. Torts, 87. 94 LAW OF TORTS. [Part L 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 perfonnance of the duties of his situation, or when it alleges some misconduct or negligence in the course of transacting these duties. 1 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. 2 Again : The defendant says of the plain- tiff, a lawyer, the words having relation to the plaintiff's professional qualifications, ' He is a dunce.' This may perhaps be treated as a breach of the defendant's legal duty to the plaintiff. 3 When 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 ; 4 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 ivas 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- i Id. ; Camp v. Martin, 23 Conn. 86. 2 Gallwey v. Marshall, 9 Ex. 294. 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. Rush v. Cavenaugh, 2 Barr, 187. Further see Goodenow v. Tappan, 1 Ohio, 60 ; Doyley v. Roberts, 3 Bing. N. C. 835. 4 Ayre v. Craven, 2 Ad. & E. 2. Chap. V. § 6 ] SLANDER AND LIBEL. 95 fessional misconduct ; and, without evidence connecting the imputation with the plaintiff's professional conduct, he cannot recover. 1 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. 3 It is probably actionable to impute disqualification of a person holding a merely honorary or confidential office, not of emolument. 3 It certainly is so to impute to such a person misconduct in the office. 4 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. 5 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. 6 For example : The defendant says of the plaintiff, who had been a lessee of tolls at the time referred to by the defendant, ' He was wanted at T ; he was a defaulter there.' The words are not actionable per se. 7 1 Ayre v. Craven, 2 Ad. & E. 2. 2 Seaman v. Bigg, Croke Car. 480. 8 Onslow v. Home, 3 Wilfl. 186. « Id. 6 Aston v. Blagrave, Strange, 617. « Bellamy v. Burch, 16 M. & W. 590 ; Gallwey v. Marshall, 9 Ex. 294. 7 Bellamy v. Burch, supra. Some of the old cases are contra, but they were overruled. QQ LAW OF TORTS. [Part I. § 7. Of 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. 1 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. 2 § 8. Of an Imputation 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 effigy, 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. 49. 2 Humphrys v. Stanfeild, Croke Car. 469. Cuap. V. §S.] SLANDEE AND LIBEL. 97 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 actionable. 1 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 religions 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. 2 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. 8 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. 4 At common law, no immunity is conferred upon the proprietors, publishers, or editors of books, newspapers, or other prints, for the publication of defamation. They are liable for the publication of libellous matter in their prints, though the publication may have been made with- ' Tli. nicy v. Kerry, 4 Taunt. 355 ; s. c. L. C. Torts, 90. 2 Thorley v. Kerry, supra. 3 Steele v. Southwick, 9 Johns. 214. 4 Cooper v. Greeley, 1 Denio, 347. 7 98 LAW OF TORTS. [Part L out their knowledge or even against their orders. This is not true of news-vendors. 1 And it is held that if the alleged libel were of such a nature that a man of common intelligence could not know that it was intended for a libel, and it was not in fact known that it was, neither the editor nor the proprietor of the printing establishment, or of the print, would be liable. 2 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 Truth of the Charge. The truth of the charge, whether it was made orally or by printed or written language, is, in the absence of statute, 8 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 Emmons v. Pottle, 16 Q. B. Div. 354. 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 AND LIBEL. W plaintiff was pardoned, and has since become a trusted citizen and an office-holder. The accusation is deemed justifiable in law. 1 Belief in the truth of the accusation, however, is not a defence, 2 though the law allows the defendant to show it in mitigation of damages. 8 And this is equally true of the editors and publishers of books, newspapers, or periodicals, as of other persons. 4 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. 5 § 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. 6 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 Baum v. Clause, 5 Hill, 199. See Rex v. Burdett, 4 B. & Aid. 314,325. - 2 Campbell v. Spottiswoode, 3 Best & S. 769. 3 Odgers, Slander, 302, 589. 4 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. Cas. 247, 251 ; ante, pp. 70, 71 ; Holmes, Common Law, chap- ter 4. Malice in law is a pure fiction. 100 LAW OF TORTS. [Part 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. For 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. 1 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. 2 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- i Hooper v. Truscott, 2 Bing. N. C. 457 ; s. c. 2 Scott, 672. 2 The doctrine of privileged communications is only a special exam- ple of a great law of privilege pertaining to human affairs generally ; to wit, the right to inflict harm upon another in just so far as ma}' reason- ably be deemed necessary for one's own protection, or for the protection of another, where that is proper. So far others must yield, or the vin- dication of rights in many cases would be an empty name ; but further no one is required to give way. Chap. V. § 10.] SLANDER AND LIBEL. 101 sons 1 are excused for publishing what would otherwise he actionable defamation. The publication of the charge in such cases is in legal language said to be privileged; the charge itself being termed a privileged commu- nication. Privileged communications are of two kinds ; absolutely privileged and prima facie privileged communications. 9 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 and cannot be disturbed ; in the latter it is perfect, provided evidence of malice be not offered by the plaintiff. Under the head of absolutely privileged communica- tions, thei-e are several classes of cases. First of these \ in importance come statements made in the course of ju- dicial proceedings. Whatever is said orally, or stated in writing, in the course of, and duly relating to. such pro- ceedings by those concerned therein, is absolutely privi- leged ; this in the interest of the administration of justice. 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. 3 It is enough if it relates to the 1 Merivale v. Carson, 20 Q. B. Div. 275, 280, Lord Esher pointing out that what all men may do is no privilege. 2 Hastings v. Lusk, 22 Wend. 410 ; s. c. L. C. Torts, 121 ; Shelfer v. Gooding, 2 Jones, 175. 3 Minister v. Lamb, 11 Q. B. Div. 588 (counsel) ; Scott v. Stan* 102 LAW OF 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. 1 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. 2 Formerly relevancy appears to have been regarded in England ; 8 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, 4 of counsel, 5 of witnesses, 6 of jury- men, 7 and of pleadings. 8 For example : The defendant, field, L. R. 3 Ex. 220 (judge) ; Seaman v. Netherclift, 2 C. P. Div. 53 (witness); Henderson v. Broomhead, 4 H. & N. 569 (statements in pleadings). i Munster v. Lamb, 11 Q. B. Div. 588. 2 Seaman v. Netherclift, supra. 8 Hoar v. Wood, 3 Met. 193, 198 ; Hastings v. Lusk, 22 Wend. 410 ; s. c. L. C. Torts, 121, 125-127 ; Hodgson v. Scarlett, 1 B. & Aid. 232. 4 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 i Rice 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. 7 Dunham v. Powers, 42 Vt. 1. 8 McLaughlin v. Cowley, supra ; Wyatt v. Buell, 47 Cal. 624 ; Garr v. Selden, 4 Comst. 91 ; Johnson v. Brown, 13 W. Va. 71. Chap. V. § 10] SLANDER AND LIBEL. 103 in the argument of his own cause in court, falsely charges perjury 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. 1 Again : The defendant, dining 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, 3 even though the persons making them be not parties to the cause ; * and to statements of a coroner holding an inquest. 5 In a word, it applies apparently to all statements made in the real discharge of duty at court. 6 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, 7 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 ; s. c. L. C. Torts, 121. 2 Dunham v. Powers, 42 Vt. 1. 8 Garr v. Selden, 4 Comst. 91. 4 Henderson v. Broomhead, 4 H. & N. 569. 5 Thomas v. Churton, 2 Best & S. 475. 6 Goodenow v. Tappan, 1 Ohio, 60 ; Dunham v. Powers, supra. 7 Jekyll v. Moore, 2 Bos. & P. N. R. 341 ; Dawkins v. Rokehy, L. R. 8 Q. B. 255 ; s. c. 7 H. L. 744, 752 (witness) ; Dawkins v. Saxe- Weimar, 1 Q. B. D. 499. 104 LAW OF TORTS. [Part I. vestigation, or inquiry, civil or criminal, by or before any such tribunal, however false and malicious it may be. 1 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. 2 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. 3 This privilege, however, is absolute only within the walls of the House, or of such other places as committees are authorized to occupy. 4 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. 5 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. 6 1 Starkie, Slander and Libel, 184 (4th ed. by Folkard) ; Munster v. Lamb, 11 Q. B. Div. 588, and cases cited. 2 Odgers, Slander, 187. 8 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 ease ; Hastings v. Lusk, 22 Wend. 410, 417 ; s. c. L. C. Torts, 121, 124. 4 Goffin v. Donnelly, 6 Q. B. T>. 307. See Belo v. Wren, 63 Texas, 686, irregular and irresponsible committee. 6 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 Maule & S. 273 ; Stockdale v. Hansard, 9 Ad. & E. 1. As to private circulation Chap. V. § 10.J SLANDER AND LIBEL. 105 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. 1 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. 2 The occasions above presented are the only ones in which the publication of defamation is absolutely justi- fied. The occasions which afford a prima facie protection to defamatory publications must now be considered. The defendant here shows privilege as before ; but now, it should be noticed, the plaintiff may in turn show (actual) malice. This head embraces a great variety of cases, the most important of which will now be presented. And from these a general rule will 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. 1 Lake v. King, 1 Saund. 131 b, where this is conceded ; Have v. Miller, 3 Leon. 138, 163. .See Proctor v. Webster, 16 Q. B. D. 112, as to communications to the Privy Council. 2 C'omp Odgers, Slander, 194. 106 LAW OF TORTS. [Part L not in conflict with the law, are sanctioned by the State. 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. 1 The proceedings of the courts of justice should, with some necessary exceptions, be under the eyes of the pub • lie, so that judges may sufficiently feel their responsibility. 2 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. 3 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. 107 expense of the present plaintiff. It then sets out parts of the speech of the defendant's counsel which contain some severe reflections on the conduct of the plaintiff as attor- ney in that action. The defendant is liable. 1 But it should be clearly understood that the publication of an abridged report of a trial is privileged if it be fair and accurate iu 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. 3 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. 4 This would not be publishing a proceeding had in open court. 5 Reports from day to day, in the progress of a trial, may be published ; 6 and the report of a judgment alone, especially if sufficient to give a just idea of the case, may be published. 7 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. 8 i Flint i\ Pike, 4 B. & C. 473. 2 Turner v. Sullivan, 6 Law T. N. s. 130 ; Wason v. Walter, L. R. 4 Q. I',. 73, 87. 3 Wason v. Walter, supra. Contra of matters not fit for publica- tion. Steele v. Brannan, L. R. 7 C. P. 261. 4 Cowley v. Pulsifer, 137 Mass. 392. 5 Id. p. 394, Holmes, J. 6 Lewis v. Levy, El. B. & E. 537 ; Cowley v. Pulsifer, 137 Mass. 392, 395. 7 Macdougall v. Knight, 17 Q. B. Div. 636 ; 14 App. Cas. 194, 200. See this case again, 25 Q. B. Div. 1, denying the 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. 4 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 r. Eno, 81 N. Y. 116 ; Root v. King, 7 Cowen, 613 ; s. c. 4 Wend. 113 ; Sweeney v. Baker, 13 \Y. 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 be no dispute about the proposition of the text. 118 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. 1 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. 2 1 Comp. Odgers, 223, 224. 2 See chapter ii. PART II. BREACH OF ABSOLUTE DUTY. CHAPTER VI. ASSAULT AND BATTERY. § 1. Introductory. 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 iu 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.' x 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 (wttiiout 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. 2 If the attempt be carried out by physical 1 See the proposed definition in the English draft Criminal Code of 1879; Pollock, Torts, 192, 2d ed. 2 Words are no assault ; but they may bo a menace and so action- able, with proof of damage. L. C. Torts, 225-227. 122 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 affected 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. 1 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 ; 2 for the ordinary effect of an assault, the in- tended putting one in fear, is produced. 8 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. 8 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 harm is unnecessary ; intent to put in fear is necessary. Chap. VI. §2] ASSAULT AND BATTERY. 123 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. For example : The defendant, on drill as a soldier, putting his hand upon his sword, says to the plaintiff, • If it was not drill-time, I would not take such language from you.' This is not an assault, since the language used, under the circumstances, shows that there was no present attempt, real or apparent, to commit violence. 1 If, however, the plaintiff have reason to believe that harm was intended, there is an assault, whether the de- fendant did or did not intend harm. So at least it is held for the purpose of civil redress. For example : The de- fendant in an angry manner points an unloaded gun at the plaintiff, and snaps it, with the apparent purpose of shooting. The gun is known by the defendant to be un- loaded ; but the plaintiff does not know the fact, and has no reason to suppose that it is not loaded. The defend- ant is liable for an assault, though he could not have intended to shoot the plaintiff. 2 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. 8 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 Tuberville v. Savage, 1 Mod. 3. 2 Beach v. Hancock, 27 N. H. 223. 8 Tarver v. State, 43 Ala. 354 ; State v. Taylor, 20 Kans. 643. 124 LAW OF TORTS. [Pakt II. 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. 1 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. 2 It will be observed, from the statement of the duty which governs this branch of the law, that 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 case, however, unless the assault were outrageous, he could (probably) recover only nominal damages. 8 § 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. 8 The damages recovered in Stephens v. Myers, supra, were one shilling. Chap. VI. §3] ASSAULT AND BATTERY. 125 therefore, is mainly distinguishable from an assault in the fact that physical contact is necessary to accomplish it. But, as the definition indicates, this contact need not be effected by a blow ; any forcible contact may be sufficient. For example : The defendant, an overseer of the poor, cuts off the hair of the plaintiff, an inmate in the poor- house, contrary to the plaintiff's will, and without author- ity of law. This is a battery, and the defendant is liable in damages. 1 Again : The defendant, in passing through a crowded hall, pushes his way in a rude manner against the plaintiff. This is also a battery. 2 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. 8 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. 4 Again : The defendant drives a vehicle against the plain- i Forde v. Skinner, 4 Car. & P. 239. 2 Cole v. Turner, 6 Mod. 149 ; 8. c. L. C. Torts, 218. 8 Mr. Addison gives this as an example of a battery, 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. 126 LAW OF TORTS. [Part IL tiff's carriage, throwing the plaintiff from his seat. This also is a battery. 1 Again : The defendant runs against and overturns a chair in which the plaintiff is sitting. This too is a battery. 2 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 done. 8 In earlier times it appears to have been considered that a battery might be committed merely by negligence. For example : The defendant, a soldier, handles his arms so carelessly in drilling as to hit the plaintiff with them. i Hopper v. Reeve, 7 Taunt. 698. 2 Id. It was held immaterial in this case whether the chair or car- riage belonged to the plaintiff or not. 8 See Regina v. Cotesworth, 6 Mod. 1 72 ; 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 shillings, 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. 127 This is deemed a battery, though the act was not intended. 1 The above-mentioned ease of the running into the plaintiffs carriage might be another example. 2 But there 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 b} T another person, provided the defendant was at the time committing a crime or a trespass. For example : The defendant, when about to discharge a gun unlawfully at a third person, is jostled just as the gun is fired, and the direction of the shot is changed so as to cause the plaintiff to be hit. This is a battery. 8 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 batteiy, according to the modern view, unless the blow itself was intentional, or unless the defendant was otherwise trespassing at the time. 4 No man when doing that which is lawful should be held liable for consequences which he could not prevent by prudence or care, though another suffer bodily injury thereby. For example : The defendant's horse, upon which the 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. 2 See also Hall v. Fearnley, 3 Q. B. 919. 8 See James v. Campbell, 5 Car. & P. 372, where the defendant, in fighting with another, hit the plaintiff with his fist. 4 Coward v. Baddeley, 4 H. & N. 478, Martin, B. infra ; Holmes v. Mather, L. R. 10 Ex. 261 ; Wakeman v. Robinson, 1 Bing. 213 ; Hall v. Fearnley, 3 Q. B. 919 ; Brown v. Kendall, 6 Cush. 292 ; Vincent v. Stinehour, 7 Vt. 62; Nitroglycerine Case, 15 Wall. 524. See also Bollock, Torts, 122 et seq., 2d ed. The old cases have fairly ceased to be law, both in England and in America. 128 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. 1 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. 2 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. 3 In none of these cases is there liability, though the contact be against the will of the plaintiff. 4 If, however, the act were done in a hostile manner, the case would be different. 6 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 by "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 Cush. 292 ; Holmes v. Mather, supra. See further Holmes, Common Law, 105, 106. 3 As to the last case, see Coward v. Baddeley, supra. 4 These, however, are properly cases of justification ; the justifica* tion accompanies what otherwise would be actionable. 6 Coward v. Baddeley, supra. Chap. VI.§4.] ASSAULT AND BATTERY. 129 surrender the property, the owner should resort to the courts to obtain it, or await an opportunity to gel 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. 1 § 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 ; 2 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 Suggs v. Anderson, 12 Ga. 461. But the defeudant could keep his horse. Scribner v. Beach, 4 Denio, 44S, 451. - See Slieehan 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 Ind. 472. 9 130 LAW OF TORTS. [Part II. 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-detence. Wher- ever it has become apparently necessary to the defendant's protection to repel force by force, he may do so. 1 The right of self-defence is sanctioned as well by the muni- cipal law as by the law 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. 2 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 i Drew v. Comstoek, 57 Mich. 176 ; Miller v. 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 Howland 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 he necessary for self-protect inn. See Pollock, Torts, 156, 196, 2d ed. The question does not often arise, however, in civil suits. 2 See Cluff v. Mutual Ben. Life Ins. Co., 13 Allen, 308 ; S. C. 99 Mass. 317 ; Scribner v. Beach, 4 Denio, 448. Chap.VL§4] ASSAULT AND BATTERY. 131 defence, that the plaintiff 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. 1 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.' 2 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. 3 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. 4 Nor is it lawful for the owner of property, in defence of his possession, to make an attack upon the trespasser without first calling upon him to desist from his unlawful purpose, unless the trespasser is at the time exercising 1 Ante, p. 129. 2 The allowable force in such a case is expressed by the words of the old pleading ' molliter maims imposuit', — the defendant gently laid his hands upon the plaintiff. 8 Scribner v. Beach, 4 Denio, 448. * Gregory v. Hill, 8 T. K. 299. 132 LAW OF TORTS. \Tart 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. 1 In the next place, it is to be observed that a person may not only make reasonable defence of his own person, and I of the possession of his own property ; he may do the same towards the members of his own family when at- tacked,' 2 and perhaps also towards the inmates of a house in which he is then receiving hospitality. Certain it is, that a servant may justify a battery as committed in de- fence of his master ; 3 that is, he may do anything 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. 4 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, 5 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 1 See Scribner v. Beach, 4 Denio, 448. 2 1 Black. Com. 429. 3 Reeve, Domestic Rel. 538 (3rd ed.). * Tickell v. Read, Lofft, 215. * Year-Book, 19 Hen. 6, pp. 43, 56 ; L. C. Torts, 270. Chap. VI. § 5.] ASSAULT AND BATTEBT. 1;:. breach to the person whom be or she was serving or as- sisting. It follows thai each 1ms 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. 1 There will be this difference, however, between the rights of action of the master and the servant (using these terms genericallyj, that the latter will be entitled to recover judgment for the mere assault and battery, though no damage were actually intlicted ; 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 ; 3 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 ami 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. 8 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 lav in the wife. And, in times of servitude, the master could perhaps sue foi an assaidt or battery committed upon his villein, even though tin former sustained no damage. L. C. Torts, 227. 134 LAW OF TORTS. [Part II. ants are liable ; though no bodily violence was committed upon the servants. 1 The plaintiff must, however, either have been entitled to require the services of the party assaulted or beaten, or he must have been in the actual enjoyment of them, if they were gratuitous. A parent 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 minority, if the parent had in any way divested himself of the right to require his child's services. 2 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 plaintiff'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 carry the servant safely according to their agree- ment ; whereby 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. 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 iii. Chap. VI. § 5.J ASSAULT AND BATTERY. 135 not entitled to recover; the injury being deemed to be due to breach of duty to the servant alone. 1 This doctrine rests upon the ground that the defendant, having contracted with the servant only, owes no duty to thu master in the particular case ; the injury 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 by threats drives away his servants, 2 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), 8 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 beeu held to apply to actions by masters for i Compare Alton v. Midland Ry. 19 C. B. n. s. 213 ; s. c. 15 Jur. n. s. 672 ; Fairmount Ry. Co. v. Stutler, 54 Penn. St. 375. See the same subject again, post, chapter xvii. § 9. 2 Ante, p. 133 ; L. C. Torts, 226. 8 See Phillips v. Homfray, 24 Ch. Div. 439 ; also the early statutes, generally adopted in the United States, 4 Edw. III. c. 7, 25 Edw. III. st. 5, c. 5, and the modern one, 3 & 4 Win. IV. c. 42 ; Pollock, Torts, 59, 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 personal representative ' for the benefit of the wife, husband, parent and child of the person' killed. See Seward v. The Vera Cruz, 10 App. Cas. 59 (overruling The Franconia, 2 P. D. 163) ; Pym v. Great North- ern Ry. Co. 4 Best & S. 396, Ex. Ch. ; Bulmer v. Bulmer, 25 Ch. D. 409. 136 LAW OF TORTS. [Part II. the killing of their servants. 1 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. 2 1 Osborn v. Gillett, L. R. 8 Ex. 88, Bramwell, B. dissenting strongly. Sir F. Pollock doubts whether the decision would be fol- lowed by the. Court of Appeal. Torts, 57, 58, 2d ed. 2 Baker v. Bolton, 1 Camp. 493 ; Osborn v. Gillett, L. R. 8 Ex. 88, 90, 98 ; Sullivan v. Union Pacific R. Co. 1 Cent. L. J. 595. See also Insurance Co. v. Branie, 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. The 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. 1 A writ is sometimes absolutely void for irregu- larity, 2 and sometimes only voidable. 3. By comparatively recent statutes, arrest in civil suits has been prohibited, except in a few special cases, 8 so that the particular facts of many of the older authorities no longer appear ; but the principles upon which the} - rested have not been changed. § 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 authority of law, and against his will. 4 Such an act may be committed not only by placing a man within 1 See Everett v. Henderson, 1 16 Mass. 89. 2 As a writ in execution of a judgment which has been discharge! t" the knowledge of the person suing out the same. Deyo 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. 138 LAW OF TORTS. [Part IL prison walls, but also by restraint imposed upon him in his own house or room, or in the highway, or even in an open field. 1 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 v 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, l 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. 2 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 uot attempt to escape the restraint if he had the physical ability of locomotion. For example : The defendant, a creditor of the plaintiff, goes with an officer to the plaintiff's house, 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. 3 1 Lib. Ass. (22 Edw. III.), p. 104, pi. 85, a very old case, but good law. 2 Brushaber v. Stegemann, 22 Mich. 266, 268. See Hill v. Taylor, 50 Mich. 549. » Grainger v. Hill, 4 Bing. N. C. 212 ; s. c. L. C. Torts, 184. Chap. VII. § 2] FALSE IMPRISONMENT. 