* g l^o^? I I <-0^\A. Of- (O-J \ i c c ; ^ W s 7 UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY 7 ^6/j.os combines the senses of ' law ' and ' convention.' Id. p. 54, note. 2 Read v. Friendly Society of Stonemasons, 1902, 2 K. B. 88, 96 ; Walker v. Cronin, 107 Mass. 555, 504. Sect. 1] LEGAL RIGHT: DOMAIN OF TORT 7 he will prevail, not because he has a better right than the plaintiff has, but because the plaintiff, at least against the defendant, has no right at all. The very same facts might however constitute a legal right in favour of the plaintiff, if only the defendant had no legal right or permission to oppose to him 1 . It is proper now to inquire what rights are within the domain of the law of torts. Rights are either of substantive or of procedural law. With procedural rights we are not concerned; this book treats only _. . . of substantive law, not of the machinery by which Rights in rem . ' , J . and rights in the law is enforced. Rights of substantive law personam. ^ an j j n( j ee( j f procedural law, but not on the same lines), in accordance with a division and nomenclature adopted from the Roman law, are in rem or in personam. Rights in rem avail against all the world; rights in personam, only against certain defined or ascertainable persons. The typical example of a right in rem is a right of property ; propriore vigore, that may be enforced against any one and every one whenever occasion arises. The typical example of a right in personam is a right of contract ; that right — the contract right — can be enforced only between the parties to it and their successors. But just as one has the right to enter into contracts freely, so after a contract has been made each of the parties has a corresponding right that others shall not hinder the performance of it without just cause or excuse. It results that a right in personam may generate a right in rem. But the product, it should be noticed, is a very different thing from that which produces it. 1 Another way of putting the same idea is to say that a man's rights con- tract or extend just as his neighbour's rights extend or contract, each affecting accoi'dingly the territory of the other. Or in more common phrase, each man's rights are limited by the rights of all other men with whom he comes in contact. This limitation of rights is an effect (though a necessary effect) of constituted society, not a cause or part of the constitution itself of society. The making of society is to be accounted for in the social instinct, in other words, as Plato put it, in the needs of men. 'What,' says Nettleship, speaking as Plato, 'is the general principle which produces human society? It is want in various forms. Society depends upon a double fact ; the fact that no man is sufficient for him- self (avT&pKT)s), and the complementary fact that other men want him.' Lectures on Plato's Republic, p. 71 ; see also id. pp. 163, 164. 8 GENERAL DOCTRINE [Sect. 1 The law of torts relates both to rights in rem and to rights in personam, though most torts are breaches of rights availing against all the world, that is, are breaches of rights in rem. Another way of putting the division of rights will be found helpful, as serving to explain the origin as well as the nature of rights ; and that is by saying that rights are Rights para- + i 4.1 & . i • j i • mount and paramount or consensual ; the nrst kind desig- rights con- nating those which exist independently of the sensual. .... . will of individuals ; the second, those which come into existence by consent, actual or presumptive. Both classes alike, whichever way designated, create law, in the proper sense of that which, lying fast (lex, legare), binds men together 1 ; for law, as we have seen, consists merely in those relations (of right, privilege, and duty) between citizens which are deemed necessary or helpful to bind citizens together into the organism called the State. Hence both kinds of right are paramount in a sense ; but the one kind exists originally and of its own efficacy and is universal, while the other is brought into existence, typically, by the agreement of two or more persons, and, generally speaking, governs them alone. Still, even with regard to the latter kind of rights, the judges have found it desirable to hold that the relations of the parties to the thing agreed upon are not in all respects consensual, in the sense that there can be no right or duty paramount to the will of the parties in the subject of agreement, a matter to which further attention will be called later on. The law of torts deals with both classes of rights ; with the first class generally, with the second so far as the rights are treated as paramount to the will of the parties. In a word, the domain of the law of torts, so far as rights are concerned, lies in rights paramount, and hence tort, as a ground of action, consists in the breach of a right paramount, that is, of rights established by municipal law. 1 Force by the State is not a part of the definition of law; it is only a concomitant of law, due to disobedience ; men may obey the law, and generally do, though force is absent and unthought of. Sect. 2] LEGAL PRIVILEGE § 2. Legal Privilege Privilege may indeed include legal right, as where it con- sists in special powers granted by law, of which riparian water . privileges would be an example, or where it is sense of mere absolute, of which exemption of a member of the permission. Legislature from liability for words spoken in that capacity would be an example. In that sense it has been disposed of. But the term is also used, as we have already indicated, of mere permissions. In this sense it falls short of full legal right ; towards the person granting it it is now purely negative in character; it does not furnish ground for an action against him 1 . It imports protection, but protection from an action by the party who has conferred it, and not in the way of a ground of action against him. Towards third persons it may indeed confer a right of action, as in the case of a license to enter land, where entry is interrupted by a stranger 2 . But we are not now concerned with the term in any of its aspects of legal right. The conception of privilege thus set forth embraces per- mission of two kinds : first, permission ' by the party,' that is, by consent ; and, secondly, permission ' by the names of law,' that is, permission paramount, since it is privilege. independent of the will of the person against whom it is granted. In either of these cases the privilege may or may not amount to legal right. In substance however it will always be found to amount to permission, under reasonable limits, to inflict harm upon another. In the law books privilege in both senses is found under various designations. In the law of defamation it is called ' privileged communication ' ; in the law of trespass to property it is called 'license.' Often the word 'justification,' taken from the language of pleading, is used as a general, synonymous designation of the idea :i . 1 There are other cases of permission falling short of legal right. See Earl Cowley r. Countess Cowley, 1901, A. C. 450, Lord Macnaghten. 2 Post, pp. 206-208. 3 ' Justilication ' may be of legal right, as in the case of self-defence or 10 GENERAL DOCTRINE [Sect. 2 It is important to understand the ground upon which privi- lege as permission rests ; but nothing more than the general ground itself can be stated here. Privilege as Ground of pri- . . .. vilege: mo- mere permission must ot course rest on terms ; tiveofduty otherwise it would be 'absolute.' Upon what or interest. , , . . . . particular ground it rests in special cases, or in special classes of torts, can only be shown when the special subject arises in the ' Specific Torts ' following this General part. The first class of cases ot privilege, ' by the party,' calls for little comment here. The ground of exemption is consent, which is often expressed by a maxim adopted from the Roman law, 'volenti non fit injuria' — the man who consents to a wrong ('injuria') is barred of an action for it 1 . Privilege ' by the law,' or privilege paramount, finds its origin either in duty or in interest-, and therefore, unlike legal right, rests upon motive. It is of course limited accordingly. Duty as a ground of privilege may be official or quasi- official, or only moral and hence of imperfect obligation. It requires no explanation to show that one must be Official duty. in, i protected from the necessary consequences, how- ever harmful, of discharging a duty which one is expected to perform. A policeman making report to his superior, an officer serving process, a fireman endeavouring to put out a fire, must be exempt from liability for everything done in the discharge of his duty. The law could not be administered upon any other footing in the first and second of these cases ; and in the third it would be difficult to find firemen to protect our homes if the law were otherwise than it is. That privilege may also arise from moral duty is not so obvious ; still the fact rests in principle as well as upon authority. The case springs in essence from an instinctive desire for the preservation of the race, defence of property, or it may be of mere permission, as in the case of license to enter land. 1 Consent or want of consent has nothing to do with the case when the act or omission was lawful; and consent obtained by fraud is no consent in law. Speight v. Oliviera, 2 Stark. 493, as to the last statement. 2 Hebditch ?;. Maclhvaine, 1894, 2 Q. B. 54, C. A. ; Harrison v. Bush, 5 El. & B. 344; Jenoure v. Delmege, 1891, A. C. 73 (Privy Council); Joannes v. Ben- nett, 5 Allen (Mass.), 169. Sect. 3] LEGAL DUTY 1 1 a desire akin to that of self-preservation and equally well- founded. It is not directly necessary to put the case upon the ground of political prudence, which sees in it the welfare of the State, though that, plainly is a consequence of the first ground, and is the final test of duty. I may well enter my neighbour's premises to rescue his beast from the mire ; much more may I enter to save human life ; to hold me responsible for harm done in the reasonable discharge of such a duty would be to find the existence of a relation between my neighbour and me which would tend to anything but to bind us together into the organism which we call the State. Where moral (or indeed official) duty shades into pure voluntaryism, becoming impertinence, may often be a difficult question; but such considerations cannot avail against the existence of the immunity. When it is said that privilege may grow out of interest, the word ' interest ' must be taken in the sense, it seems, of 1 interest,' of legal right, or something in the nature of legal what nature. right. I may have a duty towards my neighbour as my neighbour, from an instinct of humanity; but I have no interest in him simply as my neighbour, except perhaps the shadowy interest in his welfare as one of the multitude of men •composing the State, and so sharing with me its burdens. The interest required must at all events rise higher than desire or even anxiety for another's general welfare 1 . § 3. Legal Duty Legal duty should be considered, not only because of its natural relation to legal right, but because of the course of the Tort on the law. The law has had to look to infractions of side of duty. right, to wrongs or breaches of duty, more directly than to rights, as the word 'tort' itself implies-. The law of torts has been worked out, not directly on the side of rights, not in terms even on the side of the violation of rights, but on the correlative side of duties. 1 See Sheckell v. Jackson, 10 Cushing (Mass.), 25. 2 Latin torquere, tortum; to twist, a thing twisted, distorted, hence a wrong, — through Anglo-French ; at first however only a colourless word. 12 GENERAL DOCTRINE [Sect. 3 Legal duty is created by the presence of legal rights ; I owe legal duties to my neighbour in so far as I come or may come Duty, how into contact with his legal rights. In some cases created. ^his duty is self-evident and self-explanatory ; in other cases explanation may be needed. A few words will make this clear : — An act or an omission may, of itself, be a breach of legal duty, as where I enter another man's premises without his obvious permission or the permission of the law, or where breach of j n \[\^ e m anner I take possession of another man's duty: acts or r omissions of property, or strike another man. In such cases themselves. tne j^ea f \ e g a \ duty needs no comment, unless it be to say that it makes no difference whether or not I know whose rights I am infringing, or that I have no thought of infringing any one's rights. I am not acting upon my own rights, or upon any permission, and I must therefore in a case of the kind be invading another's rights ; that is to say, a legal duty rested upon me in the matter. But the act or the omission may not, of itself, be a breach of legal duty ; something else may be required to create Acts or liability. That that something else must not be omissions brought about by the intention of the one who which need .... , . . . . . to be supple- acts or omits is plain ; the duty again is selt- mented. evident. There may however be a duty though the something else be brought about without intention. On what footinof ? The answer must be, on the ground that danger is observed or observable, and that the impending harm might be avoided. Duty must always spring from facts which are observed or observable ; to found liability on any other footing would be tyranny. It is not necessary that the facts should Observable J J 111 1 facts and actually be observed ; enough that they are such avoidable that a man of fair intelligence would observe them. danger, the & ground of Indeed legal duty does not always arise even when y- danger is observed — there are many cases in which it does not ; but it is a condition in every case to the existence of a duty under the law that danger to another shall be observed or observable. And further still, if the impending harm cannot be avoided there will be no liability, unless the fact that the person on whom the duty is to rest was brought to the place of Sect. 3] LEGAL DUTY 13 danger by his owu misconduct. If he was there by his own misconduct, it will not save him from liability that it is now too late for him to prevent the harm. The duty in such a case lies further back ; it was infringed in the misconduct which led to danger. Assuming however that there was no misconduct, there can be no liability where harm cannot be prevented. Duty imports ability to perform it. There are indeed special cases in which a man may be liable for harm which he could not prevent, though he was free from misconduct in regard to the danger 1 ; but liability in such cases rests on the ground that safety should be insured because of the peculiar danger, rather than on that of duty in the ordinary sense. Legal duty, like the converse or obverse legal right, is duty established by municipal law ; the term ' legal ' necessarily imports as much in both cases. Duty in the foregoing remarks has been generalized in its broadest terms, for all kinds of tort. To attempt specific state- D . . . f ment, by undertaking to say what kind of conduct legal duties one should observe, or refrain from, would be useless. Duty in the law r of torts is of varying kinds, and there is no specific factor common to these various phases ; what would constitute specific duty in one case would not constitute it in another. Still, the various kinds of duty involved in the different torts are capable of being grouped into some three classes. In (what is to appear as) the first and second of the three classes the breach of legal duty is committed directly and at how breach once ' or Provisionally, by a wrongful act ; using of duty is the word 'act' in the sense of a thing done as comKteand tne effect of P s y cllic or mental process, that is, provisional popularly speaking, in consciousness, with purpose, as distinguished from mere reflex or automatic action 2 . The breach is 'direct and at once' where nothing remains to be done to complete it ; it is ' provisional ' where it 1 Chap. xvi. 2 Hence to speak of an 'intended act' is a pleonasm. An ' act ' is necessarily intended, though its consequences may or may not be intended. See Ziehen, Physiological Psychology, 29 (London, 1892). 14 GENERAL DOCTRINE [Sect. 3 is not in itself complete, but requires something to be done by the other party. But in either case the thing complained of is always an act. In the third class of cases the breach of duty is never completed by the misconduct alone ; the breach is always provisional. The misconduct may consist in an act or an omission. The difference between the first two and the third classes of cases, when the breach of duty, being by an act, is provisional, . . lies in the fact that the act in the first two classes Intention and want of in- looks directly forward to the resulting conduct of tention. ^e t ner p ar ty aut } intends it ; while in the third class the resulting conduct, even when preceded by an act, is only an Event, though involving liability by reason of the mis- conduct which caused it. Intention then is the distinguishing feature of the first two classes, and want of intention — now to be called negligence — of the third. Now, in what may be taken as the first of the three classes of breach of duty, a lawful act is done either by wrongful means 1 , or of malice ; by ' means ' being meant Divisions of i, u • v. a • j u duty de- measures by which an act is done, by malice a scribed and certain state of mind in which an act is done. In the second class the act done is in itself un- lawful. In the third, what may, as we have seen, be called an Event has taken place, which event was caused by negligence. Shortly, the three classes may be put thus : 1. Lawful acts done by wrongful means or of malice. 2. Unlawful acts. 3. Events (loss) caused by negligence. This division of torts, covering as it does the whole ground, will be followed in this book, as Part I., Part II., and Part III. 2 Speaking of the first class of cases, it matters not what means may be employed, so long as the means are wrongful ; Wrongful such means will convert the lawful act either into means. an unlawful one or into one which the law will 1 Note that 'wrongful means' imports something short of a tort; otherwise the case would belong to the head Unlawful Acts. - For details see Specific Torts, and the statement following that heading, post, — following this General part. Sect. 3] LEGAL DUTY 15 not uphold. Thus if a man is induced to sell his horse by fraud, or by coercion, threats, or intimidation, what in itself is a rightful act, buying and taking the horse, has by reason of the wrongful means employed become a tort. Of the several means by which a lawful act may be converted into one not lawful, fraud alone will be specially considered. In regard to other wrongful means it Fraud. ° must suffice to name them — coercion, threats, intimidation, and the like ; but fraud requires particular examination. Part I. will therefore be reduced to a considera- tion of the Duty to refrain from Fraud and Malice. Of fraud it should here be said that, while taken in a narrow sense the term imports only a state of mind, in its broader sense it imports means employed in a transaction, such as misrepresentation. It should be observed indeed that fraud, malice, and negli- gence are all of them terms of special legal import, — that they do not necessarily signify in the law what they Frsiud liicilicG and negii- import in popular speech. The law declares, on gence, as tech- the appearance of certain facts, that there is fraud, or malice, or negligence, whatever the popular meaning of the words. The law has its technical terms, and hence a dictionary of its own. Fraud may be shortly disposed of, for the present purpose. The offence includes two classes of cases ; one in which the person committing it is now dealing with the Division of l . ° . . • i 7 , • fraud ■. pre- person upon whom it is committed, the other in sent sense of which he is not. In the first class of cases the person defrauded is induced by the misrepresenta- tions or other artifice of the wrongdoer to change his position to his hurt, whether by entering into new relations with the wrongdoer or in some other way. Here the two, personally or by agents, are face to face or are within touch by corre- spondence, and the wrongdoer holds out some deceptive induce- ment which is acted upon by the other. In the other class of cases the wrongdoer is seeking through some third person to circumvent the party to be wronged from enforcing his rights against him. The wrongdoer is putting his property out of his hands, for instance, to defraud the rights of his creditor or 16 GENERAL DOCTRINE [Sect. 3 creditors. The first of the two classes is then deception ; the second, circumvention without deception. The first of the two leads to an action for damages ; the second does not in ordinary cases. The first alone is a tort; we are not concerned with the second. Only a word more need be said. Fraud in the sense in which we are concerned with the term is one of the elements of a specific tort called Deceit ; in relation to which it has a definite, well-settled meaning. What that is will appear in the chapter relating to Deceit ; hence it need not be considered here. Malice is one of the most perplexing terms of the law, especially in relation to civil liability 1 . It is continually used Malice- popu- m different and conflicting senses. One thing lar sense: however has always been agreed; unlike fraud, iective iii U ** does n °t import means, though it may be very law, but not closely related to means, so closely that the case may falsely appear to be one of malice 2 or of means 3 . Naturally and popularly malice imports motive, an evil motive or design, as of the very essence of the word. In law too the word is commonly used in a sense which makes it subjective, that is, a state of mind ; but that does not neces- sarily make it a motive. It does sometimes appear to import motive in its relation to legal liability, as in the criminal law of murder, where the killing must be of ' malice aforethought,' that is, as the old precedents explain the expression, by an evil design or motive 4 . So too in cases of punitive damages, a survival of the time when tort was not yet fully discriminated from crime, the ' actual malice ' required for such redress appears to denote motive 5 . But apart from the criminal law and its adjuncts, it seems that malice, even when called ' actual malice ' or ' malice in the mind,' does not necessarily import 1 See the discussion in Allen v. Flood, 1898, A. C. 1. 2 As where A does an act with intent to harm B, but in order to bring B to terms with him for some gainful purpose. The intent to harm is so dominant here that the case is likely to be looked upon as one of malice instead of means. See Temperton v. Eussell, 1893, 1 Q. B. 715. 3 As perhaps in the case of conspiracy. See post, p. 108. 4 See Kenny, Outlines of Criminal Law, 124, 125, 132, 133, 139. 5 But the appearance in both of these cases is found mainly in the legal language of description, derived from the ancient precedents. See Kenny, 132. Sect. 3] LEGAL DUTY 17 motive. With the possible exception just named it will pro- bably suffice for a case of malice, wherever it is necessary to prove malice, that the act in question was done with knowledge that it would do harm, or with knowledge that it would be unjust, or in reckless or wanton disregard of another's rights 1 . To prosecute a man with knowledge that there is no just cause of prosecution would be an example. Here is malice 'in the mind,' but not necessarily malice as an evil motive ; one may well know that one's act will be mischievous without being actuated by the motive to inflict harm or to do injustice. A man may prosecute another without probable cause, in the hope of gaining a reward offered; a man may tell a wicked lie having as his sole motive the design to help a friend, indeed with regret that harm to any one should follow. There is another sense too in which malice, as the law uses the term, may be subjective and yet still further removed from motive. To make A liable for interrupting a Interrupting ... r & relations, certain relation between B and C, as for instance asma^ice 06 ' that of master and servant, it is necessary to prove that A knew of the existence of the rela- tion. Then, with such knowledge, interrupting the relation he is said to have done the act 'maliciously'; he has done it with malice in the mind because he has done it with knowledge of the relation. Here however it is plain that malice is or may be quite emptied of its natural meaning. In this last case malice as an entity is reduced to its lowest terms ; more than that, it is an inappropriate and misleading name for doing certain acts with notice of certain relations as a necessary condition merely to a breach of duty. From such cases it is but a step to cases in which the doing of certain acts is called malicious though no relation with others, of which there must be notice, exists, as in slander and libel. The explanation of the use of the term ' malice ' in these as well as in the foregoing cases is probably to be found in the historical connection, already referred to, of the criminal law with the law of torts. That is, the term was probably carried 1 Allen v. Flood, 1898, A. C. 1 ; Wren v. Weild, L. K. 4 Q. B. 734, 736; Gott v. Pulsifer, 122 Mass. 235. B. T. 2 18 GENERAL DOCTRINE [Sect. 3 on from the language of the criminal law, where it appeared to have an appropriate use, to the law of torts in Connection of ,, „ , i „ , tort with the course or the emergence of that subject as a criminal law, separate branch of law ; where it was retained as to malice. . . ... without regard to its inappropriateness to ques- tions of civil liability 1 . Malice thus becomes, at last, a mere name of a legal conclusion, a name of nothing requiring proof; it is simply ' malice in law ' or ' implied malice,' that is, it is a downright fiction. To sum up : Malice, as an entity, in the eye of the law, like malice in popular speech, is a subjective fact. As such it may summary of import (1) motive exceptionally, or ^2) reckless- division of ness, or knowledge that an act will be mischievous, malice as an ' , . . ' element in or (3) nothing more than knowledge or notice of liability. tne existence of some special relation which is interrupted. In the first case malice makes perhaps a true head in the law ; but its place is in criminal and quasi-criminal jurisprudence. There is no other place for malice in the sense of an evil motive, as a necessary element of liability. In the second case it is an old term in civil liability. In the third case, the word having completely lost its natural meaning has no just claim to a place in the law of malice. The facts which constitute it prove merely the existence of a duty by such as have the knowledge or the notice. There is nothing distinctive of malice in that ; for, as we have seen, to create a duty there must be observable danger ; if danger could not be seen or foreseen — hence if the relation in question was not known — there could be no duty. As for malice which is not an entity at all, but only a fiction, there is, a fortiori, no place for the troublesome term in any classification of subjects of the law. It comes then to this, that malice in civil liability has a place in virtue of the legal extension of its popular meaning to cases of doing certain kinds of harm recklessly or with knowledge that such acts are harmful or unjust. In certain cases then malice in that sense makes an element in the cause 1 There is ground for distinguishing homicide from murder, by describing the latter as a killing with malice aforethought. Kenny, Outlines of Criminal Law, 125. But to transfer the term 'malice' to liability in tort, without dis- crimination, was to create endless confusion. Sect. 3] LEGAL DUTY 19 of action. But it is still true that malice in the sense of an evil motive will also help to make a cause of action in the same cases ; and that fact, which at first appears perplexing, calls for explanation 1 . The explanation is probably to be found in the fact that the acts complained of in the cases referred to are privileged, Effect of mai- as that term has already been explained. They ice as motive are no fc £ rue ac ^ s f l e g a l right; they fall short so overturns far that they are only permissions . The chief not^iit - 1 ' example is malicious prosecution, already referred malicious to. The term is only a title ; the wrong for prosecution. which an action lies is a malicious prosecution begun without reasonable or probable cause. These facts (together with the termination of the prosecution) must be proved by the plaintiff. Now it is clear that no man has a legal right to prosecute another without reasonable or probable cause. A man may do so, as we have seen ; no action can be maintained against him for so doing. But that is all there is of it ; the person so prosecuting is merely exempt from liability — probably that men may not be discouraged from resorting to the courts to settle their disputes. That the matter does not rise above the level of permission to that of legal right, may readily be shown. Suppose that by false and fraudulent representations, whether by the person intended to be prosecuted or another, a civil prosecution, with- out reasonable or probable cause, is put off until it is barred by the Statute of Limitations ; could an action be maintained for the fraud ? Clearly not, for as there was no ground for the intended prosecution there could be no damage ; and no other kind of action would fare any better. The intended prosecutor therefore had no legal right to prosecute ; indeed it would be absurd to speak of a legal right to prosecute where there is no cause of action, and none the less because it may have been honestly supposed that there was a well-founded claim. The explanation then of the fact that a plaintiff in a suit for malicious prosecution makes a case by proving (with other 1 The evidence will usually be objective, that is, external to the mind, as where excessive zeal in prosecuting is shown ; but the evidence is offered to prove malice in the mind. 2 Compare Earl Cowley v. Countess Cowley, 1901, A. C. 450. 2—2 20 GENERAL DOCTRINE [Sect. 3 facts) that the prosecution was begun with malice as an evil motive, or with malice in any other subjective sense, is that proof of the kind merely overturns a permission or privilege. The permission or privilege rests in all cases, as we have seen, on the motive of interest or of duty, — in this case that the prosecution is brought with design to protect a proper interest of the prosecutor, or in the discharge of duty. If then the design was to harm the party prosecuted, in other words if the suit was brought with an evil motive towards him, it is not within the permission or privilege. And clearly there could be no privilege of the kind in question when the prosecution was begun in reckless or wanton disregard of the defendant's rights; the privilege must have been acted upon reasonably and in good faith 1 . The case therefore is not one in which legal right, or, to use the more common term, a rightful act, is converted into a legal wrong by proof that the right was exercised with an evil motive ; and the same may be said of malice in any other purely subjective form. Slander of title, so called, an action for false and malicious disparagement of property, is also a case in which the dis- same subject; paraging statements are simply permitted or slander of privileged 2 . A may falsely declare that B has no title to a certain piece of land claimed by B, or make other false statements concerning B's property, real or personal ; no action could be maintained against him for the statements, though B suffered damage by them, any more than if in the same sort of case A had brought suit to recover the land. But that is not because A had a legal right to do such a 1 Compare the language of Lord Halsbury in Earl Cowley v. Countess Cowley, 1901, A. C. 450, 453, where there was no more than a permission (to use a title of nobility). 2 Wren v. Weild, L. R. 4 Q. B. 730; Halsey v. Brotherhood, 19 Ch. D. 386; Gott v. Pulsifer, 122 Mass. 235, 238. But it should be noticed that the privilege in slander of title and in malicious prosecution is not the substantive privilege (set up in pleading) of slander and libel. It is not brought out except by inference in the pleadings or evidence. The language of the cases should not be misunderstood. In slander and libel, privilege is set up after the plaintiff has made a prima facie case; in slander of title the plaintiff has to overturn, in the first instance, what we have in the text spoken of as privilege, — which is privilege, not in the technical sense, but only in the sense that false words disparaging property are permitted if they were not malicious. Sect. 3] LEGAL DUTY 21 thing; the law simply permits him. He could not maintain a suit against one who, by using means of a wrongful nature, prevented him from doing the thing, as by tearing up scattered notices or hand-bills making the false statements. But A is permitted to make the false statements unless B shows that he made them maliciously (to his damage). The malice however would be shown by proof that A knew the statements to be false or made them in reckless disregard of B's rights 1 ; that would overthrow the permission. Belief by A, on the other hand, in the truth of the statements, would be a defence if a prima facie case were made against him ; and it seems to follow that malice in the sense of motive would be irrelevant to such a defence, whatever might be said of it if offered in evidence at the outset to make a prima facie cause of action. There is nothing then in either of the subjects considered, from which it can be inferred that malice, in the sense of Same: sian- motive, can overturn legal right, so as to give to der and libel, motive a place in the classification of civil wrongs. In slander and libel, malice lies still further afield ; it has nothing whatever to do as an entity, in any sense, with making a prima facie case. The plaintiff here does not have to over- turn any privilege in advance ; it is only when the defendant has set up a privilege and given evidence in support of the same that the plaintiff has anything to do but to prove the publication. Then, by proving malice, he cuts away the foundation of the alleged privilege ; and all that he need prove in the way of malice is that the defendant published the charge knowing that it was false 2 , or in reckless disregard of rights 3 . Fraud then in its more familiar aspect in tort, and even/ negligence, are to a certain extent interchangeable terms witr. malice, though malice, in the sense of motive, is not inter- changeable with them. ' Nullum simile est idem.' V There is, finally, no authority now on the common law that 1 Wren v. Weild, and Gott v. Pulsifer, supra. 2 See Wren v. Weild, L. R. 4 Q. B. 734, 736, Blackburn, J.; Green v. Button, 2 Cromp. M. & R. 707; which were cases of slander of title. 3 Gott v. Pulsifer, 122 Mass. 235, slander of title. 22 GENERAL DOCTRINE [Sect. 3 malice, in any merely subjective sense, in acts otherwise done of legal right, is entitled to a place in the classifi- Conclusion as . ° °_ *■ to subjective cation of civil wrongs, and the contrary may be malice. j^ c [ own as acce pted doctrine 1 . Conversely, it is equally true that an act which is wrong or wrongful i cannot be shown to have been done as of a right or justified by evidence that it was done from a good motive ; and so of omissions or conduct of whatever kind 3 . There has never been any question of this converse doctrine. So much for Part I. In Part II., breach of duty by Unlawful Acts, we come to a class of cases in which, though there is often a manifest in- tention on the part of the defendaut to do the very thing 1 The following cases may be mentioned: Quinn v. Leathern, 1901, A. C. 495 ; Allen v. Flood, 1898, A. C. 1 ; Bradford v. Pickles, 1895, A. C. 587, affirming 1895, 1 Ch. 145 ; Mogul Steamship Co. v. McGregor, 1892, A. C. 25 (that the motive ' of benefiting the defendant at the expense of the plaintiff ' is not malicious or unlawful, overruling on that point Bowen v. Hall, 6 Q. B. Div. 333, 338, Lord Esher) ; Cbasemore v. Richards, 7 H. L. Cas. 349, s88; Heald v. Carey, 11 C. B. 977, 993; Stevenson v. Newnham, 13 C. B. 285, 297. In Allen v. Flood, supra, the House of Lords overrules empbatic dicta in Temperton v. Russell, 1893, 1 Q. B. 715, C. A., reaffirms Mogul Steamship Co. v. McGregor, ut supra, and accordingly reverses Flood v. Jackson, 1895, 1 Q. B. 21. The case (Allen v. Flood) was twice argued in the House of Lords, ten other judges being called in, on the second argument, for advice. Against the advice of a majority of those judges the House of Lords held the plaintiffs not entitled to recover, though their own judgment was not unanimous. But the importance of the case, at first supposed to be very great, has been diminished by Quinn v. Leathern, supra, which practically reduces it to an authoritative declaration that an act which is in itself lawful, though causing harm, does not become unlawful by being done with a bad motive. • The Roman law took cognizance of malice as a motive, at least in regard to the use of land ; and so does the modern Civil or Roman law. Digest 39, 3, 1, §§ 12-17 ; Bigelow's L. C. Torts, 515, 516, 525. See Sweet v. Cutts, 50 New Hampshire, 439; Bassett v. Salisbury Manuf. Co., 43 New Hampshire, 569; Graham v. St. Charles R. Co., 27 L. R. A. 416 (Louisiana). Malice in relation to particular torts will be considered as the torts are reached, in Parts I. and II. 2 ' Wrongful ' applied to an act or omission does not necessarily import that the act or omission is a tort. It may import as much, or only that the act or omission is of an unlawful nature, requiring something else to make it a tort. False representation is an illustration. 3 Bradford v. Pickles, 1895, A. C. 587, 594, 598 ; Read v. Friendly Society of Stonemasons, 1902, 2 K. B. 88 (want of bad motives no justification) ; Hooper v. Truscott, 2 Bing. N. C. 457. Sect. 3] LEGAL DUTY 23 for which he has been sued, the law ordinarily takes no account of his motive or state of mind, supposed or actual, ice, and neg-ii- ° r °f the means employed, so far as the right gence unne- f 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, e.g. by fraud or in malice, though it often happens that one or other of these things is present. Nor is negligence, or the want of negligence, any necessary part of the case. Here then is a class of cases in which the tort consists in the breach of what may be called an absolute duty ; the act Absolute itself (in some cases it must have caused loss) is duty. unlawful and redressible as a tort. The cases in which this is true are, speaking generally, cases of procuring breach of contract, enticing away and seduction 1 , slander and libel, violence apparently about to be committed 2 , or actually committed, upon one's person 3 , restraint of liberty 4 , interfering in one way or another with the possession 5 , ownership 6 , or enjoyment 7 of property, and failing to keep safely dangerous animals and dangerous things; and perhaps other cases. We come now to Part III. From regarding, first, a mental attitude of the defendant, and secondly, disregarding the existence or non-existence of such an attitude, N62rli£T6IlC6. the law now passes over to cases in which it regards, as an essential fact, what at first looks like a negative mental attitude. In the class of cases now reached, the law takes account of the fact that the defendant has not directed proper attention to danger attending some act or omission of his, or, if he has, that he has not 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, 1 These two cases are cases of malice only in the sense of doing the act with notice of a special relation ; which amounts only to showing a duty. See ante, p. 17. 2 Assault. 3 Battery. 4 False imprisonment. 5 Trespass to lands or goods. 6 Conversion, ' trover ' in the old law, a wrong relating to goods. 7 E.g. nuisance. 24 GENERAL DOCTRINE [Sect. 3 constitutes a tort. This phase of the breach of duty is the domain of negligence 1 . m The net result may then be shortly put as follows: Looking to one class of cases, a tort consists in a breach of duty com- mitted by wrongful means (such as fraud), or of Final result. . . "L. . . ° ) . ' . malice. Looking to a second class, a tort consists in a breach of duty absolute, regardless of wrongful means, malice, or negligence. Looking to a third class, a tort consists in a breach of duty committed by negligence. Further, it must be observed that, whatever the duty, it must be a duty to a person complaining of the breach of it. Duty to A. may have been guilty of conduct which is a whom. breach of his duty to B, but not of his duty to G, however much C may have suffered by reason of it. Or it may be a case in which A might have owed a duty to C but for the fact that has relieved him of it. And it is permissible for one man to exempt another from his duty to him in a particular case when the act or the omission is not a violation of the criminal law. The duty in question, as we have seen, is established by municipal law. This will serve to distinguish tort from contract ; for in contract the duty is commonly Duty para- n ... ,, , ■ mount or of fixed by the parties, in the terms ot the agree- municipai ment. But that is not always the case; it happens 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, 1 The law does not, in point of fact, stop to consider the actual state of mind of the defendant as a ground of liability in actions for negligence ; the text only says that negligence ' at first looks like a negative mental attitude.' It may be helpful still to notice, 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 aroused to the danger, or if the defendant is sensible of the situation, he has not duly exerted himself to avoid harm. But the test is applied to the manifestation ; the question is, not what was the defendant's state of mind, but what did he do or omit? Sect. 4] DAMAGE 25 the duty would be paramount, and hence the breach could be treated as a tort. Thus, if a common carrier at Liverpool were to contract with A to deliver at 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. Breach of an implied term of a contract may then, it seems, be treated as constituting a tort whenever the term is supplied by law or by custom ; but that is not a matter of much importance in ordinary cases ; the question is only one of the preferable remedy. Still, it is to be remembered that in theory the law of torts overlaps that of contract at the place indicated. It is not to be inferred that there cannot be a tort in respect of the breach of a contract the terms of which are all fully expressed. If the contract contain a false warranty, it is broken in the breach of the warranty ; and breach of an affirmative warranty 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 leality a term, expressed or implied, of the contract ; the duty violated is fixed by law, — a duty not to defraud. In this view then the law of tort still further overlaps that of contract. § 4. Damage We have seen that tort gives rise to a suit for damages. But that does not necessarily imply that the plaintiff must A technical have sustained some loss or detriment. Like term. 'fraud,' 'damage' is a technical term. There are many cases in which the defendant would not be allowed to 1 A warranty affirming a fact, as distinguished from one promising some- thing. 26 GENERAL DOCTRINE [Sect. 4 show that the plaintiff had not suffered a pennyworth. On the other hand, there are many cases in which the plaintiff cannot recover judgment without proving that the act or the omission of the defendant caused a loss to him. Loss in the sense of actual harm or prejudice is called in the law special damage, though the term 'special damage' is special dam- sometimes used in the sense of a particular kind age: when f i oss i The contrasting term is implied or legal not necessary. . ° • , • , Ground of damage ; this imports a mere violation of what instinct. ma y ^ ca ]led an absolute legal right. Speaking broadly, the cases in which it is not necessary to prove special damage in an action for tort are cases in which the act done is manifestly dangerous, so much so that instinct calls at once for redress and would take it but for the law. Rights of life, liberty, property 2 , and reputation furnish the subjects of such redress. Attempts upon life, whether to take life or not ; restraint of liberty; interfering with property; assailing one's good name ; such acts call for redress without regard to the question of loss. One would instinctively seek redress in such cases; and the law only sanctions, what it must in some way always sanction, instinct. If one had to endure acts of the kind not causing loss, one would be constantly at the mercy of lawless men. For the specific cases to which these remarks apply, the 'Statement of the duty' at the head of the several chapters should be consulted, where the presence or absence of the word 'damage,' there used in the sense of loss or special damage, will give the desired information. To constitute damage in the sense of loss or special damage, it appears, by the current of authority, to be necessary that Mental something more than mental suffering, or a shock suffering as to the nerves alone, without ' impact,' though followed by sickness, should have been caused 3 . A workman on a house might negligently let a stick fall at 1 liatcliffe v. Evans, 1892, 2 Q. B. 524, 528, Bowen, L. J. 2 According to the Roman law, damage is necessary in case of wrongs to property. See Dig. 9, 2, 27, §§ 17, 25-28 ; Grueber, Lex Aquilia, pp. 233-235. 3 Victorian Rys. Coram'rs ». Conltas, 13 App. Cas. 222 ; Spade v. Lynn R. Co., 168 Mass. 285 ; s. c. 172 Mass. 488 ; Terwilliger i>. Wands, 17 New York, 54, C3 ; Wilson v. Goit, id. 442. The doctrine rests partly on the ground Sect. 4] DAMAGE 27 my feet, as I was passing along the street, and if, though startled, I was not hit, the workman probably would not be liable for the act 1 ; but if he threw the stick at me, with the same result, he would be liable, for passion would instinctively be aroused to redress. But rather inconsistently, mental distress may be considered as an element in damages in any case where a right of action is shown regardless of such distress 2 . Finally, the fact that a tort is redressible in damages serves to distinguish the wrong from a crime; which is redressed by prosecution on behalf of the public for the purpose Tort distin- >■ i 7> guished from of punishing the accused, by imprisonment, tine, crime. Qr f or f e it ure . 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 contracts on one side, overlaps on the other the criminal law. But the greater part by far of the domain of tort lies between the two extremes. In explanation of the examples given throughout the general text following, it is to be observed that when a par- Explanation ticular act or omission under consideration is said of examples. 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 generally used in the text, as well as in the ' Statement of the duty,' in the sense of ' special damage,' actual loss. The ' Statement of the duty,' it may be added, is intended to suggest a prima facie case. of the difficulty of getting at the truth, partly on the ground that mental suffering is very much a matter of individual temperament and susceptibility, in other words that the effect is not sufficiently uniform to make it natural and probable — it is ' remote.' 1 Compare Victorian Bys. Comm'rs v. Coultas, supra, fright upon danger of collision with a railway train. - See Harvard Law Review, January, 1894, p. 304 ; Spade v. Lynn R. Co., 168 Mass. 285, 290 ; s. c. 172 Mass. 488, 490. 28 GENERAL DOCTRINE [Sect. 5, 6 § 5. Definition of Tort Having in mind what has been said in the preceding sections as constituting the substance of a tort, a definition Diversity in °^ ^he term may now be given. To attempt a torts: com- definition which would tell its own story on its face would be hopeless. Indeed no definition, helped out however much by explanation, can convey an adequate notion of the meaning of the word ; nothing short of careful study of the specific torts of the law will answer, for there is no such thing as a typical tort, an actual tort, that is to say, which contains all the elements entering into the rest. One tort is as perfect as another; and each tort differs from the others in its legal constituents. But they all have this in common, that there must be a breach of duty para- mount, or, as we shall now put it, established by municipal law ; and they all lead to an action for damages. These facts must furnish our definition. Accordingly a tort may be said to be, a breach of duty established by municipal law for which a suit for damages can be maintained ; or, conversely, the infringement of a private right, or a public as a private right, established, by municipal law. This work deals, not with tortious conduct broadly, which may touch subjects as far apart as breach of contract and the impeachment of public officers, nor with prospective and imminent torts, but with torts themselves, in the sense of the definition — actions for damage for breach of the kind of duty named. § 6. Personal Relation, or Status, etc. What has gone before relates to the law of torts in what may be called its primary manifestation, — in other words, . , between citizen and citizen as such. But that Special mani- festation of does not exhaust the subject ; it remains to duty- consider the subject as affected . by the fact of a person's standing in some special relation to his fellows, or Sect. 6] PERSONAL RELATION, ETC. 29 of being subject to some incapacity before the law, or of occupying some special relation to one who is the immediate wrongdoer. Thus a poison sought to be held liable for a tort may at the time of the wrong alleged have been holding some post of state, such as a judicial position, or he may have been under some disqualification or incapacity, putting him below the level of a full citizen, as where he was insane or under age, or he may have been an employer of the person immediately guilty. Nothing yet set forth shows what the standing of such persons would be in an action against them for tort. How does the particular situation of a citizen affect the question of his liability ? In regard to persons holding under the State, executive, legislative, or judicial position, the answer is a simple one ; the case is one ordinarily of absolute privilege, ExscutivG legislative, and might have been considered under the head and judicial f privilege except that it was thought best to positions. r ii-i • • confine the subject there to primary relations, or citizen and citizen, in accordance with the treatment of right. No action for damages can be maintained against a person for anything said or done, for example, in the discharge of judicial duty, except it be an action for false imprisonment ; no action for fraud, for malice, for trespass (except imprisonment), for conversion, for negligence, or for anything else in consequence of judicial action; and so of things said or done by the executive or of a member of the legislature. Because, apparently, of the tender regard which the courts have always felt constrained to show towards liberty, actions in certain cases are maintainable against magistrates who have caused the imprisonment of men without just process. This is not the place to consider what is necessary to make a case against a judge on such grounds; to point out the liability is all that is now called for. The subject will be considered in its proper place 1 . The ground of the immunity of the executive branch of government 2 , of legislators, and of judges is plain. The places 1 Chapter ix. 2 Spalding v. Vilas, 161 U. S. 483. See Chatterton v. Secretary of State, 1895, 2 Q. B. 189. 30 GENERAL DOCTRINE [Sect. 6 occupied by such persons are the great departments of the State, and the State could not carry on its functions if those set over its departments could be haled before the courts at the suit of every person aggrieved by their action. In regard to competency or capacity, it is to be observed that the breach of duty may be committed by any one having Capacity: natural capacity 1 . The law of tort affords a criminal law, strong contrast in this particular both to the law and negii- of contracts and to the criminal law. Liability £ ence - in contract depends, it is true, upon capacity to contract ; but want of such capacity may be either natural or artificial (legal). One must be of sound mind and at least twenty-one years of age to bind one's self 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 3 . There may be difficulty sometimes in applying the rule of natural capacity, but the difficulty can seldom arise except in infants and cases requiring proof of fraud, malice, or negli- insane gence, and then, generally speaking, only in suits persons. 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 manifestly contrary to the fact, and could not, it seems, be allowed. The fact that the person was of unsound mind or a child of tender years would not be material. It would be enough that the act was done of the will, uncompelled 4 . 1 The law in regard to married women has been so much changed by statute that no attempt will be made to consider it. 2 Contracts for necessaries make an exception. 8 Kenny, Outlines of Criminal Law, 50. 4 Is a madman liable in damages for the consequences of an act otherwise wrongful which was done, though intentionally, in an uncontrollable frenzy? Or suppose that A threatens to kill B unless B will trespass upon C's land, and B does the act; will it affect the case that B is an infant, insane, or idiotic? By the Koman, contrary to the English law, a lunatic was not liable for damage done to property, any more than if a tile had fallen and done harm (without any one's fault). ' Et ideo quajrimus, si furiosus damnum dederit, an legis Sect. 6] PERSONAL RELATION, ETC. 31 Cases requiring proof of fraud, malice, or negligence would perhaps create no difficulty where the defendant was a person so unsound of mind as not to be 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 prose- cution 1 . And clearly a madman cannot exercise diligence 2 . 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 occasiun for serious difficulty. An infant of sound mind twenty years of age, or much less, is liable fur 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 re- quiring 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 a question of fact 3 . There is a difficulty of another kind touching the liability of infants and of persons of unsound mind, namely, where what would be a tort in other cases, as for example a fraudulent representation, is the inducement to a contract. But the rule in regard to such cases is that there can be no liability in Aquilise actio sit? Et Pegasus negavit; quae enim in eo culpa sit cum sua? mentis non sit? Et hoc est verissimum. Cessabit igitui Aquilia) actio quem- admodum...si tegula ceciderit.' Dig. 9, 2, 5, § 2 ; Lex Aquilia, fr. 5, § 2. 1 Compare Emmens v. Pottle, 16 Q. B. Div. 354, 356, Lord Esher. 2 Whoever is incapable of diligentia cannot be charged with negligentia. Wharton, Negligence, § 87, on the Roman law. See Harvard Law Review, May, 1896, p. 65. 3 The Roman law in regard to damage to property was more precise ; it distinguished between children under seven years, and those between seven and fourteen, and children over fourteen. 'Si infans [under seven] damnum dederit, idem erit dicendum [sc. furiosus, supra, p. 30, note], quodsi impubes [between seven and fourteen] id fecerit, Labeo ait, quia furti tenetur teneri et Aquilia eum; et hoc puto [Ulpian] verum, si sit iam iniuriae capax.' Dig. 9, 2, 5, § 2 ; Lex Aquilia, fr. 5, § 2. Children over fourteen were liable generally for injuries. Grueber, Lex Aquilia, p. 14. The contention sometimes maintained in regard to English law that infants are liable only for absolute torts like trespass or conversion, and not for torts like deceit, has not found favour. 32 GENERAL DOCTRINE [Sect. 6 tort if to enforce an action of the kind would virtually fix upon the incompetent party liability for breach of contract 1 . The case is or may be quite different where the tort follows, but is not caused by the contract ; to enforce an action for tort in such a case would not be to enforce a contract, as for example to compel an infant to make good the loss of a horse which he has borrowed and then directly abused and killed 2 . It should not be supposed to follow that persons under disability can, in virtue of their disability, retain whatever they may have become possessed of by wrongful conduct. The meaning of the law is only that no liability actually or virtually by way , of contract can be created against such persons. Infants have been compelled to surrender premises obtained under lease by them, through fraudulent represen- tations that they were of full age, upon the ground that an infant shall not take advantage of his own fraud to keep his ill-gotten booty. He must restore what he has obtained by fraud, if he has it and will not carry out his bargain 3 . But cases of this kind, not being actions for damage, do not fall within the scope of this book. Allied to the class of cases of persons under disability, so far as right is concerned, are corporations. These are fictitious persons, and when created by statute have no Corporations. x . * powers or rights but those conferred by the statute ; and since statutes seldom if ever confer upon corpora- tions all the powers or rights of citizens, it follows that such corporations are more or less under disability. And the fact that a corporation is a fictitious person has been looked upon as a serious obstacle to holding such a body liable (except in the case of a corporation sole) for torts in which mental attitude has or seems to have place in a cause of action, and in very early times for torts of any kind 4 ; which of course 1 Fairhurst v. Liverpool Loan Assoc, 9 Ex. 422, infancy. 2 Burnard v. Haggis, 14 C. B. n. s. 45. 3 Lempriere v. Lauge, L. R. 12 Ch. 675. 4 Abrath v. Northeastern By. Co., 11 App. Cas. 247, 250, remarks of Lord Bramwtll, but not followed in Cornford v. Carlton Bank, 1900, 1 Q. B. 22; s. c. 1899, 1 Q. B. 392. ' The difficulty felt in earlier times was one,' it is said, ' purely of process ; not that a corporation was metaphysically incapable of Sect. 6] PERSONAL RELATION, ETC. 33 disregarded the fact that those composing the corporation were human beings, for they were not the corporation. But this technical piece of rationalizing has mostly given way, and it is now probably general doctrine that the fact that what would be a tort in the case of an individual was done or omitted by a corporation, makes no difference. That is, though not having all the rights of individuals, corporations must still respect the rights of individuals, — their duties are measured by the rights of those with whom they come into contact. Thus a corporation committing torts by fraud or of malice 1 is liable for the same as clearly as for torts committed by negligence ; a corporation is liable also for assault, false imprisonment, and probably for all kinds of torts. An exception has been thought proper in favour of charitable corporations, on the ground that where funds have been given to a body incorporated for such public purpose they should not be diverted to pay for damages for the torts of its agents or servants, where due care has been taken in selecting its men 2 ; but the exception has been rejected". It is obvious that disability in the way of immunity from liability for acts or omissions does not of itself involve diminution ' incapacity no °^ rights; nothing but alienage or the commission abridgment of crime works abridgment of rights, so far as the subject of rights of action is concerned. All persons (except criminals undergoing punishment, and aliens), whatever their incapacity to incur liability, may sue for tort ; doing wrong, but that it was not physically amenable to capias or exigent. 22 Ass. 100, pi. 67, and other authorities.' Pollock, Torts, 58, 6th ed., citing Serjeant Manning's note to Maund v. Monmouthshire Canal Co., 4 Man. & G. 452. 1 See e.g. Smith v. Land & House Corp., 28 Ch. Div. 7 (deceit) ; Cornford v. Carlton Bank, 1900, 1 Q. B. 22 ; s. c. 1899, 1 Q. B. 392 (malicious prosecution); Mogul Steamship Co. v. McGregor, 1892, A. C. 25. In Comerford v. West End B/y. Co., 164 Mass. 13, doubt is raised whether a corporation is liable for slander or libel by its servants or agents in the course of their employment, unless the act was authorized or adopted by the corporation. But it may be doubted whether this distinction is well taken. - Heriot's Hospital v. Ross, 12 Clark & F. 507, 513, dictum of Lord Cottenham. 3 Mersey Docks v. Gibbs, L. R. 1 H. L. 93. In America there is a conflict of authority. Downs v. Harper Hospital, 101 Mich. 555, supports Lord Cottenham's dictum, while McDonald v. Massachusetts Hospital, 120 Mass. 432, is contra. There are other American cases. B. T. 3 34 GENERAL DOCTRINE [Sect. 6 and the disability of criminals and of aliens to sue has nearly become a thing of the past under enlightened legislation. The next personal relation to be considered is master and servant, where a tort has been committed by or through the Master and servant. By the term ' servant ' appears to be servant. meant one who, being strictly subordinate to and dependent upon the will of his employer within the terms of the employment, does not make, or rather is not engaged to make, contracts for his employer 1 . Such a person, -when engaged in a lawful employment, and acting as a servant and at the same time not 'wilfully' in the sense of purposely or knowingly participating with his employer in wrongdoing, is not liable for the consequences of his acts or omissions as torts. ' Respondeat superior.' There is no anomaly in this, for it may well be that the wrongfulness of what has been done or omitted depends upon knowledge or means of knowledge possessed only by the master. In such a case, there being on the part of the servant nothing to suggest harm or danger, he does not see that any one's rights are being or are likely to be infringed, and hence he cannot be guilty of an}- breach of duty. The contrary will of course be true where the servant, though acting under command, understands, or ought from facts known to him to understand, that the rights of others will be infringed, and yet executes his orders. As regards the liability of the servant, then, the case is normal, falling in with the general doctrine of rights and duties. It is very different as regards the liability of the master ; his liability lies outside anything that has gone before in this consideration of the law of torts. The observability of harm or danger, from facts at hand, or facts one ought to know, is, as we have seen, the basis of duty ; but a master may be liable for the torts of his servant, though to him 1 When one is employed to make contracts for the employer, thus bringing about a new relation, the case deserves another name, and has it in 'agency.' A person may be my servant for general purposes, as for instance my coachman, and yet directly my agent, as when I send him to purchase new furnishings for my carriage or to have the carriage painted; he would still be called a servant, though exercising exceptionally the function of an agent. Sect. 6] PERSONAL RELATION, ETC. 35 (the master) there was no ground for apprehending harm ; he may have been a thousand miles away — enough that the servant's act or omission was in the course and within the scope of his employment, even though contrary to the master's own orders. Various attempts have been made by judges and writers to account for this doctrine, but it must be said that they have not been very successful. Sometimes it has been said that there is an implied command for every act of the servant in the service of his master 1 ; but that is only another way of saying that the act is in law authorized, which is true, but is no explanation of the case. It has also been said that the master has put the servant in the master's place to do the master's work, or to do the class of things embraced in the particular case 2 . But this also, if in less degree, is unsatis- factory ; and so of most other reasons given in the books. The one ground which cannot be disputed, and probably is the true one, is that the judges have on the whole concluded that, in the interests of the State, or on what is often called public policy, it is best that the master should be liable. But the master is liable only when the servant was at the time acting within the scope of his employment, which appears to mean acting for the master- 1 ; and as has already been intimated, a servant may be acting for his master, so as to fix upon the master liability for tort, though the servant was at the time violating his master's plain orders. Thus I may send my servant with horse and wagon on an errand to a certain town, and tell him that he must not go by a certain road because it is in a dangerous condition; but if in the course of the errand he goes by that road, and while in it injures someone by negligent or even by wilfully bad driving, 1 am liable. There was some question formerly whether a master could be held for what were called ' wilful ' torts by his servant, though committed on behalf of the master; but the doubt has 1 Blackstone, i. 417. 2 Bayley v. Manchester B. Co., L. R. 7 C. P. 415 ; Barwick v. English Joint Stock Bank, L. R. 2 Ex. 259 ; British Banking Co. v. Charnwood Ry. Co., 18 Q. B. Div. 714, 718. 3 British Banking Co. v. Charnwood Ry. Co., 18 Q. B. Div. 714 (agency). 3—2 10 i 36 GENERAL DOCTRINE [Sect. 6 disappeared, and the master would now be held liable. Thus, if a servant of a railway company should commit an assault upon a passenger in a train, in the course of his employment and not in consequence of something outside of the same, the railway company would be liable 1 . The moment the servant ceases to act for his master, though still remaining in the service, the master's liability ceases, and does not arise again until the servant begins once more to act for him' 2 . Thus, if after starting out upon an errand for his master, the servant should turn aside for purposes of his own or another's, as if he should go off to make a purchase for himself or for some friend, or if he should go to see a game of ball, the master could not be held for torts committed by him while so doing 3 . The doctrine which imposes liability upon the master is a general one, applying as well to cases of slander and libel, malicious prosecution 4 , and other torts , as to cases of negligence and trespass. Closely allied to master and servant, for the purposes under consideration, is the relation of principal and agent. It is Principal and sometimes put as a distinction between the two agent. relations, that a servant can exercise no inde- pendent discretion, but is subject at all times to the control and direction of his master, while an agent acts largely upon his •own discretion; but the distinction will not bear examination. So far as there is a difference in the matter of discretion between the two relations, it is a difference of kind, not a difference between the absence and the existence of discretion. A servant must frequently exercise a very wide and important discretion, especially when his master is beyond reach. A servant employed to drive a stage-coach or an electric car has 1 See Bayley v. Manchester, Sheffield, &e. Ry. Co., L. R. 7 C. P. 415. ' See Rayner v. Mitchell, 2 C. P. D. 357, as to the servant's re-entering upon his service. » See Storey v. Ashton, L. R. 4 Q. B. 476; Rayner v. Mitchell, 2 C. P. D. 357; Mitchell v. Crasweller, 13 C. B. 237. 4 Vance v. Erie Ry. Co., 32 New Jersey, 334. 5 Davison v. Duncan, 7 El. & B. 229 (defamation) ; Smith v. Land & House Corp., 28 Ch. D. 7 (misrepresentation). Sect. 6] PERSONAL RELATION, ETC. 37 the care of human lives committed to him, and their safety will depend very much upon the exercise of his own discretion 1 ; and on the other hand even the simplest kind of service involves the exercise of discretion, otherwise a stupid servant would be as useful as a bright one. The master cannot be present all the time to direct his servant. The real difference is in the kind of discretion to be exercised ; an agent in the full sense, while, like a servant, subordinate to and not independent of his employer, is em- ployed to make contracts for his principal' 2 . That makes a fundamental difference; but it does not bring about any special result in regard to the principal's liability for his agent's torts. The liability of a principal is the same as that of a master, whatever the tort. And the limits of liability are the same; a principal, like a master, is liable for his agent's torts only when his agent is acting for him, not when the agent is acting for himself, even though doing something which he might have done for his principal 3 . To the general rule by which a principal is held liable for the torts of his agent committed on his behalf, a single exception has sometimes been made, to wit. that an innocent principal should not be liable for the fraudulent misrepre- sentations of his agent, which as a matter of fact were not authorized, though they were made in the course and within the scope of the agent's employment 4 . This appears to rest upon the ground that the general rule imposing liability upon one who, morally speaking, is guiltless is exceptional and harsh. Such a rule, it may be thought, should not be ex- tended to a new class of cases not necessarily within it, except upon grounds of urgent public policy. The tendency of the yV J 1 ' That the proper management of the boilers and machinery of a steamboat recmires skill must be admitted. Indeed, by the Act of Congress of August 30, 1852, great and unusual precautions are taken to exclude from this employment all persons who do not possess it.' New World v. King, 16 Howard (U. S.), 469. 2 There are ' agents,' so called, who have no authority to make contracts for their employers; the text will cover these as well as agents in the full sense of the term. 3 British Banking Co. v. Charnwood Ry. Co., 18 Q. B. D. 714. 4 Western Bank v. Addie, L. R. 1 H. L. Sc. 145. The principal is ' innocent' in the double sense of not in fact having authorized the representation, and not knowing or having reason to know that it was false. 38 GENERAL DOCTRINE [Sect. 6 authorities however has been steadily in the contrary direction, towards rejecting the exception and holding the principal liable 1 . All no doubt would agree that if the principal derived a benefit from his agent's fraud, without offering to return it upon discovering the deception practised, he would be liable. For the torts committed by one of two or more servants to the damage of a fellow servant, the master is not liable, Fellow unless statute makes him liable. Cases of the servants. kind seldom arise except in negligence, and hence the rule is commonly justified in terms relating to negligence. The servant, in entering the service, assumes, legally speaking, the risk of everything which is incidental to the employment, and this is declared to include the negligence of a fellow servant 2 . But the exemption from liability is not, it seems, limited to cases of negligence ; the employer, whether a master or a principal, probably is not liable at common law for damage wrongfully done by one servant or agent to his fellow in the course of the business, whatever the nature of the tort, whether of negligence, fraud, malice, or anything else. The doctrine that the servant assumes the risk of negligence on the part of his fellows is not then broad enough, even if it were not, what it appears to be, au arbitrary doctrine, generally untrue in point of fact. It would be still less true to say that a servant assumes the risk of torts in general by his fellows. The truth appears to be that, without resorting to fiction, a servant stands in a different position towards his master from that of a stranger. This may be seen by supposing the case of a man's children, who in law are his servants, or of a man's domestic servants ; the idea that one of these could sue the master for torts of another of them would be revolting. The case of non-domestic servants differs only in degree, and the degree of difference must be con- siderable to justify an alteration of the common law even in cases of negligence ; much more so in other cases. Masters furnish the means of support for servants, and hence should 1 Barwick v. English Joint Stock Bank, L. R. 2 Ex. 259 (Ex. Ch.); Mackay v. Commercial Bank, L. R. 5 P. C. 394. s Post, chap, on Negligence. Sect. 6] PERSONAL RELATION, ETC. 39 not be liable to their servants unless they have done them wrong. The relation is beneficent towards the more dependent classes, and should not be discouraged. The relation of servant or agent is one of strict dependence upon the authority of the employer ; it is on that footing that independent the latter is liable. When the employment does contractors. n0 £ crea te dependence, when the person employed is, in the conduct of the employment, independent of the person engaging him, when in a word he is what is called in the books an ' independent contractor,' the employer is uot liable for the torts of such contractor 1 ; unless the misconduct of the contractor was itself also a breach of duty owed by the employer, as where there was a vice in the very undertaking 2 . Thus if I enter into contract with a builder to erect a house for me, or to make over a factory into a house, he alone will be liable to others, until I resume control, for torts committed in the course of the work, notwithstanding the fact that the work is done for me. And so in turn if he should employ an independent sub-contractor for part of the work, such as putting in the gas fittings, such sub-contractor, and not the chief contractor, much less the first employer, will be liable for torts committed in performing the sub-contract, until he turns over his work to the principal contractor 3 . The qualifications to this doctrine, as has been indicated, are found in cases in which the employer owed some duty to others regardless of the ' independent contract,' which that contract does not relieve him of. Thus the owner of premises owes the duty to others not to maintain, or allow to be main- tained, a nuisance upon his premises, and if in consequence of a contract with another a nuisance is created there, the owner will not escape liability because the person immediately guilty of causing it is an independent contractor. The same would be true if the thing authorized to be done 1 Brown v. Accrington Cotton Co., 3 H. & C. 511; Hardaker v. Idle District Council, 1890, 1 Q. B. 335; post, chap, on Negligence, § 10. a Hardaker v. Idle District Council, 1896, 1 Q. B. 33"), 341, 352 ; Penny v. Wimbledon District Council, 189J, 2 Q. B. 72, C. A. ; post, pp. 335, 336. 3 Rapson v. Cubitt, 9 M. & W. 710; Overton v. Freeman, 11 C. B. 867; Murray v. Currie, L. R. 6 C. P. 24, 27, Willes, J. 40 GENERAL DOCTRINE [Sect. 6 by the contract were wholly illegal, or wholly without the sanction of law, as if a town, having no authority to lay gas pipes through its roads, should contract with a person to lay such pipes, and some one should be injured by nuisance, trespass, or negligence on the part of that person, in the work 1 . And the like would be true of cases in which a private corporation having special duties towards the general public, as in the case of a railway company, should employ an independent contractor to do work for it in premises which the company was bound to have in fit condition for business of the public ; in such a case the railway company could not delegate or otherwise get rid of its own duty to the public-. Liability in such cases, it should be noticed, is not confined to negligence. § 7. Legal Cause : Contributory Fault The defendant's misconduct must have been the legal cause, or part of the legal cause, of that of which the plaintiff Plaintiff's complains, to enable the plaintiff to recover misconduct judgment. Having regard to the defendant and as part of . . the cause third persons, it need not be the sole cause ; it of trouble. matters not that others helped the matter along, so far as the right of the injured person to sue any one (as well as all of them) is concerned. But considering only the person injured and the defendant, the defendant's conduct must have been the sole cause of complaint; if the plaintiff's own conduct made part of the cause of action, he cannot recover. In such a case the defendant has violated no duty to the plaintiff, whatever duty he may have owed ; it is the plaintiff and the defendant together who have done or omitted the thing complained of. And whatever might be said in favour of separating the conduct of the defendant from that of the plaintiff, where the plaintiff's conduct was not the sole cause of the injury, the courts generally have looked upon it as 1 Ellis v. Sheffield Gas Co., 2 El. & B. 767. - Holmes v. Northeastern Ry. Co., L. R. 4 Ex. 254; Smith v. London Docks Co., L. R. :$ C. P. 326. Sect. 7] LEGAL CAUSE 41 unwise, if not impracticable, to attempt to administer the law in that way. The courts however are very careful to distinguish mere conditions from legal causes 1 . In a certain sense of the word Conditions ' cause >' the plaintiff cannot but be part at least distinguished of the cause of his misfortune, for unless he or his property was where he or it was at the time in question, no harm could have befallen him, and that of course whether his own conduct in the matter was wrongful or not. But that is not the conception of cause which the courts have adopted ; the courts distinguish, as was just stated, between things or situations which are but conditions necessary to the happening of any misfortune, and things or situations which in themselves have the plain promise of misfortune. A result is, legally speaking, caused when it happens as the natural effect of that which brings it to pass; the case is this, that standing with knowledge or what should be accounted knowledge of certain facts, harm is likely to follow in natural course. Hence there can be no breach of duty by the defendant when, in such a case, the plaintiff himself does or omits to do the thing which, though in necessary connection with the defendant's misconduct, is likely to produce the harm. On the other hand, if what the plaintiff has done or omitted was not likely to produce the harm, or any harm at all, his doing or omitting is no more than a condition to the result, and the defendant has violated his duty to the plaintiff. He alone, considering none but the plaintiff and the defendant, has caused the damage' 2 . The doctrine in question is obviously a general one, apply- ing to all torts. As a matter of fact however it is seldom called into service except in cases of negligence ; there almost exclusively it has found its development, and there it has special phases that will require particular examination when the subject of negligence is reached. The reader is accordingly referred to the chapter on Negligence for further information. 1 See e.g. Newcomb v. Boston Protective Department, 146 Mass. 596, which dwells upon the distinction. 2 The case is a phase of the maxim 'causa proxima, non remota, spectatur,' considered in the next section. 42 GENERAL DOCTRINE [Sect. 8 § 8. Termination of Liability Liability for tort having been incurred, how far does it extend? For it is obvious that a train of unfortunate results may follow. The geueral answer to the question, proxima, though scarcely an answer at all until explained. non remota, j s ^hat a man j s }i aD ] e for all such consequences spectatur. . ' of his torts, as, legally speaking, he has caused. This answer is often put in terms of a maxim or rule of the Roman law, adopted into our jurisprudence; 'causa proxima, non remota, spectatur,' — the law regards the ' proximate,' not the ' remote ' cause. With reference to this maxim, nothing could be more misleading than to take it in its plain, primary sense ; in that sense the law as often regards the ' remote ' and disregards the ' proximate ' cause, as it does the contrary. A tosses a lighted squib into one of the booths of a market, and B, the owner of the booth, instinctively throws it out and it falls into the booth of 0, who repeats the instinctive act, but now the squib strikes D in the face and puts out his eye. G obviously is nearest, or ' proximate ' in the primary sense, to D, and A is most ' remote ' of all ; and yet A is liable to D, and G probably is not ; A is liable whether C is or is not, supposing that C has acted instinctively and not of purpose, negligence, or other wrongful conduct towards D \ It is obvious that the maxim is to be taken in some metaphysical sense; B and G must be regarded as machines, and the final result as happening in the natural course of things. 'Results happening in the natural course of things' is the more common way of putting the case ; a tort having been committed, the wrongdoer is liable for whatever course of happens in the natural course of things, having things' at regard to the time when the tort was committed, outset. ° The rule does not mean, broadly, that liability extends to whatever occurs in the course of nature; it means what occurs in the course of things natural or probable when 1 Scott v. Shepherd, 2 W. Black. 392. Sect. 8] TERMINATION OF LIABILITY 43 the wrongful conduct took place. Thus a person who, in violation of law, should start a fire in the highway would be liable for damage done by any spread of the fire in the con- dition of the atmosphere when the fire was started, or while it was still under control ; but not perhaps for damage produced by a hurricane or tempest suddenly and unexpectedly arising. On the other hand, it is not necessary that the particular mischief resulting should have been foreseen or regarded as Actual result probable. A person who sets a fire wrongfully, need not have or does not properly guard a fire which he sets, in been foreseen. ft ^ g^^^jg [ Q midsummer, is liable for damage done bv its spread, under the observable conditions of the air at first prevailing, even in case the fire should unexpectedly cross broad fields and extend to buildings or haystacks beyond 1 . In like manner one who wrongfully sets a fire or unlawfully allows a fire to get under way among timbers floating down a stream, the burning timbers finally causing the destruction of property several miles below, is liable for the loss ; he has in the legal sense caused the loss, however improbable it may have been, because it happened in the natural course of things understood. So again one who unlawfully strikes another will be liable, it seems, for what ensues naturally from the known state of things in the person struck, though the result appears to be out of proportion to the blow, though probably not for consequences due, with the blow, to some occult and unknown disease 2 . It is enough in all such cases that the wrongdoer knows, or is bound to know from the facts of which he is aware, Liability for ^ na * narnl w ^ follow, or is likely to follow, his consequences ihiproper act or omission in the understood state turns on duty. f things The conditions to the harm which follows are before him ; danger is observable. This is again 1 Smith v. Southwestern Ry. Co., L. R. 5 C. P. 98; 6 C. P. 14 (Ex. Ch.). - See Stewart v. Ripon, 38 Wisconsin, 584, and compare Sharp v. Powell, L. R. 7 C. P. 258. For other cases involving the general principle, see Vanden- burgh v. Truax, 4 Denio (New York), 4C4 ; McDonald v. Snelling, 14 Allen (Mass.), 290 (defendant negligently running into a team and causing the horses to run away and collide with plaintiff's sleigh) ; Farrant v. Barnes, 11 C. B. n. s. 553. 44 GENERAL DOCTRINE [Sect. 8 returning to language used in speaking of duty. Duty exists where (harm being avoidable) danger, either directly or through facts which the defendant knows or ought to know, is ob- servable 1 . It must follow that duty lasts to, and includes all results flowing naturally or probably from, the defendant's wrongful act or omission ; duty equally must end at, and exclude, results which happen out of natural course, as things were known to exist. And liability must end where duty ends ; the plaintiff can have no right towards which there is no correlative duty. The doctrine of duty then, rightly understood, determines both the creation and the termination of liability. This way of putting the case, which is now the usual way, puts aside the persistent doctrine or dogma that a man intends intending the ^he na tui' a l an< ^ probable consequences of his natural con- conduct. The statement is not only unnecessary, sequences. -^ - g untrue m mos t ca ses. The notion appears to spring from an idea that liability for the consequences of conduct depends upon intention to bring the consequences to pass ; for which there is no authority. There will of course be intention, since every psj^chic act or omission, as we have seen, necessarily implies intention. But the resulting breach of duty and infringement of right (where the act or omission was wrongful) may not have been in the mind at all, that is, may not have been intended; and it has never been supposed to be necessary to say that the result is intended where it follows closely upon the act or omission. Liability arises in the case because the misconduct caused the breach. So in these other cases, where the misfortune is further off in time or space. The question simply is. whether the defendant's conduct caused the harm. The dogma in question confuses acts and omissions with their effect. There is, or may be, special difficulty where the train of events instead of going on in nature, or through human beings intermediate a cting mechanically, extends through the acts of human men conducting themselves freely and without constraint. In such cases it appears to be 1 McDowall v. Great Western By. Co. 1902, 1 K. B. 618. Sect. 9] DEATH OF PLAINTIFF OR DEFENDANT 45 necessarv that the intermediate human agencies should act in accordance with the purpose, or with what might reasonably have been expected from the conduct, of the one further back who set the train in motion. The connection between the sufferer and such person would be broken if some one, or some force of nature, between them were to act in the matter * out of course,' that is, in a way not to be expected ; the wrongdoer can owe no duty to a person who sustains damage from the wrong, unless in natural or probable course. But if the intermediate persons, few or many, act in accordance with the purpose, or with what might reasonably have been expected from the conduct, of the one back of them, though they be not his agents or his servants, he will be liable for damage done, not because the acts of the intermediate persons are in fact his acts, but because he has, legally speaking, caused the damage. He owed a duty to the person who should ultimately fulfil his purpose or act as might have been expected. And that duty has been violated 1 . The principle in question applies generally to all kinds of tort, but as a matter of fact it seldom finds expression except in cases of negligence ; some phases of it are almost of necessity phases of negligence. The consequence is that the subject must be considered particularly under that head, and it will not be considered further here 2 . § 9. Death of Plaintiff or Defendant Liability for tort may come to an end in a very different way from any capable of being stated in terms of the cessation Rule of actio of duty; 'actio personalis moritur cum persona.' personalis: Expressing the rule in terms of the Roman law, fui^modifica- the courts have from early times declared that tions. (most) torts cease, with the death of either of 1 Lynch v. Nurdin, 1 Q. B. 29; 55 R. R. 191; Engelhart v. Farrant, 1897, 1 Q. B. 240; McDowall v. Great Western Ry. Co. 1902, 1 K. B. 618; cases of trespassing known to be probable. 2 See post, pp. 335—337. 46 GENERAL DOCTRINE [Sect. 9 the parties to them, to carry liability 1 . Both the origin and the justification of this rule are matter of doubt ; but no common law rule has been more steadily maintained, except as statute has affected it. It matters not that an action may already have been set on foot 2 , the rule applies with absolute impartiality. It has been suggested that the rule may have come into operation when the processes of the courts were finally putting aside the right of private redress for wrongs which had prevailed under what may be called customary law. ' A process which is still felt to be a substitute for private war may seem incapable of being continued on behalf of or against a dead man's estate 3 .' Whether this be true or not of cases of the death of the wrongdoer, — it would not explain the effect of death by the injured person 4 ,- — reasons were found even in early times which brought about legislation to limit any possible application of the rule to cases in which the tort directly affected the injured man's property. Legislation of the kind began as early as the year 1330, which gave an action for ' goods and chattels of . . . testators carried away in their life ' ; and twenty-one years later the same right of action was given, by construction of statute, to administrators 5 . Statutes have been added in favour of the nearest kindred of persons killed by misconduct of others. The latter statutes, however, have no place in a consideration of General Doctrine. 1 See e.g. Bowker v. Evans, 15 Q. B. Div. 565, death of plaintiff. The rule is not confined to torts. The action for breach of promise of marriage ' moritur cum persona.' Finlay v. Chirney, 20 Q. B. Div. 494. Ahter, if special damage to property is caused. 2 Bowker v. Evans, supra, an arbitration. 3 Pollock, Torts, 61, 6th ed., to which is added a dictum by Newton, C. J., from Year Book 19 Hen. 6, pi. 10 (a.d. 1440-1): 'If one doth a trespass to me and dieth, the action is dead also, because it should be inconvenient to recover against one who was not party to the wrong.' 