139 The submission, therefore, to the threatened and rea- sonably apprehended use of force is not to be considered as a consent to the restraint, within a maxim which has frequent application in the law of torts, ' volenti nou lit injuria.' And the imprisonment continues until the paily is allowed to depart, and is involuntary until all general restraint ceases, and the means of effecting it are removed. 1 It is not enough that restraint is imposed upon one's freedom of proceeding in a particular desired direction. The detention must be such as to cause escape in any direction to amount to a breach of the restraint ; the restraint should be circumscribing, except, perhaps, where the only place of escape is an almost impass- able one. For example : The defendant, an oflicer, 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. 2 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 imprison- 1 Johnson v. Tompkins, Baldw. 571, 602. - Bird v. Jones, 7 Q. B. 742. 'A prison may have its boundary large or narrow, invisible or tangible, actual or real, or indeed in 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. 140 LAW OF TORTS. [Part II. 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. 1 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. For example : The defendant, a constable, asks the plaintiff if his name is J. D., to which the plaintiff replies in the affirmative; whereupon the defendant takes the plaintiff into custody, the plaintiff not being the person intended by the writ. This is a case of false imprisonment. 2 If, however, the plaintiff, though not the person in- 1 See observation 3, p. 137, of arrests in civil suits. 2 Coote v. Lighworth, F. Moore, 457. It is to be noticed that the plaintiff in this case did nothing to induce the officer to arrest him as the person intended. (•map VII. §3.] FALSE IMPRISONMENT 141 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. I)., 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 broach of duty. 1 The officer's process, how r ever, 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 i 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. 2 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. 142 LAW OF TORTS. [Part II. name, was legally liable to such an arrest. 1 But the case would have been different had the plaintiff been known alike by either name. 2 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. 3 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. 4 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 clays, in order that the party whose goods had been stolen might 1 Scott v. Ely, 4 Wend. 555. 2 Griswold v. Sedgwick, 1 Wend. 126. 8 This is too fundamental to have been much agitated in the courts. No authority is needed for the example. 4 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. See ante, p. 73. Hence it is that not merely the subsequent act but the arrest itself is unlawful. See post, pp. 198, 199. Chap. VII. § ••}.] FALSE IMPRISONMENT. 14^5 have an opportunity to collect his witnesses and prove the crime. This is a false imprisonment, the detention being unreasonable. 1 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 other- 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 by illegal means to execute valid process. 2 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. 8 The principle to be derived from the cases (to restate this important doctrine in the language of the courts) 4 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 bees taken before a magistrate at once. a Hooper v. Lane, 6 H. L. Cas. 443. 8 Barratt v. Price, 9 Bing. 566. 4 Tindal, C. J. in Barratt v. Price, and Williams, J. in Hooper v. Lane, supra. 144 LAW OF TORTS. [Part II. ^rounds, unconnected -with the act of the officer, 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 process, 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. 1 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. 2 In later decisions, this i 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. 145 doctrine has been denied to be law, except in so far as it may apply to the case of a prisoner who, after escape, has returned and given himself into custody of the officer ; in that case the prisoner can be detained under the old warrant. 1 And this appears to be the true rule and dis- tinction. For example : The defendant, an ollicer 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 lakes her before another magistrate. This is a false imprisonment.' 2 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. 3 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 plaintiff was still liable to arrest under the original warrant, and that, therefore, the proceedings not being terminated, the action could not be maintained. 1 Doyle v. Russell, 30 Barb. 300. 2 Id. :i Tarltou v. Fisher, 2 Doug. 671 ; Deyo v. Van Valkenburgh, 5 Hill, 242. 10 146 LAW OF TORTS. [Part 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. 1 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. 2 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. 8 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 i Stephens v. Wilkins, 6 Barr, 260. 2 Shergold v. Holloway, 2 Strange, 1002. 8 See Deyo v. Van Valkenburgh, 5 Hill, 242. Chap. VII. § 3.] FALSE IMPRISONMENT. 147 is ordinarily safe, though the writ ought not to have issued. To put the ease in the form of a more general proposi- tion, as laid down upon great consideration, a ministerial ollicer is protected in the execution of process, whether 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. 1 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. 2 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. l Savacnol i\ Roiicrliton, 5 Wend. 170; s. c. L. C. Torts, '241. » Tarlton v. Fisher, 2 Doug. 671. 148 LAW OF TORTS. [Part II. The clerk may also be liable when the officer 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 grauting 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. 1 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. 2 1 Andrews v. Marris, 1 Q. B. 3. 2 Dews v. Riley, 11 C. B. 434. Cuap. VII. § 3] FALSE IMPRISONMENT. 149 The judge of an inferior court, if he authorizes the ar- rest, is Liable whenever the officer, acting in strict accord- ance with his precept, is liable; provided the precept be not void for defective language. As the judge does not make out the writ, he cannot be liable for such defect ; and the clerk is not his agent or servant. 1 In other cases, that is, when the court has not jurisdiction of the cause, the proceeding is coram non judice : the court loses its judicial function, and the judge becomes a mere private citizen. 2 But more than this, the judge may be liable when the ollicer 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. lie is liable for false imprisonment ; though the officer who executes the writ is not. 8 "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. - The Marshalsea, 10 Coke, 68 b ; B. c. L. C. Torts, 278, note. 8 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 perhaps have been easily proved. The cases upon 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, 260, 261, Shaw. C. J. 150 LAW OF TORTS. [Part 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. 1 And it lies upon the plaintiff in every case to prove the fact. 2 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 brought against him by a third person, for an offence committed without his district. The defendant, however, has no knowledge that the act was committed be} T ond 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, 3 unless he acted maliciously and without probable cause. 4 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. 2 Calder v. Halket and Pease v. Chaytor, supra, in which Carratt v. Morley, 1 Q. B. 18, apparently contra, is doubted. 3 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. Radnor, 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 enforcement of a judgment in such a case — that would be proper — and an action against the judge of the court, as in the example. * Id. In such a case, the suit would properly be an action for malicious prosecution. Chap . Vll. § a. J FALSE IMPRISONMENT. 151 of a court of record of limited jurisdiction, directs the arrest of the plaintiff for contempt of the process of the court, and commits him to jail. The commitment is uu- authorized, and is made under a mistake of plain law about the powers of the 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. 1 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) that the officer and the clerk may alone be liable ; as where the writ contains substantially defective language: (5) that all three may be liable ; as where the whole cause, in the course of which the writ is issued (at the command of the judge), is without the jurisdiction of the court. This is not all. The liability for a false imprisonment may extend to the attorney at whose instance the proceed- ing was begun, and, further still, to his client who author- ized him to begin it. Indeed, this will alw r ays be the case wherever it can be properly said that 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. 152 LAW OF TORTS. [Part II. the attorney's or his client's ; 1 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. 3 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 by the judge in regard to his jurisdiction (in which case he might be liable), or was issued in a materially 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. 4 It is laid down in England, contrary to recent American authority, 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 attorney, 1 Cooper v. Harding, 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, 146 Mass. 89, an important case. 3 In this appears a clear distinction between an action for false imprisonment 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. Dowling, L. R. 5 C. P. 534, 540, Willes, J. 4 Carratt v. Morley, 1 Q. B. 18. The author withdraws his criti- cism on this case, made in his Leading Cases on Torts, p. 280. The client had done nothing but to ask for a writ ; and the court, acting judicially, granted it. The act was, therefore, the act of the judge, and not of the party. The latter, to be liable, must either have directed the execution of the writ after its issuance, or hive obtained it from the court in an irregular manner, or have participated in the execution of it. Chap. VII. §3.] FALSE IMPRISONMENT. 153 and of bis client whom he represents. 1 The consequence is, that both are there liable for false imprisonment upon the execution of the warrant, even though they take do 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 plaintiffs arrest, set aside. The}- are both liable. 8 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. 4 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 insolvencv, of which the defendants had notice. They are liable for false imprisonment; unless it can be shown that the discharge was obtained by fraud. 5 i Williams p. Smith, 14 C. 15. x. s. 596; Codrington v. Lloyd, 8 Ad. & E. 449 ; Collett v. Foster, 2 Hurl. & N. 356. See Davies v. Jenkins, 11 M. & W. 745. 2 This, in England, 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 nt the court. Everett v. Henderson, 146 Mass. 89. 3 Williams v. Smith, 14 C. I'., n. B. 596. The action was n.it sustained in this second suit, because the misrepresentations were not material. 4 See Jarmain v. Hooper, 6 Man. & 0. 827. 6 Deyo v. Van Valkenburgh, 5 Hill, 242. This is the exception 154 LAW OF TORTS. [Part II. The attorney, anil his client with him, may, in other cases also, become liable where the arrest has 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. 1 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 ; a 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 giant the warrant. But it was misconduct to ask for the warrant when it was known that the judg- ment had been discharged, unless proof could be brought 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. i Barker v. Braham, 2 W. Black. 866 ; s. c. L. C. Torts, 235. 2 Green v. Elgie, 5 Q. B. 99. Chap. VII. § 3.] FALSE IMPRISONMENT. 155 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 throughout ; the plaintiff is ' dominus litis.' False steps and misconduct 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. The proceed- iug 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. 1 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 1 Hopkins v. Crowe, 4 Ad. & E. 774. 156 LAW OF TORTS. [Part II maintainable ; the process being absolutely void. 1 Again : The defendant, a justice of the peace, procures the arrest of the plaintiff upon four convictions before him of baking 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. 2 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 ; 3 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 iufraction 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 apprehen- i Deyo v. Van Valkenburgh, 5 Hill, 242. 2 Crepps v. Durden, 2 Cowp. 640. In this case there was no arrest, but merely a levy on the plaintiffs goods for the amount of the penalty ; but the principle would be the same. 3 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 VII. § 4.] FALSE IMPRISONMENT. 157 sion 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 the law does not encourage the making of arrests in this manner ; on the contrary, in the interest of liberty, it prefers a slower and more deliberate proceeding by war- rant, issued upon solemn oath concerning 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 wan-ant, is when the arrest is made upon the spot, at the time of the breach of the peace. Such a case comes directly within the 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 158 LAW OF TORTS. [Part II. 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. 1 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. 2 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^, 4 These are my traces, which were stolen at the peace- 1 Rohan v. Sawin, 5 Cush. 281. 2 The process would justify the officer in such a case, since the granting of it would be a declaration of the judge that there exists probable cause to believe the party guilty. The term ' probable cause ' here, as in the chapter on Malicious Prosecution, is used for ' reason- able and probable cause.' Chap. VII. § 4.] FALSE IMI'KISOXMKXT. 150 rejoicing last year.' The defendant asks the plaintiff how lie came by the traces. The plaintiff replies that he saw a stranger pick them up in the road, and bought them of him for a shilling ; whereupon he is taken into custody, and, on examination before a magistrate, discharged. This does not show probable cause for the arrest, and the defendant is liable. 1 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 ; 2 in others, that it is for the court to say whether the facts proved show proper cause. 8 The point has, however, been decided in Eng- land in accordance with this latter view, though not with- out expressions of regret ; 4 making the 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 1-. Ward, 3 H. & X 417 ; s. c. L. C. Torts, 252. 2 Beckwith v. Philhy, 6 B. & C. 635 ; Rohan v. Savin, 5 Cusli. 281 ; Brock way v. Crawford, 3 Jones, 433. 8 Hill v. Yates, 8 Taunt. 182 ; Davis v. Russell, 5 Bing. 354. * Lister v. Perryinan, L. R. 4 H. L. 521, 531, 538, 539. 160 LAW OF TORTS. IPart II. ■which afterwards came to his notice. Nor, on the other hand, if his justification lie in the facts before him at the time of taking the party into custody, will his defence be overturned by evidence of facts indicating innocence, that came to his notice after the imprisonment, 1 At common law, no valid arrest without a warrant can be made for a misdemeanor, except on the spot. 2 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 and corruptly making a false affidavit in a judicial proceeding before the Honor- able W. W., judge of a court, and he takes the plaintiff into custody upon this charge, at the direction of J. M. He is liable to the plaintiff for a false imprisonment ; 8 though he would not have been, had the offence charged been a felony. And the arrest must not only have been made upon the spot ; it must also have been made, in the case of an ac- tual breach of the peace, before the breach has entirely ceased. For example : The defendant, a constable, takes the plaintiff into custody 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 plain- tiff flees and is pursued, overtaken, and arrested; the 1 See ante, pp. 62, et seq. 2 Whether and how far this may have been changed in regard to the duties of policemen in large cities cannot here be considered. 8 Bowditch v. Balchin, 5 Ex. 378. See Commonwealth v. Carey, 12 Cush. 246, 252 ; Commonwealth v. McLaughlin, Id. 615, 618. Ciiap. VII. § 4] FALSE IMPRISONMENT. 101 disturbance having previously ceased. The defendant is liable. 1 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 act-. 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. 2 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. 8 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 the defendant, on such facts, was a private citizen ; but the rule would have been the same had he been an officer, as the language of Mr. Justice Williams in that case shows. 2 Timothy v. Simpson, 1 Cromp. M. & R. 757 ; s. c. L. C. Torts, 257 ; Baynes v. Brewster, 2 Q. B. 375, 386. 3 Timothy v. Simpson, supra. 11 162 LAW OF TORTS. [Part II. such a person to make an arrest upon a warrant under the same circumstances in which an officer could do so. The rule of law in regard to arrests for 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. 1 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. 2 1 Bayiies v. Brewster, 2 Q. B. 375, 386. 2 Allen v. Wright, 8 Car. & P. 522 ; 8. c. L. C. Torts, 265. In Commonwealth v. Carey, 12 Cush. 246, 251, Chief Justice Shaw, in a dictum, states the rule thus : ' A private citizen, who arrests another on a charge of felony, does it at the peril of being able to prove a felony actually committed by the perspn arrested.' But that appears to be a mistake. CHAPTER VIII. 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 4 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. 164 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. 1 In England the parent's right of action terminates when- ever the child leaves the parent's house with intention not to return. 2 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 she pleases, receiving pay for her labor. While 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. 8 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 1 Infra, p. 166. 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. 1 Martin v. Payne, 9 Johns. 387 ; s. c. L. C. Torts, 286. Chap. VIII. § 2.] ENTICEMENT AND SEDUCTION. 165 the law, the seducer has violated no legal duty to him ; though there has been some conflict of authority in regard to the application of this doctrine to the case of a return of the daughter after the seduction, a poiut 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. For 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 ; 1 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, 2 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, 3 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 jury. 4 The father's right of action continues, as has already been intimated, after the daughter has come of age, if the 1 Hall v. Hollander, 4 B. & C. 660 ; ante, p. 134. 2 See Grinm-ll v. Wells, 7 Man. & G. 1044, note to the case. 8 Terry v. Hutchinson, L. R. 3 Q. B. 599 ; Bartley v. Richtmyer, 4 Comst. 38 ; L. C. Torts, 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 together. 166 . LAW OF TORTS. [Part II. relation of master and servant is still in operation between them. If the parent continue to exercise authority over the daughter after her majority, and she continue to 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. 1 It has been held in England that the seduction should be followed by pregnancy or disease to entitle the plaintiff to recover. 2 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 example : 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 Eager v. Grimwood, 1 Ex. 61. But see Evans v. Walton, L. R. 2 C. P. 615, 617. chap. VIII. § 2.J ENTICEMENT AND SEDUCTION. 167 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. 1 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. 2 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 ; 3 though the ready consent of the young woman might be ground for mitigation of damages, 4 es- pecially if she was notoriously a looss 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 3 Damon v. Moore, 5 Lans. 454. 4 Hogan v. Cregan, 6 Rob. 138 (N. V.), criticised in Damon v. Moore, supra. Comp. Winter v. llenn, 4 Car. & P. 494 and Forster v. Forster, 33 L. J. Prob. k M. 150 n., as to criminal conversation ; post, p. 175. 168 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. 1 The authority from which this example has been given went one step further, and decided that the mother's right 1 Gray v. Durland, 51 N. Y. 424. In Abrahams v. Kidney, 104 Mass. 222, the mother sued and recovered. Ciiap. VIII. § 2.] ENTICEMENT AND SEDUCTION. 169 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, aud 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 giviug 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. 1 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 Mass. 675 ; Worcester v. Mar- chant, 14 Tick. 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 authority is definitely settled. It is still more doubtful whether the mother of a daughter not born in lawful wedlock could maintain an action in a case like that of the text. The mother would not be even guardian for nurture 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, Ch. Div. But statutes concerning the mother's rights are coming into existence in various States. 170 LAW OF TORTS. [Part II. feudant is permitted by the plaintiff to visit bis daughter as a suitor, after notice that be is a married man and a libertine ; tbe defendant, on inquiry by tbe plaintiff as to this matter, representing tbat bis wife is an abandoned character, and tbat he will soon obtain a divorce from her, and then marry the plaintiff's daughter. The de- fendant afterwards, while continuing bis visits at the plaintiff's house, seduces the young woman. The plain- tiff is deemed not entitled to recover for the seduction. 1 § 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 parentis. The de- fendant is liable, though the young woman has property left her by her parents, and performs but slight services. 3 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 criminal conversa- tion, p. 175. 2 Manvell v. Thomson, 2 Car. & P. 303. And, as in the case of an action by the father, damages may be given beyond the value of the services. Irwin v. Dearman, 11 East, 23. Cuap. VIII. § 4.] ENTICEMENT AND SEDUCTION. 171 her wages and acting as her trustee, it is improbable that he can sue for her seduction. 1 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 confined 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. 2 § i. Ok Husband and Wife. To entice away one's wife is a civil wrong for which the offender is liable to the injured husband. 3 The gist of the action, however, is not, it seems, the loss of assistance, but the loss of the consortium of the wife, 4 which term implies an exclusive right, against an invader, to her affection, companionship, and aid 5 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 should not be overlooked. See ante, p. 163. 8 Under changes partly 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. 584 ; Jaynes v. Jaynes, 39 Hun, 40 ; Warner v. Miller, 17 Abb. N. C. 221 ; Breiman v. Paasch, 17 Abb. N. C. 249; Baker v. Baker, 16 Abb. N. C. 293 ; Mehrhoff v. Mehrhoff, 26 Fed. Rep. 13 ; Foot v. Caul, 57 Conn. 247 ; Seaver v. Adams, 19 Atl. Rep. 776. See, however, Lynch v. Knight, 9 H. L. Cas. 577 ; Van Aniam 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 ipiod consortium amisit.' 6 See 3 Black. Com. 139, 140 ; Bigaouette v. Paulet, 134 Mass. 123. 172 LAW OF TORTS. [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 plaintiff, and other insidious wiles, so prejudices and poisons the mind of the plaintiff's wife against him, and so alienates her affections from him, as to induce her to desire and seek to obtain, without just cause, a divorce ; and by his false insinuations and wiles succeeds in 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. 1 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 the husband. 2 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. 8 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. 8 See Hutcheson v. Peck, 5 Johns. 196 ; Bennett v. Smith, 21 Barb. 439. Chap. VIII. § 4.] ENTICEMENT AND SEDUCTION. 173 is no breach of duty to the husband for such a person, upon information that his daughter is treated with cruelty by her husband or is subjected to other gross indignities such as would justify a separation, to go so far as to per- suade her to depart from her husband ; though it subse- quently appear that the parent's persuasion was based on wrong information. 1 It is held that bad motives must have actuated the parent in order to make him liable. 2 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 persuading his daughter to absent herself from her husband on information justifying (if true) a divorce pr even a departure of her own motion ; though a stranger in blood would be liable. Any person who receives a married woman into his house, or suffers her to stay there, after receiving notice from the husband not to harbor her, is deemed, presump- tively, to violate a duty which he owes to the husband. 8 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 plaintiff'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. 4 1 Bennett v. Smith, 21 Barb. 439, 443. 2 Hutcheson v. Peck, supra. 8 Winsmore v. Greenbank, Willes, 577 ; s. c. L. C. Torts, 328. See Addison, Torts, 905, 4th ed. 4 Philp v. Squire, Peake, 82. 174 LAW OF TORTS. [Part II. 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 staying with him, is intended as a separation by her from her husband, and a repudiation of his claims as such. A man cannot at 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. 1 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. 2 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- 1 Winsmore 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 Winsmc re v. Greenbank. supra. Chap. VIII. § 4] ENTICEMENT AND SEDUCTION. 175 fendant taking her to his house in his wagon. The plain- tiff'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 light of the matter, and is taken to the defendant's house. The next day the defendant carries her home ; and the plaintiff brings suit for the harboring. The action is not maintainable ; the defendant not having attempted to influence the wife to leave her husband. 1 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 ; 2 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. 4 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. 5 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 into a contract 1 Schuneman v. Palmer, 4 Barb. 225. 2 Weedon v. Timbrell, 5 T. R. 357 ; Harvey v. Watson, 7 Man. & G. 644 ; Bigaouette v. Paulet, ]34 Mass. 123. 8 Weedon v. Timbrell, 5 T. R. 357. * Wilton v. Webster, 7 Car. & P. 198. 6 Harvey v. Watson, 7 Man. & G. 644. 176 LAW OF TORTS. [Pirn- II. for the support of the plaintiff's wife at his (the defend- ant's) house, the wife goes there under the agreement, and the defendant seduces her. The act is a breach of duty to the plaintiff, for which the defendant is liable. 1 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 ; 2 though it might be considered in mitigation of damages. 8 If, however, the husband was accessory to his own dis- honor, the case is different ; he could not complain of an injury to which he had consented. 4 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 plaintiff. 5 1 See Chambers v. Caulfield, 6 East, 244. "Weedon v. Timbrell has been limited to this extent. See further Barbee v. Armstead, 10 Ired. 530. 2 Bromley v. Wallace, 4 Esp. 237, overruling Wyndham v. Wy- combe, Id. 16. 8 Id. ; Rea v. Tucker, 51 111. 110. 4 'Volenti nou fit injuria.' 5 See fibber v. Sloper, cited 4 T. R. 655 ; Hodges v. Windham, Peake, 39 ; Sanborn v. Neilson, 4 N. H. 501. 1 hap VIII. § 4.] ENTICEMENT AM) SKDUCTION. 177 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. 1 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. 2 i 2 Greenleaf, Evidence, §§ 51, 56; L. C. Torts, 338. But comp. ante, p. 174. - Wilton i'. Webster, 7 Car. & P. 198 ; Bernstein v. Bernstein, 1892, 2 Q. B. 375; Powers v. Powers, 10 P. D. 171. 12 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 Ciiap. IX. § 2.] TRESPASSES UPON PROPERTY. 179 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, may, 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 the wrong committed. By statute, the owner may sue for possession and dama- ages in one action. 1 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 sufficient for the purposes of such an action. 2 He could not, however, recover damages for the loss sus- tained by reason of the disseisor's occupancy, until after a re-entry, 8 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 sulficient in all cases to enable a person to maintain an action for an entry upon the land 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. 4 It follows that one who is in possession of land under a claim of title, though without right, may re- 1 In some States, if the owner sue for possession, he must claim his damages in the same action, or he will be barred of the right to recover them. Raymond v. Andrews, 6 Cash. 265. See Leland v. Tousey, X V KKSION. 205 On the other hand, the right to the possession of the chattels is sufficient 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 ami 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. 1 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 lieu upon the animal. The de- fendant acts by direction of the owner, but without other authority. He is liable for conversion of the horse. 2 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 disturbance or refusal of his possession ; since, if the owner cannot give an authority to another to take the goods, he cannot take them himself. For example : The defendant, owner of a title-deed, in the possession of the plaintiff under a temporary right to hold it, takes it by permission of the plaintiff for a particular purpose, and then, during the continuance of the plaintiff's right to hold i Hyde v. Noble, 13 N. H. 404 ; Clark v. Rideout, 39 N. H. 238 ; Carter v. Kingman, 103 Mass. 517 2 See Outcalt v. Darling, 1 Dutch. 443. The form of action in this case was trespass, but it might as well have been trover. The injured party could sue in either form in such cases. 206 LAW OF TORTS. [Part II. it, refuses to redeliver it. The defendant has violated his duty to the plaintiff, and is liable for conversion. 1 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. 2 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. 3 That is, the defendant can deny the plaintiff's right only by showing a better right in himself. 4 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. Delamirie, 1 Strange, 505 ; s. c. L. C. Torts, 388. 3 Rogers v. Arnold, 12 Wend. 30 (suit to recover the chattels spe- cifically) ; Jefferies v. Great Western Ry. Co. 5 El. & B. 802 ; Chees- man v. Exall, 6 Ex. 341 ; L. C. Torts, 426. Does this mean that possession in itself, however obtained, will be protected, — that it can- not be showD e.g. that the plaintiff stole the property ? See ante, p. 182, note. 4 Hubbard v. Lyman, 8 Allen, 520 ; Landon v. Emmons, 97 Mass. 37. Chap. X. § 2.] CONVERSION. '207 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. "When this is the case, the possession of the article is deemed to be in the occupant of the premises, and not in the finder. The former can therefore maintain an action for conversion against the latter, should he refuse to surrender to him the chattel. For example : The defendant, a barber, re- ceives from the plaintiff, a customer in his shop, a pocket- book containing money, which the plaintiff has discovered lying upon a table in the defendant's shop. The plaintiff, in handing the pocket-book to the defendant, tells him to keep it until he can discover the owner, and then return it to the loser. No one having called for the article, the plaintiff claims it, and the defendant refuses to give it to him. This is not a breach of duty to the plaintiff, since the fact that the pocket-book was left upon the 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. 1 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. 208 LAW OF TORTS. [Part II. the same till the owner claims it. The defendant 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 tune 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. 1 The term ' possession' has the same meaning here, and indeed everywhere in the law of torts, that it has in cases of trespass. 2 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 his own right ; 3 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 witli 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. 4 The distinction between trespass and conversion consists in this, that trespass is an unlawful taking, as for the 1 Bridges v. Hawkesworth, 21 L. J. Q. B. 75. 2 Ante, p. 182. 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. 183. 4 See a qualification stated in Hollins v. Fowler, L. E. 7 H. L. 757, 768, Lord Blackburn, in regard to dealing with goods at the request of a person having actual custody of them, in the bona fide belief that such person is owner, or has the owner's authority. Chap X. § 3.] CONVERSION. 209 mere sake of removing the property, while conversion is an unlawful taking or keeping in the exercise, legally con- sidered, of the right of ownership. 1 Acts of dominion appear in two forms ; first, where the wrongdoer appropriates to himself the goods of an- other; secondly, where, without 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 authority of the owner. Every sale without restriction by a person having no right to sell is a con- version, if followed by delivery, 2 and renders the vendor liable in an action of trover. 8 For example : The defend- ant, an officer, levies upon goods as the property of a third person, some of which belong to the plaintiff, takes them away, after being informed of the plaintiff's claim, and sells the whole. This is a conversion of the plaintiff's goods ; though it would have been otherwise had the goods been mixed by the plaintiff with those of the third person, 4 and a separation not offered by the plaintiff. 6 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 i See Bushel v. Miller, 1 Strange, 129 ; Fouldes v. Willoughby, 8 M. & W. 540, 551, Rolfe, B. 2 See Consolidated Co. v. Curtis, 1892, 1 Q. B. 495, 498. 3 Quaere, whether a demand would be necessary ? See post, p. 221. * Oilman v. Hill, 36 N. H. 311. 6 See 2 Kent, Com. 365. 14 210 LAW OF TORTS. [Part II. it is done in disregard of the defendant's authority, and according to the party's own will. 1 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 part}' 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. 2 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 any one claiming under him who is not a purchaser for value without notice. 3 Inasmuch as the buyer, notwithstanding his fraud, acquired the title to the goods, he can convey that title ; and more, he can •Aldred v. Constable, 6 Q. B. 370, 381. See Somner v. Wilt, 4 Serg. & R 19 ; Stewart v. Cole, 46 Ala. 646. So to pledge the goods of another without authority. Carpenter v. Hale, 8 Gray, 157. 2 Harris v. Saunders, 2 Strobh. Eq. 370, note; Carter v. Kingman, 103 Mass. 517. See MeCombie v. Davies, 6 East, 538; Hilbery v. Hatton, 33 L. J. Ex. 190; Fowler v. Hollins, L. R. 7 Q. B. 616; 8. c. 7 H. L. 757. 3 Clough v. North-western Ry. Co. L. R. 7 Ex. 26. Chap X §3] CONVERSION. 211 convey a better right than 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 purchaser 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. 1' 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. 1 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- 1 White v. Garden, 10 C. B. 919. See for the converse case, Cundy v. Lindsay, 3 App. Cas. 459. 212 LAW OF TORTS. [Part II. tween him and his buyer. The ease would be different, however, in 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. 1 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 liability, and without subjecting himself thereto, except in either case upon a failure to produce the pledge or pawn upon tender of the debt to secure which the chattel was given. For exam- 1 Sargent 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 It. Co. 3 Gray, 545 ; Deshon v. Bigelow, 8 Gray, 159. Chap. X § 3 ] CONVERSION. 213 pie : The defendant has taken in pledge from 8 certain bonds, which 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 the original debt, 1 and before payment <>r tender thereof. The refusal of the defendant to return the bonds to the plaintiff except on tender to the defendant of the amount due to S is not a violation of duty to the plaintiff ; 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. 2 One who has a special property in goods may or may not be able to dispose of his interest therein, according to the nature of his interest. Not every special property is 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, knowdedge, or efficiency of the bailee. Such is the case (2) where the bailee has a mere lien upon the goods entrusted to him. And such is the case (3) where the bailment is at 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 suhject to redemption by the plaintiff. 2 Donald v. Snokling, L. R. 1 Q. B. 585 ; s. c. L. C. Torts, 394. To pledge, without authority, another's property held in simple bail- ment would he a very different thing. Carpenter v. Hale, 8 Gray, 157, infra, p. 216. 214 LAW OF TORTS. [Part 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 Avill ; and in this class it is clear that the 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 only 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 absolutely, however, would be different, if followed by a delivery of them. For though a bailee could not, without fault on the part of the owner (by holding him out as having a right to sell absolutely), 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. 1 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 by rendering an intended sale impracticable except at a sacrifice, the part appropriation, if wrongful, may, it seems, be a conversion of the whole. For example : The defendant, a bailee by the plaintiff of wine in casks for sale by the cask, consumes part of the wine in one cask. This may (probably) be treated as a conversion of all the wine in that cask. 2 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 Sec ante, p. 209 ; Lancashire Wagon Co. v. Fitzhugh, 6 H. & N. 502 ; Cooper v. Willoniatt, 1 C. B. 672. 2 Philpott v. Kelley, 3 Ad. & E. 106, sernble. The case was not so strong as the facts put in the example. See Clendon v. Dinneford, 5 Car. & P. 13 ; Gentry v. Madden, 3 Pike, 127. Chap. X. § 3.] CONVERSION. 215 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 the whole raft. 1 It appears to be immaterial to the 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 right to the benefit to be obtained from it in its en- tirety, where that is a special benefit. This principle would apply to cases where separate articles are delivered under one entire contract of bailment or lease, even though the articles be separately enumerated and valued. The bailment or lease is still indivisible in contemplation of law, and conversion of part may be conversion of the whole. 2 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 him. 3 For example : The defendant purchases machinery of M, the legal title to which at the time of the sale is in the plaintiffs. The machinery is sold under a levy of execution against M, and the plaintiffs, though having notice of the levy, and having repeatedly conversed about it, before the sale, with the attorney of the party who made the levy, never laid any claim to the property until after the sale. The 1 Gently v. Madden, 3 Pike, 127. 2 See Clendon v. Dinneford, 5 Car. & P. 13; Gentry v. Madden, supra. 8 Pickard v. Scars, 6 Ad. & E. 4&9 ; Stephens v. Baird, 9 Coweu, 274 , Dezell v. Odell, 3 Hill, 215. 216 LAW OF TORTS. [Part II. defendant's refusal to surrender the machinery to the plaintiff is not a breach of duty. 1 Appropriating an article held in bailment to a use not contemplated at the time of the contract of bailment and 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.' 2 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. 3 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. 4 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. 5 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. 8 Carpenter v. Hale, 8 Gray, 157. 4 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. 6 Johnson v. Weedman, 4 Scam. 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 conversion. It was held that the owner had no cause of action. The plaintiff was not entitled to recover the value of the horse, but he had a cause of action, it should seem. Chap. X. §3 J CONVERSION. 217 owner's right of property. It is true, the plain till in trover seeks to recover the value of the thiug converted, but if he has received it back, or possibly if it lias been tendered back in proper condition, 1 he will be allowed to recover no more (beyond nominal damages) than the amount of his loss. 2 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. 3 1 There is some doubt of the right to tender back the converted chattel, though it has not been injured, especially if the conversion was 'wilful.' See Hart v. Skinner, 16 Vt. 138 ; Green 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 ; Earle v. Holderness, 4 Bing. 462 ; Cook v. Hartle, 8 Car. & P. 568 ; Hewes u. 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. R. 6 C. P. 584. a Policy v. Lenox Iron Works, 2 Allen, 182, adopting the language of Heath, .1. in Bromley v. Coxwell, 2 B. & P. 438, that ' to support an 218 LAW OF TORTS. [Part II. Thus far of cases in which the defendant has appro- priated the goods in question to his own use. But, as has been stated, a wrongful act of dominion may be committed without so appropriating the goods. It is enough that the defendant has wrongfully deprived the plaintiff of the possession of 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 the plaintiff of his property permanently or for an indefinite time, there has been a conversion. 1 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- fendant was merely ' suffered ' to take and sell the property. i Hiort v. Bott, L. R. 9 Ex. 86, 89, Bramwell, B. Chap. X. § 3] CONVERSION. 219 fully deprived the plaintiff, even for a moment, of his property. 1 Any asportation of a chattel, however, for the use of a third person amounts to a conversion, for the reason that the act is inconsistent with the right of dominion which the owner (or person entitled to possession) lias in it. 2 And the same is true of an intentional, or possibly negli- gent, dest ruction of the chattel. 3 In the case of acts of co-owners (cotenauts) 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. 4 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. 5 By many other authorities it is held that a sale and delivery of the prop- erty, absolutely, would suffice. 6 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. 7 But it 1 Fouldes v. Willoughby, 8 M. & W. 540. For other examples, see Simmons v. Lillystone, 8 Ex. 431 ; Thorogood v. Robinson, 6 Q. B. 769. 2 Fouldes v. "Willoughby, supra. 8 Id. 4 Farrar v. Beswick, 1 M. & W. 682, 688, Parke, B. ; Morgan v. Marquis, 9 Ex. 14.^ ; Mayhew v. Herrick, 7 C. B. 229 ; Oviatta. Sage, 7 Conn. 95; Barton v. Burton, 27 Vt. 93; Pitt ». Petway, 12 Ired. 69. Comp. the case of trespass, ante, pp. 186-188. 8 Morgan v. Marquis, supra, Parke, B. G Weld v. Oliver, 21 Pick. 559; Wilson v. Pead, 3 Johns. 175; Dyckman v. Valiente, 42 X. 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. 7 Agnew v. Johnson, 17 Penn. St. 373 ; Fiquet v. Allison, 12 Mich. 328. See Strickland v. Parker, 54 Maine, 263. 220 LAW OF TORTS. [Part II. 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. 1 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 necessary, since without them there has been no wrongful exercise of dominion. 2 For example : The defendant collusively 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. 3 Of the last example, it should be observed that (in ac- cordance with a principle already stated) the fraud of the trader and the defendant did not make the sale void ; its only effect was to render it voidable. The contract was therefore binding until disaffirmed; and a disaffirmance could be made only by a demand of the goods, or by some act tantamount thereto. And the demand and re- fusal, that is, the conversion, must be apart from the bringing of suit, when such acts are necessary ; for the cause of action must have arisen before suit was begun. In the example given, if the defendant had sold the goods, 1 Pitt v. Petway, 12 I red. 69. 2 Chitty, Pleading, 157 ; Nixon v. Jenkins, 2 H. Black. 135. 8 Nixon v. Jenkins, supra. Chap. X. § 3.] CONVERSION. 221 or improperly detained them after a disaffirmance of the sale, the action would have been maintainable. 1 Whether a demand is necessary where property has been sold and delivered by one haying no authority to sell, has been a point of conllietof authority. The better view, however, is that the unauthorized sale and delivery are sullicient to constitute a conversion, and hence that de- mand before suit is not necessary.' 2 It is conceded that if the buyer has taken the goods away, there is a conversion. 8 A very common instance of the necessity of demand and refusal is where goods have been put into the hands of another for a special purpose, upon agreement to return them when the purpose is accomplished ; in regard to which the rule is, that a breach of the contract by the mere failure so to return the goods does not amount to a conversion. Before the bailee can be liable in trover in such a case, supposing there had been no misappropria- tion or other act of dominion, there must be a demand for the goods and a refusal to restore them. 4 An unquali- fied refusal will itself, in almost all cases, constitute a conversion. 5 A qualified refusal to deliver goods on lawful demand may, however, be only prima facie evidence of a conver- sion. 6 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 Mich. 357 ; Whitman Mining Co. v. Tritle, 4Nev. 494. Contra, Marshall 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. 8 Ely v. Ehle, 3 Conist. 506 ; Nash v. Mosher, supra ; Marshall v. Davis, supra. 4 Severin v. Keppell, 4 Esp. 156. 6 Alexander v. Southey, 5 B. & Aid. 247, 250. 6 Burroughes v. Bayne, 5 H. & N. 296 ; Alexander v. Southey, supra. 222 LAW OF TORTS. [Part II. refused to surrender them to the plaintiff until he shall have proved his right to them. It follows from what has already been said that such a refusal is justifiable, since, if the plaintiff is not entitled to the goods by right, the defendant as finder has the better claim ; and he cannot or may not know that the plaintiff may not be a pretender until he has furnished evidence that he is not. And other cases of the kind might be stated ; * the only ques- tion, where the refusal to return is qualified, is whether it is reasonable. 2 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. 3 * See Pollock, Torts, 306, 307, 2d ed. 2 Alexander v. Southey, 5 B. & Aid. at p. 250. 8 1 Chitty, Pleading, 160 ; Thompson v. Rose, 16 Conn. 71 ; White v. Demary, 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 book of which B owns the copyright, or knowing the same to be so printed, published, or imported, to sell or expose for sale any copy of such book ; and to forbear to violate the rights of B in respect of any other copyrighted matter of which B owns the copyright. 1 § 2. Of Patents. The Revised Statutes of the United States grant to patentees, their heirs and assigns, for the term of seven- teen years, the exclusive right to make, use, and vend the patented article throughout the United States and the territories thereof ; 2 and for an infringement they allow (besides bills in equity for equitable protection) an action on the case in the name of the party interested, cither as patentee, assignee, or grantee. 8 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 1 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. a U. S. Rev. Sts. § 4884. « lb. § 4919. 224 LAW OF TORTS. [Part II. narrower sense of discovery. "When therefore the word 1 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. 1 ' 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,' 2 for that would be to prevent the use of better machines for per- forming the same function or attaining the same result. 3 The processes necessary for making 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. 4 Anything to be the subject of a valid patent must, besides being the subject of invention, be new and useful. 5 i Telephone Cases, 126 U. S. 531 ; O'Reilly v. Morse, 15 How. 112 ; Walker, Patents, § 2, 2d ed. z Corning v. Burden, 15 How. 252, 268. 3 Id. « Walker, § 6 ; Mowry v. Whitney, 14 Wall. 620 ; Tilghman v. Proctor, 102 U. S. 707 ; Telephone Cases, 126 U. S. 531. s Fermentation Co. v. Maus, 122 U. S. 413, 427 ; Telephone Cases, 126 U. S. 533. Chap. XI. § 2] INFRINGEMENT OF PATENTS, ETC. 225 Having the foregoing considerations in mind, tin spe- cific subjects of patent, by tli>' laws of the United States, are the following; arts, machines, manufactur es, compo- sitions of matte r, and designs. 1 These terms air not in- tended to be used with perfect exactness, and yet within certain limits they are intended to lie 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, though 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 hy patents. Thus the word k 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. 2 Attention will now be turned to infringement. This must consist in the wrongful making, using, or vending the patented thing. 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. 8 When a person has obtained a patent for a new 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 par- 1 Walker, §§ 2, 20. * 1,1. § 17. 8 Curtis, Patents, § 289 ; Calloway v. Bleaden, "Webs. Pat. Cas. 523- 15 226 LAW OF TORTS. [Part II. tieulars 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 which 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. 1 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, but 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. 2 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, 129 U. S. 263, 273. 2 Odiorne v. Winkley, 2 Gal. 51 ; McCormick v. Seymour, 2 Blatchf. 240 ; Blanchard v. Beers, Id. 418. Chap. XI. §2.1 INFRINGEMENT 01 PATENTS, ETC. 227 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. 1 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 hitter'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, by 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. 2 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 might be due merely to superior construction upon 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. 8 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. 4 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. 3 Waterbury Brass Co. V. Miller, 9 Blatchf. 77 ; Chicago Fruit House Co. v. Busch, 2 Biss. 472. 4 Id. ; Gray v. James, Peters, C. C. 394 ; Pitts v. Wemple, 1 Biss. 228 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 their mechanical equiva- lent, there is no infringement. 1 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 return circuit ; the plaintiffs having a patent for giving signals by means of electric currents transmitted through metallic currents. The machinery, aside from the return circuit, used by the defendant is the same as that covered 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. 2 AY here, 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 ; Elizabeth v. Pavement Co. 97 U. S. 326, 137 ; Morley Machine Co. v. Lancaster, 129 U. S. 263. 1 Cases just cited. * Electric Tel. Co. v. Brett, 10 C. B. 838. Chap. XI. §2] INFRINGEMENT OF PATENTS, ETC. 229 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. 1 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 have 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, by excluding all others, the case will be different, and there will be no infringement in the use of any of such other equivalents. 2 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. 3 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 Byam v. Farr, 1 Curtis, C. C. 260 ; Woodward v. Morrison, Holmes, 124, 131 ; Tyler v. Boston, 7 Wall. 327. 3 Gorhain v. White, 14 Wall. 511, 528. 230 LAW OF TOUTS. [Part II. observer, will not destroy the substantial identity. An engraving which has 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. 1 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 ; 2 and perhaps substantial damages should the act be repeated. 3 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. 4 ' Gorham Co. v. White, 14 Wall. 511. 2 Whittemore v. Cutter, 1 Gal. 429. 3 Compare the rule in trespass to land, ante, p. 192, note. * Parker v. Haworth, 4 McLean, 370, 373 ; Bate Refrigerator Co. v. Gillett, 31 Fed. Rep. 809, 815. Chap. XI §2.] INFRINGEMENT OF PATENTS, ETC. 231 Any one may, without license, make a patented article for mere experiment, or for the purpose of ascertain- in g the sufliciency of the thing to produce the effects claimed for it, or perhaps when it is made for mere amusement, or as a model. 1 But it must not be exposed for sale, nor must it have been made for the purpose of pecuniary profit, though experiment was also part of the purpose. 2 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 sheriff, having an execution against the plaintiffs, levies upon and sells the 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. 3 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. D. 48. See Whittemore v. Cutter, 1 Gal. 429 ; Sawin v. Guild, id. 485 ; Jones v. Pearce, Webs. Pat. Cas. 125. 2 Smith Manuf. Co. v. Sprague, 123 U. S 249, 256. 8 Sawin v. Guild, 1 Gal. 485. 232 LAW OF TORTS. [Part II. a new and improved process, by which any product or manufacture before known in commerce 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 inquire whether it was made on a patented machine or by , a patented process. 1 But, if the patentee be the inventor or discoverer of a new manufacture or composition of mat- ter not known or used by others 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 right 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. 2 Finally, the Revised 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 4 patentee,' or the words l letters-patent," or any word of 1 See ante, p. 224. 2 Goodyear v. Railroad, 2 Wall. C. C. 356. Chap. XI. § 3 ] INFRINGEMENT OF PATENTS, ETC. 233 like import, with intent to imitate or counterfeit the mark or device of the patentee, without having the license or consent of such 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 he liable for every such offence, to a penalty of not less than one hundred 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. 