4 By the Roman law there was no action for damages for the killing 'quia in homine libero nulla corporis asstimatio fieri potest.' Dig. 9, 3, 1, § 5. This has sometimes been asserted to be the reason for the English rule. 5 4 Edw. 3, c. 7; 25 Edw. 3, st. 5, c. 5. See Phillips v. Homfray, 24 Ch. Div. 439. The Boman law went further than the English, being without limitation. ' Est enim certissima iuris regula ex maleficiis poenales actiones in heredern non transire nee dari solere veluti furti, vi bonorum raptorum, injurianrm, damni injuria3.' Gaius, iv. 112; Inst. iv. 12, 1; Dig. 47, 1, 1 pr. ; Dig. 50, 17, 111, § 1. Sect. 10] ASSIGNABILITY OF ACTIONS FOR TORT 47 § 10. Assignability of Actions for Tort Actions for tort, not harmful to property, are not assign- able 1 . Various reasons have been given, the common one Ground of being that such actions are peculiarly personal. rale - How, it may be asked, can another represent one whose good name has been tarnished, or whose happiness has been ruined 2 ? Perhaps the explanation runs back to the time when torts had not yet detached themselves from crimes. Crimes of course were always personal ; torts continued, after the separation, to be regarded as of the same nature, except where damage was done to property. It may also be noticed that things which are not descendable, such as actions for tort 3 , are not ordinarily alienable. Actions for tort however which harm property, as they survive, are assignable 4 . So too, it seems, are judgments in damages for tort 5 . 1 Howard v. Crowther, 8 M. & W. 601 ; Drake v. Beckham, 11 M. & W. 315, 319, in Ex. Ch. Accordingly the right to file a bill in equity for a fraud is not assignable. Prosser v. Edmonds, 1 Y. & C. 481. Compare Lex Aquilia, fr. 11, § 7 ; Grueber, pp. 38, 39. 2 See Howard v. Crowther, supra, per Lord Abinger. 3 Supra, p. 49. 4 Howard v. Crowther, supra. 5 Benson v. Flower, Sir W. Jones, 215; Ex parte, Charles, 14 East, 197; Buss v. Gilbert, 2 M. & S. 70; Rice v. Stone, 1 Allen (Mass.), 566. SPECIFIC TORTS [The shading of one topic into another is the ground of specific arrangement. In Part I. Deceit shades off into Slander of Title, and thus into Malice. Malice in turn shades off into the first of the topics of Part II., Unlawful Acts. These last shade into the topic of Part III., Negligence.] PART I LAWFUL ACTS DONE BY WRONGFUL MEANS OR OF MALICE BREACH OF DUTY TO REFRAIN FROM FRAUD OR MALICE B. T. CHAPTER I 1. Lawful Acts done by Wrongful Means: Fraud Deceit Statement of the duty. A owes to B the duty not to mislead him to his damage by false and fraudulent repre- sentations. Deceit may be a ground of defence to the enforcement of a contract, and also a ground for proceedings by the injured Deceit in party to rescind a contract. In such cases the cases of same facts, apart from the wrongdoer's knowledge of the actual state of things, are necessary for establishing the deceit as are necessary to an action of or for deceit. Hence, with the exception mentioned, authorities con- cerning the proof of deceit in cases of contract are authorities in regard to actions for damages by reason of deceit. The action at law for damages by reason of deceit is called indifferently an action of deceit or an action for deceit. § 1. What must be Proved In order to establish a breach of the duty above stated, and to entitle B to civil redress therefor, B, unless he come Five chief within one of the qualifications to the rule, must facts in 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 ignorant of its falsity, and believed it to be true ; (4) that it was made with intent that it should be acted upon by B ; (5) that it was acted upon by B to his damage 1 . Proof of 1 Pasley v. Freeman, 3 T. R. 51. 4—2 52 DECEIT [Sect. 1 such facts, whether or not in a relation of contract brought on by A with B by the false representation, or of trust, or of benefit obtained or sought by A, makes a cause of action 1 . But each of the general elements just stated, of the right of redress, must be separately examined and explained, and the qualifications to the same presented. The designation of the parties as A and B may now be dropped, and B will be spoken of as the plaintiff, and A as the defendant ; and so in all coming chapters. § 2. The Representation It is proper first to consider the meaning, in the law, of the term ' representation,' and thus to ascertain the real foundation of the action under consideration. Definition. . ,. . . . , . Accordingly, a representation may be denned to be a statement or an act, creating a clear impression of fact upon the mind of another, sufficient to influence the conduct of a man of ordinary intelligence. As a mere matter of the form of language, there may be no difference whatever between a representation and a warranty. The statement ' This horse is sound ' may be tion distin- the one or the other. The following external guisned from distinctions however will suggest certain tests warranty. . ... y for deciding cases to which they are applicable : A warranty is always annexed to some contract and is part of that contract ; the warranty 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 contract ; it is never part of one. To carry it into a contract would be to make it a warranty. And again, there may be a representation, such as the law will take cognizance of, though no contract was made or attempted between the 1 Pasley v. Freeman, 3 T. R. 51. Until this case was decided (1789) it was not clear that an action of deceit could be maintained where, between the parties, there was no relation of contract, trust or the like. Grose, J., dissent- ing, considered that the authorities furnished no support for such an action. The decision of the court has been followed on both sides of the Atlantic. 2 Brownlie v. Campbell, 5 App. Cas. 925, 953, Lord Blackburn. An affirma- tive warranty is ordinarily an artificial contract of the law. Sect. 2] THE REPRESENTATION 53 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 not necessary, and that fact sometimes creates difficulty. In written contracts there can seldom be difficulty in determining whether a particular statement is a warranty or a representation (when it is either), for the warranty must be part of the writing, since a warranty must be part of the contract-in- chief 1 , and it will either be directly incorporated into the general writing, or be so connected with it by apt language 2 , that there can be no doubt of the intention of the parties. The difficulty is with oral contracts, and then in most cases only in regard to sales of personalty. Whether the statement in question is a representation or a warranty is however treated as a question of intention 3 ; and an intention to create a warranty is shown, it seems, by evidence of material statements of fact made as an inducement to the sale, at the time the bargain was effected, or during negotiations therefor which have been completed in proper reliance upon the statements 4 ; provided nothing at variance with the inference of intention is shown 5 . If the statement was not so made, it is a representation if it is anything. What difficulty remains is in the application of the rule; and that is a matter for works treating of contracts or warranty in detail. A warranty of fact however, when broken, may be treated, it seems, as a case of misrepresentation, giving treated as rise to an action for deceit, if the elements neces- representa- sarv to liability in a proper case of misrepresenta- tion are present ; and this, it is believed, is true 1 Kain ». Old, 2 B. & C. 627. - A warranty may indeed be implied, i.e. arise without language or intention, but such cases are aside from the present purpose. The difficulty under con- sideration concerns the effect of language used. 3 There may be no intention, in point of actual fact, to create a warranty ; but intention may be inferred beyond dispute by what was said or done. It is therefore more properly a question of the interpretation or meaning of words or conduct than of intention in the sense of what was in the mind. 4 See Hopkins v. Tanqueray, 15 C. B. 130. 5 Such appears to be the effect of the cases. See Benjamin, Sales, § C13. 54 DECEIT [Sect. 2 whether the warranty was express or implied. Under the system of pleading which prevailed before the Judiciary Acts this would have reduced the matter to a question of the form of action. But it is still doubtful whether an action based on deceit could be maintained where the evidence showed nothing but a breach of warranty. That would, in the language of the old pleading, be a variance ; the action should be on the warranty as such 1 . Consider now the definition above given of the term ' representation.' A representation must consist in ' a state- , , . , ment or an act.' There are, it is true, cases in Analysis of the definition which legal consequences may attend absolute of ?~?H'> silence ; but there are very few cases 2 in which sentation : J statement or an action for damages on account of silence alone act: silence. can ^ mam ^ a i ne( j There must ordinarily be some additional element to make silence actionable. If the silence consists in withholding part of the truth of a statement, it may be actionable, as will be seen later ; but in such a case silence is, properly speaking, only part of the representation, for the representation must include all that it reasonably imports. The silence amounts to saying that what has been stated is all. There is a duty to speak in such a case, and it is only when there is such a duty that silence has any legal significance. Indeed, even passive concealment, that is, intentional withholding of information, when not attended with any active conduct tending to mislead, is insufficient to concealment: create a cause of action. For example: The silence. 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, with- holding information of the facts referred to (no question being asked to bring them out). This is no breach of duty to the i See 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. D. 68. '-' Silence might be ground for an action for damages by a cestui que trust against his trustee, in a transaction between the two in regard to the trust property. Sect. 2] THE REPRESENTATION 55 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 defendant does not disclose the fact in the negotiations for the purchase. This is no breach of duty 2 . 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 ACbS 3.CC0IH" panying foundation, so far, for an action 3 ; but the act silence. must be significant and misleading 4 . For that purpose however it may be slight 5 ; 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, t he act attending the silence must be significant and misleading, or it will count for nothing. For example : The plaintiff sues the defendant for damages caused by the sale to him by the defendant of animals having a contagious disease. Statute prohibits the sending of such animals to market, and imposes a penalty for violating the prohibition. The animals in question have however been inspected by the public officer and passed before the sale. The seller has made a written statement that the animals must be taken ' with all faults,' and that no warranty is made and no compensation for defects will be given. These facts do not show any representation by the defendant that the animals are not affected with disease, or create any right to damages in favour of the plaintiff" 1 ; though it is possible that the case might have been different had there been no such statement by the seller as that mentioned 7 . 1 Laidlaw v. Organ, 2 Wheaton, 178. See Smith v. Hughes, L. E. 6 Q. B. 597; Evans v. Carrington, 2 De G. F. & J. 481; Peek v. Gurney, L. B. 9 H. L. 377, Lord Cairns; Coaks v. Boswell, 11 App. Cas. 232, Lord Selborne. 'What- ever may be the case in a court of morals, there is no legal obligation on the vendor to inform the purchaser that he is under a mistake, not induced by the act of the vendor.' Blackburn, J., in Smith v. Hughes, supra. 2 Fox v. Mackreth, 2 Bro. C. C. 400, 420, a leading case in equity. See Turner v. Harvey, Jacob, 169, 178, Lord Eldon. 3 Laidlaw v. Organ, supra. 4 Id. 5 Turner v. Harvey, Jacob, at p. 178. 6 Ward v. Hobbs, 4 App. Cas. 13, affirming 3 Q. B. Div. 150. 7 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. 56 DECEIT [Sect. 2 To make a representation, the statement or act must create a ' clear impression ' ; the plaintiff does not make out the dear alleged breach of duty if his evidence shows impression. on }y a statement or act of vague or indefinite import. Such statements or acts would have little effect upon a man of average intelligence ; and hence, whatever the actual effect produced in a particular case, the law takes no notice of them. Nor will it suffice to patch together loose and incoherent expressions, or to supply by guess-work enough to make out a representation. Nothing more than what the words or acts naturally and plainly import can be added. The representation need not however be created by language; there is no distinction between an impression created by words and one created by acts. Language is Words not J „ . „ J . , B ' & . necessary on v one of the means of conveying thought. A for a repre- thought may often be conveyed as distinctly by sentation. an act ; enough, so far, that a clear impression is created upon the mind. If the impression is capable of being stated as a fact, and is such as might govern the conduct of an average man in regard to some change of position in contemplation, it satisfies the rule. It follows that, to constitute a representation, it is not necessary, even when language alone is used, that the state- ments should be made in terms expressly affirming the existence ■ of some fact. If the statement be such as would naturally lead jlthe plaintiff, as a man of average intelligence, to suppose the •I existence of a particular state of facts, that is as much as if ^statements had so been made in exact terms 1 . 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 ; VctsniGUGSS and am- but ambiguity in an impression may only mean biguity dis- ^hat more than one fact has been impressed upon tingnislied. . 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 to be clear and definite, the plaintiff reasonably acted upon the one which 1 Lee v. Jones, 17 C. B. x. s. 482; s. c. 14 C. B. x. s. 38(3. Sect. 2] THE REPRESENTATION 57 was false. That he did this it devolves upon him to show. For example : 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 entire works is a million pounds sterling per annum.' This statement might mean either that the works had actually turned out more than a million's worth at present prices within a year or yearly, or only that the works were capable of turning out so much ; in the former case it is false, in the latter it might be true. The plaintiff, who has been induced to buy shares in the undertaking, must show that he acted upon the statement in the sense in which it was false 1 . Where a term of ar t, having a technical and also a popular meaning, has been used, the case may be affected by pre- sumption. Between parties engaged in the vocation in which the term has a technical meaning, the presumption (probably) would be, that the representation was to be taken in the technical sense ; if the parties were engaged in different vocations, there would perhaps be no presumption either way. In either case it would be necessary, judging from the decision 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 statement with reasonable ground to suppose that it would be acted upon in the sense in which it was true. The pre- sumption however, in any case, would only be a prima facie one. Another case may be mentioned. A statement of fact may' have one meaning in one place and another in another ; in such a case it would seem that the statement should be understood as intended in the sense in which it is commonly used where it was made, unless, indeed, it was made there by one residing where it is used in a different sense. In this latter case the courts would (probably) consider the party bound only by that meaning which he would have reason to suppose was conveyed. The impression created must be of a ' fact,' a word which 1 Smith v. Chadwick, 9 App. Cas. 187; s. c. 20 Ch. Div. 27. 58 DECEIT [Sect. 2 imports something capable of being known. Does this mean, impression m tne case °^ a statement, that what is stated of fact must be stated as a fact? There is some con- opinion as fusion in the books in regard to this question, fact. Xt is commonly said that the law takes no notice of statements of opinion, or of statements in regard to future events or conduct short of contract. But that is by no means universally true ; and even when true its truth does not rest upon the ground that such statements are not statements of fact. As a matter of form it is true that statements of opinion and statements relating to the future ordinarily are not statements of fact ; but in reality they always involve and imply statements of fact. The fact involved is indeed a mental fact, to wit, the state of mind — the opinion, belief, or intention— of the person speaking. But a mental fact is as truly a fact as a non-mental fact ; the person making it may know whether it is true or false. He will know whether his belief or intention is as he has stated. Anything capable of being known is a fact, as the law looks upon the subject ; and a mental fact is as capable of being known as a non- mental fact. The result is that when a man states that his opinion, belief, or intention is so-and-so, he has virtually and in real effect stated that he knows of nothing to make his statement of opinion, belief, or intention a sham. If then the law requires that what is stated should be stated as a fact, the case in question fulfils the requirement ; the state ment, is in effect — and that is the real test — a statement of fact. For example : The defendant, seller of a hotel under lease, says to the plaintiff, the buyer, that the tenant is a 'most desirable tenant.' Assuming that what is ' desirable ' in such a case is matter of opinion, still the statement is in effect a statement of fact, for the seller 'impliedly states that he knows facts which justify his opinion 1 .' Again: The defendant, a cattle dealer, selling cattle to the plaintiff, states that he is of opinion that the cattle will weigh 900 lb. and upwards per head. This in effect is a statement of fact, to wit, that the defendant knows nothing to make the opinion a sham' 2 . 1 Smith r. Land . White, 1894, 3 Ch. 276, C. A. Sect. 2] MALICE 79 the falsity of the representations and damage, it will be enough to refer to what has been said of the same things in the chapter on Deceit; there is no difference between the two wrongs in those particulars. In regard to malice too, Avhat has been said in another place 1 may be referred to; but a few words should be added here. § 2. Malice The malice which must be proved in slander of title is 'actual' malice, in the sense indeed of a state of the mind, but Actual malice not necessarily in the sense of motive. It is no required. doubt true that to prove an evil motive for the false representations will (with damage) make a prima facie case of 'actual' malice in the sense of the rule, and that that would presumptively overturn the permission or privilege to make the false representations, — for it must be remembered that there can be no legal right to make such representations 2 . But still there is reason to believe that the effect of the evidence would be overturned by proof that the defendant believed what he said to be true and said it in good faith, however much he may also have wished to harm the plaintiff. A may make a false claim to property held by B, believing his claim to be true, and in good faith assert his intention to make good the claim, hoping at the same time to ruin B in the contest, in hatred of him 3 . At any rate it is laid down that belief and good faith on the part of the defendant Avill 1 Ante, pp. 18-22. 2 That the case is one of permission or privilege only, see Halsey v. Brother- hood, 19 Ch. D. 380; Wren v. Weild, L. B. 4 Q. B. 730; Gott v. Pulsifer, 122 Mass. 235. 3 See Wren v. Weild, L. B. 4 Q. B. 730, 734, Blackburn, J., for the court : ' Where a person claims a right in himself which he intends to enforce against a purchaser, he is entitled, and indeed in common fairness hound, to give the intended purchaser warning of such his intention. . . . And consequently we think no action can lie for giving such preliminary warning, unless either it can be shown that the threat was made mala fide, only with the intent to injure the vendor, and without any purpose to follow it up by an action against the purchaser, or that the circumstances were such as to make the bringing an action altogether wrongful.' The qualifying words 'unless . . . purchaser' plainly imply that if there was a real purpose to follow up the claim by an action, it would not matter that the claim was also made to injure the plaintiff. 80 SLANDER OF TITLE [Sect. 2 be a defence to the prima facie case. For example : The defendant, to the damage of the plaintiff, falsely states to a third person, with whom the plaintiff has made a contract for the sale of certain lands, that the plaintiff's title to the property will ' sooner or later be contested ' ; that when the lands were sold to the plaintiff the vendor ' was not in a state of soundness or competency.' The defendant made this statement in good faith, believing it to be true. This is no breach of duty to the plaintiff 1 . Further, though it is true that to prove an evil motive makes a prima facie case of the malice required, it is also true that the plaintiff is not bound to prove anything of the kind. It is well settled that it is enough for the plaintiff to prove that the defendant made the false representations with knowledge that they were false or in reckless disregard of the consequences of making them. For example : The plaintiff in his declaration alleges that the defendant made a claim falsely and maliciously and without probable cause, knowing that he had no claim, to goods of the plaintiff, to the plaintiff's damage. The declaration is good ; knowledge of the baselessness of the claim would be sufficient evidence of malice 2 . Again : The defendant is sued in slander of title for publishing in a newspaper, of which he is proprietor, false and disparaging statements concerning a statue owned by the plaintiff, called the Cardiff Giant. The judge instructs the jury that the plaintiff must prove that the statements were made with a disposition wilfully and purposely to injure the value of the statue, with wanton disregard of the interest of the owner. The instruction is erroneous ; the plaintiff need only prove that the state ments were made with a reckless disregard of the plaintiff's rights and of the consequences to him 3 . 1 Pitt v. Donovan, 1 Maule & S. 639 ; Wren v. Weild, supra. " Green v. Button, 2 Cromp. M. & R. 707 ; Wren v. Weild, L. K. 4 Q. B. 730, 734. 3 Gott v. Pulsifer, 122 Mass. 235, Gray, C. J.: 'Malice iu uttering false statements may consist either in a direct intention to injure another or in a reckless disregard of his rights and of the consequences that may result to him.' Hibbs v. Wilkinson, 1 F. & F. 608, 610; Paris v. Levy, 2 F. & F. 71, 74; s. c. 9 C B. n. s. 342, 350; Strauss r. Francis, 4 F. & F. 1107, 1114. Sect. 2] MALICE 81 It will accordingly be noticed that what is required in the name of malice in the law of slander of title is satisfied . . by proof of what is called fraud, in the narrower fraud to sense, in the law of deceit, to wit, knowledge of falsity, or falsity with recklessness of conse- quences 1 . Whether the other methods of proving fraud in deceit 2 would satisfy the law of slander of title in regard to malice does not appear. But it is clear that fraud and malice are not synonymous terms. Fraud taken in its broad sense signifies something more than a state of mind ; as we have elsewhere seen, it imports means employed, while malice as an entity, in whatever sense, is only a state of the mind. Though the term ' fraud,' then, as the word is commonly used in deceit, is here an interchangeable term with malice, and though in regard to falsity and damage deceit and slander of title are in accord, that is all that can be said. At that point we come to an end of slander of title, but not of deceit. Several other elements of liability would be required to make a case of deceit, which in the nature of things could not belong to the present wrong, — ignorance of the plaintiff and intention that the plaintiff should act upon the misrepresentations. Slander of title has therefore a place of its own, as a distinct wrong, in the law of torts. 1 Ante, p. 04. - Id. B. T. CHAPTER III 2. Lawful Acts dove of Malice, concluded Malicious Prosecution Statement of the duty. A owes to B the duty not 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. 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. The word 'prosecution' includes such civil actions as may be the subject of a suit for malicious prosecution. The term ' probable cause ' is used for brevity, in this chapter, for ' reasonable and probable cause 1 .' Civil redress for malicious prosecutions is of statutory origin. Before the thirteenth year of Edward the First there was no sufficient restraint against such perversions of justice ; the provision of Magna Carta in regard to imprisonment and dispossession of lands was little more than a declaration of right. But in the year mentioned two statutes were passed which, though long since obsolete and forgotten as statutes, struck their roots deep and have had a permanent influence on 1 There may be some slight difference in meaning in special cases, between 'reasonable' and 'probable' cause. See the language of Tindal, C. J., in Broad v. Hani, 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. Sect. 1] WHAT MUST BE PROVED 83 the law. The two statutes were called respectively the Statute of Malicious Appeals 1 , and the Statute of Malicious Distresses in Courts Baron 2 . The first is the more important 3 . § 1. What must be Proved In order to maintain an action for a malicious prosecution, three things are necessary, and sometimes 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 for malicious prosecution is maintain- able 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 civil wrongful suits instituted of malice and without probable civil suits. cause English policy is against giving redress except in special cases 4 . Redress of the kind appears to be confined to cases of actions involving 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 7 .' ' If a man fancies he has 1 13 Edw. 1, c. 12. 2 13 Edw. 1, c. 36. 3 There were other statutes of the same and subsequent reigns in regard to malicious prosecutions, but they need not be specially mentioned here. See Bigelow's Leading Cases on Torts, 192, 211. 4 'In the present day, and according to our present law, the bringing of an ordinary action, however maliciously, and however great the want of reasonable and probable cause, will not support a subsequent action for malicious prosecu- tion.' Quartz Hill Mining Co. v. Eyre, 11 Q. B. Div. (574, 690, Bowen, L. J. But (as the text intimates) there are some exceptions, as in cases involving false imputations touching business reputation. See id. p. 691. 5 11 Q. B. Div. 691, Bowen, L. J.; Pollock, Torts, 811, 6th ed. 6 Metropolitan Bank v. Pooley, 10 App. Cas. 210. 7 Pollock, 311; 11 Q. B. Div. 691. 6—2 84 MALICIOUS PROSECUTION [Sect. 1 a right, he may sue an action 1 ,' without fearing a suit in case of failure. But where there has been a wrongful arrest, there is ground for a suit for false imprisonment, though there may be none for malicious prosecution 2 . § 2. The 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 by requiring ter- satisfactory evidence whether the charge is true mination of or f a ] se before the verdict and judgment of the prosecution. J ° 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 favour of the plaintiff in the action for the prosecution, and a judgment against him in that prosecution 3 ; and it has been said that judgment against the party prosecuted would show, and that conclusively, that there was probable cause for the prosecution 4 . It will be seen in the next section (relating to probable cause) that this is an unsound view of the effect of the judgment 5 . But since conviction would show that the charge was not false, the prosecution could not have been wrongful ; the person prosecuted has now to prove that he was not guilty, — conviction shows that he was guilty. 1 Savill v. Roberts, 1 Ld. Raym. 374, Lord Holt. 2 Chapter ix. 3 Fisher v. Bristovv, 1 Doug. 215. 4 Parker v. Farley, 10 Cushing (Mass.), 279, 282 ; Dennehey v. Woodsum, 100 Mass. 195, 197; Morrow v. Wheeler & W. Manuf. Co., 165 Mass. 349; Castrique v. Behrens, 3 El. & E. 709. See Besebe v. Matthews, L. R. 2 C. P. 684 ; 1 Smith's Leading Cases, 258, 6th ed. 5 Thus it is held on sound principle, that an action for malicious prose- cution 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. Sect. 2] TERMINATION OF THE PROSECUTION 85 Conviction is fatal even though the prosecution take place in a proceeding from which there is no appeal. Conviction 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 prosecution would be (so it is deemed) virtually to grant an appeal. For example : The defendant procures the plaintiff to be arrested (falsely, maliciously, and without probable cause, as the latter alleges) and tried before a justice of the peace on a criminal complaint of assault and battery. The plaintiff (then defendant) is convicted, and no appeal is allowed by law. The defendant is not liable to an action for malicious prosecution 1 . It is often said that the plaintiff must have been acquitted of the charge preferred, to enable him to sue for malicious Acquittal not prosecution. But this is not always true ; it is necessary in not true of civil suits (in the few cases of the certain cases. i • j i_* i_ xi i • ■>• \ j kind to which the present subject applies), and of course it is not true of criminal proceedings in which there can be no conviction or acquittal 2 . It is not necessary to the termination of a civil suit such as will permit an action for malicious prosecution, that the suit should have gone to actual judgment, or even to a verdict by the jury. A civil suit is entirely within the control of the plaintiff, and he may withdraw and 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 sufficient termination of the cause for the purposes of the now plaintiff". It is not necessary indeed, according to American authority, that the party should make a formal entry of the withdrawal or 1 Besebe v. Matthews, L. K. 2 C. P. 684. 2 The term ' acquittal ' has sometimes been used of cases in which there has been no more than a termination of preliminary proceedings with a discharge of the prisoner. In such cases no acquittal is necessary, as will be seen later ; none is possible in such proceedings. When an acquittal in a prosecution for crime is really necessary, there must, it seems, be such a termination of the prosecution, in favour of the accused, as will enable him to plead the judgment in bar of another prosecution. 3 Arundell v. White, 14 East, 216. 86 MALICIOUS PROSECUTION [Sect. 2 dismissal of the suit, in order (without a judgment or verdict) to terminate it sufficiently for the purposes of an action by the opposite party. Any act, or omission to act, which is tantamount to a discontinuance of the proceeding has the same effect 1 . For example : The defendant, having procured the arrest of the plaintiff in a civil cause, fails to enter and prosecute his suit. This is a termination of the proceeding 2 . If however the (civil) prosecution went to judgment, the judgment must have been rendered in favour of the defendant therein, in order to enable him to sue for malicious prosecution. Judgment against the defendant would conclusively establish the plaintiff's right of action ; it could not therefore be treated as a false prosecution, — unless indeed it Avas concocted in fraud. In a criminal trial the situation is indeed different. Such a proceeding is instituted by the Crown, and, when by indict- Criminai ment, is under the control of the Crown counsel ; trials dis- it is never under the control of the prosecutor. tinguished. ^ e ^^ nQ au thority over it ; and, this being the case, he cannot, in principle, be bound by the action of the prosecuting counsel. Should such counsel therefore enter a dismissal of the prosecution before the defendant, having been duly indicted, has been put in jeopardy, this act, it seems, gives no right to the prisoner against the prosecutor. The course of proceeding was not arrested by the prosecutor, and he has a right to insist that the law shall take its regular course, and place the prisoner in jeopardy, before he shall have the power to seek redress. For example : The defendant procures the plaintiff to be indicted for arson. The prosecuting counsel, failing to obtain evidence, entei's a ' nolle prosequi ' before the jury is sworn. The prosecution is not terminated in favour of the prison er :i . If however the prosecution was arrested by the grand jury's finding no indictment Mipon the evidence, and the consequent No indict- discharge of the prisoner, this is an end of the ment found. prosecution, such as will enable him (other 1 Cardival r. Smith, 10!) Mass. 158; Strehlow v. Pettit, 90 Wisconsin, 22. - Cardival v. Smith, supra. a Bacon v. Towne, 4 Cushiug (Mass.), 217. Sect. 2] TERMINATION OF THE PROSECUTION 87 elements present) to bring the action under consideration 1 . And the same is true, it seems, 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 prosecutor withdraw his prosecution. In preliminary proceedings such as the foregoing there can be no conviction or acquittal. For example : The defendant prefers against the plaintiff a charge of forgery before a justice of the peace, who has authority only to bind over or discharge the prisoner. The justice's minutes contain the following entry : ' After full hearing in the case, the complainant withdrew his prosecution, and it was thereupon ordered ' that the plaintiff be discharged. An action for malicious prosecution is now proper 2 . In none of the foregoing classes of cases has there been an acquittal of the party prosecuted, or anything tantamount What in law to an acquittal. To be acquitted in a constitutes prosecution for crime (the only case calling for remark), the accused must have been put in jeopardy; but a state of jeopardy is not reached until the swearing of the petit jury. Hence if acquittal were necessary, an action for malicious prosecution could not be instituted upon the failure of the grand jury to find an indictment, or upon the discharge of a magistrate who has no power to convict. In neither case has the prisoner been in jeopardy. The fact appears to be that, notwithstanding the language of some of the judges, a termination of the proceedings with an acquittal, actual or virtual, is necessary only in case of an indictment or information against the prisoner. In other cases it is enough that the prosecution has been dismissed'. 1 See Byne v. Moore, 5 Taunt. 187. 2 Sayles v. Briggs, 4 Metcalf (Mass.), -121. 3 The rule requiring an acquittal of the party prosecuted runs back to the Statute of Malicious Appeals, already referred to. Westm. 2, c. 12 (13 Edw. 1). By this statute it was ordained that when any person maliciously ' appealed [that is, accused and prosecuted by the person injured] 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 88 MALICIOUS PROSECUTION [Sect. 2 By way of summary, the various rules of law may be thus stated : A civil suit is sufficiently terminated (1) when the summing- plaintiff has withdrawn, or otherwise discontinued, upofter- his action; or (2) when judgment has been rendered in favour of the defendant. A criminal suit is sufficiently terminated (1) when the prosecution, if brought before a magistrate, has been dismissed, or (2) when, if preferred before the grand jury, that body has found no indictment; or (3) when, an indictment having been found, and the prisoner having been put in jeopardy, the prisoner has been acquitted in fact or in law. It seems however that the termination must not have been brought about out of course in favour of the defendant in the former prosecution, as by a compromise entered into with him, for he might have been convicted had the case gone on in the regular way. § 3. 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 what proba- ble cause duty by showing that he instituted the prosecu- tion without probable cause 1 . And this appears later statutes were passed against conspiracies to indict persons maliciously. Bigelow's L. C. Torts, 190. Between these statutes and the statute first mentioned, and taking its shape from them, the action for malicious prosecu- tion arose. The various statutes applied to cases of prosecutions for felony alone ; in such cases it was provided that acquittal was necessary. Prosecu- tions for misdemeanours, prosecutions before inferior courts, and civil prosecu- tions have been 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. Bigelow's L. C. Torts, 192). 1 Turner v. Ambler, 10 Q. B. 252. Under the early law this apparently was not true. Acquittal and malice made a presumptive case, according to the Statute of Malicious Appeals. Probable cause was a defence, but so far as it was distinguished from malice the burden of proof in regard to it seems to have been upon the defendant. See Savill v. Roberts, Ld. Raym. 374. It appears to have been considered as overturning the plaintiff's evidence of malice. After Savill v. Roberts (1699) the defendant had no need to prove probable cause if an indictment not involving scandal or loss of life or liberty had been found against the plaintiff ; the plaintiff being ' constrained to show express malice and Sect. 3] THE WANT OF PROBABLE CAUSE 89 to mean that he ought to show that no such state of facts or circumstances was known to him as would induce one of ordinary intelligence and caution to believe the charge pre- ferred to be true. Or, conversely, probable cause for preferring a charge of crime is shown by facts, actual or believed by the prosecutor to be actual, which would create a reasonable sus- picion in the mind of a reasonable man 1 . To act therefore on very slight circumstances of suspicion, 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-workman with the criminal, has been heard to say that he (the plaintiff) had been told, a few hours before the robbery, that the robber had absconded, and that he had told the plaintiff that he intended to go to Australia. The robber has also been seen, early in the morning after the robbery, coining from a public entry leading to the back door of the plaintiff's house. The defendant has no probable cause for procuring the arrest 2 . Probable cause however does not depend upon the actual; state of the case, in point of fact, but upon honest and reason- Acting in bad aDie belief. Hence, though the prosecutor be in 1 faith - 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 example : The defendant goes before a magistrate and prefers against the plaintiff the charge of larceny, for which there was reasonable ground in the facts within the defendant's iniquity in the prosecution.' Savill v. Koberts, Lord Holt. This would be done evidently by proving want of probable cause. The action for malicious prosecution was 'not to be favoured but managed with great caution,' in cases not involving scandal or loss of life or liberty. Id. This doctrine led the way for the modern rule requiring the plaintiff to prove want of probable cause in all cases. 1 Broughton v. Jackson, 18 Q. B. 378; Panton v. Williams, 2 Q. B. 169, Ex. Ch. 2 Busst v. Gibbons, 30 Law J. Ex. 75. Comp. Lister v. Perryman, L. R. 4 H. L. 521, as to hearsay. 90 MALICIOUS PROSECUTION [Sect. 3 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 1 . The question of probable cause is to be decided by the circumstances existing or supposed to exist at the time of the arrest, and not by the turn of subsequent events 2 ; able cause: such at all events is the general rule. If the subsequent defendant had at that time such grounds for sup- posing the plaintiff guilty of the crime charged as would satisfy a cautious man, he violates no duty to the plaintiff in procuring his arrest, though such grounds be immediately and satisfactorily explained away, or the truth discovered by the prosecutor himself. For example : The defendant procures the plaintiff to be arrested for the larceny of certain ribbons, on reasonable grounds of suspicion. He afterwards finds the ribbons in his own possession. He is not liable 3 . On the other hand, in accordance with the same principle, if the prosecutor was not possessed of facts justifying 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 existed, 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 procuring 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 4 . It has however been declared in effect that, while acquittal is no evidence of want of probable cause, conviction is conclusive 1 Broad v. Ham, 5 Bing. N. C. 722. Had the defendant believed the charge, would it have been material that he procured the arrest mainly for the purpose of getting his pay? 2 Delegal v. Highley, 3 Bing. N. C. 950. :! Swain v. Stafford, 4 Iredell (North Carolina), 392 and 398. 4 Delegal v. Highley, 3 Biug. N. C. 950. Sect. 3] THE WANT OF PROBABLE CAUSE 91 of its existence 1 ; and this though the verdict is afterward set aside and, upon a new trial, an acquittal follows 2 . 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. Conviction does not, in point of fact, prove that the prosecutor at the time had reasonable grounds to suspect the guilt of the prisoner, such grounds, that is, as would have induced a cautious man to arrest the suspected person, — it simply proves that the prisoner is guilty ; and he may have been found guilty though the prosecutor procured his arrest without reasonable grounds. 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 prosecutions, by plain implication exempted the prosecutor (of felony) from liability in case of the conviction of the prisoner. It seems clear at all events that upon reversal of a conviction, followed by an acquittal, there is nothing in the conviction to prevent an action for malicious prosecution 3 . There are other seeming anomalies relating to this phase of probable cause ; one of them is found in the effect sometimes Action of given to the action of the grand jury, or to that grand jury or of a magistrate who has power only to bind over magistrate. ^ e accusec i f or trial. That action has been said to furnish prima facie 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 present suit 4 . 1 Reynolds v. Kennedy, 1 Wils. 232; Sutton v. Johnstone, 1 T. R, 493, 505, 506. So in direct terms in America. Whitney v. Peckham, 15 Mass. 243 (by a trial magistrate); Parker v. Farley, 10 Cush. 279, 282; Morrow v. Wheeler & Wilson Co., 165 Mass. 349; Dennehey v. Woodsum, 100 Mass. 195, 197. - Whitney v. Peckham, supra. Contra everywhere of simple acquittal. :i Comp. Metropolitan Bank v. Pooley, 10 App. Cas. 210; ante, p. 84, n. 4 See Nicholson v. Coghill, 6 Dowl. & R. 12, 14, Holroyd, J. ; Broad v. Ham, 5 Bing. N. C. 722, 727, Coltman, J. 92 MALICIOUS PROSECUTION [Sect. 3 There is ground for doubting the soundness of this doctrine. How can it be, it might be asked, that what is no evidence at all before the grand jury or the magistrate in the same case can be prima facie evidence before a petit jury in a different case ? The grand jury or the magistrate does not consider what prompted the prosecutor, but whether there is now sufficient evidence to justify holding the accused further for trial. The contrary doctrine, at best, is a doubtful application of the rule of the relevancy of a later fact to prove an earlier. Further, it has been seen 1 that in certain cases an action for a malicious civil suit may be brought. Now while it is Discontinu- held that the mere omission to appear and prose- ance of suit. cu ^ e an ac tion, whereby the defendant obtains a judgment of nonsuit, is no evidence of want of probable cause 2 , it is deemed that a voluntary discontinuance, being a positive act, may show prima facie evidence of the same. For example (taking a case from the old law which permitted an arrest in an ordinary civil suit) : The 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 plaintiff discontinues his suit. This is deemed prima facie evidence of want of probable cause 3 . It is clear that the mere abandonment of the prosecution by the prosecutor, and the acquittal of the prisoner, are no ,. . evidence of a want of probable cause 4 . Such Abandonment , r of prosecu- tacts in themselves show nothing except that the tlon ' prosecution has failed. It may still have been undertaken upon reasonable grounds of suspicion 5 . Still, the circumstances 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 1 Ante, p. 83. 2 Sinclair v. Eldred, 4 Taunt. 9 ; Webb v. Hill, 3 Car. & P. 485. 3 Nicholson v. Coghill, 6 Dowl. & II. 12 ; Webb v. Hill, 3 Car. & P. 485. 4 Willans v. Taylor, 6 Bing. 183. 5 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. Sect. 3] THE WANT OF PROBABLE CAUSE 93 testimony, the grand jury return a true bill. The defendant now keeps the prosecution suspended for three years, when the plaintiff, taking down the record for trial, is acquitted ; the defendant declining to appear as a witness, though in court at the time and called upon to testify. These facts indicate the absence of probable cause 1 . If the prosecutor takes the advice of a practising lawyer upon the question whether the facts within his knowledge are Acting on such as to justify a complaint, assuming that he legal advice. h as honestly stated such facts and acts bona fide upon the advice given, he will be protected even though the counsel gave erroneous advice. That is, he will be protected, though he might not have been in possession of facts such as would have justified a prosecution without the advice. For example : The defendant states to his attorney the facts in his possession concerning a crime supposed to have been com- mitted by the plaintiff. The attorney advises the defendant that he can safely procure the plaintiff's arrest. The defendant 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 3 . For example : The defendant procures the arrest of the plaintiff, having first taken the advice of legal counsel upon the facts. This advice is erroneous, and it is not acted upon in good faith believing it to be correct ; the arrest being procured for the indirect and sinister purpose of com- pelling the plaintiff to sanction the insurance of certain illegal bonds. The defendant is liable 4 . 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, casting new doubt upon the party's guilt, the 1 Willans v. Taylor, 6 Bing. 183. 2 Snow v. Allen, 1 Stark. 502. 3 Bavenga v. Mackintosh, 2 B. & C. 693. 4 Bavenga v. Mackintosh, supra. See Hewlett v. Cruchley, 5 Taunt. 277, 283. 94 MALICIOUS PROSECUTION [Sect. 3 prosecutor cannot safely proceed to procure an arrest except upon new advice ; unless indeed the entire chain of facts in his possession shall satisfy the court that there existed a reasonable ground for his action. To make use of the advice given, when the new facts indicate that the accused is not guilty, would not be to act upon the advice in good faith 1 . Again, if the only defence be that the prosecutor acted upon legal advice, a breach of duty may still be made out if it appear that the prosecutor untruly stated to the counsel the facts within his knowledge. The plaintiff's case, so far as it rested on the proof of want of probable cause, would be established by showing that the actual facts known to the prosecutor (differing from those on which the advice was ob- tained) showed that he had no reasonable ground for instituting the prosecution. The result is, that the defence of advice of legal counsel, to establish probable cause, must not be resorted to as a mere cover for the prosecution, but must be the result of an honest and fair purpose ; and the statement made at the time by the prosecutor to his counsel must be full and true, and consistent with that purpose. This defence of having acted upon legal advice is, according to American authority, a strict one, confined to the case of advice obtained from lawyers admitted to practise in the courts 2 . 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, by the better view, that the advice was given by an officer of the law, professing familiarity 1 See Fitzjohn v. Mackinder, 9 C. B. n. s. 505, 531, Ex. Ch., Cockburn, C. J. 2 It is held in Cole v. Andrews, 74 Minnesota, 93, that the relation of attorney and client must exist between the person asking and the person receiving the advice to make the case one of probable cause ; which is contra to Hess v. Oregon Co., 31 Oregon, 503, to Wenger v. Phillips, 195 Peun. St. '214, and to Oliver v. Pate, 43 Indiana, 132. The last named case is denied in Cole v. Andrews. The cases cited are cases of advice given by prosecuting counsel. See also Williams v. Casebeer, 120 California, 77, advice by a police judge. Sect. 4] MALICE 95 with its principles, if such person were not a lawyer. For example : The defendant procures the arrest of the plaintiff upon advice of a justice of the peace, with whom he has been in the habit of advising on legal matters; but the justice is not a lawyer. This is not evidence of probable cause 1 . The want of probable cause is not to be inferred merelyl because of evidence of malice, since a person may maliciously! prosecute another against whom he has the IVIcilics does not show strongest evidence ; whom indeed he may havel probable caught in the commission of the crime 2 . There cause. ° must be some evidence indicating that the prose- cutor instituted the suit under circumstances which would not have induced a cautious man to act. It should be observed finally that it may be necessary for the plaintiff, even in a jury case, to convince the judge of the Action of tbe want of probable cause upon the facts proved, judge. -phe f ac t s material to the question of probable cause must be found by the jury ; but the judge may have to decide whether the facts so found establish probable cause or want of it. That is a question of law 3 . § 4. Malice To make out a breach of duty by the defendant, the plaintiff must also produce evidence that the prosecution was instituted with express or actual malice towards the accused 4 , ice necessary: Malice is not to be inferred merely because of want of prob- proof of a want of probable cause, any more than malice a want of probable cause is to be inferred merely question of because of proof of malice ; it may be inferred as a fact from want of probable cause, but it is not a necessary inference. A man may institute a prosecution 1 Beal v. Robeson, 8 Iredell, 276 (North Carolina). But see Williams v. Casebeer, 126 California, 77. 2 Turner v. Ambler, 10 Q. B. 252, 257. 3 Pantou v. Williams, 2 Q. B. 169, Ex. Ch. ; Lister v. Perryman, L. R. 4 H. L. 521; Abrath v. Northeastern By. Co., 11 App. Cas. 217. 4 Mitchell t\ Jenkins, 5 B. & Ad. 588. 96 . MALICIOUS PROSECUTION [Sect. 4 against another without malice either in the legal or the popular sense, though he had no sufficient ground for doing so. The jury must be allowed, and it is their duty, to pass upon the question of malice as a distinct matter. There is therefore no such thing in the law of malicious prosecution as implied malice or malice in law 1 . For example: 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 erroneous; the existence of malice is a question for the jury 2 . § 5. Damage If the charge upon which the prosecution was instituted was such as (being untrue) would have constituted actionable ,„. . slander had it not been preferred in court, the When damage need not be plaintiff, upon proof of the termination of the proved. prosecution, the want of probable cause, and malice, has made out a case, and is entitled to judgment. It is not necessary for him to prove that he has sustained any pecuniary damage. For example : The defendant causes the plaintiff to be indicted for the stealing of a cow, falsely, without probable cause, and of malice. The plaintiff is entitled to recover without producing evidence that he has sustained any actual damage 3 . But it has been decided that it is only for the prosecution of a charge the mere oral imputation of which would constitute actionable slander that the institution of the prosecution can be actionable without damage 4 . For example : The defendant falsely prefers against the plaintiff a simple charge of assault and battery, without cause and with malice. The plaintiff 1 Mitchell v. Jenkins, 5 B. & Ad. 588. 2 Id. 8 See Byne v. Moore, 5 Taunt. 187, Mansfield, C. J. 4 Byne v. Moore, supra. See Quartz Hill Mining Co. v. Eyre, 21 Q. B. Div. 674, 692. Sect. 6] WANT OF JURISDICTION, ETC. 97 cannot recover for a malicious prosecution without proof of special damage 1 . It follows that this action for a malicious prosecution cannot be maintained without proof of damage when the prosecutor has procured the indictment of the plaintiff for the commission of a wrong which is not a criminal offence involving scandal or loss of life or liberty, much less where an indictment preferred for an offence not scandalous has been thrown out by the grand jury. For example : The defendant maliciously and without probable cause procures the plaintiff to be arrested for an assault (not scandalous), whereupon the plaintiff gives bail for appearance at the next general quarter sessions. At such sessions the defendant procures an indictment to be preferred against him for the supposed assault; the grand jury return ' not found ' to the indictment ; and the plaintiff and his sureties are discharged. The plaintiff cannot recover without proving special damage 2 . § 6. Want of Jurisdiction, etc. If the prosecution fail by reason of the fact that the court in issuing its warrant exceeded its jurisdiction, or that the What action warrant or indictment was defective, the question proper. ma y arise whether the accused should sue for malicious prosecution, for false imprisonment if there was an arrest, or for slander if the charge was defamatory. In certain cases it is plain that he may bring an action for false imprison- ment ; for which the reader is referred to the chapter on that subject. 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 ; it may be that that remedy is applicable 3 . The ordinary remedy against the prosecutor appears to be an action for malicious prosecution 4 unless the prosecutor participated in making a false arrest. 1 Byne v. Moore, supra. 2 Id. It will be noticed that the mere arrest and having to procure bail do not amount to special damage. 3 See Bigelow's Leading Cases on Torts, 205, and cases cited. 4 Pippet v. Hearn, 5 B. & Aid. 634. Contra in Massachusetts, Bixby v. Brundige, 2 Gray, 129. If the supposed court was no court known to the law, B. T. 7 98 MALICIOUS PROSECUTION [Sect. 7 § 7. Kindred Wrongs In connection with malicious prosecution there is a whole group of kindred wrongs, kindred in name at least, which deserve to be distinguished and explained ; to wit, wrongs wrongs of malicious arrest, malicious attachment name . or execu ti n, malicious search, and malicious abuse of process, — and perhaps others. These wrongs differ as a whole from malicious prosecution in this, that while the prosecution in the last-named wrong is How these an original proceeding, the arrest, attachment, wrongs differ execution, or other act in these kindred wrong's from mail- . . ° cious prose- is usually a secondary or ancillary proceeding in cution. some original action which may have been per- fectly lawful. It will be assumed accordingly that the original proceeding in these cases was lawful. How these wrongs severally differ from malicious prosecution will now be seen. Malicious arrest as a tort differs from malicious prosecution in perhaps two particulars touching the proof required to make a cause of action, to wit, malice and the termination of the prosecution or suit. In regard to malice, it appears to be enough that the arrest was wrongful, — in what way is probably immaterial. Malice: prob- Thus it appears to be enough that the arrest was able cause. without probable cause ; malice, if that is true, being only a fiction and not a distinct entity requiring proof 1 . If however malice as an entity must actually be proved, as for instance by evidence that the defendant procured the arrest with knowledge that there was no probable cause for it 2 , there is no difference, in point of malice, between the two wrongs. However that may be, it is clear that malice, in whatever sense, would not make an arrest wrongful, if there was probable cause for it ; there is no difference between the two wrongs in that particular. as e.g. if it was only some self-constituted body like a 'vigilance committee,' an action for defamation could certainly be maintained. 1 As to malice as an entity and malice as a fiction, see ante, pp. 16-22. a Ante, p. 17. Sect. 7] KINDRED WRONGS 99 In regard to the termination of the prosecution, it is laid down that an action for a malicious arrest under secondary process cannot be brought until the original prosecution or action has come to an end 1 . It is not easy to understand this rule ; it should seem to be enough that the warrant has been set aside, if any termination of pro- ceedings be necessary. Thus if a man has been wrongfully arrested in an action on contract, he ought, it seems, to be entitled to sue at once upon discharge for any damage he has sustained, and not compelled to wait the event of the original action*. The chief reason for requiring a termination of the prosecution, in suits for malicious prosecution, to wit, that otherwise there might be inconsistent judgments, is not true of the case in question; judgment that the defendant procured the arrest wrongfully cannot be inconsistent with the right of that party to judgment on the contract. Such is the American doctrine in regard to malicious attachment 3 , as will be seen ; and it may well be doubted whether there is any ground for a distinction on this point between the two cases. Damage must no doubt be proved unless the arrest was procured by defamatory allegations which as slander would be actionable per se. There appears to be no difference between cases of malicious arrest and malicious prosecution in that respect. To sum up : In an action for a malicious arrest the plaintiff has to prove want of probable cause, the termination of the proceeding in which the arrest was made, — and probably of the original proceeding, — and damage or not, according to the nature of the allegations made in procuring the arrest. If the process was void on its face, the case is one for an action for false imprisonment 4 . 1 Jenings v. Florence, 2 C. B. n. s. 467 ; Grainger v. Hill, 4 Bing. n. c. 212, Tindal, C. J. Jenings v. Florence, the later of these cases, merely recites a termination of all proceedings; but in Grainger v. Hill it is said that the original suit must have terminated. For other cases in regard to malicious arrest, see Daniels v. Fielding, 16 M. & W. 200; Gibbons v. Alison, 3 C. B. 181 ; Phillips v. Naylor, 4 H. & N. 565. 2 See Swift v. Witchard, 103 Georgia, 193, 196. 3 Zinn v. Rice, 154 Mass. 1. 4 See the chapter on that subject for the nature of such an action. 7—2 100 MALICIOUS PROSECUTION [Sect. 7 Malicious attachment as a tort appears to be very similar. Malice as a distinct entity, at least as motive, is no necessary part of the cause of action, though it may well probable be present and strengthen a case already made. cause: ex- ^ n attachment of property could not be wrongful CGSS1V6 lGVV. ^ simply because it was procured by malicious motives. What must be proved is want of probable cause, as by evidence that the attachment was manifestly excessive, and damage ; and that is all, unless knowledge of want of probable cause is required. It is not necessary in America for the plaintiff (defendant in the original suit and attachment) to await the result of the original action : enough that the malicious attach- Termination. ° ° . ment has worked damage to the plaintiff. The rule in malicious prosecution requiring a termination of the original proceedings is, by its terms and nature, limited to prosecutions ' to establish a charge or cause of action, and cannot include an ex parte use of process incidental and collateral' thereto, 'in defence to which the falsity of the charge cannot be shown 1 .' Hence there is no inconsistency between the suit for the malicious attachment and the suit in which the attachment was made. Where attachment of property is procured under statutory authority only, the attaching party's justification must of statutory course be found in the statute. Whether the attachment. ac t Jg wrongful or not, and what must be proved to make a cause of action, will be determined accordingly. In regard to malicious execution, little need be said '-. Malice as motive could not make the levy wrongful ; a mani- Maiice: ex- festly excessive levy would be wrongful, but it cessive levy. would be wrongful only in respect of the excess (supposing the subject severable) and of any damage done. For such damage the officer would be liable accordingly; the plaintiff in the execution also, if he directed or participated in the wrong. The action, whether in such a case, or for 1 Zinn v. Bice, 154 Mass. 1, W. Allen, J. 2 See Churchill v. Siggers, 3 El. & B. 938; Jenings r. Florence, 2 C. B. n. s. 407; Craij.; c. Ha.sell, 4 Q. B. 481. Sect. 7] KINDRED WRONGS 101 levying execution of a judgment known to be satisfied 1 , would naturally be for a wrongful taking of property, — trespass, conversion, or the like, — a very different wrong from that for a malicious prosecution 2 . Malicious search is, it seems, a common-law wrong. In America it is in terms a constitutional offence, taking that common law wrm on or a f ter tne separation of America from and cons titu- England, because of differences which had arisen wnatnTust 18 between the colonies and the mother country over be proved. search warrants 3 . The fourth amendment to the Constitution of the United States provides that ' no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.' This is only a solemn declaration of the English common law, except as it formerly applied to writs of assistance in the Exchequer. What must be proved to set aside the warrant, or to make a cause of action if the warrant has done its work, is indicated by the quotation ; though if the warrant was absolutely void, the wrong will be trespass or conversion. In the last of these kindred wrongs, malicious abuse of process, process which in itself may have been lawful has been perverted to a purpose not contemplated by it. the wrong: In other words the exigency of the writ has not what must h<2Q\\ followed. Malice again, as a distinct entity, probably plays no part in the case ; all that appears to be required for a cause of action is proof that the writ has been applied to a purpose not named or implied by it, to the damage of the plaintiff. Perversion or ' abuse ' of the process gives the name ' malicious ' to the case ; the malice is fictitious, or may be. It is not necessary for the plaintiff to wait the termination of the original proceeding or, since the process has not been 1 Deyo v. Van Valkenburgh, 5 Hill (New York), 2-12. 2 See later chapters. 3 As writs of ' assistance ' of government officers. These were writs of the Exchequer, in aid of the revenue officers. As to the objections to them see Paxton's Case, Quincy (Mass.), 51, and the learned note thereto by Hon. Horace Gray, late a justice of the Supreme Court of the United States. 102 MALICIOUS PROSECUTION [Sect. 7 followed, to prove that there was no probable cause for the issuance of the particular process. For example : The defendant, under a warrant, according to law, for the arrest of the plaintiff in an action of debt, makes use of the same to extort property from the plaintiff, in which he succeeds, to the damage of the plaintiff. The plaintiff sues for the loss while the action of debt is pending, and without alleging want of probable cause. He is entitled to recover 1 . Recent decisions have also brought to light the existence of a right of action for maintenance 2 . This is a tort founded upon early statutes making maintenance a criminal offence 3 ; 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 4 . 1 Grainger v. Hill, 4 Bing. n. c. 212. The original suit itself was premature, the debt not being due ; but that made no difference. 2 Bradlaugh v. Newdegate, 11 Q. B. D. 1 ; Harris v. Brisco, 17 Q. B. Div. 504; Metropolitan Bank v. Pooley, 10 App. Cas. 210. 3 It is thought doubtful if a corporation can be liable for the offence. 10 App. Cas. at p. 218, Lord Selborne. 4 Harris v. Brisco, supra. PART II UNLAWFUL ACTS BREACH OF ABSOLUTE DUTY CHAPTER IV Procuring Refusal to Contract Statement of the duty. A owes to B the duty not, by wrongful means, to procure C to refuse, to B's damage, to contract with him (B), if B desires to contract with G § 1. What must be Proved The use of wrongful means may for the present be dis- missed with a word. Every man has by law a right to Freedom of endeavour to enter into contract with others, and contract: f or an y one to use wrongful means, successfully interference • by wrongful an d Wlt h damage, to prevent the accomplishment means. f the endeavour would be an infringement of that right, and therefore a tort. It will be necessary to return to the subject later, in considering combinations to prevent contract. It remains to consider maliciously procuring refusal to contract, where no wrongful means are brought to bear 1 . § 2. Malice Until recently it was an open question whether an action lies for maliciously procuring one man to refuse to contract with Change in another, where the latter suffered damage thereby, the current There were strong dicta that an action was main- of authority. tainable in such a case , But in the year 1898 1 There is much conflict of authority on this point in America. Among the cases denying any right of action, see Rice v. Albee, 164 Mass. 88; May v. Wood, 172 Mass. 11; Boyson v. Thorn, 98 California, 578. Among cases contra, Walker v. Cronin, 107 Mass. 555; Plant v. Woods, 170 Mass. 492. 2 Temperton v. Russell, 1893, 1 Q. B. 715 ; Bowen v. Hall, 6 Q. B. Div. 333. 106 PROCURING REFUSAL TO CONTRACT [Sect. 2 the doctrine was repudiated, decisions and dicta to the contrary being reversed or overruled by the House of Lords, and the contrary plainly laid down 1 . Malice in such cases is to be taken in any sense of the word which does not import the use of wrongful means. It may accordinsrlv be laid down that no action lies for Maliciously . J „ ■ i 1 procuring re- procuring a man to refuse to contract with the fusai to con- plaintiff, where there was no duty to contract, tract, without \ ' . . J . use of wrong- though the procuring was done with notice ol the ful means. plaintiff's desire to contract and with intent to do him harm, if no wrongful means was employed. For example : The defendants maliciously, but without using wrongful means otherwise than by informing the Glengall Iron Company of the determination of their union men to leave the service of that com- pany unless the plaintiffs, non-union men, are discharged, procure the Glengall Iron Company, which theretofore had been em- ploying the plaintiffs by the day, to refuse at the end of a certain day to continue to employ them, the refusal not being a breach of contract or other legal duty by the company. The employment would have continued but for what the defendants did ; and the plaintiffs have suffered damage. The defendants art' not liable, whatever may have been their motive. They had a legal right to procure the Glengall Iron Company, in the way they did, to refuse to renew the employment of the plaintiffs, and malice on their (the defendants') part towards the plaintiff could not convert that right into a legal wrong 2 . The 'right to contract,' of common speech, plainly is no answer to this doctrine. The phrase is too broad. A has no legal right to contract with B, since B may refuse. Meaning of . , ■, , , • , -in right to A has only a legal right to try to induce B to contract. contract with him 3 . But C has a like legal right, 1 Allen v. Flood, 189S, A. C. 1, reversing Flood v. Jackson and overruling (on that point) dicta Temperton v. Russell, supra, and in Bowen v. Hall, 6 Q. B. Div. 333, 337, Brett, L. J. 2 Allen v. Flood, 1898, A. C. 1. 3 That men have a legal right to refuse to contract, for instance to say that they will not work with men of a particular organization, or of no organiza- tion, has scarcely been doubted; it is now at least beyond dispute. Quinn v. Leathern, 1901, A. C. 450, 538; Allen v. Flood, supra. Sect. 3] COMBINATIONS: MEANS 107 a right to try to induce, and hence to induce, B to contract with him in the matter; that is, it is held, he has a legal right to induce B not to contract with A 1 . That being the case, it seems that it should make no difference what C's motive may be, whether the good motive of desiring to have B contract with him or the bad motive of wishing to injure A. 'A man, has a [legal] right to say what he pleases, to induce, to advise, I to exhort, to command, provided he does not slander or deceive or commit any other of the wrongs known to the law of which speech may be the medium 2 .' § 3. Combinations : Means Would it affect the case if G were joined by others ; that is, would it give a right of action to A that two or more persons conspired in inducing B to refuse to con- spiracy, as tract with him, -with intent to injure A ? The means. question is one of difficulty, but it seems that it should be answered in the negative. There would only be a conspiracy to do a lawful thing (if C alone did it, it would not be unlawful, as we have seen), unless the combination itself amounts to the use of ' means.' If to combine be to use ' means,' then the combination or conspiracy may be using wrongful means, and hence, if attended with damage, be unlawful. To combine in bringing about the object is plainly to use means in one sense of the word ; and it is certain that two or more may be able to do harm and so make themselves liable for the damage, where one might not be equal to it 3 . An organ-grinder and monkey before one's window might not be a nuisance, but fifty organ-grinders and monkeys undoubtedly 1 See Allen v. Flood, supra, Lord Herschell. The question is not merely whether A has a legal right, but whether C has infringed that right ; this he has not done if he had a legal right to do what he did. 2 Allen v. Flood, at p. 138, per Lord Herschell. 3 Lambton v. Mellish, 1894, 3 Ch. 163; Thorpe v. Brumfitt, L. B. 8 Ch. 650; Mogul Steamship Co. v. McGregor, 1892, A. C. 25, 38, 45, 52, 60; s. c. 23 Q. B. Div. 598, 616, 624. Lambton v. Mellish was a case of rival caterers in a public place, trying to outdo each other by 'maddening' noises in getting business. 108 PROCURING REFUSAL TO CONTRACT [Sect. 3 would be. Or to give the classical illustration, one man probably could not hiss an actor off the stage, but a hundred men might do it 1 . The inference has been drawn that to combine and conspire is to use 'means' within the rule under consideration 2 . But the inference is hardly justified. The unlawfulness of the result, where the result is unlawful, is due, not to the means employed, except incidentally, but to doing the act itself, that being a nuisance, trespass, or the like ; which would be equally unlawful if done by one person, if one could do it. ' Means,' in the sense of the rule, appears to denote measures, such as mis- representation, used to bring to pass a result which one person might thus accomplish ; it denotes ' measures, not men 3 .' Com- binations may w T ell result in coercion, but they do not of themselves amount to coercion or anything else which is wrongful 4 . But a case of malice no doubt may easily be turned into a case of means. A does an act with intent to harm B ; that is a plain case of malice. But A does the act with intent to harm B, in order to bring him to terms with himself, A, A's motive being gain to himself; that is quite as plainly a case of the use by A of means to accomplish his purpose. The question then is, whether or not the means are wrongful 5 . In the case of a combination of men the means employed may the more easily be wrongful, not indeed (as has already been observed) because the doing of an act by one tions-. acts of man would not be unlawful when the doing of it one person. -^y several would be unlawful, but only because 1 Gregory v. Brunswick, 6 Man. & G. 205, 953. 2 Temperton v. Russell, 1893, 1 Q. B. 715, Lords Esher and Ludlow. See also the intimation of Lord Watson in Allen v. Flood, 1898, A. C. 1, 108. 8 That conspiring to do an act, which is done, is not unlawful as means unless the act would be so without any conspiracy, see Mogul Steamship Co. v. McGregor, 1892, A. C. 25 ; Allen v. Flood, supra. The suggestion that con- spiracy itself is means is new. 4 Strikes are not in themselves unlawful. Mogul Steamship Co. v. McGregor, 1892, A. C. 25, 47; Farrar v. Close, L. R. 4 Q. B. 602, 612. 5 Accordingly Temperton v. Russell, though treated by the court as a case of malice, should have been treated as one of means, regardless of the alleged conspiracy. The true question, it seems, was of the quality of the acts done by the defendants, whether rightful or wrongful. So easy is it to conceal means under a garb of malice. See Quinn v. Leathern, 1901, A. C. 495, 535. Sect.-'.] COMBINATIONS: MEANS 109 one man alone might not be able to do what several together could do. Thus the threat of one man, acting for himself alone, to call out another man's servants from work might well be powerless, when if the threat were made by a company of men, as by a trade union, or by one man on behalf of the company, the threat might be effective enough ; it would certainly be more apt to be effective than if made by but one man alone 1 ; added power of course is the very object of combination. Accordingly a cause of action might well arise in the case of a combination of the kind; damage caused in that way would be a violation of legal right, — not because of malice, but because the measures taken would be wrongful. For example : The defendants are officers of a trade union of butchers. The mem- bers of the union have adopted a rule that they will not work with non-union men, or cut up meat coming from a place where non-union men are employed. The plaintiff is a butcher, not a member of the union, and has men in his employ who are not union men. By invitation of the secretary of the union he attends a meeting of the union, the defendants also being present. The plaintiff now offers to pay whatever is required to enable his men to become members of the union, but the offer is rejected in anger 2 , and a vote passed to call out the plaintiff's men. A threat is also made and afterwards carried out to call out the men of a customer of the plaintiff, who supplies the plaintiff with meat ; the result of which is that, though the customer wishes to continue to supply the plaintiff, he now stops doing' so. These proceedings against the plaintiff are forwarded or taken by the defendants. 'Black lists' are also circulated through the plaintiff's neighbourhood by several of the defendants, holding up to odium the plaintiff and those 1 ' My Lords, it is said that conduct which is not actionable on the part of one person cannot be actionable if it is that of several acting in concert. This may be so where many do no more than one is supposed to do. But numbers may annoy and coerce where one may not. Annoyance and coercion by many may be so intolerable as to become actionable, and produce a result which one alone could not produce.' Lord Lindley, in Quinn v. Leathern, 1901, A. C. 495, 538. 2 One of the defendants, in reply to the offer, said that the men should be put out of the plaintiff's employment, 'and should walk the streets for twelve months.' But it is plain that the actiou of the House of Lords would have been the same had there been no evidence of malice. 110 PROCURING REFUSAL TO CONTRACT [Sect. 3 who dealt with him, as a warning against dealing with him. The plaintiff suffers damage from all this. The defendants are liable, so far as they participated in what was done 1 ; they were II not acting upon their own legal rights — they were dictating to the plaintiff and his customers and servants what they were to do ; they owed the duty to the plaintiff and his men to leave them in undisturbed enjoyment of liberty of action ; and the coercion of the plaintiff's customers and servants, and of the plaintiff through them, was an infringement of that duty and of the plaintiff's rights 1 '. In the case just stated the House of Lords reaffirms the doctrine that an act otherwise lawful 3 , although harmful, does Malice does n °t become actionable by being done maliciously not overturn m th e sense of proceeding from a bad motive and fication of with intent to annoy or harm another 4 . It was competition. n0 £ then that the acts in question were malicious, they were wrongful in that they were wrongful measures. They were not done of legal right; there was no justification for them. It should be noticed then that what the defendants did was not considered as falling within the designation of competi- tion, that is lawful competition; it was laid down in terms that 'competition, with all its drawbacks, not only between indi- viduals, but between associations, and between them and indi- viduals, is permissible, provided nobody's rights are infringed 5 .' For the defendants to seek to strengthen themselves for future contests with capital, so as especially to secure higher wages for union men, would no doubt be competition; but like other rights, the right of competition must be exercised lawfully. To compel employers, by threats and such like means, to call out their men was not lawful competition H . 1 The appellant Quinn did not participate in the circulation of the black lists. - Quinn v. Leathern, 1901, A. C. 495. See especially the language of Lord Lindley at pp. 537, 539, here used in effect. 3 Of legal right, as distinguished from bare permission. See ante, p. 9. 4 Quinn v. Leathern, at p. 533. 5 Id. p. 539. 6 Compare Vegelahn v. Guntner, 167 Mass. 92, of picketing of a kind held unlawful, Holmes, J., dissenting. Sect. 3] COMBINATIONS : MEANS 111 It should also be particularly noticed that the House of Lords drew a clear distinction between inducing employers to discharge their men at the end of a contract, by a fact dis- threats, and inducing them to do so by merely tingnished. giving them notice of a determination of the men to leave if their wishes are not complied with. In the former case coercion in effect is used, and, as that fairly imports, in regard to men who did not desire to leave ; in the latter case there may be nothing like coercion — there is only a statement of fact. The decision of the House of Lords in 1898 * must then be understood accordingly 2 . Another distinction taken in the later case should also be noticed, to wit, in regard to the effect given to the evidence in Rulings on t, ft e previous one. A decision had indeed been evidence. made in the prior case in regard to the defendant's conduct — it had been considered that all that the defendant did was to inform the employers of the plaintiffs that most of the employers' men would leave them if they did not discharge the plaintiffs. But it was now pointed out that the question what the defendant did was only a question of fact, and no court or jury could be bound as matter of law to reach the same con- clusion 3 . Finally it should be noticed that the House of Lords decides that every man has the right to earn his own living in his own 1 Allen v. Flood, 1898, A. C. 1. 2 Lord Lindley draws the distinction clearly. 'I am aware,' said he in Quinn v. Leathern, at p. 537, ' that in Allen ». Flood Lord Herschell [at pp. 128, 138] expressed his opinion to be that it was immaterial whether Allen said he would call the men out or not. This may have been so in that particular case, as there was evidence that Allen had no power to call out the men, and the men had determined to strike before Allen had anything to do with the matter. Butj if Lord Herschell meant to say that as a matter of law there is no difference between giving information that men will strike and making them strike, or threatening to make them strike by calling them out when they do not want to| strike, I am unable to concur with him.' It may be remarked that the same distinction has been taken in Massa- chusetts ; Kice v. Albee, 164 Mass. 88; but it has since been denied, assuming that the information, though true, was 'malevolent' and given to persuade. Moran v. Dunphy, 177 Mass. 485; Plant v. Woods, 176 Mass. 492. But the last-named case was a clear one for redress, on the footing of Allen v. Flood or of Quinn v. Leathern. 3 Lord Lindley in Quinn r. Leathern, at pp. 533, 534. 112 PROCURING REFUSAL TO CONTRACT [Sect. 3 way, provided he dues not violate some special law or infringe Riffht of ^he rights of others ; that this imports that a man earning ones may deal with others who are willing to deal with live 1 oo . j^ m . anc | ^^ ^ nere j g m consequence a correlative duty on the part of others not to prevent the free exercise of this right, except so far as their own similar rights may justify, for of what use would a man's right be to deal with others if any one might at will prevent him 1 ? On the other hand one man or several men in concert may, within the legal right to deal or not to deal with others, threaten to refuse to contract with another, what- Threats not . to deal with ever the motive. 1 he motive may be stated m a person. terms to harm the plaintiff, as by inducing the one threatened not to enter into contracts with him, and the threat may be successful in that particular, to the plaintiff's damage, but no action can be maintained 2 . There is no coercion in such a case, in any unlawful sense — coercion is not necessarily unlawful — for the persons threatening may lawfully refuse their custom, regardless of consequences. The conse- quences, though intended, of a lawful act cannot be unlawful towards those who do such act. The foregoing remarks dispose of a distinction sometimes thought to exist in regard to malicious injury to a man's occu- pation, profession or way of getting a livelihood 3 . Such cases cannot now be considered to stand upon any special footing of liability 4 . " 1 Lord Lindley in Quinn v. Leathern, at p. 534. 2 Scottish Cooperative Society v. Glasgow Fleishers' Association, 35 Sc. L. R. 645; Quinn v. Leathern, at p. 639. 3 In Keeble v. Hickeringill, 11 East, 574, note, much discussed and approved by many of the judges in Allen v. Flood (and approved in America in Walker v. Cronin, 107 Mass. 555), Lord Holt says that 'where a violent or malicious act is done to a man's occupation, profession, or way of getting a livelihood, there an action lies in all cases.' 4 Allen v. Flood, 1898, A. C. 1, at pp. 132-136, Lord Herschell. CHAPTER V Procuring Breach of Contract Statement of the duty. A, having knowledge or notice of the existence of a contract between B and G, owes the duty to B not to procure G to break his contract, to B's damage. It should be remembered that cases of this kind, though nominally cases of malice, are not such in reality. The knowledge or notice of the relation, called 'malice,' is only a necessary part of the breach of duty complained of in the sense that danger must be observed or observable (in ordinary cases) to create liability 1 . Proof of malice as a distinct entity is not necessary 2 . The case therefore belongs to this Part II., Unlawful Acts regardless of means or malice. From very early times it has been actionable by the common law of England for one to entice away another's servants, with Enticing ser- notice of the employment ; though the term vants away : ' servant ' at first was used to designate a person idea of employed in menial service 3 , that is, one living service. with the master as a member of his household or 1 Ante, pp. 12, 13. 2 Allen 17. Flood, 1898, A. C 1, 121-123, 154. :; The term was not applied to the master's children, though they were and are in law his servants, of his household. See Taylor v. Neri, infra. The secondary meaning of ' menial ' became the common meaning long ago. In early times of English vassalage a man's menial servants were so much part of his own station in life, or status, that merely to entice them away appears to have been actionable. Compare Bigelow's L. C Torts, 227, 290, 291. Secus of his children, until still earlier times of serfdom. Taylor v. Neri, infra. But to seduce his daughter was trespass until the nineteenth century. B. T. 8 114 PROCURING BREACH OF CONTRACT [Sect. 1 family. But that was because there was then little if any service that was not of that kind 1 . When in process of time there came to be much service in which the servants were not members of the master's household, the rule was extended accordingly and deemed to apply to all cases in which the relation of master and servant existed ; though for a time not without question 2 . The extension of the rule is now well settled 3 . § 1. Master and Servant: What must be Proved The plaintiff has to prove the enticement from service, with notice, to his damage. Such evidence will entitle him to recover. Notice and For example : The defendant entices away from damage. the plaintiff's employment the plaintiff's journey- men shoemakers working by the piece and not ' menial ' ser- vants, with notice of their relation to the plaintiff, to the plaintiff's damage. The defendant is liable 4 . Again : The defendant entices away from the plaintiff's employment, with notice thereof, the plaintiff's piano workmen working by the piece and not being menial servants, to the plaintiff's damage. The defendant is liable 5 . Again : The defendant entices away the plaintiff's workmen employed under contract generally and 1 The Statute of Labourers of 25 Edw. 3, stat. 1, may be noticed. The statute grew out of the lack of labourers caused by the plague, and accordingly related to ploughmen and others doing menial service. This has sometimes been supposed to be the origin of the master's right against third persons, but that is now considered a mistake. The statute was repealed, but the master's right of action has continued, without legislation, to this day. The Statute of Labourers simply added to the law certain provisions not of the common law, as in regard to harbouring servants. See Lumley v. Gye, 2 El. & B. 216, Wightman, J. 2 See Ashley v. Harrison, 1 Peake, 194; s. c. 1 Esp. 48; Taylor ?;. Neri, 1 Esp. 386. In the second case, an action for assaulting an opera singer whereby the plaintiff lost his service, Eyre, C. J., said that he did not think the law extended beyond menial servants, and pointed out that a father could not maintain an action for merely enticing away of his daughter per quod servitium amisit. a See Lumley v. Gye, 2 El. & B. 216 ; Crompton, J. ; Hart v. Aldridge, 1 Cowp. 54; Gunter v. Astor, 4 J. B. Moore, 12. 4 Hart v. Aldridge, 1 Cowp. 54, a case often followed. 5 Gunter v. Astor, 4 J. B. Moore, 12. Sect. 1] MASTER AND SERVANT 115 not as menial servants, in the manufacture of boots and shoes, with notice of the employment, to the plaintiff's damage. The defendant is liable 1 . It matters not in cases of a binding engagement to service that the servant had not yet entered upon the performance of Service not the service at the time of the enticement or seduc- begun. ^ion. jf by the terms of the contract or the ap- prenticeship (for there is no difference between an ordinary contract of hiring and an apprenticeship, so far as the present subject is concerned) the master has a right to require per- formance of the services at the time of the enticement, he has a right of redress for a wrongful interference with that right. For example : The defendant induces the plaintiff's gardener to refuse altogether to carry out his engagement to make the plaintiff's gardens, though the gardener, owing to dissatisfaction with his engagement, has already absented himself for a con- siderable time from his duties under the contract of hiring. The defendant is liable'''. In the foregoing examples the defendant had notice of the existence of the relation of master and servant when he pro- cured the servant to leave his master. Now, notice of the existence of this relation is necessary in all cases of actual service ; in the absence of notice, the party enticing away or seducing the servant violates no duty to the master. But it matters not that such party had no notice at first of the existence of the relation, if he afterwards acquire notice and then persist in keeping the servant away from his master. For example : The defendant employs the plaintiff's servant, upon application by the latter ; the servant having left the plaintiff during the existence of his contract of service, of 1 Walker v. Cronin, 107 Mass. 555. The allegation of malice, and with unlawful purpose to injure the plaintiff in his business, has been omitted from the foregoing statement as surplusage, the malice and the unlawful purpose being found in doing the act with notice of the relation. See ante, p. 113. ' It must now be considered clear law that a person who wrongfully and maliciously, or, which is the same thing, with notice, interrupts the relation subsisting between master and servant,' etc. Cronipton, J., in Lumley v. Gye, 2 El. & B. 216; Allen v. Flood, 1898, A. C. 1, 154. But see Glamorgan Coal Co. v. South Wales Miners' Federation, 1903, 1 K. B. 118, 131. - Compare Lumley v. Gye, 2 El. & B. 216. 8—2 \ 11G PROCURING BREACH OF CONTRACT [Sect. 1 which, however, the defendant is ignorant. Afterwards the plaintiff informs the defendant that the person employed by him is his (the plaintiff's) servant. The plaintiff requests the servant to return to him, and the servant refuses; and the defendant then continues to keep him in his employ. The defendant is liable for so continuing to keep the servant, though not for taking him into his service 1 . In order, however, to maintain an action for preventing a renewal of the service (that is, for what is called ' harbouring ' a servant), and not for interrupting it, it is necessary Harbouring. that ^^ g j lould be & D i n( ji n g contract of service. If there be no such engagement, the defendant cannot be liable to the plaintiff for persuading the servant to stay where he is rather than to return to the plaintiff, since the plaintiff neither has any right to require the service in such a case, nor is he at the time in the enjoyment of it as a gratuity. For example : The defendant receives, without notice, a person who has been acting in the service of the plaintiff under a contract void by the Statute of Frauds, and afterwards, on notice of the plaintiff's claim to the service, during the term of service agreed upon, refuses to send the person away. This is no breach of duty to the plaintiff 2 . § 2. Gratuitous Service It was formerly a matter of some doubt if an action could be maintained for interrupting, with notice, the gratuitous Binding en- relation of master and servant. It was sometimes gagement not supposed that inasmuch as the master in such a necessary. cage CQU ^ not re q U i re the services, he had no right to them which could be infringed. But this view does not now obtain. Though a person may not be able to require the bestowment of a gratuity, he has a right to it when it is bestowed, and in the course of receiving it, and no one may interrupt his actual enjoyment of the gratuity 3 . Hence if a 1 Blake v. Lanyon, 6 T. R. 221. 