1 § 3. Of Thade 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, 2 assimi- lated to the law of property. The old mode of suing for deceit is falling into disuse as a remedy for infringing a trade mark, in the light of the better remedy afforded by 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. 8 The subject, with this suggestion, must then be dropped in this connection ; for while an ample remedy is provided upon the footing of a property right in the trade mark where damages are not sought, it is to be borne in mind thai this book is a treatise relating to actions for dam- i Rev. Sts. § 4901. 2 Ante, p. 50, note. 8 See Reddaway v. Beiithaia Hempspinning Co., 1892, 2 Q. B. 639, 644, 646. 234 LAW OF TORTS. [Part II. ages. 1 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 the United States or resident therein, 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, 3 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 witli certain preliminary requirements, the sole liberty of printing, reprinting, pub- lishing, completing, copying, executing, finishing, and vending the same ; and, in the case of a dramatic com- position, of publicly performing or representing it, 4 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. 5 1 See Cooley, Torts, 423-430, 2d ed. The authority of Congress over trade marks is limited. Trade Mark Cases, 100 U. S. 82. Not so of the State legislatures. 2 See Burrow Lithographic Co. v. Sarony, 111 U. S. 53, showing that the photograph should represent an original conception. 8 Parton v. Prang, 3 Cliff. 537. * See The Iolanthe 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. CBAP. XI § 4.] INFRINGEMENT OF PATENTS, ETC. '!■)■; The copyright is to be good for twenty-eight years, with the right of renewal for fourteen years more. 1 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 any book, or know- ing the 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. 8 To the author of copyrighted matter thus belongs the exclusive right to take all the profits of publication which the sale of the copyrighted matter may produce. And the author's exclusive right extends to the whole copy, and. in a sense, to every part of it. 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. 8 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 » Id. §§ 4953, 4954. 8 U. S. Rev. Stfl. § 4964. The author has property at common law in his manuscript. Wheaton v. Peters, 8 Peters, 591, 657. (As to let- ters, see Perceval v. Phipps, 2 Ves. & 15. 19.) But copyright is a matter of statute purely. Id. ; Albert v. Strange, 1 Macn. & G. 25. The author of class-room lectures will he protected at common law against unauthorized publication. Caird v. Sime, 12 App. Cas. 326. 8 Clement v. Maddick, 1 Gitf. 98. 236 LAW OF TORTS. [Part 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. 1 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, 2 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. 8 It may be doubtful if any part of the work of another may be taken animo furandi. 4 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. Davies, 3 Story, 768. 3 Bramwell v. Halcomb, 3 Mylne & C. 737 ; Bradbury v. Hotten, L. R. 8 Ex. 1. 3 See Wheaton v. Peters, 8 Peters, 591 ; Saunders v. Smith, 3 Mylne & C. 711 ; Sweet v. Sweet, 1 Jur. 212 ; Sweet v. Benning, 16 C. B. 459. * Mr. Godson thinks it cannot. Patents and Copyrights, 216. Mr. Curtis, contra. Copyrights, 251, note. Chap. XI. §4.] INFRINGEMENT OF PATENTS, ETC. 237 the value of the original, an infringement has been com- mitted. 1 It is not only quantity, but value also, that must be taken into the consideration. 3 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 the extent to which the use may preju- dice the sale or diminish the profits, or supersede the objects of the original work. 3 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. 4 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. 5 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, 7 — not perhaps as a whole, but quoad hoc. 8 1 Bramwell v. Halcomb, 3 Mylne & C. 737 ; Saunders v. Smith, Id. 711. 2 Id. 8 Folsom v. Marsh, 2 Story, 100. * Id. 100. 6 Curtis, Copyright, 245 ; Folsom v. Marsh, 2 Story, 100. « See Wilkins v. Aiken, 17 Ves. 422, 424. 7 Eoworth v. Wilkes, 1 Campb. 94. 8 Curtis, 246. note. 238 LAW OF TORTS. [Part IL la regard to imitations of the whole or part of a copy- righted work, the difficulty of determining 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. 1 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. 2 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. 3 It is to be observed, therefore, that it does not follow that because the same sources of information are open to 1 Trusler v. Murray, 1 East, 363, note ; Emerson v. Davies, 3 Story, 768, 793. 2 Emerson v. Davies, supra. 8 Id. Chap. XL §4.] INFRINGEMENT OP PATENTS, ETC. 239 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 all 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 surveys of the re- gion. This is an infringement of the plaintiff's copyright, though the means used by the plaintiff for making his map were open to all persons alike. 1 The next case is that of abridgments ; the rule of law in England as to which is said to be, that a fair abridgment, when the understanding is employed in retrenching unne- cessary circumstances, is not a piracy of the original work. Such an abridgment is allowable as constituting a new work.' 2 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 whether 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, 8 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- i See Gray v. Russell, 1 Story, 11, 13. 2 Copinger, Copyrights, 101. 3 Gray v. Russell, 1 Story, 19. 240 LAW OF TORTS. [Part II. 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. 1 Digests of larger works fall under the head 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. 2 It is not an infringemeut of a copyright, by the Ameri- can law, to translate, without license of the author, a copyrighted work into a foreign language ; 3 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 trauslation 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, aud having 1 2 Story, Equity, § 939. See also Story v. Holcombe, 4 McLean, 306. 2 See the remarks of Lord Lyndhurst in D'Almaine v. Boosey, 1 Younge & C. 288, a case of infringement of a copyrighted musical composition. 8 Stowe v. Thomas, 2 Wall. C. C. 547, Chap. XI. § 4.] INFRINGEMENT OF PATENTS, ETC. 241 procured a copyright upon her translation. The defend- ant has violated no duty to the plaintiff. 1 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. 8 1 Stowe v. Thomas, supra. See Shook v. Rankin, 6 Riss. 477. 2 U. S. Rev. Sts. § 4967. See Perceval v. Phipps, 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. 1 But of course a right to remove the support may be acquired by grant, 2 though 1 Bonomi v. Backhouse, El., B. & E. 622, 646 ; s. c. 9 H. L. Cas. 503. See Darley Colliery Co. v. Mitchell, 11 App. Cas. 127. 2 Rowbotham v. Wilson, 8 H. L. Cas. 348. Chap. XII. § 2.] VIOLATING RIGHTS OF SUPPORT. 243 not by custom or prescription, because that, it is said, would be oppressive and unreasonable. 1 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 ; 2 but damage being caused by the removal of support, a right of action arises. For 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 into the pit. This is a breach of duty to the plaintiff, for which the defendant is liable in damages. 3 The doctrine, however, goes no further than to sustain a right of action for the sinking of laud 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 i Hilton v. Granville, 5 Q. B. 701 ; Wakefield v. Buccleuch, L. R. 4 Eq. 613. 2 Bonomi v. Barkhonse, snpra. 3 Thurston v. Hancock, 12 Mass. 220 ; s. c. L. C. Torts, 527. See Gilmore v. Driscoll, 122 Mass. 199. Some doubt was cast upon this doctrine in a dictum in Radcliff v. Brooklyn, 4 Comst. 195, 203, on the ground that it might interfere in citips with the use of property. 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. 1 244 LAW OF TORTS. [Part II. premises being located on the side of a hill, it becomes necessary for the plaintiff to vacate his house, and to take it down, to prevent it from sliding into the defendant's pit. The defendant is not liable, since it was the plain- tiff's own folly to build so near the line. 1 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. 2 In this country the right cannot, it seems, be acquired by prescription. 8 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. 4 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. 6 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 1 Thurston v. Hancock, supra ; Caledonian Ry. Co. v. Sprott, 2 Macq. 449 ; Partridge v. Scott, 3 M. & W. 220. 2 Dalton v. Angus, 6 App. Cas. 740 ; infra, p. 246. » 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. 4 Richart v. Scott, 7 Watts, 460 ; Dodd v. Holme, 1 Ad. & E. 493. 6 See Murchie v. Black, 34 L. J. C. P. 337. Thap. XII. § 2.1 VIOLATING RIGHTS OF SUPPORT. 245 of his loss. 1 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. 2 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, he 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. 8 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 twenty 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 Mo. 566, 574 ; Schrieve v. Stokes, 8 B. Mon. 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. 246 LAW OF TORTS [1'akt II 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. 1 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 purchase 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 ; Lemaitre v. Davis, 19 Ch. D. 281. Not by prescription, Tunstall v. Christian, 80 Va. 1. See also Gilniore v. Driscoll, 122 Mass. 199, 207. Chap. XII. § 2] VIOLATING RIGHTS OF SUPPORT 247 defendant's act in weakening the support of the plaintiff's house is a In-each of duty, and the defendant is Liable. 1 Hut 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. 2 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. 8 There appears to be no obligation resting upon the owner of a house towards his neighbor in the adjoiniug tenement to keep his house in repair (further thau to pre- vent the same from becoming a nuisance) 4 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 ruin- 1 Richards v. Rose, 9 Ex. 218. 2 Peyton v. London, 9 B. k C. 725. 3 Solomon v. Vintners' Co., 4 H. & N. 585. 4 Comp. Giles v. Walker, 24 Q. B. D. 656, as to care of premises on which thistles grow. 248 LAW OF TORTS. [Part II cms 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. 1 If either of the cotenants of a party- wall 2 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 land, 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. 3 To pull the wall down without intending to replace it would be evidence of an ouster, for which an action could be maintained. 4 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. 2 For the different kinds of party-walls, see Watson v. Gray, 14 Ch. D. 192 ; Weston V. Arnold, L. R. 8 Ch. 1084. 8 Standard Bank v. Stokes, 9 Ch. D. 68. * Jones v. Read, 10 Ir. R. C. L. 315, Ex. Ch. Chap. XII. § 2.] VIOLATING BIGHTS OF SUPPORT. 249 The defendant is liable to the plaintiff for the damage thus caused, though the said operation were carried on pru- dently and carefully. 1 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. 2 On the other hand, either may run up the wall to any height, provided no damage be thereby done to the other. 8 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 land of the owner, it is clear that no such right can exist except by grant or possibly by prescription. Any attempt by 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 (probably) 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. 4 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. 8 Matts v. Hawkins, 5 Taunt. 20 ; Brooks v. Curtis, 50 N. Y. 639, 644. See Dauenhauer v. Devine, 51 Texas, 480. « See L. C. Torts, 555. 250 LAW OF TORTS. [Part II. 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 case would clearly be different if the wall were owned in common by the adjoining proprie- tors, since, as has elsewhere been observed, 1 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. 2 § 3. Of Subjacent Support. While 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 riotit of access to the same, to work therein and remove the contents. 8 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 i Ante, p. 186. 2 Stedman v. Smith, 8 El. & B. 1. s Humphries v. Brogden, 12 Q. B. 739; s. c. L. C. Torts, 536; Wilkinson v. Proud, 11 M. & W. 33. Chap. XII. § 3.] VIOLATING RIGHTS OF SUPPORT. 251 underlying the plaintiff's close, upon which there are no buildings, in the careful and usual manner of winking 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. 1 It is laid down that there is a difference between rights of support against a subjacent owner of laud 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, reservation, 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 sullicient 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. 2 The support required, in the absence of grant or pre- scription, appears, however, to be merely a reasonable 1 Humphries v. Brogden, supra. 2 Richards v. Jenkins, 18 Law T. N. s. 437. Of course, if the build- ings would have fallen without the act of the defendants, they would not be liable for the damage to them. 252 LAW OF TORTS. [Part II. 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. 1 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. Cas. 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 purposes, 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 : Each proprietor is entitled to the enjoyment of the water ex jure naturae, as a natural incident to the ownership of the land. 1 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.' 2 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 Embrey v. Owen, 6 Ex. 353, 369, Parke, B. 2 Id. ; Sampson v. Hoddinott, 1 C. B. N. s. 590. 254 LAW OF TORTS. [Part II. right by grant, or by prescription, just as an entry upon land without license is actionable. 1 And this view has been urged in England. 2 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 affect its volume. Without such an act, the usufruct is not interfered with, and the right of other proprietors has not been infringed. 8 It is only for an unreasonable use that an action will lie. 4 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. 5 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 Wheatley v. Chrisman, 24 Penn. St. 298. See Crooker v. Bragg, 10 Wend. 260. 2 See the arguments in Embrey v. Owen, 6 Ex. 353. 8 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. 8. 590. 4 Embrey v. Owen, supra. 6 Elliot v. Fitchburg R. Co. 10 Cush. 191 ; s. c. L. C. Torts, 509 *, Miner v. Gilmour, 12 Moore, P. C. 131. Chap. XIII. § 2] VIOLATION OF WATER RIGHTS. 255 able time. 1 For example : The defendant, an upper riparian owner, diverts much water from the stream into a reservoir, and delays it thereto supply a factory; this being an extraordinary use of the stream. The act is a breach of duty to the plaintiff, a lower owner. 2 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. 8 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. 4 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. * Elliot v. Fitchburg R. Co. 10 Cush. 191 ; L. C. Torts, 509. See also Seeley v. Brush, 35 Conn. 419 ; Chatfield v. Wilson. 31 Vt. 358 ; Gerrish v. New Market Manuf. Co. 30 N. H. 478, 483 ; Dilling v. Murray, 6 Ind. 324. 256 LAW OF TORTS. [Fart II. effect it may have, in case of deficiency, upon those lower down. 1 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 the 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. 2 The water of a stream running wholly within a man's land may be diverted, if it be returned to its natural chan- nel before reaching the lower proprietor ; 8 and this could perhaps be done where the water runs between the lands of riparian occupants, so far as the rights of parties lower down are concerned. The only person entitled to com- plain of such an act would be the opposite proprietor. : Miner v. Gilmour, 12 Moore, P. C. 131 ; Wood v. Waud, supra ; Evans v. Merriweather, 3 Scam. 492, 495 ; Fleming v. 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 Davis v. Getchell, 50 Maine, 602 ; Merrifield v. Worcester, 110 Mass. 216 ; Hayes v. Waldron, 44 N. H. 580; Pool v. Lewis, 41 Ga. 162 ; Timm v. Bear, 29 Wis. 254 ; Clinton v. Myers, 46 N. Y. 511. The statutes with regard to mill-streams should, however, be noticed. 8 Miner v. Gilmour, supra ; Tolle v. Correth, 31 Texas, 362. Chap. XIII. § 2] VIOLATION OF WATER RIGHTS. 257 It is to be observed, however, that the foregoing 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. 1 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 laud, 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. 2 In the Pacific States the law is peculiar. There he whc 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. 8 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. 4 1 Broadbent v. Ramsbothani, 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. Ramsbotham, supra ; Rawstron v. Taylor, 11 Ex. 369. 8 Smith v. O'Hara, 43 Cal. 371. 4 Id. As to what is a due appropriation, see Weaver v. Eureka Lake Co. 15 Cal. 271 ; McKinney v. Smith, 21 Cal. 374. 17 258 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 above ground. 1 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 land-owners to the use of the water. The plaintiff has previously for more than sixty years enjoyed the use of a stream (for milling purposes) which was chiefly supplied by 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. 2 1 Dickinson v. Grand June. Canal Co. 7 Ex. 282. 2 Chasemore v. Richards, 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 right to the land itself. Id. Further see Chase v. Silverstone, 62 Maine, 175 ; Wilson v. New Bed- ford, 108 Mass. 261 ; Frazier v. Brown, 12 Ohio St. 294; Hanson v. McCue, 42 Cal. 303. In New Hampshire the right to cut off percolat- ing 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. As to polluting streams, see post, pp. 264, 265. CHAPTER XIV. 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 the ordinary, natural use of his own, to flood the land of B with water collected upon his own laud, or by changing the course of currents ; 1 (3) to for-' bear to cause or suffer the existence upon his own premises of anything not naturally there which causes damage to B ; (4) to forbear so to use his own premises as to endanger the life or impair the health of B, or to disturb his physical comfort in a material degree in the use of his (A's) premises. 1. Public nuisances are indictable nuisances, being committed (1) in the public ways or waters, or (2) on private premises to the prejudice of the general public. 2 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. 264. 2 ' If a person erects on his own land anything whatever calculated to interfere with the convenient use of the road, he commits a nuisance.' Stephen, J. in Brown v. Eastern Ry. Co. 22 Q. B. Div. 391, 392, case of a heap of dirt by the roadside. Negligence is not necessary. Hauck v. Tide Water Co., 153 Penn. St. 36b" ; Rapier v. London Tramways Co., 1893, 2 Ch. 588, 600. 260 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, 1 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 1 An explosion might be a consequence of a nuisance, however. Cuap. XIV. § 2.] NUISANCE. 261 to ruin his neighbor's property, provided only his business was carefully conducted in a locality convenient for its management. 1 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. 2 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. 8 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. Turnley, 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; 8. c. L. C. Torts, 454. 8 St. Helen's Smelting Co. v. Tipping, supra. See also Broadbent r. Imperial Gas Co., 7 De G. M. & G. 436; s. c. 7 H. L. Cas. 600. 262 LAW OF TORTS. [Part II. his 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 his 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 another, and the result of that occupation is a visible injury to property, the case is different. 1 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. 2 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. 3 Subject to any annoyance which may result from the right which every landowner has to the ordinary and i Lord Westbury in St. Helen's Smelting Co. v. Tipping. 2 Bliss v. Hall, 4 Bing. N. C. 183 ; Baniford v. Turnley, 3 Best & S. 62, 70, 73 ; L. C. Torts, 467. 6 Bliss v. Hall, supra. Chap. XIV. § 2.] NUISANCE. 203 natural use of his premises, it is held by high authorities that no one may turn water from his own land back upon that of his neighbor without having acquired a right so to do by statute or by grant or prescription ; 1 and this though the water thrown back comes of natural rainfall. 2 Such an act might by these authorities be treated as a trespass, and therefore should be redressible though no damage had been sustained ; for otherwise a right to send the water there might eventually be accpuired by prescrip- tion, to the substantial confiscation of the particular piece of land. For example : The defendanl 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. 8 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 laud, collects the surface water of his premises into a 1 Hurdman v. Northeastern Ry. Co. 3 C. P. Div. 168 ; Whalley r. Lancashire Ry. Co. 13 Q. B. Div. 131 ; Tootle v. Clifton, 22 Ohio St. 247. See also Martin v. Rukfle, 26 Penn. St. 415; Kauffmanfl. Giese- mer, Id. 407 ; Ogburn v. Connor, 46 Cal. 346 ; Laumer v. Francis, 23 Mo. 181. Contra, by other authorities. See infra. 2 Hurdman v. Northeastern Ry. Co. supra. 8 Tootle v. Clifton, 22 Ohio St. 247. This, it should be observed, is not the case of bringing water, as by means of a reservoir, upon one's land (Rylands 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. 2C4 LAW OF TORTS. [Part IL drain or ditch, and thereby greatly increases the quan- tity, or changes the manner, of the flow upon the lower lauds of the plaintiff, to his damage. The defendant is liable. 1 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 land 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. 2 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 the thing has been acquired by statute or by grant or prescription. 3 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 v. McDonald, 21 Iowa, 160. 2 Gannon v. Hargadon, 10 Allen, 106 ; Dickinson v. Worcester, 7 Allen, 19 ; Swett v. Cutts, 50 N. H. 439 ; Brown v. Collins, 53 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. J NUISANCE. 265 so far as the effect is the necessary result of the system of drainage adopted by the city ; but it is otherwise if the pollution is attributable to the negligence of the city either in managing the system or in the construction of sewers, 1 or if the right is exceeded. The right, whether statutory or otherwise, must be exercised in a reasonable and proper way. 2 For milling and other purposes, for which some large or special use of the water of a stream is required, statu- tory rights are often granted, under various restrictions, to flood the lands lying along the mill-streams, or to foul the water ; for the nature of which rights reference should be made to the statutes and 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. 8 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 necessary supply and reasonable use of himself and family; but by the terms ' untainted ' and 'unpolluted' are meant, not necessarily air as fresh, free, and pure as existed before the business in question was begun, but air 1 Merrifield v. Worcester, supra. See Blyth v. Birmingham Water- works Co. 11 Ex. 781, to the same effect in regard to the escape of water. 2 B-axendale v. McMurray, L. R. 2 Ch. 700. 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. 402. 8 See St. Helen's Smelting Co. v. Tipping, 11 H. L. Cas. 642. 266 LAW OF TORTS. [Part IL not rendered to an important degree less compatible, or certainly not incompatible, with the physical comfort of human existence. 1 The criterion, therefore, of liability for a supposed (private 2 ) 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 or dainty modes and habits of living, but according to plain and simple modes of life. 3 On the other hand, it is not necessary that health should be impaired. For example : The defendant erects upon his premises, adjoining the 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. 4 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 » Walter v. Selfe, 4 De G. & S. 315. 3 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. Selfe is careful to say that a private nuisance is there spoken of. 8 Walter v. Selfe, supra. See also Rapier v. London Tramways Co., 1893, 2 Ch. 588, 600 ; Crump v. Lambert, L. R. 3 Eq. 409 ; affirmed, 17 L. T. N. s. 133 ; Columbus Gaa Co. v. Freeland, 12 Ohio St. 392. * Walter v. Selfe, supra. Chap. XIV. § 2.] NUISANCE. 207 neighborhood is a nuisance, for which damages are re- coverable. 1 lint the provisions of statute in regard to such annoyances, arising from the carrying on of a law- ful business, should always be examined.' 2 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 indecency. If the disturbance, while affecting the plaintiff's mind disagreeably and seriously, would cot 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. 8 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 navigable 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. 4 ~D* 1 Crump v. Lambert, supra. 2 In regard to smoke, under statutory provisions, see Cooper v. Woolley, L. R. 2 Ex. 88 ; Smith v. Midland Ky. 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 Peun. St. 401, cases 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. 268 LAW OF TORTS. [Part II 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. 1 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 cany on a large business as auctioneers near a coffee-house kept by the plaintiff in a narrow street in London. 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. 2 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 ; Milhau 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. 2 Benjamin v. Storr, supra. Chap. XIV. § 2.] NUISANCE. 269 and his house shaken so as to be uncomfortable for occu- pation. This is a breach of duty to the plaintiff, for which he is entitled to damages, though every one else in the vicinity suffers in the same manner. 1 It is, however, a difficult matter to state what sort of detriment will amount to special damage within the law of public nuisances. It appears to be necessary in the case of obstructions of public ways or waters that a particular user had been begun by the plaintiff, and that such user was interrupted by the wrongful act of the defendant. 2 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 oflicer, 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. 8 Such a case 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, 4 since he has not 1 Wesson v. Washburn Iron Co. 13 Allen, 95. 2 See Rose v. Miles, 4 Maule k S. 101 ; s. c. L. C. Torts, 460. 8 Ante, p. 262. 4 ' Volenti non fit injuria.' 270 LAW OF TORTS. [Part II. consented to the act complained of, or invited its consequences. He may have reason to suppose that the obstruction will be removed before he reaches it; or, if not, he may well say that it is wrongful, and must be removed before he reaches it, on pain of 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. 1 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. 2 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 i Winter-bottom v. Derby, L. R. 2 Ex. 316. 2 Houck v. Wachter, 34 Md. 265. Contra, Brown v. Watrous, 47 Maine, 161. Chap. XIV. § 2] NUISANCE. 271 example : The defendant, by raising the water of his dam, floods a highway and renders it impassable ; this highway furnishing the only means of reaching part in use of the plaintiffs farm. The defendant is deemed to be liable. 1 1 Venard v. Cross, 8 Kans. 248. CHAPTER XV. DAMAGE BY ANIMALS. § 1. Introductory. Statement of the duty. A owes to B the duty to pre- vent his 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. Op Notice of Propensity to do Damage. Whoever keeps an animal with notice that it has a pro- pensity to do damage is liable to any person who, without fault of his own legally contributing 1 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. 2 1 As to this term, see post, pp. 332 et seq. 2 May v. Burdett, 9 Q. B. 101 ; s. c. L. C. Torts, 478. See Jack- son v. Smithson, 15 M. & W. 563 ; Card v. Case, 5 C. B. 622 ; Popple- well v. Pierce, 10 Cush. 509 ; Oakes v. Spaulding, 40 Vt. 347. Chap. XV. § 2.] DAMAGE BY ANIMALS. 273 If the animal be ferae naturae, it will (probably) be pre- sumed that the defendant had notice of :iny vicious pro- pensity whereby the plaintiff has suffered injury, since it is according to the nature of such an animal to do damage. 1 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. 2 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. 8 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. 4 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. 5 While, however, negligence in the owner of the animal 1 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. 4 Cox t. 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. 18 274 LAW OF TORTS. [Part II. is not necessary to constitute a breach of duty when the ' scienter ' can be proved, negligence in the care of the animal will (probably) render the owner liable, though he did not know of the propensity. It must at the same time be understood that the right of redress of the injured person will be defeated if the injury was caused by his own fault. A person who irritates an animal, and is bitten or kicked in turn, is deemed to have proximately caused the damage sustained, and so cannot recover. But if the fault of the injured party had no necessary or natural connection with the injury, operat- ing to produce the injury as cause produces effect, the owner of the animal will be liable. For example : The defendant keeps upon his premises a ferocious dog, and the plaintiff, having no notice that such a dog is there, trespasses in the day-time upon the premises, and the dog rushes upon him and bites him. The defendant is liable ; l since it is not the necessary or natural and usual conse- quence of a person's trespassing upon a man's premises by day that he should be attacked by a savage dog. If, however, the plaintiff had notice that the vicious animal was loose upon the premises, the case would be different, since it would be the natural and usual result of trespassing upon the land that the animal would attack the trespasser. And if a person were to venture upon another's premises in the country as a trespasser in the night-time, it might perhaps be considered that he had entered with notice of danger, since it is not unusual for people in the country to keep watch-dogs upon their lands. But, if the trespasser were not engaged in mischief or rea- sonably suspected of mischievous intent, the owner would have no right to set his dog upon him before giving him notice to leave the premises, even if he would after notice ; for unnecessary injury done to a man or even to his beast, 1 Loomis v. Terry, 17 Wend. 496. Chap.XV. §3.] DAMAGE BY ANIMALS. 275 though trespassing, cannot be justified. 1 Necessary force to resist the entry, or to eject the trespasser alter his wrongful entry, is the utmost which the law allows the owner or occupant of the premises. 2 § 3. Of Escape of Animals. By the common law of England and of most of our States the owner of laud is bound to keep it fenced ; and if his animals escape and get into his neighbor's prem- ises, he is liable for the very act as for trespass, 3 whether the escape was owing to his negligence or not. 4 The same is true indeed though the defendant's animals may not have escaped from his enclosure; if still an animal commit damage, by putting part of its body over, through, or beyond the boundary line, the defendant will be liable regardless of negligence. For example : The defendant's horse bites and kicks the plaintiff's horse through the partition fence between the plaintiff's and defendant's premises. The defendant is liable, though not guilty of negligence. 5 1 See Looniis v. Terry, supra. Trespassing animals should not be injured unnecessarily. See ante, p. 202. 2 This would be another way also of explaining the right of the trespasser to recover when, having entered without notice, he is attacked and bitten by the dog without the direct command of the owner. Conip. the cases of injury by spring-guns. Bird v. Holbrook, 4 Bing. 62S ; Ilott v. Wilkes, 3 B. & Aid. 304 ; Wootton v. Dawkins, 2 C. B. K. s. 412. 8 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. Secus of escape from highway along which cattle are being lawfully driven, and from which they stray. In such cases liability turns upon negligence. Goodwin v. Cheveley, 4 H. & N. 631; Tillett v. Ward, 10 Q. B. D. 17, where an ox strayed into a shop. 4 Myers v. Dodd, 9 End. 290 ; Webber v. e'losson, 35 Maine, 26. 5 Ellis v. Loftus Iron Co. supra. 276 LAW OF TORTS. [Part II. The common-law rule, however, has been variously modified by statute in this country ; and in some of the Western States it is held inapplicable to the condition of things. 1 1 3 Kent, 438, note 1, 13th ed. ; Kerwhacker v. Cleveland R. Co. 3 Ohio St. 172. CHAPTER XVT. 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 15, 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. 1 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. Richards, 7 H. L. Cas. 349. 278 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. 1 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 personally 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 liable. 2 i Rylands v. Fletcher, L. R. 1 Ex. 265, Ex. Ch. ; L. R. 3 H. L. 330. The decision of the Court of Exchequer (3 H. & C. 774) was reversed. See National Telephone Co. v. Baker, 1893, 2 Ch. 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 Shipley 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. XVI. § 2.] ESCAPE OF DANGEROUS THINGS. 279 The owners of the upper tenement have, however, as has already been intimated, in such cases, a right to work their premises in the ordinary, reasonable, and proper manner, and are not liable for the effects of water which flows down into the lower tenement by mere force of gravitation. But where some unusual and extraordinary effort is put forth for effecting the occupant's purpose, the owner is liable for the injurious results which follow. 1 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. 2 Again : The defendant, under the like circumstances, does not merely suffer the water to flow through his mine in its natural way, but, in order to work his mine beneficially, pumps up quantities of water which pass into the plaintiff's mine, in addition to that which would naturally have reached it, whereby the plain- tiff suffers damage. This is a breach of duty to the plain- tiff, though it is done without negligence, and in the due working of the defendant's mine. 8 If the damage be produced by vis major or by the act of God, 4 or otherwise, without the intervention of acts questioned, but Nichols v. Marsland [L. R. 10 Ex. 255, 2 Ex. Div. 1], has practically empowered juries to mitigate the rule, whenever its operation seems too harsh.' Id. p. 428, 2d ed. 1 Id. ; Fletcher v. Smith, 2 App. Cas. 781 ; Baird v. "Williamson, 15 C. B. N. s. 376. 2 Smith v. Kenrick, 7 C. B. 515, 564. 8 Baird v. Williamson, supra. 4 Nichols v. Marsland, L. R. 10 Ex. 255 ; s. c. 2 Ex. Div. 1, show- 280 LAW OF TORTS. [Pakt II. or omission of duty by the occupant or those for whom he is l'esponsible, the case will be different. In the example given, if the damage had been caused by lightning burst- ing the reservoir, 1 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. 2 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. 3 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. 4 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. 2 Carstairs v. Taylor, L. R. 6 Ex. 217 ; Ross v. Fedden, L. E. 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. 31. * See Vaughan v. Taff Vale Ry. Co., 5 H. & N. 679. Chap. XVI. § 2.] ESCAPE OF DANGEROUS THINGS. > 1 water tanks in his district for purposes of irrigation, as part of a national system of irrigation, for the 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. 1 On the other hand, if the works be of a nature to require legislative sanction, the proprietor or manager, when 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. 2 The foregoing is the law of England. The American law can hardly be said as yet 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 by 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. 8 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. * Jones v. Festiniog Ry. Co., L. R. 3 Q. B. 733 ; Vaughan v. Taff Vale Ry. Co., supra. 8 Shipley v. Fifty Associates, 106 Mass. 194. 282 LAW OF TORTS. [Part II. thoroughly constructed that the water cannot percolate through them. 1 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 their land, for which purpose they are clothed with legislative authority, 2 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. 3 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. 4 The use of a boiler is not necessarily dangerous. 5 » 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. 8 Hay v. Cohoes Co., 2 N. Y. 159. 4 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 seq. PART III. BREACH OF DUTY TO REFRAIN FROM NEGLIGENCE. CHAPTER XVII. NEGLIGENCE. § 1. iNTEtODUCTOUY. Statement of the duty, if any. A, by negligence having caused damage to 13, without B's fault, 1 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 necessary to the action ; namely, that the de- fendant owed a duty to the plaintiff not to be negligent.' 2 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 1 In some States the plaintiff must show that he was not in con- tributory fault, in order to recover. 2 Membury v. Great Western Ry. Co., 14 App. Cas. 179, 190. 286 LAW OF TORTS. [Part III. general, and, secondly, assuming negligence, whether the negligence (and damage) amounted to a breach of duty to the plaintiff. Damage, so far as it raises a question of law, will receive examination in the closing sections of the chapter. § 2. Of the Legal Conception of Negligence in General. Necdi»ence 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 way, 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? 1 But rashness stands upon a special footing in certain cases, sometimes creating liability, as will later appear, when negligence in the popular sense would not. That fact, no doubt, lias caused judges and writers on law now and then to consider rashness as not negligence at all. 3 Recklessness and wantonness, however, in the sense 1 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. 2 Compare post, p. 321, and note as to wanton injury. 3 See e. g. Smith v. Baker, 1891, A. C. 325, 347, Lord Bramwell. ■i Chap. XVII. § 2 ] NEGLIGENCE. 287 of entire disregard of the rights of others, 1 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 Iry intended acts or in- tended omissions, intended or virtually intended harm is another thing altogether. 2 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, in other words in law, negligence may consist in acts as well as in omissions. The mental side of the case explains this. 8 Further, negligence may relate either to things seen or known, or to things unseen or unknown ; a man may fail in duty by ignorance as well as by knowledge. Necdh'ence as a tort may now be defined thus: It con- sists in failure to conform 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 duty 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 1 Both of these terms may perhaps be used in a milder sense, as the equivalent of rashness, and so brought within the legal conception of negligence. See post, p. 321. 2 Ante, pp. 122-128. 8 Ante, p. 7, note. 288 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, either by the defendant or b}' his predecessors in interest, in connection with that which occasions the damage, there ma}* indeed be liabilit}' ex contractu (the omission being a breach of contract) ; there can be no liability 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 ma} 7 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 by 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} 7 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 duty, 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 properh' understood, this standard may itself be mislead- ing. A blacksmith finds a watch by 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. 289 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, ami 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. 1 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, ordinarily, 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 imprudent in under- taking to do the act, however careful he may be, and however great his skill in other things. 2 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. 19 290 LAW OF TORTS. [Part III. not distinctly and certainly required by law, the question of the duty 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. 1 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 highway, blasting, explosions, fires, and runaways, and endless other ' accidents ' so-called, — in common cases such as these the question actually put to the jurj' 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 always fundamental, and usually 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, beyond 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 may be considered as matter of law. This is true whether the question be one of negligence in the defendant or contributor}' 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. 291 negligence in the plaintiff. 1 The same is also true where the law lias prescribed, as in some cases it has, the nature of the dut} r , and also where there exists a well-known practice in the community, of a proper character. In other and more numerous cases, it is a matter of fact. 2 It should further be stated that a very 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 may be submitted to the jury, in jury trials, as furnishing evidence upon which negligence may properly 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 neo-liorencc, where the relation of the defendant to the plaintiff is merely 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 by contract or by law, the general standard of liability being more or less affected accordingly, or superseded altogether ; these to be fol- 1 ' We are of opinion,' said Mr. Justice Brewer, in Elliott v. Chicago Ey. Co., 150 U. S. 245, 246, 'that the deceased was guilty of con- tributory negligence, such 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 would 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. 292 LAW OF TORTS. [Part III. lowed by cases in which the question is whether the de- fendant owed any duty to the plaintiff. § 3. Of Innkeeper and Guest. "With regard to the duties of innkeepers, it will be al- most sufficient 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, 1 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. 2 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. i Dawson v. Chamney, 5 Q. B. 164 ; Merritt 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 Maine, 478 ; Norcross v. Norcross, 53 Maine, 163 ; Sibley v. Aldrich, 33 N. H. 553 ; Manning v. Wells, 9 Humph. 746 ; Thiekstun v. Howard, 8 Black f. 535 ; Berk- shire Woollen Co. v. Proctor, 7 Cush. 417 ; Cohen v. Frost, 2 Duer, 341 ; Piper v. Manny, 21 Wend. 282 ; Hulett v Swift, 33 N. Y. 571 ; Wilkins v, Earle, 44 N. Y. 172; Houser v. Tully, 62 Penn. St. 92; Rockwell v. Proctor, 39 Ga. 105. But this subject is much regulated by statute. Chap XVII. § 4.] NEGLIGENCE. 293 It is proper, however, to mark the fact in this connec- tion that a question of contributory negligence 1 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 the circumstances, the innkeeper is not liable. 2 § 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. 8 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 Cashill v. Wright, 6 El. & B. 891 ; Oppenheiin v. White Lion Hotel Co., L. R. 6 C. P. 515. 8 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 defects absolutely. Id. 294 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 of 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. 1 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 part. 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 the 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. 2 This doctrine arose from a misconception apparently of the Roman law, the doctrines of which were resorted to in order to assist in the solution of a question which arose in England in the eighteenth century. 8 But it remained in the English law unchallenged for so long a time that it has not been readily abandoned, 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 Ld. Raym. 909 ; 1 Smith's L. C. 188, 7th ed. 2 Id. 8 Coggs v. Bernard, supra. Lord Holt took his Roman law mainly from the mediaeval jurists, or glossarists. Wharton, Negligence, § 57 et se. Gautier, 21 Texas, 111. 2 ' Attorney' here = lawyer of any grade or name. 8 Saunders, Negligence, 155. 302 LAW OF TORTS. IP art III. matters of law or of discretion, unless he profess to have 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. 1 If an 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 effect 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. This is evidence of negligence. 2 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. 193. 2 Ireson v. Pearman. 3 B. & C. 799. Chap. XVII. § 5] NEGLIGENCE. 303 advanced, must examine the title to and extent of the security offered ; and even then, if the title prove obvi- ously defective, or the security prove evidently bad or in- sufficient, he will be liable. 1 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. 2 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 skill 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, 8 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. Greetham, 10 Moore, 183 ; Donaldson v. Haldane, 7 Clark & F. 762. 2 Godefroy v. Dalton, 6 Bing. 460. 3 Graham v. Gautier, 21 Texas, 111. 304 LAW OF TORTS. [Part III. use due 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. 1 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 cure, nor to use the highest possi- ble degree of skill. 2 If the patient, by refusing to adopt the remedies of the physician, frustrate the latter's endeavors, or if he aggra- vate the case by his own misconduct, he, of course, cannot hold the physician 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. 3 Want of consideration is by the better rule no defence. 4 1 Rich v. Pierpont, 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 Hibbard v. Thompson, 109 Mass. 286 ; Wharton, Negligence, § 737. 4 Gill v. Middleton, 105 Mass. 479. But see Ritchey v. West, Chap. XVII. § 6.J NEGLIGENCE. '60.'. § G. Of Telegraph Companies. Telegraph 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. 1 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 beyond 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. 2 A condition that the telegraph company shall not be liable to the sender of a despatch for a mistake iu it, un- 23 111. 385, proceeding upon the old notion of bailment without reward. 1 Western Union Tel. Co. v. Carew, 15 Mich. 525, 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 True v. International Tel. Co., 60 Maine, 9. The message was not delivered at all in this case. 20 306 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. 1 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. 2 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. 8 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. 4 The rule is other- wise in England. 5 But the telegraph company is (prob- ably) under no liability to the person to whom a message is addressed for a failure, however negligent, to deliver, unless the sender was his agent. i 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. 8 Bryant v. American Tel. Co., 1 Daly, 575. * New York & W. Tel. Co. v. Dryburg, 35 Penn. St. 298 ; El wood v. Western Union Tel. Co., 45 N. Y. 549 ; Ellis v. American Tel. Co., 13 Allen, 226 ; Gulf Ry. 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 Mass. 90. 5 Playford 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. 307 § 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 conform 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. 1 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 amount 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 they 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. 2 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 i Story, Agency, § 186. 2 Leverick v. Meigs, 1 Cowen, 645. 308 LAW OF TORTS. [Part III. remit in the hills of R and B, partners, drawn upon and accepted by 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 York party) is not. The defendants are liable whether they knew B's standing or not ; being bound to make inquiry in regard to him. 1 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. 2 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 ; 3 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. 4 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. 5 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. 2 Story, Agency, § 141 ; Bailments, § 83. 3 Heckert's Appeal, 69 Penn. St. 264. 4 See Wood v. Cooper, 2 Heisk. 441. • Story, Agency, § 187. Chap. XVII. § 7.] NEGLIGENCE. 300 ance for his principal, using reasonable skill and diligence* is not liable to be called to account, though the insurance might possibly have been procured from other 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. 1 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. 2 And the same will be true if he negrli- gently or wilfully conceal a material fact or make a material misrepresentation whereby the policy is after- wards avoided. 8 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 would 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. 4 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 mas- 1 Story, Agency, § 191 ; Moore v. Mourgue, Cowp. 479. 2 Id. § 191 ; Park v. Hammond, 6 Taunt. 495. 8 Mayhew v. Forrester, 5 Taunt. 615. 4 Story, Agency, § 238. 310 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. 1 Again : The defendant, treasurer of the plaintiffs, 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. 2 If too it should appear that the principal or master, upon a full knowledge of the circumstances, has deliber- ately ratified tire acts or omissions complained of, he will then be compelled to overlook the breach of duty, and cannot recall his condonation of the offence. 8 A trustee is not liable at common law for a loss which has occurred through him, if he exercised ordinary skill, prudence, and caution. 4 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 ordinary cases held to such prompt action in enforcing the collection of securities as 1 Savage v. "Walthew, 11 Mod. 135, coram Lord Holt. 2 Walker v. British Guarantee Assoc, 18 Q. B. 277. See Doorman v. Jenkins, 2 Ad. & E. 256, ante, pp. 293, 294. 3 Story, Agency, § 239. 4 Twaddle's Appeal, 5 Rarr, 15 ; Miller v. Proctor, 20 Ohio St. 442 ; Harvard College v. Amory, 9 Pick. 446, 461 ; Hunt, Appellant, 141 Mass. 515 ; Charitable Corp. v. Sutton, 2 Atk. 400, Lord Hardwicke. Chap. XVII. § 7] NEGLIGENCE. 311 an executor, administrator, or assignee acting for the benefit of creditors. The duty of a guardian is to hold and retain ; of an executor, to collect and prepare for distribution. 1 But it is the duty of a trustee to be active in reducing to his possession any debt forming part of the trust fund ; for the consequences of neglect he would be liable. 2 An administrator or executor, or an assiguee 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. 8 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 Caffrey v. Darby, 6 Ves. 488. 3 Powell v. Evans, 5 Ves. 839 ; Johnson's Estate, 9 Watts & S. 107 ; Chambersburg Sav. Assoc. Appeal, supra. 312 LAW OF TORTS. [Part IIL 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 lawyer, 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. 1 Directors of corporations are bound to exercise all the ordinary diligence of persons in the same situation ; 2 and that may vary according to the nature of the business. 3 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. 4 Directors are not in ordinary cases expected to devote their 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 1 Miller v. Proctor, 20 Ohio St. 442. 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 other States. New England Trust Co. v. Eaton, 140 Mass. 532, 535 ; Brown v. French, 125 Mass. 410. 2 Overeud v. Gibb, L. R. 5 H. L. 480, 494, Lord Hatherley. 8 Id. * Id. Chap. XVII. § 7.1 NEGLIGENCE. 313 directors ; and whatever the office, if they undertake it they must perform it fully and entirely. 1 In relation to those officers, 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.' 2 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. 8 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. 4 i York & North Midland Ry. Co. v. Hudson, 16 Beav. 485, 491, Romilly, M. R. - Percy v. Millaudon, 20 Mart. 68. 8 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 Ry. 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 Overend v. Gibb, L. R. 5 H. L. 480, 494. 4 Brewer v. Boston Theatre, supra. It is only from necessity, and 314 LAW OF TORTS. [Part HI. § 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. 1 Their duties in this respect are like those of private individuals transacting similar business ; and whether they receive emoluments or not is immaterial. 2 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. 3 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 repair 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. 4 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. 5 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. Webster, 12 C. B. n. s. 790 ; Mersey Docks v. Gibbs, L. R. 1 H. L. 93. 2 Mersey Docks v. Gibbs, supra. 8 See Stoiy, Agency, §§ 320, 321 ; Hayes v. Porter, 22 Maine, 371 4 Henley v. Lyme Regis, supra. 6 Hayes v. Porter, supra. Chap. XVII. § 8] NEGLIGENCE. 315 his own name, maintain a suit against another for negli- gence in the discharge of a public duty where the damage is solely to the public. 1 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. 2 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 oflicers are, how- ever, liable for the consequences of their own negligence ; 3 and this covers cases of negligence with respect to the conduct of such of their subordinates as are under their supervision and guidance. 4 For example : The defendant, a postmaster, appoints with notice an incompetent person as a clerk to the government in his post-office ; 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. 