2 Sykes v. Dixon, 9 Ad. & E. 693. See also Hartley v. Cummings, 5 C. B. 247; Pilkington v. Scott, 15 M. & W. 657. Compare infra, pp. 121, 122. 3 See ante, pp. 5, 6. Sect. 3] CONTRACT IN GENERAL 117 person be actually engaged in giving his services to another, any one who, with notice, voluntarily interrupts the service violates a legal duty to the one receiving the gratuity, and becomes liable in damages. For example : The defendant, with notice, entices away a young woman while she is in the gratuitous service of the plaintiff, and thereby deprives the plaintiff of the benefit of her help. The plaintiff is entitled to recover damages therefor 1 . Indeed, it matters not in such cases that the person enticed was actually under obligation to another; if the latter do not insist upon his rights, no third person can set up those rights to escape liability for a wrongful act. For example: The de- fendant, with notice, seduces a married woman while she is rendering gratuitous service to the plaintiff, her father. The defendant is liable, and cannot set up in defence the paramount right of the woman's husband to her help 2 . As was observed, however, in the preceding section, and as follows from what has been said in the present, no action can be maintained for mere harbouring a servant serving gratuitously, though with notice : the action lies solely for enticing the person away or otherwise interrupting the performance of the service while the servant is disposed to, and engaged in, the performance of it. When such servant has put an end to the relation, the rights of the master at once terminate. § 3. Contract in General After great discussion it was held in England in 1853 that the master's right in cases like those in section 1 is only an example Master's and not an anomalous or a special case; a majority right deemed f the Queen's Bench laying down the rule as only an ex- . . ample : larger new only in the sense that it was then clearly and vlew - definitely stated, that to procure a man to break his contract, with notice of the existence of the same, is action- able if the plaintiff, the other party to the contract, suffered 1 Evans v. Walton, L. R. 2 C. P. 615. The young woman in this case was the plaintiffs daughter, but she was of age. 3 Harper v. Luffkin, 7 B. & C. 387. 118 PROCURING BREACH OF CONTRACT [Sect. 3 harm 1 . For example: The plaintiff's declaration alleged that the plaintiff, being proprietor of a theatre in London, made a contract with an opera singer, a certain Miss Wagner, whereby she agreed to sing exclusively at the plaintiff's theatre during a certain season; and that the defendant, proprietor of a rival theatre there, knowing the premises, persuaded and induced Miss Wagner to break her contract with the plaintiff, and to refuse to sing at his theatre, to the damage of the plaintiff. The defendant is liable 2 . In the example the court refused to consider whether the party induced to break the contract had already begun per- Performance formance or not. And the whole decision (which, not begun. on the question of means, will be considered later) has been reaffirmed in England", and it has been followed or approved 4 , but also denied, in America 5 . And it has even been intimated in England that the subject is not altogether closed 6 ; but the decision of the House of Lords in the year 1901 7 has removed all doubt, in cases in which wrongful means were used. Indeed the law has been summed up in substance as follows : Every person has a right under the law to full freedom in dis- posing of his own labour or his own capital or property, as he 1 Lumley v. Gye, 2 El. & B. 216. There was an allegation of malice in this case too; but that is considered to have been immaterial. Allen v. Flood, 1898, A. C. 1, 96, 121, 154, 169; and the quotation ante, p. 115, note 1, from Crompton, J. 2 Lumley v. Gye, supra, Coleridge, J., dissenting in a long and powerful opinion, holding that the action for procuring breach of contract of service was founded upon the Statute of Labourers, and confined therefore to cases of the relation of master and servant in the ordinary sense. 3 Quinn v. Leathern, 1901, A. C. 450, 510, 535 ; Allen v. Flood, A. C. 1898, 1, 97, 106, 107, 113, 171 (some of their lordships reserving their opinions); Bowen v. Hall, 6 Q. B. Div. 333, Lord Coleridge, C. J., dissenting. 4 Walker v. Cronin, 107 Mass. 555; Angle v. Chicago, St Paul &c. By., 151 U. S. 1, 13, 14. See Bice v. Albee, 164 Mass. 88; May v. Wood, 172 Mass. 11. 5 Boyson v. Thorn. 98 Calif. 578; Bice v. Albee, 164 Mass. 88; May v. Wood, 172 Mass. 11. The last case is the converse of the cases of the master's right, being a suit by a servant for procuring the master to break his contract with her and discharge her. A majority of the court held that there was no such converse right of action, unless wrongful means were used. ,; See Allen v. Flood, at pp. 123, 153, 168. But see infra, p. 121. 7 Quinn v. Leathern, supra. See also Bead v. Friendly Society of Stone- masons, 1892, 2 K. B. 730, C. A., holding that want of improper motives for causing the breach of contract is no justification. Sect. 3] CONTRACT IN GENERAL 119 will ; and it follows that every other person owes a correlative duty to permit the fullest exercise of his right consistent with the exercise of similar rights by others 1 . Several objections have been raised besides the one that there was no action for procuring breach of contract except Objection : by a master, before the Statute of Labourers of the remoteness. middle of the fourteenth century. One of these objections is that the defendant's act is too remote for account- ability — that the defendant cannot be liable for the free, voluntary misconduct of another not acting as his agent or servant. ' The action is not maintainable, as the breaking her contract was the spontaneous act of Miss Wagner herself, who was under no obligation to yield to the persuasion or procure- ment of the defendant 2 .' In other words, the damnum was not the natural or legal consequence of the injuria. To this objection the answer appears to be, that even if Miss Wagner's act was not likely to result from the defendant's persuasion, the defendant at all events intended that it should result, and it did 3 . A may be liable for successfully persuading B to commit a crime or a tort, however improbable it may be that B will yield to the persuasion 4 . Intention to have an act done, and procuring it to be done though by persuading another to do it, should bring a man near enough to the act to make him accountable for it ; successful endeavour ought to be enough. The fact that the immediate actor is a free agent, under no obligation to be persuaded, should not affect the case. It is settled law that the fact that intervening instruments are human beings, acting of their own will, does not necessarily cut off liability from one back of them 5 . But more directly to the 1 Quinn v. Leathern, at p. 526, Lord Brampton, and Read v. Friendly Society of Stonemasons, 1902, 2 K. B. 88, 96, Darling, J. ; both quoting Erie on TVade Unions, p. 12. - Wightman, J., putting the defendant's contention in Lumley v. Gye, ut supra. 3 Bowen v. Hall. 6 Q. B. Div. 333, 338, Brett, L. J.; Quinn v. Leathern, at p. 535. 4 ' He who procures the wrong is a joint wrongdoer, and may be sued, either alone or jointly with the agent, in the appropriate action for the wrong com- plained of.' Erie, J., in Lumley v. Gye, supra. 5 Thomas v. Winchester, 6 New York, 397. See ante, pp. 42, 44, 45; post, in chapter on Negligence. 120 PROCURING BREACH OF CONTRACT [Sect. 3 point, a husband can maintain an action against one who in- duces his wife, without legal cause, to leave him 1 , and conversely a wife can maintain an action against one who similarly per- suades her husband to abandon her 2 ; and yet the leaving or abandonment is the ' spontaneous ' act of the wife or husband, in the same sense in which Miss Wagner's act was spontaneous. The other objection is, that the only duty bearing upon the case is the duty created by the contract. It makes no difference, Objection- according to this objection, that the defendant was duty one of near enough to cause and did cause the breach of contract only. contract) smce ^ e v i i ate d no duty to the plaintiff; only the party who broke the contract violated such a duty. This objection is more serious. It does not go the length of denying that the defendant owed any duty to the plaintiff. It does not deny, and no one would deny, that the defendant owes to the plaintiff in such a case the duty to use no wrongful means to procure the breach 3 ; it only denies that inducing one, by persuasion merely, to break one's contract is wrongful. If this be not presumptively wrongful by clear doctrine of the common law, there will still be the appeal to public policy ; and on that point the leaning of opinion appears to be in favour of treating persuasion to break a contract as too dangerous to the public welfare to be permitted. The well-established case of the right of action of a husband or wife against a third person for persuading the other party to the marriage contract to break the same by abandoning the other, if a stronger case, is still not without its force as a precedent. And the same may be said of the case of persuading another to commit a crime or a tort, for the person persuaded may have owed a duty of contract, as of faithfulness in a foreign agency, of which the offence is a breach purposely caused by the defendant. But what difference can it make whether the duty violated by the person persuaded is one of contract or of another kind ? Why should there not be a legal duty not to persuade a man to break his contract as well as not to persuade a man to violate his duty to the state or any other duty paramount? Has the supposed dis- 1 Winsmore v. Greenbank, Willes, 577; Lumley v. Gyc, per Wightman, J. 2 See the chapter on Seduction, post. 3 Note that the objection in no way questions the idea that the creation of a right in personam may incidentally or necessarily generate a right in rem. Sect. 3] CONTRACT IN GENERAL 121 tinction anything more to rest upon than the confused not inn that a right in personam is inconsistent with a right in rem 1 ? One question, already referred to, remains, in the sense that it has not been carried to the House of Lords for decision on specific facts, namely, whether liability is in- contract curred when the breach of contract, intentionally procured by caused, has been caused by means not in them- means not in t J themselves selves of a wrongful nature; as where the breach wrongful. has been procured by argument or persuasion without misrepresentation or other wrongful act or conduct. Notwithstanding the decisions in the Queen's Bench and Court of Appeal 2 , the distinction between such cases and cases of the use of wrongful means has been treated by judges in the House of Lords as an open one 3 . In the case decided by the House in 1901 4 wrongful means had been used, and the decision appears to have been put upon that ground ; though at the same time individual judges considered the decision of the Queen's Bench (and therefore the later ones of the Court of Appeal) correct 5 , and that is now declared to be the final result of the whole discussion 6 . Assuming a prima facie cause of action, a justification must be something more than that the defendant ' acted bona fide in the best interest of himself or of the company to which he belongs. It is not enough that he was not actuated by improper motives ; he must have acted upon some legal right 7 . 1 That there is no such inconsistency in reality is shown by the fact that to procure breach of contract by means admitted to be of a wrongful nature, such as misrepresentation, is unlawful (if actual damage result). It is everywhere agreed that a right in personam may generate a right in rem. See ante, p. 7. 2 Ante, pp. 117, 118. 3 Allen v. Flood, at pp. 123 (Lord Herschell), 153 (Lord Macnaghten), 168 (Lord Shand). 1 ( t )uinn v. Leathern, 1901, A. C. 450. 8 At pp. 510 (Lord Macnaghten, who before had reserved his opinion), 535 (Lord Lindley). See Glamorgan Coal Co. v. South Wales Mining Federation, 1903, 1 K. B. 118. B 'Lumley v. G-ye, 2 El. & B. 216,... as well as Temperton v. Russell, 1893, 1 Q. B. 715, has been finally established in Quinn v. Leathern, 1901, A. C. 495, to be a binding authority.' Collins, M. It., in Read v. Friendly Society of Stonemasons, 1902, 2 K. B. 730, 738. 7 Read v. Friendly Society of Stonemasons, supra; Quinn v. Leathern, supra. As to advice given on request, see Glamorgan Coal Co. v. South Wales Mining Federation, supra. 122 PROCURING BREACH OF CONTRACT [Sect. 3, 4 Assuming that the right in question exists, will it affect the case that the contract was not enforceable, as for instance statute of because of the Statute of Frauds' ? Has the Frauds. plaintiff still a legal right towards the defendant ? In cases in which wrongful means have been employed, as where the procuring was by misrepresentation' 2 , or by seduction, or by enticing away servants 3 , the courts have held that it makes no difference that the contract was not binding. Such cases have been put upon the ground that the plaintiff has a right to any service which another is willing to give, whether for pay or gratuitously; which accords with what we have already seen touching the nature of legal right 4 . § 4. Damage It is not enough that there has been a breach of contract, though that would of course be enough for an action against Engagement tne P art y w ^ 10 na ^ broken the same. For the for fixed purpose of an action against a stranger to the period. contract for procuring the breach, actual damage must be proved. It is not necessary however that there should have been an engagement for a fixed period of time, such as ' for the season ' ; the action lies as well where no time is fixed, or where the engagement is from day to day, or by the piece 5 . Indeed it has lately been held that specific damage need not be shown in cases in which it appears that some damage, however undefined, must have been sustained 6 ; which indeed is in perfect accord with the legal idea of special damage 7 . 1 Compare ante, p. 116, as to harbouring. 2 Benton v. Pratt, 2 Wendell (New York), 385; Eice v. Manley, 66 N. Y. 82. a Evans v. Walton, L. B. 2 C. P. 15 (distinguishing Cox v. Muncey, 6 C. B. N. s. 375, and Sykes v. Dixon, 9 Ad. & E. 693, ante, p. 116) ; Harper v. Luffkin, 7 Barn. & C. 387; Fitzh. N. B. 91 G, note by Lord Holt; Bigelow's L. C. Torts, 292-304. 4 Ante, pp. 5, 6. 5 Gunter v. Astor, 4 J. B. Moore, 12 ; Hart v. Aldridge, 1 Cowp. 55 ; Lumley v. Gye, 2 El. & B. 216; Walker v. Cronin, 107 Mass. 555. 8 Exchange Telegraph Co. v. Gregory, 1896, 1 Q. B. 147, C. A. 7 Eatcliffe v. Evans, 1892, 2 Q. B. 524, 528, Bowen, L. J. CHAPTER VI Seduction Statement of the duty. A owes to B the duty not to seduce B's female child and servant 1 , capable of service, or B's female ward and servant, capable of service, towards whom B stands in loco parentis, or to entice away or alienate the affections of B's wife or husband. The term ' seduction,' in its broad legal sense, includes the enticing away of servants and enticing away or alienating the affections of a husband or a wife ; hence the use of the single word to cover all that is contained in the ' Statement of the duty.' The subject of enticing servants away has been disposed of in the next preceding chapter; what is left for the present chapter is seduction in the more common sense, including alienation of affection in the marital relation. § 1. Enticing Away Children It is doubtful whether any action lies by a parent for the mere enticing away of his minor daughter (or son), or for Parent's ri ht harbouring the child after notice that the departure of action: loss is without the parent's consent 2 . There must perhaps be either a loss of real service, or a loss of 1 This was trespass formerly. See Chitty, Pleading, ii. 643, note. 2 Taylor v. Neri, 1 Esp. 386 (referred to by Crompton, J., in Lumley v. Gye, 2 El. & B. 216), where Eyre, C. J., said that if a daughter left her father's service no action for loss of service could be maintained. 124 SEDUCTION [Sect. 1 service by way of seduction ; in the first case the ordinary relation of master and servant, already disposed of, exists between the parent and child ; the second case is the subject now reached for consideration. § 2. Seduction stricto sensu : Parent and Child : What must be Proved, etc. A parent's right of action against one who has seduced or enticed away his child is at common law the right of action of a master; that is, it turns upon the existence of servant as the relation of master and servant, not merely ground of the upon parental authority or kinship 1 . The plaintiff need not prove notice of the relation of master and servant between himself and the child 2 , but must prove the performance of some service, however slight, by the child accordingly, and the seduction. The right of action lasts as long as that relation lasts ; it does not terminate necessarily when the child becomes of age 3 . The relation of master and servant may however be severed (for the present purpose) by the child alone ; accordingly the parent's right of action terminates whenever the Absence of • child from child leaves the parent's house with intention not parent: wm to return 4 , as well as while, with the parent's con- sent, she is out in the service of another. 1 Dean v. Peel, 5 East, 45. - Chitty, Pleading, ii. 642, note. The defendant may be bound to know whether she was of age or not. If not of age, she would presumptively be in the father's service, it seems. Seduction of a young child should be a presump- tive wrong to the father. 3 Infra, p. 126. 4 Dean v. Peel, 5 East, 45. See Griffiths v. Teetgen, 15 C. B. 344; Manley v. Field, 7 C. B. n. s. 96; Hedges r. Tagg, L. R. 7 Ex. 288. In America the father's right of action is considered to depend, not upon the will of the child, but upon the will of the parent; and hence, notwithstand- ing the absence of the child from her father's house at the time of the seduction, the father has a right of action if he has not divested himself of his right to require her services, even though she were at the time of the wrong in the service of another with her father's permission. This, however, is the extent of the American rule. If the power of the parent over his dxughter is gone at the time of the seduction, whether by his own consent in emancipating her or Sect. 2] PARENT AND CHILD 125 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 parent taken maintain an action against the seducer. For away by example : The defendant hires the plaintiff's daughter from his service with intent to seduce her, and by this means obtains possession of her person, and seduces her. The plaintiff is entitled to recover as if the daughter had been seduced while in his own service 1 . Where parent and child are living together at the time of the seduction, that fact appears to raise a presumptive right of action 2 ; where the child is away for a time, if not in the service of another, an intention on her part to return is presumptively sufficient, for that shows that she has not severed the relation 3 . There must have been ability to render service at the time of the seduction 4 ; though whether actual services were being Ability to rendered or not, or what the extent or value of serve, the services, has nothing to do with the right of action 5 , 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, by the common law; but when ability to perform service has been shown, damages may be given not merely for any actual loss of service but also for the disgrace inflicted upon the plaintiff and his family 6 , the amount which may be given varying more or less with the station in life of the parties and being subject to the reasonable judgment of the jury 7 . binding her out to service, or by the act of the law in taking her away from him, the seducer has violated no legal duty to him; though there has been some doubt as to the application of this doctrine in the case of the return of the daughter to the parent after the seduction. 1 Speight v. Oliviera, 2 Stark. 493 ; Dain v. Wycoff , 7 New York, 191, 19-4. 2 Thompson v. Boss, 5 H. & N. 16; Terry v. Hutchinson, L. B. 3 Q. B. 599, 602. 3 Terry v. Hutchinson, supra. 4 Hall v. Hollander, 4 B. & C. 660. 5 See Grinnell v. Wells, 7 Man. & G. 1044, note to the case. 6 Terry v. Hutchinson, L. E. 3 Q. B. 599 ; Bartley v. Eichtmyer, 4 Comst. (New York), 38; Bigelow's L. C. Torts, 294. 7 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. 126 SEDUCTION [Sect. 2 The father's right of action continues, as has already been intimated, after the daughter has come of age, if the relation of Daughter of master and servant is still in existence between age. them. If the parent continue to exercise authority over the daughter after her majority, and she continue to submit, she is still his servant, though not under an actual engagement to serve him ; and seduction under such circumstances 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 that the seduction should be followed by pregnancy or disease to entitle the plaintiff to recover 2 ; but Pregnancy or there is some doubt on the point 3 . The American disease. mle is, that where the proper effect of the con- nection is an incapacity to labour, by reason of which the plaintiff loses the services of his daughter and servant, the loss of such services entitles the plaintiff to recover against the seducer. The same principle which gives a master an action where the connection causes pregnancy applies to the case of sexual disease, and, indeed, to all cases where the proper con- sequence of the act of the defendant is a loss of health resulting in an incapacity 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 general 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 4 . 1 Sutton v. Huffman, 3 Vroom (New Jersey), 58; Rist v. Faux, 4 Best & S. 409 (Ex. Ch.); Evans v. Walton, L. E. 2 C. P. 615. See ante, p. 124. 2 Eager v. Grimwood, 1 Ex. 61. But see Evans v. Walton, L. R. 2 C. P. 615, 617. 8 Evans v. Walton, L. R. 2 C. P. 615, 617; Abrahams v. Kidney, 104 Mass. 222. 4 Abrahams v. Kidney, 104 Mass. 222 ; Boyle v. Brandon, 13 M. & W. 738. Sect. 2] PARENT AND CHILD 127 If however the loss of health be caused by mental suffering not the necessary effect of the seduction, especially if produced bv subsequent causes, the loss of service is not the Loss of health J . ^ . . . „ , , _ , , due to mental effect, in contemplation of law, ol the defendant s suffering. ac j. . anc [ hence the action cannot be maintained. For example : The defendant seduces the plaintiff'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 performing services for the plaintiff; no pregnancy or disease resulting by direct consequence of the seduction. The defendant is not liable to the plaintiff 1 . If a loss of service follow as the proper effect of the de- fendant's act, it is held in America to be immaterial, so far, that seductive arts the defendant accomplished his purpose without not necessary, resorting to seductive arts. The willingness of the daughter cannot affect the parent's right of action for loss of service 2 ; though the ready consent of the young woman might be ground for mitigation of other damages 3 , especially if she was notoriously a loose character. What has been said in the preceding paragraphs concerning the parent's right of action for loss of service must be under- ciaim of stood of the father's claim to damages. During mother. his guardianship of the daughter, the right of action 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 guardian- ship 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. 1 Boyle i;. Brandon, supra; Abrahams v. Kidney, supra. See ante, pp. 20, 27. 2 Damon v. Moore, 5 Lansing (New York), 454. 8 Hogan v. Cregan, 6 Kobertson (New York), 138, criticised in Damon v. Moore, supra. Compare Winter v. Henn, 4 Car. & P. 494, and Forster v. Forster, 33 L. J. Prob. & M. 150, n., as to criminal conversation. 128 SEDUCTION [Sect. 2 A difficulty arises where the mother, upon the death of the father, or his removal from the guardianship, simply continues to exercise authority over her daughter, and to receive her (voluntary) obedience, without having received an appointment as guardian. The mother's right of action has sometimes been supposed to turn upon the question of her right to require the child's support in such a case. It is now- well settled in America however that so long as the daughter continues to give obedience and service to her mother, the latter has a right of action for a wrongful interruption of the daughter's position of servant. For example : The defendant seduces the minor daughter of the plaintiff, a widow. The daughter, having previously been in the service of the defendant, and then in the service of I), 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 defendant. 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 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' 2 . The child is not entitled, apart from statute, to sue for her own seduction, since she has consented to the act : though Action by if the seduction was effected under a promise of child seduced, 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 1 Gray v. Durland, 51 New York, 424. In Abrahams v. Kidney, 104 Mass. 222, the mother sued and recovered. - 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 Kegina 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 America. Sect. 3] GUARDIAN AND WARD 129 consented to the act. For example : The defendant is permitted by the plaintiff to visit his daughter as a suitor, after notice that he is a married man and a libertine ; the defendant, on inquiry by the plaintiff as to this matter, representing that his wife is an abandoned character, and that he will soon obtain a divorce from her, and then marry the plaintiff's daughter. The defendant afterwards, while continuing his visits at the plaintiff's house, seduces the young woman. The plaintiff is deemed not entitled to recover for the seduction 1 . § 3. Guardian axd Ward: What must be Proved, etc. Not only the parent, but any one standing as guardian, in loco parentis, and receiving, to his own benefit, the services of Guardian's a "child, can maintain an action for loss of service claim. on proof that the defendant has interrupted the same and deprived the plaintiff of the benefit of the service, however slight. 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 defendant is liable, though the young woman has property left her by her parents, and performs but slight service for the plaintiff 2 . The right of action in all such cases, and in cases strictly of guardian and ward, depends, it seems, upon the fact that the guardian or person standing in loco parentis is Ground of & l . ° l . right of receiving the services (however slight) to his own action. benefit. If the guardian has merely the super- vision of the ward and her income, while she lives elsewhere, or performs service for herself, the guardian simply receiving her wages and acting as her trustee, it is improbable that he can sue for her seduction 3 . 1 Reddie v. Scoolt, Peake, 240. Compare cases of criminal conversation, post, pp. 134, 135. - 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. It is not necessary, it seems, to prove knowledge of the guardianship. Compare Chitty, Pleading, ii. 642, note. 3 In early times the ward was the guardian's chattel. Lumley v. Gye, 2 El. & B. 216, 250, 257. B. T. ^ 130 SEDUCTION [Sect. 3 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 presumed where persons so related live together 1 . § 4. Husband and Wife : What must be Proved, etc. To entice away, or alienate the affections of, one's wife, though without knowledge of the existence of the marital Nature of the relation 2 , is a civil wrong for which the offender is wrong. liable to the injured husband 3 . The statement indicates what is to be proved. The gist of the action however is not 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 in America to be unnecessary that there should be any separation or pecuniary injury ; in which respect the action resembles that of a parent for the seduction of his daughter. For example : The defendant, by false insinuations against the plaintiff, and other insidious wiles, so prejudices and poisons the mind of the plaintiff's wife against him, and so alienates her affections from him, as to induce her to desire and seek to obtain, without just cause, a divorce ; and by his false in- sinuations and wiles succeeds in persuading the wife to refuse to recognize the plaintiff as her husband. The defendant is liable, though no actual absence of the wife is caused 6 . 1 For this paragraph the author is indebted to his learned friend, Mr R. T. Wright, of the University of Cambridge. - Chitty, Pleading, ii. 642, note. 3 In America, under changes partly silent, partly effected by recent statutes, 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; Mehrhoff v. Mehrhoff, 26 Fed. Bep. 13; Foot v. Card, 57 Conn. 247. See however Lynch v. Knight, 9 H. L. Cas. 577. 4 The old form of allegation in a case of master and servant was 'per quod servitium amisit'; in a case of husband and wife, 'per quod consortium ainisit.' 6 See Black. Com. hi. 139, 140; Bigaouette v. Paulet, 134 Mass. 123. 6 Heermance v. James, 47 Barbour (New York), 120. Sect. 4] HUSBAND AND WIFE 131 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 which are the husband which are true; but there can be true - little doubt that such an act would be a breach of duty to the husband 1 . The constancy and affection of a wife are all the more valuable to him if his conduct is bad. A difference is deemed to exist however between the act of a parent and that of other persons with regard to persuading Persuasion a wife to leave her husband. In the case of one by parent. no t a parent, it is certainly not necessary that bad motives should have inspired the act 2 . It does not follow how- ever that mere advice to a married woman by a stranger to leave her husband, upon representations by the wife, would be unlawful ; advice in such a case is one thing, enticement is another. But it has also been stated in America that it is no breach of duty to the husband for a parent, 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 persuade her to depart from her husband ; though it subsequently appear that the parent's persuasion was based on wrong information 3 . It is held that bad motives must have actuated the parent in order to make him liable 4 . 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 or even a departure of her own motion ; though a stranger in blood would be liable. 1 See Bromley v. Wallace, 4 Esp. 237. The conduct of the husband could be shown only in mitigation of damages. Id. 2 See Hutcheson v. Peck, 5 Johnson (New York), 196; Bennett v. Smith, 21 Barbour (New York), 439. 3 Bennett v. Smith, 21 Barbour (New York), 439, 443. 4 Hutcheson v. Peck, supra. 9—2 132 SEDUCTION [Sect. 4 Any person who receives into his house a married woman, who has abandoned her husband, or suffers her to stay there, after receiving notice from the husband not to harbour her, is deemed, presumptively, to violate a duty which he owes to the husband 1 . But any one may, not- withstanding such notice, shelter the wife out of humanity, on reasonable representations by her that she has left her husband because of cruel treatment by him. For example : The defendant receives the plaintiff's wife into his house, upon representations of ill treatment by her husband ; and he continues to permit her to remain there after notice from the plaintiff not to do so. The defendant is not guilty of a breach of duty to the plaintiff 2 . Liability for harbouring must (probably) be limited to cases in which the defendant has clear notice that the wife's act in coming to him, or in staying with him, is intended as a separation by her from her husband, and a repudiation of his claims as such. A man cannot at 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 purpose of depriving the plaintiff of the benefit of some advantage embraced under the designation of the consortium of his wife 3 . If the wife were disposed to stay an unreasonable length of time after notice from the husband that fact would perhaps be sufficient to cause him to suspect her true purpose, and to render him liable in case he continued to permit her to remain. It is settled law in America that the mere fact of receiving another's wife is not unlawful, even though no explanation whatever be offered 4 . There must be an enticing or harbouring with reference to a wrongful separation. It is not enough even 1 Winsmore v. Greenbank, Willes, 577; s. c. Bigelow's L. C. Torts, 328. See Addison, Torts, 905, 4th ed. 2 Philp v. Squire, Peake, 82. :t Winsmore v. Greenbank, Willes, 577; Hutcheson v. Peck, 5 Johnson (New York), 196. 4 Barnes v. Allen, 1 Keyes (New York), 390. See also Winsmore v. Green- bank, supra. Sect. 4] HUSBAND AND WIFE 133 that the defendant take the plaintiff's wife to the defendant's house, upon request by her, unless he has notice that she is abandoning her husband ; though he has been required by the plaintiff not to harbour her. For example : The defendant and the plaintiff arc farmers and neighbours, residing about two miles apart. Their wives are relatives, and the plaintiff's wife often visits the defendant's ; the defendant taking her to his house in his wagon. The plaintiff's wife on one occasion being so at the defendant's house, the plaintiff gives the defendant written notice not to harbour her, but to return her to his residence from which he (the defendant) has taken her. The defendant having stopped with the 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 harbouring. 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 gave a right of action also for ' criminal conversation' with one's criminal wife 2 ; and upon the same ground as that for en- intercourse: ticing the wife away from her husband, to wit, the loss of consortium 3 . It arose accordingly without regard to the infliction of pecuniary damage 4 . But the common law right of action was abolished by Act of Parliament in the year 1857, and the redress turned over to the Divorce Court 5 . Change in The Act permits the husband on a petition for dis- law- solution of the marriage, or for judicial separation, or on a petition limited to such object only, to claim damages from any one for committing adultery with his wife ; and the claim is to be tried in the same way and subject to the same 1 Schuneman v. Palmer, 4 Barbour (New York), 225. 2 Weedon v. Timbrell, 5 T. R. 357; Harvey v. Watson, 7 Man. & G. 644; Bigaouette v. Paulet, 134 Mass. 123. 3 Weedon v. Timbrell, 5 T. R. 357. 4 Wilton v. Webster, 7 Car. & P. 198. 5 20 & 21 Vict. c. 85, §§ 33, 59. 134 SEDUCTION [Sect. 4 rules as actions for criminal conversation formerly 1 . It is necessary then to consider the old law to understand the new. Loss of consortium is then still the ground of action ; and it follows that upon separation, by articles of agreement, the husband, having voluntarily parted with his wife's consortium, cannot maintain an action for criminal conversation with his wife 2 . 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 for the support of the plaintiff's wife at his (the defendant'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 3 . The mere fact of the husband's infidelity to his wife does not change the nature of the defendant's act in seducing and Husband's debauching her; though it may possibly, in con- infidelity, templation of law, affect its enormity. For ex- ample : 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 4 ; though it might be considered in mitigation of damages 5 . If however the husband was accessory to his own dishonour, Husband's ^he case ^ s different ; he could not complain of consent: an injury to which he had consented". For negligence. example : The plaintiff allows his wife to live as 1 §33. 2 Harvey v. Watson, 7 Man. & G. 644. :i See Chambers v. Caulfield, 6 East, 244. Weedon v. Timbrell has been limited to tbis extent. 4 Bromley v. Wallace, 4 Esp. 237, overruling Wyndham v. Wycombe, id. 16. 5 Id.; Kea v. Tucker, 51 Illinois, 110. 6 'Volenti non tit injuria.' Sect. 4] HUSBAND AND WIFE 135 a prostitute, and the defendant then has intercourse with her. This is no breach of duty to the plaintiff 1 . Mere negligence in regard to the wife's behaviour ; inatten- tion or d ulness of apprehension ; or even permission of indecent familiarity in the husband's presence ; such things are held in- sufficient to bar a recovery for criminal conversation with the wife, though they may be shown in reduction of damages. TJnlgg s the conducl of the husband amount to consent to the defend- ant's act of intercourse, the defendant is liable 2 . It follows from what has been said that condonation of the wife's offence does not excuse the man who seduced her; the sole consequence of the condonation is that the Condonation. . . , . \ , ... .. _ husband is barred from obtaining a divorce. For example : The defendant has criminal intercourse with the plaintiff's wife, and, when fatally sick, the wife discloses the fact to her husband. The plaintiff continues to care for his wife kindly until her death. The defendant is liable 3 . 1 See Cibber v. Sloper, cited 4 T. E. 655; Hodges v. Windham, Peake, 39; Sanborn v. Neilson, 4 New Hampshire, 501. 2 See Foley v. Peterborough, 4 Doug. 294; Greenleaf, Evidence, ii. § 51. But on the amount of damages in such cases see Duberley v. Gunning, 4 T. R. 651. And as to that case see Jones v. Sparrow, 5 T. R. 257; Chambers v. Caultiekl, 6 East, 244; Blunt v. Little, 3 Mason, 102, 106; Bigelow's L. C. Torts, 338. 3 Wilton v. Webster, 7 Car. & P. 198; Bernstein v. Bernstein, 1892, 2 Q. B. 375 ; Powers v. Powers, 10 P. D. 174. CHAPTER VII Slander and Libel Statement of the duty. A owes to B the duty not to publish of B (1) defamation in its nature actionable per se, (2) defama- tion in its nature not actionable per se, to the damage of B. Defamation is any language or representation, oral or writ- ten, tending to bring the person of whom it is published into hatred, ridicule, or disgrace, or to injure him in respect of his vocation. The term ' representation ' is here used to denote painting, picture, sign, or effigy. Slander is oral defamation, or the equivalent (as by finger speech). Libel is defamation by writing, printing, or representation. Whenever language is spoken of as defamatory it is under- stood to be false. What the phrase ' defamation in its nature actionable per se ' means will be made known by the proposition of law following, and the consideration of its parts. § 1. Defamation Actionable per se: What must be Proved The general proposition of law is, that the first of the two duties above stated is violated by A, and B can maintain an action against him, without proving special damage, on proof of publication by A of words, language, or the like of a false and Sect. 1] DEFAMATION ACTIONABLE PER SE 137 defamatory character concerning B, in any of the following ways, and in no other: (1) Where A imputes to B the commission of a criminal offence punishable by imprisonment, or other corporal penalty, in the first instance 1 ; (2) where A imputes to B the having a contagious or infectious disease of a disgraceful kind ; (3) where A makes a derogatory imputation concerning B in respect of his office, business, or occupation ; (4) where the defamation is a libel. So, within the limits suggested, every man has a legal right to a good name. Whether any one be- lieved the defamatory charge is immaterial in regard to the right of action 2 . Each of the foregoing classes of defamation must be examined 3 . 1 Pollock, Torts, 238, 6th ed. It is not enough that the offence is punish- able by 'fine in the first instance, with possible imprisonment in default of payment.' Id., referring to Webb v. Beavan, 11 Q. B. D. 609. The offence charged need not be indictable. Webb v. Beavan. 2 Bishop v. Journal Newspaper Co., 168 Mass. 327. 3 There has been much criticism of the English and American law of defamation; but this has been directed mostly to what now is history. There have been three chief subjects of this criticism; malice, the limitation of actionable defamation, and the distinction between slander and libel. The criticism on the first head is now historical only; the trouble about malice was probably an inheritance from the early ecclesiastical jurisdiction, founded as that was on malitia as sin. Naturally when the King's Courts acquired juris- diction over defamation (Stat. Westminster 2, c. 24) they took the notion of malice from the ecclesiastical conception — a wrong basis for civil law, from which the courts found their escape only in the 19th century. The Star Chamber may also have had a similar disturbing influence in the matter. On the second head criticism lingers against the present law; but in that particular it is somewhat misconceived. It is said, for instance, that the imputation of an indictable offence is actionable not because it is defamatory, 'but because it may tend to the deprivation of liberty.' Law Quarterly Review, July, 1902, p. 257, an interesting article on the English Law of Defamation, by Frank Carr, LL.D. This criticism, though pointed against the present law, is really like the other, historical; there was a time, in earlier English law, when to call a woman 'meretrix ' in London was very apt to lead to serious legal consequences (at the cart's-tail) to the accused; but would any judge at the present day seriously intimate that to impute an indictable offence, of any kind, to a person would tend, in the legal sense, that is, would be apt, naturally and probably, to cause him to suffer under the law ? That suggestion was in effect disposed of by Bayley, J., in Lumby v. Allday, 1 Cr. & J. 301, 305; s. c. 1 Tyrwh. 217 ; and by Lord Black- burn in Capital and Counties Bank, 7 App. Cas. 771, 772. The point is referred to post, pp. 143-145. The limitation in question amounts now, in the case of slander, to a clear definition of what otherwise (as in the Roman and modern foreign systems of law) would be vague and troublesome; for who would say what actionable defamation would be in the borderland? What constitutes scandal there? Libel shows the difficulty. A clear rule is better, especially 138 SLANDER AND LIBEL [Sect. 2 § 2. Interpretation of Language Before proceeding to the consideration of any of these classes of breach of duty, it should be observed that, subject perhaps Natural sense to one exception, the language or figure complained of language. f i s 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 under- stand it l . It is not to be construed in a milder sense (' mitiori sensu ') merely because it is capable, by some forced construc- tion, of being interpreted in an innocent sense. For example : The defendant publishes of the plaintiff the following words: ' You are guilty of the death of D.' This is an imputation of where liability is put on the ground that damage need not be proved ; such ground needs that sort of justification — a clear-cut definition. The third head of criticism, the distinction between slander and libel, has had good ground; but that too is gradually becoming historical. It is generally agreed that newspapers wield a dangerous power, and that the distinction, or at least that some wide distinction of the kind, should prevail, to keep the press in reasonable restraint. As for other cases in which the distinction is outgrown, these are becoming too infrequent before the courts to cause much concern. Men will not now-a-days sue for trifles — it is not worth while. See post, p. 149. The chief practical difficulty with libel is that it lacks a sharp definition (see post, p. 147); towards such the courts might well work. If libel were made co- terminous with slander in all cases there would be great gain ; the law would then be reasonably certain, and advice could be given with confidence where now there must be doubt. But newspaper libel should remain subject to the criminal law. A reference to some other systems of law is added. Dig. 47, 10; Cod. 9, 36; Institutes, iv. 4. 1; French law of May 17, 1819, quoted in Law Quarterly Review, July, 1902, p. 256; Scotch law, Aitken v. Reat, 7 Murrell, p. 149, quoted in the same journal, p. 257. In those systems defamation, without defined limits, is actionable. See also Law Quarterly Review, vol. 10, p. 158, on ' the adaptation by the Star Chamber of the later Roman law of libellus famosus'; and id. October, 1902, p. 388, second part of Mr Carr's article. 1 Hankinson v. Bilby, 16 M. & W. 442 ; Simmons v. Mitchell, 6 App. Cas. 156. Whether the words in dander are legally defamatory or not is a question for the judge, in jury trials, where the words have, or, if they are modified by the circumstances, where they then have, a fixed meaning. See Capital & Counties Bank v. Henty, 7 App. Cas. 741. But if, on the whole evidence, the meaning is doubtful, the question is for the jury. See Riddell v. Thayer, 127 Mass. 487 ('bad woman'). In criminal cases of libel the jury were made the judges whether the language was libellous or not by Fox's Act, 32 Geo. 3, c. 60. The same practice has been adopted in civil cases of libel also. Sect. 2] THE INTERPRETATION OF LANGUAGE 139 the commission of murder, and is not to be construed ' mitiori sensu 1 .' It should however be clear, in order to make language actionable without proof of damage, that the imputation was Legal sense of slanderous or libellous (according to its nature) charges of within the meaning of some one of the above stated classes. If this be not the case, it will not be deemed a breach of the duty; and this too whether the question of interpretation come before the court or before the jury. In one case at least the interpretation adopted has been apparently 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 ot which does not necessarily import a crime in the legal sense. An imputation of a criminal nature, which does not import a crime in the legal sense, is not actionable per se 2 . 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 commis- sion of perjury 3 ; the term 'perjury' signifying the taking of a false oath knowingly, before a court of justice, with reference to a cause pending. Apart from this particular exception in regard to the legal sense of a crime, it follows from what has been said that it indirect use of i- s immaterial whether the defamatory charge be language. affirmative and direct, or indirect so as to be mat- ter of inference merely, or that it is only insinuating 4 or ironical, or that it is made in allegory or other artful disguise. It is enough that the charge would naturally be understood to be defamatory by men of average intelligence. 1 Peake v. Oldham, 1 Cowp. 275. - Ward v. Clark, 2 Johnson (New York), 10. ' 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, 239, 6th ed. , referring to Jackson v. Adams, 2 Bing. n. c. 402. The reason for the strictness of the rule no doubt is, that the plaintiff seeks to recover without proof of actual damage. :i Ward p. Clark, supra. 4 See Haynes r. Clinton Printing Co., 169 Mass. 512. 140 SLANDER AND LIBEL [Sect. 3 § 3. Publication of Defamation and Special Damage Defamation is published when the charge, suggestion, or representation is made, by the defendant, in presence of a third Whatpubii- person, either by intention or by negligence 1 . It cation means. j s n0 ^ published when addressed only to the plain- tiff, no one else being present 2 who could understand the lan- guage 3 . That is, the language or representation cannot in such a case be actionable as defamation. 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 inability to carry on his usual vocation, and expense attending upon his restoration to health or upon the employment of help to carry on his business. For example : The defendant says to the plaintiff, ' You have committed adultery with F.' The plaintiff, a farmer, suffers immediate distress of mind and body, becomes sick and unable to attend to his work, his crops suffer, and he is compelled to employ extra help to carry on necessary work. The defendant has not violated any legal duty to the plaintiff 4 . 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 1 Viztetelly v. Mudie's Library, 1900, 2 Q. B. 170. - Sheffill v. Van Deusen, 13 Gray (Mass.), 304. See Marble v. Chapin, 132 Mass. 225, 226. Communication of defamation by the defendant to his wife is held not to be publication. Wennhak v. Morgan, 20 Q. B. D. 635. But an accusation of the husband in the presence of his wife (or the converse) would be a publication. Nolan v. Traber, 49 Maryland, 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 husband. 8 As to translations of language see Wilson v. Noonan, 27 Wisconsin, 598 ; Monson v. Lathrop, 96 Wisconsin, 386, 389. 4 Compare Terwilliger v. Wands, 17 N. Y. 54, 63, and Wilson v. Goit, id. 442, which taken together, justify the example. Sect. 3] PUBLICATION OF DEFAMATION, ETC. 141 the foregoing example, would not, it is held, make the defamer liable 1 . This however proceeds upon the ground that the effect of distress of mind, followed by sickness, is not such damage as the Mental dis- ^ aw requires when the defamation is not actionable tress not 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 2 . Or, better still, damage resulting from fear of injury to reputa- tion, or from wounded feelings, is not damage to reputation; that can only be injured when it has been defamed before a third person. 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 result in Act of a third | L , ° ,, J , ,. ,. ,. person neces- several ways, so as to make the publication of sary : ex- defamation actionable when it would not be action- able per se ; as by the loss of a marriage. For example : The defendant falsely charges the plaintiff, an un- married female, with unchastity, in the presence and hearing of C, to whom the plaintiff is engaged to be married. C, in consequence of the charge, terminates the engagement. The defendant is liable to the plaintiff 3 . 1 Terwilliger v. Wands, 17 New York, 54, 63, reaffirmed in Wilson v. Goit, id. 442, and overruling Bradt v. Towsley, 13 Wend. 253, and Fuller v. Fenner, 16 Barbour (New York), 333. But see McQueen v. Fulghain, 27 Texas, 463. 3 Such damages are commonly spoken of as 'remote.' Compare Victorian Bys. Comm'rs v. Coultas, 13 App. Cas. 222; Spade v. Lynn B. Co., 168 Mass. 285; s. c. 172 Mass. 488. Some American cases are contra. See 168 Mass. 290. But the authorities are not quite consistent ; mental distress being treated as ground for damages if a right of action is otherwise shown. See ante, p. 27; Warren V.Boston & M. B., 163 Mass. 484, 487; Spade v. Lynn B. Co., 172 Mass. 488, 490, Holmes, J. (see s. c. 168 Mass. 285); Pugh v. London By. Co., 1896, 2 Q. B. 248 ; Harvard Law Bev., December, 1896, p. 239. 3 See Terwilliger v. Wands, 17 New York, 54, 60. H2 SLANDER AND LIBEL [Sect. 3 The same would be true of the loss of the consortium of a wife 1 and no doubt of a husband 2 . The same would also be true of the refusal to the plaintiff of civil entertainment at a public- house 3 . So of the fact that the plaintiff has been turned away from the house of her uncle, and charged not to return until she shall have cleared up her character 4 ; and so in general of the loss by the plaintiff even of gratuitous hospitable entertain- ment 5 . All this would be special damage. The special feature of the law of slander and libel however consists in this, that defamation may be actionable per se ; and Defamation ^he consideration of the various phases of such actionable defamation will now follow. Let it be clearly ob- per se ' served, that in defamation arising under any of the heads now to be separately examined, the plaintiff establishes the breach of duty, and consequently his right to recover, by simply proving publication 6 (together with any explanation that may be necessary). 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. Imputation of having Committed a Crime An imputation of the commission of a criminal offence is actionable per se whether the offence imputed is a felony or a misdemeanor, if it is punishable in the first instance by punish- ment 7 . If the offence imputed is only a misdemeanor, it must also, it seems, import scandal. 1 Bigaouette v. Paulet, 134 Mass. 123. 2 See Lynch v. Knight, 9 H. L. Cas. 577. 3 Olmstead v. Miller, 1 Wendell (New York), 506. See Moore v. Meagher, 1 Taunt. 39. 4 Williams v. Hill, 19 Wendell (New York), 305. 5 Id.; Moore v. Meagher, 1 Taunt. 39; ante, p. 5. 6 Webb v . Beavan, 11 Q. B. D. 609. On the question who are publishers see Youmons v. Smith, 153 New York, 214 (liability of a printer). 7 Statute has recently corrected the common law, by giving a right of action to ' any woman or girl ' falsely accused of unchastity or adultery, without the need of proving special damage, as in other cases under this head, 54 & 55 Vict. Sect. 4] IMPUTATION OF A CRIME 143 The authorities are not in harmony in regard to the question whether it is necessary that the charge, if true, would subject Danger of the accused to the danger of punishment, or punishment. whether the test in this particular (assuming that the imputation is otherwise actionable perse) is the degradation involved ; but the weight of authority favours the latter as the test. Although, then, the charge imputes that the punishment has already been suffered, and hence cannot expose the plaintiff to the danger of punishment, the degradation involved in the (false) accusation renders the defendant liable. For example : The defendant says of the plaintiff, ' Robert Carpenter [the plaintiff] was in Winchester jail, and tried for his life, and would have been hanged had it not been for L, for breaking open the granary of farmer A, and stealing his bacon.' The defendant is liable 1 . Again : The defendant says of the plaintiff, ' He was arraigned at Warwick for stealing of twelve hogs, and, if he had not made good friends, it had gone hard with him.' The defendant is liable 2 . Again : The defendant says of the plaintiff, ' He is a convict, and has been in the Ohio peni- tentiary.' The plaintiff is entitled to maintain an action, the words being false 3 . Indeed it could not be right in any case to make it the test, that the imputation subjects the accused to danger of punish- ment, for an ' imputation ' merely would not be likely to bring on punishment even if the accused were guilty 4 ; and when the accused is innocent, as he must be to maintain an action c. 51 (1891), Slander of Women Act. But a charge of unchastity merely, not being indictable, is not actionable without proof of special damage. See Odgers, Slander and Libel, 90, 3rd ed. Among American cases — the English rule prevails in some States, and not in others, in regard to imputations against women — see Pollard v. Lyon, 91 U. S. 225; Loranger v. Loranger, 115 Michigan, 681; Robertson v. Edelstein, 104 Wisconsin, 440; Brown v. Nickerson, 5 Gray (Mass.) 1; Davis v. Carey, 141 Penn. St. 314; Brooker v. Coffin, 5 Johnson (New York), 188. 1 Carpenter v. Tarrant, Cas. Temp. Hardw. 339. The words were false. 2 Halley v. Stanton, Croke Car. 268. The words were false. :! Smith v. Stewart, 5 Barr (Pennsylvania), 372. It would be otherwise if the words were true. Baum v. Clause, 5 Hill (New York), 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 of felony. Leyman v. Latimer, 3 Ex. Div. 352. 4 See the rule in Lumby v. Allday, 1 Cr. & J. 301 ; s. c. 1 Tyrwh. 217 and 35 E. R. 715; Capital and Counties Bank, 7 App. Cas. 771, 772, Lord Blackburn. 144 SLANDER AND LIBEL [Sect. 4 for defamation, it is legally speaking impossible that the imputation should lead to punishment. The most that could be said is, that the imputation might perchance lead to an arrest and then possibly to a trial of the accused. It is enough then that the offence charged (being scandalous if a misde- meanor) is punishable, in the first instance, by imprisonment. § 5. Imputation of having a Contagious or Infectious Disease of a Disgraceful Kind By the early common law a charge to come under this head must have been of the having the leprosy, or the plague, or the syphilis. At the present time the rule has come common-law to be so far enlarged as to require the forbearance rule: ground from publishing false accusations concerning' of rule. . . another of the having any disease of a contagious or infectious nature involving disgrace. For example : The de- fendant falsely 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 society ; and the rule requires the charge to be made in the present tense. To accuse another of the having had a disgraceful disease is deemed 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 some actual damage 2 . § G. Imputation affecting the Plaintiff in his Office, Business, or Occupation In order that an imputation may in law be said to affect a . man injuriously under this head, and be actionable per se, it Natural ten- should have a natural tendency to harm him in dencyto his occupation. It is not enough that it may possibly so injure him. If it has not a natural 1 Watson v. McCarthy, 2 Kelly (Georgia), 57. See Bloodworth v. Gray, 7 Man. & G. 334. 2 See Carslake v. Mapledoram, 2 T. R. 473. Sect. 6] IMPUTATION AFFECTING VOCATION 145 tendency to injure him, that is, if it would not be the usual effect of the charge to injure the plaintiff in his occupation, as by causing discharge, the plaintiff cannot recover without prov- ing 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 i hold.' The plaintiff cannot recover without proof of actual damage, the language not having a natural tendency to cause the plaintiff's discharge from his employment 1 . Defamation has a natural tendency to injure the plaintiff in his office, business, or occupation, within the meaning of the rule, in different ways, as when for instance it strikes at his qualification for the performance of the duties of the place, or alleges some misconduct or negligence in the course of transact- ing these duties 2 , or business embarrassment or want of credit in the case of a merchant 3 . For example : The defendant charges the plaintiff, a clergyman, holding the office of vicar of a church, with incontinence. This is ground of an action 4 . Again : The defendant says of the plaintiff, a lawyer, the words having rela- tion 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 5 . When the defamation complained of does not show on its face that it was published of the plaintiff in relation to his occu- pation, this must be made to appear 6 ; though even then, as has just been stated, the defamation will not be actionable unless it 1 Lumby v. Allday . 1 Cr. & J. 301; s. c. 1 Tyrwh. 217, and 35 E. R. 715. If the imputation bad been of adultery, it would have been actionable per se, under the head of imputations of crime. And the law has been extended by statute in favour of married women. Slander of Women Act, 1891, 54 &55 Vict. c. 51. Indeed the rule laid down in Lumby v. Allday — the natural tendency of the charge, a sound rule in itself — might well have been held enough, and as a new question perhaps now would be, to enable the plaintiff to recover. Capital and Counties Bank v. Henty, 7 App. Cas. 771, 772, Lord Blackburn. See Morasse v. Brocher, 151 Mass. 567, 576. - Lumby v. Allday, supra. 3 Mclntyreu. Weinert, 195Penn. St. 52. 4 Gallwey v. Marshall, 9 Ex. 294. 5 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 ' has been held actionable. Rush v. Cavenaugh, 2 Barr (Pennsylvania), 187. Further see Doyley v. Roberts, 3 Bing. N. C. 835; Goodenow v. Tappan, 1 Ohio, 60. 6 Ayre v. Craven, 2 Ad. & E. 2. B. T. 10 146 SLANDER AND LIBEL [Sect. 6 had a natural tendency to injure the plaintiff in his occupation, in the sense already explained. In cases however in which the imputation is alleged to have been made of the plaintiff in his occupation, when the same does not have the natural tendency mentioned, it may be shown by the plaintiff' that the defamation was published under circumstances which bring the case within the rule of liability. But without such evidence the plaintiff must fail. For example : The defendant charges the plaintiff, as a physician, with incontinence. This does not imply dis- qualification, or necessarily professional misconduct ; and, with- out evidence connecting the imputation with the plaintiff's professional conduct, he cannot recover 1 . If the imputation in itself come within the rule of liability under this head, it matters not that it was published of a servant, even one acting in a menial capacity. For exam- Servants. ° . pie: 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 master of a bushel of barley.' The defendant is liable to the plaintiff 2 . It is probably actionable to impute disqualification of a person holding a merely honorary or confidential office, 'not of Honorary emolument 3 . It certainly is so to impute to such office - a person misconduct in the office 4 . For example : The defendant says of the plaintiff, who holds a public office of mere honour, touching his office, ' You are a rascal, a villain, and a liar.' This is a breach of the duty under consideration 5 . In all cases included under the present section, it is neces- sary that the plaintiff should have been in the exercise of the Exercise of duties of the particular vocation at the time of the vocation. alleged publication of the defamation". For ex- ample : The defendant says of the plaintiff, Avho 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. But see Morasse v. Brocher, 151 Mass. 567, 576. 2 Seaman v. Bigg, Croke Car. 480. 3 Onslow v. Home, 3 Wile. 186. 4 Id. 5 Aston v. Blagrave, Strange, 617. « Bellamy v. Burch, 16 M. & W. 590 ; Gallwey v. Marshall, 9 Ex. 294. See Bitchie v. Widdemer, 59 New Jersey, 290. 7 Bellamy v. Burch, supra. Some of the old cases are contra, but they were overruled. Sect. 8] IMPUTATION BY WRITING, ETC. 147 § 7. 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, Doubt in re- * s no ^ P ro P erl y speaking an action of slander ; as gard to such has already been stated, such a case is ground for a special action, governed by rules of law distinct from those of defamation 1 . Cases of actions for defamation tending to defeat an expected title are rare, and appear to have been confined to charges im- peaching the legitimacy of birth of an heir-apparent. Such an imputation has been deemed actionable, as being likely to cause the plaintiff's disherison 2 . But that is unsound doctrine, and has met with no favour in modern times. The reason is plain ; the act complained of is no violation of any legal right, since the heir-apparent can have no legal right to the inheritance. The ancestor owns the estate, and may do as he will with it 3 . Damage must be proved. § 8. Imputation conveyed by Writing, Printing, or the like; that is, Libel The preceding sections exhaust the possible heads of oral defamation, actionable per se; that is, of slander. Libellous Definition of defamation may also be conveyed in any of the libel - 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 4 . The wrong is a crime as well as a tort 5 . The definition shows that the law of libel is of wider extent than that of slander. Many words when written or printed Libel wider become actionable per se which, if they had been than slander, orally published, would not have been actionable 1 See ante, pp. 78-81. "- Humphrys v. Stanfeild, Croke Car. 469. 3 Onslow 17. Home, 3 Wils. 188; Hoar v. Ward, 47 Vermont, 657. 4 On the vagueness of this definition a remark has been made, ante, p. 138, note. 5 See Kenny, Outlines of Criminal Law, 307. 10—2 148 SLANDER AND LIBEL [Sect. 8 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 defendant writes and publishes of the plaintiff the follow- ing : ' I sincerely pity the man that can so far forget what is due not only to himself, but to others, who, under the cloak of religious and spiritual reform, hypocritically, and with the grossest impurity, deals out his malice, uncharitableness, and falsehoods.' The plaintiff can maintain an action for libel 2 . Again : The defendant 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 imputation is libellous, though not importing perjury 3 . 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 pro- prietors, publishers, or editors of books, newspapers, or other prints, for the publication of defamation 5 . They books, news- are liable for the publication of libellous matter in papers, etc. their prints, though the publication may have been made without their knowledge or even against their orders. This is not true of newsvendors 6 . And it is held that if the alleged libel were of such a nature that a man of common in- telligence 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 1 Thorley r. Kerry, 4 Taunt. 355; Haynes v. Clinton Printing Co., 169 Mass. 512. 2 Thorley v. Kerry, supra. :i Steele v. Southwick, 9 Johnson (New York), 214. 4 Cooper v. Greeley, 1 Denio (New York), 347. 6 See the Statute of 6 & 7 Vict. c. 96, as to apologies. l! Emmens v. Pottle, 16 Q. B. Div. 357. Sect. 9] TRUTH OF THE CHARGE 149 proprietor of the printing establishment, or of the print, would be liable 1 . The distinction between slander and libel, making libel a crime as well as a tort, has its roots in the feudal age. Written Distinction defamation, in rhyming lampoon, was then a con- between libel spicuous and typical weapon of attack between medieval : the great men ; while slander, though also then as press, now in use among men of high degree and some- times punished as a crime, was common property for everybody — it was the billingsgate of the lower classes, for whom no man cared. And the parties, high or low, squared the account on the spot. How bitter and dangerous the libel of those coarser times may be seen in such a one as the Ballad of Richard of Almaign 2 , lampooning the King's brother for cowardice at the battle of Lewes (1264) 3 . One can well understand that libel then should have been held a crime. The (abolished) Statute of Scandalum Magnatum 4 was a direct expression of the law; but the idea of danger in the written word itself, by easy con- fusion, took root — did the line ' Vox emissa volat, littera scripta manet ' help the idea ? — and hence the law of libel. This has one justification in modern times, to wit, in the dangers of the press. As for the rest, the distinction in question, and other distinctions between slander and libel, are of little importance ; people do not trouble the courts much, in the greater concerns of modern life, with petty causes of either kind 5 . § 9. Truth of the Charge The truth of the charge, whether the charge was made orally or by printed or written language, if fully proved 6 , is, in the absence of statute 7 , a defence to an action for damages for 1 Smith v. Ashley, 11 Metcalf (Mass.), 367. See also Emmens v. Pottle, supra. 2 Percy's Reliques, i. 246 (Bohn). 3 Wright's Political Songs (Camden Soc.) contains others. See Law Quarterly Review, July, 1902, p. 261. 4 See Odgers, Slander and Libel, 94, 447, 503, 3rd ed. 5 See ante, p. 138, note. 6 If the charge contains particulars, all must of course be established if the truth is set up. It is a dangerous defence to plead, for to fail in establishing it shows malice, in the absence of statute. See Odgers, Slander and Libel, 201, 3rd ed. On the whole subject see id. chap. vii. 7 As to criminal prosecutions for libel see 6 & 7 Vict. c. 96, § 6. 150 SLANDER AND LIBEL [Sect. 9 the publication of alleged defamation though malicious and The truth an not reasonably believed to be true 1 . Evidence of absolute de- such a fact shows indeed that the charge is not fsncs not affected by le g a lly defamatory. A person has no right to a malice. false character; and his real character suffers no damage, such at least as the law recognizes, from speaking the truth. This rule appears to go to the extent of justifying a party in publishing of another the fact that he has suffered the penalty of the law for the commission of crime, even though he may have been pardoned therefor and have since become a good and respectable citizen. For 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 therefor, the plaintiff was pardoned, and has since become a trusted citizen and an office-holder. The accusation is deemed justifiable in-law 2 . Belief in the truth of the accusation however is not a defence'', though the law allows the defendant to show it in mitigation of damages 4 . The charge being renewed in the allegation that it was true, must be fully made out by the defendant. And this is equally true of the editors and publishers of books, newspapers, or periodicals, as of other persons 5 . 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 Truth of effigy character, is (probably) no justification of a ma- or picture. licious 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 6 . 1 McCloskey v. Pulitzer Publishing Co., 152 Missouri, 339. 2 Bauni v. Clause, 5 Hill (New York), 199. See Hex v. Burdett, 4 B. & Aid. 314, 325. J Campbell v. Spottiswoode, 3 Best & S. 769; Smith v. Johnson, 69 Vermont, 231. 4 Odgers, Slander, 363, 607, 3rd ed. B Campbell v. Spottiswoode, supra. 6 Compare Pollard v. Photographic Co., 40 Ch. D. 345, 353, enjoining display of photograph; Hanfstaengl v. Empire Palace, 1894, 2 Ch. 1; Hanfstaengl v. Newnes, 1894, 3 Ch. 109. But see Dockrell v. Dougall, 78 Law T. Rep. 840 ; Atkinson v. Doherty, 80 N. W. Rep. (Michigan), 285, denying the so-called right of privacy. Sect. 10] PRIVILEGED COMMUNICATIONS 151 § 10. Privileged Communications: Malice The plaintiff in an action for defamation is entitled to recover upon proof of the publication (with special damage if „ .. . the case does not fall under one of the four heads) ; Malice not . , ' ' necessary to proof of malice, in other words malice as an entity, the action. - g no ^. necessarv> m anv sense of the term, to make a case. It has indeed been common to say that malice is presumed or implied upon proof of the publication ; but that means nothing, and is only misleading, for the presumption or in i plication cannot be overturned by evidence of want of malice. Malice, touching the making a prima facie case, is only a name arbitrarily applied ; it is simply a fiction. 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 justify °f speech not to be tolerated. There are circum- defamatory stances under which men must be permitted to publication. . ... L speak their convictions, however erroneous; the law could not but permit, and hence does permit it 1 . There are, in a word, occasions in which one is excused for publishing what would otherwise be actionable defamation 2 . The publi- cation of the charge in such cases is said to be 'privileged'; the charge itself being termed a privileged communication. It is obvious that the ' occasions ' mentioned may be of different importance ; they may be slight, they may be of the greatest moment. Between man and man, in the ordinary business of life, they may be slight as compared with occasions when public justice or the public interest is at stake ; for it is plain that public, and very soon thereafter private, welfare would 1 The doctrine of privileged communications is only a special example of a great law of privilege pertaining to human affairs generally; to wit, the right to inflict barm upon another in just so far as may reasonably be deemed neces- sary for one's own protection, or for the protection of another where that is proper. So far others must yield, or the vindication of rights in many cases would be an empty name ; further no one is required to give way. 2 Merivale v. Carson, 20 Q. B. Div. 279, 280; Lord Esher pointing out that wbat all men may do is no privilege. 152 SLANDER AND LIBEL [Sect. 10 suffer if a high order of privilege were not extended to such cases. The occasions have been divided into two classes, simply, for it would be impracticable to maintain a series of progressive grades, according to the supposed importance of each occasion. Privileged communications are accordingly of two kinds ; and these have been called absolutely privileged and prima facie Kinds of privileged communications. Absolute privilege privilege. imports that the privilege cannot be overturned by evidence that the publication was made with malice (as an entity) ; prima facie privilege, that the privilege may be over- turned by such evidence. Here then, in answer to a prima facie privilege, set up in defence, is the domain of malice, as a subject of proof, in regard to the right of action for defamation. Apart from statute, absolute privilege is confined to the State, and that too to its three departments, judicial, legislative, and executive 1 ; such privilege being justified, and privilege: as has already been intimated required, upon what it grounds of necessity. includes: & ... proceedings First, then, of privilege injudicial proceedings, of the courts. The f n ow ing is the general rule: Whatever is said orally, or stated in writing, in the course of and duly relating to such proceedings by those concerned therein, is absolutely privileged. According to recent authority, it matters not whether the language was material or relevant, or not ; it is deemed to be against public policy to permit any inquiry on that point' 2 . It is enough if it relates to the 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 relation to the evidence given, which insinuations would be actionable if not privileged. No action can be main- tained for making them ; no inquiry into their bearing upon the case will be allowed 3 . Again : A witness on the stand, after examination, volunteers a statement in vindication of himself, 1 Including, it seems, in America, the chief executive of a city, in his official communications. Trebilcock v. Anderson, 117 Michigan, 39; Wachsmuth v. Merchants' Bank, 96 Mich. 427. 2 Munster v. Lamb, 11 Q. B. Div. 588 (counsel); Scott v. Stausfield, L. E. Ex. 220 (judge) ; Seaman v. Netherclift, 2 C. P. Div. 53 (witness) ; Henderson v. Broomhead, 4 H. & N. 569 (statements in pleadings). 11 Munster v. Lamb, 11 Q. B. Div. 588. Sect. 10] PRIVILEGED COMMUNICATIONS 153 which contains a charge of crime against a stranger to the trial. This is not actionable 1 . The protection extends to the allegations contained in affidavits made in the course of a trial 2 , even though the persons making them be not parties to the cause 3 ; privilege and to statements of a coroner holding an inquest 4 . extends. j n a wor( i ) ft applies apparently to all statements made in the real discharge of duty in court. The law upon this subject has been thus (in substance) generalized : No action either for slander or libel can be main- tained against a judge, magistrate, or person sitting in a judicial capacity over any court, judicial, military 5 , or naval, recognized by and constituted according to law ; nor against suitors, pro- secutors, witnesses, counsel, or jurors, for anything said or done relative to the matter in hand, in the ordinary course of a judicial proceeding, investigation, or inquiry, civil or criminal, by or before any such tribunal, however false and malicious it may be 6 . A like rule of law to that by which defamatory statements made in the course of judicial proceedings are privileged governs Proceedings of all statements and publications made in the course Legislature. f the proceedings of the Legislature 7 . The occasion is deemed to afford an absolute justification for the use of language otherwise actionable, so long as it relates to the proceedings under consideration. No member of the Legislature is liable in a court of justice for anything said by him in the transaction of 1 Seaman v. Netherclift, supra. In America the question of relevancy may be inquired into, so far as the belief of the defendant is concerned. If he believed that what he said was relevant or pertinent, the privilege exists ; contra if he did not so believe. See Hastings v. Lusk, 22 Wendell (New York), 410; Dunham v. Powers, 42 Vermont, 1. See Hoar v. Ward, 3 Metcalf (Mass.), 193, 197, 198. 2 Garr v. Selden, 4 Comstock (New York), 91. 3 Henderson v. Broomhead, 4 H. & N. 5ti9. 4 Thomas v. Ghurton, 2 Best & S. 475. 5 Jekyll v. Moore, 2 Bos. & P. N. R. 341 ; Dawkins v. Rokeby, L. R. 8 Q. B. 255; s. c. 7 H. L. 744, 752 (witness); Dawkins v. Saxe- Weimar, 1 Q. B. D. 499. 6 Starkie, Slander and Libel, 184 (4th ed. by Folkard) ; Munster v. Lamb, 11 Q. B. Div. 588, and cases cited. 7 3 & 4 Vict. c. 9 ; Odgers, Slander, 208, 3rd ed. 154 SLANDER AND LIBEL [Sect. 10 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 feelings or injurious to the reputation of another 1 . This privilege however is absolute only within the walls of the House, or of such other places as committees are authorized to occupy 2 . It is not personal, but local. A member who pub- lishes slander or libel generally, outside of such locality, stands, it seems, on the same footing with a private individual 3 . 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 4 . 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 petition 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 individual. But a publication to any others than the members of the committee, or at any rate to others than members of the Legislature, removes the protection, and renders the author liable 5 . Absolute privilege extends also to the acts and proceedings of the Executive Department, whether of the Proceedings * of the general government of the country or of the Executive. colonies 6 , or, perhaps, of cities 7 . In other relations than those of the State, there is seldom 1 See Ex parte Wason, L. R. 4 Q. B. 573 ; Commonwealth v. Blanding, 3 Pickering (Mass.), 304, 314; Coffin v. Coffin, 4 Mass. 1; Hastings v. Lusk, 22 Wend. 410, 417 ; McGaw v. Hamilton, 184 Penn. St. 108. 2 Coffin v. Donnelly, 6 Q. B. D. 307. See 3 & 4 Vict. c. 9 (1840). a See however Coffin v. Coffin, supra, as to words not in the course of business. 4 Rex r. Abingdon, 1 Esp. 226; Rex v. Creevey, 1 Maule & S. 273; Stockdale v. Hansard, 9 Ad. & E. 1. As to private circulation of speeches among con- stituents, see Wason v. Walter, L. R. 4 Q. B. 73, 95. On the general subject of Stockcbile v. Hansard, supra, see the statute 3 & 4 Vict. c. 9 (1841). 5 Lake v. King, 1 Saund. 131 b, where this is conceded; Hare v. Miller, 3 Leon. 138, 163. See Proctor i\ Webster, 16 Q. B. D. 112, as to communications to the Privy Council. ,; See Chatterton v. Secretary of State, 1895, 2 Q. B. 189 ; Spalding v. Vilas, 164 U. S. 483 ; ante, p. 29. 7 Ante, p. 152, note 1. Sect. 10] PRIVILEGED COMMUNICATIONS 155 any cause for absolute privilege ; between man and man, outside Prima facie of the affairs of State, the occasion can create privilege. on jy a p rmia facie privilege. The defendant here shows grounds of privilege as before ; but now, it should be noticed, the plaintiff may in turn show (actual) malice, and so cut away the ground of the supposed privilege, for prima facie privilege rests on good faith. It is founded upon interest or duty, as will appear later. This head of privilege embraces a great variety of cases; only the most important of these will be presented. Proceedings before church organizations, societies, clubs, and other voluntary bodies, touching the objects for which they are Proceed' formed, may be mentioned first. Proceedings of of voluntary such bodies, for the discipline of their members, partake somewhat of the nature of trials in the courts. Though forming no part of the general administration of justice, such proceedings, when not in conflict with the law, are sanctioned by the State. Accordingly, language used in conducting them is probably privileged, prima facie, so far as it is pertinent to the matter under consideration. For example : The defendant, while on trial before a church committee for alleged falsehood and dishonesty in business, says of the plaintiff, ' I discharged him for being dishonest, — for 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 public, so that judges may sufficiently feel their responsibility 2 , proceedings of But the whole public cannot attend the courts, the courts. an( j -^ ^ g p r0 p er therefore that such of their pro- ceedings 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 im- pression of the proceedings, and if not attended with defamatory comments, is prima facie privileged 3 . If however the same should 1 York v. Pease, 2 Gray (Mass.), 282; Farnsworth v. Storrs, 5 Cushing (Mass.), 412. Probably the language need not be legally relevant. 2 Cowley v. Pulsifer, 187 Mass. 31(2. 3 See Stevens v. Sampson, 5 Ex. Div. 53, as to reports furnished by one not connected with the newspaper. 156 SLANDER AND LIBEL [Sect. 10 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 example : The defendant prints a short summary of the facts of a certain case in which the plaintiff has acted as attorney. The account of the trial states that the then defendant's counsel was extremely severe and amusing at the expense of the present plaintiff. It then sets out parts of the speech of the defendant's counsel which contain some severe reflections on the conduct of the plaintiff as attorney in that action. The defendant is liable 1 . But it should be clearly understood that the publication of an abridged report of a trial is privileged if it is fair and accurate Abridged in substance, so as to convey a just impression of reports of what took place, and is free from objectionable trials : reports r . J from day to comments'; and so of the publication of proceedings dajr- in the Legislature 3 . It is laid down in America 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 3 . 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. Comments in For example : The defendant prints an account of heading. a tr j a j ' m w hi c h the plaintiff was involved, heading the same ' Shameful conduct of an attorney,' referring to the plaintiff. The publication is not privileged 8 . 1 Flint v. Pike, 4 B. & C. 473. 2 Turner r. Sullivan, 6 Law T. n. s. 130; Wason v. Walter, L. K. 4 Q. B. 73, 87. :{ Wason v. Walter, supra. See 3 & 4 Vict. c. 9 (1840). Contra of matters not fit for publication. Steele v. Brannan, L. K. 7 C. P. 261. 4 Cowley v. Pulsifer, 137 Mass. 392. 5 Id. p. 394, Holmes, J. 6 Lewis i;. Levy, El. B. A E. 537 ; Cowley v. Pulsifer, 137 Mass. 392, 395. 7 Macdougall v. Knight, 17 Q. B. Div. 630; 14 App. Cas. 194, 200. See this case again, 25 Q. B. Div. 1, denying the qualification suggested in the House of Lords, 14 App. Cas. at pp. 200, 203. 8 Lewis v. Clement, 3 Barn. & Aid. 702. Sect. 10] PRIVILEGED COMMUNICATIONS 157 The editor or writer may however use a heading properly indicative of the nature of the trial, if it does not amount to comment. That is, the subject of the trial may be stated. For example : The defendant prints a report of a trial under the heading ' Wilful and corrupt perjury.' But this is only a state- ment of the charge made against the plaintiff at the trial. There is no breach of duty to the plaintiff 1 . The privilege extends to the publication of ex parte judicial proceedings 2 ; it protects the publication alike of preliminary Ex parte an d final proceedings in open court ; and this proceedings. though the tribunal declines to proceed for want of jurisdiction 3 . No privilege is conferred, apart from statute, upon the proprietors, editors, or publishers of the public prints for the Newspaper publication of defamatory matter uttered in the reports course of public meetings though held under defamatory authority of law for public purposes. For example : matter. rpj^ d e f en d an t prints an account of a public meeting of commissioners of a town, the body acting under powers granted by statute ; and the report is a fair and truthful state- ment of what occurred at the meeting. It however contains defamatory language uttered concerning the plaintiff at the meeting. The defendant is liable 4 . It is obviously to the advantage of the public that true accounts of the proceedings of the Legislature as well as of the courts should be placed before the people. pubhs^p™© 7 Upon this principle therefore the publication of ceedings of such proceedings by any one is privileged, though they contain defamatory matter; though the privilege of non-official publication, as in the other cases mentioned, will not cover malicious publications. Without evidence of malice however the protection is complete. For 1 Lewis v. Levy, El. B. & E. 537. - Usill v. Hales, 3 C. P. D. 319; Kimber v. Press Association, 1893, 1 Q. B. 65, C. A.; Metcalf v. Times Publishing Co., 20 Bhode Island, 674, reviewing the cases. 3 Usill v. Hales, supra; Lewis v. Levy, supra. 4 Davison v. Duncan, 7 El. & B. 229. But now see the Law of Libel Amendment Act, 51 & 52 Vict. c. 64, § 4. The second section of this Act repeals 44 & 45 Vict. c. 61, § 2. 158 SLANDER AND LIBEL [Sect. 10 example : The defendant publishes a true report of a debate in Parliament, upon a petition presented by the plaintiff for the impeachment of a judge. Defamatory statements against the plaintiff are made in the course of the debate, and these are published with the report. The defendant is not liable in the absence of malice 1 . Communications made to the proper 2 public authorities, upon occasions of seeking redress for wrongs suffered or threatened, in which the public are concerned, or in which the JJJJJJJl party making or receiving the communication is for redress of alone concerned, fall within the same kind of grievances. privilege, if believed to be true by the party seeking redress, unless the communication itself or the facts connected with it show malice. For example : The defendant honestly 3 charges the plaintiff with being a thief, the charge being made before a constable acting as such, after the defendant had sent for him to take the plaintiff into custody. The defendant is not liable in the absence of evidence of actual malice 4 . Upon the same principle honest statements at public meetings, as by a taxpayer and voter at a town meeting held to consider Town an application from the tax assessors of the town meetings. f or the use of money for a particular purpose, may be privileged so far as they bear upon the matter before the meeting, though they be defamatory. For example : The defendant, at a town meeting held on application of the tax assessors to consider the reimbursing the assessors for expenses incurred in defending a suit for acts done in their official capacity, honestly but falsely charges the assessors with perjury in the suit. Being a taxpayer and voter, he is not liable to any of the persons defamed, unless shown to have been actuated by malice 5 . 1 Wason v. Walter, L. E. 4 Q. B. 73. The protection in this case was extended also to comments made in an honest and fair spirit. - Hebditch v. Macllwaine, 1894, 2 Q. B. 54, C. A. :i ' Honestly' and 'honest' will now be used of belief that an imputation is true, and made in good faith. 4 Robinson v. May, 2 Smith (New York), 3. 5 Smith v. Higgins, 16 Gray (Mass.), 251. Sect. 10] PRIVILEGED COMMUNICATIONS 159 A similar protection is extended to persons acting under the management of bodies instituted by law, and having a special ., ... . function of care over the interests of the public. Public bodies ... l having special While honestly acting within the limits of their functions. function, they are prima facie exempt from liability for defamatory publications made. For example : The defendants, trustees of a college of pharmacy, — an institution incorporated for the purpose, among other things, of cultivating and improving pharmacy, and of making known the best methods of preparing medicines, with a view to the public welfare, — make a report to the proper officer concerning the importation of impure and adulterated drugs, falsely but honestly charging the plaintiff with having made such importations ; the report being made after investigation caused by complaints made to the defendants of the importation of such drugs. The defendants are not liable unless they acted with express malice towards the plaintiff 1 . The use of the public prints is sometimes justifiable to protect a person against the frauds or depredations of a private citizen ; and when this is the only effectual mode Use of the ' . „ . press for self- of protection, persons are prima facie protected protection. j n a( J pting it even against innocent men. For example : The defendant, a baker, employing servants in delivering bread in various towns, inserts in a newspaper pub- lished in one of the towns a card, stating that the plaintiff ' having left my employ, and taken upon himself the privilege of collecting my bills, this is to give notice that he has nothing further to do with my business.' The communication is honest. It is privileged in the absence of evidence of actual malice 2 . Statements made to the public in vindication of character publicly attacked are privileged, prima facie, if they are honest seif-vindica- and made through proper channels' 8 . For example : tion - The defendant publishes a newspaper article con- taining reflections upon the plaintiff's character, in reply to an article by the plaintiff assailing the defendant's character. The 1 Van Wyck v. Aspinwall, 17 New York, 190. See Allbut v. General Council of Medical Education, 23 Q. B. Div. 400. 2 Hatch v. Lane, 105 Mass. 394. 3 Laughton v. Bishop of Sodor and Man, L. B. 4 P. C. 495. 