5 Officers of the courts are liable for the injurious conse- ] 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. 6 For example : The defend- > 1 Black. Com. 220. 2 Wharton, Negligence, § 286 ; Ashby v. White, Ld. Raym. 938. 3 Clothier v. Webster, 12 C. B. n. s. 790 ; Mersey Docks v. Gibbs, L. R. 1 H. L. 93. * Story, Bailment, § 463 ; Sehroyer v. Lynch, 8 Watts, 453 ; Wig- gins v. Hathaway, 6 Barb. 632. 5 See Wiggins v. Hathaway, supra. 6 Wolfe v. Door, 24 Maine, 104 ; Dunlopr. Knapp, 14 Ohio St. 64,- 316 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. 1 A judge, however, while acting in a judicial capacity, within his jurisdiction, is not liable for negligence ; 2 and the same is true even of a person acting in a situation which makes him no more than a private arbitrator. 3 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 ; Browning V. Hanford, 5 Hill, 538 ; Moore v. Westervelt, 27 N. Y. 234. i Moore v. Westervelt, 27 N. Y. 234. 2 See Bradley v. Fisher, 13 Wall. 335, 350 ; Yates v. Lansing, 5 Johns. 282 ; Pratt v. Gardiner, 2 Cush. 63. 8 Pappa v. Rose, L. R. 7 C. P. 32, 525 ; Tharsis Sulphur Co. v. Loftus, L. R. 8 C. P. 1. See Hoosac Tunnel Co. v. O'Brien, 137 Mass. 424. Chap. XVII. § 9.] NEGLIGENCE. 317 to exercise reasonable care and skill in coming to a deci- sion, if he act in good faith, to the best of his judgment. 1 § 9. Of the Use of Premises : Duty to Plaintiff. In this section, the duty of the owner or occupant of premises to the plaintiff, 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 the injured person there ; that is, whether the plaintiff was a trespasser, a bare licensee, an invited or a legal licensee, or a customer. 2 The question must, therefore, be con- sidered with reference to each of these situations. The owner or occupant of premises owes no duty 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 the 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 allows in the day- 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 liable. 8 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 1 Pappa v. Rose, supra. 2 For the case of servants, see § 10. 8 Loomis v. Terry, 17 Wend. 496. 318 LAW OF TORTS. [Part III. trespassing on the premises is injured by the gun., having no notice of clanger. The defendant is liable. 1 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, 2 without right or actual grant of permission, 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, 3 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, 4 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 him fair notice. But, further, it should seem that, if it were usual for people to pass over the occupant'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, § 31. If, in the absence of statute, the 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. Upon the whole subject see the two cases just cited ; also Ilott v. Wilks, 3 B. & Aid. 308 ; Woolf v. Chalker, 31 Conn. 121 ; ante, p. 201. 2 See Batchelor v. Fortescue, 11 Q. B. D. 474. a Harrison v. Northeastern Ry. Co., 29 L. T. N. s. 844. 4 Batchelor v. Fortescue, 11 Q. B. D. 474 ; Harrison v. Northeast- ern Ry. Co., 29 L. T. n. s. 844 ; Johansen v. Davies, 57 L. J. Q. B. 392 ; Sweeny v. Old Colony R. Co., 10 Allen, 368 ; s. c. L. C. Torts, 660. Chap. XVII. § 9.] NEGLIGENCE. 31 1» 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. 1 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 company, 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 of duty to the deceased. 2 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. 8 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 Ry. Co. v. Slattery, 3 App. Cas. 1155 ; North- eastern Ry. Co. v. Wanless, L. It. 7 H. L. 12, as to open gates ; Wil- liams 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. Co., 48 L. T. N. s. 904. 8 Ante, p. 259. 320 LAW OF TORTS. [Part III. pit adjoining the highway, and fails to fence it off from the street. The plaintiff, while walking along the street, iu the dark, accidentally steps a little aside in front of the pit, and falls into it, thereby sustaining bodily injui-y. 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. 1 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 reservoir. At this point, the pathway turns to the right over a bridge, crossing the by-wash. A person continuing 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 been overlooked that the defendant's act amounted to a public nuisance. Cuap. XVII. § 9.] NEGLIGENCE. 321 highway, and the deceased must have become a trespasser before reaching the reservoir. 1 The same will be true of injury sustained by straying cattle or horses. 2 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. 8 Again : The plaiutiff's horse 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. 4 If the licensee were induced, either expressly or by ac- tive conduct, by the occupant or by law, 5 the situation be- comes entirely 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 6 is bound to exercise reasonable care 1 Hardcastle v. South Yorkshire Ry. Co., 4 H. & N. 67. See Dinks r. South Yorkshire Ky. 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. 4 Maynard v. Boston & M. R. Co., supra. See Taft v. New York R. Co., 157 Mass. 297- See, however, Charman v. Southeastern Ry. Co., 21 Q. B. Div. 524, under Statute. Wanton injury in such cases would create liability. Maynard v. Boston & M. R. Co., supra ; Eames v. Salem R. Co., 98 Mass. 560. 6 A fireman, for instance. 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 21 322 LAW OF TORTS. [Part III. to prevent damage from unusual clanger, 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. 1 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. 2 The gist of the liabilit}' 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 with 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 ; s. c. L. C. Torts, 660. See 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. Further, see the cases stated in Piggott, Torts, 238-244. 2 Corby v. Hill, 4 C. B. K. s. 556. Chap. XVII. § 9.] NEGLIGENCE. . \'2:\ he entered the premises because he was led to believe that they were intended to be used by visitors or passengers, •and that such use was not only acquiesced in by the owner or person in possession and control of the premises, but that it was in accordance with the intention and design with which the way or place was adapted and prepared or allowed to be so used. 1 The real distinction, therefore, is this : A mere passive acquiescence by an owner or occu- pier in a certain use of his land 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. 2 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 duty voluntarily assumed, and not imposed by law. The answer was, that this was no anomaly. If a person, it was observed, undertake to do an act, or to discharge a duty, 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. 8 The liability in such cases does not depend upon the motives or considerations 1 Sweeny v. Old Colony R. Co., supra, Bigelow, C. J. 2 Id. See also Bolch v. Smith, 7 H. & N. 736, 741. 8 See Dublin & "Wicklow Ry. Co. v. Slattery, 3 App. Cas. 1155, supra ; Cliff v. Midland Ry. Co., L. R. 5 Q. B. 258. 324 LAW OF TORTS. [Part III. which induced a party to take on himself a particular duty, but on the question whether the legal rights of others have been violated by the mode in which the charge assumed has been performed. 1 In case the iujury 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. 2 For example : 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. 3 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 occupant. 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. 4 It is clear that customers stand upon a more favorable plane than bare licensees, and that the owner or occupant 1 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 Southcote v. Stanley, supra. Had the plaintiff been a guest, the defendant would (probably) have been liable. * Chapman v. Rothwell, El. B. & E. 168, infra. Chap. XVIL § 9.J NEGLIGENCE. 325 of the premises owes a duty to them to keep the premises in such repair or condition as to enable them to go thereon 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. 1 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. 2 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. Franccmia Iron Co., 99 Mass. 216, Gray, J. 2 Chapman v. Rothwell, El. B. & E. 168 ; Freer *. Cameron, 4 Rich. 228. 326 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. 1 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 defendants, owners of a shop, situated upon a public street, let the upper stories thereof to another ; and an entrance 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 stau*s ; and the plaintiff entering the place on business, and in the exer- cise of due care, falls through the trap, the same being open, and is injured. The defendant is guilty of a breach of duty in leaving the trap-door open, and is liable to the plaintiff. 3 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 there, 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. 8 Elliot v. Pray, 10 Allen, 378. Chap. XVII. § 9.] NEGLIGENCE. 327 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. 1 This duty to customers, however, requires the occupant to use due care over all parts of his premises and their 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. 2 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. 8 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. 8 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 with regard to another that every- one of ordinary sense who did think would at once recognize that if he did not use ordinary care and skill in his 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. 328 LAW OF TORTS. [Part 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. 1 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 failing to give notice of the place where danger may happen. 2 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 injury sustained he must have gone upon the premises for business with the occupier. 3 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 entry upon the premises, and entitle the party to damages for injury sustained, must, in the ab- sence of an express invitation, or an engagement for ser- vices, be the business of the occupant, 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 only 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 ; unless indeed they are persons with whom he is 1 Holmes v. Northeastern Ry. Co., L. R. 4 Ex. 254 ; s. c. L. R. 6 Ex. 123, Exch. Ch. 2 Wilkinson v. Fairrie, 1 H. & C. 633 ; Gaffney v. Brown, 150 Mass. 479. 8 Collis v. Selden, L. R. 3 C. P. 495 ; Carletonv. Franconia Iron Co., 99 Mass. 216 ; Tebbutt v. Bristol & E. Ry. Co., L. R. 6 Q. B. 73, 75. Chap. XVII. § 10.] NEGLIGENCE. 32 ( J accustomed to deal and whom he expects to come into his shop. So likewise, tinder 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 diligence in regard to the condition of the place, except in so far as the servant 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 x 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 may 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, machinery, tackle, appliances, and the like, and competent men, and none but competent, to carry on the service with him. 2 And this dut}* cannot be 1 A moral duty on the part of the master may no douht 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 v. Orr, 140 N. Y. 450 ; Bailey v. Rome R. Co., 139 N. Y. 302 ; Toy v. United States Cartridge Co., 159 Mass. 313 : Illick 330 LAW OF TORTS. [Part III. delegated, so as to exempt the master; it is personal. 1 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 personally, or by servants in charge, direct the plaintiff to go upon the scaffold, and the plaintiff does so, but not volens ; the supports give way, and the plaintiff is thrown down and seriously hurt. The defendants are liable. 2 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 inspection 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 guilty of breach of duty to the plaintiff. 3 Again : The defendants are proprietors of a cotton mill, in which the plaintiff is employed by them. Part of one of the machines in the carding-room consists v. Flint R. Co., 67 Mich. 632 ; Fink v. Des Moines Ice Co., 84 Iowa, 321; De Pauw Co. v. Stubblefield, 132 Ind. 182 , Consolidated Coal Co. v. Haenni, 146 111. 614 ; Southwest Improvement Co. v. Andrew, 86 Va. 270. i 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, lan- 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. Chap. XVII. § 10.] NEGLIGENCE. 331 of a grooved pulley, over which a chain passes. To one end of the chain a weight is hung. An extra weight 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 continually, and the machine works successfully, though not so well, without it. By reason of want of reasonable care on the part of the defendants, the lacing breaks, and the extra weight falls upon and injures the plaintiff while properly working at the machine. The defendants are guilty of breach of duty to the plaintiff. 1 When 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- tivel}' 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 ; ' 2 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 order. 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 machinery, 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 Rice v. King Philip Mills, 144 Mass. 229. 2 Crown v. Orr, 140 N. Y. 450 ; De Grafle v. Now York Central It. Co., 76 N. Y. 125 ; Consolidated Coal Co. v. Haenni, 146 111. 614. 332 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. 1 The greater part of such a state of things 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 duty towards a customer, 2 while towards a ser- vant it would not. The servant assumes the risk. 3 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 risk ' does not mean assuming the risk of the master's negligence, except in cases to be mentioned, and the servant cannot complain if he 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 here is drawn between the two kinds of risk. Indeed, at common law, all risks of negligence by a fellow-servant, not due to the master, are treated as ' ordinary.' It has accordingly been laid down as a broad doctrine, at common law, that a servant cannot complain against his master of damage sustained by the negligence of a fellow-servant,where the master himself was not at fault. 4 For example: 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. R. 2 C. P. 318, Exch. Ch. ; L. C. Torts, 668, a very important authority. 8 Id. at pp. 679, 680, of L. C. Torts. See also Thomas v. Quarter- maine, 18 Q. B. Div. 685. * De Freest v. Warner, 98 N. Y. 211; Consolidated Coal Co. v. Haenni, 146 111. 614 ; Farwell v. Boston R. Co. 4 Met. 49; s. c. L. C. Torts, 688; 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; Thomas v. Quartermaine, 18 Q. B. Div. 685, 692. This last case has been somewhat discredited in the point actually decided by it, but its general language is not disputed. Chap. XVII. § 10] NEGLIGENCE, 333 is deemed a fellow-servant of the plaintiff, negligently leaves open one of his switches, by reason of which an engine of the defendants runs off the brack and injures the plaintiff, the evidence showing that the defendants them- selves are not guilty of negligence in an} - way. The defendants are not liable. 1 While, however, the master is (at common law) exempted from liability in such cases, — on the ground that, because the servant has assumed the risk, the master is so far relieved of duty, — the courts have 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.' 2 Others of our courts exclude the last clause (concern- ing different grades or departments of the work) from 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. 3 This subject, however, is now very generally regulated by statute (Emplo3*ers' Liability Acts), the general effect of which, 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 ; De Freest v. Warner, supra ; Lineoski v. Susquehanna Coal Co., 157 Penn. St. 153. 8 Pittsburgh R. Co. v. Devinney, 17 Ohio St. 197,210; Chicago Ry. Co. v. Ross, 112 U. S. 377. The doctrine of fellow-servants 334 LAW OF TORTS. [Part III. injuria still applies. 1 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. 2 Still he may 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 the master's negligence, or, even under the Employers' Liability' Acts, of the negligence of a fellow- servant. It is accordingly laid down in effect that if the servant, at the time of making the contract, knew 3 of the existence of a particular extraordinary danger, and fully ap- preciated 4 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 ordinary risks, and exempts his master so far from duty, so now, by entering the service knowing and appreciating the nature of an extraordinary 7 risk, he assumes that risk, and exempts his master from duty' in regard to it. 6 For example : The defendants are a gas- light company, having a quantity' of coal to be wheeled (exempting the master) does not apply to cases in which the master has committed to a servant any of those duties before-mentioned which rest upon the master personally. i O'Maley v. South Boston Gaslight Co., 158 Mass. 135, 136. 2 Consolidated Coal Co. v. Haenni, 146 111. 614. 8 Some dicta put it thus : If the servant knew, or had the means of knowledge, &c. Crown v. Orr, 140 N. Y. 450. But the latter clause should be omitted ; it is inconsistent with requiring full appreciation of the danger. 4 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 Crown v. Orr, 140 N. Y. 450 ; Kaare v. Troy Steel Co., 139 N. Y. Chap. XVII. § 10.] NEGLIGENCE. 335 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 ways, works, or machinery). 1 Again : The defendants are a railroad company, having in their employ lately the plain- tiffs intestate. The deceased was killed by 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 plaintiffs 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 ; Gibson 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. Haenni, 146 111. 614 ; Kohn v. McNulta, 147 U. S. 238. 1 O'Maley v. South Boston Gaslight Co., 158 Mass. 135 ; Kaare v. Troy Steel Co., 139 N. Y. 369. 336 LAW OF TORTS. [Part III. objection. The defendants owed no duty in the matter to the plaintiff's intestate ; he assumed the risk. 1 Again : The defendant is receiver of a railroad company, in which the plaintiff's intestate had been employed as switchman and car-coupler for nearly two years in the compan}''s freight-yard. This yard 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 }'ard, the deceased steps into one of the ditches, falls, and is killed by the cars. The deceased assumed the risk. 2 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 volens, knowing and full}- 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 dimly-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 volens, his clothing is caught in the machinery, and he is hurt. The plaintiff, if he knew » 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. 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. 238. Chap. XVII. § 10.] NEGLIGENCE. :;:}7 and fully appreciated the danger, assumed the risk, and the defendants are not liable. 1 Where the extraordinary 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 tillering 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. So, where the extraordinary danger arises after- wards, the servant's knowledge and appreciation of it, and then entering the clanger, 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 Might of stairs leads from the kitchen of the defendant's house, on the outside of the same, to the back yard, 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 sky- light there had, before the plaintiffs 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 icy. 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 fully 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 '•. Merchants' Woollen Co., 151 Mass. 152. 2 Fitzgerald v. Connecticut River Paper Co., 155 Mass. 155; Ma- honey v. Dore, id. 513; O'Maley v. South boston Gaslight Co., 158 Mass. 135. 22 338 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 ; in which case the defendant owes a duty to the plaintiff which has been broken. 1 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 say 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 approaching rail- way train to save a child on the track. 2 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 duty of care, as we have seen is the meaning of the expression in the law. 8 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, may assume the risk so as to bar an}- right of action by him, though he was not in the least negligent at the time. 4 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 majority 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. 4 Mellor v. Merchants' Manuf. Co., 150 Mass. 362, 363. Chap. XVII. § 11.] NEGLIGENCE. 339 language of the authorities, however, sometimes fails to observe the distinction. 1 § 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. 2 The reason of this lies in the consideration that a man is not liable for damage which he has not caused ; 3 or, conversely, the law holds men liable for those wrongs alone which they 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 whollv caused the damage of which he complains. 4 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 thai 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 sonic conflicting conclusions. The cases are innumerable. 2 Murphy v. Deane, 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 principal for the like torts of his agent, stands on special grounds. 340 LAW OP 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 iu 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 1 of the misfortune complained of can bar the action. But the stricter use of the term as causa proximais 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. 2 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. 3 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. 4 Such circumstance is only a condition to the happening of the damage, not a cause of it. 5 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 Murphy v. Deane, 101 Mass. 455, 464, 465. 8 Newcomb v. Boston Protective Dept., 146 Mass. 596. * Id. 6 Id. Chap. xvil. § 11.] NEGLIGENCE. 341 when that is the case, the fad thai 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 < lay-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. 1 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. 2 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 hitter's act not contributing, in the same sense, to the 1 See the remarks of Parke, B. in Davies v. Maim, 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 is, such consequences were unusual, not the common effect of such au act. 342 LAW OF TORTS. [Part IIL damage. 1 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. 2 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 forbidden 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 under 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 negligence or other wrongdoing contributed as a proximate cause to the damage. 3 This is equally true though the plaintiff is a positive trespasser, as the examples elsewhere given of parties in- jured by savage dogs or spring-guns while trespassing by da}' upon the defendant's premises clearly show ; 4 for it is not the natural or usual effect of trespassing in the clay- time (not feloniously) that the party should be bitten by a savage dog not known of before the entry, or maimed by 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 negligence by a plaintiff engaged in acts neither of i Davies v. Mann, 10 M. & W. 546. 2 Newcomb v. Boston Protective Dept, 146 Mass. 596. * Norris v. Litchfield, 35 N. H. 271, Bell, J. 4 Bird v. Holbrook, 4 Bing. 628 ; Loomis v. Terry, 17 Wend. 496 ; ante, pp. 274, 275, 318. Chap. XVII. § 11.] NKGLIGENCE. 343 necessity nor of charity ; in other words, in acts rendered unlawful by statute. By many of the courts it is held that the plaintiff is not thereby precluded from recovering for damage sustained, in the absence of explicit Language to that effeel in the statute ; ami this on the ground that the mere doing of the illegal act is not, or may not be, contributory in the propei sense to the damage sustained. 1 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 follow. - This is clearly correct in principle, in the absence of language of the statute plainly intended to prohibit all actions for damage sustained on Sunday, except such as is caused without any violation of law by the injured party; hut the contrary rule prevails, or has prevailed, in some of the States. 3 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, 2'.' Wis. 21 ; s. c. L. C. Torts, 711 ; Moh- ney v. Cook, 26 Penn. St. 342 ; Corey v. Bath, 35 N. H. 530 ; Carrol v. Staten Island H. Co., 53 X. V. 126. 2 Sutton v. Wauwatosa, supra. 8 Bosworth v. Swansea, 10 Met. 363; Jones v. Andover, 10 Allen, 18; Connolly v. Boston, 117 Mass. 64. See however Newcombu. 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. 344 LAW OF TORTS. [Paet IIL ant has misused property of the plaintiff hired on Sunday. 1 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.' 2 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. 3 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 1 Hall v. Corcoran, 107 Mass. 251, overruling Gregg v. Wyman, 4 Cush. 322, on authority of which Wheldon 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. 8 Haley v. Case, 142 Mass. 316, 321 ; Ferren v. Old Colony R. Co., 143 Mass. 197 ; Ciriack v. Merchants' Woolen Co., 151 Mass. 152; s. 0. 146 Mass. 182; Russell v. Tillotson, 140 Mass. 201 ; Butterfield v. Forrester, 11 East, 60; Bridget?. Grand June. Ry. Co., 3 M. & W. 244 ; Davies v. Mann, 10 M. & W. 546 ; Tuff v. Warman, 5 C. B. N. s. 573. Exch. Ch. ; Caswell v. Worth, 5 El. & B. 849. . Cii.vi-. X\'1I. §ii-] NEGLIGENCE. 3^5 contributory negligence. 1 The defendant's unlawful act has caused the loss of presence of mind, and what happens 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 comes 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 hint. 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. 3 On the other hand, it is laid down in certain cases that the plaintiff may be entitled to recover, if the defendant might, by the exercise of ' clue care ' on his part, have avoided the consequences of the negligence of the plain- i Comp. The Bywell Castle, 4 P. Uiv. 219 ; Sweeny v. Old Colony R. Co., 10 Allen, 363 ; s. c. L. C. Torts, 660. 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 operation would depend upon in- dividual susceptibilities, and would not be uniform. Victorian Ry Comm'rs v. Coultas, 13 App. Cas. 222, fright by narrow escape from collision. But see Mitchell v. Rochester Ry. Co., 30 Abb. N. C. 362, N. Y. 1893; Harv. Law Rev. Jan. 1894, p. 304. Such a case, how- ever, should not be confounded with an assault ; there the putting in fear is intentional. a Coulter v. American Express Co., 56 N. Y. 585. See also Johnson v. West I heat c Ry. Co., 70 Penn. St. 357 ; Galena R. Co. v. Yarwood, 17 111. 509. » Northeastern Ry. Co. v. Wanless, L. R. 7 H. L. 12 ; Sweeny v. Old Colony R. Co., supra. See Davey o. Southwestern Ry. Co., 12 Q. B. Div. 70 ; Dublin & YVieklow Ry. Co. v. Slattery, 3 App. Cas. 1155. 346 LAW OF TORTS. [Part IIL tiff. 1 This too cannot 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 where 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. 2 Again : The defendant is pilot of a steamer on the Thames, which runs down the 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 clone ; 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. 