160 SLANDER AND LIBEL [Sect. 10 defendant acts honestly, in defence of himself. The communi- cation is prima facie privileged 1 . Indeed it may not affect the case that the names of other men are drawn into the controversy and tarnished. The party attacked may in reply falsely criminate others if the charges against them are honestly made, are not malicious, and are reasonably deemed necessary for self- vindication. And such reply may be made by the party's agent as well as by himself. For example : The defendant, an attorney, writes and publishes a letter in vindication of the character of one of his clients, in reply to certain charges of conspiracy preferred and published against the latter. The defendant's letter contains defamatory charges against a third person, the plaintiff. The defendant is not liable if he made the charges in reasonable and honest vin- dication of his client's character, and without actual malice, using terms reasonably warranted under the circumstances in which he wrote 2 . Communications by a master, or late master, in regard to the character or conduct of his servant, made to a neighbour or Master and other person who is apparently thinking of em- servant, ploying the servant, fall within this category of cases. For example : The defendant, having discharged his servant the plaintiff for supposed misconduct, and hearing that he was about to be engaged by a neighbour, writes a letter to his neighbour, informing him that he has discharged the plaintiff for dishonesty, and that he cannot recommend him ; the charge of dishonesty being false, but believed by the defendant to be true. The defendant has a prima facie right to make the statement 3 . The same is true where there exists a very near relationship, or a pecuniary connection of confidence, between the parties ; as Near reia- m ^ ne case °f a parent admonishing his daughter tionsnip. against the attentions of a particular person, who 1 O'Donoghue v. Hussey, Ir. R. 5 C. L. 124, Ex. Ch. 2 See Regina v. Veley, 4 Fost. & F. 1117; Seaman v. Netherclift, 2 C. P. Div. 53, ante, p. 153 ; Wason v. Walter, L. R. 4 Q. B. 73, ante, p. 158. These three cases taken properly together justify the example, the facts in which vary from Regina v. Veley, in making the imputation relate to a third person. 3 Pattison v. Jones, 8 B. & C. 578. Sect. 10] PRIVILEGED COMMUNICATIONS 1G1 is falsely charged with the commission of a crime; or of a partner advising his copartner to have no partnership dealing with another, on the mistaken ground, e.g., that he is a thief. A confidential relation by pecuniary connection is, for the purposes of this protection, much wider than might be supposed Confidential from the case of partners last mentioned. A con- relation, fidential relation, within the scope of the protection to voluntary communications, (probably) arises wherever a con- tinuous or temporary trust is reposed in the skill or integrity of another, or the property or pecuniary interest, in whole or in part, or the bodily custody, of one person, is placed in charge of another 1 . Besides the cases above stated, this definition will cover communications made by an attorney to his client con- cerning third persons with whom the client is, or is about to be, engaged in business transactions 2 ; communications made to an auctioneer of property concerning the sale by persons interested in the property 3 ; communications of landlords to their tenants imputing immoral conduct to some of the inmates of the premises 4 ; and many other cases of a like nature. In most of the foregoing cases, it will be noticed, the com- munication was volunteered, and this of necessity ; if made at all, it must have been volunteered. That fact Voluntary ' communi- accordingly has no bearing upon the question of cation. liability. Indeed the most that can be said of the fact that a communication was volunteered, in a case of privilege, is that it may sometimes be taken, along with other facts, as evidence of malice 5 . Alone however it would probably have no significance. On the other hand, a communication is not necessarily privileged because of being made upon request, though very communica- often it is privileged. If it should be unnecessarily tion on re- defamatory under the circumstances, the privilege que would be lost. Such fact would indeed show that the writer or speaker was actuated by malice, and would thus 1 See Bigelow, Fraud, i. 262. 2 See Davis v. Eeeves, 5 Ir. C. L. 79. 3 Blackham v. Pugh, 2 C. B. 611. 4 Knight v. Gibbs, 3 Nev. & M. 467. 5 See Pattison v. Jones, 8 B. & C. 578, 584, Bayley, J. B. T. 11 162 SLANDER AND LIBEL [Sect. 10 destroy the protection which might have been available to the party, leaving to the plaintiff his right of redress 1 . Again, a communication made upon request is not protected unless the request come from a proper person. If the one who requested the defendant to make the communication had no duty to perform, and no interest in the matter in question other than that of curiosity, the defendant manifestly is not justified in making the communication. Even the near relatives of a person interested in the subject of the com- munication cannot by request afford protection to every one to publish defamation of another. For example : The defendant, formerly but not at present pastor of a lady, writes a letter to the lady, on request of her parents, warning her against receiv- ing attention from a certain person, the letter containing false and defamatory accusations against him. The communication is not privileged 2 . Apart from cases of self- vindication 3 , the subject of prima facie privilege may be summed up by the following general Generaiiza- proposition : A communication believed to be true, tionofthe and made bona fide upon any subject-matter in su Jec ' which the party communicating has an interest, or in reference to which he has a legal or moral duty to perform, is privileged, if made to a person having a corresponding inter- est or duty, although it contains defamatory matter, which, without such privilege, would be actionable 4 . Prima facie privilege accordingly rests upon duty or interest. It is then a matter of motive ; to make the occasion (prima facie) privileged, one must have been led — moved — Basis of prima A . . . . facie privi- by duty or interest. I hat is the test to which lege-duty or every case of the kind should be brought ; if the interest motive of the defendant was not duty or interest, — if for instance it was malice, — there is no ground for the 1 Fryer v. Kinnersley, 15 C. B. n. s. 422. 2 Joannes v. Bennett, 5 Allen (Mass.), 169. Would the communication have been privileged had it come from the lady's present pastor? :; In a case of self-vindication, the public, before which the accused may seek to vindicate himself, may have no duty or interest in the matter. * Harrison v. Bush, 5 El. & B. 344. Sect. 10] PRIVILEGED COMMUNICATIONS 163 privilege. To put the case in another way, if the defendant bring forward facts which show the existence of duty or interest, the question still is, whether that was in fact the motive which governed his conduct in making the publication in question. No more however is required of the defendant than evidence that he was acting from duty or interest; it is not necessary for Belief of de- hini to go further and prove that he believed what fendant mak- ne sa [^ to De true 1 . That will be presumed until course of the plaintiff shows the contrary, or proves malice, duty - or other facts inconsistent with the alleged privi- lege. Indeed where the defendant is simply making report to a superior of what his duty requires him to report, such as an accusation made by another against the plaintiff, it cannot, it seems, be material whether the defendant believes the accusa- tion true or not. Enough that in good faith he reports it, as required, to his superior 2 . But apart from such cases, — if the defendant himself makes the accusation, — his belief in the truth of the accusation is relevant. He will indeed be presumed to believe it, but if the plaintiff shows that he does not, or other- wise proves malice, or any other fact inconsistent with the supposed privilege, the plaintiff will be entitled to recover 3 . The motive of interest or duty must, as the foregoing im- plies, be single ; a mixed motive, of interest or duty and malice Singleness of ( or n ^ e f a °t), would be fatal to the plaintiff 4 . It motive: moral is always laid down to be sufficient for the plaintiff to prove that the defendant acted maliciously. In regard to duty, that may be moral as well as legal ; in regard to interest, that must, it seems, consist in legal right or in some- thing of the nature of legal right 5 . The duty or interest however must, it seems, be real ; it is not enough that the defendant 1 Jenoure v. Delmege, 1891, A. C. 73, Privy Council. 2 Jenoure v. Delmege, supra. 3 Jenoure v. Delmege, 1891, A. C. 73; Pattison v. Jones, 8 B. & C. 578; Dawkins v. Paulet, L. R. 5 Q. B. 94, 102 ; Clark v. Molyneux, 3 Q. B. Div. 237. 4 Such is the effect of Jenoure v. Delmege, supra. But qu. whether a person should lose his privilege when reporting a defamatory charge which he was legally hound to report, because he does not believe the charge to be true and performs his duty maliciously? 5 Ante, pp. 10, 11. 11—2 o 164 SLANDER AND LIBEL [Sect. 10 supposed that he, and the person addressed 1 , had a duty or an interest, if either of them had not. We have here, it may now be pointed out, the noticeable fact that malice as a motive has a true place in civil liability 2 , Place of though a secondary one, — not in making a prima malice. f ac i e ca use of action 3 . Indeed it is laid down that the malice required, when the question of privilege turns on malice, is malice in that very sense, — the popular idea of malice, as an evil motive 4 . Accordingly, external manifestation, such as the common case of excessive zeal, is to be considered as evidence of a malicious motive, and not necessarily as malice absolute ; the effect of it being capable of being taken away by evidence consistent with zeal but inconsistent with malice. It follows from what has been said, that no privilege is afforded the mere repetition of defamation ; and this is true by the weight of authority, though the party repeat- Repetition ing it give the name of the person from whom he received it. The repetition of the language is generally deemed actionable to the same extent, and doubtless with the same qualifications, as in the original publication 5 . For example : The defendant says to a third person concerning the plaintiff, * You have heard of the rumour of his failure,' — merely repeat- ing a current rumour that had come to his ears that the plaintiff had failed. The defendant is liable if there was no such rela- tion between him and the party to whom he made the com- munication as would cause the latter to expect a communication on such matters 6 . 1 Hebditch v. Macllwaine, 1894, 2 Q. B. 54, C. A. But see Jenoure v. Delmege, 1891, A. C. 73, where the Privy Council took it for granted that belief that the right person was addressed was enough. 2 We have seen that privilege in one form or another is a general principle of law (ante, p. 151, note); accordingly malice, in the sense of a motive, is in sound theory available generally, and not merely in slander and libel, to overturn the allegation or the presumption of privilege. See ante, pp. 19, 'ill. Where a man justifies by a motive, as duty or interest, it may certainly be shown that he was not governed by that but by another motive. 3 Ante, pp. 21, 151. 4 Nevill v. Fine Arts Ins. Co., 1895, 2 Q. B. 156, 169, Lord Esher. 5 De Crespigny v. Wellesley, 5 Bing. 392. Northampton's Case, 12 Coke, 134, contra on that point is not law. 8 Watkin v. Hall, L. 11. 3 Q. B. 396. Sect. 11] CRITICISM 165 §11. Criticism Criticism cannot be defamation, unless it strikes at personal character. It is protected therefore, not because it is privileged, Distinguished ^ut because it is not defamation 1 , or rather because from defama- it is not wrongful. This broader ground appears to be the true one ; speaking in technical but significant language, it is not necessary to 'justify' criticism. However severe it may be, however unjust in the opinion of men capable of judging, so long as the critic confines himself to what is there called ' fair criticism ' of another's works, the act cannot be treated as a breach of duty. But if the critic turn aside from the proper purpose of criticism, and hold up one's character to ridicule, he becomes liable 2 . The criticism of works of art, whether painting, sculpture, monument, or architecture, falls of course within the rule. For example: The defendant says of a picture of the plaintiff, placed on exhibition, ' It is a mere daub.' The defendant, if fair in his criticism 3 , cannot be held liable to an action for defamation, however unjust the criticism 4 . 1 Merivale v. Carson, 20 Q. B. Div. '275 ; Campbell v. Spottiswoode, 3 Best & S. 769, 780. This overrules Henwood v. Harrison, L. R. 7 C. P. 606, 626, where, as by some American courts, criticism is treated as privileged. Criticism is privileged only in the improper sense that the act in itself is lawful, not that it is made upon an occasion which protects it. Football, every lawful act, result- ing in harm, is 'privileged' in the same way. Compare Lex Aquilia, fr. 52, § 4; Grueber, p. 174. Hence (if this be true) criticism is not wrongful because of being malicious. 2 Id.; Carr v. Hood, 1 Campb. 355, note; Strauss v. Francis, 4 Fost. & F. 939 and 1107. See s. c. L. R. 1 Q. B. 379. 3 See Merivale v. Carson, 20 Q. B. Div. 275, 280, 283, as to ' fair criticism.' The question is directly put to the jury whether the criticism is ' fair'; which is stated to mean whether, in their opinion, the criticism goes beyond what any fair man, however prejudiced or strong his opinion may be, might express. Merivale v. Carson, at p. 280. See also id. at p. 283. 4 Thompson v. Shackell, Moody & M. 187. See Whistler v. Ruskin, London Times, Nov. 26, 27, 1878 (unfair criticism); Merivale v. Carson, supra; Gott v. Pulsifer, 122 Mass. 235. A recent American case of Dooling v. Budget Pub. Co., 144 Mass. 258, turned upon a distinction between criticism of the. plaintiff in his business of caterer and slander of title. The distinction is, that if the comment, being upon property, is true it is criticism, if false it is slander of title. 166 SLANDER AND LIBEL [Sect. 11 The conduct too of public men amenable to the public only, and of candidates for public office, is a matter proper for Conduct of public discussion. It may be made the subject of public men: hostile criticism and animadversion, so long as the arges. wr jter keeps within the bounds of an honest inten- tion to discharge a duty to the public, and does not make the occasion a mere cover for promulgating false and defamatory allegations. The question in such cases therefore is, whether the author of the statements complained of has transgressed the bounds within which comments upon the character or conduct of a public man should be confined ; — whether, instead of fair comment, the occasion was made an opportunity for gratifying personal vindictiveness and hostility 1 , as by making false charges of disgraceful acts 2 . In a word, fair criticism or comment upon the real acts of a public man is one thing ; it is ' quite another to assert that he has been guilty of particular acts of miscon- duct 8 .' Criticism of public men should be limited to matters touching their qualifications for the performance of the duties pertaining to the position which they hold or seek 4 . If however an officer, or an office sought, be not subject to direct control by the public, — if the same be subordinate to the authority of some one having a power of removal subject di- over the incumbent, — then (probably) there exists rectly to pub- ]10 right to animadvert upon the conduct of such lip pon trol 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 inca- pacity 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 Campbell v. Spottiswoode, 3 Best & S. 769, 776; Merivale v. Carson, 20 Q. B. Div. 275, 283. ' Davis v. Shepstone, 11 App. Cas. 187. ■■> Id. at p. 190. 4 The American courts differ however, or appear to differ, as to how far criticism of public men may go. See on the one hand Hamilton v. Eno, 81 New York, 116; Curtis v. Mussey, 6 Gray (Mass.), 261. On the other hand see Palmer v. Concord, 48 New Hampshire, 211 ; Mott v. Dawson, 46 Iowa, 533. Sect. 11] CRITICISM 167 It must be understood that the law of slander and libel applies only to defamation in pais : that is, to defamatory Limits of law charges not prosecuted in a court of justice. If ofdefamation. t,| le defamation consist of an accusation prosecuted in court, the accused must seek his redress by an action for malicious prosecution, in regard to which the right to recover depends, as has been seen, upon very different rules of law 1 . 1 See chapter iii. CHAPTER VIII Assault and Battery Statement of the duty. A owes to B the duty not (1) to attempt with force to do hurt to his person, within reach ; or (2) to hit or touch him intentionally, or recklessly as in rude- ness, or in the commission of any trespass or crime. 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 discrimination. 'Assault' is constantly used in the books of cases of contact, making it include 'battery.' But assault 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. § 1. Assault (without Contact): What must be Proved, etc. An assault (without contact) is an attempt, real or apparent, to do hurt to another's person, within reach. It is an attempt to do bodily harm, stopping short of actual execu- Deflnition. . J V • tion 1 . lo prove such an attempt entitles the plaintiff, presumptively, to recover. If the attempt be carried out by physical contact, the act becomes a battery ; but the act is equally unlawful and actionable when it stops with a mere 1 Words are no assault ; but they may be a menace and so actionable, with proof of damage. Bigelow's L. C. Torts, 225-227. Sect. 1] ASSAULT (WITHOUT CONTACT) 169 attempt to inflict hurt. It is not alone a blow that, because of unpermitted contact with the person, is unlawful. The sensi- bility 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. Damage is not necessary ; it is actionable for A to shake his fist in the face of B\ If damage were to be required as a condition to the right, the weak and the defenceless might be put and kept in terror by common rowdies. In ordinary eases of assault the question whether the de- fendant actually intended to do the bodily harm cannot, as the intention: definition implies, enter into the case 2 . If reason- fear. aD } e 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 wrongdoer coinci- dent 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 3 ; for the ordinary effect of an assault, the intended putting one in fear, is produced 4 . But an expressed purpose, or want of purpose, in a par- ticular set of facts, may well be a determining fact in solving a doubt ; that is, it may be such a part of the act in question as to turn the scales in deciding whether an assault has been 1 Bacon's Abr. 'Assault and Battery,' A. - But an assault, strictly speaking, cannot, it seems, be committed by negli- gence, so as to be actionable without proof of special damage. Compare Spade v. Lynn B. Co., 168 Mass. 285, 290; s. c. 172 Mass. 488. Note the difference accordingly between intended harm by attempt, and harm due to negligence. Ante, pp. 26, 27. 8 See Beg. v. St George, 9 Car. & P. 483, 493, Parke, B.; Bacon's Abr. 'Assault and Battery,' A; 1 Hawkins, P. C. 110; Pollock, Torts, 211, 6th ed., doubting Blake v. Barnard, 9 Car. & P. 626, 628, and Beg. v. James, 1 C. & K. 530. Beg. v. St George, ut supra, ' would almost certainly be followed at this day.' Pollock, Torts, 211, 6th ed. But see Beg. v. Duckworth, 1892, 2 Q. B. 83. 4 It may not be necessary however to an assault that this effect should be produced. A person assaulted may be entirely fearless, feeling 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. 170 ASSAULT AND BATTERY [Sect. 1 committed. A denial of present purpose to do harm, or any language indicating a want of such purpose, may serve, under the circumstances, to prevent 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 circum- stances, shows that there was no attempt, real or apparent, to do violence 1 . If however the plaintiff has reason to believe, from the defendant's hostile attitude, that harm is intended, there is an assault, whether the defendant did or did not intend harm. So at least it is held in America, for the purpose of civil redress. For example : The defendant in an angry manner points an unloaded gun at the plaintiff, and snaps it, with the apparent purpose of shooting. The gun is known by the defendant to be unloaded ; but the plaintiff does not know the fact, and has no reason to suppose that it is not loaded. The defendant 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 assault may be Parties must committed (as already appears) by means of a be within weapon or missile ; and in such a case it is only rGcicli of Gcicti other : excep- necessary that the plaintiff should have been with- tions - in reach of the projectile. And even when the alleged assault is committed with the fist, it is not necessary that the plaintiff should have been within arm's reach of the defendant, provided the defendant was advancing to strike the plaintiff, and was restrained by others from carrying out his purpose when almost within reach of the plaintiff. For example: 1 See Tuberville v. Savage, 1 Mod. 3. 2 Beach v. Hancock, '27 New Hampshire, 223. On the criminal side see Commonwealth v. White, 100 Mass. 407 ; Beg. v. James, 1 C. & K. 530, and Beg. v. St George, 9 C. & P. 483, ut supra; Kenny, Outlines of Criminal Law, L52, 153. Sect. 1] ASSAULT (WITHOUT CONTACT) 171 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 person sitting next to the plaintiff between him and the defendant. The act is an assault, though the defendant was not near enough to strike the plaintiff 1 . In like manner, if the defendant should cause the plaintiff to flee in order to escape violence, he may be guilty of an assault, though he was at no time within reach of the plaintiff; it is enough that flight or concealment becomes necessary to escape the threatened evil. For example : The defendant on horseback rides at a quick pace after the plaintiff, then walking along a foot-path. The plaintiff runs away, and escapes into 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 . The essential idea of an assault appears to lie in the attempt, real or apparent, to do the harm. The attempt, as we have Attempt, real seen, need not be real ; enough that it reasonably or apparent. appears to be real. But does this mean that the attempt need not be an attempt upon the plaintiff ? A makes an assault with a pistol upon B ; C who is present reasonably supposes that the assault is made upon him, — either upon him alone, or upon himself and B ; is A liable to C? There is reason to think that he is; the case contains all the elements of the idea of an assault ; there is an ' apparent attempt ' to do hurt to C. Accordingly several persons — perhaps half-a-dozen persons — might have an action for an assault not intended against any of them. But this would be true only of persons against whom it was reasonable to suppose, on the facts, that an assault was intended. The fact too should be emphasized, that there must have been an attempt, or reasonable ground to suppose an attempt, to do hurt, and this to the person of the plaintiff. This appears to be of the essence of an assault. 1 Stephens v. Myers, 4 Car. & P. 349. 2 Mortin v. Shoppee, 3 Car. & P. 373. 172 ASSAULT AND BATTERY [Sect. 2 § 2. Batteries : What must be Proved, etc. A battery consists in the unpermitted application of force by one man to the person of another. Proof of such fact is Definition: enough to make a prima facie case. A battery contact. therefore is distinguishable from an assault in the fact that physical contact is necessary to accomplish it. But there is another and deeper distinction. The distinction of contact is only a distinction of fact, and that too of an unneces- sary fact if that be all : because there would be a right of action without the contact. The deeper distinction is that a battery may be committed upon a man who was not assaulted, that is, who, but for the contact, might have no right of action. A battery is not an application of force by way of an attempt, real or apparent, to do hurt to the plaintiff's person ; it is only a n unpermitted application of force to the plaintiff's person. A different element enters into the definition of an assault. A man shoots at a mark, in a highway, contrary to law, and hits a person whom he did not see or suppose to be present. That, it seems, would be a battery, though there was no assault upon any one. A number of boys fire off a cannon in the highway, in violation of law. The cannon explodes and a piece of it hits the plaintiff. That too, it seems, would be a battery, though there was no assault. It follows that a battery is a distinct kind of wrong, and calls for consideration accordingly. So, on the whole, it seems. Turning now to the subject of contact, it should be stated that this need not be effected by a blow ; any forcible contact may be enough. 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 authority 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 . 1 Forde v. Skinner, 4 Car. & P. 239. 2 Cole v. Turner, 6 Mod. 149. Would there have been an assault, necessarily, in this case, had there been no contact ? Sect. 2] BATTERIES 173 Contact. 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 oft the plaintiff's hat. This is enough to constitute a battery 1 . Indeed it is not necessary that the plaintiff's body or cloth- ing be touched. To knock a thing out of the plaintiff'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 to the plaintiff a fall or concussion. For example : The defendant strikes or kicks a horse upon which the plaintiff is riding, or a horse hitched to a waggon in which the plaintiff is riding. This is a battery 2 . Again : The defendant drives a vehicle against the plaintiff'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 4 . What has already been said shows also that it is not neces- sary to constitute a battery that the touch or blow or other Battery from contact should come directly from the defendant's a distance. 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 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 5 . In earlier times it appears to have been considered that a 1 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.). 2 Clark v. Downing, 55 Vermont, 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. 3 Hopper v. Reeve, 7 Taunt. 698. 4 Id. It was of course held immaterial in this case whether the chair or carriage belonged to the plaintiff or not. 5 See Regina v. Cotesworth, 6 Mod. 172; Pursell v. Horn, 8 Ad. & E. 602. 174 ASSAULT AND BATTERY [Sect. 2 battery might be committed merely by negligence. For exam- ple : The defendant, a soldier, handles his arms so giigence can carelessly in drilling as to hit the plaintiff with constitute a them. This is deemed a battery, though the act was not intended 1 . The above-mentioned case of the running into the plaintiff's carriage might be another ex- ample 2 . But there is reason to doubt whether cases short of actual or virtual intention, or recklessness, would now be action- able without proof of damage ; which makes the distinction between cases of assault or battery and bodily injury by negli- gence. A rowdy might terrorize a whole neighbourhood if damage had to be proved for an assault or a battery, a ground of liability having no application to negligence. But a person may be guilty of a battery where his act is directly caused by another person, provided the defendant was Plaintiff not at tne ^ me committing a crime or a trespass. For the person in- example : The defendant, when about to discharge tended. a ^ un im } aw f u Hy a -fc 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 3 . Indeed in former times every blow which resulted from an intended act seems to have been looked upon as a battery 4 , in Blow received accordance with the general primitive idea, that if accidentally a man suffered harm at the hands of another, the defending 011 latter must justify if he could. The modern au- himseif. thorities strongly tend to a different view. There is no battery, according to the modern view, unless the blow itself was intentional or reckless, or unless the defendant was otherwise conducting himself as a trespasser at the time 5 . No 1 Weaver v. Ward, Hob. 134. See Holmes v. Mather, L. R. 10 Ex. 261. - See also Hall v. Fearnley, 3 Q. B. 919. 3 See James v. Campbell, 5 Car. & P. 372, where the defendant, in fighting with another, hit the plaintiff with his fist. 4 Sea Year Book 21 Hen. 7, 28 ; Lambert v. Bussey, T. Raym. 421 ; Weaver v. Ward, supra. Also Lex Aquilia, infra. 5 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 Cushing (Mass.), 292; Vincent v. Stinehour, 7 Ver- mont, 62; Nitroglycerine Case, 15 Wall. 524. See Spade v. Lynn R. Co., 172 Mass. 488 ; s. c. 168 Mass. 285. See also Pollock, Torts, p. 134, 6th ed. The old cases have fairly ceased to be law, both in England and in America. Sect. 2] BATTERIES 175 man when doing that which is rightful should be held liable for consequences which he could not prevent by prudence or care, though another suffer bodily or other harm thereby. Such is the modern theory of civil liability 1 . For example : The de- fendant's horse, upon which the defendant is lawfully riding in the highway, takes a sudden fright, runs away with his rider, and against all the efforts of the defendant to restrain him, runs against and hurts the plaintiff. This is not a battery or other breach of duty' 2 . 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 3 . Nor is there necessarily a right of action though (not merely the general action of the defendant, as in the last example, but) Blow in play ■ ^he s P eCi fi° ac ^ of contact be intentional, for it may other justifi- have been done in sport or play ; though sport able cases. 1111.1.1 i • i . i_ could doubtless be carried to such an extreme as to create liability. 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 condition ; or with the best of intentions he may be doing that which the defendant rightly thinks dangerous to life or property. In the first of these cases, an arrest of the plaintiff by laying on of hands will be justifiable; in the second case, an arousing or removing of him will be proper ; in the third, the laying on of hands to attract his attention is lawful 4 . In none of these cases is there liability, though the contact be against the will of the plaintiff 5 . If however the act were done in a hostile manner, the case would be different 6 . 1 Stanley v. Powell, 1891, 1 Q. B. 86 ; post, chap. xix. But compare Lex Aquilia, fr. 45, § 4, the latter part of which is to the effect that if I throw a stone at a man assaulting me and hit some one else, I am liable. 2 See Vincent v. Stinehour, 7 Vermont, 62, and example cited by Williams, C. J. ; and see Holmes v. Mather, supra, a still stronger case. 8 A case put by Martin, B., on the argument in Coward v. Baddeley, 4 H. & N. 478. See Brown v. Kendall, 6 Cushing (Mass.), 292; Holmes v. Mather, supra ; Stanley v. Powell, supra; Holmes, Common Law, 105, 106. 4 As to the last case, see Coward v. Baddeley, supra. 5 These however are properly cases of justification ; the justification accom- panies what otherwise would be actionable. 6 Coward v. Baddeley, supra. 176 ASSAULT AND BATTERY [Sect. 2 A battery may be committed in an endeavour to take one's own property from the wrongful possession of another. If the Taking one's P ar ty m possession should refuse to give up the own property property, the owner should resort to the courts to from another. u , • ., obtain it, or await an opportunity to get possession of it in a peaceful manner. Though entitled to take the pro- perty, he has no right to take it out of the hands of the possessor by unnecessary force. For example : The defendant, finding the plaintiff in wrongful possession 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 . §3. Justifiable Assault: Self-Defexce : '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 injury upon another. Administer- Among these are to be noticed the right of a parent ing correc- 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 schoolmaster (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. And so of injuries sustained in lawful sport, such as games of ball and physical contests generally; in such cases the defence resting on the ground of the lawfulness of the sport rather than of consent 3 . 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 1 Andre v. Johnson, 6 Blackford (Indiana), 375. But the defendant could of course keep his horse. Scribner v. Beach, 4 Demo (New York), 448, 451. 2 See Sheehan v. Stiirpes, 53 Connecticut, 481 ; Hathaway v. Bice, 19 Ver- mont, 102; Commonwealth v. Bandall, 4 Gray (Mass.), 36 ; Fertich v. Michener, 111 Indiana, 472. 3 Compare the Boman law as stated by Grueber, Lex Aquilia, pp. 226, 227. Sect. 3] JUSTIFIABLE ASSAULT 177 the ground that the plaintiff really caused the act of which he complains. In the language of the old law the wrong com- plained 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 defendant cannot be liable to him for it. The chief case to be noticed in which the justification of ' son assault demesne ' is allowed is self-defence. Wherever it Protection of appears to have become necessary to the defend- property. ant's protection to repel force by force, he may do so 1 . The right of self-defence 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 au- thority of law, to seize upon the property of which the owner is in rightful possession ; to do so is to take the risk of bodily violence. For example : The plaintiff, a creditor of the defend- ant, seizes the defendant's horses (which the latter is using) for the purpose of obtaining satisfaction of his debt. The defendant 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 defence, that the plaintiff caused the assault by having previously taken wrong- ful possession, or by having wrongfully detained the defendant's 1 Drew v. Comstock, 57 Michigan, 176; Miller v. State, 74 Indiana, 1. ' Vim vi repellere licere Cassius scribit idque ius natura comparatur.' Dig. 43, 10, 1, § 27. The difficulty is in determining when it appears to be necessarj' to do the thing complained of, and when one may strike or shoot without first 'retreating to the wall.' See Howland v. Day, 56 Vermont, 318. Retreat cannot be required where action upon the instant appears to be necessary for self-protec- tion. See Beard v. United States, 158 U. S. 550. Compare the Roman law. 'Sed et si quemcumque alium ferro se petentem quia occiderit, non videbitur iniuria occidisse : et si metu quis mortis furem occiderit, non dubitabitur quin lege Aquilia non teneatur. Sin autem cum posset adprehendere, maluit occi- dere, magis est ut iniuria fecisse videatur: ergo et Cornelia [lege] tenebitur.' Dig. 9, 2, 5 pr. (i.e. Lex Aquilia, fr. 5 pr.); Grueber, Lex Aq., pp. 9-11. " See Cluff v. Mutual Benefit Life Ins. Co., 13 Allen, 308; s. c. 99 Mass. 317 ; Scribner v. Beach, 4 Denio (New York), 448. B. T. 12 178 ASSAULT AND BATTERY [Sect. 3 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 posses- sion, 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 proportion to the provocation, the act would then be, in the old law phrase, still true in legal effect, ' his own battery,' and not the plaintiff's ; or again, in the technical lan- guage of the old pleading, the plaintiff's reply was, and still in effect is, that the tort was ' de injuria sua propria,' — the defend- ant'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, knocking her down several times, upon her refusal to quit the defendant's house. The plaintiff is entitled to recover 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 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 forcibly 5 . In the next place it is to be observed that a person may not only make reasonable defence of his own person, and of the pos- session of his own property ; he may do the same Reasonable n • t- -i defence of towards the members of his own family when at- members of tacked, 6 , and perhaps also towards the inmates of a ones family. '. f r . house in which he is then receiving hospitality. 1 Ante, p. 176. 2 The allowable force in such a case was formerly expressed by the words (of pleading) 'molliter manus imposuit, ' — the defendant gently laid his hands upon the plaintiff. Compare Lex Aquilia, fr. 52, § 1 ; Grueber, pp. 169, 170. :i Scribner v. Beach, 4 Denio (New York), 448. 4 Gregory v. Hill, 8 T. R. 299. s See Scribner v. Beach, 4 Denio (New York), 448. 6 Black. Com. i. 429. Sect. 4] VIOLENCE TO ONE'S SERVANTS 179 Certain it is that a servant may justify a battery as committed in defence of his master 1 ; 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 ex- tent of repelling the attack, and no further. The defendant is not liable-'. A person may also justify the use of a proper amount of physical force as rendered in quelling a riot or an affray at the instance of a constable or other officer of the peace 3 , or perhaps of his own motion when no officer is present. § 4. 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 Double breach person to whom the violence is done, and, where of duty. suc } 1 p erson i s a servant or a child of the plaintiff, another breach to the person whom he or she was serving or assisting. It follows that each has a right of action against the wrongdoer in respect of the breach of his own individual right ; the servant or child for the violence (that is, for the assault or battery) and its proper consequences, and the master or parent for the loss of service or assistance 4 . There will be this difference however between the rights of 1 Reeve, Domestic Rel. 538 (3rd ed.). 2 Tickell v. Read, Lofft, 215. 3 Year Book 19 Hen. 6, pp. 43, 56; Bigelow's L. C. Torts, 270. 4 The relation of parent and child is for such purpose the relation of master and servant. That of course is not true of the relation of husband and wife ; but whether the husband alone could recover for a battery committed upon his wife without proving special damage, quaere? Quasre of the master's right of action where the servant has been hurt, to the master's damage, in a case in which the servant had taken the risk, as in some physical contest? If the contest was lawful, the master could not recover, unless the hurt was inflicted wrongfully; this, not because of the servant's consent, but because the contest was lawful. See ante, p. 176. Compare Dig. 9, 2, 52, § 4; Dig. 9, 2, 7, § 4; Grueber, Lex Aquilia, pp. 226, 227. If the contest were unlawful, could the servant's consent bar the master's claim to damages ? 12—2 180 ASSAULT AND BATTERY [Sect. 4 action of the master and the servant (using these terms generi- cally), that the latter will be entitled to recover judgment for the mere assault and battery, though no damage Distinction between mas- were actually inflicted ; while the former will be ters action entitled to judgment only in case he can prove 3Tifi spt*V3 nt's 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 1 . That is, the master must have sustained an actual damage 2 ; but if he has thus been injured, he is entitled to recover therefor, even though the defendant's act consisted only in violent demonstrations. For example : The defendants, by menaces and angry demonstrations against the plaintiff's ser- vants, cause them to leave and abandon the plaintiff's service. The defendants are liable ; though no bodily violence was com- mitted upon the servants 3 . The plaintiff must either have been entitled to require the services of the party assaulted or beaten, or he must have been Right to ser- in the actual enjoyment of them, if they were vice - gratuitous. A parent cannot maintain an action for an assault or a battery committed upon his child after the child's majority, unless he or she was then actually in the parent's service ; nor could the parent maintain an action for such an injury committed upon his child during the child's minority, if the parent had in any way divested himself of the right to require his child's services 4 . 1 The authorities upon this subject are mostly ancient, hut they are prob- ably still law. See Bigelow's L. C. Torts, 220, 227. - In the case of an assault or battery upon one's wife, the husband at common law joined in the action ; but the real right of action lay in the wife. And in times of servitude the master could, it seems, sue in trespass for an assault or battery committed upon his villein, even though the former sustained no damage. Bigelow's L. C. Torts, 227. * Year Book 20 Hen. 7, p. 5; Bigelow's L. C. Torts, 226. These are cases of the use of wrongful means; they are to be distinguished from cases of persuasion. See ante, chaps, iv., v. 4 Questions of this sort have generally arisen in actions for seduction. See ante, pp. 124-126. Sect. 4] VIOLENCE TO ONE'S SERVANTS 181 Some qualification of a master's right of action seems to be required when the loss of service caused by the assault was only an accidental or unexpected effect of the assault. Upon that idea it appears to have been laid down that if, in the course of performing a contract between the defendant and the plaintiff's servant, the defendant commit a battery upon the servant, which battery works incidentally a breach of the terms of the contract, the plaintiff has no right of action for the loss of service following. For example : The de- fendants, common earners of passengers, are paid by the plain- tiff's servant for safe passage from X to Y. On the way 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 agreement ; whereby the plaintiff loses the injured person's service for a period of nineteen weeks. The plaintiff is not entitled to recover ; the injury being deemed to be due to breach of duty to the servant alone 1 . By the common law, rights of civil action for injuries done to the person (and indeed all rights of action ex delicto, except Death of par- f° r the wrongful taking or detention of property ties. an d like acts 2 ) cease with the death of the party 1 Compare Alton v. Midland By., 19 C. B. n. s. 213; s. c. 15 Jur. n. s. 672; Fairmount By. Co. v. Stutler, 54 Penn. St. 375. See Taylor v. Manchester By. Co., 1895, 1 Q. B. 134, 140; id. 944; Harvard Law Bev., Nov. 1895, p. 215; post, Negligence. The contract-duty (of service in the example) may or may not be the only duty created in the case. If I buy a gun for myself only, the contract-duty of the seller in regard to the proper making of the gun is to me alone. See Meux v. Great Eastern By. Co., 1895, 2 Q. B. 387, 390. But if the seller understands that the rights of another are involved,— that another also is to use the gun,— then there is a duty to that person as well as to me. Laugridge v. Levy, 2 M. & W. 519 ; s. c. 4 M. & W. 338, Exch. Ch. See also Thomas v. Winchester, 6 New York, 397. The real reason then for the decision in the example of the text appears to be, that the defendant did not know of the rights of any one but the servant. Duty imports observed or observable danger. Ante, p. 12. 2 Ante, pp. 45, 46. See Phillips v. Homfray, 24 Ch. Div. 439; also the early statutes, 4 Edw. 3, c. 7, 25 Edw. 3, st. 5, c. 5, and the modern one, 3 & 4 Wm. 4, c. 42 ; Pollock, Torts, 65, 6th ed. And Lord Campbell's Act, 9 & 10 Vict. c. 93, gives a right of action to the personal representative 'for the benefit of the wife, husband, parent, and child of the person' killed. See Seward v. The Vera Cruz, 10 App. Cas. 59 (overruling The Franconia, 2 P. D. 163) ; Pym v. Great Northern By. Co., 4 Best & S. 396, Ex. Ch.; Bulmer v. Buhner, 25 Ch. D. 409. 182 ASSAULT AND BATTERY [Sects. 4, 5 injured or of the wrongdoer. ' Actio personalis moritur cum persona.' And this rule, though not without strong doubts, has been held to apply to actions by masters for 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 be- tween the time of the injury of the servant and his death, where death was not immediate 2 . § 5. Felony There is an old formula of the law that ' trespass is merged in felony' ; and assault or battery is a trespass. But the mean- 'Tr ass ing of this maxim is somewhat uncertain. The merged in better view, however, so interprets it as materially to modify if not destroy its force in the natural sense of the language ; for it has been considered to mean only this, that where the wrongful act amounts to felony, the injured party ought first, in duty to the public, to see that the cause is prosecuted criminally to conviction (or at least wait until that is done by some one) unless the failure can be excused. That condition performed, he may sue the offender ; otherwise not 3 . But it is admittedly difficult to apply the rule, at least if it is considered to be the duty of the injured party to prosecute; for how could such a duty be enforced 4 ? 1 Osborn v. Gillett, L. R. 8 Ex. 88, Bramwell, B., dissenting strongly. See also Pollock, Torts, 60-64, 6th ed. 2 Baker v. Bolton, 1 Camp. 493; Osborn v. Gillett, L. R. 8 Ex. 88, 90, 98. See also Insurance Co. v. Brame, 95 U. S. 754; Harvard Law Rev., Dec. 1900, pp. 290, 291. 3 Pollock, Torts, 197-200, 6th ed. See Ex parte Ball, 10 Ch. Div. 667, 673; Roope v. D'Avigdor, 10 Q. B. D. 412; Wells r. Abrahams, L. R. 7 Q. B. 554 (casting doubt upon Wellock v. Constantine, 2 H. & C. 146). 4 See Wells v. Abrahams, supra, at p. 563. CHAPTER IX False Imprisonment Statement of the duty. A owes to B the duty not to impose a total restraint upon J3's freedom of locomotion. The terms ' writ,' ' warrant,' ' precept,' and ' process ' are, in this chapter, used as equivalents, wherever it is not necessary to distinguish them. 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 decision 1 . A writ is some- times absolutely void for irregularity 2 , sometimes only voidable. Since 1869 arrest in civil suits has been prohibited, except in a few special cases 3 , so that the particular facts of many of the older authorities no longer appear ; but the principles upon which they rested have not been changed. § 1. Nature of the Restraint: What must be Proved, etc. A false imprisonment consists in the total, or substantially total, restraint of a man's freedom of locomotion 4 . Proof of such restraint will make a prima facie case. The act may Definition. n . , , . . .,, . be committed not only by placing a man within 1 See Everett v. Henderson, 146 Mass. 89. 2 As a writ in execution of a judgment which has been discharged to the knowledge of the person suing out the same. Deyo v. Van Valkenburgh, 5 Hill (New York), 242. 3 32 & 33 Vict. c. 62, § 4. 4 Bird v. Jones, 7 Q. B. 742, 7">2 184 FALSE IMPEISONMENT [Sect. 1 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 imprison- ment; and though this be effected without actual contact of the person, it will be presumptively actionable. Any demonstration of physical power which, to all appearance, can be avoided only by submission, operates as effectually to constitute an imprisonment, if submitted to, as if any amount of force had been exercised. For example : The defendant, an officer, says to the plaintiff, ' I want you to go along with me,' with a show of authority, or of determination to compel the plaintiff to go. This is an imprisonment, though the defendant do not touch the plaintiff 2 . A person may also be imprisoned, though he had not the full power of locomotion before the restraint was imposed. It Power of appears to be sufficient if his will has been so over- movement, come that he would not attempt to escape the restraint if he had the physical ability of locomotion. For example : The defendant, a creditor of the plaintiff, goes with an officer to the plaintiff's house, 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 de- liver 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 . The submission therefore to the threatened and reasonably apprehended use of force is not to be considered as a consent to the restraint, within a maxim which has frequent application in the law of torts, 'volenti non fit injuria.' And the imprisonment continues until the party is allowed to depart, and is involuntary until all general restraint ceases, and the means of effecting it are removed 4 . i Lib. Ass. (22 Edw. 3), p. 104, pi. 85. 2 Brushaber v. Stegeinann, 22 Michigan, 266, 268. See Hill v. Taylor, 50 Michigan, 54!). 8 Grainger v. Hill, 4 Bing. n. c. 212. 4 Johnson v. Tompkins, Baldwin (U. S. Federal Court), 571, 602. Sect. 2] ARRESTS WITH WARRANT Is;, It is not enough that restraint is imposed upon one's freedom of proceeding in a particular, desired direction. The detention Circumscrib- must be such as to cause escape in any direction ing restraint. t amount to a breach of the restraint; the restraint should be circumscribing, except perhaps where the only place of escape is an almost impassable one. For example : The defend- ant, an officer, stationed at a particular point to prevent persons from passing in a certain direction, restrains the plaintiff from passing that way, but leaves another way open to him, of which however he does not wish to avail himself; and thus detained the plaintiff stands there for some time. This is not an imprison- ment 1 . It follows from the last proposition, and from what had been stated before, that a person detained within walls is none the Prison wails iess imprisoned by reason of the fact that he may not necessary. ma k e an escape through an unfastened window or door; since such an act would be a breach of the restraint. If it would not be, there is no imprisonment ; supposing that the unfastened door or window affords a ready means of escape. § 2. Justification : Arrests with Warrant Supposing the restraint imposed to amount to an imprison- ment, it is proper next to consider how the presumptive right of Justifiable action for such an act can be overturned. How is arrests. ft ^ De snoW n that the imprisonment was not unlawful ? In other words, how is the act, in technical language, to be justified ? This may be done in several ways, all of which however will be passed over except such as relate to the adminis- tration of justice. Of justifications of that kind the most com- mon and the most important arises where an officer has made an arrest under a lawful warrant of a court of justice. This will 1 Bird v. Jones, 7 Q. B. 742. 'A prison may have its boundary large or narrow, invisible or tangible, actual or real, or indeed in conception only; it may in itself be movable or fixed; but a boundary it must have, and from that boundary the party imprisoned must be prevented from escaping; he must be prevented from leaving that place within the limit of which the party imprisoned could be confined.' Id. Coleridge, J. 186 FALSE IMPRISONMENT [Sect. 2 now be taken for special consideration. Arrests without warrant by officers or by private citizens will follow in a distinct section. It is to be observed at the outset that the officer, in execut- ing his process, must arrest the person named in it. If he do Arrest of n °t, though the arrest of the wrong person was wrongperson. ma de 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 «/. 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 1 . If however the plaintiff, though not the person intended 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 commits no breach of duty in making the arrest. The plaintiff's action is a consent, and something more. For example : The defendant, a sheriff, arrests the plaintiff under process of court, upon a representation made by her that she was E. M. D., and the person against whom the writ had issued, with the intention of procuring the defendant to arrest her under his writ. The defendant, believing the representation to be true, makes the arrest. This is not a breach of duty' 2 . The officer's process however should so describe the person to be arrested that he may know whom to arrest ; or, rather, Description of that a person whom he proposes to arrest may person. know whether to resist or submit. If the warrant | be defective in this particular, the officer acts at his peril in , serving it; and he will be liable to any one whom he may arrest under it. For example: The defendant, a constable, arrests the 1 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. - 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. Sect. 2] ARRESTS WITH WARRANT 187 plaintiff under a warrant reciting the commission 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 1 . It follows that the officer may be liable if there be a misno- mer in the warrant of the person intended, though the person actually meant was arrested, and that too (in other respects) on legal grounds. For example : The defendants cause the plaintiff, whose name is Eveline, to be arrested under the name of Emeline in the warrant. This is a breach of duty, though the plaintiff, in her proper name, was legally liable to such an arrest 2 . But the case would have been different had the plaintiff been known alike by either name 3 . The officer also loses the protection of his warrant if he fails to act in 'accordance with the duty enjoined by it. He must Tenor of follow the tenor of his process, and not surpass his process to be authority. For example : The defendant arrests the plaintiff beyond the precincts named in the warrant. This is a false imprisonment 4 . It is further to be noticed that, though the process and arrest be valid, the protection of the officer may be lost by Oppressive oppressive or cruel conduct. For example : The conduct. defendant, charged with a warrant simply to take the body of the plaintiff, unites with the person at whose in- stance the arrest is made in illegally extorting money from the plaintiff by working upon his fears. The defendant is liable for a false imprisonment 5 . The officer's protection will not extend to any detention after the warrant has expired. The warrant, however valid at first, 1 Miller v. Foley, 28 Barbour (New York), 630. 2 Scott v. Ely, 4 Wendell (New York), 555. 3 Griswold v. Sedgwick, 1 Wendell (New York), 126. 4 This is too fundamental to have been much agitated in the courts. No authority is needed for the example. 5 Holley v. Mix, 3 Wendell (New York), 350. In such a case the process appears to be used as a mere subterfuge to cover an unlawful purpose and act. Hence it is that not merely the subsequent act but the arrest itself is unlawful. See post, chap. x. § 3, Trespass ab initio. 188 FALSE IMPRISONMENT [Sect. 2 will not justify such an act. If the officer has reason for Detention holding the prisoner after the expiration of the after process warrant, he must procure new process. He can as exp re . h ld the prisoner only for a reasonable time before his examination; after that time the warrant loses its life. For example : The defendant arrests the plaintiff, and takes him before a magistrate on a charge of larceny, detaining him for a period of three days, in order that the party whose goods had been stolen might have an opportunity to collect his witnesses and prove the crime. This is a false imprisonment, the deten- tion 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 otherwise illegal manner, he has mi right to detain the party en any valid process which mav 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 permitted to go at large, and then arrested under the valid warrant. For example : The defendant improperly arrests the plaintiff with- out a warrant, and while holding him in custody delivers him to an officer. The defendant afterwards 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 im- prisonment 3 . The principle to be derived from the cases (to restate this important doctrine in the language of the courts) is then that where the officer legally arrests the party in one action, the arrest operates virtually as an arrest in all the actions in which the officer holds valid writs against him at the time : for it would be an idle ceremony to arrest the party in the other cases. And this detainer will hold good, though the court may, upon col- lateral grounds, unconnected with the act of the officer, order the party to be discharged from the first arrest. But where the 1 Wright v. Court, 1 B. A C. 596. The prisoner should have been taken before a magistrate at once. 2 Hooper v. Lane, 6 H. L. Cas. 443. 3 Barratt v. Price, 9 Bing. 56(5. Sect. 2] ARRESTS WITH WARRANT 189 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 1 . 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, that is, not fully executed, 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 permitted 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 volun- tarily permitted him to escape immediately after the arrest. So at all events it was held under the old law. For example : The defendant arrests the plaintiff in civil process, and on the following day releases him upon the latter's request. Two days afterwards the defendant rearrests the plaintiff on the old pro- cess and commits him to gaol, 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 2 . In regard to criminal cases, there has been some conflict of i authority concerning the right to take the prisoner without newl process. It has sometimes been decided that the prisoner may be so retaken 3 . In later decisions, this doctrine has been denied to be law, except in so far as it may apply to the case of a prisoner who, after escape from gaol 4 , has returned and given himself into! 1 Tindal, C. J., in Barratt v. Price, and Williams, J., in Hooper v. Lane, supra. 2 Atkinson v. Matteson, 2 T. R. 172. 3 Clark v. Cleveland, 6 Hill (New York), 344. In this case the prisoner had been let to bail in the wrong county, and then released from custody ; and, in an action by him for malicious prosecution, it was held that the plaintiff was still liable to arrest under the original warrant, and that therefore, the proceed- ings not being terminated, the action could not be maintained. 4 That is, after the warrant had been executed. 190 FALSE IMPKISONMENT [Sect. 2 the custody of the officer ; in that case the prisoner can be de- tained under the old warrant. And this appears to be the true rule and distinction. For example : The defendant, an officer of the peace, clothed with a warrant to arrest the plaintiff upon a charge of larceny, executes the same upon her, and takes her before a justice of the peace, who receives her recognizance to appear for trial at another court upon a certain day. She is then discharged from arrest. No court is held at the place and time stated. Afterwards the defendant rearrests her upon the old warrant, and takes her before another magistrate. This is a false imprisonment 1 . 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 void on its face; 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 2 . Now a writ will be void on its face (1) if it be materially When process defective in language ; an example of which defect is void. ma y b e seen j n ^g case a b ove stated, where the writ failed to show who was intended. A writ will be void on its face (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 3 . A writ will be void on its face (3) where the court, though having jurisdiction over the subject-matter of a proceeding, has no authority to institute suit by a warrant. For example : The defendant, an officer, executes a warrant for the arrest of the 1 Doyle v. Eussell, 30 Barbour (New York), 300. 2 Tarlton v. Fisher, 2 Doug. 071; Deyo v. Van Valkenburgh, 5 Hill (New York), 242. 8 Stephens v. Wilkins, 6 Barr (Pennsylvania), 260. Sect. 2] ARRESTS WITH WARRANT 191 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 summons being the only process allowed. The writ is void, and the defendant is liable 1 . In such cases, the writ showing its invalidity upon its face, the officer is not bound to serve the process. The effect of the officers must second and third of these rules is to require the know the officer to know the general extent of the jurist lie- diction of the tion of the court which he is serving. Further court. than this the law does not go; and in other cases the officer will be protected, though his writ, being voidable, is liable to be set aside for error, or even though it is actually void. Cases of this kind are always within the limits of the court's general jurisdiction; and the officer is not liable, since, though bound to know the extent of the court's jurisdiction, he is not presumed to know th6 nature and propriety of all the proceedings in a cause. If the officer does in fact know that the ' court has no jurisdiction, then, by some authorities, the process is deemed to be void on its face 2 ; but the better rule is, that an officer should not be permitted to refuse to serve process be- cause merely of his own knowledge — or interpretation of facts, for that is what it would come to. Hence he should not be liable!for serving the process in such a case 3 . If the writ does not indicate its invalidity on its face, the officer is ordinarily safe, though the writ ought not to have issued. To put the case in the form of a more general proposition, as laid down upon great consideration, a ministerial officer is Process protected in the execution of process, whether the within the same issues from a court of limited or of general diction 1 o^the jurisdiction, though such court have not in fact court, but in- 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 there- in to apprise the officer that the court has not authority to order the arrest of the party named in the process. For example : The 1 Shergold v. Holloway, 2 Strange, 1002. 2 Tellefsen v. Fee, 168 Mass. 188, Knowlton, J., dissenting. 3 Wilmarth v. Burt, 7 Metcalf (Mass.), 257, 260, 261, Shaw, C. J.; Tierney v. Frazier, 57 Texas, 437, 440, 441 ; also cases cited in Tellefsen v. Fee, supra. 192 FALSE IMPRISONMENT [Sect. 2 defendant, a constable, arrests the plaintiff under a warrant from a justice of the peace issued upon a judgment against the plain- tiff in an action within the jurisdiction of the court. The court has authority in such cases to issue a warrant, but in this par- ticular instance the suit has not been instituted by the issuance of the necessary process for the appearance of the then defend- ant, now plaintiff. The defendant has violated no duty to the plaintiff, and is not liable, though the court had no authority to issue the warrant under such circumstances, the process not indicating the fact \ Again : The defendant, an officer, arrests the plaintiff, a member of Parliament, privileged at the time from arrest, the writ not indicating the fact. This is not a false imprisonment' 2 . The clerk of the court will also probably, like the officer who serves the precept, be liable in case he made out the writ in a When the defective form. He has done that which he has clerk is liable. 110 right to do, and is therefore forbidden to do; and he must accordingly stand upon the same footing with the officer. The clerk may also be liable when the officer who serves /the writ is not liable. And this will be the case whenever the writ, though regular on its face (and hence a justification to the officer), was issued without orders of the court, under circum- stances in which such issuance is not by law allowed. For ex- ample : The defendant, clerk of an inferior court, issues a writ of capias on which the plaintiff is arrested, without the presence or intervention of the court, upon a default of the plaintiff, as to the granting of which the law requires that the judge should exercise certain judicial functions. The defendant is guilty of a breach of duty, and is liable to the plaintiff; and this too though he only conformed to the usual practice of the court in such cases, since a court cannot delegate its judicial functions 3 . 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 different however if, while the proceed- i Savaeol v. Boughton, 5 Wendall (New York), 170. 2 Tarlton v. Fisher, 2 Doug. 671. 3 Andrews v. Marris, 1 Q. B. 3. Sect. 2] ARRESTS WITH WARRANT 193 ing was within the jurisdiction of the court, the particular act merely, commanded by the court, was in excess of its jurisdic- tion, without the clerk's knowledge. The clerk is merely a 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 imprisonment of the plaintiff for a period of thirty days, after a certain date, upon failure to conform to an order of court : when the order of commitment should have required an earlier arrest. The defendant is not liable, though the judge (as will be seen) would be 1 . The judge of an inferior court, if he authorizes the arrest, isfh liable whenever the officer, acting in strict accordance with his'.. ' When the precept, is liable; provided the precept be not void'* judge is liable. f or defective language. As the judge does not } make out the writ, he cannot be liable for such defect ; and the clerk is not his agent or servant-'. In other cases, that is when the court has not jurisdiction of the cause, the proceeding is coram non judice ; the court loses its judicial function, and the judge becomes a mere private citizen 3 . More than this, the judge may be liable when the officer is not. This will be true whenever the judge has plainly exceeded his jurisdiction, though in a matter not affecting the officer. For example : The defendant, a justice of the peace, fines the plaintiff under the game laws, as he may do, and then sends him to gaol without any attempt to levy the penalty upon his goods, which he has no right to do. He is liable for false imprison- ment ; though the officer who executes the writ is not 4 . 1 Dews i?. Eiley, 11 C. B. 434. 2 Carratt v. Morley, 1 Q. B. 18. 3 The Marshalsea, 10 Coke, 68 b; s. c. Bigelow's L. C. Torts, 278, note. 4 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 are conflicting. See ante, p. 191. B. T. 13 194 FALSE IMPRISONMENT [Sect. 2 When the question of the court's jurisdiction turns on matter of fact, it is laid down as well-settled that a judge of a court of record with limited jurisdiction, or a justice of the peace acting judicially with special and limited authority, is not liable to an action of trespass (of which the action for false imprison- ment is an example) for acting without jurisdiction, unless he had the knowledge, or means of knowledge of which he ought to have availed himself, of that which constitutes the defect of jurisdiction 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 certain classes of civil offences committed within his district, orders the arrest of the plaintiff, on suit brought against him by a third person, for an offence committed without his district. The defendant how- ever has no knowledge that the act was committed beyond his district, nor is he put upon notice of the fact by anything arising before the arrest. He is not liable for a false imprisonment 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 question of plain law, the judge granting the writ 5 acts at his peril ; and then if he order the arrest of an individual when he has no jurisdiction, not determinable on facts, he will be liable for false imprison- ment. For example : The defendant, judge of a court of record of limited jurisdiction, directs the arrest of the plaintiff for con- tempt of the process of the court, and commits him to gaol. The commitment is unauthorized, and is made under a mistake of plain law about the powers of the defendant, and not under 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. lladnor, 8 East, 113, 119. A distinction must however be noticed (which was pointed out in Pease v. Chaytor) between a proceeding to prevent the enforce- ment of a judgment in such a case — that would be proper — and an action against the judge of the court, as in the example. 4 Id. In such a case, the suit would properly be an action for malicious prosecution. '•> That is, the magistrate originally acting; not, it seems, a superior judge to whom the case may have been taken. Sect. 2] ARRESTS WITH WARRANT 195 mistake as to the facts; the statute requiring that the process (under the circumstances) should have been issued by the court of another county. The defendant is liable 1 . From the statement of the foregoing principles and examples, 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 circumstances in which the act was improper: (4) that the officer and the clerk may be liable; as where the writ con- tains substantially defective language: (5) that all three maybe liable; as where the whole cause, in the course of which the writ is issued (at the command of the judge), is without the jurisdic- tion of the court. This is not all. The liability for a false imprisonment may extend to the attorney at whose instance the proceeding was Liability of begun, and, further still, to his client who author- attorney: act [ ze( \ him to begin it. Indeed, this will alwavs be of judge on ° . •> false repre- the case wherever it can be properly said that the sentations. wrongful imprisonment was ordered or participated in by the client. But of this, further below. 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 the attorney's or his client's 2 ; the attorney or client has set not a ministerial but a judicial officer in motion 3 . If this be the extent of the connec- tion of the attorney and client with the arrest, neither can be 1 Houlden v. Smith, 14 Q. B. 8-41. 2 Cooper v. Harding, 7 Q. B. 928; Williams v. Smith, 14 C. B. x. s. 596; Smith v. Sydney, L. K. 5 Q. B. 203. 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 muKistrate] is not liable in an action for false imprisonment, 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. 13—2 196 FALSE IMPRISONMENT [Sect. 2 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 1 . It is laid down however 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, and of his client whom he represents 2 . The consequence is, that both are liable for false imprisonment upon the execution of the warrant, even though they take no further steps in the matter than those involved in obtaining the same. 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 material misrepresentations made in an affidavit upon which the warrant is awarded, on account of which misrepre- sentations the warrant is, after the plaintiff's arrest, set aside. They are both liable 3 . Again: The defendant, by his attorney, in a former suit against the now plaintiff, procures the arrest therein of the last named under a writ issued by mistake against a person not bearing the name of the present plaintiff. This is 1 Carratt v. Morley, 1 Q. B. 18. The author withdraws his criticism on this case, made in his Leading Cases on Torts, p. 280. The client had done nothing but to ask for a writ; and the court, acting judicially, granted it. The act was therefore the act of the judge, and not of the party. The latter, to be liable, must either have directed the execution of the writ after its issuance, or have obtained it from the court in an irregular manner, or have participated in the execution of it. 2 Williams v. Smith, 14 C. B. n. s. 596 ; Codrington v. Lloyd, 8 Ad. " n le ss it appear to be absolutely void, be set aside For if the process be merely voidable, it is valid unless void. un ^{\ 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 procures the arrest of the plaintiff on a warrant issued upon a judgment which the former knows to have been discharged ; and the plaintiff sues for false imprison- ment without first having the process set aside. The action is maintainable; the process being absolutely void 2 . Again: 1 Hopkins v. Crowe, 4 Ad. & E. 774. 2 Deyo v. Van Valkenburgh, 5 Hill (New York), 242. Sect. 3] ARRESTS WITHOUT WARRANT 199 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 convic- tion in such a case. The defendant is liable for false imprison- ment, though the wrongful convictions be not first quashed 1 . In both civil and criminal cases however the action for false imprisonment is to be distinguished from a suit for malicious Malicious prosecution. The process under which an im- prosecution prisonment was made may have been, as regards s inguis e . ^ e p ar ty or parties sued for the tort, either void or voidable 2 ; and, in such a case, the action is maintainable without proof of malice, or of want of probable cause, or of the termination of the prosecution. In an action for malicious prosecution however it matters not whether the writ was void, voidable, or valid ; the suit is for an unlawful prosecution, and to make such a case the plaintiff must prove the set of facts just stated. § 3. Arrests without Warrant It is not necessary however, in all cases, that an arrest for an infraction of the law should be made under authority and by occasions for command of a warrant. There are occasions on acting with- which the utmost promptness of action is required for the attainment of the ends of justice in the apprehension of law-breakers ; and the necessities of society have in such cases furnished a justification for the arrest of 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 warrant, issued upon 1 Crepps v. Durden, 2 Cowp. 040. In this case there was no arrest, but merely a levy on the plaintiff's goods for the amount of the penalty ; but the principle would be the same. 2 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. 200 FALSE IMPRISONMENT [Sect. 3 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 con- sidered justifiable upon the above-stated ground are well de- fined. In the first place, it must be well understood that the right to make such arrests is confined altogether to infractions of the criminal law. In no case can an officer make an arrest in a civil cause without the protection of a warrant. It may be true, as has already been stated, that, in cases of the release of a prisoner arrested on process in a civil action, the officer may retake 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 w T arrant, is when the arrest is made upon the Arrest on the spot, at the time of the breach of the peace. Such s P ot - a case comes directly within the reason above mentioned, namely the necessities of society; nor could there be any use of requiring an affidavit and warrant in such a case, even if the delay might not be fatal. The right thus to arrest on the spot applies equally to all breaches of the peace, whether the act be a crime or a misdemeanour. An arrest without warrant may also be made by an officer of the law, qualified for the making of arrests, upon ' suspicion on suspicion- °^ felony,' to use a common expression of the probable books. The meaning of this i.s, 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 re- ceiving or aiding in the concealment of stolen goods, arrests him without ;i warrant, and conveys him to gaol, where he de- tains the prisoner until he can make application to a magistrate for a warrant against him as a receiver of stolen goods. The Sect. 3] ARRESTS WITHOUT WARRANT 201 warrant is refused, and the prisoner at once discharged. The defendant is not liable 1 . In these cases, since the officer has no warrant to justify him, he has to show probable cause for the arrest. The officer's action is not a setting in motion of the courts, as it is in a proserin ion by a prosecutor or plaintiff; hence the difference, in regard to proving probable cause, between a suit for false imprisonment and one for malicious prosecution. The officer's 'suspicion' must of course, as above intimated, be a reasonable ground to suppose the prisoner guilty of a felony; that is, it must be such a strong suspicion as would justify a man of caution in entertaining a belief 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 plaintiff by arresting him without process of court-. For example : The defendant, a constable, arrests and imprisons the plaintiff, without process, under the following circumstances : The cart of the plaintiff, a butcher, is passing along the highway, when a person in the habit of attending fairs stops the cart and says to the officer (defendant), ' These are my traces, which were stolen at the peace-rejoicing last year.' The defendant asks the plaintiff how he came by the traces. The plaintiff replies that he saw a stranger pick them up in the road, and bought them of him for a shilling ; where- upon 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 8 . 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 Who decides ° * . probable the question before them. It therefore does not appear from the decision whether the question of cause. 1 Rohan v. Sawin, 5 Cushing (Mass.), 281. Note that the magistrate's sub- sequent action has no bearing on the officer's justification of probable cause. "- Process would justify the officer in such a case ; although the granting of it falls short of a judicial finding that there exists probable cause to believe the party guilty,— upon which, if there were such a finding, the officer might in principle be justified in acting even if he were not bound to act. But acting without process, the officer has to prove probable cause. The term ' probable cause' here, as in the chapter on Malicious Prosecution, is used for 'reasonable and probable cause.' 3 Hogg v. Ward, 3 H. & N. 417. 202 FALSE IMPRISONMENT [Sect. 3 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 1 ; in others, that it is for the court to say whether the facts proved show proper cause 2 . The point has however been finally decided in accordance with this latter view, though not without expressions of regret 3 ; making the rule to conform to that of actions for malicious prosecution. If the analogy furnished by the law of actions for malicious prosecution is to be fully carried out, and it appears reasonable that it should be, it will also be 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 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 4 . At common law, no valid arrest without a warrant can be made for a misdemeanour, except on the spot 5 . To arrest a man, without process, on suspicion that he has com- for mis- mitted a misdemeanour, although upon probable demeanour. cause for his arrest, is a breach of duty. For ex- ample : The defendant, a constable, arrests the plaintiff without a writ on the statement of J. M., that the plaintiff has com- mitted the offence of perjury, by wilfully and corruptly making a false affidavit in a judicial proceeding before the Honourable 1 Beckwith v. Philby, 6 B. & C. 635 ; Rohan v. Sawin, 5 Cashing (Mass.), 281; Broekway v. Crawford, 3 Jones (North Carolina), 433. 2 Hill v. Yates, 8 Taunt. 182; Davis v. Russell, 5 Bing. 354. 3 Lister v. Perryman, L. R. 4 H. L. 521, 531, 538, 539. 4 See ante, p. >n request of the defendant, to desist. Perceiving that the defendant intends to arrest him. the plaintiff flees and is pursued, overtaken, and arrested : the disturbance having previously ceased. The de- fendant is liable' 2 . In the case of affrays, however, an arrest may be made with- out a warrant not only during the actual breach of the peace, but so long as the offender's conduct shows that the public peace is likely to be endangered by his acts. Indeed, while those are assembled together who have been committing acts of violence, and the danger of renewal continues, the affray may be said to continue : and during the affrav. thus understood, the officer may arrest the offender not only on his own view, but even on the information or complaint of another. This is true even of an arrest by a private citizen 3 . For example: The defendant arrests the plaintiff without pro- cess 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 vi' the de- fendant resulting; in an affrav 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 affrav. The 1 Bowditch r. Balchin. 5 Ex. 378. See Commonwealth v. Carey. 12 Cushing (Mass.), 246, 252; Commonwealth v. McLaughlin, id. 615, 618. - Compare Baynes r. Brewster, 2 Q. B. 375, where the defendant, on such facts, was a private citizen: hut the rule would have been the same had he been an officer, as the language of Mr Justice Williams in that case show-. 3 Timothy v. Simpson. 1 Cromp. M. & R. 757 ; Baynes v. Brewster. 2 Q. B. 375, 3S6. 204 FALSE IMPRISONMENT [Sect. 3 defendant now gives the plaintiff into the custody of an officer. This is no breach of duty to the plaintiff l . The example given leads to the consideration of the nature of the right of a private citizen to arrest offenders without process of court ; for it is (probably) lawful for vate citizen such a person to make an arrest upon a warrant to make under the same circumstances in which an officer arrest. , , , could do SO. The rule of law in regard to arrests for misdemeanours by private citizens is the same as prevails concerning officers; they are entitled to make the arrest without process while the breach of the peace is going on, or (in accordance with the explanation given) still continues. And a private citizen has no right to make an arrest, without process, for a misdemeanour after its termination, though the breach of peace was committed about his own premises 2 . 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 com- mitted, 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 3 . 1 Timothy v. Simpson, supra. 2 Baynes v. Brewster, 2 Q. B. 375, 386. 3 Allen v. Wright, 8 Car. & P. 522. In Commonwealth v. Carey, 12 Cushing (Mass.), 246, 251, Chief Justice Shaw, in a dictum, states the rule thus: 'A private citizen, who arrests another ou a charge of felony, does it at the peril of being able to prove a felony actually committed by the person arrested.' But that statement, which was only a dictum, appears to be a mere slip. See McCloughan v. Clayton, 17 Rev. Bep. 669, and note by original reporter Lord Holt. CHAPTER X Trespass upon Property Statement of the duty. A owes to B the duty (1) not to break and enter B's close, in B's possession ; (2) not to take or interfere with B's possession of chattels. The term ' close ' signifies a tract of land, whether physically enclosed or not. ' Breaking and entering the close ' is an ancient term of the law, now nearly gone out of use, indicating an unlawful entry upon land. The term ' entry ' or ' unlawful entry ' will be used in the present chapter as synonymous with ' breaking and entering.' Wrongful taking and wrongful withholding possession of property are of course primitive wrongs ; but in early times possession was looked upon as like ownership in land at the present day — we still speak of a man's 'possessions' as of his ownership. The remedy of trespass (to property) was accord- ingly conceived of at first as a remedy for interference with actual possession. In modern times it has been found necessary, as will be seen later, to extend the conception of trespass (for no new remedy has been invented) to certain cases in which the possession is fictitious, — where there is or was only a right of possession, as in the case of the fiction of relation in regard to land, and the right to take possession of goods. Trespass between co-tenants is an extension of trespass in another way. Of these cases in their place. The action of trespass has accordingly always been called a ' possessory ' action. 206 TRESPASS UPON PROPERTY [Sect. 1 § 1. What must be Proved Trespass to land is an unlawful entry upon land ; trespass to goods is an unlawful taking or interfering with the possession Trespass °f goods. All other wrongful acts connected with defined. the trespass are aggravation of the wrong. Ac- cordingly, to prove an entry upon land in the plaintiff's possession, or the interrupting of the plaintiff's possession, or right to take possession, of goods is necessary to make, and will make, a prima facie case. § 2. 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 Possession in * s necessar y> apart from statute, for the plaintiff actions for to have had possession of the premises entered at respass. ^ e 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. If however the party had possession at the time of the entry, and the trespasser ejected him, it would not be necessary for him to recover possession before he could sue for damages for the wrongful entry and expulsion ; he had possession at the time of the trespass and disseisin, and that is sufficient for the purposes of such an action. He could not however recover damages for the loss sustained by reason of the disseisor's occupancy, until after a re-entry, or suit for recovery of posses- sion — a point further to be considered hereafter. On the other hand, possession at the time of the entry, if held under a claim of right, is prima facie sufficient in all cases to enable a person to maintain an action for an Possession x . . . without entry upon the land without his permission; and nght ' possession alone is not only prima facie but abso- Sect. 2] POSSESSION 207 lutely sufficient against all persons who have not a better right than the possessor 1 . It follows that one who is in possession of land under a claim of title, though without right, may recover for an entry by a wrongdoer ; that is, by one who enters with- out a right, or under one not having a better right. For ex- ample : The defendant enters without permission upon land in the possession of the plaintiff, whose possession is under a void lease. The defendant is liable 2 . But the defendant is not necessarily guilty of breach of duty to such a possessor by reason of the fact that he (defendant) does not own the land. He may still have a legal or an equit- able interest in the premises ; he may be a lessee of the land ; he may be a trustee of the estate ; he may be a licensee of one having a right of entry. In any of these cases he would be entitled to enter upon the premises, if he could do so without breaking the peace. A licensee of one having possession may make a peaceable entry against a wrongdoer, though a licensee has no interest whatever in the soil, and could have no entry against the will of a person entitled to the possession. For example : The defendant enters, without permission of the plaintiff, premises of which the plaintiff is wrongfully in posses- sion ; the act being done by direction of the owner of the land, who is entitled to possession. The defendant violates no duty to the plaintiff s ; though the case would have been different had he entered without authority of the owner 4 . If there be two persons in a close, each asserting that the premises are his, and each doing some act in the assertion of contested the right of possession, he who has the better title possession. or right is considered as being in possession : and the other is a trespasser 5 . The former is therefore in a position to demand damages of the latter for his wrongful entry. For example: The defendant is in possession of land without right, 1 Cotenancy makes an exception. See post, p. 213. 2 Graham v. Peat, 1 East, 244. 'Any possession is a legal possession against a wrongdoer.' Lord Kenyon. 3 Chambers v. Donaldson, 11 East, 65. 4 The subject of rights of entry in general will be considered hereafter, § 3. It is introduced here merely to show the consequences of possession. 5 See Reading v. Koyston, 2 Salk. 423. 208 TRESPASS UPON PROPERTY [Sect. 2 and so continues after the plaintiff, who is the owner, enters to take possession, ploughing the land. The defendant is guilty of trespass to the plaintiff 1 . Again: The defendant is in occupancy of land jointly with the plaintiff, claiming to be a tenant in common of the premises with the plaintiff. His claim however is unfounded, and the plaintiff is owner of the close. The defendant may be treated by the plaintiff as a trespasser 2 . If neither of the parties in occupancy has a right to the close, the question whether either of them has violated a duty to the other, supposing each to claim possession, will turn upon the ' exclusive priority of possession.' The one who first entered, if he took exclusive possession, will be entitled to damages against the other ; if he did not so take, neither can recover against the other. For example : The defendants claim a right to take cranberries in an unoccupied field under a license from one H. The plaintiffs have previously entered into possession of the land, and forbidden all persons by public notice to take cran- berries therefrom, except on certain conditions, with which the defendants do not comply. H, under whom the defendants claim, had entered before the entry of the plaintiffs; but neither H, nor the defendants, nor the plaintiffs have any right to the soil or the berries ; and neither ever had exclusive possession. The defendants have violated no duty to the plaintiff 3 ; and so in the converse case 4 . There is this important distinction between the law relating to possession of real property and that relating to possession of Possession of personalty : to enable a plaintiff to recover for personalty. trespass to realty, he must have had a real posses- sion 5 ; while a plaintiff may recover for trespass to personalty if he had a right to take possession, — in which case he is said to have constructive possession. To assimilate the two cases, it is often said that the right to take possession of personalty draws possession in law. Whoever then has a right to the possession 1 Butcher v. Butcher, 7 B. & C. 399. - Hunting v. Ilussell, 2 dishing (Mass.), 145. :; Barnstable v. Thacher, 3 Metcalf (Mass.), 239. 4 Id. 5 There is one exception, the case of possession of land by what is called ' relation'; of that, further on. See p. 215. This is the one true case of con- structive possession of realty, in regard to trespass. Sect. 2] POSSESSION 209 of a chattel, whether it be towards all the world or only towards the defendant, is in a position to sue for an interruption of his enjoyment thereof. For example : The defendant, with- out permission, takes goods out of the possession of A, after A has sold them to the plaintiff, but before they have been delivered to him. This is a breach of duty to the plaintiff 1 . What constitutes real possession however, as distinguished from a right to take possession, is one of the difficult questions Meaning of of the law, especially when it comes to the appli- possession. cation of definition to particular cases. Contact certainly is not necessary; it is enough for a man, so far as that is concerned, that no one else has possession, and that he has in consequence power to take the property into hand at will. In- deed, a man who is holding property of right has possession, against one who may be struggling or striving against him or others, on the spot or in court, to gain possession ; this follows from what has already been stated. That conception of the term ' possession ' which on the whole most nearly harmonizes with the authorities on specific situa- tions where there is no strife over the right, appears to be this : there must be (1) a power of control over property, and (2) a purpose to exercise the same for the benefit, at the time, of the holder, or facts from which such a purpose could be assumed if the mind were directed to the object of possession 2 . It is clear that without these two facts there is no true possession in the eye of the law ; but to say that there is possession in all cases with them would be to say that the authorities are in harmony. A mere servant may have 'detention' or custody, but, as servant, 1 Bacon's Abr. Trespass C. 2; Bigelow's L. C. Torts, 370. Queere, whether possession of personalty in itself will support an action, as e.g. the possession of a thief who is dispossessed by another thief? It is urged that mere possession is enough. Pollock & Wright, Possession, 91, 93, 147, 148. It may on the other hand be urged that only that sort of possession which is capable of ripening into a title should be protected, as e.g. the possession of a finder. In the Roman law a thief could not have the 'actio furti.' Dig. 47, 2, 11; id. 47, 2, 12, 1 ; Inst. 4, 1, 13. See also Buckley v. Gross, 3 Best & S. 56(5, 573, Crompton, J. As to the criminal law of such cases see Commonwealth v. Rourke, 10 Cushing (Mass.), 397, 399; Pollock & Wright, Possession, 118 et seq. 2 Compare London Banking Co. v. London Bank, 21 Q. B. D. 535, 542; and see Iiegina v. Ashwell, 16 Q. B. D. 190. B. T. 14 210 TRESPASS UPON PROPERTY [Sect. 2 can have no possession, according to current views, because a servant does not hold in his own right 1 ; but what of an agent'-, or a bailee for hire, or a tenant at will ? The authorities are not agreed. It is said that none of them has possession. Thus, some say of tenants at will, that both tenant and landlord can- not be in possession at the same time, and the landlord certainly is possessed in contemplation of law. Others treat both as having rights of possessors ; this in effect is certainly the legal view 3 . Agents and bailees for reward have possession, by the better view 4 . Indeed any bailee liable over to his bailor may, it seems, maintain trover 5 . Knowledge of the right appears to be unnecessary to posses- sion ; if a thing of value is delivered for me, I am presumed to accept it until I refuse. The delivery, whether I know it or not, is significant of my possession; enough that no one else has possession 6 . A reversioner or remainder-man after an estate for years can indeed maintain an action for injuries done to his interest, Rever ioner notwithstanding the fact that the land is in the and remain- possession of the termer. Injuries done to such der-man. interests are not however, in strictness of common- law ideas, trespasses. The trespass consists in the wrongful entry upon the land, and this is a tort to the tenant, not to 1 Year Book 13 Edw. 4, 9, 10, pi. 5; 21 Hen. 7, 14, pi. 21; Harris v. Smith, 3 Sergeant* Eawle (Pennsylvania), 20; Hampton v. Brown, 13 Iredell (North Carolina), 18. These are all common-law authorities; but the point is not free from doubt. See Holmes, Common Law, 226-228 ; Moore v. Robinson, 2 B. & Ad. 817; Mathews v. Hursell, 1 E. D. Smith (New York), 393; Reginat>. Ashwell, 16 Q. B. D. 190. Perhaps a reason in regard to the case of the servant is that his interest is too slight ; de minimis non curat lex. Then the criminal side of the case may he noticed ; if the servant has possession, the possession has been given to him by his master, and he cannot be guilty of larceny. 2 See Knight v. Legh, 4 Bing. 589, Best, C. J., holding that an agent might bring trover, as having possession. :i See Starr v. Jackson, 11 Mass. 519, where the cases are reviewed ; and see Markby, Elements of Law, § 388, 3rd ed. Tenant at will clearly holds for himself so long as he wills and is permitted to hold. 4 As to bailees see Claridge v. Tramways Co., 1892, 1 Q. B. 422. B Id. 6 It seems then that if an article is delivered to my servant, to be taken to me, and he makes off with it, with felonious intent, he is guilty of larceny from me. It was his felonious act, not the delivery of the article to him, that gave him possession. Sect. 2] POSSESSION 211 the landlord or remainder-man ; since it is an interference with the possession, which belongs to the tenant. For example: The defendant enters upon the plaintiff's land, let to another for years, in the assertion of a right of way, driving thereon his horses and cart, and continuing so to do after notice from the plaintiff to quit. The defendant has violated no duty to the plaintiff 1 . Damage done to the inheritance in the case of leasehold or mortgaged land is waste if committed by the tenant or mort- gagor, and a tort which may be deemed to be in Waste the nature of (but not strictly as) a trespass, if committed by a stranger. But whatever term may be applied to the act, it is a breach of duty to the landlord or mortgagee, for which he is entitled to recover damages. For example : The defendant, a tenant, or a mortgagor, or a licensee, or a stranger, cuts down trees on land owned by the plaintiff, or of which he is mortgagee or remainder-man, without the plaintiff's consent. This is a breach of duty to the plaintiff, and the defendant is liable to him in damages; though the plaintiff is not in pos- session 2 . A similar rule of law prevails in regard to injuries done to personal property held on lease or in pledge, or by a mortgagor in possession. For an injury done to the posses- property held sors interest merely, that is, for a simple unlawful on lease or in taking of the goods, the remedy belongs to the possessor alone ; but for an injury done to the re- version, or to the mortgagee if the goods be mortgaged, the landlord or the mortgagee is entitled to treat the act as a breach of duty to him and call for redress :i . For example : The defendant, a sheriff, levies on, sells and delivers goods in the possession of S, whose right to the possession rests upon an agreement by the plaintiff to convey the same to him upon the payment of notes given therefor. The defendant has not been 1 Baxter v. Taylor, i B. & Ad. 72. The action was 'case.' 2 See Young v. Spencer, 10 B. & C. 145; Page v. Robinson, 10 Cushing (Mass.), 99; Cole v. Stewart, id. 181. None of these are cases of actions by remainder-men, but they cover such cases in principle. The form of action at common law is 'case' and not trespass. s In 'case,' or trover, at common law. See Farraut v. Thompson, 5 B. & Aid. 826, where trover was brought. 14—2 212 TRESPASS UPON PROPERTY [Sect. 2 led by the plaintiff to suppose that the goods belong to S ; on the contrary, the defendant has notice, at the time of the levy, of the plaintiff's title. The defendant's act in disposing of the goods is a breach of duty to the plaintiff, and he is liable in damages ; though the right of possession is in S 1 . A man's close includes not only his actually enclosed land, but also all adjoining unenclosed lands held by him ; and if he Extent of con- ^ s m possession of any part of his premises, he is troi: unen- in possession of the whole, unless other parts are closed land. • i -\ ? c \ occupied by tenants for term of years or by per- sons who claim adversely to him. The owner has the ' power of control ' and the ' purpose to exercise the same ' for himself ; he is therefore in a proper position to recover damages for tres- pass committed in any part of his premises, the unenclosed as well as the enclosed' 2 . For example : The defendant, without permission, enters and cuts timber in an open woodland of the plaintiff, adjoining a farm upon which the plaintiff resides. The plaintiff is in possession of the woodland, and is entitled to recover 3 . The foregoing proposition in regard to possession of adjoining unenclosed land supposes that the party injured has a right to the possession of the enclosed premises actually occupied by him. One however who is in possession of land without title or right can have no such extended possession ; the rights of a bare possessor are limited by the bounds of his immediate occupation and control. For example : The defendant, having wrongful possession of the south end of a lot, cuts timber upon the north end thereof, lying without the limits of his actual 1 Ayer v. Bartlett, 9 Pickering (Mass.), 156. 2 Such possession is often called 'constructive,' but that term, like the term 'symbolical' possession, is apt to darken counsel. Possession is surely real when one's control can be extended over the property at any time. See Markby, Elements of Law, §§ 353, 359, 3G0, 3rd ed. 3 Machin v. Geortner, 14 Wendell (New York), 239 ; Jones v. Williams, 2 M. & W. 326, 331; Lord Advocate ?'. Blantyre, 4 App. Cas. 770, 791; Coverdale v. Charlton, 4 Q. B. D. 104, 118. '1 hold that there is no usage of the country, nor rule of the common law, nor any reason requiring a man to enclose his timber land, and that for any possible purpose that can be named the woods belonging to a farm are as well protected by the law without a fence as with one.' Tod, J., in Penn v. Preston, 2 Rawle (Pennsylvania), 14. Sect. 2] POSSESSION 213 occupation ; which timber has been purchased and duly marked by the plaintiff. The land on which the timber stood is not in the possession of the defendant, and the plaintiff is entitled to damages for the violation of his right of property ; though he has no right to the land 1 . Again: The defendant, without right or authority, enters upon an open woodland adjoining- enclosed land in the wrongful possession of the plaintiff. The act is no breach of duty to the plaintiff 2 . One of several cotenants, whether of real or of personal property, cannot maintain an action for acts relating to the common property, not amounting to an ouster ; because all the cotenants have equal rights of possession and property: For example : The defendant, co- tenant of land with the plaintiff, cuts and carries away there- from timber, at the same time denying to the plaintiff any right in the premises, but not withholding possession from him. The defendant has violated no duty to the plaintiff 3 . If, in the case of real estate, the act of the defendant co- tenant however amount to an ouster of the plaintiff from the possession of the common property, the act is a trespass 4 , and the defendant is liable ; provided, at least, an action of eject- ment would at common law be maintainable. For example : The defendant, being cotenant with the plaintiff of a certain room in a coffee-house, expels therefrom the plaintiff's servant, in derogation of the plaintiff's right of occupation. The defendant is liable to the plaintiff in damages ; since an action of ejectment for restoration to possession would lie 5 . 1 Buck v. Aiken, 1 Wendell (New York), 460. The plaintiff became possessed of the trees as soon as they were cut down by the defendant. 2 It is difficult to find judicial authority for this example, because, perhaps, of its simplicity. Its correctness is clear. 3 Filbert v. Hoff, 42 Penn. St. 97 ; Reading's Case, 1 Salk. 392. 4 This is an extension of the idea of trespass, as being a wrong to the plaintiff's possession, for as the defendant cotenant had a right to the entire possession, his exercise of that right even against one having the same kind of right could not in strictness be a trespass. 5 Murray v. Hall, 7 C. B. 441. Ejectment was originally an action of trespass, and has always included trespass. Hence, if that form of remedy may be used, trespass lies. See infra, p. 215, note. 214 TRESPASS UPON PROPERTY [Sect. 2 Whatever amounts, or if persisted in might amount, to an effectual privation of the associate tenant of participation in the Ouster and possession of the common property amounts to an ejectment. ouster, even though there be no actual expulsion or withholding of possession from him. For example : The defendant, cotenant with the plaintiff of a certain close, digs up the turf and carries it away, without the plaintiff's consent. This is an ouster, for which the defendant is liable to the plain- tiff in damages ; since, if the cotenant were permitted to take the turf, he would be entitled to dig away the soil below the turf, and might thus effectually deprive his fellow of his right to the possession 1 . If the criterion of this remedy between cotenants for an ouster be the question whether an ejectment would be main- tainable, it follows that an action for trespass in respect of goods held in common cannot be maintained by one cotenant against another; for an action of ejectment lies for the recovery of land only. Nor indeed is there any authority in opposition to this suggestion ; the question of the right of action having, so far as the reported authorities go, always arisen in regard to common rights in realty 2 . Some decisions in America have denied the remedy even when resorted to in cases of real property 3 . 1 Wilkinson v. Haygarth, 12 Q. B. 837. The defendant would not have heen liable to an action for trespass for taking and carrying away the growing grass or crops. Id. Accounting between cotenants was provided for by the statute of 4 Anne, c. 16, § 27, where one cotenant has taken more than his share of the profits. 2 See the cases cited in Bigelow's L. C. Torts, pp. 358-360. 3 Wait v. Richardson, 33 Vermont, 190. See also Bennet v. Bullock, 35 Penn. St. 364, 367. The subject has passed through four distinct stages. The following appears to be the history of it : — 1. By stats. 31 Hen. 8, c. 1 (1539), and 32 Hen. 8, c. 32 (1540), partition was allowed between joint tenants and between tenants in common, of lands. 2. When Littleton wrote, and later, an ousted cotenant of land for years could have ejectment ('ejectio firmae'), but not, it was said, trespass. Tenures, §§ 322, 323 (West, 1581). But see as to trespass, Fitzh. N. B. 208 H, before the statutes giving partition. (The writ quoted in Fitzh. is in favour of a prioress — hence before suppression of the monasteries, 1536. The writ however is not for breaking and entering the close, but for destroying things in it, and so making the close useless, like the cases in Coke now to be mentioned.) 3. Coke thinks damages could be recovered for ouster ; it was certain that trespass lay for destruction of the common property. Co. Litt. 199 b, killing Sect. 2] POSSESSION 215 In respect of personal property however it will be seen in the next chapter that an action for the conversion of the common chattel can be maintained in certain cases. The difficulty thus relates more to the form of action than to the substance of things. It may therefore be laid down, that for one tenant in common of personal property to withhold possession of the chattel from his associate, or to expel him from participation in the possession, or to appropriate to himself more than his share of the profits arising from the property, is a breach of legal duty to the latter, for which the law gives redress 1 . It has been observed that, in order to maintain an action at common law for trespass to land, possession of the land at the time of the wrongful entry is necessary. But the Entry and ° J J possession by common law does not allow a person who has relation. wrongfully entered, to take and enjoy the profits of the land, or to commit depredations upon the premises during his occupancy, without a reckoning. If the owner or person! entitled to the possession subsequently obtain possession of the\ land, the law treats him, by a fiction of relation, as having been in possession during all the time that has elapsed since he' was ejected from the premises 2 . The consequence is, that upon his re-entry he becomes entitled to sue for the damage which he has sustained at the deer in deer park or doves of a dove-cot, the essential things of the common tenancy. See Fitzh. N. B. ut supra (published in 1534). 4. In 1849 Murray v. Hall, 7 C. B. 441, ante, p. 213, held that trespass lay for an expulsion because ejectment lay, ejectment including trespass. See the precedents of declaration in ejectment, and the fact that ejectment is conclusive of the right to mesne profits. The Roman law appears to have been free from the difficulties of the English. For the wounding, as well as for the death of a slave, a co-owner had an action against his wrongdoing associate, from early times. Lex Aquilia, fr. 19—21 ; Grueber, pp. 56, 57. 1 The difficulty in the way of an action for trespass is that tbe defendant, tenant in common, had a right of possession, and that is inconsistent with the action. But in an action for the conversion of a chattel, it matters not that the defendant had a right of possession. The gist of such an action is not (as it is in trespass) the wrongful taking possession, but the conversion of the plaintiff's right. 2 Here is a case of true constructive possession in realty. See ante, p. 208, note. 216 TRESPASS UPON PROPERTY [Sect. 2 hands of the party who has usurped the possession. The remedy thus allowed is called an action_£oLi: .mesne ; profits ; that is, for the value of the premises during the period in which the plaintiff has been kept out of possession by the defendant. The plaintiff is also entitled to recover for all wrongful entries upon and damages done to his property in the meantime 1 . For example : The defendant enters upon premises of the plaintiff, of which the plaintiff has been disseised, and removes buildings therefrom. The plaintiff subsequently re-enters, and then brings suit for damage done to his property. He is entitled to recover 2 . There is conflict of authority in regard to the existence in the disseisee of a right of action for mesne profits against one Descent or who, before the plaintiff's entry, had succeeded the purchase : disseisor by descent or purchase ; that is, in the stranger s J \ _ , liability for language ol the law, against a stranger. On the mesne profits. one hancl^ it is said that to take a supposed title from another cannot be a trespass, and therefore mesne profits arising during the latter's occupation cannot be recovered of him 3 . On the other hand, the apparent injustice of this doctrine towards the owner has been urged, and the contrary conclusion reached 4 . Between the extremes of these rulings however there is an important class of cases in America, in regard to which there Entry under is little conflict. These are cases in which the legal process, defendant claims under one who has been let into possession under legal process. In cases of this kind it has been held that the defendant is not liable for mesne profits ; and it seems just, as well as conformable to the doctrine of 1 Liford's Case, 11 Coke, 46, 51. As to cases between landlord and tenant see (under statute) Smith v. Tett, 9 Ex. 307; Doe v. Harlow, 12 Ad. & E. 40; Doe v. Challis, 17 Q. B. 166; Pearse v. Coker, L. E. 4 Ex. 92. 2 Dewey v. Osborn, 4 Co wen (New York), 329. This case shows also that the party on re-entry is in a position to sue for every entry upon his lands made without authority. :i Liford's Case, 11 Coke, 46, 51; Barnett v. Guildford, 11 Ex. 19, 30; Case v. De Goes, 3 Caines (New York), 261, 263; Van Brunt v. Schenck, 10 Johnson (New York), 377, 385; Dewey v. Osborn, 4 Cowen (New York), 329, 338. 4 Holcomb v. Eawlyns, 2 Cro. Eliz. 540 (decided before Liford's Case); Morgan v. Varick, 8 Wendell (New York), 587. Sect. 2] POSSESSION 217 trespass upon lands, that one who has obtained possession under the disseisor by process of law should be presumed to be rightly possessed while the process (and the possession by virtue of it) continues in force. For example : The defendant enters and occupies land of the plaintiff under a writ of possession, executed against one who had wrongfully disseised the plaintiff. The writ is afterwards set aside, and the plaintiff resumes pos- session. The defendant is not liable for the profits consumed during his occupancy 1 . Again : The defendant enters and takes possession of the plaintiff's land under a license from one who has been put into possession against a wrongdoer under a writ of restitution, which writ is afterwards quashed. The defendant is not liable for the mesne profits 2 . It would seem also that purchasers, third persons, under judicial sales, should stand in a like situation; for, though they Entry under do not acquire title from parties let into possession judicial sale. under legal process, they take through the sheriff, who may reasonably be presumed to have authority to sell. And there is judicial authority for this view 3 . It would (pro- bably) be otherwise if the purchaser should be the person who had instituted the invalid proceedings under which he was let into possession 4 . The non-liability of the purchaser or heir extends however only to profits consumed by him. If such person sow the land, Extent of or cu * down trees, or grass, or crops, and sever liability. an( j carr y them away or sell them to another, the disseisee, after regress, may take the things severed wherever he can find them, or, if he cannot find them, recover their value of the person lately in possession. The regress of the disseisee has relation to the beginning of the last occupation, and the title to the things severed is therefore in him, which title the carrying away and disposing of cannot divest 5 . 1 Bacon v. Sheppard, 6 Halsted (New Jersey), 197, following Menvil's Case, 13 Coke, 19, 21. 2 Case v. De Goes, 3 Caines (New York), 361, following Menvil's Case, supra. 3 Dabney v. Manning, 3 Obio, 321. 4 See further Bigelow's L. C. Torts, 362-366. 5 See Liford's Case, supra. But of course if the owner take away the things severed, the defendant can recoup their value in trespass for the mesne profits. Id. 218 TRESPASS UPON PROPERTY [Sect. 3 § 3. What constitutes a Trespass to Property. The gist of an action for trespass to land consists in the wrongful entry upon it, and so in interfering with the owner's Damage not (or tenant's) right of entire possession. Any entry necessary. upon land in the rightful possession of another, without license or permission, is a breach of duty to the pos- sessor ; and this too though the land be unenclosed. It follows that an action is maintainable for such an entry, though it be attended with no damage to the possessor. For example : The defendant without permission enters upon unenclosed land in the lawful possession of the plaintiff, with a surveyor and chain- carriers, and actually surveys part of it, but without doing any damage. The act is a breach of duty to the plaintiff, and the defendant is liable at least to nominal damages 1 . The act is a breach of duty (though not in strict technical sense a trespass) even if the close entered be a private way, if Easement on ly the plaintiff has a right of passage along or interrupted. across it ; it matters not that the plaintiff has no right to the soil 2 . For example: The defendant deposits articles at various times in a passage-way to the use of which he has no right, and the plaintiff has a right, though the ownership of the soil is in another. The defendant is liable ; though he removes the articles in every instance before the plaintiff desires to pass out, and never in fact hinders the plaintiff in entering or in going out of the passage 3 . A close is deemed to have been broken and entered even though the act was not in fact committed within it but only against its bounds. To bring anything against Trespass to b . . . . ° ° bounds of a such bounds without permission is a trespass. e ' For example : The defendant, without permission, drives nails into the outer wall of the plaintiff's building, which 1 Dougherty v. Stepp, 1 Devereux & Battle (North Carolina), 371; Hobson r. Todd, 4 T. R. 71, 74. Buller, J.: ' The right has been injured.' Should the defendant repeat the offence he may be made to smart for it in damages. Williams v. Esling, 4 Barr (Pennsylvania), 486. • The action under the old system was 'case,' not trespass. 3 Williams v. Esling, 4 Barr (Pennsylvania), 486. Sect. 3] WHAT CONSTITUTES A TRESPASS, ETC. 219 stands upon the line of the plaintiff's premises. This is a breach of duty for which the defendant is liable in damages 1 . Again: The defendant heaps up dirt close to the plaintiff's boundary wall, and the dirt of itself falls against the wall. This is a trespass 2 . An entry upon land, or a taking of goods, is justifiable when effected either (1) by license or consent of the party, or (2) by license of the law; a license being a mere per- Justiflcation .. -,, ,, • iii i r i of entry or mission to do what otherwise would be unlawful, taking goods : anf [ n ot a property right. The term ' license or consent of the party,' as here used, has reference to cases in which there is nothing beyond an actual consent, either in answer to a request for permission, or by specific or general invitation by the possessor; as e.g. in the case of a shopkeeper. Cases of this kind sufficiently explain themselves, and need not be dwelt upon. The term ' license of the law ' has reference to cases in which a permission is given regardless of the will of the owner or occupant, including cases in which, in point of fact, there may at the same time be a license of the party, as for instance the case of an innkeeper who both invites and, generally speaking, must receive guests ; enough that the license is paramount to the will of such person. In cases of the first kind the license is revocable in respect of future acts, though it be granted by contract, unless it is 'coupled with an interest'; the licensor may be LioGiiss coupled with liable for breach of contract, and yet revoke the an interest. license, so as to take away the licensee's per- mission 3 . A license is ' coupled with an interest ' when it comprises or is connected with a grant 4 . The second kind needs some special explanation. The law licenses an entry upon the land of another, or the taking pos- License by session of another's goods, in many cases ; and in law: condi- these the license cannot be revoked (except by tion implied. the State ^ The first in i mpor tance of such cases 1 Lawrence r. Obee, 1 Stark. 22. 2 Gregory v. Piper, 9 B. & C. 591. 3 Wood v. Leadbitter, 13 M. & W. 838; Hyde v. Graham, 1 H. & C. 593. But the licensee may sometimes be entitled to an injunction against the revocation. Frogley v. Lovelace, Johns. 333. 4 Wood v. Leadbitter, supra, at p. 844. 220 TRESPASS UPON PROPERTY [Sect. 3 is where the law has commanded the entry or the taking pos- session ; the entry and levy of a sheriff by virtue of a valid precept being the chief example. In such cases reasonable force may be used to effect an entrance ; though an entrance to an occupied dwelling-house cannot be forced, except for the purpose of serving criminal process 1 . In cases in which the license of the law is only implied, forcible entry can seldom be made, except in the case of an owner of land entitled to take actual possession 2 . That is to say, apart from the exceptional cases, the license appears to be conditional ; the entry may be made, provided that it can be made without breach of the peace 3 . The following are cases of the kind : — One case is where an entry is made into an inn 4 , or perhaps into the coach of a common carrier of passengers. Such an entry is lawful if the party is in a fit condition coaches of to be received, paying in advance — and, in the common car- case f a passenger, showing a ticket 5 — when re- riers. . quired. A second case is where the party in possession of land has bound himself by debt to another, without any stipulation in Entry by regard to the place of payment. In such a case creditor. the creditor is allowed by law to enter his debtor's premises for the purpose of demanding payment 6 . 1 Swain v. Mizner, 8 Gray (Mass.), 182; People v. Hubbard, 24 Wendell (New York), 369. Great exigency, affecting the public, such as an extensive conflagration, would probably make another exception. - Sampson v. Henry, 19 Pickering (Mass.), 36; Churchill v. Hulbert, 110 Mass. 42. 8 Churchill v. Hulbert, supra. See Scribner v. Beach, 4 Denio (New York), 448, 451. Statute imposes penalties for forcible entry upon premises. But the question is, whether a person, having a license to enter, is liable not only for the penalties but also as a trespasser. It appears to be clear that if the person entering is owner of the land, and entitled to take possession, he is liable only to the penalties of the statute. Sampson v. Henry, supra; Biddall v. Maitlaud, 17 Ch. D. 174; Edwick v. Hawkes, 18 Ch. D. 199. If however he should commit an assault upon the occupant, that, not being necessary to his entry, would make him liable for that act. Sampson v. Henry, supra. To enter forcibly in most other cases would be a trespass, because it would be in violation of the condition annexed bylaw to the license. See Churchill v. Hulbert, supra; Wheelden v. Lowell, 50 Maine, 499. 1 Six Carpenters' Case, 8 Coke, 140. 5 See Butler v. Manchester By. Co., 21 Q. B. Div. 207; Shelton v. Lake Shore By. Co., 29 Ohio St. 214. <> Black. Com. iii. 212. Sect. 3] WHAT CONSTITUTES A TRESPASS, ETC. 221 A third of* these cases is where the party in possession holds, as tenant, a piece of real property of another. In such a case Entry by the law allows the latter to make an entry upon landlord. ^he ] an d for the purpose of ascertaining whether his interests are properly regarded by the possessor. For ex- ample : The defendant leases land to the plaintiff, and subse- quently enters to see if the latter has committed waste. This is no breach of duty to the plaintiff 1 . A fourth case is where goods have been placed upon a man's land under a tenancy at will, or where goods have been sold which lie upon the premises of the vendor, buyer of In the absence of any special agreement or goods. general custom concerning the delivery of the goods the owner may go upon the premises and take them 2 . For example : The plaintiff lets premises to the defendant at will, on the terms that the defendant shall have reasonable time to remove his goods, after notice to quit. The defendant enters accordingly, after termination of the lease, to get his goods, against the plaintiff's refusal to allow him. This is no breach of duty 3 . A fifth case is where the owner of land has wrongfully burdened another with the possession of his (the former's) goods. In such a case the goods may be taken owner of and put upon the owner's premises ; and neither goods left. the taking of the goods nor the entry upon the owner's premises is unlawful. For example : The defendant takes an iron bar and sledge belonging to the plaintiff, and puts them upon the plaintiff's land ; the plaintiff having first brought them upon the defendant's premises, and then without permission having left them there. The entry is lawful 4 . A sixth case is where a man's goods, without his act, have _ . got upon the land of another. In such a case the Goods on an- , other's land owner of the goods may enter and take them. For by accident. example : The defendant enters upon the plaintiff's 1 Black. Com. iii. 212. 2 Cornish v. Stubbs, L. R. 5 C. P. 334; Mellor v. Watkins, L. R. 9 Q. B. 400; McLeod v. Jones, 105 Mass. 403 (sale of goods on vendor's land). 3 Cornish v. Stubbs, supra. 4 Cole v. Maundy, Viner's Abr. Trespass, 516. See other cases there referred to. 222 TRESPASS UPON PROPERTY [Sect. 3 land to get apples, which by the action of the wind have been blown over the line, from the defendant's trees into the plaintiff's close. The defendant is not liable 1 . Again: The defendant enters upon the plaintiff's land to get his own goods which the plaintiff has wrongfully taken and put there. This is lawful 2 ; though it would have been otherwise had the plaintiff come properly into possession of the goods 3 . A seventh case is where a person enters the premises of another to save life or to succour a beast in danger. Such an Entry to save act is not a trespass ; but it is said that the case life - would be different if the entry was made to prevent a person from stealing the owner's beast, or to prevent cattle from consuming his corn 4 . The distinction made between the cases is that in the former case the loss of the animal would be irremediable, that is, that particular animal (which might be very valuable) could not be replaced ; while in the latter case the animal might be recovered from the thief, or the corn replaced by purchase or by a new crop : all corn being substantially alike. The distinction however sounds medieval. An eighth case is where a man creates, or after notice continues, a nuisance upon his premises, to the peculiar injury of his neighbour. In such cases the latter may abate a enter and abate the nuisance. For example : The nuisance. defendant enters upon the plaintiff's premises, and removes the eaves of a shed, which overhang the defendant's land and in rainy weather drip upon his premises. This is no breach of duty to the plaintiff 5 . A ninth case is where an entry has been made upon land of 1 Milieu v. Fawdry, Latch, IK), 120. JJ would lie otherwise if the defendant _should shake the trees. Bacon's Abr. TresjDass, F. The action of the wind would, it seems, be immaterial, if the branches overhung the plaintiff's land; for that would itself be a nuisance. Comp. Penruddock's Case, 5 Coke, 100 b. The defendant should be allowed to enter only when he is entirely in the right, as where the apples are blown over the fence into the plaintiff's grounds. 2 Viner's Abr. Trespass, 1 (A) ; Bigelow's L. C. Torts, 382. 3 See Bigelow's L. C. Torts, 381. 4 Bacon, ut supra. 5 Penruddock's Case, 5 Coke, 100 b; Bigelow's L. C. Torts, 383, where various distinctions as to such cases are mentioned. By the Koman law there appears to have been no such right to abate the nuisance. Lex Aquilia, fr. 29, § 1, of overhanging roofs. See Grueber, pp. 113, 114. Sect. 3] WHAT CONSTITUTES A TRESPASS, ETC. 223 another by reason of necessity, without the fault of the person Entry of entering. Such an entry is justifiable. For ex- necessity, ample: The defendant runs into the plaintiff's premises to escape a savage animal, or the assault of a man in pursuit of him. The defendant is not liable 1 . Again : The defendant enters upon the plaintiff's premises to pass by a portion of the highway which at this point is wholly flooded, but without the act of the defendant. The entry is justifiable 2 . It has already been seen that a trespass to property consists in an unlawful entry of land or taking of goods 3 , and a trespass Trespass ab by imprisonment, in an unlawful arrest. There is initio. one case however in which, by reason of subsequent acts, a person may be treated as a trespasser notwithstanding the lawfulness of the entry, or taking possession, or of the arrest ; the result thus being to deprive the party of the justification of the lawfulness of the original act, and, by a fiction of law, to make him a trespasser ab initio. According to this fiction, one who has taken possession of goods, or entered upon land, by virtue of a license of the law, becomes a trespasser ab initio (notwithstanding the lawfulness of the levy or entry), where afterwards, while acting under the license, he commits an actl which in itself amounts to a trespass 4 . For example : The ' defendant, a sheriff, remains an unreasonable length of time in the plaintiff's house in possession of goods taken by him in execution. He is a trespasser ab initio 8 . But, in order to become a trespasser ab initio, the subse- quent act must, it has been held, be a technical trespass or at least show a purpose to make use of the license as a mere cover for a wrongful act, or it should otherwise appear that the ob- taining the license was a mere subterfuge to conceal some improper purpose. If this is not the case — if the entry was in good faith, and the subsequent act was not a trespass — the i Year Book 37 Hen. 6, p. 37, pi. 26. 2 Absor v. French, 2 Show. 28. 3 Where A's goods are unlawfully sold and delivered by B, must the former make demand for them before he can sue for the trespass ? The question is not so important now as formerly, for suit is more generally brought in such cases for conversion. See post, p. 234. 4 Six Carpenters' Case, 8 Coke, 146; L. C. Torts, 386. 5 Ash v. Dawnay, 8 Ex. 237; Rowley v. Rice, 11 Metcalf (Mass.), 337. 224 TRESPASS UPON PROPERTY [Sect. 3 party is not to be treated as a trespasser from the beginning, though the act committed be wrongful and subject him to liability. For example : The defendant, an officer, enters upon the plaintiff's premises by virtue of a lawful writ, to make a levy for debt. While there, in the course of his business as an officer, he wrongfully extorts money from the plaintiff. He is not a trespasser from the beginning of his entry, though the extortion was a breach of duty for which he would be liable in damages ; extortion not being a trespass 1 . Again : The de- fendant refuses to drop a distress on the plaintiff's goods, upon tender by the plaintiff of the rent due. The defendant is not a trespasser 2 . These examples, on consideration, will show the importance of the doctrine of trespass ab initio. If the person's conduct Significance make him obnoxious to this doctrine, it follows of trespass (probably) that all acts done, such as, in the case of an officer, levies made, intermediate the entry and the trespass, are void ; since, his entry being a trespass, he could not, according to general principles of law, thereafter do an act against the will of the occupant which would be legal 3 . Besides, he would be liable for the entry as well as the after acts. The doctrine does not therefore concern the form of remedy alone. 1 Shorland v. Govett, 5 B. & C. 485. See Six Carpenters' Case, supra. But compare Holley v. Mix, 3 Wend. 350. If the entry under the writ was merely to cover the purpose to extort there would probably be a trespass ab initio. Compare Grainger v. Hill, 4 Bing. n. c. 212, ante, pp. 102, 187, n. That, it seems, suggests the true distinction. Six Carpenters' Case, supra. See also Commonwealth r. Rubin, 165 Mass. 453, Holmes, J. The doctrine is held applicable in America only to cases in which there has been an ' abuse of some special and particular authority given by law, as in the case of process.' Esty v. Wilmot, 15 Gray (Mass.), 1G8. The exercise of the power given is conditional upon keeping wholly within legal limits. Id., Hoar, J. The doctrine however is hard to understand when there is nothing but a subsequent trespass. What is there in trespass which should make the wrong react; why should not other subsequent wrongful conduct react as well? 2 West r. Nibbs, 4 C. B. 172. 3 Compare Ilsley v. Nichols, 12 Pickering (Mass.), 270, denying certain dicta of the books. Ilsley v. Nichols decides that a levy made by breaking open the outer door of an occupied dwelling-house (a house is a man's castle) is invalid, and the officer is liable for the value of the goods taken as well as for the unlawful entry. The same result sbould in principle follow if, by an act subse- quent to the entry, he become a trespasser from the beginning. Sect. 3] WHAT CONSTITUTES A TRESPASS, ETC. 225 This doctrine of trespass ab initio applies however only against persons who have entered land or taken goods by license] Limitation of of law. A person cannot treat as a trespasser the doctrine. from the beginning one to whom he has himself given permission to enter, or take his goods, whatever be the nature of his subsequent acts 1 . For example: The defendant, by permission of the plaintiff's wife enters the plaintiff's house in his absence, and while there wrongfully gets possession of papers, and carries them away. This does not make him a trespasser ab initio". As where the entry was made in good faith the subsequent act must amount to a trespass, it becomes necessary to ascertain Meaning of somewhat precisely the technical signification of trespass. that term. It is difficult to define a trespass, but the following will serve to indicate the proper meaning of the term: (1) Any wrongful intended contact with the person is a trespass. (2) Any wrongful entry upon the plaintiff's land or interference with the plaintiff's possession of personalty is a trespass. (3) Any wrongful act committed directly with force is a trespass, though no physical contact with the person of the plaintiff or with his property be produced ; as in the case of an imprisonment without contact, or the firing of a gun under the plaintiff's window, to alarm the inmates of his house. In cases like these, force is said to be implied. Upon the same ground, the seduction of the plaintiff's wife, daughter, or servant might perhaps be considered as a trespass, and the act was formerly so treated by the courts 3 ; the consent given was not the plaintiff's consent. But the present view is different 4 . On the other hand, (1) a mere non-feasance (that is, a pure omission) cannot be a trespass 5 ; (2) nor can there be a trespass where the matter affected was not tangible, and hence could not be immediately injured by force, as in the case of an injury to reputation or health ; (3) nor can there be a proper trespass 1 Six Carpenters' Case, supra; Esty v. Wilmot, 15 Gray (Mass.), 168; Allen v. Crofoot, 5 Wendell (New York), 506. 2 Allen v. Crofoot, 5 Wendell (New York), 506. 3 Tullidge v. Wade, 3 Wils. 18; Chitty, Pleading, i. 126, 133. 4 Macfadzen v. Olivant, 6 East, 387. Chitty prefers the old doctrine. Pleading, i. 133. 5 Six Carpenters' Case, 8 Coke, 146. B. T. 15 226 TRESPASS UPON PROPERTY [Sect. 3 where the right affected is incorporeal, as a right of common or way; (4) nor where the interest injured exists in reversion or remainder ; (5) nor where there is no right of action immediate upon the apt in question 1 . Lastly, to constitute a trespass to property, the thing af- fected must be capable of ownership as property ; and in some Things which cases i* must have been in the plaintiff's posses- axe not sion at the time. Wild animals, untamed, are prope y. deemed property only while in one's actual or constructive possession ; upon effectual and final escape, they cease to be property so long as they are free. Any one may now kill or take them. Indeed a savage domestic animal straying at large, and dangerous, may be killed, though the owner be known to be in pursuit 2 . A man may have property in a dog even though the animal may not have any certain pecuniary value 3 . The same is probably true of rare animals kept for study, for exhibition, for breeding, or even as pets 4 . No one therefore has a right to take these from the owner, or to keep them from him when taken up as strays 5 , or needlessly to kill them 6 . But there are circumstances when the law justifies the killing of another's animals ; a man may not only protect himself or another from the attack of a beast, he may kill an animal, in some cases, which is doing mischief, as a dog which is biting or worrying his sheep or other valuable animals or fowls 7 . Indeed, a savage dog suffered to run at large without a muzzle, and disposed to attack or snap at people, may be treated as a nuisance and killed by any one ; and that too whether at the time the dog was doing harm or not 8 . 1 See Chitty, Pleading, i. 166. But quaere whether the effect of the rule of trespass ab initio might not be had in some of these cases, as in the third and fourth ? 2 Kent, Com. ii. 348, 349. 3 Dodson v. Meek, 4 Devereux & Battle (North Carolina), 146; Wheatly v. Harris, 4 Sneed (Tennessee), 468. 4 See Amory v. Flyn, 10 Johnson (New York), 102, as to wild animals tamed. 5 Id. 6 Dodson v. Meek and Wheatly v. Harris, supra. 7 King v. Kline, 6 Barr (Pennsylvania), 318; Woolf v. Chalker, 31 Conn. 121. 8 Putnam v. Payne, 13 Johnson (New York), 312; Maxwell v. Palmerston, 21 Wendell (New York), 407. Sect. 3] WHAT CONSTITUTES A TRESPASS, ETC. 227 A man may however keep a ferocious dog as a watch over his promises, if properly secured; while the dog is in such a situation, no one may lawfully kill it, unless indeed it is then milking an attack upon man or beast 1 . It would doubtless be lawful to kill the dog to save the life even of a burglar. A word may be added in regard to trespassing animals. The law is very plain and natural; trespassing will seldom Trespassing justify killing or maiming 2 , or even detaining animals. upon a claim for anything more than reimburse- ment of necessary expenses and payment of damage done. And if detained, the animals must be taken care of and properly treated 3 . On the other hand, if driven away, that must be done without unnecessary violence; unnecessary violence would be a trespass. For example : The defendant, finding the plaintiff's horse straying upon h.is premises, sets a savage dog upon it, and the horse is seriously hurt. The defendant is liable in damages 4 . 1 See Perry v. Phipps, 10 Iredell (North Carolina), 259. 2 See Aldrich ?>. Wright, 53 New Hampshire, 398, an important case, in which a killing was held proper. 3 Murgoo v. Cogswell, 1 E. D. Smith (New York), 359. 4 Amick v. O'Hara, G Blackford (Indiana), 258. 15—2 CHAPTER XI Conversion Statement of the duty. A owes to B the duty not to exercise dominion (1) over 5's general property in personal chattels; (2) over B's special property in the like things. By ' general property ' is commonly meant the ownership of property, subject, it may be, to a special property for a time in another. By ' special property ' is meant a right of possession coupled with possession ; the right being general, as in the case of a lien creditor, or limited as in the case of a finder. By ' bare possession ' merely is commonly meant a mere custody (' detention ') or a possession unlawfully obtained. Like trespass to property the remedy for this wrong is ' possessory,' in the sense that possession is deemed necessary to the action ; but that condition being fulfilled, recovery extends to the value of the property. The action for converting goods to one's own use has been called ' trover,' a term meaning ' to find,' which was used in the old precedents of declaration ; the plaintiff, by a fiction, alleging that he had lost and the defendant had found and converted to his own use the chattel in question. This fiction was invented in cases of bailment or the like, to avoid the objection that the defendant had received the goods from the hand of the plaintiff 1 . The judges received the allegation accordingly, and 1 According to the old theory the wrong, like that of trespass, must have been done to the plaintiff's possession (compare ante, p. 205), and hence it was fatal to any action of the kind that the plaintiff had delivered possession to the defendant. If, in respect of possession, the conversion had originally been deemed enough, there would have been no need of the invention of the fiction of loss and finding. Such common cases as actions for the taking of straying cattle may have suggested the idea of the fiction. See Bigelow's L. C. Torts, 422. Sect. 2] POSSESSION 229 did not require proof of it ; proof of the conversion therefore was enough. The action of ' trover ' is an action to recover (not specific- articles, but) damages for the conversion of chattels personal, to the value of the interest converted. By an ' act of dominion ' is meant an act of, or tantamount to, ownership. The old action of detinue has not been much used in modern times because of its inconvenience ; it requires exact description of the property detained, a thing sometimes difficult to give. Its object is to recover chattels in specie, or damages for their non-return if they cannot be had, and damages for the wrongful detention. It has been superseded largely by trover, which never required such exact description. Detinue too could be defeated, until modern times, by compurgation, while trover could not. Forms of action have indeed been abolished, but the substance of what was required in trover remains in what is required to maintain a suit for conversion. As in trespass, so in trover, detinue, and replevin, the thing alleged to have been converted must be capable of ownership as property 1 . § 1. What must be Proved The plaintiff is entitled to recover by proving that the defendant took and converted to his own use goods of which Possession ^he plaintiff was in possession or entitled to take and con- possession at the time of the conversion or because version. v , , ot that act. § 2. Possession The possession of a chattel personal, that is, of a moveable article, or a right to take possession thereof, is necessary to Possession support an action for conversion, just as it is to of chattels. support an action for trespass. The plaintiff fails 1 See ante, p. 226. 230 CONVERSION [Sect. 2 in trover if it appear that he has never acquired a right of possession, or if he has, that he has parted with it, and has not before suit become reinvested with the same. For example : The plaintiff is the purchaser of goods, which however remain in the seller's possession subject to a lien for the purchase price. The defendant, without authority, removes the goods from the seller's possession, doing no permanent injury to them. This is no breach of duty to the plaintiff 1 . Again: The defendant, a sheriff, wrongfully levies upon goods of the plaintiff in the hands of a lessee of the property, and carries the goods away. The plaintiff cannot treat the act as a conversion (though the tenant could), since the plaintiff was not entitled to the possession of the property 2 . 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 possession of goods draws possession in law. For example : The defendant buys and takes away a chattel belonging to the plaintiff from A, who has 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 3 . A person having ' special property ' in goods, with general right of possession, can maintain an action for conversion against special all persons who may wrongfully exercise dominion property. over them though the act be done by command of the owner of the goods. For example : The defendant takes a horse out of the possession of the plaintiff, the plaintiff having a lien upon the animal. The defendant acts by direction of the owner, but without other authority. He is liable for conversion of the horse 4 . 1 Lord v. Price, L. E. 9 Ex. 54. 2 Gordon v. Harper, 7 T. E. 9. See Farrant v. Thompson, 5 B. & Aid. 826; ante, p. 211. 3 Hyde v. Noble, 13 New Hampshire, 494; Clark v. Eideout, 39 New Hamp- shire, 238; Carter v. Kingman, 103 Mass. 517. 4 See Outcalt v. Dialing, 1 Dutcher (New Jersey), 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. Sect. 2] POSSESSION 231 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 dis- turbance 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 it, refuses to redeliver it. The defendant has violated his duty to the plaintiff, and is liable for conversion 1 . One who has possession of chattels, though without a right to hold them against the owner, is also protected against all Possession persons having neither a right of property nor of without 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 defendant. The defendant's act is a breach of duty to the plaintiff, and he is liable for the value of the jewel 2 . It would be different however if the defendant acted under ex] tress authority of the owner, or of one entitled to the posses- sion of the propertv. But it is laid down that the Jus tertii defendant could not set up the rights of a thir person (called the 'jus tertii') without authority from the latter That is, the defendant can deny the plaintiff's right only bj showing a better right in himself 4 . 1 Roberts v. Wyatt, 2 Taunt. 268. 2 Armory v. Delamirie, 1 Strange, 505. :< Rogers v. Arnold, 12 Wendell (New York), 30 (suit to recover the chattels specifically); Jefferies v. Great Western By. Co.. 5 El. & B. 802; Cheesman v. Exall, 6 Ex. 341. Does this mean that possession in itself, however obtained, will be protected, — that it cannot be shown e.g. that the plaintiff stole the property? See ante, p. 209, note. 4 Hubbard v. Lyman, 8 Allen (Mass.), 520; Landon v. Emmons, 97 Mass. 37. 232 CONVERSION [Sect. 2 The finding of a chattel does not however in all cases give a right to hold the article against all persons having no right of property in it ; though the finding and taking possession were not unlawful as against the loser. The chattel may be found upon the premises of another, in such a situation as to indicate that it was voluntarily 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, receives from the plaintiff, a customer in his shop, a pocket-book containing money, which the plaintiff has discovered lying upon a table in the defendant's shop. The plaintiff, in handing the pocket-book to the defendant, tells him to keep it until he can discover the owner, and then return it to the loser. No one having called for the article, the plaintiff claims it, and the defendant refuses to give it to him. This is not a breach of duty to the plaintiff, since the fact that the pocket-book was left upon the defendant's table indicates that the owner put it there by intention, 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 posses- sion 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 shopkeeper, 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 the same till the owner claims it. The defendant advertises the parcel, but no one claims it, and three years having elapsed, the plaintiff requests the defendant to return to him the notes, at the 1 McAvoy v. Medina, 11 Allen (Mass.), 548. 2 South Staffordshire Water Go. V. Sharman, 18%, 2 Q. B. 44; Bridges v. Hawkesworth, 21 L. J. Q. B. 75. Sect. 3] WHAT CONSTITUTES CONVERSION same time tendering the cost of advertising, and even offering an indemnity. The defendant refuses. This is a breach of duty to the plaintiff, and the defendant is liable to him for conversion of the parcel 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 ; "PrtOGpOQl ATI here has the the possession is the master's. For example: The same meaning defendant 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. What constitutes Conversion It has been seen that conversion consists in the exercise of an act of dominion over the moveables of another ; that is, it is a Usurpation usurpation of ownership. It matters not whether of ownership, ^his was done with or without knowledge of the true state of the title, as will be seen ; every man acts at his peril in exercising dominion over another's property 4 . The dis- tinction between trespass and conversion consists in this, that trespass is an unlawful taking, as for the mere sake of removing the property, while conversion is an unlawful taking or keeping in the exercise, legally considered, of the right of ownership 5 . Acts of dominion appear in two forms: first, where the wrong- 1 Bridges v. Hawkeswortb, supra. 2 Ante, p. 209. 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 Iredell (North Carolina), 18; ante, p. 210. But see Moore v. Robinson, 2 B. & Ad. 817. And further see Holmes, Common Law, 226-228; Ashwell's Case, 16 Q. B. D. 190. 4 See a qualification stated in Hollins v. Fowler, L. R. 7 H. L. 757, 768,] Lord Blackburn, in regard to dealing with goods at the request of a persor having actual custody of them, in the bona tide belief tbat such person is o\\ ner; or has the owner's authority. 5 See Bushel v. Miller, 1 Strange, 129; Fouldes v. Willoughby, 8 M. & W. 540, 551, Kolfe, B. 234 CONVERSION [Sect. 3 doer appropriates to himself the goods of another ; secondly, where, without appropriating them to himself, he deprives the owner, or person having the superior right, of their use, 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 with- Saie and de- out authority of the owner. Every sale without livery without restriction by a person having no right to sell is a conversion, if followed by delivery 1 , and renders the vendor liable in an action of trover 2 . For example : The de- fendant, 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 3 , and a separation not offered by the plaintiff 4 . 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, unnecessarily, an excessive levy upon the plaintiff's goods, under a valid writ, and sells them. This is a conversion, since it is done in disregard of the defend- ant's authority, and according to the party's own will 5 . This principle that the sale of property with delivery is an act of dominion, so as to render the seller liable for conversion if Ienorance of ^ e ^ad n0 right to se ^ as ne did, a PP ues equally title: inten- whether the vendor knew or did not know the tlon ' true state of the title, or the actual limit of his authority. Liability for converting the goods of another to one's own use does not depend upon the intent of the party exercising the act of dominion. For example: The defendant 1 See Consolidated Co. v. Curtis, 1892, 1 Q. B. 495, 498. 2 Quaere, whether a demand would be necessary ? A Oilman v. Hill, 80 New Hampshire, 811. 4 See Kent, Com. ii. 305. s Aldred v. Constable, Q. B. 370, 381. So to pledge the goods of another without authority. Carpenter ?>. Hale, 8 Gray (Mass.), 157. Sect. 3] WHAT CONSTITUTES CONVERSION 235 sells and delivers a horse of the plaintiff to a third person, the defendant having bought the animal from one who had no title to it, though the defendant supposed the contrary, and supposed himself to be owner of the horse at the time of the sale in ques- tion. The defendant- is liable for conversion 1 . Where the purchaser's vendor had acquired his supposed title from the plaintiff by means of a sale effected by false, or Title acquired oven by fraudulent, representations, the case would by fraud: D0 different. Fraud of this character renders the purchase for value without sale voidable merely, not void ; the consequence of notlce - 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 2 . Inas- much as the buyer, notwithstanding his fraud, acquired the title to the goods, he can convey that title ; and more, he can convey a better right than he had himself, provided he sell to a pur- chaser for value without notice. Hence, not only would such purchaser be free from liability 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 intermediate seller, he (the de- frauded party) would himself be liable in trover. For example : The defendants, having previously been owners of a quantity of iron, sell the same to P, who gives them a fraudulent draft (supposed by the defendants to be good) for the amount due for the property. P then sells the iron to the plaintiff, who buys for value, and 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 Harris v. Saunders, 2 Strobhart (South Carolina), Eq. 370, note ; Carter v. Kingman, 103 Mass. 517. See McCombie v. Davies, 6 East, 538; Hilbery v. Hatton, 33 L. J. Ex. 190 ; Fowler v. Hollins, L. R. 7 Q. B. 616 ; s. c. 7 H. L. 757. - Clough v. Northwestern Ry. Co., L. R. 7 Ex. 26. :s White v. Garden, 10 C. B. 919. See for the converse case Cundy v. Lindsay, 3 App. Cas. 459. 236 CONVERSION [Sect. 3 There are other cases in which a person may by purchase for value and without notice acquire a better right than his vendor had. A purchaser of goods from one who has by the terms of sale reserved the right to buy back the property within a certain time, acquires (or may by such a transaction acquire) the title to the property, and, having a good title, he may convey the same to one who purchases for value and without notice, so as to cut off the original owner's right to repurchase. The consequence is, that the last purchaser is not guilty of a conversion by refusing to let the original owner have the goods upon a tender by him of the amount he was to pay for them, though made within the time agreed upon between him and his buyer. The case would be different however in regard to the buyer from the original owner. His act in making the sale would indeed be lawful against the seller, if the seller should never offer to repurchase ; but if the seller should offer to re- purchase, 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 act, the party, not conditional having acquired the title, could not convey it; and sale - an attempt to do so by a sale and delivery would, by the better rule, subject the buyer to liability for conversion. For example : The defendants purchase furniture from W, who had taken possession of the same upon an agreement with the plaintiff, the owner, 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 1 Sargent v. Gile, 8 New Hampshire, 325, denying Vincent v. Cornell, 13 Pickering (Mass.), 294. According to the latter case, the conditional buyer would, by the sale, transfer his own right, such as it was. See Coggill v. Hartford R. Co., 3 Gray (Mass.), 545; Deshon v. Bigelow, 8 Gray (Mass.), 159. Sect. 3] WHAT CONSTITUTES CONVERSION 237 the same by sale or repledge without subjecting the purchaser or repledgee to trover, and without subjecting him- Sale of pledge. [ 6 '. J h sen thereto, except in either case upon a failure to produce the pledge or pawn upon tender of the debt to secure which the chattel was given. For example: The defend- ant has taken in pledge from $ certain bonds, which the plaintiff had pledged to S for the security of a debt smaller than the amount of the debt of S to the defendant; the repledge being made before the maturity of the original debt 1 , and before pay- ment or 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 conversion by the defendant ; 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 Special pro- °^ ^is interest. Not every special property is alien- perty : aliena- able. In many cases of bailment, the special objects to be effected forbid that the bailee should have an assignable interest. Such is the case (1) w T here the bailment is made upon a trust in the personal skill, knowledge, or efficiency of the bailee. Such is the case (2) where the bailee has a mere lien upon the goods intrusted 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 delivery 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 pertaining to a simple bailment, and where there is no element of personal trust, and none of the characteristics of an estate at will : and in this class it is clear that the bailee has an assignable interest. 1 That is, while the bonds were still subject to redemption by the plaintiff. - Donald v. Suckling, L. R. 1 Q. B. 585. To pledge, without authority, another's property held in simple bailment would be a very different thing. Carpenter v. Hale, 8 Gray (Mass.), 158, infra, p. 239. Compare the Roman law. Lex Aquilia, 1'r. 30, § 1 ; Grueber, pp. 122-125. 238 CONVERSION [Sect. 3 There can be no conversion therefore in the act of transferring such an interest merely, provided the assignee claims only the rights of the assignor ; because the latter, having exercised no' act of dominion over the property, but having dealt simply with his own interest, did not reinvest the owner with a right of possession. An attempt by the bailee to dispose of the goods absolutely however would be different, if followed by a delivery of them. For though a bailee could not, without fault on the part of the owner (by holding him out as having a right to sell absolutely), dispose of anything beyond his own 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 appropria- tion of the entire property held in order to effect a conversion of conversion of t ^ ie whole. If the part appropriated be necessary part of a lot of 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 defendant finds a raft of timber belonging to the plaintiff lodged on a sandbar in a stream, takes possession of it, 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 3 . It appears to be immaterial to the plaintiff's right of recovery for the whole, that what remains is still in itself as good as if there had been no severance ; the plaintiff has the right to the benefit to be obtained from it in its entirety, where that is a special benefit. This principle would apply to cases where separate articles are delivered under one entire contract of bail- 1 See ante, p. 234; Lancashire Wagon Co. r. Fitzhugh, 6 H. & N. 502; Cooper v. Willomatt, 1 C. B. 072. 2 Philpott v. Kelley, 3 Ad. & E. 106, semble. The case was not so strong as the facts put in the example. See Clendon v. Dinueford, 5 Car. & P. 13 ; Gentry v. Madden, 3 Pike (Arkansas), 127. 3 Gentry v. Madden, 3 Pike (Arkansas), 127. Sect. 3] WHAT CONSTITUTES CONVERSION 239 ment or lease, even though the articles be separately enumerated and valued. The bailment or lease is still indivisible in con- templation of law, and conversion of part may be conversion of the whole 1 . If however separate articles be severally bailed or leased, by distinct contracts, though all be delivered and bargained for at the same time, the rule of law is (probably) different; a conver- sion 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, without objection, to be sold as the property of another, the purchaser acquires a good title, and is not liable to the owner ' Standing by.* „ ^ „ h . . .. ' . . . _, . for a refusal to deliver them to him. r or 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 defendant's refusal to surrender the machinery to the plaintiff is not a breach of duty 2 . Appropriating an article held in bailment to a use not contemplated at the time of the contract of bailment, and not Unauthorized authorized by law, may constitute conversion. For use, etc. 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 3 . Again: The defendant lends money to A, taking from him by way of security a quantity of leather, which had been placed in A's hands by the plaintiff, on hire, to be made up into boots. The defendant refuses to surrender the leather to the plaintiff. He is guilty of conversion 4 . Again : The defendant 1 See Clendon v. Dinneford, 5 Car. & P. 13; Gentry v. Madden, supra. 2 Pickard v. Sears, 2 Ad. & E. 469. s Isaack v. Clark, 2 Bulst. 306; Perham v. Coney, 117 Mass. 102. 4 Carpenter v. Hale, 8 Gray (Mass.), 157. 240 CONVERSION [Sect. 3 receives from the plaintiff shares of stock to be sold on com- mission. Instead of selling, the defendant exchanges the stock for other property. This is a conversion 1 . It has sometimes been supposed in America that there can be no right of action for conversion in such cases, unless the Damage to the chattel was injured in the misappropriation 2 . But property. t ] lere j s ground f or doubting the correctness of this doctrine. The foundation of the action is the usurpation of the owner's right of property. It is true, the plaintiff in trover seeks to recover the value of the thing converted, but if he has received it back, or possibly if it has been tendered back in proper condition 3 , he will be allowed to recover no more (beyond nominal damages) than the amount of his loss 4 . 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 Assertion of over ^e chattel. An assertion alone, not followed authority not by anv act in pursuance of it, such as a refusal to enough. , , , , surrender the chattel to the person entitled to 1 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 without notice of the breach of duty. 3 Johnson v. Weedman, 4 Scammon (Illinois), 495 ; Harvey v. Epes, 12 Gratton (Virginia), 153. In the first of these cases a horse which the defendant had converted 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. 3 There is much 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 Vermont, 138 ; Green v. Sperry, id. 390. But see Delano v. Curtis, 7 Allen (Mass.), 470, 475. Further see Yale v. Saunders, 16 Ver- mont, 243; Stephens v. Koonce, 103 North Carolina, 266. The true view of the case appears to be that the party wronged has an election whether to treat the wrong as a conversion or not, and the question then is whether he has exercised his election. 4 Fisher v. Prince, 3 Burr. 1363 ; Earle v. Holderness, 4 Bing. 462 ; Cook v. Hartle, 8 Car. & P. 568; Hewes v. Parkman, 20 Pick. 90, 95. Judgment for the plaintiff in trover does not vest the property in the defendant. Lovejoy v. Murray, 3 Wallace (Supreme Court TJ. S.), 1; Brady v. Whitney, 24 Michigan, 154; Brinsmead v. Harrison, L. It. 6 C. P. 584. Sect. 3] WHAT CONSTITUTES CONVERSION 241 possession, would not amount to a conversion. There must be some unauthorized interference with the plaintiff's right of pos- session. Even an attempted exercise of dominion, without right, appears to be insufficient to constitute a conversion, if the owner's right was not in fact 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 receives part of the avails. This is deemed not a conversion 1 . Thus far of cases m which the defendant has appropriated the goods in question to his own use. But, as has been stated, conversion to a wrongful act of dominion may be committed another's use. 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 in- tention to deprive the plaintiff of his goods was necessary ; but this has been decided to be incorrect. The question still is whether there has been a wrongful exercise 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 2 . If not, the contrary is true. For example : The defendant, manager of a ferry, receives on board his boat the plaintiff, with two horses. Before starting, the plaintiff is reported to the defendant as behaving 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, whereupon the defendant puts them ashore, and has them taken to a livery for keeping. The plaintiff goes with the boat, and the next day sends to the livery stable for his horses. In reply, the plaintiff is told that he can have his horses by 1 Polley v. Lenox Iron Works, 2 Allen (Mass.), 182, adopting the language of Heath, J. , in Bromley v. Coxwell, 2 B. & P. 438, that ' to support an action of trover there must be a positive tortious act.' Here the defendant was merely ' suffered ' to take and sell the property. 2 Hiort v. Bott, L. R. 9 Ex. 86, 89, Bramwell, B. B. T. 16 242 CONVERSION [Sect. 3 coming and paying the charges for keeping, otherwise they will 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 wrongfully 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) has in it' 2 . And the same is true of an intentional, or possibly negligent, destruction of the chattel 3 . In the case of acts of co-owners (cotenants) it is held 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 absolute, would not be enough; for the pur- chaser would only become a co-owner with the others 5 ; though many American cases hold the contrary 6 . Indeed some American cases 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 is not necessary by any of the authorities that there should be a physical destruction of the property, as by breaking it in pieces ; enough that the common interest, or rather the plaintiff's in- terest, is practically destroyed, as by a sale by the cotenant and 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. :i Id. 4 Farrar v. Beswick, 1 M. & W. 682, 688, Parke, B. ; Morgan v. Marquis, 9 Ex. 145; Mayhew v. Herrick, 7 C. B. 229. Compare the case of trespass, ante, pp. 213, 215. 5 Morgan v. Marquis, supra, Parke, B. fi Weld v. Oliver, 21 Pickering (Mass.), 559; Wilson v. Eead, 3 Johnson (New York), 175; Dyckinan v. Valiente, 42 N. Y. 549; White v. Brooks, 43 New Hampshire, 402 ; Dain v. Coning, 22 Maine, 347. 7 Agnew v. Johnson, 17 Penn. St. 373; Fiquet v. Allison, 12 Michigan, 328. See Strickland v. Parker, 54 Maine, 263. Sect. 3] WHAT CONSTITUTES CONVERSION 243 the buyer's taking the property beyond the State, there to be kept 1 . If an act in and of itself a conversion has been com- mitted, the injured party is entitled to bring suit without first* Demand and demanding his property. In other cases, a demand refusal. all( | wrongful refusal will be necessary, since with- out them there has been no wrongful exercise of dominion 2 . Fort example : The defendant collusively purchases goods from a trader on the eve of the trader's bankruptcy, and takes the property into his own possession. The assignee of the trader brings trover without a demand. The action is not maintain- able, 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 accordance with a principle already stated) the fraud of the trader and the defendant did not make the sale void : its only effect was to render it voidable. The contract was therefore binding until disaffirmed ; and a disaffirmance could be made only by a demand of the goods, or by some act tantamount thereto. And the demand and refusal, that is, the conversion, must be apart from the bringing of suit, when such acts are necessary ; for the cause of action must have arisen before suit was begun. In the example given if the defendant had sold the goods, or improperly detained them after a disaffirmance of the sale, the action would have been maintainable 4 . Whether a demand is necessary where property has been sold and delivered by one having no power to sell, has in America been a point of conflict of authority. The better view however is that the unauthorized sale and delivery are sufficient to constitute a conversion, and hence that demand before suit is not necessary"'. It is conceded that if the buyer has taken the goods away, there is a conversion by him 6 . 1 Pitt v. Petway, 12 Iredell (North Carolina), 69. 2 Chitty, Pleading, i. 157; Nixon v. Jenkins, 2 H. Black. 135. 3 Nixon v. Jenkins, supra. 4 Bloxam v. Hubbard, 5 East, 407. 5 Galvin v. Bacon, 2 Fairfield (Maine), 28; Stanley t\ Gaylord, 1 Cushing (Mass.), 536 ; Trudo v. Anderson, 10 Michigan, 357. Contra, Marshall v. Davis, 1 Wendell (New York), 109; Barrett v. Warren, 3 Hill (New York), 348; Talmadge v. Scudder, 38 Penn. St. 517. 6 Ely v. Ehle, 3 Comstock (New York), 506 ; Marshall v. Davis, supra. 16—2 244 CONVERSION [Sect. 3 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 misappropriation or other act of dominion, there must be a demand for the goods and a refusal to restore them 1 . An unqualified refusal will itself, in almost all cases, constitute a conversion 2 . A qualified refusal to deliver goods on lawful demand may however be only prima facie evidence of a conversion 3 . The defendant may have found the goods, and refused to surrender them to the plaintiff until he shall have proved his right to them. It follows from what has already been said that such a refusal is justifiable, since, if the plaintiff is not entitled to the goods by right, the defendant as finder has the better claim ; and he cannot or may not know that the plaintiff may not be a pretender until he has furnished evidence that he is not. And other cases of the kind might be stated 4 ; the only question, where the refusal to return is qualified, is whether it is reason- able 5 . 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 requiring the defendant to explain that the omission to deliver the goods was justifiable". 1 Severin v. Keppell, 4 Esp. 156. 2 Alexander v. Southey, 5 B. & Aid. 247, 250. 3 Burroughes v. Bayne, 5 H. & N. 296 ; Alexander v. Southey, supra. 4 See Pollock, Torts, 343, 344, 6th ed. 5 Alexander v. Southey, 5 B. & Aid. at p. 250. 6 Chitty, Pleading, i. 160 ; Thompson v. Kose, 16 Connecticut, 71. CHAPTER XII Infringement of Patents, Trade Marks, and Copyrights Statement of the duty. A owes to B the duty (1) to forbear ' working or making,' without B's license, anything patented by B ; (2) to forbear to use B's trade mark, or one so resembling it as to be apt to deceive ; (3) to forbear to print for sale or expor- tation, or to import for sale or hire, any book of which B owns the copyright, without B's written consent, or knowing the same to have been so printed or imported, to sell, publish or expose or keep for sale or hire, without such consent, any such book 1 . The word ' book ' (or its equivalent) is to be taken to include every volume, part or division of a volume, pamphlet, sheet of letter-press, sheet of music, map, chart, or plan, separately published 2 . Whether a particular act is an infringement of letters patent, or of a copyright, will depend upon the answer to two questions; what is the nature and extent of the right alleged to be infringed? and what is the nature of the act complained of ? It has not been necessary heretofore to deal much with the nature of the plaintiff's right, since it has generally been obvious enough what it was; and attention has accordingly been drawn mainly to the conduct of the defendant. Now, however, the plaintiff's right, whether in a matter of patent or of copyright, is peculiar, and some attention must be given to that side of the subject ; though matters of detail, both in regard to the nature of the right and of the defendant's conduct, must be left for special treatises upon the respective subjects. 1 The statutes are too prolix for further statement here. 2 As in 5 & 6 Vict. c. 45, the general Copyright Act. 246 INFRINGEMENT OF PATENTS, ETC. [Sect. 1 § 1. Patents for Invention A statute of the reign of James the First, aimed at monopolies and declaring them illegal, contains a saving clause in regard to statute of letters patent, which forms the basis of the present James I. } aw f patents for invention, and has never been essentially changed. The statute saves from the general condem- nation and makes lawful ' letters patent and grants of privilege for the term of fourteen years or under, hereafter to be made, of the sole working or making of any manner of new manufactures within this realm, to the first and true inventor or inventors of such manufactures, which others at the time of the making of such letters patent and grants shall not use, so as they be not contrary to the law or mischievous to the state 1 .' This and subsequent statutes contain many provisions more or less minute concerning the steps to be taken to secure the other benefit of such letters patent; and there are statutes statutes. f amendment in regard to matters which cannot be set out here; there are also statutes extending, in certain cases, the term of the letters for seven and in exceptional cases for fourteen years 2 ; and finally there is a recent general revision of all the statutes on the subject 3 . Among the matters of chief importance in the steps neces- sary to acquire the right is the making out and sending to the Specification Patent Office, with the application for the patent, of invention. a specification of the invention, with a short state- ment of the claim of the inventor at the end. The law provides for two specifications, a provisional and a complete one ; though the former need not be made. It is important to understand the purposes of the two, and the distinctions between them. The provisional specification is supposed to be drawn up before 1 21 Jac. l, c. 3. - 46 & 47 Vict. c. 57, § 25. 3 The statutes in order are 5 & 6 Wm. 4, c. 83 (in regard to disclaimers or memorandum of alterations, and providing a penalty for unauthorized use of patentee's name, or counterfeit of his stamp inter alia); 2 & 3 Vict. c. 67 (extending period in certain cases for seven years) ; 7 & 8 Vict. c. 69 (same for fourteen years); 15 & 16 Vict. c. 83 (Patent Law Amendment Act of 1852); 16 & 17 Vict. c. 115 (amending Act last named) ; 46 & 47 Vict. c. 57 (general revision of the statutes). Sect. 1] PATENTS FOR INVENTION 247 the inventor has fully perfected the details of his invention. J t Provisional should describe generally and fairly the nature of specification. th e invention, with drawings if required, so that the invention may be understood ; it need not enter into all the details in regard to the manner of carrying out the same 1 . Its purpose is only to protect the inventor until the description can be perfected in the complete specification ; it is not made public, unless with that specification 2 . Indeed, if allowed by the law officer of the Crown, the earlier description cannot be impeached as too general 3 . The test of the sufficiency of any specification is laid down to lie in this, whether it would enable an ordinary workman, exercising the knowledge common to the trade, to make the machine. ' It need not give every detail, but it must not tax invention 4 .' That is, if a workman of ordinary skill would not be able to construct a machine from the description, without a series of experiments, the specification is insufficient 5 . The complete specification is of course a different thing from the provisional one. Unlike that, it must particularly describe Complete and ascertain the nature of the invention and the specification. manner in which it is to operate ; and, as in the case of a provisional specification, it must also be accompanied by drawings if required 6 . The omission in either specification to mention anything which may be necessary for the beneficial enjoyment of the invention would be fatal ; though this would not be the case if the thing omitted go only to the degree of such enjoyment 7 . The complete specification should not claim anything differ- ing in substance from that contained in the earlier one ; but on the other hand it need not extend to everything described there. Part of the earlier may, as has been said, be omitted altogether; or where the facts have been sufficiently described in the pro- 1 In re Newall, 4 C. B. n. s. 269, 293, Byles, J.; Stoner v. Todd, 4 Ch. D. 58, Jessel, M. R. 2 Stoner v. Todd, supra. 3 Penn v. Bibby, L. R. 2 Ch. 127. 4 Plimpton v. Malcolmsou, 3 Ch. D. 531, Jessel, M. R. 5 Wegmann v. Corcoran, 13 Ch. Div. 65. 6 § 5 ; In re Newall, 4 C. B. n. s. 269, 293. 7 Neilson v. Harford, 8 M. & W. 806. 248 INFRINGEMENT OF PATENTS, ETC. [Sect. 1 visional specification for the purpose of a final one, the prior description may be referred to, without repeating it 1 . The rule concerning the final specification is, however, rigid. It must be free from all untrue statement, even such as may- appear only upon a literal reading. If it contain an untrue statement such as, if literally acted upon, would mislead a competent workman, it is bad ; and this though a competent workman would correct the error in practice 2 . For example : The plaintiff's specification, grammatically construed, claims to effect a particular result by two processes, one of which will not effect it. A skilled workman would not be misled, but would adopt the right process. The patent granted thereon is invalid 3 . The meaning of the specification should be clearly expressed; it should not be ambiguous, or it will be bad for the purpose of the patent 4 . For example : The plaintiff files a specification for the construction of a windlass, stating the object to be ' to hold, without slipping, a chain cable of any size.' Constructions are known before the date of the patent, by which windlasses might be made to hold a single chain cable of any size. The specifica- tion does not unequivocally show that the object is to construct a single windlass which might hold different chain cables what- ever their size, and is bad 5 . But while the rule is much more exacting in regard to the final than in regard to the earlier specification, it is not unreasonable ; and slight variations not touching anything of substance, or tending to mislead or to experimenting, will not be fatal. For example : The plaintiff makes a preliminary specification for a patent relating to sewing-machines, which describes an instrument of the patent, and then says that ' this, or another acting therewith, acts to hold the work during the insertion of the needle.' The final specification describes only one instrument as so holding the work. The variance is not sufficient to defeat the letters patent granted thereon 6 . It matters not, either, that the specification may include an 1 Perm v. Bibby, L. R, 2 Ch. 127. 2 Neilson v. Harford, 8 M. & W. 806, Parke, B. :f Simpson v. Holliday, L. R. 1 H. L. 315. 4 Turner v. Winter, 1 T. R. 602 ; Hastings v. Brown, 1 El. & B. 450. 5 Hastings v. Brown, supra. « Thomas v. Welch, L. R. 1 C. P. 192. Sect. 1] PATENTS FOR INVENTION 249 invention not new, if, omitting that, then; is still enough left to constitute the ground for a patent 1 . Further, however perfect may be the specifications in point of description, there is no valid patent of course unless the 'First and true Pontiff ™ ' tne fi rst an d true inventor.' And what inventor': this means is to be found, not necessarily in the novelty. meaning which might naturally be attached to the words, but in that meaning which the courts have given to it 2 . What this meaning is may be indicated by the language of a distinguished Master of the Rolls 3 . The learned judge said in substance that shortly after the first statute concerning patents, the question arose whether a man could be called a first and true inventor who in the popular sense had not invented any- thing, but who, having learned in some foreign country that some one had invented something, copied the invention, brought it to England, and took out a patent. It was held that he was a first and true inventor within the meaning of the statute, if the invention, being in other respects novel and useful, was not previously known in England as part of the common knowledge of the country. Then, as the Master of the Rolls proceeded to say, this case arose : There were two people, actual inventors in England, who invented the same thing simultaneously ; and the question was, whether either could be considered as the first and true inventor. The decision was that he was the first and true inventor who first took out the patent. And then this question arose : If the man who took out the patent was not, in popular language, the first and true inventor, because some one had invented the thing before, but had not taken out a patent for it, would he still be protected ? It was decided that he would, provided the inven- tion of the first inventor had been kept secret, that is, had not been made known in such a way as to become part of the common knowledge or of the public stock of information. The common knowledge then of the country is the test by which the question of novelty is to be applied. This obviously 1 Frearson v. Loe, 9 Ch. D. 48, Jessel, M. R. 2 See an article in the Law Quarterly Review, July, 1902, p. 280, on the History of Patent Law in the Seventeenth and Eighteenth Centuries, by E. Wyndham Hulme, treating of novelty. 3 Sir George Jessel in Plimpton v. Malcolmson, 3 Ch. D. 531, 551. 250 INFRINGEMENT OF PATENTS, ETC. [Sect. 1 does not mean that every one must know the principle of the supposed invention. What is meant, as the same judge said, is that if the thing is a manufacture connected with a particular trade, the people in that trade shall know something about it. Nor indeed need the case go so far as that. It is not necessary that the bulk, or even a large number, of those people know the fact ; if the fact be so communicated that a sufficient number may be presumed or assumed to know it, that is enough to defeat the patent. The fact may thus be communicated in different ways ; one way is by publishing it in a specification enrolled in the Patent Office ; another is by printing the description in a Publication. . J r . ° l book published and circulated in England. But the question of publication will even then turn upon the facts in the case. The mere fact that a book published in a foreign country, and containing a brief description of the invention, is found in England, is not enough. For example : The plaintiff, a citizen of the United States of America, obtains in 1865 letters patent in England for improvements in making skates. Two years before, an American book containing a brief description of the invention had been sent to the (English) Patent Office; and so had a book of drawings, containing a drawing of it, five weeks before the patent was here issued. This is not such a publica- tion as to render the patent invalid 1 . The enrolling of the preliminary specification in the Patent Office may not amount to a publication so as to bar a claim for novelty, where part of it (or perhaps the whole) contains an incomplete and insufficient description of an invention. For example : The plaintiff enrols in the Patent Office a prelimi- nary specification which contains an incomplete description of a patent ; and that part is afterwards omitted in the final specifi- cation. Subsequently the plaintiff obtains a separate patent in respect of such part ; and afterwards the defendant makes for sale an article on the principle of such patent. This is a breach of duty, the first description not being a publication 2 . 1 Plimpton v. Malcolmson, supra, a case of the greatest value. - Stoner v. Todd, 4 Ch. D. 58. See also Oxley v. Holden, 8 C. B. n. s. 666, as to the effect of abandoning a former specification. And as to want of sufficient description in the preliminary specification see United Telephone Co. v. Harrison, 21 Ch. D. 720. Sect. 1] PATENTS FOR INVENTION 251 That for which the laws give patents is ' invention,' some- thing, that is to say, which is created by original thought, 'invention'- no * something which is discovered except in the 'discovery': narrower sense of discovery. When therefore the word ' discovery' is used of something patented, it must be understood 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 l . ' 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 patented. 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 cannot 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 . Thus far of the creation, acquisition and retention of a patent right ; it remains to consider what will give the plaintiff a right infringement °^ ac tion, assuming the existence of the funda- mental right. That is, assuming that the plaintiff has a valid patent, the question remaining relates to the act of the defendant as constituting the alleged infringe- ment. The statute gives to the owner of the patent liberty ' of the what consti tutes; user. 1 Telephone Cases, 126 U. S. 531; O'Keilly v. Morse, 15 Howard (Supreme Court U. S.), 112; Walker, Patents, § 2, 2nd ed. - Corning v. Burden, 15 Howard (Supreme Court U. S.), 252, 268. 3 Id. 4 Walker, § 6; Mowry v. Whitney, 14 Wallace (Supreme Court U. S.) 620; Tilghman v. Proctor, 102 U. S. 707 ; Telephone Cases, 126 U. S. 531. 252 INFRINGEMENT OF PATENTS, ETC. [Sect. 1 sole working or making ' of the manufacture. This prevents all manner of ' user ' in the legal sense ; but it does not prevent all manner of making the patented thing by others. Patents, it has been forcibly declared from the Bench, are not granted to prevent men of ingenuity from exercising their talents in a fair way. The mere making for the honest purpose of experiment, without any view of using or vending for profit, is not forbidden; it matters not that the article so made was made with a view to improving upon the patent, or with a view to see whether an improvement can be made, — that would not be an infringement 1 . Indeed, the mere exhibition of an improvement is not a user; but to expose the imitation for sale would be an infringement, though no sale was made 2 . And it matters not in this or any other case whether the defendant knew of the existence of the plaintiff's patent 3 . Where the patent consists, as it may, of a combination of things, an infringement of it must be an infringement of the combination as such ; it would not be infringed by using some of the parts of the combination if they are not themselves patented 4 . Nor in the like case would it be an infringement to use a combination of some of the parts, less than what would be substantially necessary to constitute the subject of the patent, the combination 5 . Indeed it is held that a patent for an entire combination will not be infringed by the use of a different combination, for the same object, of the same elements, if there is no colourable evasion or imitation of the patent 6 . But where a patent consists of and covers several parts, to imitate any one of them would be an infringement 7 . For example : The plaintiff has a patent for an improved carriage wheel; the specification stating that 'said improved wheel is manufactured wholly of bar iron, by welding iron bars together into the form of a wheel, whereof the nave, spokes, and rim, 1 Frearsou v. Loe, 9 Ch. D. 48, Jessel, M. It. 2 Oxley v. Holden, 8 C. B. n. s. 666. 3 Stead v. Anderson, 4 C. B. 806. 4 Dudgeon v. Thomson, 3 App. Cas. 34. 6 Clark v. Adie, 2 App. Cas. 315. 