3 If the rule referred to were applied to cases of simultaneous negligence, at the moment of disaster either party to a collision caused by their joint carelessness might be enti- tled to recover against the other ; while, in truth, neither can recover. 4 i Tuff v. Warman, 5 C. B. n. s. 573, Exch. Ch. leading case. 2 See also Radley v. London & Northwestern Ry. Co., 1 App. 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] hy ordinary care have avoided all accident, any previous negligence of the plaintiffs would not preclude them from recovering.' a Tuff v. Warman, 5 C. B. N. 8. 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. XVir. § 13.] NEGLIGENCE. 347 § 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 a> follows : Where there has been negligence in both plaintiff and defendant, still the plaintiff may recover if his negligence was Blight, and that of the defendant gross in comparison. And this rule has been extended to cases in which the negligence of the plaintiff has contributed, in some degree, to the injury complained of. 1 The defendant's negligence, however, must si and 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. 3 § 13. Of Intervening Forces. Thus far of the contributory 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. 4 which directly 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. ;>10, 517, Scott, J. 2 Id. at ]-. 51 I. s Id. p. 517. * Sec 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, lie being held liable. 348 LAW OF TORTS. [Part 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 her knowledge. This is done a second time, when the child is injured by the explosion. The defendant is not liable. 1 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. 2 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. 3 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. R 5 C. P. 98, and 6 C. P. 14, Exch. Ch. 3 This example is fairly borne out by Scott v. Shepherd, 3 Wils, 403. Chap. XVII. § 13.] NEGLIGENCE. 34'J throws a lighted squib into a market-house on a fair-day, which strikes the booth of A, who instinctively throws it out, when it strikes the booth of B. The hitter ousts it out in the same manner, and it now strikes the plaintiff in the face, injuring him. The defendant is liable. 1 Again: The defendant wrongfully sells u mischievous hair-wash to the plaintiffs husband, knowing that it is intended for the plaintiff's use, and the plaintiff is injured in using it. The defendant is liable. 2 Again : The defendant, a manufac- turer of drugs, negligently labels a jar of belladonna, put ap 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. 8 In cases, however, where the alleged breach of duty is directly involved in a breach of contract, the courts quali- fied]}- deny the liability of the defendant to any one ex- cept to the party with whom he made the contract, — a point elsewhere noticed. 4 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 i Scott v. Shepherd, 3 Wils. 403. ' 2 George r. Skivington, L. R. 5 Kx 1. See Cnnn v. "Willson, 39 < !b. D. 39, 43. 8 Thomas v. Winchester, 6 N. Y. 397 ; s. c. L. C. Torts, 602. The reason given by the court, however, was that the defendant, being en- gaged in a very dangerous business, acted at his own peril. Comp. Fan-ant v. Barnes, 11 C. B. x. 8. 553, aud Brass v. Maitland, 6 El. &B. 47<>, ante, p. 296. See Schubert o. Clark, 5 N. W. Rep. 1103 ; David- son r. Nichols, 11 Allen, 514. The subject is well discussed in 'J Law Quarterly Review, 63-65 ; Pollock, Torts, 439 et seq., 2d ed. 4 Ante, pp. L34, 135. See L. C. Torts, 617-619. 350 LAW OF TORTS. [Part III. of the intermediate agency, lie will be liable, though his act was a breach of contract with another. 1 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 obviously harmful, if not properly done, preceded the formation of the contract ; and it is difficult to see how that duty, owed to all persons, could, by a contract made with one or several, be abrogated as regards others. 2 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 plaintiff's servant to carry him safely to a certain place, but negligently injures him on the way. This is no breach of duty to the plaintiff. 3 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. & "W. 338; alsoCollis v. Selden, infra, and George v. Skivington, above cited. Further see Heaven v. Pender, 11 Q. B. Div. 503, 514. 2 See 1 Wms. Saund. 474. 3 Fairmount Ry. Co. v. 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 Fx. 761, 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. Chap. XVII. § 18.] NEGLIGENCE. S51 puny or other person would not (probably) be liable to a master for an injury wrongfully done to a Bervant, with- out notice of the relation of master and Bervant. 1 Bu1 if there is a duty to refrain from intentional wrong, it is not easy to see why there cannot be a duty to refrain from negligence, where that is attended with notice of the con- tract, that is, of the rights of the "plaintiff. 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 iu 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. 2 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 traffic. 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. 8 If the duty resting upon the defendant be that of common carrier of passengers, or of goods, the carrier or 1 Comp. Mich cases as Blake v. Lanyon, 6 T. R. 221. 2 Marshall r. York & Newcastle Ry. Co., 11 C. B. 655 ; Austin v. Great Western Ry. Co. L. R. 2 Q. B. 442. The fust of these ca was before Alton v. Klidland Ry. Co., supra, but the second was after- wards, and in it Marshall's Case was cited with approval by Black- burn, J. See also Foulkes v. Metropolitan Ry. Co., 5 C. P. Div. 157 ; Ames v. Union R, Co., 117 Mass. 541 ; and cases like Henley*;. Lyme Regis, ") Bing. 91, and 1 Bing. N. C. 222, auto, p. 312. 8 Foulkes o. Metropolitan Ry. Co., supra. o52 LAW OF TOUTS. I^art 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. 1 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 him. 2 The same doctrine Avould, 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. 3 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., I.. R. 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. Chap. XVII. § 13.] NEGLIGENCE. 353 therefore, was not entitled to recover, though he might himself have been free from fault. 1 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. 8 The doctrine was much criticised and often denied by other courts ; 4 and in the form above presented it was re- cently overruled in England. 5 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 v. Lancashire Ry. Co., L. R. 10 Ex. 47 ; Cleveland R. Co. v. Terry, 8 Ohio St. 570 ; Pnterbaugh v. Reasor, 9 Ohio St. 484 ; Lockhart v. Lichtenthaler, 46 Penn. St. 151 ; Smith v. Smith, 2 Pick. 621. ' z See cases in note 1, supra. 8 Thorogood v. Bryan, supra. 4 The Milan, Lush. 388; Brown v. McGregor, Hay (Scotl.), 10; Little i'. Hackett, 116 U. S. 366; Chapman >•. New Haven R. Co., 19 N. Y. 341 ; Coleman v. New York & N. H. R. Co., 20 N. Y. 492 ; WVbster v. Hudson River R. Co., 38 N. Y. 260 ; Danville Turnp. Co. v. Stewart, 2 Met. (Ky.) 119. 6 The Bernina, 12 P. Div. 58, affirmed, nom. Mills v. Armstrong, 13 A pp. Cas. 1. 6 Donovan v. Laing Syndicate, 1893, 1 Q. B. 629, 634. 23 354 LAW OF TORTS. TPart 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 an obstruction. 1 Instead of an identification between passenger and driver, the driver himself would be liable, with the other wrong-doer, to the passenger.' 2 If, however, the passenger were himself in fault, as by participating in the negligent conduct of the driver, or by directing 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. 3 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 already repudiated by Pollock, B., in Armstrong v. Lancashire R. Co., L. R. 10 Ex. 47, 52. 2 See The Bernina, supra. 3 See Mangan v. Atterton, L. R. 1 Ex. 239 ; Clark v. Chambers, 3 Q. B. D. 327 ; Waite v. Northeastern Ry. Co., El. B. & E. 719 ; Hughes v. Macfie, 2 H. & C. 744 ; Wright v. Maiden R. Co., 4 Allen, 283 ; Holly v. Boston 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 applicable of course to the case of any helpless or imbecile person. Chap. XVII. § 13.] NEGLIGENCE. 355 tributary 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. 1 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. 2 It is clear that if the child himself be guilt}' 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. 3 It has sometimes been said that the same discretion is necessary in a child that is required of an adult. 4 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 child's 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. 6 i Wright v. Maiden Ry. Co., 4 Allen, 283. 2 Bellefontaine R. Co. v. Snyder, 18 Ohio St. 399 ; North Penn. R. Co. v. Mahoney, 57 Penn. St. 187 ; Louisville Canal Co. v. Murphy, 9 Bush, 522 (Ky.). 8 Lynch v. Nurdin, 1 Q. B. 29 ; Lynch v. Smith, 104 Mass. 52 ; Evansich v. G. Ry. Co., 57 Texas, 126. 4 Burke v. Broadway R. Co., 49 Barb. 529. 5 Lynch v. Smith, supra. 356 LAW OF TORTS. [Part III. In the case of a child too young to take care of him- self, it is clear 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. 1 It is equally 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. 2 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 Bernina, 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 he, 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. a Ihl v. Forty-second St. R. Co., 47 N. Y. 317, 323. Chap. XVII. § 13.] NEGLIGENCE. 357 be implied from his going alone ; in regard to this the child's parent may be negligent. The defendant is liable ; the negligence of the child, if there was any in 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. 1 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 in 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 against another by the parent, as a master, for loss of service caused, though in part only, by the defendant's negligence. 2 The result is, that whatever particular phase a case may 1 Lynch v. Smith, 104 Mass. 52. 2 Compare the action for seduction, ante, pp. 164 et seq. See also Glassey v. Hestonville Ry. Co., 57 Penn. St. 172. 358 LAW OF TORTS. [Part III. present, be it contributory 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, ■when infringement of copyright, 239. ABUSE OF PROCESS, effect of, 72, 73. ACCIDENT, as an excuse of a battery, 127. (See Negligence.) ACQUITTAL, in suits for malicious prosecution, 57-59. ADMINISTRATORS AND EXECUTORS, liability for negligence, 311. AGENTS, misrepresentation of authority, 36. liability to principals for negligence, 307-309. AMBIGUITY, distinguished from vagueness, 28. ANIMALS, property in, 196. injuring, 196, 201, 202. Notice of Propensity to do Damage, 272-275. wild animals, 273. domestic animals, 273. negligence of owner, 273, 274. injury from irritating animal, 274. injured party having notice, 274. Escape of Animals, 275, 276. duty to provide fences, 275. 362 INDEX. ARBITRATORS, not liable for negligence, 316, 317. ARRESTS. (See False Imprisonment.) ASSAULT AND BATTERY, Assault, 121-124. what constitutes, 121, 122. intention, 122. distance of parties from each other, 123. damage, 124. Battery, 124-129. what constitutes, 124, 125. contact, 125. intention, 126, 127. negligence, 127. accident, 127. acts done in sport, 128. hostile acts, 128. taking property, 128, 129. Son Assault Demesne, 129-132. what amounts to, 129, 130. acts of parents and schoolmasters, 129. self-defence, 130. protection of property, 130. amount of force which may be used, 131. wrongful entry upon another's land, 131. defence of family, 132. defence of master, 132. defence of servant, 132. quelling a riot, 132. Violence to Another 's Servants, 132-136. double right of action, 132, 133. servant's right, 133. master's right, 133. parent's right, 134. breaches of contract, 134, 135. death of servant or wrong-doer, 135, 136. ASSIGNEES, liability for negligence, 311. im>i:x. o 1 '.:; ASSUMING THE RISK, 329-339. ATTORNEY. liability of, for false imprisonment, 151-154. for negligence, 299-301. B. BAILOR AND BAILEE, duties of bailee, 291-298. (See Negligence.) BATTERY. (See Assault and Battery.) BLASTING, damage from, 282. BUSINESS SIGNS, fraud as to, 52, 53. c. CARRIER, general duties of common carrier, 291. identification of passenger with, 347-349. CERTAINTY, required in representations, 22-28. CHILDREN, negligence of, 349, 350. CLERK OF COURT, improper writ issued by, 147, 148. CLOSE, meaning of, 178. COMMON CARRIER, general duties of, 291. CONCEALMENT. (See Deceit.) CONFIDENTIAL RELATIONS, dealings between parties to, 44. in actions for defamation, 112, 113. CONSPIRACY, distinguished from malicious prosecution, 75. Malice, 77-79. what amounts to conspiracy, 77, 78. 364 INDEX. CONSPIRACY, — continued. participation in, 78. overt acts, 78. no benefit derived, 78. intention to make profit, 78. silent observation of, 78. employing others, 79. Damage, 79. (See Malicious Interference with Contract.) CONTRACT, malicious interference with, 80-83. Distinction between Contract and Property, 83. torts growing out of breaches of, 13-4, 135, 349, 350. (See Deceit.) CONTRIBUTORY NEGLIGENCE OR OTHER CON- TRIBUTORY FAULT, what constitutes, 339-346. (See Negligence.) CONVERSION, trover, detinue, and replevin explained, 203, 204. Possession, 204-208. right of possession, 205. special property, 205. jus tertii, 206. finding, 206, 207. possession of servant, 208. What constitutes Conversion, 208-222. sale without authority, 209. knowledge of title, 208, 209. liability of purchaser, 211. effect of fraud in sale, 211. sale with right of repurchase, 211, 212. conditional sale, 212. sale of pledge, 212. sale of qualified interest, 213. sale of part, 214, 215. permitting another to sell one's goods, 215. appropriating article to use not intended, 216. injury of chattel. 216. 217. mere assertion of dominion, 217. INDEX. 305 CONVERSION, — continued. intention to convert, 218. demand and refusal, 220. refusal only prima facie conversion, 221, 222. taking of goods by purchaser from vendor having no right to sell, 221. COPYRIGHTS, infringements of, 234-211. (See Patents and Copyrights.) CORPORATIONS, torts of directors, 36, 312, 313. CRIME, imputation of, 90-92. CRIMINAL CONVERSATION, action for, 175-177. CRITICISM. not defamation, 116. CUSTOMERS, injuries to, by condition of premises, 324-329. D. DAMAGE, in deceit. 47. in malicious prosecution, 71, 72. in conspiracy, 79. in malicious interference with contracts, 82, 83. in slander, 86-90. in assault and battery, 124, 133. in false imprisonment, 137. in enticement and seduction, 163, 165, 171, 176. in trespass, 191. in conversion, 216, 217. in infringements of patents and copyrights, 223, 234, 235. in violation of rights of support, 242. in violation of water rights, 253. in nuisance, 259. in escape of animals, 275, 276. in escape of dangerous elements or substances, 277. in negligence, 286. 366 INDEX. DANGEROUS THINGS, ESCAPE OF, protection against, 277-2S2. DECEIT, elements of action for, 17. The Representation, 18-33. meaning of ' representation,' 18. how representation differs from warranty, 18, 19. warranty treated as representation, 20. representation requires an act, 20. silence, 20, 22. concealment, 21. representation should be certain, 22, 23. language not necessary, 23. difference between vagueness and ambiguity, 24. terms of art, 24, 25. language having different meanings in different places, 25. statements of opinion, 25-28. statements of value, 26-28. statements of cost, 26, 27. statements of income, 27. statements concerning a man's pecuniary condition, 27, 28. representation should relate to present or past facts, 28. implied representations, 28-30. prediction, 29. representations of law, 30, 31. materiality, 31. falsity, 32, 33. literal sense of words, 33. Defendant's Knowledge of Falsity, 33-37. honest statement of fact generally not actionable, 33. exception as to matters within the party's peculiar means of knowledge, 35. representations by agents concerning their authority, 36. representations by directors of corporations, 36. Ignorance of the Plaintiff, 37-45. knowledge of facts by plaintiff fatal to action, 37. belief in defendant's statements, 37. making investigation, 38. when plaintiff bound to know the facts, 38. means of knowledge at hand, 39. INDEX. 3G7 DECEIT, — continued. necessity of reading contract, 41. plaintiff prevented from investigation, 42, 43. sales at risk of purchaser, 44. parties not on equal footing, 44. Intention that Representation should be acted on, 45-47. explanation of this expression, 45. reasonable inference of such intention, 46. intent to injure, 47. Acting on Representation, 47-49. damage, 47. preventing one from attaching property, 48. when plaintiff entitled to act on representation, 48. Slander of Title, 49-53. elements of action for, 50. Trade-marks, 51, 52. elements of action for, 52. DEFAMATION. {See Slander and Libel.) DEMAND AND REFUSAL, when necessary to constitute conversion, 220-222. DESIGNS, infringements of patents for, 229, 230. DETENTION, of prisoner by officer, 142, 143. DIGESTS, when infringements of copyright, 210. DIRECTORS OF CORPORATION, misrepresentations by, 36. liability of, for negligence, 312, 313. DISEASE, imputation of having disgraceful, 92, 93. DISMISSAL OF SUIT, in actions for malicious prosecution, 57-G1. DRUNKENNESS, imputation of, against a woman, 91, note. DURESS, effect of/J3. 368 INDEX. E. EFFIGY, defamation by, 99. ENTICEMENT AND SEDUCTION, elements of action, 163. Parent and Child, 164-170. ground of parent's rights of action, 164. animus revertendi, 164. child of age, 165, 166. fraud on parent, 165. acts of service, 165. majority of daughter, 166. pregnancy and disease, 166. willingness of daughter, 167. mother's right of action, 168. seduction of daughter away from home, 169. action by daughter, 169. consent or misconduct of parent, 169, 170. Guardian and Ward, 170, 171. suit by guardian, 170. Husband and Wife, 171-177. gist of action by husband or wife, 171, 172. liability of parent for enticing daughter from husband, 172, 173. harboring wife, 173, 174. seduction after wife's separation, 175, 176. infidelity of husband, 176. consent or misconduct of husband, 176. condonation, 177. ENTRY, rights of, 180, 192-197. forcible, 194, note. ESCAPE OF ANIMALS. (See Animals.) ESCAPE OF DANGEROUS ELEMENTS OR SUB- STANCES, Nature of Protection required, 277-282. reservoirs, 278. index. :ji;:» ESCAPE OF DANGEROUS ELEMENTS,— continued. effect of gravitation, 279. extraordinary efforts, 279. vis major and act of God, 279, 280 legislative authority, 280, 281. fall of snow or ice, 281, 282. damage from blasting, 282. explosion of boiler, 282. EXECUTORS AND ADMINISTRATORS, liability for negligence, 311. EXPLOSION, damage from, 282. F. FALSE IMPRISONMENT, Nature of Restraint, 137-140. submission to restraint, 138. partial restraint, 139. Arrest with Warrant, 140-156. officer's justification, 140. arrest of wrong person, 140. misleading officer, 141. description in writ of person intended, 141. misnomer, 111. acts in excess of authority, 142. oppressive conduct, 142. detention after writ has expired, 142. detention on other writs, 143. retaking escaped prisoner, 144, 145. in civil cases, 111. in criminal cases, 144, 145. invalidity of writ, and effect on officer, 145. writ void or not, when, 145, 146. officer's liability restated, 146. liability of clerk, 147, 148. liability of judge, 149-151. summary, 151. liability of plaintiff and his attorney, 151-154. 24 370 INDEX. FALSE IMPRISONMENT, — continued. distinction between civil and criminal cases, 154, 155. setting aside the writ, 155, 156. malicious prosecution, 156. Arrests without Warrant, 156-162. when proper, 157. arrest on the spot, 157. on suspicion of felony by officer, 157, 158. reasonable cause, 158. misdemeanor, 160. arrest after tefmination of breach of peace, 160. right of private citizen to arrest, 161. FELLOW-SERVANTS, injury by negligence. of, 332. who are, 333. FINDING, gives right of possession against wrong-doer, 206, 207. FORCIBLE ENTRY, by licensee, 194, note. FOX'S ACT, practice under, 85, note. FRAUD, how proved, 37. makes sale voidable, 211. (See Deceit.) FRUIT, falling upon another's land, 196. G. GRATUITY, interfering with enjoyment of, 12, 83. GUARDIAN AND WARD, seduction of ward, 170, 171. H. HARBORING, of servant, 163. of wife, 173-175. INDEX. 371 HIGHWAYS, obstructing, 269, 270. HOUSES, fall of, 243-250. HUSBAND AND WIFE, defamation of either, 87, note, harboring wife, 173, 174. i seduction or enticement of wife, 171-177. infidelity of husband, 170. condonation of offence, 177. I. IDENTIFICATION, of passenger with carrier, 352-351. IMPRISONMENT. (See False Imprisonment.) IMFUTABILITY, of negligence of parent or guardian to child, 354-358. INFAMOUS PUNISHMENTS, what are, 90, note. INNKEEPERS, general duties of, 292, 293. INTENT, in deceit, 45-47. in assault and battery, 122, 126, 127. in conversion of goods, 218. INTERPRETATION OF LANGUAGE, in deceit, 24, 25. in cases of slander, 85-87. J. JEOPARDY, in suits for malicious prosecution, 58-61. JUDGE, liability of, for false imprisonment, 149-151. not liable for negligence, 316, 317. 372 INDEX. K. KNOWLEDGE OF FALSITY, in suits for deceit, 34. L. LANDLORD AND TENANT, landlord's right of action for injury to reversion, 181. LANGUAGE, interpretation of, 24, 25, 85-87. LATERAL SUPPORT. (See Supports.) LAWYERS, advice of, in arrests, 66-69. liability for false imprisonment, 151-154. for negligence, 301-303. LECTURES, unauthorized publication of, 235, note. LEGAL ADVICE, acting on, in making arrest, 66-68. LIBEL. (See Slander and Libel.) LICENSE, nature of, 192, 193. revocation of, 193. duty to licensee in regard to condition of premises, 318-324. (See Trespass.) LITERARY CRITICISM, when libellous, 116. M. MACHINES, infringement of patents of, 226-229. MAINTENANCE, actions for, 74. INDEX. 373 MALICE, in what it consists, 5, 70, 71, note, 80. (See Conspiracy ; Malicious Pkosecution ; Slander and Libel.) MALICIOUS APPEALS, statute of, GO, note. MALICIOUS INTERFERENCE WITH CONTRACT, Malice, 80-82. Damage, 82, 83. MALICIOUS PROSECUTION, elements of the action, 54. criminal and civil prosecutions, 55. Termination of the Prosecution, 55-61. acquittal of party prosecuted, 57. civil suit terminated, how, 57. dismissal of action, 57, 58. discontinuance, 58. criminal suit terminated, how, 58. dismissal by prosecuting officer, 58. return of ' not found,' 59. prosecution before magistrate, 59. dismissal of, 59. jeopardy of prisoner, 60. Statute of Malicious Appeals, 60, note. summary, 60. Want of Probable Cause, 61-69. meaning of term, 61. slight circumstances of suspicion, 61, 62. how probable cause to be determined, 62. judgment of conviction, 63. belief in guilt of accused, 63. discharge by magistrate, 64, 65. abandonment of prosecution, 66. advice of lawyer, 66-69. evidence of malice not proof of want of probable cause, 69. a question of law, 69. Malice, 69, 70. evidence of, necessary, 69, 70. Damage, 71, 72. 374 INDEX. MALICIOUS PROSECUTION, — continued. when to be proved, 71. Analogous Wrongs, 72-74. action for slander, 72. abuse of process, 72, 73. duress, 73. MANUSCRIPT, copyright in, 235, note. MASTER AND SERVANT, charges by master affecting servant's character, 95, 112. defence of master, 132. defence of servant, 132. servant's right of action for battery, 133. master's right of action for battery of servant, 133. death of servant, 136. servant has no possession, 208. servant's liability to master, 309, 310. injuries to servants by condition of master's premises or machinery, 329-339. Assuming the Risk, 329-339. negligence of fellow-servant, 332-334. (See Enticement and Seduction.) MEANS OF KNOWLEDGE, in actions for deceit, 38-40. MEDICAL MEN, duties of, 303, 304. MENACES, actionable if followed by special damage, 121, note. MENTAL DISTRESS, as special damage, 88. MILLS. (See AVatercourses.) MISDEMEANOR, false charge of committing, 91. arrests for, 160. MORAL TURPITUDE, offences involving, 91. INDEX. 3T5 N. NECESSITY, entry from, 107. NEGLIGENCE, Legal Conception of, 28G-292. acts or omissions may constitute, 287. standard of the prudent man, 288, 289. province of court and jury, 290, 291. Innkeeper and Guest, 292, 293. innkeeper and insurer, 29l'. negligence of guest, 292. Bailor and Bailee, 293-300. common carriers, 293. degrees of negligence, 293-295. the true criterion, 29.3, 296. ordinary can-, 297, 298. bailment for services, 29S-300. exercise of skill, 299, 300. inherent defect in goods to be wrought upon, 300. Pro/< sximml Services, 300-304. extraordinary skill not required, 301. duties of attorneys, 301-303. duties of medical men, 303, 304. gratuitous services of, 304. Telegraph Companies, 305, 306. care in transmitting messages, 305. conditions limiting liability, 3()5, 306. liability to him to whom the message is sent, 306. Liability of Agents, Servants, Trustees, and the Like, 307- 313. agent's liability to principal, 307-309. extraordinary emergencies, 308. agents for insurance, 308, 309. servant's liability to master, 309, 310. ratification, 310. liability of trustee, 310-313. executors, administrators, and assignees, 311 obtaining legal advice, 311, 312. directors of corporations. 312, 313. 376 INDEX. NEGLIGENCE, — continued. Public Bodies and Public Officers, 314-317. officers of government, 314. officers of the courts, 315-317. judges and arbitrators, 316, 317. Use of Premises, 317-329. duty of occupant to trespassers, 317. to bare licensees, 318-321. pits adjoining highway, 319, 320. invited licensees, 321-324. customers, 324-329. place where injury happened, 326, 327. business of the occupant, 328, 329. Master and Servant: Assuming the Risk, 329-339. exemption of master, 329-339. master's duty, 329-331. negligence of fellow-servant, 332, 333. who are fellow-servants, 333. ordinary risks, 332-334. extraordinary risks, 334-338. Contributory Faidt, 339-346. meaning of ' contributory,' 339-342. ground of doctrine, 339, 340. unlawful acts not per se contributory, 342-344. violations of Sunday law, 342-344. 'due care,' 344-316. Comparative Negligence, 347. Intervening Forces, 347-358. cases growing out of contract, 347-352. identification of passenger with carrier, 352-354. imputability of parent's negligence to child, 354-358. negligence of child, 355-358. NOLLE PROSEQUI, in suits for malicious prosecution, 59. NOTICE, by registration, 40. of vicious propensity of animals, 272-275. of danger, 274, 318, note. such as spring guns, 318, note. INDEX. &77 NUISANCE, overhanging trees, 196, note. What constitutes, 200-271 locality, 'J'j'J, 'convenient ' place, 200, 261. slight detriment to property, 261, 202. notice of nuisance, 202. flooding a neighbor's land, 203, 264. surface-water, 264. water of drains and ditches, 201. pollution of streams, 264, 205. milling operations, 205. smells and gases, 205, 200. disturbance of peace of mind, 207 public nuisances, 207-271. special damage. 208, 209. removing obstructions, 209. circuitous routes made necessary by obstruction, 270, 271. 0. OFFICERS. (See Assault and Battery ; Directors of Corporations ; False Imprisonment; Public Officers.) PARENT AND CHILD, protection of child from battery, 133. seduction of child, 104-170. (See Enticement and Se- duction.) injury of child by parent's negligence, 354, 355. PARTY WALLS, removing support of, 24S-250. PASSENGER, identification of, with carrier, 352-354. PATENTS AND COPYRIGHTS, Infringement of Patent, 223-233. statutory provisions, 223, 224. 