6 Curtis v. Piatt, 35 L. J. Ch. 852, H. L. 7 Electric Tel. Co. v. Brett, 10 C. B. 838; Smith v. Northwestern By. Co., 2 El. & B. 69. Sect. 1] PATENTS FOR INVENTION 253 when finished, will consist of one solid piece of malleable iron. And the mode whereby the said bars of malleable iron are finished and united into the shape of a wheel is as follows': The specification then shows by drawings how the main spoke and rim are formed and then welded into a wheel of one piece of malleable iron. The ' claim ' states that the invention consists in the centre boss or nave, arms, and rim of the wheel being wholly composed of wrought or malleable iron, 'welded into one solid mass in manner hereinbefore described.' The defendant's wheel imitates the manner of forming the boss or nave into one piece of malleable iron with the rest of the wheel, but does not use the same mode with regard to the spokes and rim as the plaintiff's specification describes. The defendant is liable ; the claim really being for the invention of the wheel as described, and the defendant's act, being an imitation of the mode of welding the nave, is an infringement of a material part of the patent 1 . Different processes, further, may be employed for reaching the same result ; and the patenting of one process will not exclude the use by others of a different one, where Pl*0C6SS6S the result to be reached is a known result 2 . So where one has obtained a patent for the use of a known sub- stance, described by its own name, if it is afterwards discovered that the use of other known substances will produce the same effect, the use of them will not constitute an infringement of the patent ; and this though the testimony of men of science may go to show that the substances in question become, in the act of so using them, the one substance described in the patent 3 . An infringement is also committed, though, besides being equivalent to the thing patented, the later article accomplishes other advan- some other advantage beyond that effected by the ta £ es patented article. The new article 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 1 Smith v. Northwestern Ry. Co., 2 El. & B. 69. 2 Badische Anilin Fabrik v. Levinstein, 24 Ch. D. 156; Bovill v. Pimm, 11 Ex. 718. 3 Unwiu v. Heath, 5 H. L. Cas. 505. 254 INFRINGEMENT OF PATENTS, ETC. [Sect. 1 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 defendant is liable, though the use of the earth for effecting a return circuit is an improvement in the art of telegraphing 1 . Where, however, the means employed in the later article are different, not merely in form, but in substance, and consist in bstantiai combinations differing in substance, there is no difference of infringement, though the object be to produce the same result. For example : The defendant con- structs a machine for obtaining a current of air between the grinding surfaces of millstones, by means of a rotating vane, for effecting which the plaintiff also has a machine, protected by patent. The plan of the defendant is to remove from the centre of both stones a large circular portion, and in this space, opposite the opening between the two stones, to place a fan, by the rapid rotation of which a centrifugal motion is given to the air, driving it between the stones. The plan of the plaintiff consists of a portable ventilating machine, blowing by a screw vane, which causes a current of air parallel to the axis of the vane, being attached externally to the eye of the upper millstone ; 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 2 . § 2. Trade Marks The law relating to trade marks has been changing its point of view, if not its grounds, in recent times, and becoming, as has Change of been observed in another place 3 , assimilated to the point of view. } aw f property 4 . The old mode of suing for deceit is accordingly falling into disuse. But the law has not advanced and is not likely to advance to the point of assimilating the law 1 Electric Tel. Co. v. Brett, 10 C. B. 838. 2 Bovill v. Pimm, 11 Ex. 718. 3 Ante, p. 76, note. 4 See 46 * 47 Vict. c. 57, §§ 02 et seq. Sect. 3] COPYRIGHTS 255 of trade marks so far with the law of property (as e.g. the law of patents) that, for the purpose of recovering damages in a case in which there is no property-right in the plaintiff's mark, the old authorities, which make such a case an action for deceit, are no longer law. Now however the subject for consideration is the kind of trade mark in which one has a property- right, perfect in itself. The law of trade marks as a right of property, as dis- tinguished from the common-law right to recover damages for fraud though no trade mark as a right in itself existed, is a matter of statute 1 . Accordingly, to find out what constitutes a trade mark proper, as in itself a property-right, the statutes and the numerous decisions thereon must be examined. And when that question is answered it will still be a question either of the statute or of the unwritten law whether the right has been violated, or so far threatened as to justify interference by the courts. The decisions turn largely on particulars too fine for a general work on torts. It must suffice to say, in regard to the first question, that a trade mark under the statute must contain at least one of the following particulars :ii)A name of an individual or firm printed, impressed or woven in some special and distinctive manner ;jpr a written signature or copy of a written signature of the individual or firm applying for regis- tration thereof as a trade mark ; or a distinctive device, mark, brand, heading, label, ticket or fancy word or words not in comm on use. There may be added any letters, words or figures, or combination thereof"-. In regard to the question whether the right has been violated, this is generally a question of resemblance, the same in effect as if the mark were only a quasi or common-law trade mark 3 . Fraud need not h f> provpr). ffV tea \2M4v-A i/oAc-' § 3. Copyrights Statute provides in substance that the copyright in every book published in the author's lifetime shall endure for the natural life of the author and seven years there- Stitute after, and shall be the property of the author and 1 46 & 47 Vict. c. 57, §§ 62 et seq. - Id. § 64. » An te, pp . 75-77. 256 INFRINGEMENT OF PATENTS, ETC. [Sect. 3 his assigns, provided that if the seven years expire before the end of forty-two years from first publication the copyright shall endure for forty-two years ; and that the copyright in every book published after the author's death shall endure for forty- two years 1 . It is also provided that if any person shall in any part of the British dominions print or cause to be printed, either for sale or exportation, any book in which there shall be a copyright, with- out the proprietor's consent in writing, or shall import for sale or hire any such book, so unlawfully printed beyond the sea, or knowing such book to have been so unlawfully printed or imported, shall sell, publish, or expose to sale or hire, or cause to be sold, published, or exposed to sale or hire, or shall have in his possession for sale or hire any such book, without the pro- prietor's consent in writing, such offender shall be liable to a special action on the case at the suit of the proprietor of the copyright, in any court of record in that part of the British dominions in which the offence shall be committed 2 . Among many other provisions penalties are fixed for unlawful importing for sale or hire of books the subject of copyright 3 ; copyright in encyclopaedias, reviews, magazines, periodicals, and works published in a series is provided for 4 ; the provisions of earlier law are extended to musical compositions ; and the term of copyright for books applied to the liberty of representing dramatic pieces and musical compositions 5 . Pirated books are to become the property of the proprietor of the copyright 6 ; but no suit is to be brought before entry of the title of the subject of copyright in the Book of Registry at Stationers' Hall 7 . It is enacted in a later statute that the author, being a British subject or resident within the dominions of the Crown, of every original painting, drawing, or photograph shall have the exclusive right of copying, engraving, reproducing, and multiplying such painting or drawing and the design thereof, or such photograph and the negative of the same, for the term of the author's life and seven years thereafter ; provided that when any painting, drawing, or the negative of any photograph shall 1 5 & 6 Vict. c. 45, § 3. 2 Id. § 15. 3 Id. § 17. 4 Id. § 18. 6 Id. § 20. « Id. § 23. 7 Id. Sect. 3] COPYRIGHTS 257 first be sold or disposed of, or shall be made for or in behalf of any other person for a good and valuable consideration, the person so selling or disposing of or making or executing the same shall not retain the copyright thereof unless it be expressly reserved to him at the time by agreement in writing signed by the vendee or assignee of such painting, drawing, or negative of photograph, but the copyright shall belong to the vendee or assignee, or to the person for or on whose behalf the same shall have been made ; nor shall such vendee or assignee be entitled to any such copyright unless an agreement at the time in writing shall have been made to that effect 1 . This statute further fixes penalties for infringement of the copyright of the author of any painting, drawing, or photograph 2 , and for fraudulent productions and sales of the same 3 , and also gives an action for damages to the author 4 . The statute also provides with minuteness of detail the steps necessary to be taken to secure the particular kind of copyright. Copyright a These cannot be entered into here. It must suffice creation of to say that, whatever doubts once may have existed, copyright, has been determined to be a creature of statute, and hence that the author's right must stand or fall accordingly 5 ; he cannot claim copyright, in the proper sense, if he has not complied with the statutes. But he may claim pro- tection at common law against wrongful publication by others of his manuscripts, class-room lectures, and the like not printed and published by him 6 . So a painter or a buyer from him has, before publication of the work, a right to protection against others copying it 7 . It should be noticed, however, that the requirement of registration of title is intended only as a necessary preliminary to bringing suit, and not as a condition to the Registration. n i • i i existence of copyright; hence it need not be attended to at the time of taking out the copyright. It matters 1 25 & 26 Vict. c. 68, § 1. 2 Id. § 6. 3 Id. § 7. 4 Id. § 11. 5 Jefferys v. Boosey, 4 H. L. Gas. 815 ; Millar v. Taylor, 4 Burr. 2303, leading case. 6 Albert v. Strange, 1 Macn. & G. 25 ; Caird v. Sime, 12 App. Cas. 326. As to 'lecture,' see the last case, at pp. 337, 338. 7 Turner v. Robinson, 10 Ir. Ch. R. 121, 510. B. T. 17 258 INFRINGEMENT OF PATENTS, ETC. [Sect. 3 not, indeed, that the plaintiff has not registered his title at the time of the infringement ; enough that it is done before suit 1 . On the other hand a man cannot obtain a copyright before publishing his book by getting the title of it duly registered 2 . The next question to arise is, in what the plaintiff may have copyright, where the language of the statute does not exclude What may be a U question ; though this question cannot be con- copyrighted, sidered in detail. Indeed, it cannot be considered even in lines of broad principle, for want of means of generaliza- tion, beyond this, that real and original mental labour must have been bestowed upon the work in question. The rules laid down by the courts are in the main special, and it must suffice to present only some of the more important of them, with such illustrations as may be needed. Copyright may be had in the title of a book, if that be a material part of the same ; though as a general rule the title to a book, not being in any way new or peculiar, is -£j Xd 111 Xj 1G S - , . . , not a subject of copyright 3 . For example : The plaintiff publishes a book entitled ' Post Office Directory ' for a certain locality ; and he has taken the steps required for obtain- ing a copyright. The defendant afterwards publishes a book with the same title. This is no breach of duty to the plaintiff 4 . A man may have copyright in a newspaper 5 ; he may have copyright in the product of his brain in the preparation even of a calendar or a catalogue, — unless the same consist in a mere dry list of names 6 , — especially in an illustrated catalogue. For example : The plaintiffs, upholsterers, have engraved, from original drawings procured by them from artists, and publish under the copyright laws an illustrated catalogue of their wares ; the catalogue containing, however, no letterpress which might be the subject of copyright. The defendants publish a catalogue containing drawings copied from those of the plaintiffs. This 1 Goubaud v. Wallace, 30 L. T. n. s. 704. 2 Maxwell v. Hogg, L. R. 2 Ch. 307. 3 Dicks v. Yates, 18 Ch. Div. 76. See Jarrold v. Houlston, 3 Kay & J. 708. * Kelly v. Byles, 13 Ch. Div. 682. ' Walter v. Howe, 17 Ch. Div. 708. B Matthewson v. Stockdale, 12 Ves. 270; Longman v. Winchester, 16 Ves. 269; Hotten v. Arthur, 1 H. & M. 603; Maple v. Junior Army Stores, 21 Ch. Div. 369. Sect. 3] COPYRIGHTS 259 is a breach of duty ; it does not matter that the catalogue is of things for sale 1 . A man may be an ' author,' in the sense of the statute, of a verbatim report of another's public lectures 2 ; a man may have copyright in an arrangement of questions and answers in some general work, if the arrangement is the product of real mental labour-' ; he may have copyright in a book of selections and compilations from other books the copyright of which he has not thereby infringed, especially where he has added original work to the same 4 , as by comment or other additions 5 , or perhaps by mere arrangement of the materials 6 . A dictionary of quota- tions would afford an illustration. But of course no copyright could be obtained in such a case in the individual selections themselves 7 ; nor will it help the case that labour has been expended upon statements made in quoted matter in the way of verifying them 8 . Copyright may be had in a translation of a book into a foreign tongue 9 , if the right of translation has not been reserved, though the author himself has translated his book 10 ; Trsiiisleitioiis but not in a retranslation, i.e. a translation back again to English 11 . It may be had also in the dramatization of another man's novel, though the author himself has dramatized the same 12 . So in the pianoforte score of an opera, whether arranged by the author or not 13 ; and it is held that to unite words to an old air and procure an accompaniment thereto, I Maple v. Junior Army Stores, supra, overruling Cobbett v. Woodward, L. R. 14 Eq. 407. - Walter v. Lane, 1900, A. C. 539. As to class-room lectures see Caird v. Sime, 12 App. Cas. 326, deciding there is a common-law protection in favour of the lecturer against unauthorized publication. See also Walter v. Lane, at p. 547. s Jarrold v. Houlston, 3 Kay & J. 708. See this case for limitations of the rule. 4 Lewis v. Fullarton, 2 Beav. 6; Spiers v. Brown, (5 W. R. 352. 5 These themselves would be the subject of copyright. Cary v. Longman, 1 East, 358. 6 Barfield v. Nicholson, 2 Sim. & S. 1. 7 Id. 8 Morris v. Ashbee, L. R. 7 Eq. 34. '■> Wyatt v. Barnard, 3 Ves. & B. 77. 10 Semble. So held in America. Stowe v. Thomas, 2 Wallace, C. C. 547. II Murray v. Bogue, 1 Drew. 353. 12 Toole v. Young, L. E. 9 Q. B. 523. 13 Wood v. Boosey, L. R. 3 Q. B. 223, Ex. Ch. 17—2 260 INFRINGEMENT OF PATENTS, ETC. [Sect. 3 publishing them together, will entitle one to a copyright in the whole 1 . Head-notes or marginal notes to the decisions of the judges are also proper subjects of copyright 2 ; and so are products of Head-notes of mental labour worked out of sources of general and decisions. common information 3 . Indeed, the case of maps, charts, and the like, falls within the very terms of the statute. The plaintiff will lose his benefit of copyright by giving his book to the public, that is, ordinarily, by putting it upon the Previous market for sale 4 , before taking the steps required publication. ^y ^he statute for securing a title. Dramatic and musical compositions, however, stand upon a different footing from ordinary books. It is held that to publish such a compo- sition in England before representing or performing it will not deprive the author of the exclusive right, under the statute, of representing or performing it 5 ; but the contrary is held if it was first represented or performed abroad 6 . Thus far of the plaintiff's title; assuming this now to exist, the remaining question is whether the defendant has infringed it. To the author of copyrighted matter 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. An infringement of a man's copy- right may then be committed (1) by reprinting the whole copy, verbatim ; (2) by reprinting, verbatim, a part of it ; (3) by imitating the whole or a part, or by reproducing the whole or a part with colourable alterations or disguises, intended to give it the character of a new work ; (4) by reproducing the whole or a part under guise of an abridgment, not fairly constituting a new work. 1 Leader v. Purday, 7 C. B. 4. a Sweet v. Benning, 16 C B. 459; Saunders v. Smith, 3 Mylne & C. 711. :i See Gray v. Russell, 1 Story (Circuit Court U.S.), 11, 18. 4 Selling a picture is not publication. Turner v. Robinson, 10 Ir. Ch. R. 121, 510. Nor is exhibiting a picture where copying is not allowed, nor exhibit- ing it to obtain subscribers for an engraving of it. Id. ■> Cbappell v. Boosey, 21 Ch. I). 232. 6 Boucicault v. Chatterton, 5 Ch. Div. 207. Contra in America. Palmer v. Dewitt, 47 New York, 532. Sect. 3] COPYRIGHTS 261 With regard to each of these forms of infringement, it is to be observed that the question of intention does not enter into the question of piracy 1 . The question is one of property, analogous to cases of trespass or conversion; the exclusive privilege which the law secures to authors may be equally violated whether the work complained of has been published with or without the animus furandi. The fact that a party has honestly mistaken the extent of his right to avail himself of the works of others will not excuse him from liability. Piracies of the nature of those mentioned under the first head are seldom committed, and may be dismissed with tlie observation that it matters not that much original and valuable matter, far exceeding in all respects that appropriated, may be incorporated with the reprint of the copyrighted matter. The act is still an infringement, though the public might derive great benefit from the superior value of the work. Piracies of the second kind are more difficult to deal with. The quantity of matter cannot be a true criterion of the corn- Quantity mission of an infringement 2 , since only a small taken. 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 published 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 3 . Again : The defendant publishes a book entitled, ' Napoleon III. from the popular caricatures of the last thirty years.' Amongst many other pictures, the book contains nine caricatures from Punch, a publication owned by the plaintiff. Not more than one picture is taken from a single number of Punch, and the nine taken are from numbers extending over a period of several years. This is a breach of duty to the plaintiff 4 . 1 Clement v. Maddick, 1 Giff. 98. - Bramwell v. Halcomb, 3 Mylne & C. 737; Bradbury v. Hotten, L. R. 8 Ex. 1. 3 See Saunders v. Smith, 3 Mylne & C. 711 ; Sweet v. Sweet, 1 Jur. 212 ; Sweet v. Benning, 16 C. B. 459 ; Wheaton v. Peters, 8 Peters, 591 (Supreme Court U. S.). 4 Bradbury v. Hotten, L. R. 8 Ex. 1. I 262 INFRINGEMENT OF PATENTS, ETC. [Sect. 3 It may be doubtful if any part of the work of another may be taken animo furandi 1 . How much may be honestly taken, that is, taken without any purpose of supplanting the copyright work, is the difficult question. It is clear that, if so much be taken as sensibly to diminish the value of the original, an infringement has been committed 2 . 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 by an American judge that the nature and objects of the selections made must be taken into account, the quantity and value of the materials used, and the extent to which the use may prejudice the sale or diminish the profits, or supersede the objects of the original work 4 . Many mixed considerations enter into the dis- cussion of such questions. In some cases a considerable portion of the materials of the original work may be fused into another work, so as to be indistinguishable in the mass of the latter; but yet the latter, having a distinct purpose from the copy- righted 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 5 . 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 a violation of copyright. A person is entitled to make a reasonable amount of quotation from a copyrighted production by way of review or criticism ; but, under the pretence of review, no one has the right to publish a material part of the author's work 6 ; 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 Mr Godson thinks it cannot. Patents and Copyrights, 216. Mr Curtis, contra. Copyrights, 251, note. 2 Bramwell v. Halcomh, 3 Mylne & C. 737; Saunders v. Smith, id. 711. » Id. 4 Mr Justice Story, in Folsom v. Marsh, 2 Story (Circuit Court U.S.), 100. " Folsom v. Marsh, 2 Story, 100. See Bradbury v. Hotten, L. 11. 8 Ex. 1 ; D'Almaine v. Boosey, 1 Y. & C. 288, where the taking of the airs of a copy- righted opera, and putting them into the form of quadrilles and waltzes, was held piracy. 6 See Wilkins v. Aikin, 17 Ves. 422, 424. 7 Roworth v. Wilkes, 1 Campb. 94. 8 Curtis, 246, note. Sect. 3] COPYRIGHTS 2G3 In regard to imitations of the whole or part of a copyright* •< I work, the difficulty of determining the question of piracy is scarcely less ; a question arising generally in cases where common and general sources of information have been drawn upon, and made into a proper subject of copy- right. There may be likeness without copying; and, though the copyrighted work may have suggested the new one, the imitation may not be close enough to amount to infringement. The question, however, is whether the variation be substantial or merely colourable 1 . For example : The defendant is alleged 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 colourable alterations and variations, only to disguise the use thereof, or whether the defendant's work is the result of his own labour, skill, and use of common materials and common sources of knowledge, open to all men, the resemblances 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 compo- sition from other common or original sources 2 . In cases of this kind, it is considered not enough to establish a violation of duty that some parts or pages of the later work bear resemblances in methods, details, and illustrations to the copyrighted work. It must further appear that the resemblances in those parts or pages are so close, so full, so uniform, and so striking, as fairly to lead to the conclusion that the one is a substantial copy of the other, or is mainly borrowed from it :! . The next case is that of abridgments ; the rule of law in regard to which is said to be, that a fair abridgment, when the Abridgments understanding is employed in retrenching unneces- and digests. sai y circumstances, is not a piracy of the original work. Such an abridgment is allowable as constituting a new work 4 . Digests of larger works fall under the head of abridgments. 1 Trusler v. Murray, 1 East, 363, note ; Emerson v. Davies, 3 Story, 768, 793. 2 Emerson v. Davies, supra. 3 Id. 4 Copinger, Copyrights, 101. 264 INFRINGEMENT OF PATENTS, ETC. [Sect. 3 Such publications are in their nature original. The compiler intends to make a new use of them not intended by the original author. But such works must be real digests, and not mere colourable reproductions of the original, in whole or in an essential part. The work bestowed upon a digest must be something more than the labour of the pen and the arrange- ment of extracts ; it must be mental labour, designed to produce a new work, the object of which must clearly appear to be consistent with the rights of the author of the original work 1 . 1 See the remarks of Lord Lyndhurst in D'Almaine v. Boosey, 1 Younge & C. 288, a case of infringement of a copyrighted musical composition. CHAPTER XIII Violation of Rights of Support Statement of the duty. A owes to B the duty (1) not 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 condition; (2) not 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) not to withdraw, to B's damage, the subjacent support of his premises. § 1. Lateral Support: What must be Proved, etc. The owner of land has a right, against his neighbour, to what is termed the lateral support of the land. This right of Nature of the lateral support is a right of support of the land right. | n j^g na tural condition, or, in case of grant or prescription, in an artificial condition ; and this right of support of land in its natural condition is, prima facie, a right analogous to the right to make use of a running stream or of the air. It is not in the nature of an easement, and does not depend upon prescription or grant 1 . But of course a right to remove the support may be acquired by grant-, though not by custom or 1 Bonomi v. Backhous e. El., B. & E. (5*22, 646 ; s. c. 9 H. L. Cas. 503. See Darley Colliery Co. v. Mitchell, 11 App. Cas. 127 ; Bonaparte v. Wiseman, 89 Maryland, 12, 23. 2 Rowbotham v. Wilson, 8 H. L. Cas. 348, and Maryland case as just cited. 2G6 VIOLATION OF RIGHTS OF SUPPORT [Sect. 1 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 infringed, Damage f° r the purposes of a suit for tort, unless removing necessary. ^he soil cause damage' 2 ; but damage being caused by the removal of support, a right of action arises. Accordingly, to prove the removal of the lateral support of the plaintiff's land in its natural condition, to the plaintiff's damage, will make a prima facie case 3 . For example : The defendant, owner of premises adjoining the premises of the plaintiff which are located upon the sides of a declivity, excavates the earth of his land so closely to the boundary between his own and the plaintiff's property as to cause the soil of the 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 4 . The doctrine however goes no further than to sustain a right of action for the sinking of land in its natural condition. The _ . . action cannot be maintained if the sinking be due Land in . " . natural to a superincumbent weight placed upon the condition. plaintiff's premises, unless indeed some distinct right has been acquired against the adjoining occupant. For example : The defendant digs a gravel-pit in his premises close to the line between his own and the plaintiff's land. Within two feet of the line, on the plaintiff's land, stands a brick house, erected ten years before, and occupied by the plaintiff. By reason of the defendant's excavation, the premises being located on the side of a hill, it becomes necessary for the plaintiff to vacate his house, and to take it down, to prevent it from sliding into the defendant's pit. The defendant is not liable, since the plaintiff had acquired no legal right to the support of his house 5 . i Hilton v. Granville, 5 Q. B. 701; Wakefield v. Buccleuch, L. B. 4 Eq. 613. 2 Bonomi v. Backhouse, supra. 3 Thurston v. Hancock, 12 Mass. 220. See Gilmore v. Driscoll, 122 Mass. 199 ; Bonaparte v. Wiseman, 89 Maryland, 12. 4 Thurston v. Hancock, supra. 5 Thurston v. Hancock, supra; Caledonian By. Co. v. Sprot, 2 Macq. 449; Partridge v. Scott, 3 M. & W. 220. Sect. 1] LATERAL SUPPORT 267 A right to lateral support of buildings is in the nature of a right of easement, and can be acquired either by grant or by The ri lit an prescription 1 . But even though a building may easement, in have stood upon the plaintiff's premises for the nature. 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 2 . And the I same would be true, if, within the period of prescription, a new J story were added to the house, whereby the pressure was soj increased as to cause the sinking 3 . On the other hand, it is to be observed that the mere fact that there were buildings, recently erected, standing upon the Buildings on border of the owner's land when it sank, will not the land. 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 carefully conducted), and would have sunk had there been no buildings upon it, it is hold that the person sustaining the damage is entitled to redress to the extent of his loss 4 . Clearly if the operation in the adjoining land was conducted with a negligent disregard to the rights of the plaintiff and the effect of such negligence was the fall of the plaintiff's building, the adjoining occupant is liable therefor 5 . 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 1 Dalton v. Angus, 6 App. Cas. 740; infra, p. 268. In America the right cannot, it seems, be acquired by prescription. Gilniore v. Driscoll, 122 Mass. 199, 207; Tunstall v. Christian, 80 Virginia, 1. Still it has been common in America to speak of the right as arising from grant or prescription. See Gilmore v. Driscoll, supra. - Dodd v. Holme, 1 Ad. & E. 493. 3 See Murchie v. Black, 34 L. J. C. P. 337. 4 Stroyan v. Knowles, 6 H. & N. 454. But American courts hold that the value of the buildings could not be recovered, unless there was negligence ; assuming that no right bad been acquired by grant (or by prescription, if a right can so be acquired). Gilmore v. Driscoll, 122 Mass. 199, 206, 207. 5 See Dodd v. Holme, 1 Ad. & E. 493; Bibley v. Carter, 4 H. & N. 153; Gilmore v. Driscoll, supra. 268 VIOLATION OF RIGHTS OF SUPPORT [Sect. 1 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 1 . The result therefore is, (1) that the defendant is liable for the damages suffered by his neighbour for the withdrawal of the lateral support when that act of itself, and without the fault of the neighbour, was the cause of the damage, including damage done to sound buildings built twenty years or more before ; though the excavation was carefully made. (2) He is liable for all the damage suffered by withdrawing the support when he was guilty of negligence, including in the damages injuries to soundly built buildings however recently erected. (3) He is not liable, in the absence of grant or prescription, if the subsidence was caused by the weight of buildings, or by the defective condition of the same. The right of lateral support to contiguous buildings may be acquired by grant or reservation, or by prescription 2 . Where Lateral sub- buildings have been erected in contiguity by the port : how the same owner, and therefore require mutual support, acquired 7 be there is, either by a presumed grant or by a mutual sup- presumed reservation, a right to such mutual por ' support in favour of the original owner on a sale by him of any of the buildings. As against himself, on the other hand, there is a presumed grant of the right of support in favour of the purchaser, 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 neighbour 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 constructs a drain under his house to connect 1 Smith v. Thackerah, L. R. 1 C. P. 564. 2 Dalton v. Angus, supra ; Lemaitre v. Davis, 19 Ch. D. 281. Not by prescription, in America, Tunstall v. Christian, 80 Va. 1. See also Gilniore v. Driscoll, 122 Mass. 199, 207. Sect. 1] LATERAL SUPPORT 269 with a public sewer, and thereby weakens the support of the wall separating 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 (under a power) one of the houses to the plaintiff* in July, and the other to the defendant in September following. The defendant's act in weakening the support of the plaintiff's house is a breach of duty, and the defendant is liable 1 . But the right to such support of buildings is not a natural right ; and where the adjoining buildings were erected by different owners the right of support can be acquired in favour of either of the original owners (and their successors in estate) only by grant of the other or reservation, or by prescription. For example : The defendants pull down a house adjoining the plaintiff's without shoring up the latter, and thereby cause damage to the plaintiff's property. The houses were built about the same time, but by different owners of the soil ; and there is no title to support either by grant or by prescription, nor has the pulling down been negligently done. The defendants are not liable ; at least if the plaintiff has sufficient 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 defend- ant, 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 3 . There appears to be no obligation resting upon the owner of a house towards his neighbour in the adjoining tenement to Duty to keep keep his house in repair (further than to prevent in repair. ^he same from becoming a nuisance 4 ) in a lasting and substantial manner. The only duty is deemed to be to 1 Richar ds v. Ros e. 9 Ex. 218. - Peyton v. London, 9 B. & C. 725. 3 Solo mon v. Vintners ' Co., 4 H. & N. 585. 4 Compare Giles v. Walker, 24 Q. B. D. 656, as to care of premises on which thistles grow. 270 VIOLATION OF RIGHTS OF SUPPORT [Sect. 1 keep it in such a state that his neighbour may not be injured by its fall. The house may therefore be in a ruinous 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 ruinous, or Cotenants of incapable of further answering the purposes for party-wall, which it was built, he may underpin the founda- tion, 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 excavate and place 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 in America that one of the cotenants cannot, without consent of the other, interfere with the wall unless he can do so without injury to the adjoining building. No degree of care or diligence in the performance of the work will relieve him from liability, if injury be done to the adjoining building by making the improvements. For example : The defendant, co-owner with the plaintiff of a party-wall between their premises, digs down his cellar about eighteen inches, under- pinning the party-wall, and lowers the floor of his first story the same distance. In consequence of these operations, the division wall settles several inches, carrying down the plaintiff's floors, and cracking the front and rear walls of his (the plaintiff's) building. The defendant is liable to the plaintiff for the 1 Chauntler v. Bobinson, 4 Ex. 163, 170. By the Roman law no liability was incurred by the owner of a house which fell because of its ruinous condition. Dig. 39, 2, 7, §§ 2, 8. But security might be required against the impending danger. Moyle, Inst. i. p. 396; Grueber, Lex Aquilia, pp. 89, 90. - For the different kinds of party- wall, see Watson v. Gray, 14 Ch. D. 192 ; Weston v. Arnold, L. B. -8 Ch. 1084. Compare the French law. Bigelow's L. C. Torts, 555, 556. 3 Standard Bank v. Stokes, 9 Ch. D. 68. * Jones v. Bead, 10 Ir. C. L. 315, Ex. Ch. Sect. 1] LATERAL SUPPORT 271 damage thus caused, though the said operation were can-ice I on prudently 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 detriment of his neighbour, 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 3 . The existence of a right to fix a beam or timber into the wall of a neighbour's house depends upon the situation of the Fixi beam3 wall. If it stand wholly upon the land of the into party- 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 consent given, would be a trespass, for which an action would lie ; or (probably) it could be treated as a nuisance and abated accordingly. And a wall thus situated (the adjoining owner having 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 other owner 4 . Where the wall is owned in severalty to the centre, it is clear that neither owner can extend his timbers beyond the centre of the wall. To pass the line of division without per- mission 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 proprietors, since, as has elsewhere been observed 5 , each of the tenants in common is seised of the whole common property. And it follows that 1 Eno v. Del Vecchio, 6 Duer (New York), 17, 27; s. c. 4 Duer, 58. 2 Partridge v. Gilbert, 15 N. Y. 601 ; Dowling r. Hennings, 20 Maryland, 179. 3 Matts v. Hawkins, 5 Taunt. 20; Brooks v. Curtis, 50 N. Y. 639, 644. 4 See Bigelow's L. C. Torts, 555. 5 Ante, p. 213. 272 VIOLATION OF EIGHTS OF SUPPORT [Sect. 1 such a wall may also be taken down by either owner, for the purpose of rebuilding, if necessary 1 . § 2. Subjacent Support: What must be Proved, etc. While ordinarily a man's title to land includes the under- lying soil to an indefinite extent towards the centre of the earth, it is settled law that there may be two freehold: freeholds in the same body of earth measured limited right superficially and perpendicularly down towards the of excavation. L J Xi . ~ , . earth s centre ; to wit, a freehold m the surface soil and enough lying beneath to support it, and a freehold in underlying strata, with a right of access to the same, to work therein and remove the contents 2 . This right in regard to the use of the subjacent strata how- ever, 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. What then the plaintiff has to prove in a case of the kind is that, to his damage, his freehold, in its natural condition, has been deprived by the defendant of its necessary support by under- ground excavation ; that being the case, the defendant is liable, however carefulh' 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 underlying the plaintiff's close, upon which there are no buildings, in the careful and usual manner of working the mine so weaken the subjacent support to the plaintiff's close, without his consent, as to cause the same to sink and suffer injury. The defendants are liable for the damage sustained 3 . It is laid down that there is a difference between rights of support against a subjacent owner of land and an adjacent Support of owner in regard to buildings upon the dominant buiiding-s. tenement. The right to the support of buildings, 1 Stedman v. Smith, 8 El. & B. 1. 2 Humphries v. Brogden, 12 Q. B. 739; Wilkinson v. Proud, 11 M. & W. 33. 3 Humphries v. Brogden, supra. See Popplewell v. Hodkinson, L. R. 4 Ex. 248; Jordeson v. Sutton Gas Co., 1899, 2 Ch. 217, C. A. Sect. 2] SUBJACENT SUPPORT 273 as has already been observed, depends upon grant, reservation, or prescription. But against a person owning an underlying freehold, the owner of the surface freehold is entitled, 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 example : 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 company some years before. The workings by the defendants increase the defective nature of the ground, and a subsidence of the surface follows ; and from this cause and the fact that the plaintiff's buildings were not constructed with sufficient solidity, considering the state of the ground, damage results to the plaintiff's buildings. The defendants have vio- lated their duty to the plaintiff by not shoring up and support- ing the overlying tenement 1 . The support required, in the absence of grant or prescription, appears however to be merely a reasonable support. Whether the owner of the upper tenement could require the owner or occupant of the lower to support 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 surface, 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 suitable to any of the ordinary uses necessary or incidental to its reasonable enjoyment 2 . There is an analogous right of support in respect to the upper stories of houses divided into horizontal tenements. It 1 Richards v. Jenkins, 18 Law T. n. s. 437. Of course, if the buildings would have fallen without the act of the defendants, they would not be liable for the damage to them. 2 Richards r. 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 before a right to their support could be acquired. B. T. 18 274 VIOLATION OF RIGHTS OF SUPPORT [Sect. 2 is laid down that if a building is divided into floors or ' flats,' separately owned, the owner of each upper floor Upper stories V n , . ., , . . / * . of houses : or nat is entitled to vertical support from the vertical sup- lower part of the building, and to the benefit of such lateral support as may be of right enjoyed by the building itself 1 . The same would (probably) be true if the stories of the building were leased to different persons. 1 Dalton v. Angus, 6 App. Cas. 740, 793 ; Caledonian Ky. Co. v. Sprot, 2 Macq. 449. CHAPTER XIV Violation of Water Rights Statement of the duty. A, a riparian proprietor or mill- owner, owes to B, a riparian proprietor below, on the same stream, the duty not to take, except for domestic purposes, or for the needs of a mill suited to the size of the stream, anything more than a usufruct of the water thereof. § 1. Usufruct and Reasonable Use of Streams: What must be Proved, etc. 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 Nature of the right: usu- the water ex jure naturae, as a natural incident to fruct: reason- ^he ownership of the land 1 . And the right is like able use. . ... . ordinary property rights in this, that an action may be maintained for an infraction though no actual damage has been sustained 2 . Examples from the authorities just cited will presently appear. There have been some expressions by the courts, and one or two American decisions, to the effect that the right to the use of a running stream is absolute, like the right to the enjoyment of land; so that any diminution of the water by an upper proprietor is deemed actionable if he has not a right by grant, 1 Embrey v. Owen, 6 Ex. 353, 369, Parke, B. 2 Id. ; Sampson v. Hoddinott, 1 C. B. n. s. 590. 18—2 276 VIOLATION OF WATER RIGHTS [Sect. 1 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') 3 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 4 . It is only for an unreasonable use that an action will lie 5 . To make then a prima facie case, the lower proprietor has to prove that the upper proprietor has taken an amount of water from the stream such as has sensibly diminished the current ; presumptively that would be unreasonable, unless the plaintiff made his claim as upon a mill-stream. 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 diminution 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 unreasonable use of the water, and an action would lie therefor*. The same would be true if a mode of enjoyment quite different from the ordinary one should be adopted, sensibly diminishing the volume of water for any considerable time 7 . 1 Wheatley v. Chrisman, 24 Penn. St. 298. See Crooker v. Bragg, 10 Wendell (New York), 260. 2 See the arguments in Embrey v. Owen, 6 Ex. 353. :i For the general doctrine of usufruct in the Roman law, see Roby, De TJsu Fructus. 4 Embrey v. Owen, supra; Mason v. Hill, 2 Nev. & M. 747; s. c. 5 B. & Ad. 1 ; Miner v. Gilmour, 12 Moore, P. C. 131 ; Sampson v. Hoddinott, 1 C. B. n. s. 590. 5 Embrey v. Owen, supra. 6 Miner v. Gilmour, 12 Moore, P. C. 131; Elliot v. Fitchburg R. Co., 10 Gushing (Mass.), 191. 7 Sampson v. Hoddinott, 1 C. B. n. s. 590. Sect. 1] USUFRUCT AND USE OF STREAMS 277 For example : The defendant, an upper riparian owner, diverts much water from the stream into a reservoir, and delays it there to supply a factory ; this being an extraordinary use of the stream. The act is a breach of duty to the plaintiff, a lower owner 1 . 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 2 . These examples illustrate the rule that the action does not require proof of special damage 3 . A stream may be much Special reduced in size without causing any actual loss to damage not 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 diminution of the stream when it reaches the plaintiff, there is no liability whatever the abstrac- tion. For example : The defendants erect a dam across a stream and take a considerable 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 4 . Again, every riparian proprietor may use the water of the stream for his natural domestic purposes, including the needs of Use of stream ^is animals, and this without regard to the effect for domestic it may have, in case of deficiency, upon those lower down 5 . That is, the right is not limited to the usufruct ; the whole may be ta*ken if needed, — it would be deemed a reasonable user. And this leads to the remark that one criterion of liability for abstracting water from streams, used for milling purposes, 1 Wood v. Waud, 3 Ex. 748, 781. 2 Embrey v. Owen, 6 Ex. 353, 372. 3 See Harvard Law Rev., Dec. 1899, p. 299. 4 Elliot v. Fitchburg E. Co., 10 Cushing (Mass.), 191. See also Seeley r. Brush, 35 Conn. 419 ; Chatfield v. Wilson, 31 Vermont, 358 ; Gerrish v. New Market Manuf. Co., 30 New Hampshire, 478, 483. 5 Miner v. Gilmour, 12 Moore, P. C. 131; Wood v. Waud, supra. 278 VIOLATION OF WATER RIGHTS [Sect. 1 (probably) is whether, considering all the circumstances, 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 dams upon similar streams ; and this, whatever may be the effect upon the owners of land below l . The water of a stream running wholly within a man's land may be diverted, if it be returned to its natural channel before reaching the lower proprietor 2 ; and this could wholly within perhaps be done where the water runs between one s land. ^ e lands of riparian occupants, so far as the rights of parties lower down are concerned. The only person entitled to complain of such an act would be the opposite proprietor. The foregoing remarks suppose that there exists no right by prescription or grant to the use of the stream by either the Prescription upper or lower proprietor. The rights and burdens or grant. f the parties may be greatly varied by grants 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 Appropriating appropriate such water, though the result be to general sur- prevent the flow of the same into a neighbouring face water. stream, or upon the land of an adjoining occupant 3 . 1 Springfield v. Harris, 4 Allen (Mass.), 494. See Davis v. Getchell, 50 Maine, 602; Merrifield v. Worcester, 110 Mass. 216; Hayes v. Waldron, 41 New Hampshire, 580. - Miner v. Gilraour, supra ; Tolle v. Correth, 31 Texas, 362. 3 Broadbent v. liamsbotham, 11 Ex. 602; Luther v. Winnisimmet Co., 9 Cushing (Mass.), 171; Gannon v. Hargadon, 10 Allen (Mass.), 106; Curtis v. Ayrault, 47 New York, 73, 78 ; Livingston v. McDonald, 21 Iowa, 160, 166. Sect. 2] SUB-SURFACE WATER 279 Nor can there be any prescriptive right to such water. For example : The defendant, for agricultural and other useful purposes, digs a drain in his land, the effect of which is to pre- vent the ordinary rainfall, and the waters of a spring arising upon his land, and flowing in no defined channel, from reaching a brook, upon which the plaintiff has for fifty years had a mill. The defendant is not liable for the diversion, however serious the inconvenience to the plaintiff 1 . In the Pacific States of America the law is peculiar. There he who first duly appropriates all the waters of a stream running First appro- in the public lands becomes entitled to the same priation. ^ ^ ne exclusion of all others 2 . But if only part is appropriated, another may appropriate the rest ; or if all is appropriated only on certain days, others may appropriate it on other days 3 . § 2. 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, underground pursue for a short distance a subterraneous course, streams: mere 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 4 . 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 landowner. And there can be no prescriptive right to the water. For example : The defendant, a landowner 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 landowners 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 1 Broadbent v. Ramsbotham, supra; Rawstron v. Taylor, 11 Ex. 369. 2 Smith v. O'Hara, 43 California, 371. 3 Id. As to what is a due appropriation, see Weaver v. Eureka Lake Co., 15 California, 271 ; McKinney v. Smith, 21 California, 374. * Dickinson v. Grand June. Canal Co., 7 Ex. 282. 280 VIOLATION OF WATER RIGHTS [Sect. 2 by percolating underground water, produced by rainfall ; which water now, after the digging of the well, is cut off and fails to reach the stream. The defendant's act is no breach of duty to the plaintiff 1 . 1 Chasemore i\ 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 Bedford, 108 Mass. 261 ; Frazier r. Brown, 12 Ohio St. 294 ; Hanson v. McCue, 42 California, 303. In some American States the right to cut off percolating water depends, as by the Pioman law, upon the reasonable use of the soil. Bassett v. Salisbury Manuf. Co., 43 N. H. 569 ; Swett v. Cutts, 50 N. H. 439; Katz v. Walkinshaw, 70 Pacific Rep. 663. See Harvard Law Rev., Feb. 1903, pp. 295, 296. As to polluting streams, see post, p. 285. CHAPTER XV Nuisance Statement of the duty. A owes to B the duty (1) not to obstruct or impair the use of the public ways or waters in such a manner as to cause damage to B; (2) not, except in the ordinary, natural use of his own, to flood the land of B with water collected upon his own land, or by changing the course of currents 1 ; (3) not to cause or suffer the existence upon his own premises of anything not naturally there which while there causes damage to B ; (4) not to use his own premises so as to endanger the life or impair the health of B, or to disturb B's comfort, to his damage, in the use of his (A's) premises. Public nuisances are indictable nuisances, being committed (1) in the public ways or waters, or (2) on private premises to the prejudice of the general public 2 . Private nuisances are non-indictable nuisances, being com- mitted on private premises to the prejudice of one person, or but a few persons, of the neighbourhood. A public nuisance may be also a private nuisance. § I. 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 1 But see infra, p. 285. 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., 23 Q. B. Div. 391, 392, case of a heap of dirt hy the roadside. Negligence is not necessary. Rapier v. London Tram- ways Co.", 1893, 2 Ch. 588, 600; Hauck v. Tide Water Co., 153 Penn. St. 366. 282 NUISANCE [Sect. 1 instantaneously, as in the case of an explosion 1 , could hardly Nature of be a nuisance. And then further to determine the wrong. what constitutes a nuisance, so as to render the author of it liable to a neighbour 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 neighbourhood, in the prosecution of a manufacturing 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 question 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 Re s nabie difficulty arises in determining when the business manner of carried on upon neighbouring premises, either in budness^ 8 itself or in the manner of conducting it, is so detri- ' convenient mental as to subject the proprietor or manager to place ' 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 ' reasonable manner,' an action for damages could not be main- tained, though annoyance resulted; and the term 'reasonable manner ' was explained as meaning that the business was to be carried on merely in a convenient place. That is, a trade was not to be treated as a nuisance if carried on in the ordinary manner in a convenient locality. The result was to bestow upon a manufacturer the right to ruin his neighbour's property, provided only his business was carefully conducted in a locality convenient for its management 2 . Recent authorities have however changed all this, by declar- ing 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 1 An explosion might be a consequence of a nuisance however. See Kinney v. Gerdes, 116 Alabama, 310; Rudder v. Gerdes, id. 332. These cases review the authorities as to keeping gunpowder in large quantities. '-' Comyns's Digest, Action upon the Case for a Nuisance, C; Hole v. Barlow, 4 C. B. n. s. 334. Sect. 1] WHAT CONSTITUTES A NUISANCE 283 of the defendant's business; if he has, the defendant is liable. Convenience is a question for the neighbour and not for the manufacturer; and visible damage to the neighbour's property shows that the business is carried on in an inconvenient place 1 . The plaintiff accordingly makes a presumptive case against the defendant by showing that the defendant is carrying on a business in the neighbourhood of the plaintiff, which has actually and visibly done harm to the plaintiff's property there. For example : The defendants are proprietors of copper-smelting works in the plaintiff's neighbourhood, where many other manufacturing works are carried on. The vapours from the defendants' works, when in operation, are visibly injurious to the trees on the plaintiff's estate ; the defendants having no prescriptive right to carry on their business as and where they do. The defendants are guilty of a breach of duty to the plaintiff, for which they are liable in damages; though, for the purposes of manufacturing, the business is carried on at a convenient place 2 . But a person living in a populous neighbourhood must suffer some annoyance ; that is part of the price he pays for the slight detri- privileges which he may enjoy there. He cannot ment - bring an action for every slight detriment to his property which a business in the vicinity may produce. Or, to state the case in the language of judicial authority, if a man live in a town, he must submit to the consequences of those opera- tions of trade which may be carried on in his immediate locality, which are actually necessary for trade and commerce, and also for the enjoyment of property, and for the benefit of the inhabit- ants 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 in- dividually there may arise much discomfort from the trade carried on in the shop. But when an occupation is carried on by one person in the neighbourhood of another, and the result 1 Bamford v. Turnley, 3 Best & S. 62, 6(5 ; Cavey v. Ledbitter, 13 C. B. n. s. 470; St Helen's Smelting Co. v. Tipping, 11 H. L. Cas. 642. 2 St Helen's Smelting Co. v. Tipping, supra. See also Broadbent v. Imperial Gas Co., 7 De G. M. & G. 436; s. c. 7 H. L. Cas. 600. 284 NUISANCE [Sect. 1 of that occupation is a visible injury to property, the case is different 1 . It should be observed in this connection that the plaintiff is not precluded from recovering by reason of the fact that he had Notice of notice of the existence of the nuisance when he works. 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 example : The defendant is a tallow-chandler, carrying on his business in a certain messuage, in such a manner as to convey and diffuse noxious vapours and smells over premises adjoining, which the plaintiff takes possession of while the 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 natural use of Turning his premises, it is held by high authorities that no water back. one ma y turn water from his own land back upon that of his neighbour without having acquired a right so to do by statute or by grant or prescription 4 ; and this though the water thrown back comes of natural rainfall 5 . Such an act might by these authorities be treated as a trespass, and there- fore should be redressible though no damage had been sustained; for otherwise a right to send the water there might eventually be acquired by prescription, to the substantial confiscation of the particular piece of land. For example : The defendant erects an embankment upon his land, whereby the surface water accumulating upon the plaintiff's land is prevented from flowing off in its natural courses, and caused to flow in a different direction over his land. This is a breach of duty for which the 1 Lord Westbury in St Helen's Smelting Co. v. Tipping, 11 H. L. Cas. 642. 2 Bliss v. Hall, 4 Bing. n. c. 183; Bainford v. Turnley, 3 Best & S. 62, 70, 73. 3 Bliss v. Hall, supra. 4 Hurdman r. Northeastern Ry. Co., 3 C. P. Div. 168 ; Whalley v. Lan- cashire By. Co., 13 Q. B. Div. 131; Tootle v. Clifton, 22 Ohio St. 247. See also Martin v. Kiddle, 26 Perm. St. 415 ; Kauffman v. Giesemer, id. 407 ; Ogburn v. Connor, 46 California, 346 ; Laumer v. Francis, 23 Missouri, 181. 8 Hurdman v. Northeastern Ry. Co., supra. Sect. 1] WHAT CONSTITUTES A NUISANCE 285 defendant is liable to the plaintiff, though the latter suffer no damage thereby 1 . More clearly then will the Hooding of a neighbour's land create liability when damage is caused ; indeed, liability is in America held to be created not only where the water is thrown back by means of a dam, but also where a stream or a ditch is caused to overflow by turning into it water not naturally or entirely tributary to it. For example : The defendant, in the course of reclaiming and improving his land, collects the surface water of his premises into a ditch, and thereby greatly increases the quantity, or changes the manner, of the flow upon the lower lands of the plaintiff, to his damage. The defendant is liable 2 . 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 ■water: drains by some American authorities. By these it is and ditches. held that a coterminous proprietor may change the surface of his land by raising 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 3 . If the water of a stream be polluted, or otherwise rendered useless, or perhaps materially less useful than it was before, Polluting whether it be surface or sub-surface water, and water - damage ensue to another riparian owner, he can 1 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 (Ilylands v. Fletcher, L. 11. 3 H. L. Cas. 330 ; post, chapter xvii. ) ; 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. - Livingston v. McDonald, 21 Iowa, 160. A purchaser would be liable for continuing the nuisance, at least after notice. 3 Gannon v. Hargadon, 10 Allen (Mass.), 106; Dickinson v. Worcester, 7 Allen (Mass.), 19 ; Brown v. Collins, 53 New Hampshire, 443. 286 NUISANCE [Sect. 1 maintain an action therefor, unless a right to do the thing has been acquired by statute or by grant or prescription 1 . In the case of statutory authority to pollute the waters of a stream however this doctrine is to be taken with qualification. It has been laid down in regard to such cases that a city is not liable for polluting by sewage the water of a stream which it has a right to use for that purpose, so far as the 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 in managing the system or in the con- struction of sewers 2 , or in any other particular. The right, whether statutory or otherwise, must be exercised in a reason- able and proper way 3 . For milling and other purposes, for which some large or special use of the water of a stream is required, statutory rights are often granted, under various restrictions, to Mills. . 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 enjoyment, it appears to be quite clear that for such smells or vapours pro- Bodily com- ceeding from a neighbour's premises as are merely fort: smeUs disagreeable, at least such smells or vapours as and vapours. , i nc r i. • i are the necessary effect of a business property conducted there, no action is maintainable 4 . The noxious gases must produce some important sensible effect upon physical comfort. A person is indeed sometimes said to be entitled to an unpolluted and untainted stream of air for the necessary 1 Wheatley v. Chrisman, 24 Perm. St. 298 ; O'Riley r. McCbeeney, 3 Lansing (New York), 278 ; Merrifield v. Worcester, 110 Mass. 316. See Clowes v. Staffordshire Waterworks Co., L. K. 8 Ch. 125 ; Goldsmid v. Tunbridge Wells Com'rs, L. E. 1 Eq. 161, affirmed, L. R. 1 Ch. 349. 2 Merrifield v. Worcester, supra. See Blyth v. Birmingham Waterworks Co., 11 Ex. 781, to the same effect in regard to the escape of water. 3 Baxendale v. McMurray, L. R. 2 Ch. 790. The fact that certain works, improperly constructed, in the public highway are satisfactory to the municipal authorities will not prevent them from being a nuisance. Osgood v. Lynn R. Co., 130 Mass. 492. 4 See St Helen's Smelting Co. v. Tipping, 11 H. L. Cas. 642. Sect. 1] WHAT CONSTITUTES A NUISANCE 287 supply and reasonable use of himself and family ; but by the terms ' untainted ' and ' unpolluted ' are meant, not necessarily air as fresh, free, and pure as existed before the business in question was begun, but air not rendered to an important degree less compatible, or certainly not incompatible, with the physical comfort of 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 considered as more than fanciful, — more than one to mere delicacy or fastidiousness, — as an in- convenience materially interfering with the ordinary physical comfort of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and simple modes of life 3 . On the other hand, it is not necessary that health should be impaired 4 . 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 vapours and floating substances from the kiln are constantly directed to and within the plain- tiff'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 5 . It matters not Avhat it is that produces the discomfort : smoke alone may be sufficient ; so of noxious vapour alone ; so of offensive smells alone. Whatever produces a material dis- comfort to human life in the neighbourhood is a nuisance, for which damages are recoverable 6 . But the provisions of statute 1 Walter v. Selfe, 4 De G. & S. 315. 2 It is doubtful if the right of action for injury by a public nuisance would stand on different ground ; but the court in Walter v. Selfe is careful to say that a private nuisance is there spoken of. 3 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 Gas Co. v. Freeland, 12 Ohio St. 392. 4 Rapier v. London Tramways Co., 1893, 2 Ch. 588, 600; Walter v. Selfe, supra. 'The test is whether the smell is so bad and continuous as to seriously interfere with comfort and enjoyment.' Lindley, L. J., in the first case. 5 Walter v. Selfe, supra. 6 Crump v. Lambert, supra. 288 NUISANCE [Sect. 1 in regard to such annoyances, arising from the carrying on of a lawful business, should always be examined 1 . 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 peace of indecency. If the disturbance, while affecting the mind - plaintiff's mind disagreeably and seriously, would not so affect the mind of others generally, there is, it is held in America, 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 singing, reading, and talking. This is no breach of duty to the plaintiff 2 . § 2. Public Nuisances: What must be Proved, etc. 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 individual Public may be . , , • , j n n i private nui- anv special or particular damage ; proof of sucn sance : special damage is enough. 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 3 . If however the discomfort, having the like effect upon all persons, produces no particular, actual damage to any individual, no individual can maintain an action for damages by reason of it. In other words, it is necessary to the maintenance of an action for damages for a public nuisance (as well as in the case 1 In regard to smoke, under statutory provisions, see 10 & 11 Vict. c. 34, § 108 ; Cooper v. Woolley, L. B. 2 Ex. 88 ; Smith v. Midland Ry. Co., 37 L. T. N. s. 224. - Owen v. Henman, 1 Watts & Sergeant (Pennsylvania), 548. See also First Baptist Church v. Utica B. Co., 5 Barbour (New York), 79 ; Sparhawk v. Union By. Co., 54 Penn. St. 401, cases of public nuisance. :) Bose v. Miles, 4 Maule & S. 101. See also Booth v. Batte, 15 App. Cas. 188. Sect. 2] PUBLIC NUISANCES 289 of a private nuisance) that the plaintiff should have suffered actual, specific damage thereby 1 , and, by some American autho- rities, damage distinct in kind 2 . It matters not that the special damage sustained by the plaintiff is common to a large number of individuals, or to the whole neighbourhood; enough if there is actual damage to his property, or injury to his health, or to his physical comfort (as explained in considering private nuisances). The injury inflicted upon private interests is not merged in the wrong done to the general public. For example : The defendants carry on a large business as auctioneers near a coffee-house kept by the plaintiff in a narrow street in London. From the rear of the defendants' 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 daytime, obstructs the entrance to the door, and renders the plaintiff's premises uncomfortable from stench. The nuisance is a public one, but the plaintiff suffers a special and particular damage from it for which the defendants are liable to him 3 . 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, and his house shaken so as to be uncomfortable for occupation. This is a breach of duty to the plaintiff, for which he is entitled to damages, though every one else in the vicinity suffers in the same way 4 . It is however a difficult matter to state what sort of detri- ment will amount to special damage within the law of public nuisances. It appears to be necessary in the case What will . _ -oil- i amount to of obstructions of public ways or waters that a special particular user had been begun by the plaintiff, damage. x • i i , and that such user was interrupted by the wrongful act of the defendant 5 . Before the complaining party 1 Benjamin v. Storr, L. R. 9 C. P. 400; Fritz v. Hobson, 14 Cb. D. 542; Wesson v. Washburn Iron Co., 13 Allen (Mass.), 95; Milhau v. Sharp, 27 New York, 612. 2 Shaw v. Boston & Albany B. Co., 159 Mass. 597, 599. Sed qu. ? 3 Benjamin v. Storr, supra. 4 Wesson v. Washburn Iron Co., 13 Allen (Mass.), 95. 5 See Rose v. Miles, 4 Maule & S. 101. B. T. 19 290 NUISANCE [Sect. 2 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 ease- ment, he can complain to the prosecuting officer, and require him to enter public proceedings against the offender ; or (so it seems), he may proceed to make his particular use of the ease- ment, and if the obstruction be not removed before he reaches it, or in time for him to have the full enjoyment of passage, he may bring an action for the damage which he has sustained in the particular case by reason of the 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 1 . Such a case does not come within the principle that a consenting party cannot recover for damage sustained by reason of an act the consequences of which he has invited 2 , since he has not 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 damages for any loss which he may sustain by reason of its continuance. If the obstruction of itself be insufficient to cause any actual damage, it is considered that no right of action can be derived by incurring expense in removing it. For example : The de- fendant obstructs a public footway, and the plaintiff, on coming to the obstruction, in passing along the way, causes the obstruc- tion to be removed ; and this is repeated several times. No other damage is proved. The defendant is not liable 3 . 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 1 Ante, p. 284. 2 ' Volenti non fit injuria.' : » Winterbottom v. Derby, L. K. 2 Ex. 316. Sect. 2] PUBLIC NUISANCES 291 be true also of obstructions to the public waggon roads. For example : The defendant obstructs a public highway leading directly to the plaintiff's farm, and the plaintiff is thereby compelled to go to his land, if at all, with his team, by a longer and very circuitous road ; but no specific loss is proved. The defendant is deemed not liable to the plaintiff 1 . 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 example : The defendant, by raising the water of his dam, floods a highway and renders it impassable ; this highway furnishes the only means of reaching a part, in use, of the plaintiff's farm. The defendant is deemed to be liable 2 . 1 Houck v. Wachter, 34 Maryland, 265. Contra, Brown v. Watrous, 47 Maine, 161. 2 Venard v. Cross, 8 Kansas, 248. Sed qu., unless it appears that this actually causes pecuniary loss ? 19—2 CHAPTER XVI Damage by Animals Statement of the duty. A owes to B the duty (1) to prevent his animals from doing damage to B, if A has notice of their propensity to do damage, and (2) to prevent them from straying from his own upon Bs premises. § 1. What must be Proved, etc. Whoever keeps an animal with notice that it has a pro- pensity to do damage is liable to any person who, without fault Gistoflia- °^ ^ s own ^ e § a ^y contributing 1 to the injury, bility: notice suffers an injury from such animal; and this propensi y. though the keeper be not guilty of negligence in regard to keeping it properly or securely. The gist of liability for the damage is the keeping of the animal after notice of the evil propensity ; proof accordingly makes a presumptive case 2 . 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, how- ever careful he may have been in keeping the monkey 4 . If the animal be ferae naturae, it will (probably) be presumed that the defendant had notice of any vicious propensity whereby 1 As to this term, see post, pp. 3(58-371. 2 May v. Burdett, 9 Q. B. 101. See Jackson v. Smithson, 15 M. & W. 563 ; Card v. Case, 5 C. B. 622 ; Popplewell v. Pierce, 10 dishing (Mass.), 509 ; Oakes v. Spaulding, 40 Vermont, 347 ; Clowdis v. Fresno Irrigation Co., 118 California, 315. 3 Osborne v. Chocqurel, 1896, 2 Q. B. 109. 4 May v. Burdett, supra. Sect. 1] WHAT MUST BE PROVED, ETC. 293 the plaintiff had 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 presumed to have notice of any propensity which is according to the nature of the animal. For example : The defendant's cattle stray into the plaintiff's garden, and beat and tear down the growing vegetables. The defendant is liable, though not guilty of negligence ; since it is of the nature of straying cattle to do such damage 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 particular animal had any evil propensity. For example : The defendant's horse kicks the plaintiff, neither the plaintiff nor the defendant being at fault, and the defendant having no notice of a propensity of the horse to kick. The defendant is not liable ; since it is not of the nature of horses to kick people, when not provoked to the act 3 . 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 pre- vails in regard to dogs as well as with regard to other domestic animals 4 . While however negligence in the owner of the animal is not necessary to constitute a breach of duty when the ' scienter ' can be proved, negligence in the care of the animal will render the owner liable, though he did not know of the propensity. When damage is done by animals upon the owners premises, Negligence. 1 If a wild animal has been tamed and domesticated the case may be different. See arguments in May v. Burdett, supra. - See Cox v. Burbridge, 13 C. B. x. s. 430, 438, Williams, J. 3 Cox v. Burbridge, supra. The plaintiff was a boy playing in the highway at the time of the injury, but there was no evidence that he had done anything to irritate the horse. Compare Digest 9, 1, 1, §§ 5, 6; and the following pas- sage from Paul's Sent. i. 15, § 3, — ' Ei, qui irritatu suo feram bestiam vel quam- cumque aliam quadrupedem in se proritaverit, itaque damnum ceperit, neque in eius dominum, neque in custodem actio datur. ' Huschke, Jur. Anteiustin., p. 429. This of course is contributory negligence, or culpa-compensation. See post, p. 368, notes 1 and 4. * See Bigelow's L. C. Torts, 490. 294 DAMAGE BY ANIMALS [Sect. 1 a different question, or set of questions, may arise. The case will ordinarily turn upon negligence, and negligence of a special kind, to wit, with reference to the occupancy of premises. The place where the damage was done may enter into the case ; a bull may well be left at large in the owner's field, while a savage dog perhaps should not be 1 . And then the character in which the person hurt entered the premises will have to be considered in determining the question of duty. Such person may have been ' invited ' to enter ; he may have been a trespasser ; he may have been a bare licensee. The owner of premises obviously owes a duty to persons whom he induces to come there for his benefit, to wit, that they may do so safely so far as his own conduct is concerned ; while towards others his duty may be very different. And in all these cases there may be a question of the effect of notice by the occupant, or knowledge by the person injured, of the state of things. For the principles touch- ing such cases the reader must look to that part of the chapter on Negligence, relating to the Use of Premises 2 . § 2. Escape of Animals : What must be Proved, etc. By the common law of England the owner of land is bound to keep his animals within his own grounds, fenced or not; if his animals escape and get into his neighbour's premises, he is liable for the very act as for tres- pass 3 , whether the escape was owing to his negligence or not 4 . 1 Loomis v. Terry, 17 Wendell (New York), 496. 2 Chapter xviii., § 10. Section 11, on assuming the risk, should also be noticed. 3 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, 479-481, 6th ed. 4 Webber v. Closson, 35 Maine, 26. How strong the common law upon this subject is, is shown by cases applying the rule unhesitatingly to strays from open commons. See Year Book 20 Edw. 4, 11, pi. 10, where to an action of trespass with cattle the defendant pleaded that his land adjoined a place where he had common, and that his cattle strayed from the common, and that he drove them back as soon as he could. The plea was held bad, the court saying that if the land in which the defendant had common was not enclosed, he must still keep his beasts there and out of the land of others. Sect. 2] ESCAPE OF ANIMALS 295 Proof of the animal's coming upon the plaintiff's premises is enough. 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 1 . The escape of animals from the highway along which they are being driven or led is a different thing. This latter is not a Escape of ani- trespass, that is, a breach of absolute duty ; liability mais from the on the contrary turns upon negligence on the part of the owner or his servants 2 . Trespassing or stray- ing animals, it may be added, should not be injured unnecessarily in driving them away 3 . 1 Ellis v. Loftus Iron Co., supra. 2 Goodwin v. Cheveley, 4 H. & N. 631 ; Tillett v. Ward, 10 Q. B. D. 17, where an ox strayed into a shop. 3 Ante, p. 227. CHAPTER XVII Escape of Dangerous Things Statement of the duty. A owes to B the duty to prevent the escape of any dangerous thing, to the damage of B, brought or made upon the premises of A; the escape being due to defects within the control, though it may be not within the knowledge, of A. § 1. Nature of the Protection required: What must be Proved, etc. The duty considered in the preceding chapter of restraining animals from doing damage has been treated as furnishing Analogy to ground for an analogous duty with reference to damage by inanimate things of a peculiarly dangerous cha- racter, which the occupant of premises has brought or made thereon, — the duty, to wit, so to keep such things that they shall not do mischief to the occupant's neighbour. Proof of the escape of the dangerous thing, to the damage of the plaintiff, makes a prima facie right of action. But the rule is not to be taken without caution. It is laid down that where the owner of land, without negligence, or other Use of land misconduct, uses his land in the ordinary manner, in ordinary fo e w [\\ no £ b e \[q\)\q [ n damages, though mischief mines and should thereby be occasioned to his neighbour 1 , reservoirs. Still a person who, for his own purposes, brings on 1 Chasemore v. Richards, 7 H. L. Can. 349. As to malice see id. 388, and ante, pp. 16-22. Sect. 1] NATURE OF PROTECTION REQUIRED 297 his land, and collects and keeps there, anything likely to do mischief if it escapes, must, by the law of England, keep it there at his peril ; and if he does not, he will be answerable, prima facie, for all the damage which is the natural consequence of its escape ; and this however careful he may have been, and what- ever precautions he may have taken to prevent the damage 1 . For example : The defendants 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 be- tween 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 reservoir ; 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 . 1 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. See National Telephone Co. v. Baker, 1893, 2 Ch. 186. The general rule above stated has been the subject of great dis- cussion on both sides of the Atlantic, since Rylands v. Fletcher was decided. It has been denied by some of the American courts, and adopted or favoured by others. It is denied by Losee v. Buchanan, 51 N. Y. 476, by Cumberland Telephone v. United Electric Co., 42 Fed. Rep. 273, by Brown v. Collins, 53 New Hampshire, 442, and by Marshall v. Melwood, 38 New Jersey, 339 ; it is favoured by Shipley v. Fifty Associates, 106 Mass. 194, Baltimore Breweries Co. v. Ran- stead, 28 Atl. Rep. 273 (Maryland), and other cases. See further Bigelow's L. C. Torts, 497-500. Some tendency to modify it has been shown in England, but that is as much as can be said. Ponting v. Noakes, 1894, 2 Q. B. 281, noxious trees on and wholly within one's land. In substance the rule stands. See Pollock, Torts, 473-476, 6th ed. ' The authority of Rylands v. Fletcher is unquestioned, but Nichols v. Marsland [L. R. 10 Ex. 255, 2 Ex. Div. 1] has practically empowered juries to mitigate the rule, whenever its operation seems too harsh.' Id. p. 476, 6th ed. 298 ESCAPE OF DANGEROUS THINGS [Sect. 1 In such cases the owners of the upper tenement have however, as has already been intimated, 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, leaving no barrier between his mine and the plaintiff's, the consequence of which is, that the water percolating through the upper mine flows into the lower one, and obstructs the plaintiff in getting out his coal. This is no breach of duty by the defendant ; the water having flowed down in its natural course, and the defendant being entitled to remove all 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 plaintiff suffers damage. This is a breach of duty to the plaintiff, though it is done without negligence and in the due working of the defendant's mine 3 . If the damage be produced by vis major or by the act of God 4 , or otherwise, without the intervention of acts or omission Damage by of duty ^ the occupant or those for whom he is vis major or responsible, the case will be different. In the act of God. example given, if the damage had been caused by lightning bursting the reservoir 5 , 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, 1 Eylands v. Fletcher, supra; 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. 3 Baird v. Williamson, supra. 4 Nichols v. Marsland, L. R. 10 Ex. 255 ; s. c. 2 Ex. Div. 1, showing that this term includes events which human foresight could not reasonably anticipate. This case in both stages is very instructive. 8 Rylands v. Fletcher, L. R. 3 H. L. 330. Sect. 1] NATURE OF PROTECTION REQUIRED 299 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 plaintiffs' goods. The defendant is not liable 1 . Again : The defendant owns premises on which stand yew-trees, which to his knowledge 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 2 . Again if the bringing the dangerous thing upon the occupant's land, and all the works connected therewith, be effected under Legislative sanction of legislative authority, the fact that they authority. result in damage to the party's neighbour by purely natural escape or by authorized channels, and not by reason of negligence attributable to the occupant, will not render the occupant liable 3 . It is also certain, a fortiori, in such a case, that, if the escape be caused by the act of God, no liability follows. For example : The defendant is charged by law with the duty of maintaining 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 flood, 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 4 . 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, 1 Carstairs v. Taylor, L. K. 6 Ex. 217; Ross v. Fedden, L. R. 7 Q. B. 661. See Doupe r. Genin, 45 New York, 119. But see Marshall v. Cohen, 44 Georgia, 489. - Wilson v. Newberry, L. R. 7 Q. B. 31. 3 See Vaughan v. Taff Vale Ry. Co., 5 H. & N. 679. 4 Madras Ry. Co. v. The Zemindar, L. R. 1 Ind. App. 364. 300 ESCAPE OF DANGEROUS THINGS [Sect. 1 and though they would not have been liable had they had the proper authority 1 . § 2. The American Law The American law on this important subject, which it may be worth while to consider, cannot be said as yet to have become settled. The authorities are conflicting ; but the tendency in several of the States appears to be towards the English doctrine, so far at least as to make the keeper of certain things naturally dangerous a virtual insurer, prima facie, against harm from them-. It has been laid down accordingly in America, that one who knowingly keeps large quantities of nitroglycerine, dyna- , m ,. a „ .„ mite > or gunpowder on one's premises must keep American law .. r ■, • ■, i n ,i i not settled: ^ i rom doing harm by explosion, though one points de- complies with the law regulating such things and is not guilty of negligence 3 . So too 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 constructed 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 4 . And with regard to water collected in reservoirs, it is held that the embankments must be so thoroughly constructed that the water cannot percolate through them 5 . The doctrine has also been laid down that where the alleged rights of adjoining landowners conflict, it is better that one of 1 Jones v. Festiniog Ey. Co., L. R. 3 Q. B. 733; Vaughan v. Taff Vale Ey. Co., supra. 2 Bradford Glycerine Co. v. St Mary's Woollen Co., 45 L. E. A. 658 (Ohio); Kinney v. Gerdes, 116 Alabama, 310; Eudder v. Gerdes, id. 332; Shipley v. Fifty Associates, 106 Mass. 194; Wilson v. New Bedford, 108 Mass. 261. Contra, Losee v. Buchanan, 51 New York, 476. See Harvard Law Eev., March, 1000, p. 600. The Alabama cases however put the wrong as one of nuisance. :! Bradford Glycerine Co. v. St Mary's Woollen Co., supra. 4 Shipley v. Fifty Associates, 106 Mass. 194 ; Fitzpatrick v. Welch, 174 Mass. 486. But in some States it is enough that ordinary care was exercised. Under- wood v. Waldron, 33 Michigan, 232, 238 ; Garland v. Towne, 55 New Hamp- shire, 55. 5 Wilson v. New Bedford, 108 Mass. 261 ; Pixley v. Clark, 35 New York, 520. Sect. 2] THK AMERICAN LAW 301 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 carrying on the operation. This would of course be an obvious principle if stated with regard to a nuisance; but it is treated as applicable to other wrongs as well. For example: The defendants, in the course of digging a canal through their land, for which purpose they are clothed with legislative authority 1 , 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 2 . A distinction has however been declared to exist between 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 3 . The use of a boiler is not necessarily dangerous 4 . 1 The work could not therefore be a nuisance when carefully conducted. 2 Hay v. Cohoes Co., 2 New York, 159. 3 Losee r. Buchanan, 51 New York, 476. In this case the rule in Bylands v. Fletcher, supra, is denied. 4 Further, see Bigelow's L. C. Torts, 496 et seq. PAET III EVENTS CAUSED BY NEGLIGENCE BREACH OF DUTY TO REFRAIN FROM NEGLIGENCE CHAPTER XVIII Negligence Statement of the duty. A, seeing or knowing, or being in a situation to see or know, that failing to exercise ordinary care, skill, or diligence towards B, in a particular place or situation, will be apt to do harm to B, owes to B the duty not to be guilty of such failure, to the damage of B. The foregoing is a statement of duty, not for negligence universally, but for its more common or typical form, in which the relation of the parties is in no way modified by special facts, such as contract, office, or possession of land. It would be im- practicable to go further without making the statement prolix. Like fraud and malice, negligence is only an element of tort, not itself a tort; it is of a wrongful nature, but not alone a wrong. Unlike fraud and malice, negligence is not represented by a number of torts having names of their own; its origin in the law is too modern for that. The fundamental distinction between the wrongs of Part I. and Part II. on the one hand, and those of Negligence on the other, has been stated in treating of General Doctrine. The consequences complained of in the first two divisions are imme- diate, or begin immediately, upon the wrongful act or omission; the consequences complained of in negligence do not always follow at once upon the wrongful act or omission, and they are never intended 1 . 1 Ante, pp. 13, 14. Of course a man might intend the harmful consequences of his negligence; but the case would then belong to the category of intended B. T. 20 306 NEGLIGENCE [Sect. 1 § 1. What must be Proved, etc. A man may sustain damage by reason of the negligence of another, and yet have no right of action for the same. Another I ! Elements of element is necessary ; namely, that the defendant liability. owed a duty to the plaintiff not to be negligent 1 . The rule is not peculiar to negligence 2 , but it needs emphasis here. 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 general, and, secondly, assuming negligence, whether the negligence (and damage) amounted to a breach of duty to the plaintiff. Damage, that is to say special damage, is a constant and unvarying factor throughout the chapter. | 2. Legal Conception of Negligence in General Negligence in the law is a technical term, and a complex conception. Conduct is considered negligent in law which might Popular and not be considered negligent in the popular accept- legai meaning ation of the term. Indeed the popular understand- of negligence : . x L . , . rashness and mg is too apt to make its way, m unguarded or wantonness. mistaken language, 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 wrongs. And to make a case for that category, where the consequence was not, at least in part, immediate, it would be necessary to prove that the result was intended. Hence the immediateness or not of the result is material ; all the difference, on the criminal side, between manslaughter and murder may be involved. 1 Membury v. Great Western Ry. Co., 14 App. Cas. 179, 190. 2 Ante, p. 24. Sect. 2] LEGAL CONCEPTION OE NEGLIGENCE 307 negligence, in the eye of the law, embraces not merely want of care, its more familiar form, and thoughtlessness, but rashness and wantonness, in other words, danger known but disregarded or not heeded l . And well enough ; for what are rashness and wantonness but failure, in presence of danger, to respond to the prompting of judgment or conscience, which, in the one case (rashness), would not tolerate over-confidence, and, in the other (wantonness), would not excuse want of ordinary regard for another's rights 2 ? Plainly that would be negligence. But rashness and wantonness stand upon a special footing in certain cases, sometimes creating liability, as will later appear, when negligence in the more common form would not 3 . That fact, no doubt, has caused judges and writers on law, now and then, too readily to consider rashness as not negligence at all 4 . Legally speaking, then, negligence in common form, as a tort, imports misconduct causing unintended harm 5 , the misconduct consisting in a failure to respond to judgment or conscience according to ordinary standards of conduct. Still, it should be distinctly observed that the law acts, or refuses to act, in accordance with the manifestation of conduct ; Manifestation m n0 case does ^ inquire into the defendant's of conduct the attitude of mind to determine whether he was guilty of negligence. In this legal conception of it, as manifestation, negligence may consist in acts as well as in omissions, as follows from what has already been said. Further, negligence may relate either to things seen or 1 See Claridge v. So. Staffordshire Tramway Co., 1892, 1 Q. B. 422, fast driving; Maynard v. Boston B. Co., 115 Mass. 457. liashness, recklessness, and wantonness are words applied indifferently, in many cases, to danger known but not heeded ; but rashness properly is over-confidence, and reckless- ness or wantonness, disregai'd of another's rights. See for instance Southern By. Co. v. Bush, 122 Alabama, 470; Louisville B. Co. v. Orr, 121 Alabama, 489; Louisville B. Co. v. Brown, id. 221; Abrahams v. Los Angeles Traction Co., 124 California, 411. All three approach, but still fall short of, intentional wrongdoing. They are however treated as evidence of malice and trespass as well as of negligence. See ante, pp. 21, 81, 168, 172. Bashness and reckless- ness are also evidence in deceit, on the allegation of fraud. See ante, p. 64. 2 If the function itself is so dulled as not to speak, it is a case of mental derangement, more or less, and may not be negligence. 3 See post, pp. 344, 345. 4 See e.g. Smith v. Baker, 1891, A. C. 325, 347, Lord Bramwell. 5 Ante, p. 14. 20—2 308 NEGLIGENCE [Sect. 2 known, or to things unseen or unknown. A man may fail in 'Passive' and duty by ignorance, as he does when, as a man of 1 active ' negii- average prudence, care, or diligence, he ought to gence. know the facts 1 , in which case his negligence may- be called ' passive ' negligence. He may fail with knowledge ; in which case his negligence may be called ' active ' negligence. Important distinctions follow, as will appear later. Negligence, in its common or typical form, may now be defined. It consists in failure, in the particular place or situ- ation, to conform to the conduct of a prudent, careful, skilful, or diligent man, often called the 'average' man 2 ; which failure, if it cause damage, is a breach of duty unless the relation of the parties is modified by special facts. The definition has regard of course to one's conduct towards others, and not to conduct in which others are not con- cerned ; for conduct may be prudent, careful, skilful, diligent, and yet without reasonable regard for the rights of other men. Liability ex delicto for the consequences of negligence as regarded by the law arises however by reason only of acts, or omissions after the doing of acts 3 . In respect of omissions not preceded at any time by overt acts, either by the defendant or by his predecessors in interest, in connection with that which occasions the damage, there may indeed be liability ex contractu (the omission being a breach of contract) or even ex delicto ; there can be no liability in tort as f< >r negligence. An innkeeper may be liable in tort for refusing to receive a man as guest into his inn; but the liability incurred cannot properly be treated as growing out of negligence. 1 In such cases a man is sometimes said to have notice of the facts as distinguished from knowledge. The case however is elliptical. What is really true is that the person, having knowledge of certain facts which suggest inquiry, is deemed to have notice of what reasonable inquiry would lead to. See Kennedy v. Green, 3 M. & K. 699. 2 Other terms are ' fair man,' ' man of average intelligence,' 'man of ordinary intelligence or care, skill, or prudence,' and the like, according to the particular case. So by the Eoman law ; the rule of culpa levis imported an average standard. Grueber, Lex Aquilia, p. 223. * So it seems by the Eoman law. Dig. 7, 1, 13, § 2; Lex Aquilia, fr. 8 pr. Grueber, pp. 25, 26, 208-214. Sect. 2] LEGAL CONCEPTION OF NEGLIGENCE 309 There can arise indeed no civil liability for the negligent omission to do a thing required by law, though commanded by the Legislature, unless that neglect be connected with the exist- ence of something already done. A town may be required to build a bridge across a stream, but no one can maintain an action for damages against the town for neglecting, however inexcusably, to build the bridge 1 ; though an action might b'e 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) by an overt act ; to wit, the building of the bridge 2 . When it is said that no action ex delicto can be maintained for a pure non-feasance, consisting in neglect of duty, the former sort of 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 standard of negligence (in common form) is the conduct of the liability. defendant in the particular situation 3 ; the amount of care, skill, diligence or the like, varying according to the particular case. The amount of care or the like required may* thus vary to the greatest extent, while the standard itself — the care, skill or diligence of a careful, skilful, or diligent man in the particular situation — remains the same 4 . 1 Compare Lex Aquilia, fr. 8 pr. ; Grueber, pp. 25, 26, 208-214, to the same effect. ' Thus I am by no means obliged to close my neighbour's shutters, although I see the storm ajmroaching which will break the windows, and although I may prevent the damage without the slightest inconvenience to myself.' Grueber, p. 209. - Id. 3 Thus the place where men are employed has its bearing on the question of liability, as where soldiers are drilling or men are lopping off branches of trees. Compare Grueber, Lex Aquilia, pp. 128-130. 4 So by the Roman law, as expressed by the term culpa levis. The standard was ' an objective one. It is true the conduct of a diligens pater familias [which the rule of culpa levis imported] will vary, but it will vary only in accordance with the circumstances of the case: the amount of the skill, strength, foresight will always be determined by the nature of the business or work to be done, and in so far the standard is one and the same for everybody under the same circumstances.' Grueber, Lex Aquilia, p. 224. A diligent pater familias was a person ' possessed of the qualities (skill, knowledge, experience) required for his work, and who also makes the efforts necessary to attain his object, and takes... due care and foresight.' Id. p. 223. 310 NEGLIGENCE [Sect. 2 But, if not properly understood, this standard may itself be misleading. 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, though exercising, it may be, the greatest care, he injures it by reason of his lack of skill. Now in attempting to put the watch in order, and thus perhaps preventing its ruin, he has done nothing that a prudent man might not have done ; and, taking the criterion in its broadest sense, the blacksmith could not be liable to the owner of the watch for the damage which he did to it; while the law would probably be just the contrary 1 . A prudent blacksmith however would not have undertaken to put the watch in order ; he would have taken it to the watch- maker. The prudent man, ordinarily, with regard Undertakings. . . , , , . 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 undertaking 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 defendant 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 question in such a case is, whether an ordinary or average 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 under- taken. 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 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. So by the Roman law. Imperitia quoque culpae adnumeratur : veluti si medicus ideo servum tuum occiderit, quod enm male secuerit, aut perperam ei medicamentum dederit. Dig. 9, 2, 7, § 8 ; id. 9, 2, 8; id. 50, 17, 132. Proculus ait, si medicus servum imperito secuerit, vel ex locato vel ex lege Aquilia competere actionem. Lex Aquilia, fr. 7, § 8 ; Grueber, Lex Aquilia, p. 24. Mulionem quoque si per imperitiam impctum mularum retinere nun potuerit, si eae alienum hominem obtriverint, volgo dicitui culpae nomine teneri. Lex Aquilia, fr. 8, § 1 ; Grueber, pp. 26, 27. Sect. 2] LEGAL CONCEPTION OF NEGLIGENCE 311 has been exercised which a man of the same business would have exercised in the same situation. In regard to omissions (after overt acts) to perform acts not distinctly and certainly required by law, the question of the duty Practice of to perform them is to be decided by the general community. practice of prudent or careful or diligent men of the same occupation, when such a practice exists. When no such general practice exists, as perhaps in regard to the use of fire- arms or other dangerous weapons 1 , the question is decided upon the reasonably supposable conduct, higher or lower, of the prudent man, according to the circumstances or the nature of the case 2 . In the more common cases, such as actions for damage to property or for bodily injuries caused by collisions, the falling Due or reason- of timbers or other materials, or of buildings, able care. 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 jury or to the judge for decision is whether the defendant was in the exercise of due or reasonable care at the time of the misfortune. Other questions may be involved ; but the question of the defendant's negligence is always fundamental, and usually takes the form stated. 1 The rule in early times in regard to such cases seems to have been that the defendant had to exempt himself from liability for the damage done, if he could, by showing that the misfortune happened entirely without his will, or at least •without his fault. See Year Book 21 Hen. 7, 28 (shooting at butts) ; Weaver v. Ward, Hob. 134; Lambert v. Bussey, T. Kaym. 421. But the rule has changed in conformity with modern theories of civil liability, as shown ante, p. 174, and the test now is of negligence as in other cases. Stanley v. Powell, 1891, 1 Q. B. 86; Nitroglycerine Case, 15 Wall. 524; Moebus v. Becker, 46 New Jersey, 41; Winans v. Randolph, 169 Penn. St. 606 ; McCleary v. Frantz, 160 Penn. St. 535; Scanlon v. Wedger, 156 Mass. 462; Glueck v. Scheld, 125 California, 288. See also Dixon v. Bell, 5 Maule & S. 198. Greater care will be required in the use of such weapons than in that of things not dangerous ; but the question still is of the conduct of the prudent man in using them, and that question is one of fact. Moebus v. Becker and McCleary v. Frantz, supra. Note then the distinction between the firing off a gun, and such cases as explosions of nitroglycerine or the bursting of reservoirs of the chapter pre- ceding. Ante, pp. 297-300. 2 See Mulligan v. New Britain, 69 Connecticut, 96 ; Uggla v. West End Ry. Co., 160 Mass. 351 ; Ellis v. Lynn R. Co., id. 341. 312 NEGLIGENCE [Sect. 2 A remark should be made upon the question whether the conclusion or inference to be drawn from the facts in the case of Province of an ac ti° n f° r negligence is a matter for the judge or court and the jury (in jury cases) to decide. The authorities jury ' 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 is for the judge. This is true whether the question be one of negligence in the defendant or contributory negligence 1 , negligence in the plaintiff 2 . The same is also true where the law has prescribed, as in some cases it has 3 , the nature of the duty, and also where there exists a well-known practice in the community, of a proper character ; in such cases the standard of duty is fixed in regard to the very conduct to be pursued, — given the facts, and the conclusion is for the court. In other and more numerous cases the conclusion or inference is to be drawn by the jury. 1 The so-called American 'look and listen' rule in regard to crossing steam or electric railways is an example. Northern Pacific R. Co. v. Freeman, 174 U. S. 379 ; Cawley v. La Crosse Ry. Co., 101 Wisconsin, 145. The rule is not accepted everywhere. Atlantic City R. Co. v. Goodin, 45 L. R. A. 671 (New Jersey). See Harvard Law Rev., Nov. 1899, p. 226 ; post, p. 372. 2 'We are of opinion,' said Mr Justice Brewer, in Elliott v. Chicago Ry. Co., 150 U. S. 245, 246, ' that the deceased was guilty of contributory negligence, such as to bar any recovery. It is true that questions of negligence and con- tributory 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, etc. Railroad Co. v. Converse, 139 U. S. 469 ; Aerkfet v. Humphreys, 145 U. S. 418.' But if reasonable men might differ, the question is for the jury. Warner v. Baltimore R. Co., 168 U. 8. 339. 3 Thus in some of the American States trustees in making investments of funds must invest them in first mortgages of real estate, or in government securities, unless the instrument (if any) creating the trust otherwise prescribes or permits. See Hemphill's Estate, 18 Penn. St. 303. Practice or advice of others, however competent, would not excuse any departure from the require- ment, in the absence of extraordinary circumstances. The rule just stated in regard to tbe funds in which investment should be made is not universal. New England Trust Co. v. Eaton, 140 Mass. 532, 535; Brown v. French, 125 Mass. 410. Sect. 3] INNKEEPER AND GUEST 313 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 ordinary doctrine of negligence, or negligence in its common form, where the rela- tion of the defendant to the plaintiff is merelv that St)6Clll C3.SGS of man to man, no contract between 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 followed by cases in which the question is whether the defendant owed any duty to the plaintiff. § 3. Innkeeper and Guest With regard to the duties of innkeepers, it will be almost sufficient in the present connection to say that, though it has sometimes been considered that for loss or damage NGf?li°"GncG to the goods of guests liability depends upon the question of negligence in the host, or in his servants acting 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 inde- pendently of the question of negligence. 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, 1 Dawson v. Chamney, 5 Q. B. 1(54; Merritt v. Claghorn, 23 Vt. 177; Metcalf v. Hess, 14 111. 129. 314 NEGLIGENCE [Sect. 3 unless the loss occur by the guest's negligence, or by vis major, inevitable accident, or the act of God 1 . 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 liability does not turn upon the proof of negligence in the ordinary sense, the subject need not be here pursued. It is proper however to mark the fact in this connection that a question of contributory negligence 2 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 3 . § 4. 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, by the common law, for loss happening without negligence in the ordinary sense 4 . These too fall without the present subject. 1 Armistead v. Wilde, 17 Q. B. 261; Cashill v. Wright, 6 El. & B. 891; Morgan v. Ravey, 6 H. & N. 265; Oppenheirn v. White Lion Hotel Co., L. R. 6 C. P. 515; Shaw v. Berry, 31 Maine, 478; Norcross v. Norcross, 53 Maine, 163; Berkshire Woollen Co. v. Proctor, 7 Cushing (Mass.), 417; Wilkins v. Earle, 44 New York, 172; Houser v. Tully, 62 Penn. St. 92. See 26 & 27 Vict. c. 41, as to restrictions of liability. * Post, § 14. 3 Cashill v. Wright, 6 El. & B. 891; Oppenheirn v. White Lion Hotel Co., L. R. 6 C. P. 515. 4 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 defects which care and skill can guard against.' Id. Lindley, J. He is not an insurer against all defects absolutely. Id. Sect. 4] BAILOR AND BAILEE 315 It was long considered a settled doctrine of the English law that the duty of bailees was to be distributed under three heads, Degrees of having reference respectively to the nature of the negligence. 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 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 was 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 negligence on his part. If the bail- ment was 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 was without benefit to the bailee, as e.g., 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 Roman law x misunder- in England in the eighteenth century 3 . But it stood. remained in the English law unchallenged for so long a time that it has not been readily abandoned, and it may be still considered 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 Tendency of substantially what seems to have been the true authority. doctrine of the Roman law in regard to bailments, 1 Coggs v. Bernard, 2 Ld. Raym. 909 ; 1 Smith's L. C. 188, 7th ed. 2 Id. 3 Coggs v. Bernard, supra. Lord Holt took his Roman law mainly from the medieval jurists, or glossarists. Wharton, Negligence, § 57 et seq. ; Smith, Negligence, 11 et seq., 2nd ed. 316 NEGLIGENCE [Sect. 4 as well as in relation to other subjects covered by the title Negligence. The effect is to make the criterion of liability to depend upon the consideration already adverted to, whether the party complained of conducted himself in the particular situation as a man of prudence or carefulness or skill, of the same business, would have conducted himself, or as prudent or careful or skilful men, of the same business, generally do conduct themselves in the like situation 1 . This criterion indeed will often if not generally be found to be the real test applied in those cases in which the old terms are used. For example : The defendant, a bailee of money to keep without reward, gives the following account of himself: He was a coffee-house keeper, and had placed the money in question in his cash-box in the tap-room, which had a bar in it, and was open on Sunday ; and on a Sunday the cash-box was stolen. The defendant's liability turns upon the question whether he has taken such care of the plaintiff's money as a reasonable man would ordinarily take of his own ; if not, he is deemed to be guilty of ' gross negligence ' and liable for the loss 3 . Again : The defendants receive a deposit of bonds from a stranger, S, to be kept without reward. Subsequently another 1 As indicating the tendency to discard the old theory of the three degrees of negligence, see Wilson v. Brett, 11 M. & W. 113; Hinton v. Dibdin, 2 Q. B. 646; Grill v. General Collier Co., L. B. 1 C. P. 600; Beal v. South Devon By. Co., 3 H. & C. 337; Giblin p. McMullen, L. B. 2 P. C. 317, 328; The New World, 16 Howard (Supreme Court U. S.), 469; Milwaukee By. Co. v Arms, 91 U. S. 489, 494; Cass v. Boston & L. B. Co., 14 Allen (Mass.), 448; Lane v. Boston & A. B. Co., 112 Mass. 455; Briggs v. Taylor, 28 Vermont, 180. In the Boman law there were two branches (rather than degrees) of negli- gence, expressed respectively by the terms ' culpa levis ' (or ' levissima ') and ' culpa lata.' The former was the absence of the diligence of a good man of affairs ('diligentia boni patrisfamilias '), that is in matters requiring skill, knowledge, or experience (e.g. the sufficiency of the walls of a building) ; the latter the doing or omitting what any man in his senses would not do or omit ('non intellegere quod omnes intellegunt '). Dig. 50, 16, 213, 2 (e.g. driving fast through a crowded street). See Institutes of Justinian, Saudars, p. 466. 'The Aquilian law does not distinguish different degrees of culpa.' Grueber, Lex Aquilia, p. 222. Culpa levis (apart from culpa in concreto) answers to our prudent, careful, diligent, or skilful man in the particular situation. See Grueber, Lex Aquilia, pp. 223, 224. - Doorman v. Jenkins, 2 Ad. 4. :I See Wood v. Cooper, 2 Heiskell (Tennessee), 441. * Story, Agency, § 187. 5 Id. § 191 ; Moore v. Mourgue, Cowp. 479. I! Story, Agency, § 191 ; Park v. Hammond, 6 Taunt. 495. Sect. 7] DUTY OF AGENTS, ETC. 327 if he negligently or wilfully conceal a material fact or make a material misrepresentation whereby the policy is afterwards avoided l . If however it should appear that, even if the duty expected had been performed with proper care, the principal 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 2 . Servants also are bound to take due care of their master's interests, so far as intrusted to them. If a servant be guilty of Due care, a failure to exercise such care or skill or prudence skill, andpru- as a diligent servant would exercise under the circumstances, and the master suffer damage there- by, the servant will be liable for a breach of duty. On the other hand, the servant is not bound to prevent loss to his master 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 plaintiff, his master and a carrier; but there is no proof of negligence on the part of the defendant. The plaintiff must bear the loss 3 . 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 plaintiffs, 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 4 . If too it should appear that the principal or master, upon a full knowledge of the circumstances, has deliberately ratified the acts or omissions complained of, though without consideration, he will then be compelled to overlook the breach of duty, and cannot recall his condonation of the offence 5 . 1 Mayhew v. Forrester, 5 Taunt. 615. 2 Story, Agency, § 238. 3 Savage v. Walthew, 11 Mod. 135, coram Lord Holt. 4 Walker v. British Guarantee Assoc, 18 Q. B. 277. See Doorman v. Jenkins, 2 Ad. & E. 256, ante, p. 316. 5 Story, Agency, § 239. 328 NEGLIGENCE [Sect. 7 A trustee is not liable at common law for a loss which has occurred through him, if he exercised ordinary skill, prudence, Dutvoftrus- anc ^ cau tion 1 . In considering whether a trustee tees and 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 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 2 . 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 3 . An administrator or executor, or an assignee of an insolvent, should within a reasonable time. make proper efforts to convert Reasonable all the assets and securities of the estate into money time - 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 several 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 4 . 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 Taking legal an d diligence will probably require him to obtain advice. legal advice. But having complied, and having 1 Charitable Corp. v. Sutton, 2 Atk. 400, Lord Hardwicke ; Twaddle's Appeal, 5 Barr (Pennsylvania), 15; Miller v. Proctor, 20 Ohio St. 442; Harvard College v. Araory, 9 Pick. 446, 461; Hunt, Appellant, 141 Mass. 515. - Chambersburg Sav. Assoc. Appeal, 76 Penn. St. 203; Charlton's Appeal, 34 Penn. St. 473. 3 Caffrey v. Darby, 6 Ves. 488. 4 Powell v. Evans, 5 Ves. 839 ; Johnson's Estate, 9 Watts & Sergeant (Pennsylvania), 107; Chambersburg Sav. Assoc. Appeal, supra. Sect. 7] DUTY OF AGENTS, ETC. 329 no reason to suppose that the advice given is incompetent, the trustee will be exonerated in acting thereon. 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 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 security 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 ordi- nary diligence of persons in the same situation 2 ; and that may What direc- var y according to the nature of the business 3 . In tors should do. speculative ventures, so understood by all parties concerned, 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 impose 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 negli- gence 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 directors; and whatever the office, if they undertake it they must perform it fully 5 . In relation to such other officers, the duties of directors are 1 Miller v. Proctor, 20 Ohio St. 442. 2 Overend v. Gibb, L. R. 5 H. L. 480, 494, Lord Hatherley. 3 Id. 4 Id. Compare the law of deceit, ante, pp. 64— (56. 5 York & North Midland Rv. Co. v. Hudson, 16 Beav. 485, 491, Romillv, M. R. 330 NEGLIGENCE [Sect. 7 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 those 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 1 . 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 commensurate Avith 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 2 . 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 corporation itself and not to the individual members 3 . § 8. 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 Duty to indi- municipal government to perform a duty faithfully viduais. d oes no t imply that they may not also owe special duties to individuals in the performance of their business 4 . 1 Percy v. Millaudon, 20 Martin (Louisiana), 68. 2 Brewer v. Boston Theatre, 104 Mass. 378. Quasre, if 'crassa negligentia ' would be necessary to create liability in such a case? But after all 'crassa negligentia' is only negligence in the particular situation ; it is ' crassa' only as compared with what might be negligence in a different situation. See Beal c. South Devon By. Co., 3 H. & C. 337, ante, p. 318. The want of that prudence which in the same circumstances a prudent man would exercise in his own behalf is 'crassa negligentia.' Lord Hatherley in Overend v. Gibb, L. R. 5 H. L. 480, 494. 3 Brewer v. Boston Theatre, supra. It is only from necessity, and to prevent a failure of justice, that individual members of the corporation can proceed against the directors or trustees. Id. 4 Henley v. Lyme Regis, .", Ling. 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. Sect. 8] PUBLIC BODIES AND PUBLIC OFFICERS 331 Their duties in this respect are like those of private individuals transacting similar business; and whether they receive emolu- ments or not is immaterial *. Such officers are bound to exercise the diligence which the nature of their position reasonably demands ; and for a failure, resulting in special damage to any individual, they are liable to him 2 . 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 private citizen, is injured thereby. This is a breach of duty to the plaintiff 3 . Again : The defendant, a public inspector 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 4 . An individual cannot however for his own benefit, in his own name, maintain a suit against another for negligence in the suits by indi- discharge of a public duty where the damage is viduais. solely to the public 5 . 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 6 . A better reason possibly is, that as the right infringed belongs to the sovereign, as representing 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 sub- Liability of i ■ public officers urdmates, unless the latter are the servants of the for acts of former and accountable to them alone. Govern- subordinates. ment officers are however liable for the consequences 1 Mersey Docks v. Gibbs, supra. 2 See Story, Agency, §§ 320, 321 ; Hayes v. Porter, 22 Maine, 371. 3 Henley v. Lyme Regis, supra. 4 Hayes v. Porter, supra. 5 Black. Com. i. 220. 6 Wharton, Negligence, § 286; Ashby v. White, Ld. Raym. 938. 332 NEGLIGENCE [Sect. 8 of their own negligence 1 ; and this covers cases of negligence with respect to the conduct of such of their subordinates as are under their supervision and guidance 2 . 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 $100 belonging to the plaintiff is lost. The defendant is liable 3 . Officers of the courts are liable for the injurious consequences of such official acts of their own or of their servants as are officers of attributable to want of the care of prudent men in courts. the same situation 4 . For example : The defendant 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 location with regard to exposure to storms, might reasonably be expected to take if the coal belonged to himself 5 . A judge however, while acting in a judicial capacity, is not Exemption of liable for negligence 6 ; and the same is true even judges. f a p erson acting in a situation which makes 1 Clothier v. Webster, 12 C. B. x. s. 790; Mersey Docks v. Gibbs, L. R. 1 H. L. 93. 2 Story, Bailments, § 463; Schroyer v. Lynch, 8 "Watts (Pennsylvania), 453; Wiggins v. Hathaway, 6 Barbour (New York), 632. s See Wiggins v. Hathaway, supra. 4 Wolfe v. Door, 24 Maine, 104; Dunlop v. Knapp, 14 Ohio St. 64; Brown- ing v. Hanford, 5 Hill (New York), 538; Moore v. Westervelt, 27 New York, 234. The Roman law distinguished between cases in which a magistrate injuring property was acting in virtue ofhis office, and cases contra. Dig. 4, 2, 3, § 1; Dig. 18, 6, 14. But the greater magistrates could not be sued while they held office ; aliter of minor magistrates. Grueber, Lex Aquilia, p. 121 ; Keller, Der Romische Civilprocess, § 46. 5 Moore v. Westervelt, 27 New York, 234. 6 See Bradley v. Fisher, 13 Wallace (Supreme Court U. S.), 335, 350; Yates v. Lansing, 5 Johnson (New York), 282 ; Pratt v. Gardiner, 2 Cushing (Mass.), 63. Sect. 9] PERSONAL ELEMENT IN THE DUTY 333 him no more than a private arbitrator 1 . Having submitted a dispute to the decision of an arbitrator, neither party can require him to exercise the skill or care of an expert, unless he has held himself out to possess it, or has agreed to exercise it. For example : The defendant, as broker, makes a contract for the plaintiff, as follows : ' Sold by order and for account of P, to my principal 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.,' etc. This contract makes the defendant virtually an arbitrator, to determine be- tween the parties any difference arising between them as to the quality of the raisins tendered in fulfilment of the contract, not stipulating for care or skill on the part of the defendant ; and he is not liable for failing to exercise reasonable care and skill in coming to a decision, if he act in good faith, to the best of his judgment 2 . § 9. Personal Element in the Duty Having regard now to negligence in common form, with the standard of the careful, skilful or prudent man, it should be Breach of duty remarked that the failure to exercise the re- to plaintiff. • q U i re d care, skill or diligence may or may not be a breach of duty to one who sustains damage thereby 3 . The question whether there has been a breach of duty resolves itself, in reality, simply into the question, whether there has been a breach of duty to the person who complains of the damage, that is, to the plaintiff; for the statement of the duty as just put imports that the negligence may be a breach of duty, and hence a breach of duty to some particular person. This involves two inquiries; first, who owed the supposed duty; secondly, to whom that duty was due. The answer to those two Who owed the questions will cover much of the ground that duty, and to remains of the subject of negligence. The general answer to the first question may be stated thus : (a) he who was personally negligent; (b) he who by his own 1 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. 2 Pappa v. Rose, supra. 3 Ante, pp. 306, 308. 334 NEGLIGENCE [Sect. 9 servant or agent was negligent ; (c) he who has employed another to do improper work or proper work which is improperly done. The general answer to the second question : (a) he who was in danger from the negligence of another to whom he stands in a relation of legal right or of sufficient license ; (b) he who was in danger from the negligence of another to the knowledge of the latter. These general answers will now be the subject of specific examination, in their order ; the first two parts (a) and (b) of the first question being passed over and giving place to the third as the one requiring special consideration. The third part (c) relates chiefly to the employment of independent contractors and to kindred matters. § 10. Independent Contractors : Control : ' Collateral ' Negligence A man may employ another to do work for him on a footing of independence on the part of the latter, concerning ways and independent means, subject only to the terms of the bargain contractor made, and free accordingly from control bv the distinguished i from servant employer. 1 he person so employed is therefore or agent. neither the servant nor, legally speaking, the agent of the one who has employed him. This will be true of all cases of the kind, whatever the business, and however humble; at least in sound principle. Independence of the employer in ways and means is inconsistent with the relation of master and servant or principal and agent; for such relations in themselves, as we have elsewhere seen 1 , are relations of dependence, at least in the sense of a right in the employer to interfere and direct at all times. In former times this distinction was not always clearly grasped, with the result that the employer was sometimes held liable for The distinc- tne consequences of negligence by persons who are tion formerly now commonly called independent contractors, as if they were servants or agents 2 . But the better view finally prevailed, and such cases were put upon a footing 1 Ante, pp. 34, 39. 2 Bush v. Steinman, 1 Bos. & P. 404; Hilliard v. Richardson, 3 Gray (Mass.), 349. Sect. 10] INDEPENDENT CONTRACTORS 335 of their own. The employer accordingly is held not liable for damage where the contractor, whether personally or by his servants, was guilty of negligence as a mere matter of detail in the course of the employment, as he would be if the contractor was a servant or an agent of his. This is now the settled doctrine on both sides of the Atlantic 1 . For example: The defendant employs a competent independent contractor to repair his chimneys; the latter having entire control over the details of the work, though the former retains the right of control over the premises. In the course of the work, by the negligence of the defendant's servants, bricks fall from the building upon which the work is going on, and hit and injure the plaintiff. The defendant is not liable 2 . Again: The defendant, a telephone company, employs an independent contractor to connect with lead and solder certain tubes through which the wires run. To do this it is necessary to create a flare from a benzoline blow- lamp, and the flare cannot be made without applying heat to the lamp. A servant of the defendant uses for the purpose a lamp which he should have known was defective. To heat the lamp quickly, he dips it into a pot of molten solder, whereupon, because of the defect in the lamp, an explosion takes place, and the plaintiff, passing by, is hurt. The defendant is not liable 3 . On the other hand the employer will be liable for the negli- gence of the independent contractor, or of his men, where the employer employed the independent contractor to do improper work, or to do proper work which is improperly done in the 1 Beedie v. London & N. W. By. Co. (Hobbit v. The Same), 4 Exch. 244 ; Brown v. Accrington Cotton Co., 3 H. & C. 511; Hardaker v. Idle District Council, 1896, 1 Q. B. 335, 341, 352, C. A. ; Tenny v. Wimbledon District Council, 1899, 2 Q. B. 72, C. A. ; Holliday v. National Telephone Co., 1899, 1 Q. B. 221. See ante, pp. 39, 40; Bonaparte v. Wiseman, 89 Maryland, 12; City K. Co. v. Moores, 80 Maryland, 352; Ohio Southern B. Co. v. Morey, 47 Ohio St. 207; Boomer v. Wilber, 176 Mass. 482; Hilliard v. Bichardson, supra; Conners v. Hennessey, 112 Mass. 96; Gorham v. Gross, 125 Mass. 232, 240; Sturges v. Theological Education Soc, 130 Mass. 414; Harding v. Boston, 163 Mass. 14; Cuff v. Newark B. Co., 6 Vroom (New Jersey), 17. - Boomer v. Wilber, supra. The negligence was, said the court, in a mere detail of the work. The contract did not contemplate such negligence, and the negligent party is the only one to be held. 3 Ho lliday v. National Telephone Co .. supra. Wills, J.: 'If common care had been used, there was no danger to any one in the work ordered by the defendant to be done. 336 NEGLIGENCE [Sect. 10 sense of being a bad job. The two kinds of negligence may together be called vice in the ivork 1 . For example : The de- fendant employs an independent contractor to construct a building of stone, with walls insufficient in prudence to support such a building. The building falls for that reason before it is completed, and the plaintiff sustains damage thereby. The defendant is liable 2 . Again : The defendant employs an inde- pendent contractor to construct a party-wall between his land and land of the plaintiff, half on the land of each. After the completion of the wall, it falls because of defects in its construc- tion, and the plaintiff suffers damage thereby. The defendant • is liable 3 . This proceeds upon the ground that the duty undertaken by the contractor is really a duty resting upon the employer ; and I Ground of the resting upon the employer, it cannot be delegated | doctrine : by him to another without the consent of the person dut^controi ■ or P ersons > usually the public, to whom he owes thefi vice in the duty 4 . Thus the employer, if he will have a wall built or a drain made, owes the duty to others to have a good and sufficient wall or drain constructed, — a wall that will stand so far as proper construction can make it stand, a drain that will carry off its contents properly. He owes this duty to all persons who may be affected by the construction of a bad wall or drain, in other words by a vice in the work ; and he does not rid himself of the duty by employing an independent contractor to do the work, for that is no consent, by the persons harmed, to a bad job. It will be observed that the duty in question is a duty of one in control, not to be negligent therein, rather than the general duty not to be guilty of negligence. The employer, when liable for the independent contractor's negligence, is liable 1 See cases in note 1, p. 335. 3 See the doctrine of Hughes v. Percival, 8 App. Cas. 443, and Bower v. Peate, 1 Q. B. D. 321. 8 Gorham v. Gross, 125 Mass. 232. Gray, C. J.: 'Where the very thing contracted to he done is imperfectly done ... the employer is responsible for it.' The distinction is between 'negligence in a matter collateral to the contract and' cases 'in which the thing contracted to be done causes mischief.' Bona- parte v. Wiseman, 89 Maryland, 12, 21. See also, for the ground of the rule, Hughes v. Percival, supra; Ohio It. Co. v. Morey, 47 Ohio St. 207, 214; City R. Co. v. Moores, 80 Maryland, 352. 4 Hughes v. Percival, supra. Sect. 10] INDEPENDENT CONTRACTORS 337 because he cannot divest himself of the duty to exercise control over having a job done that shall be safe to others. He has the right to see that the contractor does not undertake or turn out a dangerous piece of work ; for that purpose he is in control, or rather has the poiver of control, over the work, notwithstanding the fact that he has committed the work to an independent contractor. The employer could, for instance, put a stop to the contractor's creating a nuisance of the work ; the contractor is in control, at most, only so far as he keeps to a contract which is itself proper. But in a case of negligence of the first kind spoken of, negligence, that is to say, by the independent contractor (or his Collateral men) merely, in the course of the employment, and negligence. m) ^ due £ anv v j ce { n the work or undertaking, the employer is not in control ; it is only a matter of ways and means, of which the contractor is dominus. Negligence of this kind has come to be called 'collateral' negligence 1 . The dis- tinction between cases of collateral negligence and vice in the work rests on the general theory of duty, observable danger which one may avoid 2 . Collateral negligence is not to be expected by the employer ; hence danger is not observable. It is plainly otherwise of vice in the work in either of its forms ; danger is observable and harm may be avoided. It may be difficult sometimes to determine whether the employer has retained the power to control the person employed, Difficulties of m the absence of terms of control in the contract ; the doctrine. anc | there may accordingly be doubt in regard to the soundness of some of the decisions, especially in regard to cases of humble employment 3 . But such decisions do not impeach the principle. There may possibly be another difficulty 1 The term was first used by Lord Blackburn, in Dalton v. Angus, (i App. Cas. 740, 829, aud has been adopted in the recent English cases and in many American. See Hardaker v. Idle District Council, 1896, 1 Q. B. 335, 342; Bonaparte v. Wiseman, 89 Maryland, 12, 21 ; Ohio E. Co. v. Morey, 47 Ohio St, 207; Gorham v. Gross, 125 Mass. 232, 240. The subject of the present chapter being negligence, we do not here consider cases of illegal works. See for such cases ante, p. 40. 2 Ante, p. 12. 3 E.g. Bracket v. Lubke, 4 Allen (Mass.), 138, where a carpenter employed to repair an awning is called and treated as a servant of the employer. But b. t. 22 338 NEGLIGENCE [Sect. 10 in cases in which, while the contractor's calling is naturally an independent one, restrictions are placed upon it which give the employer, or another as his agent, for instance an architect, power at any time to stop, or change, or direct the work. But until the employer exercises his rights under the restriction, the case doubtless stands as if the restriction were not named, and the employer will then be liable or not in accordance with the rules already stated. For damage due to collateral negligence by the contractor the employer would not be liable 1 . What has been said in the foregoing paragraphs applies equally to the question of the liability of the employer, or of the Sub-contrac- contractor, for the negligence of a sub-contractor 2 . tors - Liability for collateral negligence in such cases has been put thus : ' In ascertaining who is liable for the act of a wrongdoer you must look to the wrongdoer himself, or to the first person in the ascending line who is the employer and has control over the work. You cannot go further back and make the employer of that person liable 3 .' The doctrine of control leads to some kindred questions. Is the independent contractor himself liable for vice in the work New questions after he has turned over the work to his employer 4 ? raised. j s a vendor of chattels liable to persons other than the buyer from him, for his own negligence ? Is a landlord of leased premises liable to third persons who have suffered damage by reason of any negligent state of the same ? These questions in order. surely the carpenter's vocation is ' independent.' See Conners v. Hennessey, 112 Mass. 96. This case lays down a general test of independence ; which perhaps should not be taken very strictly. 1 Frassi v. McDonald, 122 California, 400. See Hardaker v. Idle District Council, 1890, 1 Q. B. 335, which perhaps is a case of the kind ; but it was decided on the ground that there was a vice in the work. So also Hughes v. Percival, 8 App. Cas. 443. " Bapson v. Cubitt, 9 M. & W. 710; Overton v. Freeman, 11 C. B. 807; Murray v. Currie, L. It. 6 C. P. 24; Cuff v. Newark E. Co., 6 Vrooin (New Jersey), 17; Bigelow's L. C. Torts, 657. s Murray v. Currie, L. 11. 6 C. P. 24, 27, Willes, J. 4 Of course he remains liable for any collateral negligence of his, until the Statute of Limitations exempts him. Sect. 11] COMPLETION OF WORK, ETC. 339 §11. Completion of Work: Sale of Chattel: Lease of Premises The independent contractor has completed the wall, the drain, the elevator, the gallery, the amphitheatre, the tenement house, and turned over the work to the employer, who work turned accepts it ; there is a vice in the work which now over: inspec- causes damage to another: is the contractor liable/ tion tj If he has contracted for a right of inspection, he may well be ; for the right to inspect (and amend, which follows) should give him sufficient power of control, unless perhaps the intervals of inspection are so far apart or are hampered by such restrictions as to make the right but nominal. But it should be observed that the contractor's liability rests at the same time upon the assumption that the damage happens to one entitled to exemption from harm by the vice in the work ; which is only another way of saying that the contractor must have owed a duty to the particular person hurt. But suppose that the contractor has no right to inspect ? It may be suggested that the contractor will still be liable for the Circuity of sake of preventing circuity of action. The owner action. j s ij a l)i e to the person hurt, and the contractor is (or may be) liable over to the owner; therefore the contractor is liable to the person hurt — so would run the argument. But the soundness of the suggestion may be doubted. To make the contractor's liability turn upon his liability to the employer would be to make it subject to any discharge which the employer might see fit to grant him 1 . The test should be, whether the j contractor owes a duty to the plaintiff; if he does owe the duty, there is no place for the doctrine of circuity of action ; if he does not, no notion of preventing circuity should make him liable. The case should then stand upon the doctrine of duty. Duty the contractor owed to the plaintiff while the work was in Delegation of n * 8 htmcls ; and that duty he could not then or duty: extinc- afterwards delegate to the owner in the sense of getting rid of it himself, towards a third person, 1 The contractor's liability may come to an end when the work is done and turned over, it will be seen ; but that is a different thing from making it subject t>> the will of the employer. 22—2 i 340 NEGLIGENCE [Sect. 11 while otherwise (i.e. apart from the delegation) subject to it. So long as the duty exists, it cannot be delegated, so as to divest the person owing it of its binding force, without the consent of the person to whom it is owed. But a duty may be extinguished in certain ways without such person's consent. Whether com- pleting and turning over the work extinguishes the duty will perhaps turn upon the question whether the yice in the work was intended, or what in the way of negligence comes to the same thing, was due to reckless or wanton disregard of rights 1 . Probably the duty is extinguished, on completion of the work, where the negligence of the contractor was passive, that is, where he did not in fact know of the vice in the work, though he ought to have found it out. The property is by the hypothesis now entirely out of the contractor's control, and may be sold again and again, and if it be a chattel may be carried away and disappear until the contractor, if liable, is called upon for damages. The next question is of the liability of the vendor of a chattel to one who did not buy from him, for damage caused by his Remote ven- negligence in respect of the chattel. This question dor of danger- usually arises in relation to the effect of the chattel's passing through other hands before it reaches the plaintiff, and in that aspect is considered further on 2 . It will perhaps be enough at this place to say that for negligence in the sense of want of due care, that is, want of knowledge when one should know, or passive negligence, and that alone, the vendor's liability does not extend to others than the buyer and those who, according to the clear purpose of the seller and the buyer 3 , are to use the chattel. The sale and delivery of the chattel puts the article out of the seller's control and also, in cases of mere passive negligence, destroys the duty ; unless the very dangerous nature of the chattel imposes a special duty upon the vendor, — of which in another section 4 . 1 Compare Maynard v. Boston & M. E. Co., 115 Mass. 458, Gray, C. J. ; Southeote v. Stanley, 1 H. & N. 247, Bramwell, B. 2 Infra, § 16. 3 Compare Langridge v. Levy, 2M.&W. 519; s. c. i M. & W. 338, a case of misrepresentation. See Heaven v. Pender, 11 Q. B. Div. 503, 516. 4 Infra, § 16. Sect. 11] COMPLETION OF WORK, ETC. 341 The last question is of the liability of a landlord of leased premises to third persons who have suffered damage by reason Lease of prera- °f * ne defective condition of the premises, due to ises: duty of negligence. But it must first be asked, whose lessor • negligence it was, the landlord's or the tenant's ? unless it was the negligence of both. For if the landlord was not negligent, he cannot, it seems, be liable for the negligence of a tenant over whom he has no control 1 . There certainly may be negligences touching the premises for which the landlord, not being in control or having notice, cannot be responsible, as for leaving open a scuttle in a sidewalk for half-an-hour. It may be however that the damage was caused by a con- dition of the premises for which the landlord would be liable to the plaintiff regardless of the question whether the premises were let and out of his possession. Thus the damage may have been caused by the defective condition of the eaves of a house overhanging the street, whereby pipes fall from the same and strike one passing along in the highway. The landlord would be liable in such a case, if he had notice that the premises were in that state ; for the owner of premises owes to the public, and to every member thereof, the duty to have his premises in safe condition for those who are passing in the highway, so far as by diligence he can. The highway must be safe and the landlord must not negligently make it unsafe, or after notice permit it to remain unsafe even in the hands of his tenant. He does not get rid of this duty by leasing his premises and thus putting them out of his hands. He would no doubt have sufficient power of control to enter and repair, unless the lease forbade ; but even if the lease took away his right of repair he would be liable, because he could not get rid of his duty to the plaintiff by contract with the tenant-. Sale alone would put an end to his duty. 1 Query of tenancy at will ? The landlord may put an end to the lease, hut otherwise he has no control over the premises. While the tenancy continues the landlord has no more control or power of control than he would have if the tenancy were for a term of years. It should seem therefore that the text covers such cases. - The duty to repair rests, in the ahsence of stipulation otherwise, on the tenant ; and the tenant being accordingly bound to repair is liable for the neglect, whether the landlord is also liable or not. See Lowell v. Spaulding, 4 Cushing (Mass.), 277; Fisher v. Thirkell, 21 Michigan, 1. 342 NEGLIGENCE [Sect. 11 It is not clear, where the premises fell into disorder by the negligence of the tenant alone, whether the landlord would be liable for damage done before having notice of the state of things. Probably he would not be, because the duty of control, which includes the duty of repair, appears to be a duty not to be guilty of negligence in the matter ; the duty of control is not neglected if there be no reason to suppose that anything is wrong. It will be seen from what has already been said that the common way in former times of putting the rule of liability in cases of landlord and tenant, to wit, that the landlord is liable if the defective condition of the premises was due to his negligence, though true in certain cases 1 , is too broad. Still, while it is true that the tenant is or may be 2 liable if he was negligent in the matter, the landlord also may be liable ; enough that the landlord as well as the tenant owed a duty to the person suffer- ing damage. And in cases in which the landlord has assumed, what apart from contract would rest upon the tenant, the duty of ordinary repair, the landlord will, it seems, be liable for the negligence of the tenant alone, touching repairs (though not for the tenant's negligence in other respects) 3 ; but in principle not, even in such a case, to customers or guests of the tenant, for to them he owes no duty of the kind under consideration. The question of liability will be complicated where there is a mixed tenancy between the landlord and tenant, or perhaps Mixed ten- where the landlord has let a building in parts to an °y- several tenants with common entrances, hallways, and the like 4 . In the first of the two cases it seems that where the plaintiff was not hurt by reason of any duty (such as that of 1 See Miller v. Hancock, 1893, 2 Q. B. 177, C. A.; Nelson v. Liverpool Brewery Co., 2 C. P. D. 311; Todd v. Flight, !l C. B. n. s. 377; Fisher v. Thirkell, 21 Michigan, 1. 2 The tenant would not be liable if he owed no duty to the plaintiff, as where the latter entered only as a customer or guest of the landlord. 3 See Fisher v. Thirkell, supra; Lowell v. Spaulding, 4 Cushing (Mass.), 277. 4 Miller v. Hancock, 1893, 2 Q. B. 177, C. A. See Lane v. Cox, 18117, 1 Q. B. 415, C. A., supra; Gordon v. Cummings, 152 Mass. 513; Marwedel v. d>ok, 154 Mass. 235. Or where a railway company has let its property and yet kept control of the running of the cars. Chesapeake R. Co. v. Howard, 178 U. S. 153. Sect. 12] CARE OF PREMISES 343 keeping the premises safe for persons passing in the highway) which the landlord owed to the public, the general test of the landlord's liability is whether the plaintiff entered on business with him or by his invitation. If the plaintiff entered on business with, or by invitation of, the tenant, the tenant alone is liable, if either is 1 . As for the case of a building let in parts to several persons, with right to use common entrances and hallways, it may well be that the landlord, by assuming the duty of care over such places, should be held liable for the defective con- dition of them to customers of the tenants' 2 ; but that is a question of the person to whom the duty of care is due, rather than of the person who owes the duty 3 . It has been suggested that the landlord's liability for his tenant's negligence, where he is liable for it, rests upon the ground of preventing- circuity of action 4 . But that may be doubted, as in the matter before considered 5 , except in regard to cases in which the landlord has assumed the duty of the tenant to make ordinary repairs. The true ground in general appears to be the duty of the landlord to the plaintiff; the question of liability accordingly being direct. We come now to the second general question, to whom the duty is due 6 . § 12. Care of Premises In this section the duty of the owner or occupant of premises to the plaintiff, for damages sustained thereon, by reason of the Division of condition of the premises, is to be stated. The the subject. question of the existence and nature of the duty turns more or less upon the consideration of the occasion which brought the plaintiff there ; that is, whether the plaintiff was a trespasser, a bare licensee, an invited licensee, a customer- licensee, or a licensee by law 7 . The question must therefore be considered with reference to each of these situations. The owner or occupant of premises owes no duty of care or 1 See Lane v. Cox, supra; Roche v. Sawyer, 176 Mass. 71. 2 See Miller v. Hancock, 1893, 2 Q. B. 177, C. A. 3 Post, p. 356. 4 Lowell v. Spaulding, 4 Cushing (Mass.), 277. 5 Ante, p. 339. 6 Ante, p. 333, § 9. 7 For the case of servants, see § 13. 344 NEGLIGENCE [Sect. 12 diligence to keep his premises in repair for the purposes of Trespassers: trespassers. In other words, it is no breach of due care : duty to a trespasser that a man's premises were, WtLntoniiPss by reason of his ' passive ' negligence 1 , in a danger- ous 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 towards such persons to maim them, as by savage beasts, hidden guns, or missiles 2 . For example : The defendant has a savage dog on his premises, which he knowingly 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 3 . 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 trespassing on the premises is injured by the gun, having no notice of danger. The defendant, apart from statute, is liable 4 . More than that, while the owner of premises is not bound to exercise care or diligence to keep his premises in repair for trespassers, he does owe the duty, even to such persons, not to suffer them to receive harm by reason of any improper condition of them if he knows that a trespasser is in danger thereby and can give him warning. For the owner, with knowledge that a 1 Ante, p. 308. 2 Talrnage v. Smith, 59 N. W. Eep. 656 (Michigan). Compare Lex Aquilia, fr. 9, § 4, that to throw a missile at a slave and hit him is actionable, though the slave should not have been where he was. So also, it seems, though the thrower was trying only to show his dexterity in not hitting the slave. Grueber, Lex Aquilia, pp. 31, 32 ; 'nam lusus quoque noxius in culpa est.' Lex Aq. fr. 10 pr. :t Loomis v. Terry, 17 Wendell (New York), 496, an extreme case. 4 Bird v. Holbrook, 4 Bing. 62S. See Clark v. Chambers, 3 Q. B. D. 327, 333. As to notice now, see 24 & 25 Vict. c. 100, § 31. If, in the absence of statute, the trespasser had knowledge of the existence of the danger, or if a man entered in the night-time with a felonious intent, he (probably) ' assumed the risk' (see post, § 13) and could not recover; though even in such cases the owner of the premises would not be justified in purposely inflicting greater harm than would be necessary for the protection of his property and the expulsion of the intruder. See the two cases just cited ; also Ilott v. Wilks, 3 B. & Aid. 308; Woolf v. Chalker, 31 Connecticut, 121; ante, p. 227. Sect. 12] CARE OF PREMISES 345 person is in danger of harm from fault of his, the owner's, to do nothing, would show want of ordinary regard for, in other words, wanton or reckless disregard of, the person's safety, one of the forms of negligence already referred to 1 . In such a case, that person would have a legal right to proper warning, which, but for the owner's knowledge of his danger, he would not have apart from statute or from some intended menace to safety by the owner 2 . The sort of negligence for which the owner is ' not liable to trespassers, want of care or diligence in regard to the condition of his premises, is accordingly passive negligence the sort for which he is liable, active negligence 3 . 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 4 , without request or inducement of the occupant, meant by but still under circumstances from which he has dutv^cTs 86 ^ 3 come to suppose a permission; as in the case of persons accustomed, without interference, to cross a line of railway in no definite track 5 , or possibly of persons crossing an open field on a footpath, commonly used by the neighbours, but without any right of way 8 . 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 7 , occupies probably a more favourable position 1 Maynard v. Boston R. Co., 115 Mass. 458, Gray, C. J.; Clarklge v. So. Staffordshire Tramway Co., 1892, 1 Q. B. 422, fast driving. See ante, p. 307. - See Bird v. Holbrook, supra, and the note following, and compare cases of gift, loan, or bailment of chattels which are defective or otherwise dangerous; the giver, lender, or bailor not being liable for damage unless he knew of the danger and did not give warning. Coughlin v. Gillison, 1899, 1 Q. B. 115, C. A.; Indermauer v. Dames, L. R. 1 C. P. 274 (s. c. L. R. 2 C. P. 318); Farrant v. Barnes, 11 C. B. n. s. 553, 564 ; ante, p. 319. If the act was a mere gratuity, the owner could not be required to enlarge his gift by making the chattel perfect ; the most that could be demanded would be that he should give warning if he knew of the danger. :J Ante, p. 308, as to these terms, and see Southcote v. Stanley, 1 H. & X. 247, Bramwell, B., as to the second. 4 See Batchelor v. Fortescue, 11 Q. B. D. 474. 5 Harrison v. Northeastern By. Co., 29 L. T. n. s. 844. 6 Morrow v. Sweeney, 38 N. E. Rep. 187 (Indiana). 7 Batchelor v. Fortescue, 11 Q. B. D. 474 ; Harrison v. Northeastern 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. 346 NEGLIGENCE [Sect. 12 than a trespasser. He can, of course, insist that the occupant shall let loose no savage beast upon him, set no traps in his way without giving him fair notice 1 , or cause him to suffer harm there, knowing that he is in danger 2 . 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 to exercise reasonable care with regard to the keeping of vicious animals, of whose propensity to do harm the occupant 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 passing ; this too would modify the question of liability 3 . For example : The defendant, a railway company, has a rule that a whistle shall be sounded by express trains at a certain 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 any one 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 4 . 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 l public than it ordinarily is ; if he should do so, he is liable as 'for a nuisance to any one who has suffered damage thereby 5 . And a bare licensee on the wrongdoer's premises will be entitled to recover for any damage sustained thereby. For example : The defendant digs a pit adjoining the highway, and fails to fence it off from the street. The plaintiff, while walking along 1 See Hart v. Cole, 156 Mass. 475, 477. 2 Southcote v. Stanley, 1 H. & N. 247. 3 Dublin cfc Wicklow Ry. Co. v. Slattery, 3 App. Cas. 1155; Northeastern Ry. Co. v. Wanless, L. R. 7 H. L. 12, as to open gates; Williams r. Great Western Ry. Co., L. R. <) Ex. 157, open ^ates. 4 Dublin & Wicklow Ry. Co. v. Slattery, supra. See also Davey v. South- western Ry. Co. 12 Q. B. Div. 70, affirming 11 Q. B. D. 213; Gray v. North- eastern Ry. Co., 48 L. T. n. s. 904. '•> Ante, p. 281, note. Sect. 12] CARE OF PREMISES 347 the street, in the dark, accidentally steps a little aside in front of the pit and falls into it, thereby sustaining bodily injury. The defendant's act in leaving the place unguarded makes it a public nuisance, and he is liable for the injury received by the plaintiff 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 direction 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 fencing the place, since it is not substantially adjoining the highway, and the deceased must have become a trespasser before reaching the reservoir 2 . The same will be true of injury sustained by straying cattle or horses 3 . For example : The defendant digs a pit in his waste 1 Barnes v. Ward, 9 C. B. 392. But see contra, Howland v. Vincent, 10 Met. 371, in which however the point appears to have been overlooked that the defendant's act amounted to a public nuisance. And see Damon v. Boston, 149 Mass. 147. - Hardcastle v. South Yorkshire Ry. Co., 4 H. & N. (57. See Dinks v. South Yorkshire Ry. Co., 3 Best & S. 244; Houndsell v. Smyth, 7 C. B. n. s. 731; Piggott, Torts, 236. 3 Blyth v. Topham, Croke, Jac. 158; Maynard v. Boston & M. R. Co., 115 Mass. 458. 348 NEGLIGENCE [Sect. 12 land within thirty-six feet of the highway, and the plaintiff's straying horse escapes into the waste and falls into the pit animals. an( j j s kiH e cL The defendant has violated no duty to the plaintiff 1 . Again: The plaintiff's horse strays upon the defendant's railway track and is killed by negligence (short of wantonness, i.e. active negligence) of the defendant's servants. The defendant is not liable' 2 . If the licensee entered or acted by direct invitation of the occupant, the situation may become very different. In such cases the occupant owes a duty to the licensee, not Invitation. . .... . merely to restrain his ferocious animals, and to prevent injury from dangerous concealed engines, and to guard against nuisances adjoining the highway, but also, unless the invitation was for mere hospitality or benevolence or friendship, to keep his premises in reasonable repair, i.e. to refrain from negligence generally ; otherwise, he will be liable for any injury sustained by the licensee, not caused by the latter's own act. In other words, the owner or occupant is bound, except in cases of hospitality or the like, to exercise reasonable care to prevent damage from unusual danger, of which he has or ought to have knowledge. This is true even in respect of gratuitous privileges touching public and quasi-public ways, such as railways and roadways for Public and entering one's premises. For example : The de- quasi-pubiic 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 accom- modation 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 waggon is signalled by the flagman to cross, and on pro- ceeding, according to the signal, to cross the track, is run against by one of the defendants' engines ; the flagman having 1 Blytli v. Topham, supra. '-' Maynard v. Boston & M. R. Co., supra. See Tat't 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., 9S Mass. 560; ante, p. 307. Sect. 12] CARE OF PREMISES 349 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 damage, without fault of his own. The defendant is deemed liable ; having held out an inducement to the plaintiff-. The gist of liability in such cases consists in the fact that the person injured did not act merely for his own convenience and pleasure, and from motives to which no act or sign of the owner or occupant contributed, but that he entered the premises because he was led to believe that the way was 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 was in accordance with the intention and design with which the way was adapted and prepared or allowed so to be used 3 . The real distinction therefore is this : A mere passive acquiescence by an owner or occupier in the use of a way over his land by others may involve no liability for negligence; but if, directly or by implication, he induce persons to enter upon his roadway for purposes not merely of hospitality or the like, he thereby assumes an obligation to keep it in a safe condition, suitable for such use, and must not be guilty even of passive negligence. For a breach of this obligation he is liable in damages to a person injured thereby 4 . It was urged in the authority in which this doctrine was laid down (a point worthy of notice here) that if the defendants Gratuitous were liable in such a case, they would be made to undertakings. su ff er D y reason of the fact that they had taken precautions to guard against accident at a place which they were not bound to keep open for use at all, and that the case 1 Sweeny v. Old Colony E. Co., 10 Allen (Mass.), 368. See Holmes v. Drew, 151 Mass. 578. As to the discontinuance of a gatekeeper see Cliff v. Midland Ky. Co., L. li. 5 Q. B. 258. 2 Corby v. Hill, 4 C. B. n. s. 556. 3 Sweeny v. Old Colony R. Co., supra, Bigelow, C. J. 4 Id. See also Bolch v. Smith, 7 H. & N. 736, 741. 350 NEGLIGENCE [Sect. 12 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 1 . The liability in such cases does not depend upon the motives or considerations which induced a party to take upon 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 2 . In other words, one may in certain cases be compelled to enlarge one's gift ; the only help being not to make the gift. It should be noticed however that this doctrine, as applied to gratuitous permission and invitation, appears to be limited Limitation to special objects, such as rjrivate ^crossings over of doctrine. railways, and private roadways, which men have been led to suppose that they have a right to use. Having led the plaintiff so to act, the defendant cannot say that the plaintiff was only a licensee. The subject appears indeed to have started on the broader basis, that invitation, if actual, created of itself a duty to have the premises in fit condition for the purpose, so far as might be by due care or diligence 3 ; but legal theory has changed, and the doctrine has been limited to cases like those just mentioned 4 . Very likely those cases are only examples of the limitation. 1 See Dublin & Wicklow Ry. Co. v. Slattery, 3 App. Cas. 1155 ; Cliff v. Midland Ry. Co., L. R. 5 Q. B. 258. So by the Roman law, Grueber, Lex Aquilia, p. 24 — ' It is obvious that the surgeon might have rendered his services without being asked to do so . . . This however would not substantially affect the decision in the text,' that a surgeon (employed) is liable for damage due to want of skill. 2 Sweeny v. Old Colony R. Co., supra, Bigelow, C. J. 3 See Sweeny v. Old Colony R. Co., supra, Bigelow, C. J. ; Gordon v. Cummings, 152 Mass. 513, 515, Devens, J. 4 Plummer v. Dill, 156 Mass. 426; Hart v. Cole, id. 475, 478. These cases accordingly distinguish Sweeny v. Old Colony R. Co., supra, and like decisions. 3 Sect. 12] CARE OF PREMISES 351 In relation to other cases it is now held that regard must be had to the nature of the invitation. If the licensee is invited only as a guest or friendly visitor or for benevolence, invitation a ne enters on no better footing, so far as the present material con- question is concerned, than if he were a bare sideration. , . , . , , , , , licensee; he cannot hold the owner or occupant to any duty of care or diligence beyond giving notice of any danger of which he is aware 1 . Difficulty will sometimes arise in deter- mining the nature of the invitation, — whether it is one purely of hospitality or benevolence, or not ; for it will occasionally happen that other motives, perhaps stronger ones, will be united with the first, as for instance where the harm befel the plaintiff at a corner-stone laying, or at a college celebration, a religious conference' 2 , or the like. But it seems that, where there is an element of benefit expected by the owner of the premises or other licensor, the invitation carries with it the duty not to b guilty of negligence in regard to danger known to him. Where the harm arises by reason of a defective condition off the occupant's premises, it must be shown that the occupant! Notice of knew or might well have known of the defect! defect. before the damage was sustained 3 . 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 defendant 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 4 . The case of a person entering upon the premises of another as a customer, on purposes of business, is a stronger one against the occupant than that of a person invited to enter for hospitality, friendship, or benevolence. A greater degree of care ought to be taken to protect such a person than one to whom only an invitation was given. This is 1 See the cases just cited. 2 See Davis v. Central Congregational Soc, 129 Mass. 367, an extreme case of the kind. :i Welfare v. London & B. Ky. Co., L. B. 4 Q. B. 693; Southcote v. Stanley, 1 H. & N. 247. See Tarry v. Ashton, 1 Q. B. D. 314, 319, Blackburn, J. 4 Southcote v. Stanley , supra. 352 NEGLIGENCE [Sect. 12 no gift, to be enlarged ; it may even be the duty of the customer to enter, and not merely his convenience. A master may require his servant to go to a neighbouring shop for provisions; an officer may be required to enter upon premises to make a levy. And the right to protection should and does cover both entering and leaving the premises 1 . It is clear that the owner or occupant of the premises owes to customers the duty 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 is or ought to be aware, he will be liable. Or, to put a case as 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 2 . For example : The defendant, proprietor of a brewery, leaveg a trap-door in a passage-way with- in his premises, leading to his office, open and unguarded by f\ night, and the plaintiff's wife, in going through the passage-way by night for purposes of business Avith jihe prop rietor, falls, without fault of her oaati, down the hole and is killed. The defendant is liable 3 . 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 condition of the place of landing, known to the proprietors of the wharf and carelessly alloAved to remain, and not known to the plaintiff. For example : The defendants, OAvners of a Avharf at tide-water, procure the plaintiff to bring his vessel to it to be there dis- charged 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 defendants arc aware of the position of the rock and of its danger to vessels ; but no notice of its existence is given, and 1 Chapman v. Rothwell, El. B. & E. 168, infra. 2 Carleton v. Franconia Iron Co., 99 Mass. 216, Gray, J. 3 Chapman v. Rothwell, El. B. & E. 168. Sect. 12] CARE OF PREMISES 353 the plaintiff is ignorant of the fact. With the ebb of the tide the vessel settles down upon the rock and sustains 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 circumstances 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 was authorized to go j there. For example : The defendant, owner of a shop, situated upon a public street, let the upper stories thereof to another ; and an entrance to the shop directly in front of the stairs which lead above is so constructed and kept constantly open that it is used for passage for persons going upstairs. There is a trap- door between the entrance and the stairs ; and the plaintiff entering the place on business with the defendant, and in the exercise of due care, falls through the trap, the same being open, and is injured. The defendant is guilty of a breach of duty in leaving the trap-door open, and is liable to the plaintiff 2 . If however a customer is injured by reason of the bad con dition of a portion of the premises not open to the public, am no invitation or inducement has been held out to him by th owner or occupant to go there, he cannot recover for injury sustained there, though the place be frequented 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 admittance.' The plaintiff enters the outer build- ing to inquire 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 defendant is not liable 3 . This duty to customers however requires the occupant to use due care over all parts of his premises and their appurtenances 1 Carleton v. Franconia Iron Co., supra ; The Moorcock, 13 P. D. 157 ; affirmed 14 P. Div. 64. 2 Elliot v. Pray, 10 Allen (Mass.), 378. 3 Zoebisch v. Tarbell, 10 Allen (Mass.), 385. B. T. 23 354 NEGLIGENCE [Sect. 12 to which the customer has need of access in the performance of the business. For example : The defendants, owners of a dock, provide a gangway for passage from the plaintiff's vessel; the gangway being in an insecure 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 1 . Workmen too on ships in dock, though not the servants of the dock owner, are deemed to be invited by him to use the Workmen of a dock and all appliances provided by him as incident third person. to the use of the dock 2 . Indeed, the owner of premises may be liable, though the business was not transacted by 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 3 . Where the injury has been sustained, not by reason of any improper condition of the defendant's premises, but by a fall Fan down down an ordinary stairway, or the like, the defend- stairway. an ^ j s no t guilty of negligence in leaving a door open or in failing to give notice of the place where danger lies 4 . In regard to this class of cases, it is to be observed that, if there is no actual invitation to the injured person to go upon the 1 Smith v. London Docks Co., L. R. 3 C. P. 326. 2 Heaven v. Pender, 11 Q. B. Div. 503, 515. A broad rule of liability in negligence cases was laid down at p. 509 by Lord Esher, broader than the other judges were willing to accept. But it was considered correct in Thrussell v. Handyside, 20 Q. B. D. 359, 363. The rule of Lord Esher was thus stated: 'Whenever one person is by circumstances placed in such a position with regard to another that every one of ordinary sense who did think would at once recognize that if he did not use ordinary care and skill in his 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.' That however would make an occupant of premises liable for passive negligence. 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. 3 Holmes v. Northeastern By. Co., L. R. 4 Ex. 254; s. c. L. R. 6 Ex. 123, Exch. Ch. 4 Wilkinson v. Fairrie, 1 H. & C. 633 ; Gaffney v. Brown, 150 Mass. 479. Sect. 12] CARE OF PREMISES 355 premises in question, in order to recover damages for injury sustained he must have gone upon the premises for business Business of ^th. the occupier 1 . But this is not enough. A man occupier of has no right to intrude himself upon another, even for purposes of business. The b usiness which will justify an entry upon the premises, and entitle the party to damages for injuries sustained, must, in the absence of an express invitation, or an engagement for services, be the business of the occupant , including business which he is bound to attend to 2 . A shopkeeper is bound to use due diligence to keep his premises* in fit condition for persons who go to him to buy, but not fori pedlers who go to sell 3 ; unless indeed they are persons with whom he is accustomed to deal and whom he expects to come into his shop. So likewise, under the same circumstances, he would probably be liable for harm to a creditor, or his servant, who went into his shop to demand payment of a debt due 4 , but not to a beggar. Customers, within the meaning of the foregoing paragraphs, appear to be persons with whom one is accustomed to have deal- Meaning of m g s > together with such as one has or seeks any term 'cus- particular dealing with. Besides these there are persons who may be called quasi-c ustomers, who, entering for the benefit of the occupant, may be considered as presumptively invited by him, and accordingly stand on the same footing as customers. This class will include postmen 5 , policemen 6 , and perhaps firemen 7 . Officers, certainly, entering by request of the occupant, on business, may recover for damage 1 Collis v. Selden, L. B. 3. C. P. 495; Hart v. Cole, 156 Mass. 475, 477; Tebbutt v. Bristol & E. Ey. Co., L. E. G Q. B. 73, 75. 2 Hart v. Cole, ut supra. 3 Id. 4 See Indermaur v. Dames, L. E. 1 C. P. 274; L. E. 2 C. P. 318. 5 Gordon v. Cummings, 152 Mass. 513, letter-box for tenants of defendant, on defendant's premises. See ante, pp. 342, 343. fi Learoyd v. Godfrey, 138 Mass. 315 ; Parker r. Barnard, 135 Mass. 116. 7 Parker v. Barnard, 135 Mass. at p. 119. But see cases in note 2, p. 356. There is difficulty sometimes in deciding whether a person is to be considered as standing on the footing of a customer. What, for instance, is to be said of a person travelling, by a free pass, on a railroad? See Quimby v. Boston B. Co., 150 Mass. 365, and the cases therein reviewed; Eogers v. Kennebec Steamboat Co., 29 Atl. Eep. 1069 (Maine); Griswold v. New York E. Co., 53 Connecticut, 371. 23—2 356 NEGLIGENCE [Sect. 12 due to the occupant's passive negligence 1 . This should be equally true of persons entering under license of law, whether actually commanded to enter or not 2 . Another question deserves consideration, namely, of the liability of the landlord of leased premises to customers of the ., ,_„.. tenant in a case in which he would be liable to Liability of landlord one of his own customers. The landlord may or customers'- ma y not OWe a ^ ut ^ t0 t ^ iem - ^ e ma y owe t ^ ie 'active' negU- duty to such persons not to be guilty of 'active' gence. negligence, as, for instance, where, actually knowing that his premises are in unsafe and improper condition, he invites them to enter, or sees them enter, without giving them warning. For passive negligence however it seems that the landlord would not be liable. For example : The defendant lets an unfurnished house the staircase of which is then in a dangerous condition, due to the defendant's negligence. The plaintiff enters the premises by request of and for the tenant, to move some furni- ture. While doing this he is hurt by reason of the defective condition of the staircase. The defendant is not liable 3 . This doctrine however is distinct from the question of the liability of the landlord where the duty to repair, by contract BuUding let with the tenant or in any other way, rests upon in flats. the landlord. Liability may fall on the landlord in such a case, even when the damage is done to a customer of the tenant. Thus the landlord will be liable when, having let a building (for instance in flats) to several, with common hall- ways and staircases, he has reserved or taken upon himself the care, as usually he would do, of such places — he will be liable to customers of the tenants who have sustained damage by reason of his negligence in respect of such duty 4 . 1 Cases in note 6, p. 355. 2 Parker v. Barnard, 135 Mass. at p. 119. But see Gibson v. Leonard, 32 N. E. Kep. (Illinois), 182 ; Beehler v. Daniels, 27 L. R. A. (Rhode Island), 512. There appears to be no such distinction in cases of license by law as prevails in license by the part}', touching what may be called orders or ranks of license (bare licensees, invited licensees, etc.). 3 Lane v. Cox, 1897, 1 Q. B. 415. See Roche v. Sawyer, 176 Mass. 71. 4 Miller v. Hancock, 1893, 2 Q. B. 177, C. A. ; Marwedel v. Cook, 154 Mass. 235, 236; Plummer v. Dill, 156 Mass. 426, 428; Gordon v. Cummings, 152 Mass. 515. Sect. 13] MASTER AND SERVANT: RISK 357 §13. Master and Servant: 'Assuming the Risk 1 .' As a servant, when upon his master's premises, is there by express invitation of the master, the master should and does what duty owe a duty to him to exercise reasonable care, skill, master owes and diligence in regard to the condition of the to servant. i ■. • •/» ,1 , 1 place, except in so lar 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 exempts his master from the duty in question 2 when he 'assumes 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, personally and by his servants generally, must exercise reasonable care, skill, and diligence, in the following things, — to have and keep his premises in safe condition for the servant, and, according 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 3 . And that 1 This whole subject has received so much attention in America that the author may be pardoned for the large citation of American decisions. But the doctrine (like the entire common law) is common, even in its details, to both and all branches of the English-speaking race. 3 A moral duty on the part of the master may no doubt remain, but it is of imperfect obligation. Yarmouth v. France, 19 Q. B. D. 647, 657; Fitzgerald v. Connecticut River Paper Co., 155 Mass. 155, 158, 159 ; O'Maley v. South Boston Gaslight Co., 158 Mass. 135, 136. 3 See Patterson v. Wallace, 1 Macq. 748; Williams v. Clough, 3 H. & N. 258; Mellors v. Shaw, 1 B. & S. 437; Bartonshill Coal Co. v. Reid, 3 Macq. 266; Bartonshill Coal Co. v. McGuire, id. 300; Watling v. Oastler, L. R. 6 Ex. 73; Coombs v. New Bedford Cordage Co., 102 Mass. 572, 586; Texas R. Co. v. Archibauld, 170 U. S. 665 (as to cars of other railways); Hauley v. California Bridge Co., 127 California, 232 (safe place for work) ; Hennesey v. Bingham, 125 California, 627 (safe place); Channon v. Sanford Co., 70 Connecticut, 573 (safe place) ; North Chicago R. Co. v. Dudgeon, 184 Illinois, 477 (safe place) ; Crown v. Orr, 140 New York, 450; Bailey v. Rome R. Co., 139 New York, 302 ; Toy v. United States Cartridge Co., 159 Mass. 313; Illick v. Flint R. Co., 358 NEGLIGENCE [Sect. 13 duty cannot be delegated, so as to exempt the master 1 . Prima facie the master owes it ; it is for him to show, if he can, that the servant has assumed the risk, otherwise he will be liable for any damage suffered by the servant by reason of the failure of the master, or any of his other servants, in any of the particulars above named. 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 knowledge 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 con- structed 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 replacing was needed, and have made the change ; 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 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 67 Michigan, 632; Fink v. Des Moines Ice Co., 84 Iowa, 321 ; Consolidated Coal Co. v. Haenni, 146 Illinois, 614 ; Southwest Improvement Co. r. Andrew, 86 Virginia, 270. On the duty to give warning see Fox v. Kinney, 72 Connecticut, 404. 1 Leonard v. Kinnare, 174 Illinois, 532; Railway v. Shields, 47 Ohio St. 387; Toy v. United States Cartridge Co., supra; Fink v. Des Moines Ice Co., supra. 2 Roberts v. Smith, 2 H. & N. 213, Exch. Ch. 3 See Toy v. United States Cartridge Co., 159 Mass. 313, 315, language, 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. Sect. 13] MASTER AND SERVANT: RISK 359 continually, and the machine works successfully, though qo1 so well, without it. Because 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 dis- Assuming the tributed under two heads : first, in regard to risks risk - assumed as incident to the contract of service ; second, in regard to risks otherwise assumed. In virtue of the contract of service the servant presumptively 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 certain of these risks. But apart from actual stipulation in regard to some special risk, it is immaterial in this class of cases whether or not the servant knew of the risk in question ; he assumes all risks incident to the business, but what these are in particular he cannot, in the nature of things, know. This is a distinctive feature of cases of the kind. 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 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 3 . The greater part of such a state of things might not be negligence at all ; 1 Rice v. Kins Philip Mills, 144 Mass. 229. 2 Priestley v. Fowler, 3 M. & W. 1; Crown v. Orr, 140 New York, 450; De Graffe v. New York Central R. Co., 76 New York, 125; Consolidated Coal Co. v. Haenni, 14(1 Illinois, 614. 3 See Murphy v. American Rubber Co., 159 Mass. 266, slippery floor. 3G0 NEGLIGENCE [Sect. 13 some of it, such as the leaving open and unguarded, elevators, shoots, and trap-doors, might be a breach of duty towards a stranger 1 , while towards a servant of the proprietor it would not. The servant assumes the risk in regard to damage from acts or omissions for which the master would be liable to a stranger 2 . It is a 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 and ' ordinary ' ; for ' assuming the risk ' as an incident extraordinary to the business does not mean assuming the risk of the master s negligence, 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 3 as well as the ordinary risks of negligence on the part of his fellow-servants where that is not also the master's 'negligence ; no distinction here is drawn between the two kinds iof 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 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 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 track and injures the plaintiff, the evidence showing that the defend- ants themselves are not guilty of negligence in any way. The defendants are not liable 5 . 1 Indermaur v. Dames, L. R. 1 C. P. 274 ; s. c. L. R. 2 C. P. 318, Excb. Ch. ; Bigelow's L. C. Torts, (568, a very important authority. 2 Id. at pp. 679, 680, of Bigelow's L. C. Torts. See also Thomas v. Quarter- maine, 18 Q. B. Div. 685. 3 See Bigelow's L. G. Torts, 679, Willes, J. 4 Bartonshill Coal Co. v. Reid, 3 Macq. 266 ; Bartonshill Coal Co. v. McGuire, id. 300; Morgan v. Vale of Neath Ry. Co., L. R. 1 Q. B. 149, Ex. Ch.; Priestley v. Fowler, 3 M. & W. 1; Farwell v. Boston & W. R. Co., 4 Metcalf (Mass.), 49; Pittsburgh B. Co. v. Devinney, 17 Ohio St. 197; Northern Pacific R. Co. v. Poirier, 167 U. S. 48 (brakeman and conductor of railroad train are fellow-servants); Baltimore R. Co. v. Baugh, 149 U. S. 368; Thomas v. Quartermaine, 18 Q. B. Div. 685, 692. This last case has been somewhat discussed on the facts in it, but its general language is not disputed. Farwell v. Boston & W. It. Co., supra, a leading case. Sect. 13] MASTER AND SERVANT: RISK 361 While, however, the master is (at common law) exempted from liability in such cases, — on the ground that, because the Fellow- servant has assumed the risk, the master is so far servants. relieved of duty, — the American courts at least are not agreed in the definition of the term ' fellow-servant.' By many of the American courts, and it seems by the courts of England, the term is considered 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 depart- ments of it 1 . Other American courts exclude the last clause (concerning 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 2 , as for instance if the servant in a higher grade were a sort of vice-principal 3 . This subject however is now much regulated by statute (Employers' Liability Act) 4 , the general effect of which, speaking freely, is to overturn the rule that by the contract maxim of of service the servant presumptively assumes the affected QOt risk of ne g% ence 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 injuria still applies 5 . More particularly, the statute enacts, in its first section, that 1 Farwell v. Boston R. Co., supra; De Freest v. Warner, 98 New York, 211 ; Lineoski v. Susquehanna Coal Co., 157 Penn. St. 153; New England It. Co. v. Conroy, 175 U. S. 323, and Baltimore R. Co. v. Baugh, 149 U. S. 36s, overruling Chicago Ry. Co. v. Ross, 112 U. S. 377. 2 Pittsburgh R. Co. v. Devinney, 17 Ohio St. 197, 210 ; Chicago Ry. Co. v. Ross, 112 U. S. 377, now overruled by New England R. Co. v. Conroy, supra. The doctrine of fellow-servants (exempting the master) does not apply, it may be repeated, to cases in which the master has committed to a servant any of those duties before mentioned which rest upon the master personally. 3 As to that aspect of the case see New England R. Co. v. Conroy, supra ; St Louis Ry. Co. v. Touhey, 67 Arkansas, 209; Denver R. Co. v. Sipes, 23 Colorado, 226 ; Woodson v. Johnston, 109 Georgia, 454; Sievers v. Peters Box Co., 151 Indiana, 642. 4 43 & 44 Vict. c. 42. B O'Maley v. South Boston Gaslight Co., 158 Mass. 135, 136. 362 NEGLIGENCE [Sect. 13 where personal injury is caused to a workman (1) by reason of any defect in the condition of the ways, works, machinery, or plant connected with or used in the business of the employer 1 ; or (2) by reason of the negligence of any person in the service of the employer who has any superintendence intrusted to him whilst in the exercise of such superintendence 2 ; or (3) by reason of the negligence of any person in the service of the employer to whose orders or directions the workman at the time of the injury was bound to conform, and did conform, where such injury resulted from his having so conformed 3 ; or (4) by reason of the act or omission of any person in the service of the- employer in obedience to the rules or by-laws of the employer, or in obedience to particular instructions given by any person delegated with the authority of the employer in that behalf; or (5) by reason of the negligence of any person in the service of the employer who has the charge or control of any signal, points, locomotive engine, or train upon a railway ; — the workman, or in case the injury results in death, the legal personal representatives of the workman, and any persons entitled in case of death, shall have the same right of compensation and remedies against the employer as if the workman had not been a workman of, nor in the service of the employer, nor engaged in his work. The second section of the Act makes in effect the following exceptions : There is to be no action against the employer under (1) supra, unless the defect arose from, or had not been discovered or remedied owing to, the negli- gence of the employer, or of some person in the service of the employer, and intrusted by him with the duty of seeing that the ways, works, machinery, or plant were in proper condition ; nor under (4) supra, unless the injury resulted from some impropriety or defect in the rules, by-laws, or instructions therein contained, provided that where a rule or by-law has been approved or accepted by one of her Majesty's Principal Secretaries of State, or by the Board of Trade or any other department of the Government, under any Act of Parliament, it 1 See McGiffin v. Palmer's Shipbuilding Co., 10 Q. B. D. 5, as to ways; Walsh v. Whiteley, 21 Q. B. Div. 371, and cases cited, as to machinery and the whole clause ; Howe v. Finch, 17 Q. B. D. 187, as to the whole clause. a See Kellard v. Rooke, 21 Q. B. Div. 367. : < Id.; Millward c Midland Ry. Co., 14 Q. B. D. 68. Sect. 13] MASTER AND SERVANT: RISK 363 shall not be deemed an improper or defective rule or by-law ; nor in any case where the workman knew of the defect or negligence which caused the injury, and failed within reasonable time to give, or cause to be given, information thereof to the employer or some person superior to himself in the service, unless he was aware that the employer or such superior already knew of the defect or negligence 1 . Other sections regulate the sum recoverable 2 , subject to certain possible deductions 3 , the serving notice of the injury 4 , and define terms used in the Act 5 . In regard to definitions, the ' person who has superintendence intrusted to him ' means one whose sole or principal duty is superintendence, and who is not ordinarily engaged in manual labour 6 ; ' employer ' includes a body of persons corporate or unincorporate ; ' workman ' means a railway servant and any person to whom a certain prior statute 7 concerning employment applies. Thus far of the risks which the servant is presumed to have assumed. The presumption against him arises because the risks Extraordinary are ordinary and incident to the business. Extra- risks - ordinary risks, when not of negligence by fellow- servants, stand upon a different footing ; no presumption arises from entering the service that the servant undertook these 8 . 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 appliances, — that is, of the master's negligence, or, even under the Employers' Liability Act, of the negligence of a fellow-servant. In this class of cases the servant must have known of the risk ; Knowledge of but even knowledge is not enough. ' Scienti ' is danger. no £ equivalent to ' volenti 9 .' For example : The 1 See Weblin v. Ballard, 17 Q. B. D. 122; Thomas v. Quartermaine, id. 414, affirmed, 18 Q. B. Div. 685, Lord Esher diss. A workman may contract with his employer not to claim compensation nnder this Act. Griffiths v. Dudley, 9 Q. B. D. 357. " § 3. » § 5. * % 7. » § 8 . e See Kellard v. Rooke, 21 Q. B. Div. 367. 7 Employers and Workmen Act, 1875, 38 & 39 Vict. c. 90. 8 Consolidated Coal Co. v. Haenni, 146 Illinois, 614. 9 Thrnssell v. Handyside, 20 Q. B. D. 359, 364 ; Thomas v. Quartermaine, 18 Q. B. Div. 685, 692; Yarmouth v. France, 19 Q. B. Div. 647, 659; Osborne v. Northwestern By. Co., 21 Q. B. D. 220. 364 NEGLIGENCE [Sect. 13 defendants are contractors doing work above the floor where the plaintiff is by his employer directed to work, the place of the plaintiff being one of exposure by reason of the nature of the work which the defendants are doing, and the plaintiff being aware of the exposure but not incurring it voluntarily. By the defendants' negligence a piece of iron is dropped upon and injures the plaintiff. The defendants are liable, the plaintiff's knowledge not amounting to consent 1 . But if the servant, at the time of making the contract, knew 2 of the existence of a particular extraordinary danger, and also fully appreciated 3 the same, his entering into the contract amounts to assuming the risk. That is, just as, by entering the service, 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 risk, he assumes that risk, and exempts his master from duty in regard to it 4 . For example : The defendants are a gaslight company having a quantity of coal to be wheeled 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, 1 Thrussell v. Handyside, supra, distinguishing Woodley v. Metropolitan Ry. Co., 2 Ex. Div. 384, and other cases. 