378 INDEX. PATENTS AND COPYRIGHTS, —continued. making, using, or vending, 225. machines, 226-229. mechanical equivalents, 227-229. better execution, 227, 228. difference in substance, 228. designs, 229, 230. mere making, 230. unauthorized sale, 231. . product of patented machine, 231, 232. Infringement of Copyright, 234-24.1. statutory provisions, 234, 235. •what belongs to authors, 235. head-notes of law reports, 236. animus furandi, 236, 237. quantity of matter taken, 237. quotation for criticism, 237. imitations of copyrighted matter, 238. common sources of information, 238. abridgments, 239. digests, 240. translations, 240. PERJURY, false charges of, 86. PHYSICIANS AND SURGEONS, duties of, 303, 304. PLEDGE, gale of, 212. POLLUTION OF STREAM. (See Watercourses.) POSSESSION, constructive, 185, note, symbolical, 185, note. (See Conversion; Trespass.) PREMISES, use and condition of, 317-329. (See Negligence.) INDEX. 379 PRINCIPAL AND AGENT. (See Agents.) PRIVILEGED COMMUNICATIONS, in slander and libel, 9!)- 118. (.See Slander and Libel.) PROBABLE CAUSE, want of, 61-69, 79. PROFESSIONAL SERVICES, duties by persons rendering, 300-304. (See Negligence.) PROSECUTION, termination of, 55-61. PUBLICATION, of slander or libel, 87-90. PUBLIC MEN, criticism of, 116. PUBLIC OFFICERS, liability for negligence, 314, 317. PUBLISHERS OF BOOKS AND PAPERS, liable for defamation, 97, 98. PUNISHMENT, when infamous, 90, note. R. RAILWAY TIME-TABLES, representations by, 35, note. REASONABLE CAUSE, want of, 61-69, 79. RECAPTION, in civil cases, 144. in criminal cases, 144, 145. REGISTRY, notice by, 40. REPETITION, of defamation, 115. 380 INDEX. REPORTS, of trials, when privileged, 106, 107. copyrights of, 236. REPRESENTATION. (See Deceit.) RESCISSION OF CONTRACTS, for misrepresentation or other wrong, 41, 42. RESERVOIRS, breaking of, 278. REVERSION, injuries to, 183, 184. RIOT, acts done in quelling, 132. S. SALES, ' with all faults,' 44. (See Conversion ; Deceit.) SCIENTER, proof of in deceit, 34. SEDUCTION. (See Enticement and Seduction.) SELF-DEFENCE, in protection of person, 130. protection of property, 130. protection of family, 132. SERVANT, (See Master and Servant; Negligence.) SIMPLEX COMMENDATIO, meaning of, 26. SLANDER AND LIBEL, kinds of actionable defamation, 84. Interpretation of Language, 85-87. Fox's act, 85, note, doctrine of mitiori sensu, 86. perjury, 86. INDEX. 3M SLANDER AND LIBEL, — continued. natural meaning, 86. Publication and Special Damage, 87-90. what constitutes publication, 87. sickness and distress of mind, 87. loss of marriage, 89. loss of consortium, 89. Indictable Offence charged, 90-92. infamy of, 90. misdemeanor, 91. degradation, the criterion, 91. Contagion* and disgraceful Disease charged, 92. charge of having had same, 92. Charge affecting Plaintiff in his Occupation, 93-95. natural tendency of charge, 93. eharges affecting servants, 95. positions of mere honor, 9">. party not in exercise of his occupation, 95. Charge tending to Disherison, 96. bastardy, 96. Libel, 90-98. of wider extent than slander, 96, 97. publishers, editors, and booksellers, 97, 98. Truth of Charge, 98, 99. a good defence, 98. belief in truth, 99. effigy, picture, or sign, 09. Malice and Privileged Communications, 99-118. malice in law, 99. malice in fact, 99. occasion of publication, 100, 101. absolute privilege, 101. arguments of counsel, 101, 102. allegations in pleadings, 102. affidavits, 103. statements of witnesses, jurors, and judges, 103, 104. proceedings in Legislature, 101. prima facie privilege, 105. proceedings before church organizations, 105, 106. reports of trials, 10G, 107. 382 index. SLANDER AND LIBEL, — continued. headings to, 107. ex parte proceedings, 108. matters of public interest, 108, 109. publication of legislative proceedings, 109. communications to public authorities, 109, 110. conduct of public officers, 116. use of public prints, 111. vindicating character, 111. voluntary communications, 112, 113. statements on inquiry, 113, 114. communications by master concerning his servant, 112. near relationship, 114. confidential relations, 113. summary of doctrine of privileged communications, 115. repeating defamation, 115. criticism, 116. defamatory accusation prosecuted, 118. SLANDER OF TITLE, nature of wrong, 49-53. form of declaration, 50, note. SMELLS, DISAGREEABLE, when nuisance, 265, 266. SNOW AND ICE, land covered with snow, 40, note, injury by fall of from building, 281, 282. SON ASSAULT DEMESNE, what amounts to, 129, 130. SPECIAL DAMAGE. (See Damage.) SPECIAL PROPERTY, meaning of, 203. (See Conversion ; Trespass.) SPORT, acts done in, 128. STOCKS, punishment by, 90, note. INDEX. 383 SUCCOR OF BEAST, entry for purpose of, 190. SUNDAY LAW, injury while in violation of, 342, 343. SUPPORTS, Lateral Support, 242-250. natural condition of soil, 212. superincumbent weight, 243, 241. lateral support of buildings, 2 1 1. depends on grant or prescription, 211. subsidence not caused by weight of buildings, 244, 245. lateral support of contiguous buildings, 210, 247. depends on grant, reservation, or prescription, 247. keeping house in repair, 247, 248. party-walls, 248-250. Subjacent Support, 250-252. freehold beneath surface, 250. nature of right of support, 250, 251. buildings, 251. support of upper tenements, 252. SURFACE WATER. (See Watercourses.) SURGEONS, duties of, 303, 304. T. TELEGRAPH COMPANIES, care in transmitting messages, 305. conditions limiting liability, 305, 306. liability to him to whom the message is sent, 306. TENANTS, in common, 186. (See Landlord and Tenant.) TERMINATION OF PROSECUTION'. CSee Malicious Prosecution.) 384 INDEX. THIEF, possession by, 182, note. TRADE MARKS, infringements of, 51-53, 233, 234. injunction, 52, note. TRANSLATION, infringement of copyright by, 240. TREES, fruit of, falling upon another's land, 196. TRESPASS, general meaning of, 178. Possession, 178-191. necessity of, 178, 179. without title, 186 several in possession adversely to each other, 180. possession of personalty, 182. possession of thief, 182, note. injury to reversion, 183, 184. waste, 184. personalty in hands of a bailee or lessee, 184, 185. constructive possession, 185, 186. possession of cotenants, 186. ouster, 187. withholding possession from cotenant, 187. mesne profits, 189. recovery of possession, 188, 189. successor by descent or purchase to disseisor, 189. What constitutes Trespass, 191-202. trespass to land, 191. entry justifiable when, 192, 193. trespass ab initio, 198. property in animals, 196. right to kill another's animals, 201. duty towards, 202. TRESPASS AB INITIO, meaning of, 198. TRESPASSERS, duties of occupants of premises towards, 317, 318. INDEX 385 TRUSTEES, liability of, for negligence, 310, 311. TRUTH, as a defence in suits for defamation, 08, 99. U. USUFRUCT. (See Watercourses.) V. VALUE, misrepresentations of, 26-28. VIS MAJOR, breaking of reservoirs by, 279, 280. W. WANT OF PROBABLE CAUSE. (See Malicious Prosecution.) WARRANT. (See False Imprisonment.) WARRANTY, distinguished from representation, 18, 19. implied, 35, 36. WASTE, duty to refrain from, 184. WATERCOURSES, Usufruct and Reasonable Use, 253-257. water in denned channels, 253, 254. what amounts to unreasonable use, 254. water taken for mills, 256. diverting stream within one's land, 256. riparian rights in the Pacific States, 257. grant or prescription, 257. surface water running in no defined channel, 257. Subsurface Water, 258. 25 886 INDEX WATERCOURSES, — continued. percolating water, 258. underground stream, 258. flooding lands, 263. water in drains and ditches, 264. pollution of stream, 264, 265. legislative authority, 264. milling operations, 265. WRIT. (See False Imprisonment.) University Press: John Wilson & Son, Cambridge. THE STUDENTS' SERIES. ELEMENTARY LAW TREATISES BY ABLE WRITERS, including the most important topics of law. The volumes of the Students' Series are in use as Text-Books in leading Law Schools throughout the United States. In planning this series of law books for students, you have rendered a very great ser- vice, not only to the students themselves, but also to the profession. There has been no greater obstacle to all efforts fur a hit/her standard of legal education than the lack of such books. — Prof. William Q. Hammond, Law Department, Iowa State University. // these unpretending volumes, so full of instruction, are estimated at their true value, their sale and cir< ill not be confined to the legal profession alone. — Hox. John Cbowell, LL.D., President of Ohio State and Union Law College. The plan needs only development to rendt r it popular, and iIk' volumes now out are fi worthy execution of it. . . . Either volume would serre the purposes of a mature lawyer, desiring to refresh his memory of the general principles of the subject. — N. Y. Times. VOLUMES READY. BIGELOW ON TORTS. BIGELOW ON EQUITY. HEARD ON CRIMINAL PLEADING. HEARD ON CIVIL PLEADING. COOLEY ON CONSTITUTIONAL LAW. LANGDELL'S SUMMARY OF CONTRACTS. CURTIS ON UNITED STATES COURTS. MAY ON CRIMINAL LAW. STIMSON'S LAW GLOSSARY. ROBINSON'S ELEMENTARY LAW. EWELL'S MEDICAL JURISPRUDENCE. STEPHEN'S DIGEST OF EVIDENCE. ROBINSON ON FORENSIC ORATORY. BIGELOW ON BILLS, NOTES, AND CHECKS. BRYANT ON CODE PLEADING. Volumes on Agency, Contracts, Corporations, Insurance, Sales} and Wills are in preparation. PRICE OF EACH VOLUME. — Cloth, S'J.DO net; Law Sheep, S3.00 net Postage 10 cents per volume additional. I. BIG-ELOW ON TORTS. The style is attractive, the definitions concise and accurate, and the size of the volume so moderate as to he equally attractive hoth to the practitioner and the student.— From Hon. John Crowell, President of Ohio State and Union Law College, Cleveland. ELEMENTS OF THE LAW OF TORTS FOR THE USE OF STUDENTS. — By Melville M. Bigelow, Ph.D., author of "A Treatise on the Law of Estoppel," "A Treatise on the Law of Fraud," and Editor of " Leading Cases in Ihe Law of Torts," etc. Fourth edition, revised and enlarged. Cloth, $2.50 net; law sheep, $3.00 net. Among the best books for the use of students, this popular manual de- servedly takes a high rank. It is in use in law schools all over the country: for example, in Boston University; University of Michigan; Northwestern University, Chicago; University of Texas; Washington and Lee University; also in Canada at the Osgoode Hall Law School, Toronto ; and a few years since was adopted as a text-book in the famous university of Cambridge, England. Probably no other students' book is so widely used. The new fourth edition embraces many late cases, and a new chapter on Malicious Interference with Contracts. The whole book has been carefully revised, and many passages rewritten. It seems to me admirably adapted to the purpose for which it is written. Mr. Bigelow is very happy in his statement of legal principles, and nowhere so much so, I think, as in this book. — Hon. Thomas 31. Cooley. I have looked through this volume with particular interest, from my own expe- rience in teaching the same topic ; and I have do hesitation in saying that it is much better fitted for the student than any work on Torts we have had before. — Prof. William G. Hammond. 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 Stu- dents' Series. — Hon. Morrison R. Waite, Chief Justice of the United States. Its methodical arrangement of the classes of Torts, its clear style, and its simple man- ner of treatment, render it specially useful to beginners in the study of \a.\\. — James B. Black, Central Law School of Indiana. 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 literature. — Boston Daily Advertiser. II. BIGELOW ON EQUITY. The arrangement and treatment of the subject are admirable.— From Samuel D. Davis, Professor of Law, Richmond College, Virginia. ELEMENTS OF EQUITY FOR THE USE OF STUDENTS. — By Mel- ville M. Bigelow, Author of "Law of Estoppel," " Law of Fraud," etc. 12mOi Cloth, $2.50 net; law sheep, $3.00 net. A clear and compact treatise, well fitted to be a manual of a student of law. — Hon. John Bascom, University of Wisconsin. I have examined Bigolow on Equity. It ia to be commended for its clearness and conH.-u'iic-s nf -r i .ment. 1 regard the first chapter as a model, The doctrines of Tack- ing, Subrogation, and HarshaUing, found in Chapters 14, lit, and 20, are more easily comprehended than in any other work on those subjects that I have seen. — lion ./. II. Carpenter, Dean of Law Faculty, University oj Wisconsin, III. HEARD ON CRIMINAL PLEADING. It deserves an important position among the teyt-books in every Law School In the country. — From William ('. Robinson, Professor of Criminal Law, etc., Yale < 'allege. THE PRINCIPLES OF CRIMINAL PLEADING. -By Fkanki.in Fiske Hbabd. 12mo. Clotb, S2.50 net} law sheep, S3. 00 net. The style in which the author writes is admirably adapted to the object to be accom- plished, — it is clear and precise, and the whole matter is kept within the bounds of a manual. — .V. 1 An Interesting manual, thoroughly supported by legal authorities. — lion. John Buscom, University of Wisconsin. IV. HEARD ON CIVIL PLEADING. An admirable companion volume to his "Principles of Criminal Pleading," — full, clear, concise. — From Lemuel Moss, Indiana University, Bloomingion. THE PRINCIPLES OF PLEADING IN CIVIL ACTIONS. —By Franklin Fiske Hbabd, Author of "The Principles of Criminal Pleading." 12mo. Cloth, $2.50 net; law sheep, $3.00 net. lie has taken the leading and established rules, and illustrated them by ample cita- tions from ancient and modern learning. Whoever shall make himself thoroughly acquainted with those rules as here laid out and enforced, cannot fail of being a good pleader. — Boston Courier. 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, and its silence in regard to many of the formal and adventitious technicalities of the older English system will commend it to American readers. — Hon. Simeon E. Baldwin, Law Dep \rtnn nt of Yale College. V. COOLEY ON CONSTITUTIONAL LAW. No Lawyer can afford to be without it, ami every voter ought to have it. — From Hon. J. II Carpenter, Dean of Law Faculty, University of nsin. THE GENERAL PRINCIPLES OF CONSTITUTIONAL LAW IN THE UNITED STATES OF AMERICA. — By Thomas M. C iy, Author of "A Treatise on Constitutional Limitations." Second edition, by Alexis C. Angell, of the Detroit Bar. 12mo. Cloth, $2.50 net; law sheep, $3.00 ntt. The new edition contains large additions. In its preparation, the editor, while aiming t<> keep the book a manual, and not to make it a digest, has treated briefly all important points covered by the cases 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. A masterly exposition of the Federal Constitution as actually interpreted by the courts. . . . This book, of moderate dimensions, should be placed in every student's hands. — Hon. P. Bliss, Dean 0/ Law Department, State University of Missouri, It is worthy of the reputation of the distinguished author. It, is the 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. 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, Dean of the St. Louis Law School. Clearly and compactly written, and the general arrangement well adapted for students' use. — Hon. Simeon E. Baldwin, Law Department of Yale College. I have examined it with great care, comparing it closely 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 collegiate depart- ment, 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 Michigan, led me to expect in whatever he undertook. Judge Cooley is fortunate in having so excellent an editor for the revision. — Letter from George W. Knight, Professor of International and Consti- tutional Law, Ohio State University. Your name alone as its author is a sufficient guarantee of its high character and gen- eral 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. Horlon, Chief. Justice of the Supreme Court of Kansas, to Judge Cooley. VI. LANGDELL'S SUMMARY OF CON- TRACTS. No man competent to judge can read a page of it without at once recognizing the hand of a great master. Every line is compact oi ingenious and original thought. — American Law Review. A SUMMARY OF THE LAW OF CONTRACTS. — By C. C. Langdell. Dane Professor of Law in Harvard University. Second edition. 12mo. Cloth, $2.50 net ; law sheep, $3.00 net. 4 VII. CURTIS ON UNITED STATES COURTS. A work of the highest Standard on the subject treated — Botton Pott. CURTIS ON THE UNITED STATES COURTS. — Jurisdiction, Practice, and Peculiar Jurisprudence of the Courts of the United States. By Bkn.iamin R. Curtis, LL.D. Edited by George Ticknor Cuktis and Benjamin ];. (i kt&. l2mo. ' loth, 8>2.50 net; law sheep, $3.00 net. These lectures were delivered by the late Judge Curtis to a class of students in the Harvard Law School, in the academic year 1872-73. Cannot fail to be of great service to the student in the prosecution of his legal studies. Chicago Legal Newt. It is by far the besi 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. Edmund H (t, Dean of School of Law, Boston University. There is not to-daj in existence so admirable a treatise on United States courts and their jurisdiction as this little book. — Milwaukee Republican. VIII. MAY'S CRIMINAL LAW. I have carefully examined and read through May's Criminal Law, This work is certainly one of distinguished merit. Its definitions and statements of principles are clear and concise. Its discussions of doubt- ful or controvert, d points are calm and scholarly. The cases to which it refers embrace the most recent English and American decisions, and therefore, both as a vade mectim for the criminal lawyer and as a text- hook for the student, it must at once take a high position in the literature of that hi -audi of jurisprudence. —From William C. Robinson, Profetsor of Criminal Law, tic, Yale College. THE LAW OF CRIMES. — By J. Wilder May, Chief Justice of the Municipal Court of the City of Boston. Second edition, edited by Joseph Henrt Be ale, Jr., Assistant Professor of Law in Harvard University. 12mo. Cloth. 82.50 net; law sheep, §3.00 net. This new edition of Judge May's deservedly popular work contains large additions. The editor Btates 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 tirst chapter, which contains the general principles underlying the criminal law. It is to be especially commended for its clear and concise definitions, as also for its citations of lea.Hm meetly upon the matter under discussion. — From J. H. Carpenter, Dean of I iversityof Wisconsin. It is not a mere synopsis, but an 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 Laic Journal. IX. STIMSON'S LAW GLOSSARY. It is a valuable addition to the Students' Series, and I shall cordially recommend it as a first dictionary to our students. — Hon. Edmund H. Bennett, Bean of School of Law, Boston University. GLOSSARY OF TECHNICAL TEEMS, PHEASES, AND MAXIMS OF THE COMMON LAW. — By Frederic Jesui- Stimson. 12mo. Cloth, §2.50 net ; law sheep, $3.00 net. A concise Law Dictionary, giving in common English an explanation of th« words and phrases, English as well as Saxon, Latin, or French, which are of common technical use in the law. The information crowded by Mr. Stimson in his duodecimo volume of a little more than three hundred pages, is very great ; his explanations are given with remarkable brevity, and legal technicalities are avoided so completely as to make the work a valu- able and welcome supplement to the common English Dictionaries. — Boston Daily Advertiser. X. ROBINSON'S ELEMENTARY LAW. The hook 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 con- sult the references. —Prof. M. F. Force, LL.D., Cincinnati Law School. ELEMENTARY LAW.— By William C. Robinson, LL.D., Professor of Elementary Law in Yale College. 12mo. Cloth, $2.50 net; law sheep, $3.00 net. It 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 volume is used largely in law schools, and the author has a special knowledge of the requirements of the student, being a leading instructor at the Law School of Yale College. The student who intelligently studies this work may store his mind with lucid and concise statements of the leading topics of law; and, having been grounded in this primary information, a course of read- ing is laid down, including the best text-books together with the special por- tions of the works which relate to the subjects in question. It may also be used with great benefit as a review book for examinations. The purpose of this most useful elementary work cannot better be explained than by here reprinting, from page 33, Section 61, relating to Transfer of Estates: — Section 61. Of the Ownership and Transfer of Estates. An estate may belong to one person or to several persons collectively. It may also be transmitted from one person to another, or lesser estates may be carved out of it by the owner and be granted to others. The relation between 6 co-owners or successive owners of the same estate, or between persons one of whom derives hi^ estate from the other, is known as privity ofest'Ue. Read 2 Bl. Comm., pp. 107, 17:'. 200, 301. 1 Wash. R. P., B. i, •'!,. xiii, Sec. I, §1. 2 Wash. l;. P., B. ii, Ch. i. Sec. 1, § 10. 1 Greenl. Ev., §§ 181), 623. The principles are admirably stated. — Albany Law Journal. It would be a benefit to every law student to put this volume into his hand, and maka It his vade mecttm throughout the whole of his professional studies. — Boston Advertiser. It might worthily be adopted as a text-book for every senior class in a male or female college, and will be found an invaluable accession to every public and private library. — Fork World. XI. EWELL'S MEDICAL JURISPRUDENCE. It ts excellently done. I wish It might be read by every student of law as well as by every student of medicine. — Prof. Henry Wade Rogers, University of Michigan. A MANUAL OF MEDICAL JURISPRUDENCE FOR THE USE OF STUDENTS AT LAW AND OF MEDICINE. — By Marshall D. Ewell, M.D., LL.D., 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 com- pass, states all the leading facts and principles of the science concisely and yet clearly. In it will he found the substance of all the principles stated in the more voluminous and expensive works. XII. STEPHEN'S DIGEST OF EVIDENCE. Short as it is, I believe it will be found to contain practically the whole law of the subject. — The author. A DIGEST OF THE LAW OF EVIDENCE. — By Sir James Fitzjames Stephen, K.C.S.I., a Judge of the High Court of Justice, Queen's Bench Division. From the Fourth English Edition. With Notes and Additional Illustrations to the Present Time, chiefly from American Cases, including those of John Wilder Mat, late Chief Justice of the Municipal Court of the City of Boston, author of "The Law of Insurance," etc. 12mo. 251 pages. Cloth, $2 50 net ; law sheep, $3.00 net. A full and exact reprint of the Fourth (latest) English Edition, revised by the author, with references to American cases. Many editions of the work have been published in America, but the present will be found to be the most useful, as it includes the very valuable notes prepared by the late John Wilder May, author of "The Law of Crimes," etc., together with a selection of cases and references supplementing his important editorial work. 7 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. 251 pages. Cloth, $2.50 net; law sheep, $3.00 net. A full and exact reprint of the Fourth (latest) English Edition, revised by the author, with references to American Cases. Many editions of the work have been published in America, but the present will be found to be the most useful, as it includes the very valuable notes prepared by the late John Wilder May, author of "The Law of Crimes," etc., together with a selection of cases and references supplementing his important editorial work. XIII. ROBINSON'S FORENSIC ORATORY. This is a book which no student of law can afford to pass by -with- out a thorough study of it. It is also a work which no practising lawyer who understands 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. FORENSIC ORATORY : A MANUAL FOR ADVOCATES. — By William C. Robinson, Professor of Elementary Law in Yale College, author of " The Law of Patents for Useful Inventions," " Elementary Law," etc. 12mo. Cloth, $2.50 net; law sheep, $3.00 net. A new and suggestive work on the Duties and Functions of the Advocate. The chapters on the Presentation of Ideas by 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. XIV. BIGELOWS BILLS, NOTES, AND CHECKS. ELEMENTS OF THE LAW OF BILLS, NOTES, AND CHECKS. — By Melville M. Bigelow, Ph.D., author of " Elements of the Law of Torts," etc. 12mo. Cloth, $2.50 net; law sheep, $3.00 net. Mr. Bigelow's reputation as a clear, logical, and strong student and instructor in the law is established by his standard treatises no less than by the masterly " Elements of Torts," so well known to and extensively used by teachers and students of law. To the preparation of the "Bills and Notes" he has given much time, labor, and research. No better book on the elements of the sub- ject has been offered to the student or practitioner. It is a discussion of the Elements of the Law of Bills and Notes, not an elementary treatise in the sense of touching on the simpler questions only. The groundwork of the law, complex as well as simple, is discussed fully, clearly, and exhaustively. Cases that are really leading cases are referred to in sufficient number to illustrate and support the points of law stated. I believe it to be decidedly the best student's book upon the subject that has yet appeared.— Prof. F. R. Mechem, Law Department, Michigan Stat* Univtrsity. 8 To accompany the foregoing work: CASES ON THE LAW OF BILLS, NOTES, AND CHECKS. —Edited by Mei.vili.k M. BlGELOW. To accompany "The Elements of the Law of Bills, Notes, and « hecks." Crown 8vo. Cloth, $3.00 ntt. Recognizing the necessity of the close study of cases, and the difficulty expe- rienced by the greater number of students in getting control of the volumes of reports, for more than a passing examination, if at all, Mr. Bigelow has col- lected eighty or ninety cases which he deems most useful for the purpose of analytical study of the subject, and embodied them in this book. The most itutructivi cases, those most clearly reasoned and most plainly decided, have been chosen, because they were clear and instructive. Neither have the most ancient or always the most recent been taken, for either of those reasons, but those best calculated to teach the student how and why the point of law under consideration was settled. XV. BRYANT ON CODE PLEADING. The science of Code Pleading being a development of the last fifty years, and getting its shape and form gradually from the decisions of the courts as well as from the enactments of the law-making bodies, it is only within a few years that text writers have treated it in any satisfactory way. THE LAW OF PLEADING UNDER THE CODES OF CIVIL PROCE- DURE. — With an Introduction briefly explaining the Common Law and Equity Systems of Pleading, and an Analytical Index, in which is given the Code Provisions as to Pleading in each of the States which have adopted the Reformed Procedure. — By Hon. Edwin E. Bryant, Dean of Law De- partment of State University of Wisconsin, and late Assistant Attorney- General of the United States. 12mo. Cloth, $2.50 net; law sheep, $3.00 net. The present work has been prepared to bring within 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 foundation 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 considered, by students at least, as of little importance; to cite and indi- cate 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. XVI. ABBOTT'S LAW OF WILLS. ELEMENTS OF THE LAW OF WILLS. — By Nathan Abbott, Pro- fessor of Wills, etc., at Northwestern University, Chicago. 12mo. Cloth, $2.50 net; law sheep, $3.00 net. (In preparation.) LITTLE, BROWN, & CO., Publishers, 254 Washington Street, Boston. CO CNJ en O CD * LAW L] RY UNIVER.. ALIFOKNIA * I >- en / 1 g if ©I £ y oxmm ' * ucsou IBRARY FACILITY AA 000 694 589 3 SO v/jaaMN(ij^ ^EUNIW/^ ^lOSANCEUj^