2 Some dicta put it thus : If the servant knew, or had the means of knowledge, etc. Crown v. Orr, 140 New York, 450. But the latter clause should be omitted; it is inconsistent with requiring full appreciation of the danger. 3 Ciriack v. Merchants' Woollen Co., 151 Mass. 152; Nofsinger v. Goldman, 122 California, 609. Nor does it apply where the harm was dne to the com- bined negligence of the master and a fellow-servant. Chicago R. Co. v. Gellison, 173 Illinois, 264. If for any reason the servant did not fully appreciate the danger, as for instance from mental deficiency or from inexperience, he has not consented. Ciriack v. Merchants' Woollen Co., supra; Consolidated Stone Co. v. Summit, 152 Indiana, 297- As to the master's duty to a servant under age, see Alabama R. Co. v. Marcus, 115 Alabama, 389. 4 Crown v. Orr, 140 New York, 450; Kaare v. Troy Steel Co., 139 New York, 369; White ?•. Witteman Lithographic Co., 131 New York, 631; De Forest v. Jewett, 88 New York, 264 ; Gibson v. Erie Ry. Co., 63 New York, 449; Ragon v. Toledo R. Co., 97 Michigan, 2(55; s. c. 91 Micbigan, 379 ; Illick v. Flint R. Co., 67 Michigan, 632; Batterson v. Chicago Ry. Co., 53 Michigan, 125; O'Neal v. Chicago Ry. Co., 132 Indiana, 110; Hayden v. Manuf. Co., 29 Connecticut, 548; Consolidated Coal Co. v. Haenni, 146 Illinois, 614 ; Kohn v. McNulta, 147 U. S. 238. Sect. 13] MASTER AND SERVANT : RISK 365 and fully appreciating the danger, and in carefully wheeling over the same falls off the side, and is injured. The plaintiff 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 had in their employ the plaintiff's 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 plaintiff's intestate is thrown under the car and killed. The deceased had full knowledge and appreciation of the defect, and voluntarily continued in the service, without making objection. The defendants owed no duty in the matter to the plaintiff's intestate ; he assumed the risk 2 . 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 company'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 de- ceased, and existed when he entered the service. While coupling cars in the yard the deceased steps into one of the ditches, falls, and is killed by the cars. The deceased assumed the risk 3 . 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 question of 1 O'Maley v. South Boston Gaslight Co., 158 Mass. 135; Kaareu. Troy Steel Co., 139 New York, 369. 2 Powers v. New York B. Co., 98 New York, 274. The servant should know the danger as well as the defects before he can be said to have assumed extra- ordinary risks. Consolidated Coal Co. v. Haenni, 146 Illinois, 614. 3 De Forest v. Jewett, 88 New York, 264. See Gibson v. Erie By. Co., 63 New York, 449; Kohn v. McNulta, 147 U. S. 238. 366 NEGLIGENCE [Sect. 13 fact whether he did. And the question, as in all other cases of extraordinary dangers, is whether he exposed him- nary risks self freely, knowing and fully appreciating the arising- after danger. If he did he cannot recover ag-ainst his the contract. ° ° 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 warn- ing might have been given ; but he goes to the place freely, his clothing is caught in the machinery, and he is hurt. The plaintiff, if he knew 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 Extraordi- have seen, if he then knew and fully appreciated nary risks ^he danger ; his consent to the risk follows from his neous with entering the service with knowledge and apprecia- contract. ^ion of danger 2 . But where the extraordinary danger arises afterwards, the servant's knowledge and apprecia- tion of it, and then incurring the dangei*, do not necessarily constitute consent, even though he did not protest, object, or complain. For example : The defendant, a boarding-house keeper, employs the plaintiff, in June, as a domestic servant. A flight of stairs leads from the kitchen of the defendant's house, on the outside of the same, to the back 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 skylight there has, before the plaintiff's service began, lost several panes of glass. It is now March, and rain, snow, and sleet have come in and fallen upon the stairs. The steps in consequence are 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 1 Ciriaek v. Merchants' Woollen Co., 151 Mass. 152. 2 Fitzgerald v. Connecticut lliver Taper Co., 155 Mass. 155; Mahoney v. Dore, id. 513; O'Maley v. South Boston Gaslight Co., 158 Mass. 135; Cases, 536. Sect. 13] MASTER AND SERVANT: RISK 367 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 cannot be held as matter of law that the plaintiff assumed the risk ; whether she did assume it or not is a question of fact, and it may be found that she did not go freely, in which case the defendant owes a duty to the plaintiff which has been broken 1 . It cannot have escaped notice that the expression ' assuming the risk ' is used in the law in a technical and hence special Assuming the sens< 3- In popular speech it is common to say that risk a techni- 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 railway 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 legal meaning of the expression 3 . A final and important remark should be made. The doctrine under consideration is not a doctrine of contributory negligence, contributory ^ e servant, or indeed one not a servant, may negligence assume the risk so as to bar any right of action by s inguis e . ^ mij though he was not in the least negligent at the time 4 . Contributory negligence, which in fact often exists in these cases, makes an additional and distinct defence. The language of the authorities however sometimes fails to observe the distinction 5 . 1 Mahoney v. Dore, 155 Mass. 513. See also the similar cases of Fitzgerald v. Connecticut River Paper Co., id. 155, and Osborne v. Northwestern Ry. Co., 21 Q. B. Div. 220. 2 See Eckert v. Long Island R. Co., 43 New York, 502. The rescue of a child in this case was treated on the footing of a question of negligence in the plaintiff's 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. 3 The rule as to trespassers and bare licensees might, it seems, be put upon the ground of assuming the risk. 4 Mellor r. Merchants' Manuf. Co., 150 Mass. 362, 363. 5 Note a want of clearness on this point in Fitzgerald v. Connecticut River Paper Co., 155 Mass. 155, 158, 159. 368 NEGLIGENCE [Sect. H 1 14. Contributory Fault Generally speaking, it is a defence to an action of tort that negligence or other wrongdoing on the part of the plaintiff Meaning of ' contributed ' to produce the damage of which he the term : complains 1 . The reason of this lies in the consider- and remote ation that a man is not liable for damage which he causes. nas no ^ caused 2 ; or, conversely, the law holds men liable for those wrongs alone which they have caused. If the defendant did not, either personalty, or by another under his express or implied authority, cause the damage, he is not liable; and it is part of the plaintiff's case to show that the defendant wholly caused the damage of which he complains 3 . Now if there intervened between the act or omission of the defendant and the damage sustained an independent act or perhaps omission whether of negligence or other wrongdoing, which, in the sense of a cause, contributed to effect the damage, it follows that the misfortune might not have happened but for that act or omission; and hence the plaintiff cannot prove that the defendant wholly caused the harm 4 . But an act or an omission may be said to ' contribute ' to a result as well when it does not stand in the relation of a cause to that result as when it does ; and the term ' contribute ' or ' contributory ' is in fact sometimes used of situations in which there is no connection of cause and effect recognized by law, that is, in cases in which the contributory act or omission is not 1 Murphy v. Deane, 101 Mass. 455. So by the Roman law. ' Quod quis ex culpa sua damnum sentit non intellegitur damnum sentire.' Dig. 50, 17, 203. Modern writers on the Roman law call this 'culpa-compensation ' ; 'the culpa on one side compensates for the culpa on the other.' Grueber, Lex Aquilia, pp. 31, 228. In some of the American States the plaintiff in a suit for neg- ligence has to prove that he was not guilty of contributory fault. Murpby v. Deane, supra; McLane v. Perkins, 92 Maine, 39; Getman v. Delaware R. Co., 162 New York, 21. 2 The word 'cause' when here used alone = ' proximate cause.' 3 Murphy v. Deane, supra. The liability of a master for the (in fact) unauthorized torts of his servants, or of a principal for the like torts of his agent, stands on special grounds. Ante, p. 35. 4 ' The reason for admitting culpa-compensation [in Roman law] is certainly that the causal connection between act and damage is interrupted by the culpa of the injured party.' Grueber, Lex Aquilia, p. 228; id. p. 31. Sect. 14] CONTRIBUTORY FAULT 369 ' causa proxima ' as it must be to have any legal consequences, but is only ' causa remota.' ' Causa proxima, non remota, spec- tatur.' 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 proxima is the more common and better use. In some cases the situation may be such that the plaintiff cannot recover even when the defendant's fault was adequate to produce the inj ury without the plaintiff's negligence, as in certain cases of collision where the fault on each side is contemporaneous-. But in no case can the plaintiff recover where the evidence falls short of showing that the defendant's act or omission proximately caused the injury. On the other hand, conditions (remote causes) must not be confounded with proximate causes 3 . The mere fact that a Conditions person or his property is in an improper position, distinguished. w hen, 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 when that is the case the fact that the person or property was in the particular situation is not in contemplation of law a cause of the damage. A man may in the daytime fall asleep in the country highway, or leave his goods there, and recover for injury by another's driving carelessly over him or them ; since, though the position occupied is a condition to the damage, the damage is not the natural result of the act". The law therefore considers whether the conduct of the plaintiff had a natural tendency, such as exists between cause 1 Not necessarily as the only one. 2 Murphy v. Deane, 101 Mass. 455, 464, 465; Brember v. Jones, 67 New Hampshire, 374. 3 Newcomb v. Boston Protective Dept., 146 Mass. 596. 4 Id. 5 Id. 6 See the remarks of Parke, B., in Davies i>. Mann, 10 M. & W. 546, 549. B. T. 24 370 NEGLIGENCE [Sect. 14 and effect, to place the party or his property in the direct way of the danger which resulted in the disaster. If Natural , • 1 • 1 1 c tendency of it . had not, it did not, in the sense of a cause, conduct the contribute to the injury. Such is the legal theory of contributory negligence or other fault as a bar to an action for tort. 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 standing 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 1 . Again : The defendant driving carelessly along the highway runs against and injures the plaintiff's donkey, straying improperly therein, and fettered in his forefeet so as not to be able to move with freedom. This is a breach of duty to the plaintiff; the latter's act not contribut- ing, in the same sense, to the damage 2 . 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 3 . 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 4 ; 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 circumstances. He is none the less entitled to recover, unless it appear that his own negligence or other wrongdoing contributed as a proximate cause to the damage 5 . 1 Greenland v. Chaplin, 5 Ex. 243. Or, as Pollock, C. B., suggested, the plaintiff could not have foreseen the consequences of standing where he did; that is, such consequences were unusual, not the common effect of such an act. 2 Davies v. Mann, 10 M. & W. 540. 3 Newcomb v. Boston Protective Dept., 140 Mass. 596. 4 Brember v. Jones, 67 New Hampshire, 374. 5 Norris v. Litchfield, 35 New Hampshire, 271, Bell, J. Sect. 14] CONTRIBUTORY FAULT 371 This is equally true though the plaintiff is a positive trespasser, as the examples elsewhere given of men injured by savage dogs or spring-guns while trespassing by day upon the defendant's premises clearly show 1 ; for it is not the natural or usual effect of trespassing in the daytime (not feloniously) that the party should be bitten by a savage dog not known to be there, or maimed by the discharge of a hidden gun' 2 . Wrongful acts or omissions cannot be set off against each other, so as to make the one excuse the other, unless they stand respectively in the situation of true causes to the damage. In this connection attention may be called to certain American cases of injury sustained on Sunday through the defendant's Violating negligence by a plaintiff engaged in acts neither Sunday laws. f necessity nor of charity ; in other words, in acts rendered unlawful by statute. By most 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 effect in the statute ; and this on the ground that the mere doing of the illegal act is not, or may not be, contributory in the proper sense to the damage sustained'. For example: The defendant, a town, bound to keep a certain bridge in repair, negligently allows it to get out of order ; and the plaintiff, with- out notice of the condition 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 4 . This is clearly correct in principle, in the absence of language of the statute plainly intended to prohibit all actions for damage 1 Bird v. Holbrook, 4 Bing. 628; Loomis v. Terry, 17 Wendell (New York), 496; ante, pp. 344, 345, note. 2 Contra, if the animal should hurt a person who is irritating it. 3 Sutton v. Wauwatosa, 29 Wisconsin, 21; Mohney v. Cook, 26 Penn. St. 342; Corey v. Bath, 35 New Hampshire, 530; Carrol v. Staten Island K. Co., 58 New York, 126. 4 Sutton v. Wauwatosa, supra. 24—2 372 NEGLIGENCE [Sect. 14 sustained on Sunday, except such as is caused without any violation of law by the injured party ; but the contrary rule prevails, or has prevailed, in some of the States 1 . 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 defendant has misused property of the plaintiff hired on Sunday 2 . So too it is held that one who is walking on the highway on Sunday, simply for exercise or fresh air, may recover against a town for negligence whereby he has sustained damage 3 . It will however be difficult sometimes to determine whether the fact or facts in question amount to a legal cause or only to a condition of the misfortune ; and the courts may, special rules : f° r that very reason, be disposed to cut the matter 1 look and short bv laving down a positive rule of law cover- listen ' ing the question 4 . Thus in the American Federal courts, and in some of the State courts, contrary to the rule in others, the law requires one to ' look and listen ' before crossing a steam or an electric railway or a highway ; failure to do so is accordingly prima facie evidence of contributory negligence, barring an action 5 . But such cases are not to be taken as invalidating the general theory of contributory negligence. 1 Bosworth v. Swansea, 10 Metcalf (Mass.), 363; Jones v. Andover, 10 Allen (Mass.), 18; Connolly v. Boston, 117 Mass. 64. See however Newcomb v. Boston Protective Dept., 146 Mass. 596, which in principle is opposed to these cases. The law of Massachusetts has been changed by statute recently. 2 Hall v. Corcoran, 107 Mass. 251, overruling Gregg v . Wyrnan, 4 Cushing, 322, on authority of which Wheldon v. Chappel, 8 Rhode Island, 230, was decided. See also Woodman v. Hubbard, 25 New Hampshire, 67 ; Morton v. Gloster, 46 Maine, 520. 3 Hamilton i\ Boston, 14 Allen (Mass.), 475. See further Cox v. Cook, id. 165; Feital v. Middlesex R. Co., 109 Mass. 398. 4 See ante, p. 312, and notes. 5 Railroad Co. r. Houston, 95 U. S. 697; Northern Pacific R. Co. v. Freeman, 174 U. S. 379; Baker v. Kansas City R. Co., 147 Missouri, 140; Connolly v. New York R. Co., 158 Mass. 8 ; Cole r. New York R. Co., 174 Mass. 537 ; Robbins v. Springfield Street Ry. Co., 165 Mass. 30 (drawing a distinction between steam and electric or horse railways) ; Ci'eamer v. West End Street Ry., 156 Mass. 320 (the same distinction); Cavvley v. La Crosse Ry. Co., 101 Wis- consin, 145 (applying the rule to electric railways), and cases cited; maintaining the 'look and listen' rule. Contra, Judson v. Central Vermont R. Co., 158 New York, 597; Lawler v. Hartford Street Ry. Co., 72 Connecticut, 74; Atlantic City R. Co. v. Goodin, 45 L. R. A. 671 (New Jersey), and cases cited. Compare Herbert v. Southern Pacific R. Co., 121 California, 227 ; Niosi v. Empire Laundry, 117 California, 257 (crossing highway); Chicago Ry. Co. v. Sect. 14] CONTRIBUTORY FAULT 373 It is laid down by the authorities that, if the plaintiff could have avoided the disaster by the exercise of ' due care,' he is not Rule of due entitled to complain of the negligence of the de- care by plain- fondant 1 . This is not intended however to suggest, 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 meaniner of the rule in question is that in the moment of actual peril the plaintiff, if at hand, 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 presence of mind through the misconduct of the defendant, and while in Losing pre- such loss, and owing to it, falls into danger and is sence of mind, hurt, is not thereby guilty of want of due care or of contributory negligence. The defendant's unlawful act has caused the loss of presence of mind, and what happens after- wards is but the natural effect of the act 2 . For example : The defendant is carelessly driving an express waggon along the side-walk 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 hurt. The defendant is liable 3 . Again : The defendant, a railway company, negligently leaves Lowell, 151 U. S. 209. And see Chicago R. Co. v. Pearson, 184 Illinois, 386; Harvard Law Rev., Nov. 1899, p. 226. The cases affirming the rule require one to look and listen, or to show a sufficient reason for not doing so in case of omission. Baker v. Kansas City R. Co., supra. The cases contra leave it to the jury to determine, on the facts, without any presumption, whether the plaintiff was guilty of contributory negligence or not. 1 Butterfield v. Forrester, 11 East, 60; Bridge v. 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; Haley v. Case, 142 Mass. 316, 321 ; Ferren v. Old Colony R. Co., 143 Mass. 197; Ciriack v. Merchants' Woollen Co., 151 Mass. 152; s. c. 146 Mass. 182. 2 Coulter v. American Express Co., 56 New York, 585 ; Getman v. Delaware R. Co., 162 New York, 21. See also Johnson v. West Chester Ry. Co., 70 Penn. St. 357; Galena R. Co. v. Yarwood, 17 Illinois, 509. Compare The Bywell Castle, 4 P. Div. 219. But see Meyer v. Boepple Co., 83 N. W. Rep. 809 (Iowa). a Coulter v. American Express Co., supra. 374 NEGLIGENCE [Sect. 14 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 1 . On the other hand, it is also laid down by the authorities that the plaintiff may be entitled to recover, if the defendant Due care by might, by the exercise of ' due care ' on his part, defendant. have avoided the consequences of the negligence of the plaintiff 2 . 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 conse- quence 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 3 . 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 done ; the negligence of the plaintiff, if found, not barring his action if the defendant might have avoided the consequences of it by the exercise of due care 4 . If the rule referred to were applied to cases of simultaneous negligence, at the moment of disaster, either party to a collision » Northeastern Ky. Co. v. Wanless, L. R. 7 H. L. 12. See Sweeny v. Old Colony R. Co., 10 Allen (Mass.), 368; Davey v. Southwestern Ry. Co., 12 Q. B. Div. 70; Dublin & Wicklow Ry. Co. v. Slattery, 3 App. Cas. 1155. 2 Tuff v. Warman, 5 C. B. n. s. 573, Exch. Ch., leading case. 3 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 the pointed statement on p. 760, by Lord Penzance. It is there laid down that if the defendant 'might at this stage of the matter [the actual emergency] by ordinary care have avoided all accident, any previous negligence of the plaintiffs would not preclude them from recovering.' 4 Tuff v. Warman, 5 C. B. n. s. 573. Sect. 16] INTERVENING FORCES 375 caused by their joint carelessness might be entitled to recover against the other ; while, in truth, neither can recover 1 . § 15. Comparative Negligence In some of the American States, it may be noticed in passing, a doctrine of ' comparative negligence ' takes the place of the Doctrine doctrine of contributory negligence. It has been stated. stated from the bench as follows : Where there has been negligence in both plaintiff and defendant, still the plaintiff may recover if his negligence was slight, and that of the defend- ant 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' 2 . The defendant's negligence however must stand as a cause towards the injury 3 . Accordingly it was laid down, of death caused at a railroad crossing, that if the deceased was guilty of negligence in not observing 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 respect was slight in comparison with that of the defendants, if they were guilty of negligence at all 4 . § 16. 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 unforeseen and the damage sustained by the plaintiff there forces - intervened an act or agency of a third person, in no way probable and not in fact anticipated 5 , which directly produced the damage. If this be the case, and the misfortune would not have followed without it, the defendant, similarly it 1 Murphy v. Deane, 101 Mass. -155, 464, 465. Some of the language in Tuff v. Warman, supra, is here criticized, but not so as to affect the example of the text. 2 Chicago & Q. R. Co. v. Van Patten, 64 Illinois, 510, 517, Scott, J. 8 Id. at p. 514. 4 Id. p. 517. Compare the rule in Admiralty. 5 See Clark v. Chambers, 3 Q. B. Div. 327, as to damage resulting from removal by a third person of obstructions unlawfully put in the highway by the defendant, he being held liable. 376 NEGLIGENCE [Sect. 16 seems, will not be liable. For example : The defendant wrong- fully 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 anything out of the natural and usual course of events unexpectedly 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 knowledge or notice of the intervening act, agency, or force of nature. In this case he will be liable 3 . For example : The Notice defendant shoots a pistol against a polished 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 4 . Again: The defendant throws a lighted squib into a market- house on a fair-day, which strikes the booth of A, who instinc- 1 Carter v. Towne, 103 Mass. 507. 2 Compare Insurance Co. v. Tweed, 7 Wallace (Supreme Court U. S.), 44, and the Roman law. Lex Aquilia, fr. 30, § 3, the last sentence of which runs, 'at si omnia quae oportuit observavit, vel subita vis venti longius iguem produxit, caret culpa.' 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 improbable. See the important case of Smith v. Southwestern By. Co., L. R. 5 C. P. 98, and 6 C. P. 14, Exch. Ch. ; ante, pp. 42, 43. See also Lex Aquilia, ut supra. 3 McDowall v. Great Western Ry. Co., 1902, 1 K. B. 018 (trespassing known to be frequent, and at any time likely judging from what was going on openly from day to day) ; Scott v. Shepherd, 3 Wils. 403 ; Langridge v. Levy, 2 M. & W. 519; s. c. 4 M. & W. 338; and other cases infra. 4 This example is fairly borne out by Scott v. Shepherd, 3 Wils. 403. Contrast Stanley v. Powell, 1891, 1 Q. B. 80. Sect. 16] INTERVENING FORCES 377 tively throws it out, when it strikes the booth of B. The latter casts 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 a mischievous hair-wash to the plaintiff's 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 manufacturer of drugs, negli- gently labels a jar, put up by him, of belladonna as dandelion, the former a poisonous, the latter a harmless drug. The jar passes from the defendant 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 :i . In cases however where the alleged breach of duty is directly involved in a breach of contract, the courts qualifiedly deny the Breach of liability of the defendant to any one except to the contract. party with whom he made the contract, — a point elsewhere noticed 4 . The authorities are not altogether consistent, but there appears to be an agreement in regard to cases of in- tended harm. 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 of the intermediate agency, as where he expects them, — for instance by making a railway carriage, to be used by passengers of the railway company for which it is made 5 , — he will be liable, though his act was a breach of contract with another 6 . The fact of the existence of a duty to the person with 1 Scott v. Shepherd, 3 Wils. 403. 2 George v. Skivington, L. R. 5 Ex. 1. See Cairn v. Willson, 39 Ch. D. 39, 43; Langridge v. Levy, 2 M. & W. 519; s. c. 4 M. & W. 338 (misrepresentation). 3 Thomas v. Winchester, 6 New York, 397. The reason given by the court however was that the defendant, being engaged in a very dangerous business, acted at his own peril. Compare Farrant v. Barnes, 11 C. B. n. s. 553, and Brass i: Maitland, 6 El. & B. 470. See also Davidson v. Nichols, 11 Allen (Mass.), 514. The subject is well discussed in 2 Law Quarterly Review, 63-05 ; Pollock, Torts, 486 et seq., 6th ed. 4 Ante, p. 181. See Bigelow's L. C. Torts, 617-619. 5 Pennsylvania R. Co. v. Snyder, 50 Ohio St. 342 ; Harvard Law Review, April, 1902, p. 667. 6 See Langridge v. Levy, 2 Mees. & W. 519; s. c. 4 Mees. & W. 338; also Collis v. Selden, L. R. 3 C. P. 495, and George r. Skivington, above cited. 378 NEGLIGENCE [Sect. 16 whom he contracted is not inconsistent with the existence of another duty respecting the same thing. The duty to forbear to do intentionally a thing obviously harmful preceded the for- mation 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 in regard to others 1 . 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 2 . 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 3 . A railroad company or other person would not probably be liable to a master for an injury wrongfully done to a servant, without notice of the relation of master and servant 4 . But if there is a duty to refrain from intentional wrong, it is not easy to see why there cannot be a duty to refrain from negligence, where that is attended with notice of the contract, that is, of the rights of the plaintiff. The essential elements of legal duty are present in such a case ; the rights of the plaintiff being known, danger is observed ; hence the duty not to be guilty of misconduct touching such rights 5 . Further see Heaven v. Pender, 11 Q. B. Div. 503, at p. 516. Contra, Winterbottora v. Wright, 10 M. & W. 109 ; Longmeid v. Holliday, 6 Ex. 761. It may well be doubted if these cases are good law. But the doctrine of Winterbottom v. Wright has lately been followed in an American case. McCaffrey v. Mossberg Manuf. Co., 50 Atl. Rep. (Rhode Island), 651. That case however does not well represent the later American view. 1 See Meux v. Great Eastern Ry. Co., 1895, 2 Q. B. 387, 390; Hardaker v. Idle District Council, 1896, 1 Q. B. 335, 340. 2 Fairmount Ry. Co. v. Stutler, 54 Penn. St. 375; Alton v. Midland Ry. Co., 19 C. B. n. s. 213. 3 See Taylor v. Manchester Ry. Co., 1895, 1 Q. B. 134, 140; id. 944; Meux v. Great Eastern Ry. Co., 1895, 2 Q. B. 387. 4 Compare such cases as Blake v. Lanyon, G T. R. 221. 5 Ante, p. 12. Sect. 16] INTERVENING FORCES 379 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 railway company, contracts with the plaintiff's master, with whom the plaintiff is to travel in the defendant's coaches, to carry the plaintiff's luggage to a certain place, which the defendant, through negli- gence, fails to do. This is a breach of duty to the plaintiff 1 . Again: The defendant, a railway company, receives the plaintiff into one of its coaches, on a ticket bought from another railway company, 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 2 . If the duty resting upon the defendant be that of common carrier of passengers, or of goods, the carrier or 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 damage sustained ; for the party was bound to exercise due care and has not done so :i . For example : The defendants, 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 4 . The same doctrine would indeed apply to cases arising under any ordinary absolute contract for the performance of a specific ] Marshall r. York & Newcastle R. Co., 11 C. B. 655 ; Austin v. Great Western Ry. Co., L. R. 2 Q. B. 442. The first of these cases was before Alton v. Midland Ry. Co., supra, but the second was afterwards, and in it Marshall's case was cited with approval by Blackburn, J. See also Foulkes v. Metropolitan Ry. Co., 5 C. P. Div. 157 ; Ames t'. Union R. Co., 117 Mass. 541; and cases like Henley v. Lyme Regis, 5 Bing. 91, and 1 Bing. n. c. 222, ante, p. 331. - Foulkes v. Metropolitan Ry. Co., supra. 3 Compare Burrows v. March Gas Co., L. R. 7 Ex. 96, Ex. Ch. 4 Eaton v. Boston & L. R. Co., 11 Allen (Mass.), 500. 380 NEGLIGENCE [Sect. 16 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 defendants are liable for the loss thereby caused 1 . The rule formerly prevailed that a passenger in a stage or railway coach, or other vehicle, became by the act of obtaining Doctrine of passage ' identified ' in law with the driver or identification. raana g er f the vehicle. The effect of this doctrine 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 misfortune, was the negligence of the plaintiff. The plaintiff therefore was not entitled to recover, though he might himself have been free from fault 2 . This doctrine still obtains in some American courts 3 . For example : The defendant, 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 improper place for alighting. The latter's negligence is properly contributory, but the deceased was not personally at fault. The defendant is deemed not liable 4 . The doctrine has been much criticized and often denied by the courts 5 ; and in the form above presented it has recently been overruled 6 . It was hard to understand how the plaintiff 1 Burrows v. March Gas Co., L. K. 7 Ex. 96, Ex. Ch. 2 Thorogoorl r. Bryan, 8 C. B. 115; Armstrong v. Lancashire By. Co., L. B. 10 Ex. 47; Cleveland B. Co. v. Terry, 8 Ohio St. 570; Puterbaugh v. Eeasor, 9 Ohio St. 484; Lockhart v. Lichtenthaler. 46 Penn. St. 151; Smith v. Smith, 2 Pickering (Mass.), 621. 3 See cases in note 2, supra. 4 Thorogood v. Bryan, supra. 5 The Milan, Lusb. 388; Brown v. McGregor, Hay (Scotl.), 10; Little v. Hackett, 116 U. S. 366; Chapman v. New Haven B. Co., 19 New York, 341; Coleman v. New York & N. H. E. Co., 20 New York, 492 ; Webster v. Hudson Biver B. Co., 38 New York, 260; Danville Tump. Co. v. Stewart, 2 Metcalf (Kentucky), 119. « Donovan v. Laing Syndicate, 1893, 1 Q. B. 629, 634, Bowen, L. J. ; The Bernina, 12 P. Div. 58, affirmed, nom. Mills v. Armstrong, 13 App. Cas. 1. Sect. 16] INTERVENING FORCES 381 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 passenger's servant in any accurate sense in such a case; the essential feature of the relation of master and servant was wanting, to wit, authority over the supposed servant 1 . 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 instance, or require him, to go or to stay ; nor could he 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 2 . Instead of an identifi- cation between passenger and driver, the driver himself would be liable, with the other wrongdoer, to the passenger''. If however the passenger were himself in fault, as by parti- cipating in the negligent conduct of the driver, it is clear that he could not recover ; supposing the negligence to have contri- buted to the misfortune. In such a case as this he might perhaps be said, in a loose way of expressing it, to have ' identified ' himself with the driver. Upon views not unlike those in regard to the supposed ' identification ' of passenger and carrier, the negligence of the Doctrine of parent or guardian or other person in charge of a imputabiiity. young child, in allowing the child to fall into danger, has sometimes 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 4 . For example : The defendants, a railroad company, by the negligence of their servants in the course of their employment and the contributory negligence of 1 Donovan v. Laing Syndicate, 1893, 1 Q. B. 629, 634. 2 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 It. Co., L. B. 10 Ex. 47, 52. 3 See The Berniua, supra. 4 See Mangan v. Atterton, L. B. 1 Ex. 239; Clark v. Chambers, 3 Q. B. Div. 327; Waite i>. Northeastern By. Co., El. B. & E. 719; Hughes v. Macfie, 2 H. & C. 744; Wright v. Maiden B, Co., 4 Allen (Mass.), 283; Holly v. Boston Gas Co., 8 Gray (Mass.), 123; Callahan v. Bean, 9 Allen (Mass.), 401. The doctrine would, so far as it may be sound, be equally applicable of course to the case of any helpless or imbecile person. 382 NEGLIGENCE [Sect. 16 a person in charge of the plaintiff, a child too young to take care of himself, injure the plaintiff. They are deemed not liable for the misfortune 1 . This doctrine has not been accepted by all the courts; it has often been met by the same answer that has been given to the doctrine of imputing to passengers the negligence of their carriers. The negligence of a parent or custodian of a child, it is 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 negligence 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 guilty of contributory negligence (supposing him capable of negligence), apart from Negligence of the negligence of his parent or guardian, there can child. 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 5 . In other cases, the abetter 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 . In the case of a child too young to take care of himself, it is held that, if the negligence of the parent or person in charge is the sole proximate cause of the misfortune, the defendant cannot be liable. For example: The defendant, a railway company, is negligent in moving a train along one of its tracks. The 1 Wright v. Maiden By. Co., 4 Allen (Mass.), 283. 2 Evansville v. Senhenn, 151 Indiana, 42; Bellefontaine E. Co. v. Snyder, 18 Ohio St. 399; North Penn. E. Co. v. Mahoney, 57 Penn. St. 187; Louisville Canal Co. v. Murphy, 9 Bush (Kentucky), 522. 3 Lynch v. Nurdin, 1 Q. B. 29; Lynch v. Smith, 104 Mass. 52; Evanisch v. G. By. Co., 57 Texas, 126; Costello v. Third Avenue E. Co., 1(51 New York, 317. 4 Burke v. Broadway E. Co., 49 Barbour (New York), 529. 5 See Western E. Co. v. Eogers, 104 Georgia, 224. (1 Lynch v. Smith, supra; Western E. Co. v. Eogers, supra; Costello v. Third Avenue E. Co., supra. Sect. 16] INTERVENING FORCES plaintiff's grandmother, who has bought of the defendant a ticket of passage; for herself and the plaintiff, a child, negligently attempts to cross the track in charge of the child, and the child is injured by the 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 however clear that if the fault of the person in charge of the child was not a proximate cause of the misfortune, 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 negligence, 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 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 contributing 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 3 . Indeed it is not clear that the rule should not be that a child of tender years, that is to say, incapable of negligence, should be able to maintain an action for the injury he has sustained in cases of this kind, though the person in charge 1 Waite v. Northeastern Ey. 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 be, as where the person in charge of the child, and the defendant, were driving negligently and came into collision. A curious parallel case is found in the Koman law. Lex Aquilia, fr. 11, pr. ; Dig. 9, 2, 11 pr. In a game of ball a player threw the ball too hard, so that it hit tbe hand of a barber while shaving a slave, causing the barber to cut the slave's throat ; but the barber ought not to have been where he was, and so the master was without remedy against the player. But the barber was liable, unless the slave was guilty of contributory negligence. See Grueber, Lex Aquilia, pp. 32, 33, 229. 2 Ihl v. Forty-second St. E. Co., 47 New York, 317, 323. 3 Lynch v. Smith, 101 Mass. 52. 384 NEGLIGENCE [Sect. 16 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 proximate cause of the injury to the plaintiff, both of them are liable. If the parent sue for himself, upon the relation of master and servant, for loss of service, the question is somewhat different, s it b arent ^ ^e child be incapable of negligence, the question for loss of will be whether the parent's negligence contributed service. ^ ^ e stricter sense to the misfortune ; but if the child were capable of negligence, and were in fact negligent, it may be that his negligence would 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 1 . The result is, that whatever particular phase a case may present, 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. 1 Marbury Lumber Co. v. Westbrook, 120 Alabama, 179. But compare the action for seduction, ante, p. 124. See also G-lassey v. Hestonville Ey. Co., 57 Penn. St. 172. STATEMENTS OE CLAIM B. T. STATEMENTS OF CLAIM IN TORT The Rules of the Supreme Court, 1883, Order xix., Rule 5, declare : The Forms in Appendices C, D, and E, when applicable, and where they are not applicable Forms of the like character, as- near as may be, shall be used for all pleadings ; and where such Forms are applicable and sufficient, any longer Forms shall be deemed prolix, and the costs occasioned by such prolixity shall be disallowed to or borne by the party so using the same, as the case may be. The Forms here given are taken from Appendix G. Deceit 1. Fraudulent Prospectus. (No. 13, § 6.) 1. On 31st January, 1883, the defendant issued a prospectus to the public relating to the AB Company, Limited. 2. On February 1st, 1883, the plaintiff received a copy of this prospectus. 3. The plaintiff subscribed for 100 shares in the company on the faith of this prospectus. 4. The prospectus contained misrepresentations, of which the following are particulars : — (a) The prospectus stated whereas in fact (b) The prospectus stated whereas in fact (c) The prospectus stated whereas in fact 5. The defendant knew of the real facts as to the above particulars. 6. The following facts, which were within the knowledge of the defendant, are material, and were not stated in the prospectus : — (a) (b) 25—2 388 STATEMENTS OF CLAIM IN TORT 7. The plaintiff has paid calls to the company to the extent of £1,000. The plaintiff claims :— (1) Repayment of £1,000 and interest. (2) Indemnity. (Signed) Delivered 2. Fraudulent Sale of Lease. (No. 14, § 6.) The plaintiff has suffered damage from the defendant in- ducing the plaintiff to buy the goodwill and lease of the * George ' public-house, Stepney, by fraudulently representing to the plaintiff that the takings of the said public-house were £40 a week, whereas in fact they were much less, to the defendant's knowledge. Particulars of special damage : — [Fill them in.] The plaintiff claims £ (Signed) Delivered Malicious Prosecution 3. (No. 15, § 6.) The defendant maliciously and without reasonable and prob- able cause preferred a charge of larceny against the plaintiff before a justice of the peace, causing the plaintiff to be sent for trial on the charge and imprisoned thereon, and prosecuted the plaintiff thereon at the Middlesex Quarter Sessions, where the plaintiff was acquitted. Particulars of special damage : — Messrs L. & L.'s bill of costs, £65. Loss in business from January 1st, 1883, to February 18th, 1883, £100. The plaintiff claims £500. Place of trial, (Signed) Delivered STATEMENTS OF CLAIM IN TORT 389 Trespass, Conversion, Detinue 4. Possession. Mesne Profits. (No. 2, § 7.) 1. The plaintiff is entitled to the possession of Blackacre in the parish of [or, of No. 2, Bridge Street, Bristol] in the county of 2. On or before the day of , 188 , AB was seised in fee and in p< ©session of the premises. 3. On the .lay of , 188 , the said AB died so seised, whereupon — 4. The estates descended to the plaintiff, his eldest son and heir-at-law. 5. After the death of the said AB the defendant wrongfully took possession of the premises. The plaintiff claims : — (1) Possession of the premises. (2) Mesne profits from the of Place of trial, (Signed) Delivered 5. Possession. Cotenancy. (No. 5, § 3.) The plaintiff* is owner of 32-64th parts or shares, and master of the vessel ' Lady of the Lake,' and the defendant, who is owner of the remaining 32-64th parts, withheld possession of the said vessel from the plaintiff. The plaintiff claims : — (1) Possession of the said vessel. (2) The condemnation of the defendant in all losses and damages occasioned by the defendant's withhold- ing possession of the vessel from the plaintiff. (Signed) Delivered 6. Conversion. (No. 1, § 6.) The plaintiff has suffered damage by the defendant wrong- fully depriving the plaintiff of two casks of oil by refusing to give them up on demand [or, throwing them overboard out of a boat in the London Docks, &c.]. 390 STATEMENTS OF CLAIM IN TORT [If any special damage is claimed, add.] Particulars [fill them in]. The plaintiff claims £100. Place of trial, London. (Signed) Delivered 7. Detinue. (No. 2, § 6.) The defendant detained from the plaintiff the plaintiff's goods and chattels, that is to say, a horse, harness, and gig. The plaintiff claims a return of the said goods and chattels or their value, and £10 for their detention. Place of trial, Lincolnshire. (Signed) Delivered Infringement of Patent, Copyright, Trade Mark 8. Patent. (No. 6, §6.) The defendant has infringed the plaintiff's patent, No. 14,084, granted for the term of fourteen years, from the 21st of May, 1880, for certain improvements in the manufacture of iron and steel, whereof the plaintiff was the first inventor. The plaintiff claims an injunction to restrain the defendant from further infringement, and £100 damages. Particulars of breaches are delivered herewith. Place of trial, Durham. (Signed) Delivered 9. Copyright. (No. 7, § 6.) The defendant has infringed the plaintiff's copyright in a book entitled ' The History of Rome,' registered on the day of Particulars of special damage are as follows : — £ Loss of sale of 50 copies 50 Loss of profit in the copyright 50 100 STATEMENTS OF CLAIM IN TORT 391 The plaintiff claims £100. Place of trial, Surrey. (Signed) Delivered 10. Trade Mark. (No. 8, § 6.) 1. The defendant has infringed the plaintiff's trade mark. 2. The trade mark is [describe it]. [If the plaintiff is not the original proprietor of the trade mark, show shortly how his title is derived.] 3. The following are the acts complained of, viz.: — [Set them out.] The plaintiff claims an injunction to restrain the defendant, his servants, and agents, from infringing the plaintiff's said trade mark, and in particular from [stating any particular in- junction sought]. The plaintiff also claims an account or damages. (Signed) Delivered Seduction 11. (No. 9, § 6.) The plaintiff has suffered damage from the seduction and carnally knowing by the defendant of G H the [daughter and] servant of the plaintiff. £ s. d. Loss of service from the 1st of March to the 30th of November, 1882 100 Nursing and medical attendances 10 10 110 10 The plaintiff claims £500. Place of trial, Berkshire. (Signed) Delivered Nuisance 12. By Smells. (No. 11, § 6.) The plaintiff has suffered damage from offensive and pestilen- tial smells and vapours caused by the defendant in the plaintiff's dwelling-house, No. 15, James Street, Durham. 392 STATEMENTS OF CLAIM IN TORT The plaintiff claims : — (1) £50. (2) An injunction to restrain the defendant from the continuance or repetition of the said injury, or the committal of any injury of a like kind in respect of the same property. Place of trial, Yorkshire, West Riding. (Signed) Delivered 13. By Pollution of Water. (No. 12, § 6.) 1. The plaintiff is the owner [or lessee] and occupier of a farm known as , through which there runs a river known as 2. The defendant, or persons in his employ, pollute the water in the said river by passing into the same the refuse of the defendant's dye works, situate higher up the said river. The plaintiff claims an injunction to restrain the defendant, his servants and agents, from sending from the said dye works into the said river any matter so as to pollute the waters thereof, or to render them unwholesome or unfit for use, to the injury of the plaintiff [or as the case may be]. The plaintiff will also claim damages in respect of the said nuisance. Place of trial, (Signed) Delivered Negligence 14. Personal Injury caused by Railway Company. (No. 7, § 5.) The plaintiff has suffered damage from the defendants' negli- gence in carrying the plaintiff as a passenger by railway from London to Brighton, causing personal injuries to the plaintiff, in a collision near Hayward's Heath, on the 15th January, 1882. Particulars of expenses, &c. : — £ s. d. Loss of fifteen weeks' salary as clerk at £2 per week 30 Dr Smith 10 10 Nurse for six weeks 3 43 10 STATEMENTS OF CLAIM IN TORT :}•»:} The plaintiff claims £500. Place of trial, Sussex. (Signed) Delivered 15. Client against Solicitor. (No. 8, § 5.) 1. The plaintiff has suffered damage from the defendant's negligence in his conduct for the plaintiff, as his solicitor, of business undertaken by the defendant on the plaintiff's retainer. 2. The negligence was in making an application under Order xiv., Rule 1, in the case of A B (the plaintiff) v. C D, where the case was one of unliquidated damages and not of debt. Particulars of damage : — Taxed costs paid to defendant on dismissal of summons, £ The plaintiff claims £ Place of trial, (Signed) Delivered 16. Negligent Driving. (No. 3, § 6.) The plaintiff has suffered damage from personal injuries to the plaintiff and damage to his carriage, caused by the defendant or his servant on the 15th of January, 1882, negligently driving a cart and horse in Fleet Street. Particulars of expenses, &c. :- £ s. d. Charges of Mr Smith. surgeon 10 10 Charges of Mr Jones, coachmaker 14 5 6 24 15 G The plaintiff claims £150. Place of trial, London. (Signed) Delivered 17. Lord Campbell's Act. (No. 4, § 6.) The plaintiff, as executor of C D, deceased, brings this action for the benefit of Eva the widow, and William and Margaret and Dorothea the children of C D [as the case may be], who 394 STATEMENTS OF CLAIM IN TORT have suffered damage from the defendant's negligence in carry- ing the said G D by omnibus, whereby the said G D was killed in Cornhill on the 15th of January, 1882. Particulars pursuant to statute are delivered herewith. The plaintiff claims £500. Place of trial, London. (Signed) Delivered 18. Wilful Default of Executors 1 . (No. 2, § 2.) 1. The plaintiff is residuary legatee of A B, of the city of Bath, who died March 3, 1882, having made his will dated March 2, 1882, and appointed the defendants his executors, who proved his will April 6, 1882. 2. The defendants have been guilty of wilful default in not getting in certain property of the testator. 3. The wilful default on which the plaintiff relies is as follows : — G D owed to the testator £1,000, in respect of which no interest had been paid or acknowledgement given for five years before the testator's death. The defendants were aware of this fact, but never applied to G D for payment until more than a year after testator's death, whereby the said sum was lost. The plaintiff claims : — (1) Account of testator's personal estate on footing of wilful default. (2) Administration of the testator's personal estate. (Signed) Delivered 1 The ' wilful default ' appears to be only neglect on advertence. Ante, p. 307. INDEX ABRIDGMENTS, when infringement of copyright, 263, 264. ABSOLUTE DUTY, breach of, as subject of Part II., 23. ABUSE OF PROCESS, MALICIOUS, nature of the wrong, 101. malice, 101. termination of proceedings, 101, 102. probable cause, 102. ACCIDENT, as an excuse of a battery, 174, 175. ACQUITTAL, in suits for malicious prosecution, 85-88. ACT, imports intention, 13. 'intended act' a pleonasm, 13, note. ACTIO PERSONALIS MORITUR CUM PERSONA, applies to death of either party, 45, 46, 181, 182. in the Roman law, 46, note, death of servant, 182. , ACTOR, hissing an actor off the stage, 108. ADMINISTRATORS AND EXECUTORS, liability for negligence, 328. ADULTERY, imputation of, in case of women, 142, 143, note, 145, note. AFFRAYS, arrest in cases of, 203. AGENCY, agent distinguished from servant, 36, 37. general liability of principal for torts of agent, 37. liability of innocent principal for torts of agent, 37, 38. misrepresentation of authority, 65, 66. liability of agent to principal for negligence, 325-327. insurance agent's duties, 326, 327. AMBIGUITY, distinguished from vagueness, 56, 57. 396 INDEX ANIMALS, property in, 226. injuring, 226, 227. damage by, 292-295. notice of propensity, 292, 293. wild animals, 292, 293. domestic animals, 293. negligence of owner, 293, 294. damage by animals on owner's premises, 294. negligence in such case, 294. injured party having notice, 294. escape of animals, 294, 295. duty to provide fences, 294, 295. strays from common, 294, note. escape from highway, 295. ARBITRATORS, not liable for negligence, 333. ARREST. (See False Imprisonment.) ASSAULT AND BATTERY, assault, 168-171. definition, 168. intention, 169. damage, 169. putting in fear, 169, 170. hostile attitude, 170. distance of parties from each other, 170, 171. attempt, real or apparent, 171. attempt on A, also apparently on B, 171. battery, 172-182. definition, 172. contact, 172, 173. battery from a distance, 173. negligence, 174. accident, 174, 175. acts done in sport, 175, 176. hostile acts, 175. taking one's own property, 176. justifiable assault, 176-179. what amounts to, 176, 177. acts of parents and schoolmasters, 176. self-defence, 176, 177. protection of property, 177-179. amount of force which may be used, 178. 'molliter manus imposuit,' 178, note. request before assault, 178. defence of family, 178, 179. defence of master, 179. defence of servant, 179. quelling a riot, 179. violence to another's servants, 179-182. double right of action, 179, 180. servant's right, 179, 180* master's right, 179, 180. parent's right, 180. breaches of contract, 181. death of servant or wrongdoer, 181, 182. ASSIGNEES, liability for negligence, 328. INDEX 397 ASSIGNMENT OF ACTION, actions for tort not assignable, 47. with certain exceptions, 47. ground of rule, 47. ASSISTANCE, writs of, 101, note. ASSUMING THE BISK, meaning of expression, 357-367. party must be ' volens ' to risk, 357-367. ATTACHMENT, preventing by misrepresentation, 73, 74. malicious, 101. ATTEMPT, in case of assault, 171. ATTORNEY, liability of, for false imprisonment, 195-198. for negligence, 322, 323. B 'BAD WOMAN,' 138, note. BAILOR AND BAILEE, duties of bailee, 314-321. negligence of bailee, 314-319. degrees of negligence, 314-318. Roman law misunderstood, 315. tendency of authority, 315, 316. bailees for hire, 317, 318. 'gross negligence' explained, 318. gratuitous bailor, 318, 319. bailment for service, 319-321. ordinary care, 319, 320. degree of care, 320. employment of unskilled workman, 320, 321. BASTARDY, charge of, 147. BATTERY. (See Assault and Battery.) BLASTING, damage from, 301. BOILER, explosion of, 301. BUSINESS SIGNS, fraud as to, 76, 77. c CARPENTER, whether business of, is 'independent,' 338, note. CARRIER, general duties of common carrier, 314. identification of passenger with, 380, 381. CAUSA PROXIMA, NON REMOTA, SPECTATUR, 41-45, 368-375. CAUSE, causa proxima, 41-45, 368-375. legal theory of, 40-45. mere conditions, 41, 369. results which were natural or probable, 42-44. 398 INDEX C AU SE , — contin tied. results not foreseen, 43. liability for results turns on duty, 43, 44. intervention of human agency, 44, 45, 375-384. CERTAINTY, required in representations, 56. CHARITABLE CORPORATIONS, liability of, for tort, 33. ' CHEAT,' charge of being a, 145, note. CHILDREN, negligence of, 382-384. CIRCUITY OF ACTION, avoidance of, 339, 343. CLERK OF COURT, improper writ issued by, 192, 195, 197. COMBINATION, whether to combine is to use 'means,' 107-110. power to do what a single person might not be able to do, 107, 109. in patents, 252, 253. COMMON CARRIER, general duties of, 314. COMPARATIVE NEGLIGENCE, meaning of, 375. COMPETITION, justification of, in actions for interfering with contract, 110. CONCEALMENT, as a ground of action, 54, 55. CONDITION, distinguished from cause, 41, 369. CONDONATION, of wife's infidelity, 135. CONFIDENTIAL RELATIONS, dealings between parties to, 71. in actions for defamation, 161. CONSENT, obtained by fraud, 10, note, 'volenti non fit injuria,' 10, 184, 357-367. of servant, in assuming risks, 357-367. servant must be ' volens ' to risk, 357-367. CONSPIRACY, to procure refusal to contract, 107-110. as ' means,' 107, 108. CONTACT, in assault and battery, 172, 173. in false imprisonment, 184. in possession, 209. CONTRACT, relation of, to tort, 24, 25. fraud in, 25. maliciously procuring refusal of, 105-112. use of wrongful means to that end, 105. change of authority as to malice, 105, 106. INDEX 399 CONTRACT,— continued. motive, 106. malicious hindrance of business, 112. procuring breach of contract, 113-122. in cases of master and servant, 113-117. what must be proved, 114. Statute of Labourers, 114, note. notice, 115. harbouring, 116. in cases of gratuitous service, 116, 117. in cases of contract in general, 117-122. performance of contract not begun, 118. objections to the right of action in general, 119-121. unenforceable contract, 122. damage, 122. CONTRIBUTORY FAULT, what constitutes, 368-375. conditions distinguished from causes, 41, 369. (See Negligence.) CONVERSION, what must be proved, 229. possession, 229-233. necessity of, 229. right of possession, 230. special property, 230, 231, 237. possession without right, 231. jus tertii, 231. finding, 232. meaning of possession, 233. what constitutes conversion, 233-244. usurping ownership, 233. distinction between trespass and conversion, 233. sale without authority, 234. knowledge of title, 234, 235. effect of fraud in sale, 235, 236. purchase for value without notice, 235, 236. sale with right of repurchase, 236. conditional sale, 236. sale of pledge, 237. sale of qualified interest, 237, 238. sale of part, 238, 239. permitting another to sell one's goods, 239. appropriating article to use not intended, 239. injury of chattel, 240. mere assertion of dominion, 240, 241. converting to use of third person, 241, 242. intention to convert, 241. conversion between cotenants, 242. demand and refusal, 243, 244. refusal only prima facie evidence of conversion, 244. COPYRIGHT, statutory provisions, 255-257. creation of statute, 257. registration, 257. what may be copyrighted, 258-260. 'author,' 259. translations, 259. what belongs to authors, 260. headnotes of cases, 260. 400 INDEX. COPYRIGHT,— continued. intention, 261. piracy as to quantity, 261, 262. selections, 262. quotation for criticism, 262. imitation of copyrighted matter, 263. common sources of information, 263. abridgments, 263. digests, 263, 264. CORPORATIONS, liability for tort in general, 32, 33. for particular torts, 33. in case of charities, 33. torts of directors, 66, 329, 330. COUNSEL, privilege of, 152, 153. CRIME, connection of, with tort, 16, 18, 30. abridgment of rights for, 33, 34. imputation of, 137, 142-144. CRIMINAL CONVERSATION, action for, 133, 134. CRITICISM, not defamation, 165. fair criticism, 165. of works of art, 165. of conduct of public men, 165, 166. CULPA-COMPENSATION, in Roman law, 368, notes. CULPA LATA, 316, note. CULPA LEVIS, 308, note, 309, note, 316, note. CUSTOMERS, injuries to, by condition of premises, 351-356. who are, 355, 356. D DAMAGE, term explained, 25, 26. special damage, when and when not to be proved, 26. mental suffering, 26, 27, 127, 141. in deceit, 73, 74. in slander of title, 78, 79. in malicious prosecution, 96, 97. in procuring refusal to contract, 105. in procuring breach of contract, 113, 122. in seduction, 125, 127. in slander, 136, 140-142. in assault and battery, 168, 169, 172, 174, 180. in false imprisonment, 183. in trespass, 204, 206, 218. in conversion, 228, 229, 240. in infringements of patents and copyrights, 245, 252, 260, 261, 262. in violation of rights of support, 265, 266-268. in violation of water rights, 275, 277. in nuisance, 281, 283, 286-291. by animals, 292-295. in escape of dangerous things, 296, 298. in negligence, 169, note, 174, 305, 306. INDEX 401 DANGEROUS THINGS, ESCAPE OF, nature of protection required against, 296-300. use of land in ordinary way, 290-298. mines and reservoirs, 297, 298. damage by vis major or act of God, 298, 299. legislative authority, 299. American law, 300, 301. not settled, 300. points in, 300, 301. DEATH, actio personalis moritur cum persona, 45, 46, 181, 182. of either party terminates liability, 45, 46. except in what cases, 46. DECEIT, elements of action for, 5, 52. the representation, 52-63. definition of 'representation,' 52. how representation differs from warranty, 52, 53. warranty treated as representation, 53, 54. representation requires a statement or an act, 54. silence, 54, 55. concealment, 54, 55. acts accompanying silence, 55. representation should create a clear impression, 56. language not necessary, 56. difference between vagueness and ambiguity, 56, 57. interpretation of language, 57, 63. impression of fact required, 57, 58. opinion involves fact, 58. false opinion may be actionable, 58, 59. prediction, 59. misleading contrast between fact and opinion, 59. statements must be sufficient to influence conduct 59, 60 statements of value, 59, 60. statements of income, 60. statements concerning a man's pecuniary condition 60 representation of law, 60, 61. taking advantage of ignorance of law, 61. materiality, 62. falsity, 62, 63. literal sense of words, 63. defendant's knowledge of falsity, 64-66. honest statement of fact generally not actionable, 64. negligence not enough, 64. matters within the party's peculiar means of knowledge, 65, 66 representations by agents concerning their authority, 65, Go'. representations by directors of corporations,' 66. what creates duty to know, 66. ignorance of the plaintiff, 67-71. knowledge of facts by plaintiff fatal to action, 67. belief in defendant's statements, 67. means of knowledge, 67-70. necessity of reading contract, 68. fraudulent misreading, 69. prudence disarmed by misrepresentation, 69. making investigation, 69. negligence of party deceived, 69. concealment from him, 70. sale with faults, 70. parties not on equal footing, 70, 71. B. T. 2 g 402 INDEX DECEIT,— continued. intention that representation should be acted on, 71-73. when to be expressly shown, 71, 72. in bargains between plaintiff and defendant, 72. intent to injure not necessary, 72. acting on representation, 73, 74. damage, 73, 74. preventing one from attaching property, 73, 74. when plaintiff entitled to act on representation, 74. kindred wrongs: quasi-deceit, 75-77. trademarks and trade names, 75, 76, 77, note. wrongful use of business sign, 76, 77. DEFAMATION. {See Slander and Libel.) DEGREES OF NEGLIGENCE, Roman law, 315, 316, note. English law, 315-318. DEMAND AND REFUSAL, when necessary to constitute conversion, 243, 244. DETENTION, of prisoner by officer, 188, 189. DIGESTS, when infringements of copyright, 263, 264. DIRECTORS OF CORPORATION, misrepresentations by, 66. liability of, for negligence, 329, 330. DIRECTORS' LIABILITY ACT, 64, note, 65, note, 66, note. 'DISCOVERY,' in patent law, 251. DISEASE, imputation of having disgraceful, 144. DISMISSAL OF SUIT, in actions for malicious prosecution, 85-87. DOCK-OWNERS, duty of, 354. DOMESTIC ANIMALS, damage to, 226, 227. damage by, 292-295. DOMESTIC SERVANTS, distinction as to, 38. 'DUNCE,' calling a lawyer a, 145. DUTY, the correlative of right, 3. as basis of law of torts, 3, 11-25. as ground of privilege, 10, 11. moral, 10, 11. legal duty, 11-25. tort on the side of, 11, 12. legal duty, how created, 12. obvious breaches of such duty, 12. legal duty explained, 12, 13. division of legal duty, 13, 14. complete and provisional breaches of duty, 13, 14. intention and negligence touching duty, 14. divisions named, 14. INDEX 403 DUTY, — continual . wrongful means, 14, 15, 105, 107-110. fraud as means, 15. malice and negligence, 15. malice in civil liability, 16-22, 105, 106, 113, 151, 152, 155-166. duty to whom owed, 24. duty paramount, 24, 25. duty as ground of liability for consequences of tort, 43, 44. EAVES, overhanging, 222. EFFIGY, defamation by, 150. EMPLOYERS' LIABILITY ACT, general effect of, 361-363. ENTICING AWAY. (See Seduction. ) ENTEY, doctrine of relation of entry, 215, 216. under legal process, 216, 217. under judicial sale, 217. into inn or coach of carrier, 220. by creditor, 220, 221. by landlord, 221. by purchaser of goods, 221. by owner of goods, 221, 222. to save life, 222. to abate nuisacce, 222. of necessity, 223. forcible, 220, note. by trespassers, 343, 344. by licensees, 344-356. by customers, 351-356. by fireman, 355. by letter-carrier, 355. by policeman, 355. ERROR IN PROCESS, distinguished from irregularity, 182, 195, 196. ESCAPE OF ANIMALS. (See Animals.) ESCAPE OF DANGEROUS THINGS, nature of protection required, 296-300. mines and reservoirs, 296-298. vis major and act of God, 298, 299. legislative authority, 299, 300. nitroglycerine, 300. fall of snow or ice, 300. damage from blasting, 301. explosion of boiler, 301. EXECUTION, excessive levy of, 100. malice, 100, 101. EXECUTIVE DEPARTMENT OF STATE, privilege of, 29, 152, note, 154. EXECUTORS AND ADMINISTRATORS, liability for negligence, 328. EXPLOSION, damage from, 301. 26—2 404 INDEX FALSE IMPRISONMENT, nature of restraint, 182-185. prison-walls not necessary, 183, 184. contact not necessary, 184. power of movement, 184. submission to restraint, 184. consent, 184. circumscribing restraint, 185. arrest with warrant, 185-199. officer's justification, 185, 186. arrest of wrong person, 186. misleading officer, 186. description in writ of person intended, 186, 187. misnomer, 187. acts in excess of authority, 187. oppressive conduct, 187. detention after writ has expired, 187-189. detention on other writs, 188. retaking escaped prisoner, 189, 190. in civil cases, 189. in criminal cases, 189, 190. invalidity of writ, and effect on officer, 190. writ void or not, when, 190, 191. jurisdiction of court, 191, 192. officer's liability restated, 191. liability of clerk, 192, 193. liability of judge, 193-195. summary, 195. liability of plaintiff and his attorney, 195-197. false representations and mistake, 195, 196. irregularity and error, 182, 195, 196. summary, 197, 198. distinction between civil and criminal cases, 198. setting aside the writ, 198, 199. distinguished from malicious prosecution, 199. arrest without warrant, 199-204. when proper, 199-201. arrest on the spot, 200. on suspicion of felony by officer, 201, 202. reasonable cause, 200-202. arrest for misdemeanour, 202, 203. arrest after termination of breach of peace, 203. affrays, 203, 204. right of private citizen to arrest, 204. FALSE REPRESENTATIONS. {See Deceit.) FELLOW-SERVANTS, negligence of, 38, 360, 361. who are, 361. FELONY, imputation of, 142-144. after punishment of, the person punished no longer a felon, 143, note. (Sec Slander and Libel.) FINDING, gives right of possession against wrongdoer, 232. FIREMAN, entering premises, 355. INDEX | or, FORCE, no part of the definition of law, 8, note. FORCIBLE ENTRY, statute against, 220, note, by license, 220, note. FOX'S ACT, practice under, 138, note. FRAUD, as wrongful means, 15. division of, 15. meaning of term, 15, 16. as an element of deceit, 16, 64-66. as evidence of malice, 81. FRUIT, falling upon another's land, 222. G GASES, as nuisance, 286, 287. GRATUITY, interfering with enjoyment of, 5, 6, 116, 117. GUARDIAN AND WARD, seduction of ward, 129, 130. GUNPOWDER, ^ keeping of, 282, note. GUNS, care of, 311. H HARBOURING, of servants, 116. of wife, 132, 133. HIGHWAYS, obstructing, 288-291, 346, 347. HOUSES, fall of, 272-274. HUSBAND AND WIFE, communication of defamation by either to the other, 140, note. accusation of either in presence of the other, 140, note. harbouring wife, 132, 133. seduction or enticement of wife, 130-135. infidelity of husband, 134. negligence of husband, 134, 135. condonation of offence, 135. I IDENTIFICATION, of passenger with carrier, 380, 381. IMPRISONMENT. [See False Imprisonment.) 406 INDEX IMMUTABILITY, of negligence of parent or guardian to child, 381-384. INCONTINENCE, imputation of, 145. INDEPENDENT CONTRACTOR, torts of, 39, 40, 334-343. liability of employer, 334-343. INFANTS, liability for tort, 30-32. Roman law on the subject, 31, note. INJUNCTION, to restrain infringement of trademark, 76, note, 77, note, to restrain revocation of license, 219, note. INNKEEPERS, general duties of, 313, 314. INSANE PERSONS, liability for tort, 30-32. INSURANCE AGENTS, duties of, 326, 327. INTENTION, intending the natural consequences of tort, 44. in deceit, 71-73. in assault and battery, 169. in conversion of goods, 241. INTEREST, as a ground of duty, 10, 162, 163. INTERPRETATION OF LANGUAGE, in deceit, 57, 63. in cases of slander, 138-140. INVENTION, in patents, 249, 251. « INVENTOR,' first and true, 249. IRREGULARITY OF PROCESS, distinguished from error, 182, 195, 196. J JEOPARDY, in suits for malicious prosecution, 87. JUDICIARY, privilege of members of, 29, 30, 152, 153. liability of magistrate for false imprisonment, 193-195. judge not liable for negligence, 332, 333. JURISDICTION, want of, as to malicious prosecution, 97. JURORS, privilege of, 153. K KNOWLEDGE OF FALSITY, by defendant in suits for deceit, 64-66. by plaintiff, 67-71. INDEX 407 LABOURERS, Statute of, 114, note. LANDLORD AND TENANT, landlord's right of action for injury to reversion, 210, 211. negligence by either or both, 341—343, 356. (See Conversion; Negligence; Trespass.) LANGUAGE, interpretation of, in deceit, 57, 03. in slander, 138-140. LATEKAL SUPPORT. (See Support of Land and Buildings.) LAW, meaning of term, 3, 8. antinomy between law and equity, 64, note, 65, note. LAWYERS, advice of, in malicious prosecution, 93, 94. calling a lawyer a dunce, 145. liability for false imprisonment, 195-197. for negligence, 322, 323. LECTURES, unauthorized publication of, 257, 259, note. LEGAL ADVICE, acting on, in making arrest, 93, 94. trustees acting on, 328, 329. LEGISLATIVE DEPARTMENT, privilege of members of, 29, 30, 153, 154. LEPROSY, imputation of having, in old law, 144. LETTER-CARRIER, invited to enter, 355. LLBEL. (See Slander and Libel.) LICENSE, nature and kinds of, 4, 9, 219-225, 343-356. revocation of, 219. duty to licensee in regard to condition of premises, 343-356. (See Negligence ; Trespass.) LITERARY CRITICISM, when libellous, 165. 'LOOK AND LISTEN,' as a requirement in crossing railways or highways, 312, note, 372. LUNATICS, liability for tort, 30-32. Roman law on the subject, 30, note. M MACHINES, patents of, 251-254. MAINTENANCE, actions for, 102. 408 INDEX MALICE, a perplexing term in law, 16. subjective, but not necessarily motive, 16, 17. interrupting a relation, with notice, 17. further departure from primary sense, 17, 18. connection of term with criminal law, 17, 18. summary division of malice as an element of liability, 18, 19. malice as motive, 19-22. malicious prosecution explained in regard to malice, 19-21. slander of title as to malice, 21, 79-81. malice cannot overturn legal right, 19-22, 110. Eoman law of malice as motive, 22, note. maliciously procuring refusal to contract, 105-112. use of wrongful means to that end, 105. change of current of authority as to malice, 10», 106. the settled rule, 106. 'right to contract,' 106, 107. effect of conspiracy in such cases, 107-111. whether conspiracy is 'means,' 107-111. malice becoming 'means,' 108. competition as justification, 110. notice of a fact, 111. earning one's livelihood, 111, 112. malicious hindrance of business, 112. procuring breach of contract, 113-122. (See Contract.) notice of the contract, 115. MALICIOUS APPEALS, Statute of, 87, 88, notes. MALICIOUS DISTRESS, old law of, 88, note. MALICIOUS PROSECUTION, what must be proved, 83, 84. civil suits of malice, 83, 84. termination of the prosecution, 84-88. reason for requiring, 84, 85. conviction, 85. acquittal of party prosecuted, 86-88. term ' acquittal ' loosely used, 85, note, civil suit terminated, how, 86. dismissal of action, 86. discontinuance, 86. judgment for defendant in former suit necessary, 86. criminal suit terminated, how, 86, 87. dismissal by prosecuting officer, 86. return of ' not found,' 86, 87. prosecution before magistrate, 87. dismissal of, 87. what constitutes acquittal, 87. jeopardy of prisoner. 87. Statute of Malicious Appeals, 87, 88, notes, summary, 88. want of probable cause, 88-95. meaning of term, 88, 89. in the old law, 88, note, slight circumstances of suspicion, 89. honest belief, 89, 90. time from which to decide, 90-93. subsequent evidence, 90. INDEX 409 MALICIOUS PROSECUTION,— continued. judgment of. conviction, 90, 91. action of grand jury or magistrate, 91, 92. discontinuance of suit, 92. abandonment of prosecution, 92, 93. advice of lawyer, 93-95. evidence of malice not proof of want of probable cause, 95. probable cause a question of law, 95. malice, 95, 96. evidence of, 95, 96. a question of fact, 96. damage, 96, 97. when to be proved, 96, 97. want of jurisdiction, 97. what action is proper, 97. kindred wrongs, 98-102. names of such wrongs, 98. how they differ from malicious prosecution, 98. malicious arrest, 98, 99. malice and probable cause, 98, 99. termination, 99. damage, 99, 100. malicious attachment, 100, 101. malice and probable cause, 100. termination, 100. statutory attachment, 100. malicious execution, 100, 101. malice and excessive levy, 100, 101. malicious search, 101. statutory and constitutional provision as to, in America, 101. what must be proved, 101. malicious abuse of process, 101, 102. what must be proved, 101. malice, 101. termination, 101, 102. probable cause, 102. maintenance, 102. MANUSCRIPT, copyright in, 257. MARRIAGE, breach of promise of, moritur cum persona, 45, note. MASTER AND SERVANT, nature of the relation, 34. when servant not liable for his acts, 34, 35. ground of master's liability, 35. meaning of scope of employment, 35. wilful torts of servant, 35, 36. ceasing to act for master, 36. enticing away servant, 113-117. seduction of child as' servant, 124, 125, 129, 130. charges by master affecting servant's character, 160. defence of master, 178, 179. defence of servant, 179. servant's right of action for battery, 179, 180. master's right of action for battery of servant, 179-182. death of servant, 181, 182. servant has no possession, 209, 210. servant's liability to master, 327. 410 INDEX MASTER AND SERVANT,— continued. injuries to servants by condition of master's premises or machinery, 357-359. assuming the risk, 357-368. negligence of fellow-servant, 360. MAXIMS, volenti non fit injuria, 10, 184, 357-367. actio personalis moritur cum persona, 45, 46, 181, 182. MAYOR OF CITY, privilege of, 152, note, 154. MEANS, distinguished from motive, 14, 105-111. MEANS OF KNOWLEDGE, in actions for deceit, 67-70. MEDICAL MEN, duties of, 323, 324. MENACES, actionable if followed by special damage, 168, note. MENIAL SERVICE, 113, 114. MENTAL DISTRESS, as special damage, 26, 27, 127, 141. MESNE PROFITS, trespass for, 215-217. MILLS. (See Watercourses.) MISDEMEANOUR, false charge of committing, 142, 144. arrests for, 202, 203. MOLLITER MANUS IMPOSUIT, 178, note. MORAL DUTY, as ground of privilege, 10, 11. MOTIVE. (See Malice; Slander and Libel.) N NECESSITY, entry from, 223. NEGLIGENCE, as the subject of Part III., 23, 24, 41, 44, 45. what must be proved, 306. an element of tort, not a tort, 305. distinction between, and torts of Parts I. and II., 305. elements of liability, 306. legal conception of, 306-313. a technical term, 306. rashness and wantonness, 307. misconduct causing unintended harm, 307. manifestation of conduct, not attitude of mind, 307, 308. active and passive negligence, 308. definition of negligence, 309. omissions, 309, 310. standard of liability, 309. undertaking acts, 310. common cases, 311. question usually put to the jury, 312. INDEX 411 NEGLIGENCE,— continued. province of court and jury, 312, 313. special cases, 313. innkeeper and guest, 313, 314. negligence of guest, 314. bailor and bailee, 314-321. common carriers, 314. degrees of negligence, 315-318. Roman law misunderstood, 315. tendency of authority, 315-318. the true criterion, 316. bailment for hire, 317. 'gross negligence,' 'ordinary care,' 'negligence,' 318. gratuitous bailor's duty, 318, 319. bailment for services, 319-321. exercise of ordinary care or skill, 319, 320. employment of unskilled help, 320, 321. professional services, 321-324. extraordinary skill not required, 321. duties of lawyers, 322, 323. duties of medical men, 323, 324. duty of agents, servants, trustees, and the like, 325-330. agent's liability to principal, 325. extraordinary emergencies, 326. agents for insurance, 326, 327. servant's liability to master, 327. ratification, 327. liability of trustee, 328-330. executors, administrators, and assignees, 328. obtaining legal advice, 328, 329. directors of corporations, 329, 330. public bodies and public officers, 330-333. officers of government, 330, 331. suits by individuals, 331. liability for acts of subordinates, 331, 332. officers of the courts, 332. judges and arbitrators, 332, 333. personal element in the duty, 333, 334. breach of duty to plaintiff, 333. who owed the duty, and to whom, 333, 334. independent contractors, 334-338. distinguished from servants and agents, 334, 335. negligence as mere matter of detail, 335. vice in the work, 336, 337. ground of doctrine, 336. no delegation of duty, 336. control, 336, 337. 'collateral' negligence, 337. ground of distinction between vice in the work and collateral negligence, 337. difficulties of the doctrine of independent contractors, 337, 338. sub-contractors, 338. completion of work, 339-343. vice in the work, 339. inspection, 339. circuity of action, 339. delegation of duty, 339, 340. extinction of duty, 340. remote vendor of dangerous article, 340. duty of lessor of premises, 341-343, 356. negligence of landlord, 341-343. 412 INDEX NEGLIGENCE,— continued. negligence of tenant, 842, 343. duty to plaintiff, 342, 343. mixed tenancy, 342, 343. circuity of action, 343. care of premises, 343-356. division of this subject, 343. duty of occupant to trespassers, 344, 345. to bare licensees, 345-348. wanton injury to such licensees, 346. special duties imposed by law, 346. injury to bare licensee by nuisance, 346, 347. pit in highway, 346, 347. straying animals, 347, 348. invited licensees, 348-350. public and quasi-public ways, 350, 351. nature of the invitation, 351. notice of defect, 351. customers, 351-356. nature of duty to such, 351, 352. rule stated, 352. place of injury, 353, 354. duty of dock-owners, 354. fall down stairway, 354. business of the occupant, 355. meaning of 'customer,' 355, 356. master and servant : assuming the risk, 357-367. exemption of master, 357. master's duty, 357, 358. ordinary risks, 359. extraordinary risks, 360, 363-366. negligence of fellow-servant, 360, 361. who are fellow-servants, 361. Employers' Liability Act, 361-363. volenti non fit injuria still holds, 361. knowledge of danger, 363-366. assuming the risk, a technical term, 367. not contributory negligence, 367. contributory fault, 368-375. meaning of 'contributory,' 368, 369. ground of doctrine, 367, 368. mere conditions, 369. natural tendency to harm, 369-371. unlawful acts not per se contributory, 371, 372. violations of Sunday law, 371, 372. 'look and listen,' 372. 'due care,' 373-375. losing presence of mind in danger, 373. comparative negligence, 375. intervening forces, 375-384. unforeseen forces, 375, 376. notice of, 376. cases growing out of contract, 377-380. identification of passenger with carrier, 380, 381. imputability of parent's negligence to child, 381-384. negligence of child, 382-384. suit by parent for loss of service, 384. NEWSPAPERS, are not privileged, in the law of defamation, 148, 157. libels in, 138, note. INDEX 413 NEWSPAPEBS,— continued. Libel Amendment Act, 157, note. use of, for vindication against public charges, 159. NITROGLYCERINE, keeping on one's premises, 300. NOLLE PROSEQUI, in suits for malicious prosecution, 86. NOTICE, by records, 1G8. of relation of master and servant, 115, 110, 124, 129, note. of nuisance, 284. of vicious propensity of animals, 292, 293. of danger, 344, 345. NUISANCE, overhanging trees or eaves, 222. what constitutes, 281-288. duration, 281. locality, 282. 'convenient' place, 282, 283. slight detriment to property, 283. notice of nuisance, 284. flooding land, 284, 285. surface-water, 285. water of drains and ditches, 285. pollution of streams, 285, 286. milling operations, 280. smells and gases, 286, 287. bodily discomfort, 287. disturbance of peace of mind, 288. public nuisances, 288-291. special damage, 288-291. removing obstructions, 288-291. circuitous routes made necessary by obstructions, 291. OFFICERS. (See Assault and Battery; Directors of Corporations; False Imprisonment; Public Officers.) OPINION, statements of, import fact, 58, 59. PARENT AND CHILD, seduction of child, 122-126. (See Seduction.) injury of child by parent's negligence, 381-384. PARTY WALLS, duty in regard to, 270-272. PASSENGER, identification of, with carrier, 380, 381. PATENTS, infringement of, 244-254. statutory provisions, 246, 247. 414 INDEX PATENTS,— continued. specification, 246-248. provisional specification, 247. complete specification, 247, 248. 'first and true inventor,' 249, 250. publication, 250. 'invention,' 'discovery,' 'principle,' 251. laws of nature, 251. processes, 251, 253. mechanical process, 251. infringement, 251-254. ' working or making,' 252. combination, 252, 253. better execution, 253, 254. additional effect, 253, 254. difference in substance, 254. PERJURY, imputation of, 1311. PHYSICIANS AND SURGEONS, duties of, 323, 324. PHOTOGRAPH, display of one's, 150, note. PLATO'S REPUBLIC, 6, 7, notes. PLEDGE, sale of, 237. POLICEMAN, entry of premises by, 355. POLLUTION OF STREAM, as a nuisance, 285, 286. legislative authority for, 286. POSSESSION, in trespass, 206-217. in conversion, 229-233. (See Conversion ; Trespass.) POSTMAN, entry of premises by, 355. POX, charge of having, 144. PREDICTION, involves fact, 59. PREMISES, care and condition of, 343-356. (See Negligence.) PRINCIPAL AND AGENT. (See Agency.) 'PRINCIPLE,' in patent law, 251. PRIVACY, right of, 150, note. PRIVILEGE, defined and explained, 9-11, 151-165. may include right, 9. by the party, 9. by the law, 9. ground of, rests in interest or duty, 10, 11, 155, 162-164. INDEX 415 PRIVILEGE,— continued. official duty as, 10. moral duty as, 10, 11. in slander of title, malicious prosecution, and slander and libel, 19-21. in defamation, 151-165. absolute, 151-154. prima facie, 155-164. criticism as, 165, 166. PRIVILEGED COMMUNICATIONS, in slander and libel, 151-165. (See Slander and Libel.) PEOBABLE CAUSE, want of, 88-95, 98-102, 200-202. (See False Imprisonment ; Malicious Prosecution.) PROCURING BREACH OF CONTRACT. (See Contract.) PROCURING REFUSAL TO CONTRACT. (See Contract.) PROFESSIONAL SERVICES, duties by persons rendering, 321-324. (See Negligence.) PROSECUTION, termination of, 84-88, 98-102. want of jurisdiction, 97. PUBLICATION, of slander or libel, 140-142. of patent, 250. PUBLIC MEN, criticism of, 165, 166. PUBLIC OFFICERS, liability for negligence, 330-333. PUBLISHERS OF BOOKS AND PAPERS, liable for defamation, 157. PUNISHMENT, liability of, in consequence of defamation, 137, note, 143, 144. R RAILWAY TIME-TABLES, representations by, 65, note. RASHNESS, legal conception of, 307. REASONABLE CAUSE, want of, 88-95, 98-102. (See False Imprisonment ; Malicious Prosecution. ) RECAPTION, in civil cases, 188, 189. in criminal cases, 189, 190. RECKLESSNESS, legal conception of, 307. REGISTRY, notice by, 168. RELATION, doctrine of entry by, 215, 216. 416 INDEX EEPETITION, of defamation, 164. REPORTS, of trials, when privileged, 155, 156. copyrights of, 261. REPRESENTATION. (See Deceit.) RESCISSION OF CONTRACTS, for misrepresentation or other wrong, 68. RESERVOIRS, breaking of, 296-298. RESPONDEAT SUPERIOR, 34. REVERSION, injuries to, 210, 211. RICHARD OF ALMAIGN, lampooning ballad against, 149. RIGHT, and privilege considered, 3. defined and explained, 4, 5. control and authority over things, 5. gratuities as rights, 5, 6. intangible objects of right, 6. equality of, 6, 7. substantive rights in rem and in personam, 7, rights paramount and consensual, 8. not overturned by malice, 19-22, 110. RIOT, acts done in quelling, 179. arrest for affray, 203. RISK, assuming, 357-367. ordinary, 359. extraordinary, 360, 363-366. SALES. (See Conversion ; Deceit.) 'with all faults,' 70. SCIENTER, proof of, in deceit, 64-66. SEARCH, want of probable cause for, 101. malicious, 101. SEDUCTION, enticing away children, 123, 124. parent's right of action for loss of service, 124, 125. seduction stricto sensu, 124-129. parent's right of action, 124, 125. master and servant as ground of the right, 124, 125. absence of child when seduced, 124. return of child, 124. parent's control taken away by fraud, 125. ability of child to serve, 125. INDEX 417 SEDUCTION,— continued. child come of age, 126. pregnancy or disease, 126. loss of health due to mental suffering, 127. seductive acts not necessary, 127. claim of mother, 127, 128. suit by child seduced, 128, 129. guardian and ward, 129, 130. guardian's claim, 129. ground of action, 129. husband and wife, 130-135. loss of consortium, 130. charges which are true, 131. persuasion of wife, by parent, to leave her husband, 131. harbouring of wife, 132, 133. criminal intercourse with plaintiff's wife, 133-135. change of law, by statute, 135, 136. ground of action for, 136. separation, 282. husband's infidelity, 136. husband's consent or negligence, 136, 137. condonation, 137. SELF-DEFENCE, in protection of person, 176, 177. protection of property, 177-179. protection of family, 178, 179. SEEVANT. (See Master and Servant; Negligence.) distinguished from agent, 36, 37. slander of, 146. SILENCE, as a ground of action, 54, 55. SIMPLEX COMMENDATIO, meaning of, 59. SLANDER AND LIBEL, kinds of actionable defamation, 136, 137. criticisms on law of defamation considered, 137, note. interpretation of language, 138, 139. Fox's Act, 138, note. doctrine of mitiori sensu, 139. legal sense of language, 139. indirect use of language, 139. imputation of felony, 139, note, 143, note. publication and special damage, 140-142. what constitutes publication, 140. sickness and distress of mind, 140, 141. imputation of unchastity, 141, 142, 143, note, 145, note. loss of marriage, 141. loss of consortium, 142. defamation actionable per se, 142. imputation of crime, 142-144. what sort of imputation actionable, 142-144. conflict of authority, 143. danger of punishment, 143, 144. imputing misdemeanour, 142, 144. contagious and disgraceful disease charged, 144. charge of having had same, 144. charge affecting plaintiff in his occupation, 144-146. natural tendency of charge, 144-146. B. T. 27 418 INDEX SLANDEE AND LIBEL,— continued. charges affecting servants, 146. positions of mere honour, 146. party not in exercise of his occupation, 146. charge tending to disherison, 147. bastardy, 147. libel, 147-149. definition, 147. of wider extent than slander, 147, 148. publishers, editors, and booksellers, 148, 157. truth of charge, 149, 150. a good defence, when, 149, 150. belief in truth, 150. effigy, picture, or sign, 150. privileged communications and malice, 151-164. proof of malice not necessary, 151. occasion of publication, 151, 152. kinds of privilege, 152. absolute privilege, 152-154. judicial proceedings, 152, 153. arguments of counsel, 152, 153. relevancy, 152. statements of suitors, 153. statements of witnesses, 152. statements of jurors, 153. affidavits, 153. proceedings in Legislature, 153, 154. privilege is local, 154. privilege of executive, 154. executive of cities, 154. prima facie privilege, 155-164. proceedings before voluntary societies, such as church organizations, 155. publication of proceedings of courts, 155-157. reports of trials, 155-157. abridged reports, 156. comments in headings to, 156, 157. ex parte proceedings, 157. newspapers not privileged, 157. matters of public interest, 157. publication of legislative proceedings, 157, 158. communications to public authorities, 158. statements in town meetings, 158. statements before other public bodies, 159. use of public prints, 159, 160. vindicating character, 159, 160. communications by master concerning his servant, 160. near relationship, 160, 161. confidential relations, 161. voluntary communications, 161. statements on inquiry, 161, 162. summary of doctrine of privileged communications, 162. basis of prima facie privilege, duty, or interest, 162, 163. belief of defendant, 163. singleness of motive, 163, 164. moral duty, 163, 164. malice, 165. repeating defamation, 165. criticism, 165, 166. not defamation, 165. 'fair criticism,' 165. INDEX 419 SLANDER AND LIBEL,— continued. on works of art, 165. on public men, 166, 166. defamatory accusation prosecuted, 167. SLANDER OF TITLE, nature of wrong, 78-81. malice, 20, 21, 79-81. fraud as evidence of malice, 81. distinction between slander of title and deceit, 81. SMELLS, DISAGREEABLE, when nuisance, 286, 287. SNOW AND ICE, injury by fall of, from building, 300. SOCIAL INSTINCT, as the origin of society, 7, note. SOCIETY, origin of, 7, note. Plato's doctrine of, 7, note. SON ASSAULT DEMESNE, what amounts to, 176-179. SPECIAL DAMAGE. {See Damage.) SPECIAL PROPERTY, meaning of, 230, 231, 237. (See Conversion.) SPORT, acts done in, 175, 176. •STANDING BY,' 239. STAR CHAMBER, influence of, on law of defamation, 137, note, 138, note. STATUS, as personal relation, 28-40. STATUTE OF FRAUDS, causing breach of contract invalid by, 122. STATUTE OF LABOURERS, 114, note. STRIKES, not unlawful, 108, note. SUCCOUR OF BEAST, entry for purpose of, 222. SUNDAY LAW, injury while in violation of, 371, 372. SUPPORT OF LAND AND BUILDINGS, lateral support, 265-272. natural condition of soil, 265, 266. damage, 266. superincumbent weight of buildings, 266-268. subsidence not caused by weight of buildings, 267, 268. lateral support of buildings, 268, 269. right of, depends on grant or prescription, 268, 269. summary, 269. duty to shore up, 269. duty to keep in repair, 269, 270. intervening building, 269. party- walls, 270-272. 420 INDEX SUPPOKT OF LAND AND BUILDINGS,— continued. fixing beams into such walls, 271, 272. subjacent support, 272-274. freehold beneath surface, 272. nature of right of support, 272. support of buildings, 272, 273. support of upper tenements, 273, 274. SURFACE WATER. (See Watercourses.) SURGEONS, duties of, 323, 324. SUSPICION, arrest on, 200, 201. SYPHILIS, imputation of having, 144. T TENANTS, in common, 213-215, 242. negligence by, 342, 343. (See Landlord and Tenant; Negligence.) TERMINATION OF LIABILITY, how far liability extends in a chain of things, 42-45. causa proxima, non remota spectatur, 42-45. TERMINATION OF PROSECUTION. (See Malicious Prosecution.) THIEF, possession by, 209, note. TIME-TABLES, representations by railway, 65 note. TORT, definition of, 28. TOWN MEETINGS, statements in privileged, 158. TRADEMARK, infringements of, 75, 254, 255. injunction, 76, note, 77, note. TRADE NAME, wrongful use of, 74-76. injunction against infringing, 76, 77, notes. TRANSLATION, infringement of copyright by, 259. TREES, fruit of, falling upon another's land, 222. overhanging, 222. TRESPASS, general meaning of, 205, 206, 225, 226. possession, 206-217. necessity of, 206. possession without right, 206, 207. entry under license, 207. contested possession, 207, 208. possession of personalty, 208, 209. possession of thief, 209, note, meaning of possession, 209, 210. INDEX 421 TRESPASS,— continued. injury to reversion, 210-212. waste, 211. personalty in hands of a pledgee, bailee, or lessee, 211, 212. unenclosed laud, 212, 213. possession of cotenants, 213-215. ouster, 214. ejectment, 214. expulsion or withholding, 214. history of trespass between cotenants, 214, note. conversion between cotenants, 215. doctrine of relation of entry, 215, 216. consequence of re-entry, 215, 216. mesne profits, 215, 216. successor to disseisor by descent or purchase, 216, 217. entry under legal process, 216, 217. entry under judicial sale, 217. extent of liability, 217, 218. what constitutes trespass, 218-227. trespass to land, 218. damage not necessary, 218. right of way, 218. trespass to bounds, 218, 219. enumeration of cases of justifiable entry, 219-223. (See Entry.) trespass ab initio, 223-226. property in animals, 226, 227. right to kill trespassing animals, 226, 227. care of premises, 728-752. TKESPASS AB INITIO, meaning of, 223-226. TRESPASSERS, duties of occupants of premises towards, 343, 344. (See Entry.) TROVER. (See Conversion.) TRUSTEES AND DIRECTORS, liability of, for negligence, 66, 328-330. TRUTH, as a defence in suits for defamation, 149, 150. u UNCHASTITY, imputation of, 141, 142, 143, note, 145, note. UNFAIR COMPETITION, recovering damages for, 75. UNLAWFUL ACTS, as subject of Part II., 22, 23. USUFRUCT. (See Watercourses.) V VALUE, misrepresentations of, 59, 60. VAPOURS, noxious, as nuisance, 286, 287. 422 INDEX VENEREAL DISEASE, imputation of having, 144. VIS MAJOR, breaking of reservoirs by, 296-298. VOLENTI NON FIT INJURIA, 10, 184, 357-367. w WANT OF PROBABLE CAUSE. (-See Malicious Prosecution.) WANTONNESS, legal conception of, 307. WARRANT. (See False Imprisonment.) WARRANTY, fraudulent, 25. distinguished from representation, 52, 53. implied, 65, 66. WASTE, duty to refrain from, 211. WATERCOURSES, usufruct and reasonable use, 275-279. nature of right, 275, 276. damage, 276, 277. what amounts to unreasonable use, 276-278. use of stream for domestic purposes, 277, 278. water taken for mills, 278, 286. diverting stream within one's land, 278. grant and prescription, 278. appropriation of general surface water, 278, 279. riparian rights in the Pacific States of America, 279. sub-surface water, 279, 280. percolating water, 279. underground stream, 279, 280. flooding lands, 284, 285. water in drains and ditches, 285. pollution of stream, 285, 286. legislative authority, 286. milling operations affecting sub-surface water, 286. WILD ANIMALS, damage by, 292-295. WITNESSES, privilege of, 152. WOMEN, slander of, 141, 142, 143, note, 145, note. WORDS, not necessary to a representation, 56. no assault by, 168, note. WRIT, (See False Imprisonment.) CAMBRIDGE : ntlNTKD BY J. AND C. F. CLAY, AT THE UNIVERSITY PRESS. UC SOUTHERN REGIONAL LIBRARY FACILITY AA 000 604 324 4 University of California Library Los Angeles J^^okUDUEonl the la, date stamped below. MAy 4 2000 ii